Perez v. City of New Orleans, CIVIL ACTION NO: 12-2280

• Citation: 173 F.Supp.3d 337
• Decision Date: 24 March 2016
• Docket Number: CIVIL ACTION NO: 12-2280
• Parties: Chad Perez, et al. v. City of New Orleans, et al.
• Court: U.S. District Court — Eastern District of Louisiana

173 F.Supp.3d 337

Chad Perez, et al.

v.City of New Orleans, et al.

CIVIL ACTION NO: 12-2280

United States District Court, E.D. Louisiana.

Signed March 24, 2016

Jim S. Hall, Joseph W. Rausch, Jim S. Hall & Associates, Metairie, LA, Eric John Hessler, Attorney at Law, Michael W. Hill, Law Offices of Michael W. Hill, LLC, New Orleans, LA, for Chad Perez, et al.

Mary Katherine Kaufman, Cherrell Simms Taplin, Churita H. Hansell, David M. Strachan, Kimlin Smith Lee, Matthew David Fraser, Sharonda R. Williams, Fishman Haygood, New Orleans, LA, for City of New Orleans, et al.

ORDER AND REASONS

CARL J. BARBIER, UNITED STATES DISTRICT COURT

Before the Court are a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (Rec. Doc. 116 ) and two Motions in Limine (Rec. Doc. 130; Rec. Doc. 145 ) filed by Defendants, Michael Harrison, in his official capacity as the Superintendent of the New Orleans Police Department, Ronal Serpas, and the City of New Orleans (collectively “Defendants”), and three Oppositions thereto (Rec. Doc. 143, Rec. Doc. 144; Rec. Doc. 151 ) filed by Plaintiff, Chad Perez, (“Plaintiff”) on behalf of a class of similarly situated police officers. Having considered the motion, the parties' submissions, the record, and the applicable law, the Court finds, for the reasons expressed below, that the motions should be GRANTED in part and DENIED in part .

PROCEDURAL HISTORY AND BACKGROUND FACTS

Officer Chad Perez, a former New Orleans Police Officer, brought this action under the Fair Labor Standards Act (‘FLSA‘), on his own behalf and on behalf of all similarly situated members of the NOPD, against the City of New Orleans (‘the City‘) and against Ronal Serpas in his capacity as Superintendent of the New Orleans Police Department (‘NOPD‘).¹ Perez alleges that from September 16, 2009 through the present date, the NOPD has failed to pay him and other NOPD officers the overtime compensation that was due to them. Plaintiff challenges the NOPD's time-keeping system (the “J&T system”) on two grounds. First, Plaintiff asserts that the scheduled 42.5 hour work week for NOPD officers is in excess of the forty hours per week threshold for overtime payment established by the FLSA. (Rec. Doc. 1, at 3, 10.) Second, Plaintiff claims that the NOPD failed to accurately record officers' unscheduled time worked in order to minimize the payment of overtime rates. Id. at 5-6, 10. Plaintiff also alleged (1) violations of United States Code, Title 42, Section 1983 ; (2) retaliation; and (3) state-law tort claims sounding in defamation and intentional infliction of emotional distress (“IIED”).

Upon Plaintiff's motion, on April 7, 2014, this Court conditionally certified the class of plaintiffs, defined as “New Orleans Police Department officers denied earned overtime compensation and/or J&T time, beginning September 16, 2009.” (Rec. Doc. 34, at 6.) Over the next two years, the parties engaged in extensive, contentious discovery. A jury trial in this matter is set for April 11, 2016. On March 1, 2016, Defendants filed the instant Motion to Dismiss. (Rec. Doc. 116.) On March 7, Defendants filed their first Motion in Limine. (Rec. Doc. 130.) Plaintiff opposed the motions on March 15, 2016. Defendants received the Court's permission to file a reply brief on March 22, 2016. (Rec. Doc. 153.) Defendants filed a second Motion in Limine, Motion to Strike, and Motion for Sanctions (Rec. Doc. 145) on March 18. Plaintiff opposed this motion on March 22. (Rec. Doc. 151.)

PARTIES' ARGUMENTS

A. Motions in Limine

In their first Motion in Limine, Defendants argue that Plaintiff should be prohibited from introducing certain evidence. First, Defendants take issue with documents produced by Plaintiff at the deposition of Independent Police Monitor (“IPM”) Susan Hutson. Defendants argue that Plaintiff had not previously disclosed these documents. Second, Defendants claim that the IPM's report on NOPD retaliation policy is not relevant and is not listed on Plaintiff's exhibit list. Third, Defendants generally argue that Plaintiff should not be allowed to introduce any other documents that were not timely produced in accordance with the Court's scheduling order and the Federal Rules of Civil Procedure. Finally, Defendants assert that Ms. Hutson should not be permitted to testify as an expert witness at trial. Defendants argue that Plaintiff did not disclose Ms. Hutson as an expert in accordance with Federal Rule of Civil Procedure 26(a)(2)(A).

In his opposition, Plaintiff argues that Defendants' motion fails. First, Plaintiff asserts that he should be allowed to exchange documents with Defendants before trial. Plaintiff contends that Defendants may then object to certain documents, and the Court can rule on the objections at trial. Second, Plaintiff argues that some documents are addressed to NOPD employees, including the IPM report on the retaliation policy. Thus, Plaintiff argues that Defendants already have the documents. With respect to the documents not timely produced, Plaintiff argues that Defendants failed to specifically identify such documents. Plaintiff claims that a broad order excluding the documents would be inappropriate. Further, with respect to Ms. Hutson's expert testimony, Plaintiff points out that a lay witness can give opinion testimony. Plaintiff also argues that Ms. Hutson may be an expert witness who is not required to provide a report under Rule 26(a)(2)(B). Finally, Plaintiff reiterates that the Court should decide these issues at trial, rather than an order ruling on Defendants' pre-trial motion.

Defendants' second Motion in Limine is similar to their first. Defendants aver that Plaintiff provided them with a second exhibit list, which contained items that were not included in the exhibit list filed with the Court. Moreover, Defendants claim that Plaintiff's list does not adequately describe each exhibit. Accordingly, Defendants ask the Court to strike the second exhibit list, prohibit Plaintiff from introducing any evidence that was not previously disclosed, and grant Defendants attorneys' fees and sanctions. In his opposition, Plaintiff argues that his description of each exhibit was satisfactory. Further, Plaintiff claims that the documents on the list were produced during discovery and specified on the initial exhibit list.

B. Motion to Dismiss/Motion for Summary Judgment

Defendants raise a number of bases to dismiss Plaintiff's claims or to grant Defendants summary judgment. First, Defendants claim that Plaintiff's claims against Robert Norton should be dismissed for insufficient service of process. Defendants contend that Mr. Norton was never served, which is required by the Federal Rules of Civil Procedure. Second, Defendants argue that Perez's retaliation claim should be dismissed for lack of subject matter jurisdiction. Defendants claim that the Civil Service Commission is the proper venue for this claim. Further, Defendants argue that they are entitled to summary judgment on this claim because Perez's suspension was based on a legitimate, non-retaliatory reason.

Third, Defendants argue that Perez's Section 1983 claim should be dismissed for failure to state a claim. With respect to Defendant Ronal Serpas, Defendants argue that Perez (1) failed to plead the deprivation of a federal right and (2) failed to demonstrate that Serpas acted with deliberate indifference to the violation of Perez's rights. Further, Defendants assert that Serpas is entitled to qualified immunity. With respect to the City, Defendants argue that Perez's claim should be dismissed because he failed to demonstrate the existence of a municipal policy that caused a deprivation of his rights.

Fourth, Defendants argue that Perez's claim for overtime pay under the FSLA should be dismissed because he failed to plead enough facts to establish a claim under the statute. Perez alleged that NOPD had a policy of not paying for overtime compensation. However, Defendants argue that Perez did not introduce sufficient evidence to show how and when these alleged violations occurred. Alternatively, Defendants claim that they are entitled to summary judgment on the FLSA claim. According to Defendants, Perez was sufficiently compensated for all unscheduled hours that he worked. Fifth, Defendants assert that Perez failed to state a claim for libel because he failed to identify any defamatory statements made by Defendants. Sixth, Defendants argue that Perez's IIED claim should be dismissed because he did not plead “extreme or outrageous conduct.”

Plaintiff's opposition does not directly respond to Defendants' contentions. Rather, Plaintiff raises several new arguments. First, Plaintiff contends that Defendants already filed a Motion to Dismiss. (Rec. Doc. 8.) In response, Plaintiff's complaint was amended. (Rec. Doc. 13.) Thus, Plaintiff argues that a second motion to dismiss is inappropriate because he already remedied any deficiencies in the original complaint. Second, Plaintiff alleges that the City has admitted that it owes compensation to class members for unpaid overtime worked. Plaintiff also claims that class members did not record their overtime hours in the system for fear of retaliation. Further, Plaintiff suggests that Serpas knew that the NOPD's time-keeping system was criminally flawed. Thus, Plaintiff claims that Serpas is subject to liability under Section 1983.

Next, Plaintiff addresses the disciplinary complaint (2011-919) filed against Perez. Plaintiff received a one-day suspension for leaving work early without permission. However, Plaintiff suggests that the suspension was given in retaliation for his formal complaint about unpaid overtime. Plaintiff also argues that a complaint against him was listed as “pending investigation,” preventing him from obtaining other law enforcement work after his resignation. Further, Plaintiff argues that he was denied promotion due to the pending complaint and the one-day suspension. Plaintiff also claims that...