Gifford v. Dr Pizza, 2:22-cv-00707

Plaintiff Shannon Gifford sued DR Pizza, Inc. and owner David Kearns under the FLSA on behalf of herself and opt-in delivery drivers, alleging reimbursement practices reduced wages below the federal minimum.
Court conditionally certified a collective for delivery drivers employed since December 4, 2020; ~47 opt-ins joined, but only ~1/3 returned discovery questionnaires.
Parties exchanged a standardized questionnaire about mileage, reimbursement, and vehicle expenses; fact discovery closed January 24, 2025 after multiple extensions.
Plaintiffs submitted three new opt-in declarations with their summary-judgment response; Defendants moved to exclude them under Fed. R. Civ. P. 37(c)(1) for failure to disclose in discovery.
The court excluded the late declarations as not substantially justified or harmless (prejudice, willfulness, and incurability weighed for exclusion) and found the remaining admissible evidence inadequate to show Plaintiffs were paid below the FLSA minimum wage.
Because Plaintiffs failed to present admissible, reasonably approximate vehicle-expense evidence, the court granted Defendants’ summary judgment motion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of late declarations (Rule 37)	Declarations should be considered; no prejudice because defendants had other data	Declarations withheld during discovery; exclusion warranted under Rule 37(c)(1)	Excluded: nondisclosure was willful and prejudicial; not harmless
Sufficiency of evidence to prove FLSA minimum-wage violation	Plaintiffs can rely on estimates and submitted questionnaires/declarations to show sub-minimum wages	Plaintiffs failed to provide admissible computations or reasonably approximate vehicle expenses for each plaintiff	Judgment for Defendants: Plaintiffs failed to show wages fell below $7.25/hour
Burden of proof on damages computations	Defendants had discovery and records; burden should shift to Defendants to produce data	Plaintiffs are best positioned to estimate their own mileage and expenses; burden not excused by alleged defendant record deficiencies	Court: Plaintiffs bear the burden to provide at least reasonable approximations; they failed to do so
Need to reach statute-of-limitations defense	Summary judgment improper until timeliness established for some opt-ins	Defendants argued some opt-ins fall outside limitations	Court did not reach limitations issue after resolving lack of substantive FLSA proof

Anderson v. Liberty Lobby, 477 U.S. 242 (summary-judgment standard for genuine dispute)
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (court construes evidence in light most favorable to nonmovant)
Celotex Corp. v. Catrett, 477 U.S. 317 (movant may point to lack of evidence on essential element)
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664 (burden-shifting at summary judgment in Tenth Circuit)
Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985 (Rule 37 exclusion factors and district-court discretion)
HCG Platinum, LLC v. Preferred Prod. Placement Corp., 873 F.3d 1191 (caution on extreme Rule 37 sanctions; consider lesser alternatives)
In re Standard Metals Corp., 817 F.2d 625 (definition of willful failure for discovery-sanction analysis)