Gunn v. NPC International, Inc.

Filing 68

ORDER OVERRULING DEFENDANT'S OBJECTIONS TO MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, ADOPTING REPORT AND RECOMMENDATION 64 , FINDING CLAIMS OF PLAINTIFF GUNN MOOT AND SUSTAINING JUSTICIABILITY AS TO OPT-IN PLAINTIFFS. Signed by Chief Judge J. Daniel Breen on 3/24/14. (Breen, J.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
SKYLAR GUNN,
Plaintiff,
v.

No. 13-1035

NPC INTERNATIONAL, INC.,
Defendant,
_____________________________________________________________________________
ORDER OVERRULING DEFENDANT'S OBJECTIONS TO MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION,
ADOPTING REPORT AND RECOMMENDATION,
FINDING CLAIMS OF PLAINTIFF GUNN MOOT AND SUSTAINING JUSTICIABILITY
AS TO OPT-IN PLAINTIFFS
_____________________________________________________________________________
Before the Court is the April 1, 2013 motion of the Defendant, NPC International, Inc.
("NPC"), to dismiss this matter and for entry of judgment. (D.E. 26.) The motion was referred to
the United States Magistrate Judge for a report and recommendation. (D.E. 28.) The magistrate
judge's report was issued on January 27, 2014 (D.E. 64), to which the Defendant filed timely
objections (D.E. 65). The Plaintiff, Skylar Gunn, neither filed objections to the report nor responded
to those filed by the Defendant. The time for such objections and/or response has expired.
In ruling on objections to a report and recommendation, the Court is to make a de novo
determination as to those portions of the magistrate judge's report and recommendation to which
objections have been made. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). Under this type of
review, the district judge may accept, reject, or modify the recommended disposition. 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72(b)(3). "Each objection to the magistrate judge's recommendation
should include how the analysis is wrong, why it was wrong and how de novo review will obtain

a different result on that particular issue." Austin v. Comm'r of Soc. Sec., No. 1:12-CV-728, 2014
WL 897139, at *1 (S.D. Ohio Mar. 6, 2014). "Merely restating arguments previously presented,
stating a disagreement with a magistrate judge's suggested resolution, or simply summarizing what
has been presented before is not a specific objection that alerts the district court to the alleged errors
on the part of the magistrate judge." Id.
In her original complaint filed January 30, 2013, Gunn, individually and on behalf of all
others similarly situated, sued NPC under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq.
("FLSA") to recover unpaid, minimum and overtime wages. She amended her complaint on March
13, 2013, adding certain named plaintiffs. (D.E. 15.) In its April 1, 2013 request to dismiss the
amended complaint, NPC advised that, on March 22, 2013, Gunn accepted its offer of judgment, as
did the other individuals named in the amended complaint. NPC asserted that, based on the
settlement, this action is now moot and final judgment should be entered. On April 15, 2013, Gunn
filed a notice withdrawing her amended complaint, thereby rendering moot that portion of
Defendant's motion seeking dismissal thereof. (D.E. 40.) Thus, the magistrate judge issued his
report and recommendation only as to the remaining issue concerning final judgment.
The Defendant served its offer of judgment in the amount of $5,000 to Gunn on March 11,
2013. The offer provided that this amount was "to be in total settlement of this action with no
admission of liability and said judgment to have no effect whatsoever except in settlement of this
case." (D.E. 18-1.) Prior to NPC's offer, Plaintiff and her counsel obtained various consents to join
this action, of which Defendant had no knowledge at the time the offer was made. On the day after
NPC hand-delivered its offer of judgment to Gunn, March 12, 2013, she gave notice to the
Defendant of the consents of Ashley Lewis, Tiffney Penley, Leah Redmond and Ashley Yelverton

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by filing them with the Court. As noted above, the offer was accepted by Gunn on March 22, 2013.
On March 26, 2013, the day notice of her acceptance of the offer was filed with the Court,
Gunn filed notices that additional persons -- Leslie Ragland and Kelsey Elvington -- had consented
to join the suit between the date of the offer and March 22, 2013. Those consenting to join agreed
to "be bound to any judgment by the Court or any settlement of this action." (See, e.g., D.E. 65-2
¶ 2.) They also designated Gunn as their "agent[] to make decisions on [their] behalf concerning the
litigation, including the method and manner of conducting this litigation, when and under what terms
to settle this action upon, . . . and all other matters pertaining to this lawsuit" and specifically
authorized her "to sign any Settlement Agreement pertaining to these matters on [their] behalf."
(See, e.g., id. ¶ 4.)
The magistrate judge determined that Gunn's accepted offer of judgment was valid as
between her and NPC and, accordingly, that her claim was moot. With respect to the opt-in
plaintiffs, the magistrate judge opined that their agreements with Gunn that she could represent them
in settlement when she was already engaged in negotiations which she and Defendant contemplated
would make her whole was against public policy.
The magistrate judge further determined that the opt-in plaintiffs' claims remained justiciable
after Gunn's claim became moot. In doing so, the judge relied on the United States Supreme Court's
decision in Genesis Healthcare Corp. v. Symczyk, ___ U.S. ___, 133 S. Ct. 1523, 185 L. Ed. 2d 636
(2013), in which the Court stated that
We turn, then, to the question whether respondent's action remained justiciable based
on the collective-action allegations in her complaint. A straightforward application
of well-settled mootness principles compels our answer. In the absence of any
claimant's opting in, respondent's suit became moot when her individual claim
became moot, because she lacked any personal interest in representing others in this
action.
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Symczyk, 133 S. Ct. at 1529 (emphasis added). (D.E. 64 at 6.) In the view of the magistrate judge,
the inference to be drawn from the Supreme Court's determination is that where opt-ins are present,
as in the instant case, the suit is not mooted as to those individuals when the named plaintiff's
individual claim becomes moot.
Gunn has not objected to the magistrate judge's recommendation that her claim in this matter
is moot. As any objection she may have had to the magistrate judge's finding is therefore waived,
see Thomas v. Arn, 474 U.S. 140, 140-41, 106 S. Ct. 466, 467-68, 88 L. Ed. 2d 435 (1985), reh'g
denied (Jan. 27, 1986); Scheib v. Boderk, No. 3:07-cv-446, 2013 WL 6046089, at *4 n.1 (E.D. Tenn.
Nov. 14, 2013), the undersigned will not revisit the issue of the status of Gunn's claim. See Anger
v. Chung, No. 13-12143, 2014 WL 859717, at *2 (E.D. Mich. Mar. 5, 2014) (failure to file
objections to report relieves the district court from its duty to independently review the record). The
magistrate judge's finding that her claim is now moot is hereby ADOPTED.
NPC's objections to the magistrate judge's report and recommendation focus on the effect
of Gunn's acceptance of its offer of judgment on the opt-in plaintiffs . The Defendant insists that
its offer, made pursuant to Rule 68 of the Federal Rules of Civil Procedure, applied to Gunn as well
as any opt-in plaintiffs. Thus, it contends, the Rule mandates entry of judgment dismissing this case
as to the opt-in plaintiffs as well as the named Plaintiff.
Rule 68 provides that
[a]t least 14 days before the date set for trial, a party defending against a claim may
serve on an opposing party an offer to allow judgment on specified terms, with the
costs then accrued. If, within 14 days after being served, the opposing party serves
written notice accepting the offer, either party may then file the offer and notice of
acceptance, plus proof of service. The clerk must then enter judgment.
Fed. R. Civ. P. 68(a). "The plain purpose of Rule 68 is to encourage settlement and avoid

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litigation." Marek v. Chesny, 473 U.S. 1, 5, 105 S. Ct. 3012, 3014, 87 L. Ed. 2d 1 (1985). "By
encouraging compromise, Rule 68 discourages both protracted litigation and vexatious law suits."
Mallory v. Eyrich, 922 F.2d 1273, 1277 (6th Cir. 1991).
In rejecting its argument that the offer applied to Gunn and the opt-in plaintiffs, Defendant
avers that the magistrate judge ignored the plain language of the offer of judgment, the benefit it
bargained for and Gunn's acceptance thereof because, when she accepted it, she bound the opt-in
plaintiffs to her settlement. However, the offer unequivocally stated that it was in "[p]ayment to
Skylar Gunn of a total of $5,000[.]" (D.E. 18-1 at 1 (emphasis added).) There is no evidence
whatever that the benefit for which NPC bargained was anything other than settlement with Gunn,
and no one else. Indeed, Defendant's assertion is unsupported by any of the evidence presented. As
noted above, the Defendant admits it had no knowledge that others had signed consents to join the
suit at the time of the offer of judgment or that any opt-in plaintiffs actually existed. Thus, it appears
to the Court that the clear intent of the Defendant at the time the offer was made was that the amount
offered was to make Gunn whole. NPC has offered no explanation as to how the amount that would
have made Gunn whole would at the same time have made other co-workers whole as well.
Accordingly, the objection fails.
The Defendant next submits that this case is, contrary to the magistrate judge's conclusion,
identical to Symczyk in that, here too, there were no opt-in plaintiffs and no motion for certification
had been filed. Thus, the argument goes, Symczyk mandates dismissal of this case in its entirety.
In the case before the Supreme Court, the plaintiff sued her employer under the FLSA on
behalf of herself and other employees similarly situated. Symczyk, 133 S. Ct. at 1524. After she
ignored the defendant's Rule 68 offer, the district court, noting that no others had joined her suit and

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that the offer satisfied her claim, found that her action was moot and dismissed it for lack of subject
matter jurisdiction. Id. The Third Circuit Court of Appeals reversed on the grounds that, while
Symczyk's individual claim was moot, her collective action was not, articulating that "allowing
defendants to 'pick off' named plaintiffs before certification with calculated Rule 68 offers would
frustrate the goals of collective actions." Id. at 1524-25. The appellate court remanded the matter
to the district court to allow the plaintiff to seek conditional certification. Id. at 1525. The Supreme
Court reversed the court of appeals' decision, holding that, in the case before it, the plaintiff's FLSA
collective action became moot when her claim became moot, because she no longer had any
personal interest in representing others in the case. Id. at 1529.
The relevant difference between the case at bar and Symczyk is, of course, that opt-in
plaintiffs came to light in this case almost immediately after the offer was made, while no opt-in
plaintiffs ever appeared in the matter before the Supreme Court. NPC has cited to two cases in
support of its position that dismissal is warranted under the circumstances presented herein. The
Court finds both distinguishable.
First, Defendant points to the Sixth Circuit's statement in O'Brien v. Ed Donnelly Enterprises,
Inc., 575 F.3d 567 (6th Cir. 2009) that "[w]e agree with the Seventh Circuit's view that an offer of
judgment that satisfies a plaintiff's entire demand moots the case . . ." O'Brien, 575 F.3d at 574.
However, the plaintiffs at issue did not, as Gunn did here, purport to bring a collective action. Id.
at 575. Therefore, the O'Brien court was not faced with the question before this Court.
Second, the Defendant refers to Hrivnak v. NCO Portfolio Management, Inc., 719 F.3d 564
(6th Cir. 2013). Hrivnak was brought under the Fair Debt Collection Practices Act and dealt with

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class certification sought under Fed. R. Civ. P. 23.1 Hrivnak v. NCO Portfolio Mgmt., Inc., 723 F.
Supp. 2d 1020, 1021 (N.D. Ohio 2010), aff'd 719 F.3d 564 (6th Cir. 2013). The Sixth Circuit's
discussion of the merits of the case provides no aid to NPC here. Hrivnak sued several debt
management companies and a law firm in state court seeking class-wide relief. Hrivnak, 719 F.3d
at 565. The defendants removed the matter to federal court and, two days later, made a Rule 68 offer
of judgment to the named plaintiff. Id. at 566. Hrivnak responded with a motion to strike the offer
or, in the alternative, for class certification. Id. On appeal, the defendants claimed their offer of
judgment had the effect of mooting both his claims and those of the yet-to-be-certified class. Id. at
567. Thus, there were two premises: that the defendants had offered Hrivnak everything he could
possibly win as an individual and that, at that point, the individual and uncertified class claims must
be dismissed as moot. Id. However, because the court found defendants had not established the first
premise by failing to show that it had offered to satisfy all of the plaintiff's claims, it decided it need
not reach the second premise, which of course is at issue here. Id. at 567-68. In short, the cases
cited by the Defendant provide little guidance to the Court in this case.
Because there were opt-ins in this matter, the Court is simply unconvinced that Symczyk
requires dismissal as to those plaintiffs. Indeed, courts have permitted FLSA collective actions to
proceed where the lead plaintiff's claim was rendered moot by a Rule 68 offer of judgment and
where opt-in plaintiffs were present. See Cisneros v. Taco Burrito King 4, Inc., No. 13 CV 6968,
2014 WL 1017040, at *4 (N.D. Ill. Mar. 14, 2014) (conditional class certification in FLSA claim
cannot preserve a suit from mootness after lead plaintiff loses personal stake in outcome of suit

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The Court notes here that, in Symczyk, the Supreme Court rejected the plaintiff's
reliance on cases involving Rule 23 class certification, describing them as "fundamentally
different from collective actions under the FLSA." Symczyk, 133 S. Ct. at 1529.
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unless individuals opt in); Silva v. Tegrity Pers. Servs, Inc., ___ F. Supp. 2d ___, 2013 WL
6383030, at *9 (S.D. Tex. Dec. 5, 2013) (finding, post-Symczyk, that, where lead plaintiff seeking
payment under FLSA for ten hours of overtime is provided a Rule 68 offer of judgment that would
have paid for that ten hours of overtime, no motion for conditional certification has been filed, and
opt-in plaintiff existed to whom no offer had been made, suit would not be rendered moot); Bowens
v. Atlantic Maint. Corp., 546 F. Supp. 2d 55, 78 (E.D.N.Y. 2008) ("where the offer either fails to
satisfy all of plaintiff's damages or where there are additional plaintiffs who have opted in, dismissal
is not appropriate"); Yeboah v. Cent. Parking Sys., No. 06 CV 0128(RJD)(JMA), 2007 WL
3232509, at *3-5 (E.D.N.Y. Nov. 1, 2007) (same).
The Defendant also takes issue with the magistrate judge's observation that it did not seek
to modify or rescind its offer after learning of the existence of opt-in plaintiffs after the offer was
made, arguing that it could not have done so. To the extent NPC is attempting to suggest that it was
somehow powerless to make any offer to the opt-in plaintiffs because it could not withdraw or
modify the one made to Gunn, the argument is unpersuasive, as nothing prevented it from making
similar separate offers of judgment to the opt-in plaintiffs.
Finally, the Defendant submits that the magistrate judge failed to address its arguments in
support of judicial estoppel. It is true; he did not. While the reason for the decision not to opine on
the application of judicial estoppel to this case is unknown to the undersigned, the Court notes that
the issue was raised for the first time in NPC's reply brief. This Circuit has long recognized that
assertions not raised in a party's main brief are waived. See United States v. Lopez-Medina, 461
F.3d 724, 743 n.4 (6th Cir. 2006); Sims v. Piper, No. 07-14380, 2008 WL 3318746, at *4-5 (E.D.
Mich. Aug. 8, 2008). Accordingly, the issue will not be addressed by this Court.

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For the reasons articulated herein, the Court OVERRULES the Defendant's objections and
ADOPTS the report and recommendation. The claims of Plaintiff Gunn are moot and the claims of
the opt-in plaintiffs remain justiciable.
IT IS SO ORDERED this 24th day of March 2014.
s/ J. DANIEL BREEN
CHIEF UNITED STATES DISTRICT JUDGE

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