MEMORANDUM OPINION
Presently pending and ready for review in this Fair Labor Standards Act case is the motion for partial summary judgment filed by Plaintiffs Debbra Brown and James Parker. (ECF No. 13). The issues have been fully briefed, and the court now rules, no hearing deemed necessary. Local Rule 105.6. For the following reasons, the motion for partial summary judgment will be denied.
I. Background
Plaintiffs commenced this action against Defendant White’s Ferry, Inc. (“WFI”) and Defendant Malcolm Brown on June 20, 2011, by filing a complaint alleging violations of the overtime and minimum wages provisions of the Fair Labor Standards Act of 1938 (“FLSA”), the Maryland Wage and Hour Law (“MWHL”), and the Maryland Wage Payment and Collection Law. (ECF No. I).
According to the complaint, Plaintiffs worked on a full-time basis for WFI “from approximately April 1, 2009 through August 13, 2010” and “primarily performed work duties for Defendants in their store and café.” (ECF No. ¶¶ 7, 9). Mr. Brown was “[a]t all times [their] supervisor,” responsible for “set[ting] and directing their] schedules, and determin[ing their] rate[s] and method of pay.” (Id. ¶ 3). Plaintiffs alleged that they were paid a “flat monthly salary” of $1,600.00 for Mr. Parker and $1,500.00 for Ms. Brown. (Id. ¶ 11). Though they “regularly and typically worked about eighty (80) hours per week,” WFI “never [paid them] overtime wages.” (Id. ¶¶ 10, 13). Their respective rates of pay, when averaged, were “less than the Maryland and Federal Minimum Wage, $7.25 per hour.” (Id. ¶¶ 16,18).
Defendants answered on July 19, 2011, denying all material allegations, including that Plaintiffs ever worked more than forty hours per week or that they were not exempt from coverage under the FLSA. (ECF No. 3 ¶¶ 10, 12, 14).
On December 9, 2011, Plaintiffs filed the pending motion for partial summary judgment, seeking judgment against WFI with respect to their FLSA and MWHL claims. (ECF No. 13). As support, they attached
In opposing Plaintiffs’ motion, WFI provides a strikingly different account of the relevant facts. (See ECF No. 16). For example, WFI describes how Plaintiffs allegedly received free housing and utilities, in addition to their wages (id. at 2-4); that for roughly six months of the one-year term of their employment, the store in which Plaintiffs claimed to have worked eighty hours per week was closed (id. at 3); and that Plaintiffs were nevertheless allowed to remain in the apartment, with Mr. Parker continuing to receive his monthly salary, in exchange for performing odd jobs during the off-season (id.).
In their reply papers, Plaintiffs observe that “[WFI’s] entire defense is that Plaintiffs, over the course of their entire employment, never worked more than forty (40) hours in a week[, and] relies wholly on Defendant’s Answers to Plaintiffs’ Interrogatories and the Affidavit of Malcolm E.D. Brown.” (ECF No. 18, at 2). Plaintiffs argue that “[t]he Interrogatory Responses [ie., one of four exhibits offered by Plaintiffs as evidence in support of their own motion] and Affidavit ... are, on their face, insufficient as they are not properly verified or sworn to defend against Summary Judgment.” (ECF No. 18, at 2). They further argue that Mr. Brown’s purported electronic signature on the declaration was invalid. (Id. at 2 n. 1). While Plaintiffs do not directly address the story suggested by WFI in its opposition papers, Mr. Parker did provide additional detail in a second declaration, which recites, in relevant part:
Following the 2009 season, Mr. Parker agreed with Malcolm Brown ... to continue to perform work duties during the winter months and that I would be responsible for maintaining the White’s Ferry property, snow removal of sidewalk, and would cook once a week for Mr. Brown and his domestic partner at his private residence. Following the 2009 season, Ms. Brown agreed with Malcolm Brown ... to contin*241 ue to perform work duties during the winter months and that she would clean Mr. Brown’s office, hallway, and bathroom in exchange for the rent of [the] apartment.
In May 2010, after Ms. Brown and I reopened the store and café, Ms. Brown and I were the only individuals responsible for operating White’s Ferry store and café.
At a time during the season of 2010, I talked to Mr. Brown to ask to be paid for all the hours Ms. Brown and I worked. At that time, I presented Mr. Brown with the list of hours worked to which Mr. Brown responded[ ] that Ms. Brown and I were on salary and that he was not going to pay [any more] than that.
(ECF No. 18-1 ¶¶ 4, 5,11, 20).
II. Standard of Review
A court may enter summary judgment only if there is 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(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322,
The party moving for summary judgment has the initial burden to demonstrate that there is no genuine dispute of material fact and that the movant is entitled to judgment as a matter of law. In asserting that there is no genuine dispute of fact, a moving party must cite to materials in the record or show that the fact cannot be genuinely disputed. For instance, a moving party may assert that the opposing party cannot produce admissible evidence to support a fact on which that adverse party will have the burden of proof. Thereafter, a party may “object that the material cited [by the other party] cannot be presented in a form that would be admissible in evidence.” Fed.R.Civ.P. 56(c)(2). In the face of such an objection, “[t]he burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated.” Fed. R.Civ.P. 56(c)(2) advisory committee notes (2010 amendment).
“A party opposing a properly supported motion for summary judgment ‘may not rest upon the mere allegations or denials of [his] pleadings,’ but rather must ‘set forth specific facts showing that there is a genuine issue for trial.’ ” Bouchat v. Balt. Ravens Football Club, Inc.,
ni. Analysis
Plaintiffs bring their FLSA claims under 29 U.S.C. §§ 206 and 207. Section 206 provides that “[e]very employer shall pay to each of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce” wages of at least $6.55 per hour for any work performed prior to July 24, 2009, and $7.25 per hour thereafter. 29 U.S.C. § 206(a)(1). Section 207 requires employers to compensate their employees “at a rate not less than one and one-half times the regular rate” for any hours worked in excess of forty per week.
Plaintiffs seek summary judgment as to the first three counts of the complaint as well as liquidated damages. They initially argue that their evidentiary burden in proving a violation of the FLSA is lessened because WFI did not keep records of the hours that they worked. (ECF No. 13-1, at 6-7). Citing Anderson v. Mt. Clemens Pottery Co.,
This argument is confusing in light of Plaintiffs’ own evidence. As noted, WFI’s discovery responses suggest not only that WFI kept payroll records for Plaintiffs, but also that those records have been provided to Plaintiffs during the course of this litigation. Neither party has presented those records or otherwise addressed their content. Moreover, Mr. Parker asserts in his second declaration that he presented Mr. Brown with a record of all of Plaintiffs’ work hours, demanding payment (see ECF No. 18-1 ¶ 20), but no such record has been provided by Plaintiffs. In light of this conflicting evidence and the limited record before it, the court cannot conclude that WFI did not maintain records of Plaintiffs’ work hours. Thus, it is not certain that the burden of proof set forth in Anderson is applicable here.
Even assuming that no records conclusively establish the number of hours Plaintiffs’ worked, there is still a genuine dispute as to the hours based on the current record, rendering summary judgment on any of the first three counts inappropriate. Despite then-declarations to the contrary, Plaintiffs have introduced evidence that they worked only forty hours or less each week by attaching to their motion WFI’s discovery responses. Interrogatory No. 9 and WFI’s response read as follows:
INTERROGATORY NO. 9. State the number of hours worked by each [Plaintiff] for you, per week. Identify all documents and statements which relate thereto, including but not limited to time sheets and pay stubs.
Ans.: The plaintiffs worked 40 hours or less each week.
(ECF No. 13-4, at 3). Although Plaintiffs do not specifically cite Interrogatory No. 9 in support of their motion, it is well within the court’s purview to consider that evidence here. Fed.R.Civ.P. 56(c)(3) (“The court need consider only the cited material, but it may consider other materials in the record.”).
Incredibly, Plaintiffs argue in them reply papers that the court should not consider WFI’s interrogatory responses on summary judgment, even though they themselves marshaled the evidence. (ECF No. 18, at 2-3). They contend that the responses were not made on personal knowledge, as required by Rule 56, thus making them inadmissible and inappropriate for consideration. Plaintiffs’ argument is unavailing for at least two reasons.
First, the Federal Rules contain no such requirement that answers to interroga
Second, Plaintiffs cannot in good conscience ask the court to rely on the discovery responses in support of their motion and then argue that the evidence is incompetent to the extent that WFI relies on the same evidence. Indeed, a party waives any objection to the admissibility of evidence on summary judgment by offering that evidence in support of its own motion. See Capobianco v. City of N.Y.,
With a fact as basic as the number of hours worked by Plaintiffs in dispute, it cannot be found that any overtime wages were owed or that the regular rate of pay was below the minimum wage.
Fortunately for WFI, the burden does not shift to it to counter Plaintiffs’ evidence. Had that occurred, the court likely would not have been able to consider Mr. Brown’s proffered affidavit — the “Affidavit of Malcolm E.D. Brown” (ECF No. 16-2)
Mr. Brown’s affidavit is also undated and improperly signed. While the absence of a date is not, in and of itself, reason to discount an affidavit or declaration, courts have typically excused that omission only where extrinsic evidence demonstrates the approximate date of signing. See, e.g., Peters v. Lincoln Electric Co.,
In sum, the evidence provided by Plaintiffs in support of their motion reveals that there is a genuine dispute of material fact regarding, inter alia, the number of hours worked by Plaintiffs. Accordingly, they are not entitled to summary judgment at this time.
IV. Conclusion
For the foregoing reasons, the motion for partial summary judgment filed by Plaintiffs Debbra Brown and James Parker will be denied. A separate order will follow.
Notes
. Plaintiffs purported to bring the action on behalf of themselves and similarly-situated others, but their subsequent motion to facilitate identification and notification of similarly-situated employees (ECF No. 5) was denied (ECF Nos. 10, 11). Plaintiffs were permitted to renew that motion within twenty-one days, but failed to do so.
. Defendants purported to verify their answer. Their attempted verification, however, was invalid because their electronic signatures were not in compliance with section III.F.4 of the court’s Electronic Filing Requirements and Procedures manual. As will be seen, Mr. Brown’s declaration in support of WFI’s opposition to the motion for summary judgment suffers in part from the same infirmity.
. The original request for production of documents asked, in relevant part, for "All documents that identify, describe, or refer to the manner and extent to which each Plaintiff was compensated by you.”
. On January 5, 2012, Mr. Brown filed a supplemental "affidavit.” (ECF No. 19). While this document was not accompanied by motion papers, it is, in effect, a surreply, which Defendants did not request leave to file. Accordingly, the court will not consider it. See Local Rule 105.2.a.
. Plaintiffs' cited cases in support of its contention that answers to interrogatories must be made on personal knowledge are inapposite because they concern the proper form of affidavits. See, e.g., Evans v. Techs. Applications & Serv. Co.,
. Additionally, Plaintiffs’ proffered evidence is intrinsically inconsistent as to another material fact regarding the specific issue of overtime pay: whether WFI was on notice of Plaintiffs’ alleged overtime hours. "In order to be liable for overtime wages under the FLSA, an employer must have knowledge, either actual or constructive, of [that] overtime work.” Bailey v. Cnty. of Georgetown,
. Though WFI styles this document as an affidavit, it is, in effect, an unsworn declaration. See 28 U.S.C. § 1746 (outlining the requirements for unsworn declarations).
. Because Plaintiffs have not shown that judgment is warranted in their favor as to liability under either the FLSA or the MWHL, judgment is similarly not warranted as to their request for liquidated damages under either statute. See Landmark Realty, Inc. v. Great Am. Ins. Co., No. JKS 10-278,