Brown v. Club Assist Rd. Servs. United States, Inc.
| Decision Date | 09 May 2014 |
| Docket Number | Case No. 12 CV 5710 |
| Parties | MAURICE BROWN, et al., Plaintiffs, v. CLUB ASSIST ROAD SERVICES U.S., INC., Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
Before the Court are Plaintiffs' motion for preliminary injunction, to maintain documents under seal, and to extend opt-in period [105] and motion to supplement the record with affidavits in support of their motion for preliminary injunction [114]. For the reasons stated below, the Court grants the motion to supplement [114] and denies the motion for preliminary injunction, to maintain documents under seal, and to extend opt-in period [105]. Plaintiffs are given until 5/21/2014 to show cause why the names of the opt-in Plaintiffs should remain under seal. This matter is set for status on 5/28/2014 at 10:30 a.m. The parties should be prepared to discuss Plaintiffs' outstanding motion to strike Defendant's third-party complaint [75] with the Court at that time.
Named Plaintiffs Maurice Brown, Kenith Rodgers, Keith Rodgers, Kaywan Palmer, Byron Jackson, Rushdi Rashid, and Nasir Rashid (collectively "Plaintiffs") are emergency road service drivers. Each of them has created a business entity, which the parties refer to as "service delivery companies" or "SDCs," that has contracted with Defendant Club Assist Road Services U.S., Inc. ("Defendant" or "Club Assist") to provide emergency road services to members of theAmerican Automobile Association ("AAA"). Under the contracts, Defendant routes service calls to SDCs and pays them on a per-job basis.
Plaintiffs, the proprietors of the SDCs, contend that they are "employees" of Defendant such that they are entitled to be paid a minimum wage under the Fair Labor Standards Act ("FLSA") and similar state laws, and that they should be entitled to participate in Defendant's employee benefits programs. Plaintiffs also contend that Defendant "suspended, terminated, and otherwise discriminated against each of [them] in retaliation for their involvement in the instant litigation." [78] ¶ 204. Defendant disputes that Plaintiffs are its "employees." Defendant contends that it contracted with the SDCs, not with Plaintiffs, and therefore the SDCs () bear responsibility for Plaintiffs' allegedly inadequate earnings. Defendant also denies retaliating against Plaintiffs.
Plaintiffs filed the instant lawsuit in on July 20, 2012, see [1], and subsequently obtained conditional certification to proceed as a collective action under the FLSA. See [53]. The litigation has been contentious. Plaintiffs and Defendant were unable to agree on a notice and consent form to be sent to prospective opt-in plaintiffs. See [66]; [82]. Defendant filed a third-party complaint against Plaintiffs' SDCs, [65], which Plaintiffs have moved to strike [75]. Plaintiffs now contend that Defendant retaliated against them for filing suit and is intimidating potential opt-in plaintiffs to prevent them from joining or participating in the suit. Plaintiffs seek a preliminary injunction to enjoin the alleged retaliatory behavior [105]. Plaintiffs also request that the Court maintain the opt-in consent forms under seal and extend the opt-in period. See [105].
The Court took briefing on Plaintiffs' motion for preliminary injunction, see [110]; [111], and held a hearing on the motion on March 12, 2014. After the hearing, Plaintiffs moved tosupplement the record with additional affidavits in support of their motion for preliminary injunction [114]. Defendant opposes the motion to supplement as untimely under Federal Rule of Civil Procedure 6(c) and Local Rule 78.4. See [118].
The day before a scheduled status hearing in this matter, Plaintiffs filed a motion for preliminary injunction, to maintain documents under seal, and to extend opt-in period [105]. Plaintiffs did not file a brief in support of their motion at that time. At the status hearing the next day, the Court set a briefing schedule that gave Plaintiffs one week to file their memorandum in support. See [108]. The Court gave Defendant two weeks to respond. See id. Plaintiffs' timely filed brief indicated their intention to "show through live testimony and affidavits at the hearing on this motion" that Defendant "has retaliated against everyone to whom it knows to have joined the suit." [110] at 1. Plaintiffs did not attach any affidavits to their brief, however. See id. Defendant timely filed its response brief, see [111] and appended a lengthy affidavit from Rodney Walbancke, its General Manager, see [111-2], an affidavit from one of its business managers, Charles Day, see [111-3], an affidavit from one of its field coordinators, Robert Pivirotto, see [111-4], and various other supporting exhibits.
The day before the scheduled hearing, pursuant to the Court's order, see [108], the parties jointly submitted a witness list. See [112]. Plaintiffs indicated that they had "disclosed * * * five witnesses to opposing counsel." Id. All but one of these witnesses were named Plaintiffs. See id. Defendant indicated that it might call affiant Rodney Walbancke. See id.
At the hearing, Plaintiffs' counsel informed the Court that Plaintiffs planned to call threeof their five identified witnesses: named Plaintiffs Keith Rodgers and Maurice Brown, and "comparator" opt-in Plaintiff Robert Moore. See Tr. 15-16, Mar. 12, 2014. Plaintiffs' counsel also informed the Court that he had prepared some affidavits of Plaintiffs who were not in attendance at the hearing. Counsel expressly noted that affidavits were "from each of the remaining named plaintiffs basically responding to the allegations already in Mr. Walbancke's" affidavit. Tr. 18-19, Mar. 12, 2014. He did not tender the affidavits at that time. Rather, he indicated that "at some point I would want to introduce those to the court" and sought "guidance" about how to do so. Tr. 11-12, Mar. 12, 2014. The Court directed Plaintiffs to file a motion for leave to supplement the oral record with the proposed affidavits. See id. at 12. Defense counsel objected to the submission of affidavits as untimely under Federal Rule of Civil Procedure 6 and Local Rule 78.4. See id. He also averred that Plaintiffs effectively had deprived Defendant of the opportunity to respond to the testimony or cross-examine the declarants at the hearing. See id.
The Court noted Defendant's objections and stated that it would "make sense" for Plaintiffs to "file a motion for leave to supplement the preliminary injunction oral record with these affidavits." Id. That way, the Court continued, Defendant's counsel "can have a look at them and decide number one, whether they're objectionable, and number two, whether he needs some sort of counter affidavit to counter them or whether he just wants to stand on his objections under the Rules." Id. The Court added that it understood that "you can't get everybody here and you want to put some stuff in the record," but noted that "it's just a matter of letting your adversary test that." Id. at 13. Plaintiffs requested and were given one week in which to file their motion, and Defendant was given two weeks to submit a response. Id. at 171. Plaintiffs filed their motion within the allotted time and attached six affidavits to it. See [114-1]-[114-6].Five of the affidavits were from named Plaintiffs, two of whom were included on the witness list disclosed to Defendant. See [114-1]-[114-5]. The sixth was from an opt-in Plaintiff from Connecticut and included four exhibits regarding the affiant's interactions with the Connecticut Department of Labor. See [114-6]. Defendant filed a response [118], and attached rebuttal affidavits from Rodney Walbancke and James Connelly, as well as additional exhibits. See [118-1]-[118-2].
Defendant argues that the motion to supplement should be denied because Plaintiffs' proffered affidavits are untimely under and subvert the purposes of Federal Rule of Civil Procedure 6(c)(2) and Local Rule 78.4. Defendant's arguments have some merit, but Defendant in fact responded to Plaintiffs' belated affidavits. The parties thus are in the positions in which they would have been had Plaintiffs complied with Rule 6(c)(2) and Local Rule 78.4 in the first instance. As a result, denial of Plaintiffs' motion to supplement for failure to comply with the applicable procedural rules is not warranted. Instead, the Court grants the motion to supplement [114], and also will consider the rebuttal evidence that Defendant submitted in response thereto. See [118-1]-[118-2].
Rule 6(c)(2) provides that "[a]ny affidavit supporting a motion must be served with the motion," and that "[e]xcept as Rule 59(c) provides otherwise, any opposing affidavit must be served at least 7 days before the hearing, unless the court permits service at another time." Local Rule 78.4 similarly provides that "[w]here evidentiary matter, in addition to affidavits permitted or required under Rules 5 or 6 under the Federal Rules of Civil Procedure, will be submitted in support of a motion, copies thereof shall be served with the notice of motion." These rules are animated by the concern that a party opposing a motion may not have an adequate opportunity torespond to belatedly presented evidence. See 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, FEDERAL PRACTICE AND PROCEDURE § 2949, at 237 (2013); see also Peters v. Lincoln Elec. Co., 285 F.3d 456, 476 (6th Cir. 2002) ; Marshall Durbin Farms, Inc. v. Nat'l...
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