Case Information
*1 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION TINA K. HARPER,
Plaintiff, vs. Case No. 3:05-cv-166-J-MCR COATES-CLARK ORTHOPEDIC SURGERY &
SPORTS MEDICINE CENTER, LLC and
CAMILLE COATES-CLARK,
Defendants.
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O R D E R
THIS CAUSE is before the Court on Defendants’ Amended Motion for Summary Judgment (Doc. 47) filed July 27, 2006. This case is presently scheduled for trial beginning August 21, 2006. The parties filed their joint Pretrial Statement July 24, 2006 and the final Pretrial Conference is scheduled for August 7, 2006. Accordingly, the timeliness of this motion is in question. In any event, the motion is due to be denied as it continues to raise factual disputes, which are not properly resolved by way of summary judgment, but rather by the finder of fact.
The instant motion is very similar to Defendants’ original Motion for Summary Judgment (Doc. 27), which this Court denied on May 15, 2006, on the grounds that a genuine issue of material fact remained as to whether Plaintiff was engaged in commerce pursuant to the Fair Labor Standards Act. (Doc. 34). However, in the amended motion, Defendants attach a copy of a Composition Tablet, which purportedly *2 shows Plaintiff was not engaged in commerce. Plaintiff’s affidavit in support of her opposition to the original Motion for Summary Judgment states that her regular and recurring duties required her to utilize the telephone and facsimile to send and receive information regarding patient insurance verification, written reports, messages and medical records from individuals outside Florida. (Doc. 33, Ex. A, ¶¶3-4). Additionally, Plaintiff claims she used the telephone to place orders for goods and services from individuals outside Florida. (Doc. 33, Ex. A, ¶5). Plaintiff alleges she engaged in this sort of activity on a daily basis and that Defendants could not have provided services for a majority of their clients without her performing these duties. (Doc. 33, Ex. A, ¶¶6-7). Although the exhibit attached to Defendants’ Amended Motion for Summary Judgment claims to refute Plaintiff’s allegations, it would not be appropriate for the Court to engage in resolving factual disputes. Instead, it is clear that a genuine issue of material fact remains in this case and such issue of fact should properly be determined by the jury. Accordingly, after due consideration, it is
ORDERED :
Defendants’ Amended Motion for Summary Judgment (Doc. 47) is DENIED .
DONE AND ORDERED in Chambers in Jacksonville, Florida this 28 th day of July, 2006.
MONTE C. RICHARDSON UNITED STATES MAGISTRATE JUDGE *3 Copies to:
Counsel of Record