Kinslow v. 5 Star Field Servs. Grp.

Decision Date09 August 2021
Docket Number1:19-cv-1605-MLB
PartiesRonald Kinslow and Lucas Hill, Plaintiffs, v. 5 Star Field Services Group, LLC, Title One Management, LLC, and Robert Gilstrap, Defendants.
CourtU.S. District Court — Northern District of Georgia
OPINION & ORDER

MICHAEL L. BROWN, UNITED STATES DISTRICT JUDGE

Plaintiffs Ronald Kinslow, Lucas Hill, and Elias Medina[1] sued Defendants 5 Star Field Services Group, LLC (Five Star) Title One Management, LLC (Title One); and Robert Gilstrap for unpaid overtime wages in violation of the Fair Labor Standards Act (“FLSA”) and breach of contract in violation of Georgia law. (Dkt. 1 ¶ 1.) Defendants move for summary judgment. (Dkt. 63.) The Court denies that motion.

I. Background
A. The Court's Use of Proposed Facts and Responses

The Court draws the facts largely from the parties' submissions. In support of their motion for summary judgment, Defendants filed a statement of material facts (Dkt. 63-5). See LR 56.1(B)(1), NDGa. Plaintiffs responded to Defendants' statement of material facts (Dkt. 70). See LR 56.1(B)(2)(a). Plaintiffs also filed a separate statement of facts that they contend are material and present genuine issues for trial (Dkt. 71).[2] See LR 56.1(B)(2)(b).

The Court uses the parties' proposed facts and responses as follows. When a party does not dispute the other's fact, the Court accepts it for purposes of summary judgment and cites the proposed fact and corresponding response. When one side admits a proposed fact in part, the Court includes the undisputed part. When one side denies the other's proposed fact in whole or in part, the Court reviews the record and determines whether a fact dispute exists. If the denial lacks merit, the Court deems the fact admitted so long as the record citation supports it. If a fact is immaterial, it is excluded.[3] If a fact is stated as an issue or legal conclusion, it is excluded. See LR 56.1(B)(1)(c). Where appropriate, the Court modifies one party's fact per the other's response when the latter better reflects the record. Finally, as needed, the Court draws some facts directly from the record. See Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials, but it may consider other materials in the record.”).

As a preliminary matter, the Court resolves two issues. First, Plaintiffs repeatedly object to several factual assertions in Defendants' statement as “compound, ” but they do not support their objections with authority or developed argument. (See, e.g., Dkt. 70 ¶¶ 8, 14-15, 19, 22, 26-27, 29, 37, 62.) Those objections are forfeited. NLRB v. McClain of Ga., Inc., 138 F.3d 1418, 1422 (11th Cir. 1998) (“Issues raised in a perfunctory manner, without supporting arguments and citation to authorities, are generally deemed to be waived.”). The objections also fail on the merits, as “compound” is an objection to form and thus provides no basis for disregarding a factual assertion on summary judgment. See Federated Bank v. Fed. Deposit Ins. Corp., No. 1:12-cv-3445-SCJ, 2014 WL 12634299, at *8 (N.D.Ga. Aug. 12, 2014) ([T]he Eleventh Circuit has held that summary judgment evidence need not be presented in admissible form as long as it can be ‘reduced to admissible evidence at trial.' (quoting McMillian v. Johnson, 88 F.3d 1573, 1583-85 (11th Cir. 1996))); Burgess v. Allstate Ins. Co., 334 F.Supp.2d 1351, 1354 (N.D.Ga. 2003) (“Evidence produced for summary judgment need not be in an admissible form if it could be reducible to admissible form for trial.” (citing United States v. Four Parcels of Real Prop., 941 F.2d 1428, 1444 (11th Cir. 1991) (en banc))). The Court overrules Plaintiffs' objections to the compound nature of the proposed facts. The Court recognizes that Plaintiffs said, should the Court overrule their objection, they would respond to each individual fact. That is not how this works. Plaintiffs get one chance to respond. See LR 56.1(B)(2)(a) (“A respondent to a summary judgment motion shall include the following documents with the responsive brief: A response to the movant's statement of undisputed facts.”). Were the Court to permit every litigant multiple opportunities to respond to proposed facts, the Court would litigate and re-litigate the facts and never reach the merits of the motion for summary judgment. The Court thus declines to afford Plaintiffs a second bite at the apple and turn this case into one that might never end.

Second, in opposing summary judgment, Plaintiffs rely heavily on a deposition given by Title One's 30(b)(6) representative, Christian Lamoreaux, in a workers' compensation lawsuit brought by Kinslow against Cleveland Electric. Defendants in their reply brief ask the Court to strike the deposition, arguing it violates Federal Rule of Civil Procedure 32(a)(8).[4] (Dkt. 76 at 3-6.) Plaintiffs object to Defendants raising this issue for the first time in their reply and argue Defendants' argument should not be considered by the Court. (Dkt. 77 at 2-3.) While it is generally true that arguments raised for the first time in a reply are not properly before a court, Herring v. Secretary, Department of Corrections, 397 F.3d 1338, 1342 (11th Cir. 2005), that rule does not apply when the reply is merely responding to an argument set forth in the response, see, e.g., First Specialty Insurance Group v. 633 Partners, Ltd., 300 Fed.Appx. 777, 788 (11th Cir. 2008) (per curiam) (trial court properly considered reply evidence submitted to respond to arguments raised in opposition to motion to dismiss). Here, Plaintiffs filed the deposition on the same day they responded. (See Dkts. 69; 72; see also Dkt. 73.) Accordingly, Plaintiffs' use of the deposition did not become evident until after Defendants had already filed their motion for summary judgment. Defendants raised their objection at the first available opportunity-i.e., in their reply. Plaintiffs argue Defendants were in possession of the 2018 Title One Deposition transcript and should have anticipated it[s] entry into the record and use, and therefore should have raised the issue in the initial motion.” (Dkt. 77 at 2.) While this may mean Defendants were aware of the deposition and its contents before filing their motion for summary judgment, it does not mean Defendants knew Plaintiffs would use it or needed to anticipate Plaintiffs would use it and lay out an argument against its admission before the issue even arose.[5] Overall, the Court does not think Defendants waived their objection.

Alternatively, Plaintiffs argue the deposition is admissible. (Id. at 3-6.) The decision whether to admit a deposition from a prior lawsuit is committed to the sound discretion of the district court. RehabCare Grp. E., Inc. v. HealthPrime, Inc., No. 1:05-cv-2540-TCB, 2008 WL 11404502, at *3 (N.D.Ga. Jan. 16, 2008). Rule 32(a)(8) provides that a party may use a deposition that was ‘lawfully taken' and filed in a previous action in a later civil action, to the same extent as if taken in the later action, where the two proceedings involve ‘the same subject matter between the same parties,' or where allowed by the Federal Rules of Evidence.” Walker v. Blitz USA, Inc., No. 1:08-CV-121-ODE, 2009 WL 10669635, at *3 (N.D.Ga. Feb. 24, 2009) (quoting Fed.R.Civ.P. 32(a)(8)). While the parties dispute whether the earlier action involves the “same subject matter” and “same parties, ” the latter provision of Rule 32(a)(8), which specifically incorporates the Federal Rules of Evidence into its provisions, authorizes Plaintiffs' use of the deposition. Federal Rule of Evidence 801(d)(2) allows Plaintiffs to use the deposition as an admission of a party-opponent.[6] The Court thus overrules Defendants' objection to the admission of the 2018 Title One deposition.

The Court resolves some issues and other objections in the facts section below.

B. Facts[7]

Gilstrap is the sole owner of both Title One and Five Star. (Dkts. 61 at 27:5-11; 62 at 9:12-22; 71 ¶ 3.)[8] Title One is a residential property management company. (Dkts. 63-5 ¶ 1; 70 ¶ 1.) Five Star does maintenance and rehab of residential rental properties for Title One, other property management companies, and individual landlords. (Dkts. 63-5 ¶¶ 7, 11; 70 ¶¶ 7, 11.) When a Title One client needs maintenance work done, Title One contacts a maintenance company, such as Five Star, to perform the work. (Dkts. 61 at 77:3-19; 63-5 ¶ 14; 70 ¶ 14.)

Five Star is “part of the Title One family of companies.” (Dkts. 71 ¶ 1; 73 at 11:23-12:1.) Five Star does not make any money but it stays in business because providing maintenance repairs is deemed an essential function of managing residential property (i.e., Title One's business). (Dkts. 60 at 31:12-32:4; 71 ¶ 12.) Christian Lamoureux manages the Title One office operations on a day-to-day basis and performs managerial duties at Five Star. (Dkts. 62 at 18:15-19; 63-5 ¶ 3; 70 ¶ 3; 71 ¶ 49.) Everyone who works for Five Star or Title One is assigned a Title One email address. (Dkts. 61 at 51:16-52:2; 71 ¶ 57.) Title One and Five Star share the same office with adjoining suites. (Dkts. 61 at 149:24-151:2; 71 ¶ 61.) The website for Title One lists individuals who work at both Title One and Five Star. (Dkts. 69-1 at 278-96; 71 ¶ 56.) Title One and Five Star, however, do not share any joint bank accounts or credit card accounts. (Dkts. 61 at 78:5-23; 63-5 ¶ 15; 70 ¶ 15.)

Plaintiffs provided handyman work. (Dkts. 63-5 ¶ 9; 70 ¶ 9.) Their work did not require a license or specialty training. (Dkts. 64 at 21:6-9, 23:11-15; 65 at 15:6-9, 23:2-7; 66 at 26:13-27:5; 71 ¶ 48.) Defendants use an “inside technicians model.” (Dkts. 71 ¶ 7; 73 at 24:8-9.) Lamoreaux said Defendants “try to keep the work in-house as much as possible” but it is not always economically feasible for “my guys” to do the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT