Lopez v. Nti Llc

• Decision Date: 16 September 2010
• Docket Number: Civil Action No. DKC 08–1579.
• Citation: 748 F.Supp.2d 471
• Parties: Valerio LOPEZ, et al.v.NTI, LLC, et al.
• Court: U.S. District Court — District of Massachusetts

748 F.Supp.2d 471

Valerio LOPEZ, et al.

v.NTI, LLC, et al.

Civil Action No. DKC 08–1579.

United States District Court, D. Maryland.

Sept. 16, 2010.

C. Christopher Brown, Melissa Ellen Crow, Sharon Krevor Weisbaum, Brown Goldstein and Levy LLP, Michele Estrin Gilman, Erika Kajurita Wilson, University of Baltimore Civil Advocacy Clinic, Baltimore, MD, Laura Elena Varela, Washington Lawyers Committee for Civil Rights and Urban Affa, Washington, DC, Sebastian Amar, Casa De Maryland, Silver Spring, MD, for Valerio Lopez, et al.Bruce M. Luchansky, Bruce M. Luchansky PA, Baltimore, MD, for NTI, LLC, et al.

MEMORANDUM OPINION

DEBORAH K. CHASANOW, District Judge.

Presently pending and ready for resolution in this Fair Labor Standards Act case are two motions: (1) a motion for summary judgment filed by Defendants XTEL Construction Group, LLC and Mike Bahmani (Paper 87) and (2) a motion for testimony in open court by contemporaneous transmission filed by Plaintiffs (Paper 70). The issues are fully briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, Defendants' motion for summary judgment will be denied, while Plaintiffs' motion for testimony by contemporaneous transmission will be granted in part and denied in part.

I. BackgroundA. Factual Background

According to Plaintiffs' first amended complaint, Verizon Communications, Inc. (“Verzion”) began construction on a new fiber-optic service network in 2004. (Paper 15–1 ¶ 22). Verizon contracted with Defendant NTI, LLC (“NTI”) to perform work on the project, such as digging trenches and laying fiber-optic cable conduit. ( Id.). NTI then contracted with several subcontractors, including Defendant XTEL Construction Group, LLC (“XTEL”), to obtain “manpower” to complete the jobs. ( Id. ¶ 23). XTEL and NTI, “as employers or joint employers,” subsequently hired Plaintiffs to provide unskilled labor on the project. ( Id. ¶ 24).

Plaintiffs contend that they contracted with NTI and XTEL for pay on a “piece rate basis.” ( Id. ¶ 34). Under the purported agreement, Plaintiffs were to be paid according to the number of feet of trenches they dug each day, multiplied by “a fixed sum ranging from $2.40 to $2.60, and ... divided among the employees present on a given day.” ( Id.). Plaintiffs allege that Defendants were supposed to pay them weekly. ( Id.).

Plaintiffs maintain that Defendants failed to hold up their end of the bargain. In particular, Plaintiffs aver that Defendants sometimes paid Plaintiffs for fewer feet than they actually dug and, on some weeks, neglected to pay at all. ( Id. ¶ 35). Defendants forced Plaintiffs to perform uncompensated menial labor on Saturdays. ( Id.). Defendants required Plaintiffs to report for work each day, but sometimes sent them home without work or compensation. ( Id. ¶ 36). Defendants would dock hours if Plaintiffs damaged utility pipes while digging. ( Id. ¶ 40). And Defendants allegedly deducted $50 per week from Plaintiffs' paychecks without their consent in exchange for housing that Defendants provided. ( Id. ¶ 37).

B. Procedural Background

Plaintiffs filed their initial complaint against seven defendants on June 17, 2008 (Paper 1), with an amended complaint following on August 29, 2008 (Paper 15–1). Those complaints alleged that the seven defendants failed to pay Plaintiffs minimum wage for the hours they worked and overtime wages for hours worked in excess of 40 hours a week. Plaintiffs sought recovery for breaches of their employment contracts and violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201–219, the Maryland Wage & Labor Law, Md.Code Ann., Lab. & Empl. §§ 3–401 to –431, and the Maryland Wage Payment and Collection Law, id. §§ 3–501 to –509. Plaintiffs later voluntarily dismissed their claims against four of the original defendants. (Papers 13 & 82).

On December 9, 2008, Plaintiffs, NTI, and ten opt-in claimants not party to the lawsuit jointly moved for approval of a settlement and entry of a consent decree (“the Decree”). (Paper 34). Under the Decree, Plaintiffs and the opt-in claimants received $105,000 from NTI “in full satisfaction of all claims, damages, costs and attorneys' fees related to this Lawsuit.” ¹ (Paper 34–1 ¶ 3.01). The Decree also provided that the obligation to make payments under the agreement “shall apply to and be binding only upon NTI LLC and is not guaranteed or secured by any other entity or individual.” ( Id. ¶ 2.05). The court issued an order approving the settlement on December 11, 2008 (Paper 35) and signed the Decree one day later (Paper 36). After five months, Plaintiffs filed an order of satisfaction noticing that NTI had satisfied its obligations under the Decree. (Paper 86).

Now, only Defendants XTEL and Mike Bahmani, XTEL's owner, remain.

On April 15, 2009, the court approved the parties' proposed discovery schedule (Paper 55), under which discovery was to close on August 17, 2009 (Paper 54). After several requested extensions from the parties over the following months, the court ordered that written discovery and depositions would be complete by November 30, 2009. (Paper 66). Plaintiffs' filed their motion for testimony in open court by contemporaneous transmission on October 22, 2009 (Paper 70), while Defendants waited until June 24, 2010 to file their motion for summary judgment (Paper 87).

II. Defendants' Motion for Summary JudgmentA. Standard of Review

The standards on summary judgment are familiar. A motion for summary judgment will be granted only if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir.2008). In other words, if there are clearly factual issues “that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party,” summary judgment is inappropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); JKC Holding Co. LLC v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir.2001).

On a motion for summary judgment, the court must construe the facts alleged in the light most favorable to the party opposing the motion. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Emmett, 532 F.3d at 297. A party who bears the burden of proof on a particular claim must factually support each element of his or her claim. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. “[A] complete failure of proof concerning an essential element ... necessarily renders all other facts immaterial.” Id. Thus, on those issues on which the nonmoving party will have the burden of proof, it is his or her responsibility to confront the motion for summary judgment with an affidavit or other similar evidence in order to show the existence of a genuine issue for trial. See Anderson, 477 U.S. at 254, 106 S.Ct. 2505; Celotex, 477 U.S. at 324, 106 S.Ct. 2548. “A mere scintilla of proof, however, will not suffice to prevent summary judgment.” Peters v. Jenney, 327 F.3d 307, 314 (4th Cir.2003). There must be “sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson, 477 U.S. at 249, 106 S.Ct. 2505. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249–50, 106 S.Ct. 2505. (citations omitted).

B. Analysis1. Timeliness of Defendants' Motion

At the outset, Plaintiffs contend that the court should not consider Defendants' motion because it was filed almost six months after the presumptive deadline for summary judgment motions. (Paper 90, at 7). Federal Rule of Civil Procedure Rule 56(c)(1)(A) states that, where no local rule or court order otherwise applies, “a party may move for summary judgment at any time until 30 days after the close of all discovery.” ² Plaintiffs protest that Defendants filed their motion on June 24, 2010, 206 days after the deadline for written discovery and depositions.

Tardy motions are not to be encouraged, but Plaintiffs have not shown, or even attempted to show, that Defendants acted in bad faith ³ or that the late filing would somehow prejudice Plaintiffs. Plaintiffs concede that they have been aware of the grounds for Defendants' arguments since November 2009. (Paper 90, at 7). See Pine Ridge Coal Co. v. Local 8377, United Mine Workers of Am., 187 F.3d 415, 419 (4th Cir.1999) (affirming lower court's consideration of summary judgment motion where opposing party “received ample notice of the motion”). The parties in fact addressed these very issues in the context of Plaintiffs' motion for contemporaneous transmission, discussed below. (Paper 75, at 2–3; Paper 76, at 1–4). The court has also had more than sufficient time to consider Defendants' motion, despite the delay. See United States v. Savoy, 38 F.Supp.2d 406, 410 n. 2 (D.Md.1998) (declining to dismiss untimely motion where court had sufficient time to consider it). In light of all these circumstances, the court will consider the merits of Defendants' motion. See United States v. Johnson, 953 F.2d 110, 116 (4th Cir.1991) (“Motions filed out of time are accepted at the discretion of the trial court.”); Brumback v. Callas Contractors, Inc., 913 F.Supp. 929, 934 (D.Md.1995) (entertaining untimely motion for summary judgment because “notions of judicial economy and fairness militate against a harsh response”).

2. Merits of Defendants' Motion

Defendants' motion, however, fails on its merits. Concededly, Defendants' motion presents a facially straightforward chain of logic. According to Defendants, employee-plaintiffs in an FLSA action are “prohibited from entering into a settlement for less than the full amount of their wage claims.” (Paper 87–1, at 8). Here, Defendants note, there was a court...