Bauer v. Singh
| Decision Date | 07 December 2010 |
| Docket Number | Case No. 3:09-cv-194 |
| Parties | JOHN BAUER, et al. Plaintiffs, v. SUKHVINDER SINGH, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
DECISION AND ENTRY: (1) DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT, IN PART, AND GRANTING IT IN PART (Doc. 41); AND (2) DENYING DEFENDANTS' MOTION TO STRIKE (Doc. 45)
This civil case is presently before the Court on Plaintiffs' Motion for Summary Judgment (Doc. 41) and Defendants' Motion to Strike certain exhibits submitted in support of Plaintiffs' Motion for Summary Judgment (Doc. 45). Defendant filed a Response to Plaintiffs Motion for Summary Judgment (Doc. 43), and Plaintiffs filed a Reply (Doc. 46). Plaintiffs filed a Response to Defendants' Motion to Strike (Doc. 47) and Defendants filed a Reply (Doc 49). Both Motions are now ripe for decision.
Initially, two named Plaintiffs, John Bauer and Jerry Freeze, filed this action as a putative collective action under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 210, et seq. (Doc. 35). The Court approved conditional certification of a collective action after Defendants presented no opposition to Plaintiffs' proposed Notice to opt-in Plaintiffs. (Doc. 11). Thereafter, Mark Wilson, Dustin Cassidy, James Dozier, and Hubert Palmer all executed Consent to Sue forms and filed them with the Court. (Docs. 17, 18, 19, 20).
Following the discovery deadline, the opt-in Plaintiffs sought to join the action formally as named Plaintiffs. (Doc, 40). Defendants asserted no objection to joinder of the opt-in Plaintiffs, and the Court ordered them joined as named Plaintiffs. (Doc. 42),
Plaintiffs assert their claims against their respective former employers, Payless Auto Sales, LLC, Commercial Paper Co., LLC, and Payless Auto Salvage, LLC (hereinafter collectively referred to as "the LLC Defendants"). (Doc. 35). Plaintiffs also name Sukhvinder Singh, an individual, as a Defendant. (Id.) Plaintiffs allege that Defendants violated the FLSA by failing to pay overtime wages and minimum wage, (Id.) Plaintiffs also assert claims for FSLA retaliation, wage conversion, and claims under Ohio Revised Code ("O.R.C.") § 4111.09, (Id.)
Payless Auto Sales is in the business of used car sales and is located on South Erie Highway, Middletown, Ohio. (Doc. 43-1). Commercial Paper is in the business of purchasing automobiles for sale at Payless Auto Sales and in financing the automobiles purchased from Payless Auto Sales. (Id.) Commercial Paper operates its business at a facility on South Erie Highway, Hamilton, Ohio. (Id.) Payless Auto Salvage is engaged in the business of selling used automobile parts to local repair shops and individuals. (Id.) Payless Auto Salvage operates its business on Oxford Road, Middletown, Ohio. (Id.) Sukhvinder Singh is the general manager of the LLC Defendants. (Doc. 43-1).
The original Complaint and the Amended Complaint also reference Paul's Auto Sales and Rajvinder Singh, (Docs. 1, 35), Paul's Auto Sales and Rajvinder Singh are also referenced in the memoranda presently before the Court. Like Payless Auto Sales, Paul's Auto Sales is in the business of used car sales, and is located on South Erie Highway, Hamilton, Ohio. (Doc. 43-1). Rajvinder Singh is the general manager of Paul's Auto Sales along with Sukhvinder Singh. (Id.)
Neither Paul's Auto Sales nor Rajvinder Singh are listed as named Defendants in the caption of either the Original Complaint or the Amended Complaint, as required by Fed. R. Civ. P. 10(a). (Docs. 1, 35). Further, a review of the docket reveals no issuance of summons or express waiver of service of process for Paul's Auto Sales or Rajvinder Singh. Under Fed. R. Civ, P 10(a), "[t]he title of the complaint must name all the parties[.]" Courts have concluded that "a party that is not named in the caption of an amended complaint is not a party to the action." Jones v. Parmley, No. 5:98-CV-374 FJS/GHL, 2005 WL 928666 (N.D.N.Y Apr. 20, 2005); Harris v. Aiixilium Pharm., Inc., 664 F.Supp2d 711, 722 (S.D. Tex. 2009). Accordingly, neither Paul's Auto Sales nor Rajvinder Singh have been made proper parties to this action.
Plaintiff Bauer began working for Defendant Payless Auto Sales in January 2009. (Doc. 41-3). His employment ended approximately three months later in March 2009. (Id.) During his employment, Bauer alleges he was paid a weekly sum of $550 for all hours worked. (Id.) Despite being employed by Defendant Payless Auto Sales, his paychecks came from Defendant Commercial Paper. (Id.)
Bauer contends that throughout his employment, he consistently worked approximately 25 hours of overtime each week of his employment for which we was not paid. (Id.) Pay records submitted along with his affidavit reveal that in February and March 2009, Bauer worked exactly 40 hours per week and was paid $550.00. (Docs. 41-3, 41-5). However, according to Bauer, he was never required to report his hours to his employer and, in fact, there was no time-clock where he could do so at Payless Auto Sales. (Doc. 41-3).
Despite the pay records, Bauer estimates that during his approximately three months of employment with Payless Auto Sales, he worked a total of 285 hours of uncompensated overtime. (Doc. 41-3). Based on his purported pay rate of $13.75 per hour ($550 divided by 40 hours), he is entitled to recover $5,878.13 in overtime, plus liquidated damages and attorney fees.
Sukhvinder Singh testifies, via affidavit, that Bauer only worked the hours of 10:00 a.m. until 7:00 p.m., 1 Monday through Friday, and that in working that schedule, Bauer only worked 40 hours per week. (Doc. 43-1). To corroborate the testimony of Sukhvinder Singh, Defendants also offer the affidavit of James Gist, Jr., a tow truck driver who worked for Commercial Paper at the same time that Bauer worked for Payless Auto Sales. (Doc. 43-3).
According to Gist, he and Bauer performed the exact same work duties and worked the same hours. (Id.) Gist was also always paid for 40 hours per week, but, according to Gist, rarely did he ever work a full 40 hours in a single work week, (Id.) Instead, when there was no work to perform during his scheduled workday, Gist was simply free to leave. (Id.)
Jerry Freeze2 began working for Defendant Payless Auto Salvage on or about July 5, 2008, and he continued in such employment until he was fired on or about January 3, 2009, 3 (Doc. 41). According to Defendants, Freeze was discharged for stealing auto parts. (Doc. 43-1). However, Freeze implies that he was fired for questioning Defendants' failure to pay overtime. (Doc. 41-7).
As an employee of Payless Auto Salvage, Freeze would fill parts orders from removing parts from cars in the salvage yard. (Doc. 41-7). After removing the parts, Freeze tagged the part pulled and identified which car the part was taken. (Id.) Freeze also drained gasoline, cut catalytic converters, removed wheels and other valuable parts from the salvage cars and secured them in the salvage yard. (Id.)
At the time his employment began, Freeze was paid $10.00 per hour, and in August 2008, his pay rate rose to $11.00 per hour. (Doc. 41-5). Freeze asserts that he worked Monday through Friday every week from 8 a.m. until 5 p.m, and then worked Saturdays each week from 8 a.m. until 12 p.m. (Doc. 41-7). Paycheck stubs submitted with Plaintiffs' Motion4 show 11.5 hours of overtime worked at the pay rate of $ 10.00 per hour, and 42 hours of overtime worked at the pay rate of $11.00 per hour, for a total of $288.50 of unpaid overtime. (Docs. 41-5, 41-8). Freeze seeks this exact amount in alleged unpaid overtime. (Doc. 41).
According to Sukhvinder Singh, all persons employed as part-pullers at Payless Auto Salvage worked only during business hours, which were Monday through Friday, 8:00 a.m. until 5:00 p.m. (Doc. 43-1). Therefore, according to Sukhvinder Singh, none of the employees employed as part-pullers for Payless Auto Salvage, including Freeze, worked more than 40 hours per week. (Id.)
Defendants also submit the affidavit of Daniel Depue, who also worked as a part-puller for Payless Auto Salvage along with Freeze. (Doc. 43-4). According to Depue. he worked from 8:00 a.m. to 5:00 p.m., Monday through Friday, for exactly 40 hours per week. (Id.) Depue further testifies that the salvage yard was never open on Saturdays, but Defendants would allow employees to come to the yard on Saturdays to work on their own vehicles or projects. (Id.) According to Depue, Freeze worked the same hours he worked and never knew Freeze to work any overtime, (Id.)
Plaintiff Wilson initially worked for Defendant Payless Salvage from July 2, 2008 until July 17, 2008, but he makes no claim with regard to this period of employment. (Doc. 41). Wilson was apparently rehired in October 2008, and he worked at Defendant's salvage yard until June 15, 2009. (Docs. 41, 41-5, 41-9).
As an employee of Payless Auto Salvage, Wilson pulled parts from disabled or junked cars to sell to customers, cleaned the salvage yard and drained gasoline from junked cars. (Doc. 41-9). Wilson also pulled catalytic converters, chrome wheels, and other valuable items from salvage cars and secured them in the salvage yard. (Doc. 41-10).
Wilson testifies, by way of affidavit, that he was paid $10.00 to $11.00 per hour in regular wages. (Doc. 41-9). Wilson further testifies that he regularly worked over 40 hours per week, that he was paid ''straight time" for overtime hours, and that sometimes he was paid in cash for overtime hours worked on Saturdays. (Id.) According to Wilson, he received such cash payments for at least a month after Defendants became aware of this action. (Doc. 41-10).
Pay records submitted by Paychex, Inc. ("Paychex") show that Wilson worked a total of 21.5 hours of overtime at his $10.00 rate of pay, and that he worked a total of 35.75 hours of overtime at his $11.00 rate of pay. (Doc. 41-5). The pay...
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