Murray v. Birmingham Bd. of Educ.
| Decision Date | 09 September 2016 |
| Docket Number | CIVIL ACTION NO. 2:13-CV-822-KOB |
| Citation | 172 F.Supp.3d 1225 |
| Parties | Tommy Murray, et al., Plaintiffs, v. Birmingham Board of Education, Defendant. |
| Court | U.S. District Court — Northern District of Alabama |
Janice Pierce Groce, Law Offices of Jerome Tucker LLC, Jerome Tucker, Birmingham, AL, for Plaintiffs.
Mark S. Boardman, Teresa B. Petelos, Boardman, Carr, Petelos, Watkins & Ogle, P.C., Chelsea, AL, for Defendant.
The court has withdrawn its Memorandum Opinion (doc. 149) and substitutes this Memorandum Opinion in its stead.
Seventeen employees working in various schools within the Birmingham City school system bring this Fair Labor Standards Act case; they claim they worked overtime without compensation during the relevant time period. The relevant period commences on May 1, 2010 if the alleged violation was willful, or commences on May 1, 2011 if the alleged violation was not willful, and proceeds until the filing of this case on May 1, 2013, or the termination of employment with the Board, whichever occurred first.1
The case comes before the court on “Defendant Birmingham Board of Education's Motion for Summary Judgment” (doc. 70), and “Defendant's Motion to Strike” (doc. 92). As to the motion for summary judgment, Defendant filed a brief and evidentiary material in support of its motion for summary judgment (docs. 71 & 38-39, respectively, the motion relying on evidence previously filed in support of a prior motion for summary judgment, which was withdrawn). The Plaintiffs responded with a brief and evidentiary material (docs. 80 & 81-82), and Defendant replied (docs. 93 & 94). As to the motion to strike, Plaintiffs filed a response (doc. 97).
For the reasons stated in this Memorandum Opinion, the court WILL GRANT IN PART and DENY IN PART both motions as further set out below.
Although Plaintiffs filed this case in 2013, the court has stayed it twice: (1) from May 28, 2014 through April 8, 2015 pending the Eleventh Circuit's ruling on the immunity issue, initially and pending re-hearing, in separate cases filed against different school boards2 (doc. 57—staying case; & doc. 64 – continuing the stay pending re-hearing); and (2) from July 10, 2015 through February 18, 2016 pending mediation (doc. 114—notice of the unsuccessful conclusion to mediation & doc. 127 – confirmation of lifting of the stay).
The court also has addressed various motions. In the Amended Complaint, the Plaintiffs sued not only the Defendant Birmingham Board of Education but also individuals, whom this court dismissed (doc. 25) in response to those individual Defendants' motions (docs. 9 & 18).
On May 5, 2014, the Defendant Board filed a motion to dismiss Plaintiffs Shirley Pritchett, Linda Mitchell, and Bridgette Jackson for failure to prosecute, because they did not appear for their depositions. (Doc. 41). The court granted the motion as to Plaintiffs Pritchett and Mitchell and dismissed them, but, because Plaintiff Jackson advised the court that she was out of town for an unexpected family emergency on the date of her deposition, the court denied the motion as to Jackson “without prejudice to its re-filing if Jackson fails in the future to participate appropriately in the prosecution of this case.” (Doc. 55). The Board filed two more motions to dismiss Plaintiff Jackson. (Docs. 72 & 129). Although the court denied the second motion to dismiss as prematurely filed (doc. 84), after Ms. Jackson failed once again to appear at a noticed deposition, the court granted the third request and dismissed Ms. Jackson's claims (doc. 137).
On May 5, 2014, the Defendant Board also filed its first motion for summary judgment (doc. 36) as corrected (doc. 48), with evidentiary material (docs. 38 & 39,), but the court struck the accompanying brief as failing to comply with the court's requirements (doc. 43). The Board filed an amended brief with the court's permission (doc. 46) and an appendix to the amended brief containing state court litigation and orders (doc. 47). As noted earlier, shortly after this motion came under submission, the court stayed the case while awaiting the Eleventh Circuit's ruling in a separate case with a similar immunity issue. When that ruling was adverse to the Board, the Board withdrew its motion for summary judgment with the court's permission, with a view to re-filing an amended version in light of the Circuit Court's ruling. (Docs. 68-motion to withdraw & 69-granting motion to withdraw).
In 2015, the Board filed both motions currently pending: on April 30, 2015, the Board filed the second and current motion for summary judgment ; and on June 10, 2015, the Board filed the pending motion to strike (doc. 92). This court again stayed the case and suspended deadlines pending mediation of the claims both in this case and in the related case of Banks v. Jefferson County Bd. of Educ., Case No. 12-1682-MHH. (Docs. 101 & 102).
After attempts to mediate this case stagnated (docs. 114), the parties in both Banks and the instant Murray case held some joint evidentiary proceedings to determine whether issues in the cases could be clarified and whether settlement remained an option (docs. 119 & 125). Afterwards, this court determined that it must proceed with the pending motion for summary judgment in the Murray case, and confirmed the lifting of the stay. (Doc. 127).
The Defendant's motion to strike (doc. 92) requests that this court strike seven separate evidentiary offerings numbered to correspond with the paragraphs in the motion: (1) the declaration of Sharon Jackson (doc. 82-3); (2) (a & b) the declarations of Angela Jackson (doc. 82-4, at pp. 1-7); (3) the declaration of Andrea Stallings (doc. 81-11); (4) the deposition of Dr. Craig Witherspoon (doc. 82-5 in the instant case but taken in the case of Reynolds v. Birmingham Bd. of Educ., 10-CV-2963); (5) the affidavit of Katrina Cosby (doc. 82-G); and (6) the affidavit of former Plaintiff Bridgette Jackson (doc. 82-1).
As a preliminary matter, the court notes that the Board repeats in most paragraphs of its motion the objection that Plaintiffs failed to “disclose [ ] this individual in their responses nor was she mentioned as a witness in the hours of deposition testimony.” (Doc. 92, at 2-5, ¶¶ 1, 2, 3, 5), and 6 (which specified Bridgette Jackson by name instead of using the generic term “this individual.”). The objection makes sense when the Board used it to object to testimony of non-parties, such as Sharon and Angela Jackson and Katrina Cosby. But, the objection is nonsensical when applied to Plaintiff Andrea Stallings (doc. 92, at 3, ¶ 3) and to former Plaintiff Bridgette Jackson (doc. 92, at 4, ¶ 6); obviously, the parties do not have to disclose their own names as potential witnesses.
The Board objects to these declarations because, among other reasons, the Plaintiffs failed to disclose their names as witnesses in response to question 3 in the interrogatories, which requested that they identify every witness with knowledge of the circumstances made the basis of this suit. Further, the Board stated that the Plaintiffs failed to mention these three people as witnesses when asked to do so in deposition testimony. In their response to the motion to strike, the Plaintiffs do not deny that they failed to list Sharon Jackson, Angela Jackson, and Katrina Cosby as a possible witnesses.
According to Rule 26(a)(1)(A) of the Federal Rules of Civil Procedure, each party is required to provide to the other parties “the name, and, if known, the address and phone number of each individual likely to have discoverable information ....” Fed. R. Civ. P 26(a)(1)(A). Rule 37(c)(1) provides that “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).
If Plaintiffs desired to use these three individuals as witnesses, they should have apprised the Board of that fact by including them in Initial Disclosures or on the witness list that the Board requested by interrogatory. Or, if the Plaintiffs did not initially know that these people had relevant information, they should have supplemented that list when they discovered such information. The Plaintiffs cannot wait until after discovery is closed and then rely on witnesses at summary judgment whom the Plaintiffs had not identified; the Board was not expecting that reliance and had no reasonable opportunity to depose them in the instant case. The Plaintiffs have not shown where the failure to disclose Sharon Jackson, Angela Jackson, and/or Katrina Cosby was substantially justified or harmless.
Under these circumstances, pursuant to Rule 37(c)(1), the court will not allow the testimony of these three witnesses to be used at this summary judgment stage; the court WILL GRANT the motion as to their testimony and WILL STRIKE the declarations of Sharon and Angela Jackson and the affidavit of Katrina Cosby.
The Board requests that the declaration of Plaintiff Stallings given in the related Banks case in 2013 be stricken because Stallings gave a thorough deposition in the instant case in 2014, and that the declaration is self-serving and overbroad. Ms. Stallings originally gave this declaration in the Banks case, which was filed just over a year before the Murray case. The Plaintiffs responded that the declaration is dated a year before her deposition in the instant case and “could...
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