Birch v. Kim, IP 96-1549-C-B/S.

• Court: United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
• Writing for the Court: Barker
• Citation: 977 F.Supp. 926
• Parties: Tyla LaRay BIRCH, Plaintiff, v. June KIM a.k.a. "Mister J" d/b/a J-Town, Defendant. June KIM, Counterclaimant, v. Tyla LaRay BIRCH, Counterdefendant.
• Docket Number: No. IP 96-1549-C-B/S.,IP 96-1549-C-B/S.
• Decision Date: 09 September 1997

977 F.Supp. 926 Tyla LaRay BIRCH, Plaintiff,
v.
June KIM a.k.a. "Mister J" d/b/a J-Town, Defendant.
June KIM, Counterclaimant,
v.
Tyla LaRay BIRCH, Counterdefendant. No. IP 96-1549-C-B/S. United States District Court, S.D. Indiana, Indianapolis Division. September 9, 1997.

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Craig Earl Capehart, Indianapolis, IN, for Tyla LaRay Birch.

Thomas Dakich, Baldwin Dakich & Earnest, Indianapolis, IN, for June Kim.

ENTRY DENYING PLAINTIFF'S MOTION TO STRIKE REPLY BRIEF, DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND GRANTING PLAINTIFF'S MOTION TO DISMISS COUNTERCLAIM

BARKER, Chief Judge.

This matter comes before the Court on Plaintiff's motion to strike Defendant's summary

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judgment reply brief, Defendant's motion for summary judgment and Plaintiff's motion to dismiss Defendant's counterclaim. For the reasons discussed below, the Court hereby denies Plaintiff's motion to strike Defendant's reply brief, denies Defendant's motion for summary judgment, and grants Plaintiff's motion to dismiss Defendant's counterclaim.

I. STATEMENT OF FACTS

Plaintiff Tyla LaRay Birch began employment on September 5, 1996 as a salesperson in the jewelry department of J-Town, owned by Defendant June Kim, a.k.a. "Mister J." Plaintiff was paid weekly on Saturdays, and her pay consisted of a $3.00 hourly wage in addition to commissions or bonuses for sales made. Plaintiff last worked for Defendant on October 9, 1996 and was formally terminated from her position on October 21, 1996 (Plaintiff Exh. A at 1). Plaintiff made several demands for her paycheck for the final week worked. Defendant mailed Plaintiff's final paycheck on October 26, 1996, which Plaintiff had not received before she instituted this lawsuit on October 29, 1996. Plaintiff later received Defendant's check for her final week of work, presented it for payment, and the check cleared on November 5, 1996.

Plaintiff filed suit on October 29, 1996, alleging that (1) Defendant had failed to pay her the minimum wage for all hours worked, (2) Defendant had failed to furnish Plaintiff with wage statements listing hours worked, wages paid and deductions made each pay period and (3) Defendant had failed to pay Plaintiff wages for her final pay period and for hours worked but not recorded during each pay period.

II. ANALYSIS A. PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S REPLY BRIEF

Plaintiff moves to strike Defendant's summary judgment reply brief on the ground that Defendant's reply brief was untimely. Plaintiff argues that Defendant filed his summary judgment motion on December 16, 1996 and Plaintiff filed her response brief on February 18, 1997. In order to be timely, Defendant's reply should have been filed on or before March 4, 1997.¹ However, Defendant did not file his reply brief until March 10, 1997. As Plaintiff notes, Defendant mistakenly asserted that he was an adverse party to his own summary judgment motion and thus entitled to fifteen days to respond, rather than the ten days allowed for a reply brief. See Local Rule 7.1(a). Although Plaintiff correctly identifies that Defendant's reply brief was filed after the deadline for reply submissions, the Court has discretion to accept such late filings and the delay in this instance was not substantial. See Local Rule 7.1(a).

Plaintiff's motion to strike was filed on July 11, 1997. Under Local Rule 7.1(a), an adverse party to a motion to strike has fifteen days after service to respond to such motion. Defendant's response brief should have been filed by July 28, 1997. As no such response was ever filed, the Court will now enter a summary ruling on the motion to strike pursuant to Local Rule 7.1(a).

Local Rule 7.1(a) sets forth briefing schedules for motion practice. The standard briefing schedule in the Southern District of Indiana allows the Court to receive three briefs: initial motion, the adverse party's response and the moving party's reply. This three-brief process allows the Court to entertain a full hearing on the motion. At the same time, as the Seventh Circuit noted in Spears v. City of Indianapolis, "We live in a world of deadlines.... A good judge sets deadlines, and the judge has a right to assume that deadlines will be honored. The flow of cases through a busy district court is aided, not hindered, by adherence to deadlines." 74 F.3d 153, 156 (7th Cir.1996). Therefore, the Court's interest in allowing the parties a full hearing is tempered by awareness of its crowded docket and the necessity of deadlines in streamlining the judicial process.

With regard to the filing of the reply brief, Defendant clearly operated under the mistaken belief that he was an adverse party

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within the meaning of Local Rule 7.1(a) and thus entitled to fifteen days to file his response. Defendant's error in missing the deadline invites the Court's leniency. Also, Defendant's filing was only five days late and fell within the deadline Defendant mistakenly thought applicable. Defendant's attempt at compliance with the filing deadline and the relatively brief delay in filing argues against excluding Defendant's untimely filing. In addition, while Plaintiff is not required to prove prejudice and, in fact, did not argue prejudice in her motion to strike, it is clear that Plaintiff is not substantially prejudiced by the Court's acceptance of Defendant's reply brief, as evidenced in part by the fact that Plaintiff herself, waited four months before bringing this matter to the Court's attention. After considering all of the above recited facts, the Court hereby denies Plaintiff's motion to strike Defendant's reply brief.

B. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT Summary Judgment Standard

Rule 56(c) of the Federal Rules of Civil Procedure provides that a motion for summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists if there is sufficient evidence for a jury to return a verdict in favor of the nonmoving party on the particular issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Methodist Med. Center v. American Med. Sec., Inc., 38 F.3d 316, 319 (7th Cir.1994). In considering a summary judgment motion, a court must draw all justifiable inferences in a light most favorable to the opposing party, and must resolve any doubt against the moving party. See Anderson, 477 U.S. at 255, 106 S.Ct. at 2513; Spraying Sys. Co. v. Delavan Inc., 975 F.2d 387, 392 (7th Cir.1992); Bank Leumi Le-Israel. B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.1991).

While the burden rests squarely on the party moving for summary judgment to show "that there is an absence of evidence to support the nonmoving party's case," Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986), the nonmoving party may not simply rest on the pleadings, but must affirmatively demonstrate by specific factual allegations that a genuine issue of material fact exists for trial. Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53; Billups v. Methodist Hosp. of Chicago, 922 F.2d 1300, 1302 (7th Cir.1991). Conclusory allegations by a party opposing a motion for summary judgment cannot defeat the motion. See Smith v. Shawnee Library System, 60 F.3d 317, 320 (7th Cir.1995). "The moving party is `entitled to a judgment as a matter of law' [if] the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. If doubts remain, however, as to the existence of a material fact, then those doubts should be resolved in favor of the nonmoving party and summary judgment denied. See Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989).

1. FEDERAL CLAIM UNDER FAIR LABOR STANDARDS ACT

Defendant moves for summary judgment on Plaintiff's claim under the Fair Labor Standards Act, asserting that there is no genuine issue of material fact Plaintiff's complaint asserts a cause of action against Defendant for failing to pay her the minimum wage for hours worked, in violation of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq. The relevant sections of the Fair Labor Standards Act provide:

§ 206. Minimum Wage.

(a) Employees engaged in commerce ... Every employer shall pay to each of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, wages at the following rates:

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(1) except as otherwise provided in this section, not less than $4.25 an hour during the period ending on September 30, 1996, not less than $4.75 an hour during the year beginning on October 1, 1996, and not less than $5.15 an hour beginning September 1, 1997.

29 U.S.C. § 206 (West 1997). Plaintiff alleges that Defendant failed to keep accurate records of the hours Plaintiff worked and that she was not compensated for additional hours worked that are not reflected in her wage statements. Plaintiff Aff. ¶¶ 11-12. In support of his motion for summary judgment, Defendant argues that he has compensated Plaintiff far in excess of the minimum wage required by § 206. Defendant Aff. ¶ e.² Defendant has presented the Court with copies of Plaintiff's wage statements for each week worked, recording Plaintiff's hours worked and total weekly compensation. Defendant Ex. A. The wage statements show that Plaintiff's compensation consisted of $3.00 an hour for each hour worked and commissions for sales. Defendant Exh. A. Defendant argues that Plaintiff's compensation for each week, including commissions, averaged an hourly rate far exceeding $4.25,...