Gallegos v. Equity Title Co. of America, Inc., CIVASA04CA1093FB.

• Decision Date: 28 March 2007
• Docket Number: No. CIVASA04CA1093FB.,No. SA-05-CA-795-FB.,CIVASA04CA1093FB.,SA-05-CA-795-FB.
• Citation: 484 F.Supp.2d 589
• Parties: David GALLEGOS, Plaintiff, v. EQUITY TITLE COMPANY OF AMERICA, INC. and Netco, Inc., Defendants.
• Court: U.S. District Court — Western District of Texas

484 F.Supp.2d 589

David GALLEGOS, Plaintiff, v. EQUITY TITLE COMPANY OF AMERICA, INC. and Netco, Inc., Defendants.

No. CIVASA04CA1093FB.

No. SA-05-CA-795-FB.

United States District Court, W.D. Texas, San Antonio Division.

March 28, 2007.

Richard J. (Rex) Burch, Bruckner Burch PLLC, Houston, for the plaintiff.

John B. Renick, William B. Jones, McMahon, Berger, Hanna, Linihan, Cody & McCarthy, St. Louis, MS, Mark A. Randolph, Horberger Sheehan Fuller & Beiter Inc., San Antonio, for the defendants.

ORDER ACCEPTING MEMORANDUM AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

BIERY, District Judge.

The Court has considered the Memorandum and Recommendation of the United States Magistrate Judge filed in the above styled and numbered cause (docket # 5), Defendants' Objections to Memorandum and Recommendation on Motion for Summary Judgment (docket # 61); Response in Support of Judge Primomo's Memorandum & Recommendation (docket # 62) and Notice of Additional Authority Supporting Judge Primomo's Memorandum & Recommendation (docket # 63).

Where no party has objected to a Magistrate Judge's Memorandum and Recommendation, the Court need not conduct a de novo review of them. See 28 U.S.C. § 636(b)(1) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings and recommendations to which objection is made."). In such cases, the Court need only review the Memorandum and Recommendation and determine whether they are either clearly erroneous or contrary to law. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.), cert. denied, 492 U.S. 918, 109 S.Ct. 3243, 106 L.Ed.2d 590 (1989).

On the other hand, any Memorandum or Recommendation to which there are objections requires de novo review by the Court. Such a review means that the Court will examine the entire record, and will make an independent assessment of the law. The Court need not, however, conduct a de novo review when the objections are frivolous, conclusive, or general in nature. Battle v. United States Parole Commission, 834 F.2d 419, 421 (5th Cir. 1987).

The Court has reviewed defendants' objections to the Memorandum and Recommendation, the Defendants' Reply to Plaintiff's Response in Opposition to Motion for Summary Judgment (docket # 57), and has conducted a de novo review of the Magistrate Judge's Memorandum and Recommendation with respect to those matters properly raised by the objections. See Memorandum and Recommendation at pages 19 ("A party filing objections must specifically identify those findings, conclusions, or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusive or general objections."). The Court finds the objections to the Magistrate Judge's Recommendation are without merit. This Court hereby accepts, approves, and adopts the Magistrate Judge's factual findings and legal conclusions contained in the Memorandum and Recommendation and incorporates herein the arguments and authorities presented by the plaintiff in his Response in Support Of Judge Primomo's Memorandum & Recommendation (docket # 62) and Notice of Additional Authority Supporting Judge Primomo's Memorandum & Recommendation (docket # 63).

Therefore, the Memorandum and Recommendation shall be accepted pursuant to 28 U.S.C. § 636(b)(1) such that Motion for Summary Judgment (docket # 53) filed by the defendants should be DENIED.

Accordingly, it is hereby ORDERED that the Recommendation of the United States Magistrate Judge, filed in this case on July 11, 2006 (docket # 58), is ACCEPTED such that the defendants' Motion for Summary Judgment (docket # 53) is DENIED.

Relying in part on Martin v. Priba Corp., Civ. A. No. 3:91-CV-2786-G, 1992 WL 486911 (N.D.Tex. Nov.6, 1992), the plaintiff asks this Court to grant him summary judgment with respect to Netco's affirmative defense of exemption. Although the court initially granted on its own motion summary judgment for the plaintiff, Secretary of Labor, in that case, that order was vacated because of the "possibility, however slight, that the defendants did not come forward with all of their evidence." Id. at *5; see Relyea v Carman, Callahan & Ingham, L.L.P., 30 Civ. 5580(DRH)(MLO), 2006 WL 2577829 at *5-6 (E.D.N.Y. Sept. 6, 2006) (finding plaintiffs not exempt employees as matter of law; the defendant's affirmative defense failed and defendants' motion for summary judgment denied; also noting plaintiff did not move for summary judgment and directing parties to submit further briefs). In light of plaintiff's request and the additional case authority submitted by the plaintiff in support of Judge Primomo's Memorandum and Recommendation (docket # 63), the Court will entertain an appropriate motion for summary judgment or letter briefs indicating, as in Relyea, what further matters need to be addressed. Should plaintiff desire to file a motion or brief, same shall be filed no later than April 18, 2007. Defendants shall file a response, if any, within the time prescribed by the local rules. If no motion or brief is filed by that date, the case will be set for trial.

It is so ORDERED.

MEMORANDUM AND RECOMMENDATION

PRIMOMO, United States Magistrate Judge.

In these lawsuits, David Gallegos seeks to recover unpaid overtime wages, under the Fair Labor Standards Act (FLSA), earned during his employment with Equity Title Company of America, Inc. and Netco, Inc. Defendants have filed a motion for summary judgment, to which motion plaintiff has responded. (Docket nos. 53, 56). Having considered the motion, the response, the summary judgment, evidence and the applicable law, the Court is of the opinion the motion should be denied.

Background

Gallegos was employed as an escrow officer by Netco, Inc. in San Antonio from January 1998 to August 2001 and from June 2002 to June 2003. From August 2001 to June 2002, he served as the manager of Netco's office in Austin. Netco's customers included mortgage lenders, brokers, and, in some case, real estate brokers. Transactions handled by an escrow officer involved the lending of money by a Netco customer to borrowers against the value of real estate owned by the borrower, either in the form of a home equity loan or refinancing a mortgage, with the customer receiving a title insurance policy from Netco. The escrow officer was in charge of closing the loan from the time a title commitment was issued. This process required an independent investigation to insure clear title, payoffs of other liens and judgments against the borrowers, and a knowledge and ability to resolve issues affecting title to the property. The escrow officer must be responsible for reviewing the loan documents for accuracy. Netco considered escrow officers to be exempt under the FLSA as administrative employees.

Gallegos states that he was one of hundreds of escrow officers who provided closing services for Netco customers. He denies that he managed or supervised anyone, had any involvement in decisions relating to the handling of closings or how the business operation was structured or run, and customarily exercised the requisite level of discretion and independent judgment. For those reasons, Gallegos asserts that escrow officers were not exempt from the FLSA overtime provisions. Gallegos states that, in late 2004, Netco conceded that its escrow closers are not exempt and reclassified these employees, but Netco refuses to pay for overtime worked prior to the reclassification.

Standard of Review

Rule 56(b), Fed.R.Civ.P., provides that a defending party may, at any time, move with or without supporting affidavits for a summary judgment in the party's favor. Summary judgment shall be rendered if the pleadings and evidence 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. Rule 56(c), Fed.R.Civ.-P. A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To satisfy this burden, the movant must either submit evidentiary documents that negate the existence of some material element of the non-moving party's claims or defense or, if the issue is one for which the non-moving party has the burden of proof at trial, merely point out that the evidentiary documents contain insufficient proof concerning an essential element of the moving party's claims. Id. at 325, 106 S.Ct. 2548.

The party opposing a motion must present affirmative evidence in order to defeat a properly supported motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial; if he does not so respond, summary judgment, if appropriate, shall be entered against him. Rule 56(e), Fed.R.Civ.P. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. Anderson, 477 U.S. at 247-248, 106 S.Ct. 2505. The dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. All of the evidence and inferences drawn from that evidence must be viewed in the light most favorable to the party opposing the motion for summary judgment. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The judge's function is not to weigh the evidence or determine...