Jhagroo v. All Star Wildlife Animal Control et al
Filing
47
MEMORANDUM OPINION granting 46 MOTION for Summary Judgment Traditional Motion for Final Summary Judgment (Signed by Magistrate Judge Nancy K. Johnson) Parties notified.(sjones, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ANAND JHAGROO on behalf of
himself and on behalf of All
Others Similarly Situated,
Plaintiff,
v.
ALL STAR WILDLIFE ANIMAL
CONTROL; DEREK SWANSON;
BRYAN SAWNSON; 2nd
CHARITY “STAR” OUTEN,
Defendants.
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§ CIVIL ACTION NO. H-13-3617
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MEMORANDUM OPINION
Pending before the court1 is Plaintiff’s Motion for Summary
Judgment (Doc. 46).
applicable law.
The court has considered the motion and the
For the reasons set forth below, the court GRANTS
Plaintiff’s summary judgment motion.
I. Case Background
Plaintiff brought this suit against Defendants, alleging that
Defendants violated the Fair Labor Standards Act2 (“FLSA”) by
failing to pay minimum wage, commissions and overtime as well as by
failing to keep adequate records of Plaintiff’s hours.
Defendants answered the lawsuit, asserting that Plaintiff
failed to state a claim for which relief could be granted, that
1
The parties consented to proceed before the undersigned magistrate
judge for all proceedings, including trial and final judgment, pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. Doc. 24.
2
29 U.S.C. §§ 201-219.
Plaintiff’s complaint was barred, at least in part, by limitations,
that Plaintiff’s complaint was barred, at least in part, by the
doctrine of laches, and that Plaintiff was exempt from the overtime
provisions of the FLSA based on a number of legal theories.3
On September 17, 2014, Defendants’ counsel filed a motion to
withdraw, which was granted.4
On September 22, 2014, Plaintiff
filed a notice of nonsuit against an unserved party, and, shortly
thereafter,
the
prejudice.5
court
entered
Plaintiff
an
propounded
Defendants on September 3, 2014.6
of the requests.
order
of
requests
nonsuit
for
without
admission
to
Defendants have not answered any
The time to respond ended on October 3, 2014.
Plaintiff filed the present motion for summary judgment on
February
6,
conclusively
Procedure.
2015,
relying,
established
in
under
part,
the
on
admissions
Federal
Rules
of
deemed
Civil
Defendants failed to respond to Plaintiff’s motion for
summary judgment.
II. Summary Judgment Standard
Summary judgment is warranted when the evidence reveals that
no genuine dispute exists regarding any material fact and the
moving party is entitled to judgment as a matter of law.
Fed. R.
3
Doc. 18, Defs.’ Original Answer and Affirmative Defenses p. 4-5.
4
Doc. 32, 39 Defs.’ Mot. to Withdraw as Counsel p. 1.
5
Doc. 41, Pl.’s Notice of Nonsuit p. 1-2.
6
Doc. 46-1, Req. for Admis. to each Def. p. 42.
2
Civ. P. 56(c); Celotex Corp. V. Catrett, 477 U.S. 317, 322 (1986);
Brown v. City of Houston, Tex., 337 F.3d 539, 540-41 (5th Cir.
2003).
The movant must inform the court of the basis for the
summary judgment motion and must point to relevant excerpts from
pleadings, depositions, answers to interrogatories, admissions, or
affidavits that demonstrate the absence of genuine factual issues.
Celotex Corp., 477 U.S. at 323; Topalian v. Ehrman, 954 F.2d 1125,
1131 (5th Cir. 1992). Admissions on file provide proper grounds for
summary judgment.
Fed. R. Civ. P. 56;7
In re Carney, 258, F.3d
415, 420 (5th Cir. 2001).
III. Analysis
Plaintiff seeks summary judgment in his favor on his FLSA
claims based on his testimony that he worked approximately seventytwo hours per week but was only paid for forty hours per week.
Plaintiff also testified that Defendants “failed to keep accurate
records of [his] employment,” and that “Defendants knew that [he]
was working in excess of forty hours per week.”8
Plaintiff
calculated that he had been underpaid for commissions in the amount
of $3,438.81, underpaid for minimum wage in the amount of $766.08,
7
Prior to the 2007 amendments, Rule 56(c) actually listed
“admissions on file” amid types of discovery that the court should review in
determining whether a genuine issue of fact existed. Now, the rule refers
more generally to discovery materials. The Advisory Committee Notes reflect
that the changes were not intended to be substantive, but were to be stylistic
only. Therefore, the court attributes no change in meaning to the removal of
specific reference to admissions.
8
Doc. 46-1, Aff. of Anand Jhagroo p. 2.
3
and underpaid for overtime in the amount of $6,612.00.
also
seeks
attorney’s
fees
in
the
amount
of
Plaintiff
$20,595.50
and
additional fees if the case is appealed.
Not only is summary judgment justified on the basis of
Plaintiff’s uncontroverted affidavit, but it is also warranted
based on Defendants’ deemed admissions.
respond
timely
to
requests
for
When a party fails to
admission,
those
matters
are
“conclusively established unless the court, on motion, permits the
admission to be withdrawn or amended.”
Fed. R. Civ. P. 36(b).
The
Fifth Circuit values a litigant’s right to depend on matters
admitted without the concern that they are subject to change later,
and, thus, the court “has stressed that a deemed admission can only
be withdrawn or amended by motion in accordance with Rule 36(b).”
In re Carney, 258 F.3d at 419.
Defendants are deemed to have admitted, inter alia, that
Plaintiff wore a required uniform, and that they provided Plaintiff
with a truck, ladder, tools, chemicals and a gas card in order to
perform his job.
Defendants have admitted that they failed to pay
Plaintiff at the rate of one and one half times his hourly wage for
hours worked in excess of forty per week. Defendants have admitted
that they failed to pay Plaintiff a wage equal to or in excess of
the minimum wage.
Defendants have admitted that they failed to
keep adequate records of Plaintiff’s work hours and pay.
Defendants’ failures to respond to Plaintiff’s requests for
4
admission and motion for summary judgment has left them in an
indefensible position.
See id. at 418 (affirming the grant of
summary judgment based on deemed admission of the accuracy of an
Internal Revenue Service proof of claim); but see
AMS Staff
Leasing, NA, Ltd. v. Associated Contract Truckmen, Inc., No. Civ.
A.
304CV1344D,
2005
WL
3148284,
at
*6
(N.D.
Tex.
Nov.
21,
2005)(unpublished)(denying portions of a summary judgment request
based on deemed admissions because the requests for admission
related
to
pure
conclusions
of
law,
not
facts
or
failed
to
establish a required element of a claim).
While a motion for summary judgment based on deemed admissions
may be harsh in some circumstances, this is not one of those
instances.
See In re Carney, 258 F.3d at 421.
On the contrary,
Defendants’ failures to respond to Plaintiff’s motion for summary
judgment, as well as their failures to respond to his requests for
admission,
give
a
strong
claim
appropriate in this instance.
for
why
summary
judgment
is
Id.
IV. Conclusion
Based on the foregoing, the court GRANTS Plaintiff’s Motion
for Summary Judgment.
SIGNED in Houston, Texas, this 1st
day of July, 2015.
______________________________
U.S. MAGISTRATE JUDGE
5
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