Brantley v. Ferrell Elec., Inc.

112 F.Supp.3d 1348

Johnny BRANTLEY and Robert M. Pou, Plaintiffs,

v.FERRELL ELECTRIC, INC. and James N. Ferrell, Defendants.

No. CV 114–022.

United States District Court, S.D. Georgia, Augusta Division.

Signed May 29, 2015.

John Paul Batson, Attorney at Law, Augusta, GA, Arthur H. Shealy, Shealy Law Office, North Augusta, SC, for Plaintiffs.

John Ryd Bush Long, John R.B. Long, PC, Augusta, GA, for Defendants.

ORDER

J. RANDAL HALL, District Judge.

Plaintiffs Johnny Brantley and Robert M. Pou brought this action against their former employer, Ferrell Electric Inc., and its owner and president, James N. Ferrell, to recover unpaid overtime wages pursuant to the Fair Labor Standards Act ("FLSA" or "the Act"), 29 U.S.C. § 201 et seq. Defendants now move for summary judgment and to strike evidence submitted by Plaintiffs in support of their brief in opposition. For the reasons that follow, the Court DENIES Defendants' motions to strike (Doc. 100, 101, 102, 103) with one exception (Doc. 99) and DENIES Defendants' motion for summary judgment on all grounds (Doc. 85).

I. MOTIONS TO STRIKE

Defendants move to strike the declarations of Plaintiff Brantley, Plaintiff Pou, Jasen Adams, Lance Barnes, and Martin Menefee, as well as any accompanying exhibits. (Docs. 99, 100, 101, 102, 103.) The parties have expended a great deal of time and energy filing and responding to these motions,¹ which many courts have described as "time wasters." See, e.g., Haynes v. Twin Cedars Youth & Family Servs., Inc., No. 5:10–CV–321–CAR, 2012 WL 895699, at *5 (M.D.Ga. Mar. 15, 2012) ; Purdee v. Pilot Travel Ctrs., No. CV 407–028, 2009 WL 423976, at *1 (S.D.Ga. Feb. 19, 2009). In fact, "[u]nless it is clear that the matters stricken have no possible relationship to the controversy and may prejudice the other party, motions to strike are generally disfavored." McNair v. Monsanto Co., 279 F.Supp.2d 1290, 1297 (M.D.Ga.2003). Moreover, the terms of Federal Rules of Civil Procedure 12(f) and 7(a) make clear that only "redundant, immaterial, impertinent, or scandalous matter" in a pleading may be subject to a motion to strike. Briefs or memoranda, objections, or affidavits may not be attacked through this mechanism. Rindfleisch v. Gentiva Health Servs., Inc., 962 F.Supp.2d 1310, 1316 (N.D.Ga.2013) ; Jeter v. Montgomery Cnty., 480 F.Supp.2d 1293, 1296 (M.D.Ala.2007).

Nevertheless, given that Plaintiffs submitted the challenged declarations in opposition to Defendants' motion for summary judgment, the declarations must comply with the requirements of Federal Rule of Civil Procedure Rule 56(c)(4). Rule 56(c)(4) makes it plain that such declarations "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall affirmatively show that the affiant is competent to testify to the matters stated therein." Defendants present a litany of objections, largely unsupported by any authority from this circuit, which include the following:

1. Paragraph-by-paragraph objections based on the Federal Rules of Evidence;

2. The declarations are not based on personal knowledge;

3. The declarations contain only conclusory allegations;4. The declarations were not disclosed during discovery;

5. The sham affidavit rule applies; and

6. The declarations do not satisfy the verifications requirements of 28 U.S.C. § 1746.

The Court takes notice of the complaints set forth in 1 through 3. A specific ruling on each objection is unnecessary, as the emphasis placed on each of the challenged statements is implicit in the Court's ruling on summary judgment. The Court is capable of reviewing the relevant evidence, as required by the summary judgment standard and other binding precedent,² without resorting to an exclusionary process. See Lee v. Nat'l Life Assurance Co. of Canada, 632 F.2d 524, 529 (5th Cir.1980) (noting that the court may strike or disregard improper portions of a declaration submitted in connection with a motion for summary judgment and consider the remainder of the testimony or statement);³ Haynes, 2012 WL 895699, at *7 (same).

As the remaining complaints affect the admissibility of the supporting declarations in their entirety, the Court addresses each in turn. Plaintiffs do not contest Defendants' objections to the declaration of Mr. Menefee but have failed to withdraw it. (Doc. 108–2 at 1.) Thus, the Court GRANTS Defendants' Motion to Strike Mr. Menefee's declaration. (Doc. 99.)

A. The Sham Affidavit Rule

Defendants argue that the Court should strike Plaintiff Brantley's and Plaintiff Pou's post-deposition, post-motion⁴ declarations because they "do not address ‘new’ issues," but rather "seek to radically change" prior sworn testimony. (Doc. 102 at 8; Doc. 103 at 8.) Recognizing that parties may try to escape summary judgment by using affidavits to create issues of fact where none exist, the Eleventh Circuit has allowed an affidavit to be disregarded as a "sham" if it flatly contradicts earlier deposition testimony in a manner that cannot be explained. Van T. Junkins & Assoc. v. U.S. Indus., 736 F.2d 656, 657 (11th Cir.1984). Under the sham affidavit rule, "[w]hen a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony." Id. The sham affidavit concept applies in limited circumstances: "[e]very discrepancy contained in an affidavit does not justify a district court's refusal to give credence to such evidence." Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir.1986). The Court must be careful to distinguish "between discrepancies which create transparent shams and discrepancies which create an issue of credibility or go to the weight of the evidence." Id. at 953. Accordingly, the movant bears a heavy burden to exclude a declaration or affidavit as a sham. Merritt v. Hub Int'l Sw. Agency Ltd., No. 1:09–CV–00056–JEC, 2011 WL 4026651, at *3 (N.D.Ga. Sept. 12, 2011) (citing In re Stand ‘N Seal, Prods. Liab. Litig., 636 F.Supp.2d 1333, 1335 (N.D.Ga.2009) ), aff'd, 466 Fed.Appx. 779 (11th Cir.2012).

For all of the statements that the Defendants say violate the sham affidavit rule—which they have "argued" by slapping a label in a chart of objections—Defendants fail to point to any unequivocal question or answer in Plaintiffs' depositions that directly contradict any statement in Plaintiffs' declarations. The Court will not scour hundreds of pages of deposition testimony to search for evidence that might bolster Defendants' argument.

Defendants appear to take the most offense to sections of Plaintiffs' declarations that set forth in great detail "Calculation[s] of Unrecorded Compensable Time." (Doc. 89–1, ¶¶ 29–35; DOC 90–1, ¶¶ 26–32; Doc. 102 at 9; Doc. 103 at 9.) Defendants argue that

Plaintiffs' affidavits make no mention why they now provide detailed, data driven estimates of the number of unpaid overtime wages they worked. During discovery, Plaintiffs swore that they could not come up with a reasonable estimate for the number of hours owed.... Plaintiffs could not identify any specific weeks they had worked more than 40 hours yet not been properly paid.

(DOC. 102 at 9; Doc. 103 at 9.)

The Court fails to see the relevance of Plaintiffs' precise damages calculations at this stage. As discussed infra, Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687–88, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946), sets out the appropriate standard for determining whether a plaintiff has presented sufficient evidence of damages to avoid summary judgment in an FLSA case, and specificity is not required.Anderson further stated that

[t]he employer cannot be heard to complain that the damages lack the exactness and precision of measurement that would be possible had he kept records in accordance with the requirements of ... the Act. And even where the lack of accurate records grows out of a bona fide mistake as to whether certain activities or non-activities constitute work, the employer, having received the benefits of such work, cannot object to the payment for the work on the most accurate basis possible under the circumstances.

Id. at 688, 66 S.Ct. 1187.

Moreover, by Plaintiffs' counsel's own admission, Plaintiffs' sworn declarations were made in part to attempt to rebut Defendants' argument that the challenged travel time was de minimis. (Doc. 108–2 at 12–13; Defs.' Br. at 16 ("The few minutes [Plaintiffs] may have spent ... driving from a job site at the end of a day is de minimis; in the event that the Court finds that the time constitutes work it is not compensable as de minimis. "); see J. Ferrell Dep., Doc. 83, at 27–75 (reviewing each of Plaintiffs' timesheets and testifying that travel time rarely exceeded ten minutes for each address or worksite identified).) Such an attempt to rebut issues that Defendants raised is perfectly legitimate on Plaintiffs' part. The Court, therefore, will not exclude the declarations on this basis.

B. Failure to Disclose During Discovery

Defendants raise a number of arguments related to purported discovery violations that should result in the Court ignoring all of the supporting declarations. To summarize, (1) Jasen Adams' name was not included in Plaintiffs' initial disclosures as an individual likely to have discoverable information (Doc. 100 at 2–3); (2) Lance Barnes' name was not included in Plaintiffs' initial disclosures as an individual likely to have discoverable information (Doc. 101 at 3); (3) Defendants' policy manual, submitted as an exhibit to Mr. Barnes' declaration, should have been produced by Plaintiffs in conjunction with initial disclosures or supplemented thereafter (id. at 3–4);⁵ and (4) "Plaintiffs' deposition testimonies contained either no estimates or only conclusory estimates and not the information Plaintiffs now provide" about damages, and Defendants "repeatedly" requested such information...