Barron v. Lee Enterprises, Inc.
| Citation | 183 F.Supp.2d 1077 |
| Decision Date | 28 January 2002 |
| Docket Number | No. 00-CV-2273.,00-CV-2273. |
| Parties | Gary BARRON, Jennie Hord, and Kim Alderson, Plaintiffs, v. LEE ENTERPRISES, INC., Herald and Review, Mike Gulledge, and Terri Kuhle, Defendants. |
| Court | U.S. District Court — Central District of Illinois |
William C. Faber, Jr., Law Firm of William Faber, Ltd., Decatur, IL, for Plaintiff.
Charles C. Hughes, Daniel P. Fossier, Hughes, Hill & Tenney, Decatur, IL, for Defendant.
This case is before the court for ruling on various motions. Following this court's careful review of all the documents presented by the parties and the arguments of the parties, this court rules as follows: Defendants' Motion for Leave to File Affirmative Defenses (# 39) is GRANTED Defendants' Motion for Leave to File an Additional Affirmative Defense (# 47) is GRANTED; Plaintiffs' Motions to Strike (# 49, # 53, # 55) are DENIED; and Defendants' Motion for Summary Judgment as to Counts I and II (# 43) is GRANTED. Judgment will be entered in favor Defendants on Counts I and II of Plaintiffs' Complaint. Count I contained Plaintiffs' only federal claim, Plaintiffs' claim for overtime pay under the Fair Labor Standards Act (FLSA). Because judgment has been entered on Plaintiffs' only federal claim, this court declines to retain supplemental jurisdiction over Count V, Plaintiffs' only remaining claim, which is a state law claim for misrepresentation. Count V of Plaintiffs' Complaint will be dismissed without prejudice so that it may be refiled in state court. Because of this court's rulings, this court concludes that Plaintiffs' Motions Regarding Defendants' Experts (# 33) are MOOT.
Defendant Lee Enterprises, Inc. is a Delaware corporation doing business as the Decatur Herald & Review. The Decatur Herald & Review prints and delivers newspapers, on a daily basis, to subscribers in and around Macon County, Illinois. Defendant Mike Gulledge is the publisher of the Decatur Herald & Review and Defendant Terri Kuhle is the human resource/personnel manager at the Decatur Herald & Review.
Plaintiffs Garry Barron, Jennie Hord and Kim Alderson were employed by the Decatur Herald & Review as district managers in the circulation department. Barron was employed from August 1998 to May 1999 and was paid $425 per week, plus occasional bonuses. Hord was employed from April 1998 to March 2000. Hord started at $400 per week and was paid $480 per week at the time her employment terminated. Alderson was employed from November 1997 to March 2000. Alderson started at $400 per week and was paid $525 per week at the time her employment terminated. Hord and Alderson also received occasional bonuses.
Plaintiffs all testified at their depositions that their job duties as district manager included distributing bundled newspapers to carriers at about 2:00 a.m. each day, finding additional newspapers because there were not enough bundles to cover all the routes, cleaning the service center and parking lot, delivering newspapers on routes that did not have a carrier, recruiting carriers and finding substitutes, responding to customer complaints, and collecting from customers. Plaintiffs testified that much of the work they performed was manual labor. Plaintiffs testified that they were assigned a district but often had to do work in other districts when there was no manager for that district. They also were required to assist other district managers. Plaintiffs testified that they worked every weekend and on holidays. All three Plaintiffs testified that they did not do any sales work. Barron testified that he spent two to two and one-half hours per day delivering newspapers. Hord testified that she spent six to seven hours each day delivering newspapers, sometimes more. Alderson testified that she spent an average of six hours per day delivering newspapers. Barron testified that he viewed his job as a liaison between the Decatur Herald & Review and the independent carriers.
During the time Plaintiffs worked at the Decatur Herald & Review, the newspapers included preprinted and dated supplements, such as Sunday color comics, magazines such as Parade, coupons and other types of advertising supplements. Supplements were included with the newspapers on an average of six days per week. These preprinted supplements were shipped to the Decatur Herald & Review by paying advertisers. These advertisers placed orders with the Decatur Herald & Review to have preprinted and dated supplements inserted in the newspapers and delivered to subscribers in and around Macon County. Preprinted supplements were shipped directly from out-of-state printers in Michigan, Kansas, Wisconsin and Indiana. The preprinted supplements were dated by the individual out-of-state advertisers to coincide with preplanned sales or special promotions by the respective advertiser. The preprinted supplements were inserted into newspapers on a date specified by the individual advertiser and delivered to subscribers by carriers. The preprinted supplements were stored on skids at the Decatur Herald & Review for two to ten days. Plaintiffs delivered newspapers which contained preprinted and dated supplements which were shipped from outside of Illinois.
On October 4, 2000, Plaintiffs filed a five-count Complaint (# 1) against Defendants. In the supporting documentation attached to the Complaint, Barron claimed that he worked 75 hours most of the weeks he worked for the Decatur Herald & Review. Hord claimed that she worked 87 hours every week she was employed at the Decatur Herald & Review. Alderson claimed that she worked 102 hours, or more, the majority of the weeks she was employed at the Decatur Herald & Review. In Count I, Plaintiffs alleged that they were entitled to overtime pay pursuant to the FLSA. In Count II, Plaintiffs alleged that Defendants were liable for violations of the Illinois Minimum Wage Law (820 Ill. Comp. Stat. 105/1 et seq.). In Count V, Plaintiffs alleged that they were entitled to damages for misrepresentation of employment conditions and pay.1 In their Answer to Count I(# 10), Defendants stated that "Plaintiffs were exempt as defined by the Fair Labor Standards Act."
On October 22, 2001, Defendants filed a Motion for Leave to File Affirmative Defenses (# 39) and a Memorandum of Law (# 40) in support. Defendants sought to add three affirmative defenses: (1) that Plaintiffs were exempt from the requirements of the FLSA as bona fide administrative employees; (2) that Plaintiffs were exempt from the requirements of the FLSA for the time they spent delivering newspapers and on outside sales; and (3) that Plaintiffs were exempt from the overtime requirements of the FLSA under § 13(b)(1) of the FLSA, the Motor Carrier Act, because they delivered newspapers containing supplements and other materials printed outside of Illinois to their final intended destination within Illinois. Defendants noted that the Answer they filed clearly stated that Plaintiffs were employees who were exempt from the overtime provisions of the FLSA. Defendants argued that the key issue in the case is "clearly whether Plaintiffs were exempt from coverage under the FLSA." Defendants also noted that the issue of the Motor Carrier Act was raised during the depositions of Plaintiffs' expert witnesses and in the supplemental disclosures of Defendants' expert witnesses. Defendants therefore argued that allowing them to file their affirmative defense would serve the ends of justice by causing the pleadings to conform to the evidence and would not raise issues that would cause surprise to Plaintiffs or prejudice Plaintiffs' cause of action. Defendants specifically noted that Plaintiffs had "generally declined the opportunity to perform even basic discovery as evidenced by their strategy to forego depositions of the experts retained by [Defendants]."
On October 29, 2001, Plaintiffs filed a Memorandum of Law Opposing Defendants' Motion to File New Affirmative Defense-Motor Carrier Act (# 41). Plaintiffs stated that they opposed only the third proposed affirmative defense. Plaintiffs argued that the defense of the Motor Carrier Act exemption was late and a surprise. Plaintiffs argued that the proposed addition of the Motor Carrier Act exemption changed the theory of the defense, raised a panoply of new factual matters and effectively annulled the discovery work of the case. Plaintiffs also argued that Defendants had not provided any explanation for their delay. Plaintiffs did not request additional time for discovery or state what discovery would be necessary to respond to this defense.
This court notes that the Motor Carrier Act, 29 U.S.C. § 213(b)(1), is an exemption from the overtime requirements of the FLSA which is included in the FLSA. This court further notes that Defendants have claimed from the time they filed their Answer that Plaintiffs are exempt from the overtime provisions of the FLSA. This court therefore concludes that it would not cause undue surprise or be unduly prejudicial to Plaintiffs to allow Defendants to raise the issue of the exemption provided by the Motor Carrier Act. This court additionally notes that Plaintiffs' argument that allowing Defendants to raise this defense would annul the discovery work done in the case rings somewhat hollow when Plaintiffs conducted very little discovery in this case. Plaintiffs did not depose Defendants expert witnesses or, in fact, Defendants Gulledge or Kuhle. Plaintiffs have not suggested any discovery they would have done or would wish to do based upon the defense of the Motor Carrier Act. Accordingly, for the reasons stated, Defendants' Motion for Leave to File Affirmative Defenses (# 39) is GRANTED.
On November 15, 2001, Defendants filed a Motion for Leave to File Additional Affirmative Defense (# 47). Defendants sought to add a Fourth Affirmative Defense based upon the applicable stat...
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