Brown v. Nexus Bus. Solutions, LLC

• Decision Date: 18 September 2020
• Docket Number: 1:17-CV-01679-ELR
• Citation: 488 F.Supp.3d 1287
• Parties: Alicia BROWN, individually and on behalf of all others similarly situated who consent to their inclusion in a collective action, Plaintiffs, v. NEXUS BUSINESS SOLUTIONS, LLC, Defendant.
• Court: U.S. District Court — Northern District of Georgia

488 F.Supp.3d 1287

Alicia BROWN, individually and on behalf of all others similarly situated who consent to their inclusion in a collective action, Plaintiffs,

v.NEXUS BUSINESS SOLUTIONS, LLC, Defendant.

1:17-CV-01679-ELR

United States District Court, N.D. Georgia, Atlanta Division.

Signed September 18, 2020

Benjamin L. Williams, Williams Law PA, Atlantic Beach, FL, Mitchell Lloyd Feldman, Feldman Legal Group, Tampa, FL, Charles Ronald Bridgers, Mitchell Douglas Benjamin, DeLong Caldwell Bridgers Fitzpatrick & Benjamin, LLC, Atlanta, GA, for Plaintiffs.

Andrea R. Milano, Baker & Hostetler, Washington, DC, Carrie A. Valdez, Pro Hac Vice, Baker & Hostetler LLP, Cleveland, OH, Alixandria Lynn Davis, Marice Guzman, Eric Leroy Barnum, Lindsay McCall, Baker & Hostetler LLP, Mitchell Robinson, Greenberg Traurig, LLP, Atlanta, GA, for Defendant.

ORDER

Eleanor L. Ross, United States District Judge

There are several matters pending before the Court. The Court's reasoning and conclusions are set forth below.

I. Background¹

This case stems from Defendant Nexus Business Solutions, LLC's ("Nexus") alleged violations of the Fair Labor Standards Act ("FLSA") by its purported failure to pay earned overtime wages to Plaintiff Alicia Brown and the putative class of others similarly situated.² See Compl. [Doc. 1].

The Court draws the material facts from the Parties’ submissions (including exhibits). In support of its Motion for Summary Judgment, Defendant, as movant, filed a Statement of Undisputed Material Facts ("Def.’s SOMF"). [Doc. 232-2]; see also LR 56.1(B)(1), NDGa. As required by Local Rule 56.1(B)(2)(a), Plaintiffs submitted a response ("Pls.’ Resp. to Def.’s SOMF"). [Doc. 251]; see also LR 56.1(B)(2)(a), NDGa. Plaintiffs, as cross-movants, also filed a Statement of Undisputed Material Facts ("Pls.’ SOMF") in support of their Motion for Summary Judgment. [Doc. 247-2]. Defendant submitted its response as required by the Local Rules ("Def.’s Resp. to Pls.’ SOMF"). [Doc. 257].

The Court uses the Parties’ proposed facts and responses as follows. Where one side admits a proposed fact, the Court accepts it as undisputed for purposes of this order and cites only the proposed fact. Where one side admits a proposed fact in part, the Court includes the undisputed part. Where one side denies a proposed fact in whole or in part, and such fact is material, the Court reviews the record and determines whether a factual dispute exists.³ If the denial is without merit, and the record citation supports the proposed fact, then the Court deems it admitted. Given Plaintiffs’ penchant for making arguments in their proposed facts, the Court has often been forced to modify their Statement of Material Facts to more accurately reflect the record cited. Finally, the Court excludes proposed facts that are immaterial, see LR 56.1(B)(2)(a)(2)(iii), NDGa., includes facts drawn from its review of the record, see FED. R. CIV. P. 56(c)(3), and considers all proposed facts in light of the standards for summary judgment.⁴

Plaintiffs worked as Business Development Managers ("BDMs") for Defendant. Pls.’ SOMF ¶ 46. During Plaintiffs’ employ, as early as January 2014, Defendant's primary focus was a project called "Operation Conquest," a contractual endeavor with automobile manufacturer General Motors ("GM").⁵ Id. ¶¶ 1, 5, 45; Def.’s SOMF ¶¶ 1–2, 8. Defendant derives substantially all its revenue from this contract with GM. Def.’s SOMF ¶ 12; Pls.’ SOMF ¶ 39.

Pursuant to Operation Conquest, GM engaged Defendant to provide a certain number of BDMs (including Plaintiffs) to "hunt and conquest" commercial businesses that use fleets of vehicles as part of their operations. Pls.’ SOMF ¶¶ 8, 38, 40; Def.’s Resp. to Pls.’ SOMF ¶¶ 8, 38, 40. These BDMs would meet with the targeted businesses in hopes of convincing them to purchase GM vehicles for their fleets from GM dealers. Pls.’ SOMF ¶¶ 8–9; Def.’s Resp. to Pls.’ SOMF ¶¶ 8–9. Allegedly, GM recognized the need for this type of outside consultant-like role because dealership representatives cannot leave the dealership to solicit sales from potential fleet customers. Def.’s SOMF ¶ 5; Pls’ Resp. to Def's SOMF ¶ 5.

Defendant trained Plaintiffs to deliver presentations aimed at promoting the GM brand with the goal of persuading the potential customers to purchase GM fleets, although Plaintiffs themselves could not actually execute a sale—that final step had to be done by a GM dealer. Def.’s SOMF ¶¶ 10, 14; Pls.’ SOMF ¶¶ 9, 11, 13, 22, 27. While Plaintiffs received specific training on how to execute their pitches and the ideal process to get a potential customer to a GM dealership, they also possessed discretion to determine how they spent their workdays. Pls.’ SOMF ¶¶ 51–53; Def.’s Resp. to Pls.’ SOMF ¶¶ 51–53; Def.’s SOMF ¶¶ 25–28, 30, 32, 45, 67–69; Pls.’ Resp. to Def.’s SOMF ¶ 25. For example, Plaintiffs frequently performed their own research to customize their presentations to suit different potential customers’ needs. Pls.’ SOMF ¶ 63; Def.’s SOMF ¶¶ 29, 31, 33–38; Pls.’ Resp. to Def.’s SOMF ¶ 31. As part of their role as BDMs, Plaintiffs would follow up with leads, sometimes meeting more than once, working to convince the lead to meet with a GM dealer. Def.’s SOMF ¶¶ 41, 48; Pls.’ SOMF ¶¶ 74, 77, 93. All of the vehicles sold through Operation Conquest were the property of GM dealers. Pls.’ SOMF ¶ 80.

Plaintiffs worked out of their home offices or on the road, meeting with commercial businesses on-site, earning a base salary of $70,000–$75,000 (plus quarterly bonuses if they qualified). Def.’s SOMF ¶¶ 18–19; Pls.’ SOMF ¶¶ 48–49. BDMs used company vehicles provided by Defendant for their travel. Def.’s SOMF ¶ 24. Plaintiffs contend they regularly worked in excess of forty (40) hours per week, although Defendant argues Plaintiffs lack any evidence that they worked overtime. Pls.’ SOMF ¶¶ 24, 97; Def.’s SOMF ¶¶ 88–91. While the employment offer letters from Defendant said that Plaintiffs may be expected to work in excess of their regular 8:00 a.m.–5:00 p.m., Monday–Friday schedule, the letters also stated that Plaintiffs would not receive overtime pay because they would be considered exempt employees. Pls.’ SOMF ¶ 98; Def.’s SOMF ¶¶ 51–52. However, Plaintiffs filed this lawsuit on the assertion that they should have been compensated for their overtime hours as non-exempt employees. See generally Compl.

II. Procedural History

Plaintiffs filed their Complaint on May 10, 2017. Id. The Parties engaged in several lengthy discovery disputes, including a dispute regarding Defendant's expert witness Robert Stanton. As a result of the dispute regarding Mr. Stanton, Plaintiffs filed their "Motion for Leave of Court to File Supplemental Evidence in Support of Plaintiffs’ Motion for Summary Judgment and Request for Leave to File Supplemental Brief in Opposition to Defendant's Motion for Summary Judgment and Support of Plaintiffs’ Motion for Summary Judgment." [Doc. 287]. In response, Defendant filed a Request for Oral Argument. [Doc. 291].

On October 3, 2019, both Parties filed their respective motions for summary judgment. [Docs. 232, 233]. However, the Court ordered Plaintiffs to amend their motion because it did not comply with the applicable page limit. [Doc. 241]. On October 11, 2019, Plaintiffs filed their Amended Motion for Summary Judgment.⁶ [Doc. 247]. Subsequently, Plaintiffs submitted a "Motion in Limine to Exclude the Defendant's Use of Half Time 29 [C.F.R.] § 778.114, or Use of Fluctuating Workweek Method (FWW) to Determine Damages." [Doc. 297]. Having been fully briefed, these motions are now ripe for the Court's review.⁷

III. Preliminary Matter: Plaintiffs’ Motion for Leave to File Supplemental Evidence and Briefing

The Court first addresses the issue of what expert testimony will be considered in the assessment of the Parties’ motions for summary judgment. On July 13, 2020, Plaintiffs filed their "Motion for Leave of Court to File Supplemental Evidence in Support of Plaintiffs’ Motion for Summary Judgment and Request for Leave to File Supplemental Brief in Opposition to Defendant's Motion for Summary Judgment and Support of Plaintiffs’ Motion for Summary Judgment." [Doc. 287]. By this motion, Plaintiffs seek leave to submit the deposition transcript of Defendant's expert witness Robert Stanton, as well as the expert report of Plaintiffs’ recently added rebuttal expert, Jorge J. Rivero. [Id. at 1–2]. Additionally, Plaintiffs request "leave to file a supplemental brief in opposition to Defendant's motion for summary judgment, and in support of Plaintiffs’ motion for summary judgment[.]" [Id. at 6]. Plaintiffs contend summary judgment is not ripe until the materials of their rebuttal expert are considered by the Court. [Id. at 2–3].

Earlier in this litigation, Plaintiffs moved to strike Mr. Stanton as an expert (or, in the alternative, to file a motion in limine to exclude his opinion) due to Defendant's late disclosure of him as an expert.⁸ [See Doc. 212]. However, the Court found Defendant's late disclosure to be justified. [Docs. 237 at 3; 267]. While the Court allowed Defendant to include Mr. Stanton as an expert, it also extended the discovery period by ninety (90) days for the limited purpose of allowing Plaintiffs to "obtain[ ] one (1) rebuttal expert witness and to depose Defendant's expert witness." [Doc. 277 at 6]. Plaintiffs deposed Defendant's expert Mr. Stanton on June 4, 2020, and now present Mr. Rivera as their rebuttal expert witness. [Doc. 287 at 4]. Thus, Plaintiffs request the Court's leave to file additional materials and briefing before the Court rules on the Parties’ motions for summary judgment. [See generally id. ]

However, on July 21, 2020, Defendant filed a "Notice of Withdrawal of Reference in Summary Judgment Briefing to Expert Report by Robert Stanton." [Doc. 288]. Defendant contends that it made a good faith offer to Plaintiffs’ counsel to withdraw any reference to Mr. Stanton "so the parties...