Saavedra v. Richard

• Decision Date: 03 March 2011
• Docket Number: CIVIL ACTION H-10-0856
• Parties: CRISPIN SAAVEDRA, et al., Plaintiffs, v. JAMES E. Richard, JR. AND LAURA Richard, Defendants.
• Court: U.S. District Court — Southern District of Texas

CRISPIN SAAVEDRA, et al., Plaintiffs,

v. JAMES E. Richard, JR. ANDLAURA Richard, Defendants.

CIVIL ACTION H-10-0856

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

SIGNED: March 3, 2011

OPINION AND ORDER

The above referenced action, alleging that Plaintiffs were inadequately paid by Defendants for construction work on their vacation property in the State of Washington in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 206(a)(1), 207(a), 211(c) and 215(a)(2), as well as claims of breach of contract and quantum meruit, was removed from the 129^th District Court of Harris County, Texas. Pending before the Court are the following motions:

(1) Plaintiffs Crispen Saavedra, Bulprano Castillejos, Aaron Rivera, and Jaime Montoya's motion for summary judgment (instrument #15);

(2) Defendants Laura and James Richard's motion for summary judgment for res judicata (#32);

(3) Plaintiffs' motion to strike Defendants' First Amended Answer to Plaintiffs' Amended Petition for failure to ask for leave to amend (#37);(4) Plaintiffs' motion for leave to amend First Amended Complaint (#38);

(5) Plaintiffs' motion for leave to file supplemental response to Defendants' motion for summary judgment (#40);

(6) Defendants' motion for leave to amend first amended answer (#46);

(7) Plaintiffs' motion to strike Defendants' amended affidavit in response to Plaintiffs' motion for summary judgment (#50); and

(8) Plaintiffs' motion for sanctions for failure to obey court order (#52) to produce all non-privileged documents responsive to discovery requests.

All parties are residents of Texas.

Defendants' original attorney was granted leave to withdraw (#36) on October 14, 2010, and Defendants have been proceeding pro se, although James E. Richard, Jr. is listed as an attorney and member of the Texas Bar.¹

I. Standards of Review

A. Federal Rule of Civil Procedure 56(c)

Summary judgment is proper when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The movant has the burden to demonstrate that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 317, 323 (1986). The substantive law governing the claims identifies the essential elements and thus indicates which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 317, 325 (1986).

Where the non-movant bears the burden of proof at trial, the movant need only point to the absence of evidence to support an essential element of the non-movant's case; the movant does not have to support its motion with evidence negating the non-movant's case. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5^th Cir. 1994).

If the movant succeeds, the non-movant must come forward with evidence such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. at 248. The non-movant "must come forward with 'specific facts showing there is a genuine issue for trial.'" Matsushita Elec. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "A factual dispute is deemed 'genuine' if a reasonable juror could return a verdict for the nonmovant, and a fact is considered 'material' ifit might affect the outcome of the litigation under the governing substantive law." Cross v. Cummins Engine Co., 993 F.2d 112, 114 (5^th Cir. 1993). Summary judgment is proper if the non-movant "fails to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp., 477 U.S. at 322-23; Piazza's Seafood World, LLC v. Odom, 448 F.3d 744, 752 (5^th Cir. 2006). Although the court draws all reasonable inferences in favor of the non-movant, the non-movant "cannot defeat summary judgment with conclusory, unsubstantiated assertions, or 'only a scintilla of evidence.'" Turner v. Baylor Richardson Med. Center, 476 F.3d 337, 343 (5^th Cir. 2007). Conjecture, conclusory allegations, unsubstantiated assertions and speculation are not adequate to satisfy the nonmovant's burden. Little v. Liquid Air Corp., 37 F.3d 1069, 1079 (5^th Cir. 1994); Ramsey v. Henderson, 286 F.3d 264, 269 (5^th Cir. 2002). "'[A] subjective belief of discrimination, however genuine, [may not] be the basis of judicial relief.'" Lawrence v. Univ. of Texas Medical Branch, 163 F.3d 309, 313 (5^th Cir. 1999), quoting Elliott v. Group Med. & Surgical Serv., 714 F.2d 556, 567 (5^th Cir. 1983). Nor are pleadings competent summary judgment evidence. Little, 37 F.3d at 1075; Wallace v. Texas Tech. U., 80 F.3d 1042, 1045 (5^th Cir. 1996).

A district court may not make credibility determinations or weigh evidence when deciding a summary judgment motion. Chevron Phillips, 570 F.3d 606, 612 n.3 (5^th Cir. 2009), citing EEOC v. R.J. Gallagher Co., 181 F.3d 645, 652 (5^th Cir. 1999). Nor does the court have to sift through the record in search of evidence to support opposition to summary judgment. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5^th Cir. 1998).

While a failure to state a claim is usually challenged by a motion for dismissal under Rule 12(b)(6), it may also constitute the basis for a summary judgment under Rule 56 because "the failure to state a claim is the 'functional equivalent' of the failure to raise a genuine issue of material fact." Whalen v. Carter, 954 F.2d 1087, 1098 (5^th Cir. 1992). In such circumstances, the motion for summary judgment challenging the sufficiency of the complaint will be "evaluated much the same as a 12(b)(6) motion to dismiss." Ashe v. Corley, 992 F.2d 540, 544 (5^th Cir. 1993). A motion for summary judgment should be granted if, accepting all well-plead facts as true and viewing them in the light most favorable to the plaintiff, the court finds that the plaintiff's complaint nonetheless fails to state a claim. Id.

B. Federal Rule of Civil Procedure 15(a)

Federal Rule of Civil Procedure 15(a) provides in relevant part,

A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave ofcourt or by written consent of the adverse party; and leave shall be freely given when justice so requires.

A court has discretion in deciding whether to grant leave to amend. Foman v. Davis, 371 U.S. 178, 181 (1962). Since the language of the rule "'evinces a bias in favor of granting leave to amend, " the court must find a "substantial reason" to deny such a request. Ambulatory Infusion Therapy Specialists, Inc. v. Aetna Life Ins. Co., Civ. A. No. H-05-4389, 2006 WL 2521411, *3 (S.C. Tex. Aug. 29, 2006), quoting Smith v. EMC Corp., 393 F.3d 590, 595 (5^th Cir. 2004), and Mayeaux v. La. Health Serv. & Indem. Co., 376 F.3d 420, 425 (5^th Cir. 2004). Factors for the court to consider in determining whether a substantial reason to deny a motion for leave to amend include "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, and futility of amendment." Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139 (5^th Cir. 1993).

While Rule 15(a) does not establish a time limit for filing a motion for leave to amend, "'at some point, time delay on the part of a plaintiff can be procedurally fatal.'" Smith v. EMC Corp., 393 F.3d at 595, quoting Whitaker v. City of Houston, 963 F.2d 831, 836 (5^th Cir. 1992), in turn quoting Gregory v. Mitchell, 634 F.2d 199, 203 (5^th Cir. 1981). If there is substantial delay, the plaintiff bears the burden of demonstrating that it was due to oversight, inadvertence or excusable neglect, Id., citing Gregory, 634 F.2d 203.

C. Federal Rule of Civil Procedure 56(c)(4)

Under Federal Rule of Civil Procedure 56(c)(4), ² "an affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated."³ Obviously a vague affidavit or one based on inadmissible hearsay cannot raise a genuine issue of material fact. An affidavit that does not measure up to the standards of Rule 56(c)(4) is subject to a timely motion to strike." Auto Drive-Away Co. of Hialeah v. Interstate Commerce Comm'n, 360 F.2d 446, 448-49 (5^th Cir. 1966). See also Fralick v. Plumbers and Pipefitters Nat. Pension Fund, No. 3:09-CV-0752-D, 2010 WL 2563429, *3 (N.D. Tex. June 22, 2010)("The Fifth Circuit has endorsed the use of a motion to strike to challenge evidence supporting or opposing a motion for summary judgment."). "On a motion for summary judgment, the district court should disregard only those portions of an affidavit that are inadequate and consider the rest." Akin v. Q-L Invs., Inc., 959 F.2d 521, 531 (5^th Cir. 1992).

D. Federal Rule of Civil Procedure 37(b)(2)(A)

Rule 37(b)(2)(A) in relevant part addresses sanctions

For Not Obeying a Discovery Order. If a party... fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders, They may include the following:

(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;

(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;

(iii) striking pleadings in whole or in part;

(iv) staying further proceedings until the order is obeyed;

(v) dismissing the action or proceeding in...