*1 grаnt of the district court’s we REVERSE corpus. of habeas
a conditional writ (No. 07-4553); O’BRIEN, et al.
Teresa (No. Dellarussiani, et al.
Jessica
08-3184), Plaintiffs-Appellants,
v. ENTERPRISES,
ED DONNELLY Donnelly,
INC., and Ed
Defendants-Appellees. 07-4553,
Nos. 08-3184. Appeals, Court of
United States
Sixth Circuit.
Argued: Dec. 2008. Aug.
Decided and Filed: *4 Führer, Brown, Kegler, Loriann E.
lants. Ritter, Columbus, Ohio, Appel- Hill & Wafer, BRIEF: Lisa A. lees. ON John Ferron, Fallon, Jessica Ferron & W. G. Associates, Columbus, Ohio, Appel- Führer, Brown, E. Kegler, lants. Loriann Ritter, Columbus, Ohio, Hill & for Appel- lees. WHITE,
Before: MOORE Circuit TARNOW, Judges; Judge.* District TARNOW, J.,D. opinion delivered the court, MOORE, J., joined. in which WHITE, 603), (p. separate J. delivered a opinion concurring part. *5 OPINION Wafer, A. Ferron & Lisa
ARGUED: TARNOW, Columbus, Ohio, Associates, Appel- Judge. ARTHUR J. District Background..........................................572 I. Factual and Procedural II. The Dellarussiani suit......................................................574 Considering judgment.......................................574 of A. the offer judgment....................575 I and II in view of offer of B. Mootness of counts attorneys’ fees..............................................576 C. Reasonable damages Prompt Pay under Act.........................577 Liquidated D. Ohio’s appeal plaintiffs from O’Brien ..................579 III. Motion to dismiss Dellarussiani judgment on counts and II.................579 A. Mootness due to Dellarussiani necessarily claim argument Defendants’ that mootness of FLSA B. .................................579 any supplemental claims moot renders plaintiffs’ Prompt Pay Act claim judicata Res and the Dellarussiani C. O’Brien....................................:.......................581 plaintiffs’ common-law claims in O’Brien.....582 judicata D. Res and Dellarussiani The O’Brien suit...........................................................583 IV. A. Decertification........................................................583 1. Standard of review.................................................584 “similarly meaning 2. of situated” ..................................584 in ’Brien............................................587 B. The lead O Spoliation.........................................................587 1. 2. O’Brien...........................................................588 Rogan deposition ..............................................589 a. Deposition in the instant ease....................................590 b. c. Affidavit......................................................592 Summary Judgment............................................596 d. Prater............................................................596 ¶¶ a. 6-9................................................596 Affidavit Tarnow, Michigan, sitting by designation. United of *The Honorable Arthur J. Judge Eastern District States District for the ¶¶ ¶¶ Affidavit 10-13............ b. c. Affidavit 15-16............ ¶ 14; 6 and 7 d. Affidavit e. Exhibits 601 602 602 Summary judgment.......... proof.................. 4. Burden of
V. Conclusion......................... allege involve two related cases tiff failed to appeals
These she suffered from practices. clearly of two Mc- She is employees in which former unlawful similarly situated to plaintiffs. the lead allege Donald’s franchises that their em- Nor are the plaintiffs, Dellarussiani who employees ployer pay refused to have extant supplemental few due, wages they in violation of claims, similarly plain- situated the lead (“FLSA”), the Fair Labor Standards Act tiffs, given inevitably that these claims will 216(b); the corresponding U.S.C. Therefore, judicata. be barred res we statute; Ohio and other Ohio law. For the affirm the district court’s decertification of follow, reasons that in the Dellarussiani the collective action. That leaves the appeal, entry we affirm the district court’s plaintiffs. claims of the lead O’Brien As to judgment pursuant to the defendants’ plaintiffs, the lead we reverse the district judgment, except Fed.R.Civ.P. 68 offer of grant summary court’s judgment de- attorney that the issue fees is remanded fendants’ favor as to the lead to the district court. Having achieved all “off the clock” claims and grant vacate the the relief that hope get could summary plain- as to the lead claims, important their most the Dellarus- *6 tiffs’ claim that their time-sheets were im- plaintiffs longer siani no in have stake properly altered. in these claims the O’Brien case. As for claim, Prompt Pay an Ohio Act which I. Factual Background and Procedural plaintiffs lost in summary Dellarussiani on The in defendants this case are Ed Don- judgment, and as to common-law claims nelly corporation and the that he and his pleaded in in O’Brien but not Dellarussia- own, wife Donnelly Enterprises, Ed Inc. ni, moot, appeal the is not though these O’Brien J.A. 150. bought Defendants two by judicata. claims will be barred res Bellefontaine, McDonald’s stores in Ohio in Therefore, defendants’ motion to dismiss February 2002. O’Brien J.A. 155. plaintiffs Dellarussiani from For varying lengths of time between appeal granted part, O’Brien but 2002 and plaintiffs worked in at least in part denied as to the Prompt Pay Act one They of these two stores. earned Though and common-law claims. we dis- wages between per hour. $6.25 $9.00 agree with the standard the district Appellants’ O’Brien Br. at 7. court applied deciding whether plaintiffs “similarly O’Brien were situated” allege Plaintiffs there were two FLSA, under the we affirm the decertifica- ways main in which defendants and their so, tion. We do view of our managers paid plaintiffs less than what dismissal of most of the Dellarussiani they had earned. The in- practice first plaintiffs’ claims from appeal, the O’Brien requiring plaintiffs volved to work “off the possible opt-in there is one plaintiff clock,” is, they punched before had join who plaintiffs into, could the lead of, they punched or after had out O’Brien. But correctly the district court computerized system that employ- tracked particular opt-in start, end, observed that this plain- ees’ and break times. plaintiffs plaintiffs pro- manner in whiсh The two lead O’Brien second The individually in ceeded that case. After plaintiffs were cheated is this: claim striking several affidavits as inconsistent electronically altered that defendants say prior deposition testimony, the dis- previously that had been entered times granted summary judgment trict court an em- timekeeping system when by the against plain- favor of the defendants both in or These punched out of work. ployee two plaintiffs appealed tiffs. The edits, according plaintiffs, reduced final several of the evi- in the em- of hours recorded total number dentiary decisions the district made reports a number less payroll ployees’ appeal is court. This also before this actually employees had than what court. worked.1 filed plaintiffs Each Dellarussiani Enterprises, v. Ed Donnelly In O’Brien complaint. I a three-count Count claimed
Inc., brought Donnelly, plaintiffs Ed FLSA; violations of the count II claimed claims: cause of following the first of the corresponding violations Ohio stat- FLSA; the was for violations of the action ute; alleged III and count that defendants second, correspond- violations of for Ohio’s pay required liquidated damages 4111; law, § wage-payment O.R.C. ing law, separate under Ohio from FLSA third, Pay Prompt for violations Ohio’s damages. Defendants made an offer fourth, Act, 4113.15(B); for O.R.C. judgment pursuant Fed.R.Civ.P. 68 with contract; fifth, fraud; breach of regard to counts and II. Defendants sixth, promissory estoppel. and the (the $6,142.20 pay offered to full amount of II) damages for plus claimed I and counts initially certified a The district attorney reasonable fees as determined The plaintiffs the FLSA. class of under The the district court. offer allowed (two plain- ultimate class lead court to decide III on the district count eight opt-in moved for plaintiffs) tiffs and re- merits. Dellarussiani against spoliation defendants for sanctions offer; however, jected the request This was denied. of evidence. *7 judg- found that of court defendants’ offer discovery, the found After district court I mooted counts II. ment and The district similarly opt-in plaintiffs the were not judgment the court entered favor of сlass, and decertified the dismiss- situated plaintiffs in amount of Dellarussiani eight opt-in plaintiffs prej- without ing I the offer on counts and II. plaintiffs appealed All one udice. but order, appeal this is decertification rea- The district also determined court. Retaining attorney before this the same fees sonable and costs to action, $6,024.94. determination, making as used six In counsel the O’Brien suits, court found opt-in plaintiffs refiled individual the district that the bills sub- by plaintiffs’ were as Dellarussiani mitted the Dellarussiani which consolidated Inc., Donnelly Ed time Enterprises, spent v. Ed counsel included both on LeVan, Donnelly. opt-in another O’Brien and the success- Stevie unsuccessful case action, addition, file case. In plaintiff, did not an individual ful Dellarussiani joins properly explain did not what ex- appeal. but O’Brien bills represent employees alleged employee Through same 2001. The counsel who plaintiffs, improperly em- records had been edited in the O’Brien and Dellarussiani time Resp. restau- the FLSA. See Br. ployees at these same two McDonald's violation of O’Brien 2; Reply Br. rants had sued the former owner in October at O’Brien at 7.
penses preparation solely were incurred in unaccepted offer is not except admissible in a proceeding for Dellarussiani. The district court to determine costs.” attorney awarded fees and costs for The district court considered the solely the work it determined was done offer of judgment on defendants’ Rule action, though Dellarussiani even 12(b)(1) motion to for lack dismiss of sub some of the evidence used in Dellarussiani ject-matter jurisdiction. Both the district gathered was during the O’Brien action. court and the explain defendants that a III, Regarding count the district court district court can consider an judg offer of granted defendants’ motion summary ment to determine whether a claim is judgment, finding that wages ques- moot, in order to ascertain whether there dispute. tion According to the justiciable is a case or controversy under court, under Ohio Rev.Code Article III of the Constitution. In other 4113.15(B), wages if dispute, words, are in an offer of judgment cannot be employer liquidated liable for dam- used to support challenge the merits of ages. The plaintiffs ap- Dellarussiani a claim and to thereby influence the trier pealed the entry judg- district court’s of Hopper fact. See v. Euclid Manor II, Home, ment on I attorney- Nursing (6th counts 867 F.2d Cir.1989) (“The award, fees grant summary and the contemplates rule judgment on jury count III. or judge Defendants filed a tries the case the motion with this court to decisionmaker will be dismiss the Del- unaware of the ex traneous fact that larussiani from the an offer of ap- judgment O’Brien has peal, asserting been made. This ensures that the Dellarussiani trier of fact will not plaintiffs’ claims in be influenced in its evaluation were mooted any case entry knowledge rejected the district court’s of a judgment thereof.”). offer or consequences But Dellarussiani favor.
a Rule 68 offer can be used to show that
II. The Dellarussiani suit
subject-matter
the court lacks
jurisdiction.
(III.), N.A.,
See
v.
Greisz
Bank
Household
The six
Dellarussiani
contend
1012, 1015(7th Cir.1999) (an
offer
(1)
that the district court erred
when
that encompasses the relief
considered
judgment,
defendants’ offer of
claimed
a legal dispute upon
“eliminates
(2) when it
dismissed counts
and II of
jurisdiction
based,”
which federal
can be
their complaint for mootness in view of the
“[y]ou
persist
cannot
in suing af
(3)
judgment,
offer of
when it refused to
you’ve won”);
ter
Drs. Hill & Thomas
cf.
award
attorneys’ fees that were in-
*8
U.S.,
(6th Cir.1968)
Co. v.
575 But fees. the defendants did offer to Cingular neys’ v. implicate Sandoz does not sion (5th LLC, F.3d 922 Cir. costs and a reasonable attor- pay accrued Wireless a Rule 68 by held that neys’ That court fee to be determined the court. a lead cannot moot judgment of offer Dellarussiani J.A. 281. Plaintiffs do not plain when the lead claim plaintiffs FLSA any- have argue that could obtained certification, timely for collective tiff moves for thing more their substantive claims lead relates back to the the motion I and II what the counts than defendants Of complaint. filing of plaintiffs is only offered. issue whether an course, eventually if denies the court judgment pay of which offers to a offer motion, plaintiff represents then the lead fee as attorneys’ reasonable later deter- herself, claim moot. Con and her by mined the court—but which does not plaintiff, the Dellarus trary to Sandoz pay reported by to whatever sum offer bring a plaintiffs purport not siani did opposing counsel—moots FLSA and action, we are not concerned collective so corresponding claim in this Ohio case. have been Dellarussiani The district court noted offers of the on by off defendants avoid picked judgment with similar language to defen- of action. slaught putative a collective dants’ offer have been deemed other however, with the disagree, We courts sufficient to moot the claims district that a loses plaintiff Circuit’s view Seventh Ambalu, 452; at issue. See 194 F.R.D. at judg outright when he refuses offer (defen- Greisz, also 176 F.3d see satisfy his demand. ment that would entire “$1,200 who judgment plus dant offered Greisz, (barring at 1015 re See attorneys’ reasonable costs and fees” in a attorney fees covery any damages “offering Truth in Act case was Lending plaintiff judg refused an offer of when more [plaintiff] than her claim was worth damages plus full amount of ment sense”). pecuniary to her in a Further- fees). In attorney reasonable costs more, entitle prevail- the FLSA does not stead, is to approach we believe the better get counsel to fee ing whatever judgment in favor of enter Rather, statute, claims. under counsel accordance the defendants’ Rule 68 ... the “court shall ... allow reasonable court did judgment, offer of 216(b). attorney’s fee.” De- 29 U.S.C. case, following in this the lead of district offer pay fendants’ the reasonable attor- v. courts Circuit. See Second Greif fee as court is neys’ determined Moskowitz, Wilson, Elser, Edelman & statutory language with the consonant LLP, F.Supp.2d 160-61 Dicker requires which that the court “allow” the Rosenblatt, (E.D.N.Y.2003); Ambalu v. judgment fee it awards a reasonable when (E.D.N.Y.2000). F.R.D. plaintiff. to a FLSA B. II in view Mootness counts Plaintiffs also contend that the offer did of offer of purport satisfy plaintiffs’ claim Plaintiffs maintain that the district damages under Revised liquidated Ohio *9 in I and II for dismissing erred counts 4113.15(B). However, § the offer Code plaintiffs argue particular, mootness. In only I II. was extended as to counts and judgment offer did that the defendants’ of III, J.A. 281. Count which Dellarussiani attorneys’ include fees costs. not and liquidated plaintiffs’ claim to dam- entailed law,
True, ages proceeded not under Ohio sum- the defendants’ offer did judgment. Part II.D. plaintiffs’ mary attor- See offer number certain infra Therefore, plaintiffs’ particular not err the district did when Dellarussiani claims, II expenses as moot in these dismissed counts and unless benefitted judgment. offer of plaintiffs’ view of the Dellarussiani individual instance, depositions claims. For fees for attorneys’ C. Reasonable fees in O’Brien that uncovered the facts sur- plaintiffs’ rounding counsel incurred fees of the Dellarussiani Plaintiffs’ $6,000 $150,000 claims, depositions in and in if roughly this case even were con- 42. part plaintiffs’ Dellarussiani J.A. The dis ducted as O’Brien. O’Brien trict court determined that reasonable effort to obtain collective-action certifica- tion, were plaintiffs’ rejected fee to which counsel enti be should not on basis of tled did not include the fees. Del the FLSA. J.A. 47. review under an larussiani We Consonant with our conclusion that the abuse-of-discretion standard. Wells v. statute does not bar the district court from (6th 233, Corp.,
New Cherokee 58 F.3d awarding attorney fees incurred in the Cir.1995). plain- O’Brien suit the Dellarussiani Plaintiffs contend that the Dellarussiani claims, рroper attorney tiffs’ of amount plaintiffs’ prosecuted primari- claims were fees issue remanded to the district ly in O’Brien. But the district court and notwithstanding court. so We do the inad- defendants reason that the statute author- equacy perhaps impropriety even the izes an award fees “the action” billing plaintiffs’ records that coun- plaintiff prevails. where a 29 U.S.C. sel originally presented had to the district 216(b) (“The shall, court in action such court. The can have one more addition awarded to present opportunity to records reflect plaintiff plaintiffs, allow a reason- in pursuit fees incurred which bene- attorney’s paid by able fee to be the defen- plaintiffs’ fitted the Dellarussiani claims action.”) dant, and costs of (emphasis they prevailed on which pursuant to the added); plain- Dellarussiani J.A. The Rule 68 offers included reasonable prevail tiffs did not and there- attorney fees. fore, defendants, say any fees incurred advised, however, Plaintiffs are O’Brien cannot be awarded. Eckerhart, 424, Hensley v. 461 U.S. (1983) reading
Such wooden
of the stat
103 S.Ct.
Next, suggest that plaintiffs Dellarussiani, interpretation Concerning court’s broad of what consti- the defen- disputed they tutes a em- dispute anything allows recalcitrant dants owed ployer reflexively than to invoke the safe harbor more what their paid employees dispute according a existed. Dellarussiani Re- to the employer’s payroll own That, ply according Br. at 9.3 plaintiffs, Contrary plaintiffs’ argument, records. surplus pro- would render as the statute’s offer of not does undermine damages. vision of liquidated of a dispute aсcounting existence for nonpayment, the Rule because 68 offer did where, But there could be situations un- liability; not a procedural concede was interpretation der the district court’s of encourage quick tool to resolution statute, provi- liquidated-damages litigation. Dellarussiani J.A. 281-82. play. sion into Suppose could come employer promised pay had a certain Plaintiffs suggest jury decide sum, employees agreed and the that this a dispute whether existed. Dellarussiani However, However, sum was due wage. Appellants’ their Br. at glitch clerical prevented the sum from be- genuine have failed to raise a issue ing fact, employees. delivered to the In such a required material as under Rule situation, employer could not reason- disputes defendants’ with ably a “dispute” maintain that accounted “dispute[s]” count as under Likewise, for nonpayment. employer if an statute. district court examined cash, were short incoming on conse- surrounding the facts each of the quently delay employees, had to paying its that a dispute claims concluded ac- employees’ but conceded the counting nonpayment entitlement to for did indeed exist. payment, employer could not reason- Dellarussiani J.A. 32-38. The district ably argue “dispute” that a accounted for inquiry court framed its as one determin- Further, nonpayment. application ing whether the evidence “a demonstrated of the statute’s safe harbor requires reasonable basis which upon Defendants contest, order, there be a court dispute or disputed” plaintiffs’ claims. Although of a wage claim accounting nonpay- for asking whether the defendant has a “rea- ment, it is to focus on proper whether the basis” disputing sonable for the claims Co., Trucking 3. Plaintiffs cite Twaddle v. RKE satisfaction of the that the act or omis- (S.D.Ohio 2006) 2006 WL giving as an in- sion rise to such action [under 216(b)] stance liqui- where a trial court good § ruled that was in and that he had faith 4113.15(B) damages dated grounds under O.R.C. are believing reasonable that his act or available, though [FLSA], disputed even defendants omissiоn was not a violation * Twaddle, liability discretion, may, on certain claims. the court in its sound award analysis liquidated *2. damages liquidated Twaddle’s damages liquidated no or limit However, damages”) added). under Ohio was (emphasis law truncated. The court thought 4113.15(B) it was for the trier of decide fact to O.R.C. does contain lan- employer whether the guage good defendant could show about faith reasonable "good it acted showing grounds. faith.” A It is not self-evident that FLSA law good employer faith allow the liquidated damages would to avoid should control the in- liquidated damages terpretation “dispute under FLSA. See 29 accounting of a ... ("if employer U.S.C. nonpayment” shows to the under Ohio statute. *12 granted The motion is in directly from O.R.C. Dellarussiani. not flow does part. explain why in 4113.15(B), part and denied We the district court’s “reason- § (A) parts: four due to mootness Dellarus- aided consideration of gloss basis” its able (B) II; on I and regard- judgment siani counts genuine a there was issue whether argument defendants’ that mootness of the a or dispute there was contest ing whether necessarily any sup- FLSA claim renders nonpayment.” for Plaintiffs “accounting (C) moot; plemental claims the of hurdle not that the district court have shown judicata plain- res for the a law Dellarussiani concluding as matter of that erred O’Brien; Pay tiffs’ claim in Prompt Act of material fact genuine there was no issue (D) judicata against and the res bar dispute a or there was contest common-law claims that Dellarussiani plain- Even if accounting nonpayment. plaintiffs have in creating O’Brien. may provided have evidence tiffs underly- of fact as to whether the an issue A. due judg- Mootness to Dellarussiani wage-payment violations
ing FLSA and I II ment on counts and evidence, occurred, even when that viewed favorably plaintiffs, most towards does Because we affirm the district court’s suggest dispute that there was no account- entry judgment of in the Dellarussiani Rather, ing nonpayment. evi- II, plaintiffs’ favor on counts of dence, required in the even when viewed plaintiffs’ corresponding claims in that a or light, dispute establishes contest they hope O’Brien—claims that to main liability for regarding defendant’s further if tain district court’s decertification is nonpayment. for its wages accounted appeal now reversed on moot. There —-are controversy is no a live longer as to the Alternatively, plaintiffs if had evidence corresponding wage- FLSA and the Ohio though withheld even wages that the were claim, payment Planning v. Med. reasonably had to defendants conceded Gottfried Servs., Inc., (6th due, F.3d Cir. wages that such concede 2002), because there is no other relief clerical evidence—like evidence about plaintiffs obtain those could claims problems or cash-flow cre- glitches —could our given overall affirmance of Prompt on the ate triable issue fact case, rulings the district court’s Dellarussiani plain- Act But our Pay claim. attorney-fees and our remand of the issue tiffs have no such evidence: reason in Dellarussiani. has is that the lawsuit continued that de- wages fendants do not concede B. argument that moot- Therefore, by plaintiffs
claimed are due. Defendants’ necessarily claim ness FLSA correctly granted summary the district any supplemental renders claims favor on judgment in defendants’ count moot III. suggest inquiry that our Defendants
III. Motion to dismiss Dellarussiani here, stops claim appeal O’Brien from statutorily capable pro- O’Brien that collectively Arguing subject-matter ju- ceeding we lack is the FLSA claim. mootness, Reply in Dis- Appellees’ Supp. defendants of Mot. to risdiction due miss that the FLSA claim that appeal move to from the O’Brien at 3. Given dismiss plaintiffs had in splintered off from the the Dellarussiani who has mooted entered following decertification so been O’Brien case pursuant in in Rule 68 could file individual claims Dellarussiani offer, part the collective-action is un- controversy device treated as the same available, according theory, by particular to defendants’ employee’s animated FLSA supple- 1367(a). for the Dellamssiani claim. See U.S.C. *13 that in De- mental claims remain O’Brien. far, explained opt-in we have So that an the maintаin that because Della- fendants employee FLSA and supplemental appeal russiani O’Brien seeks have both of claims can those claims certi- action, into a collective the reinstatement a part fied as where a collective action unavailability of this vehicle means plaintiff lead has FLSA supplemental and appeal is moot. their That is background claims. the for the reject argument. general, In We face, situation we a plaintiff where lead has IV.A, in Part if FLSA lead we discuss a supplemental claims, FLSA and but an also plaintiff brings supplemental state opt-in employee only has supplemental claims and then seeks as a certification claims. action, a collective district court evaluates In Corp. Exxon Mobil v. Allapattah Ser- opt-in plaintiffs the “similarly whether are vices, Ginsburg explained Justice the 216(b). § under situated” 29 If the U.S.C. unanimous Court’s that 28 understanding plaintiffs opt-in similarly are situated to 1367(a) § supplemental ju- U.S.C. confers plaintiffs, the it lead does not make sense in cases plaintiff risdiction where one has a to, suggest, to as defendants seem invoking federal-question jurisdic- claim only may the FLSA proceed claims collec tion, 1331, § 28 U.S.C. but other while tively, supplemental the claims would 546, only state have claims. 545 U.S. 587- proceed to individually have or would be (2005) 2611, 125 162 S.Ct. L.Ed.2d 502 to run in required parallel to the collective J., (Ginsburg, dissenting); at see id. only by action more satisfying the strin (“If 125 2611 (majority opinion) S.Ct. gent requirements of Fed.R.Civ.P. 23. original jurisdiction court a single has over See, e.g., Solutions, Molina v. First Line claim in complaint, juris- it original has (N.D.Ill.2007) F.Supp.2d 789-90 diction a ‘civil over action’ within (declining certify parallel a Fed.R.Civ.P. 1367(a), § meaning of civil even if the ac- 23(b)(3) class of supplemental claims which jurisdiction tion over it has compris- a alongside action, FLSA collective but es fewer claims than were included allowing any opt-in plaintiffs pursue complaint. Once the court determines it supplemental part claims as collective jurisdiction original has over civil ac- action). disjoin To supplemen FLSA and tion, it can turn to question it whether tal claims proposed by manner de has a constitutional statutory basis for fendants would defeat purpose sup exercising supplemental jurisdiction over jurisdiction, plemental which is facilitate action.”); claims in other see also the resolution of claims that so closely are Co., Lindsay Employees v. Gov’t Ins. jurisdic related claims for which federal (D.C.Cir.2006) 416, 423 F.3d (analyzing Al- originally tion lies supplemental that the lapattah holding involving a case are part claims same case contro FLSA and state-law “so long claims that versy as the claim independently invoking as the original jurisdic- district has jurisdiction. federal Wright, See 13D Mil claim, single tion ler, may over exercise Cooper, Freer, & Federal Practice (3d jurisdiction supplemental any § and Procedure n. 4 over addi- ed. tional part claim forms of the same Notwithstanding the lack of ex press statutory III case or authority controversy”). in the FLSA Article Under 1367(a)’s claims, § collective Allapattah, certification of non-FLSA requirement supplemental claims definition are apply section “in action civil liqui- third original plaintiffs’ claim O’Brien courts have which district a sin- clearly satisfied when jurisdiction” damages Prompt Pay Ohio’s under dated federal-question juris- invoking claim gle 4113.15(B): Act, In O.R.C. Dellarussia- Thus, inquiry exists. diction ni, summary judgment, this claim died on jurisdiction over state- exists supplemental above, explain why we we affirm the only examine whether need law claims disposition court’s of count III. But closely to the related claims are so state have a the Dellarussiani still form claim that the state claims federal Moot- Prompt Pay Act claim O’Brien. III or contro- the same Article case part of typically not bar the Dellarus- ness would the federal claim. versy as *14 4113.15(B) § claim plaintiffs’ siani Therefore, col- as someone in a long as O’Brien, summary loss in view of their claim, employ- action has a FLSA lective on in other judgment an identical claim part be similarly are situated can ees who has litigation. Ordinarily, when a claim action, even if other collective of the .the suit, already prior been a moot- resolved only supplemental claims. have employees subject-matter a bar to ness is invoked as reason, particu- if a Accordingly, for some “full relief’ ac- jurisdiction when has been did employees employee group or lar See, by e.g., prior corded tribunal. claims, to moot- due have viable FLSA not Co., 611 n. Davis v. Sun Oil F.3d instance, but preclusion, claim ness or (6th Cir.1998). Indeed, the case claims, this is a court supplemental had extant employees these II of examine for counts Dellarussiani: would whether the lead similarly situated to still were already have won on claims plaintiffs these they may may not be. which plaintiffs, Dellarussiani, nothing and there is a putative for them to win on more remand The short of our discussion O’Brien, are re- particularly since we whether jurisdiction to consider have we to manding the Dellarussiani who have plaintiffs, Dellarussiani alive, can attorney that are still the issue of what fees claims court supplemental action, part be of the collective could still why recouped. That is the Dellarus- be ease for recertifica to remand the were we plaintiffs’ are dismissed from siani though Even Dellarussiani tion. appeal to their FLSA and as O’Brien in O’Brien is now FLSA claim plaintiffs’ § 4111 O.R.C. claims. judgment, to Dellarussiani moot due analysis an only requires the FLSA regard Prompt But with to similarly these are situ plaintiffs whether damages, the Pay liquidated Act claim for whom would plaintiffs to the lead ated not, in O’Brien are plaintiffs Dellarussiani putative a remand for recertifi join upon but strictly speaking, barred mootness That of the collective action. simi cation preclusion. This by claim fine distinction larly-situated analysis is mooted if mootness discussing, is worth of the part a FLSA claim on the lack of losing party received apply to when a opt who to into the collec seek employees seeking ruling persisted adverse but an action. tive suit, in a subsequent relief federal n judicata subsequent in that suit would be sitting Res Dellarussiani C. Prompt Pay Act claim in plaintiffs’ into its own required sponte inquire to sua jurisdiction previ over the subject-matter words, ously losing party’s claim. In other sup to other turn therefore We judicata applied pro- res would respect whether claims. With plemental subsequent liquidated claim but we damages, bative whether find under 216(b) justi FLSA, the claim was moot was the Dellarussiani 8(c) clearly But ciable. Fed.R.Civ.P. “similarly are not situated” to the judicata de frames res as affirmative plaintiffs in given lead the inevit- fense, that it can be waived which means preclusion Prompt Pay able of both the go subject-matter it does not and that claims, Act claims and the common-law Pierson, v. See O’Connor jurisdiction. Therefore, discussed next in Part III.D. (2d Cir.2005). Therefore, 187, 194 merits, F.3d we affirm the district court’s summary in a claim on losing a decertification of these Prompt previous suit does not moot such a claim Thus, Act Pay claim. the Dellarussiani Rather, subsequent lawsuit. the subse rejoin are unable collective under quent claim is barred the doctrine of Technically, they attempt action. could preclusion. claim See Ohio Nat. Ins. actions, file individual as we are affirming Life (6th U.S., Co. v. Cir. the district court’s decertification and dis- prejudice missal without claim. their *15 such But suits in nipped would be the bud 27(d)(1), Sixth Rule Under Circuit by preclu- the affirmative defense of claim “[mjotions ordinarily to not may dismiss be sion. grounds juris- than filed on other lack of denying diction.” This rule favors the de- judicata D. Res and Dellarussiani motion to dismiss as
fendants’ to the Del- plaintiffs’ common-law claims in plaintiffs’ Pay Prompt larussiani Act O’Brien O’Brien, preclusion, claim in because claim mootness, plaintiffs not is the obstacle that Finally, we must consider whether the face on this claim. The individual Della- plaintiffs’ appeal Dellarussiani from the plaintiffs conceivably russiani could then decertification in order O’Brien is moot as into a along recertified collective action pleaded to common law claims in O’Brien. O’Brien, with in plaintiffs the lead given Because the FLSA and common-law conclusion, our which we discuss later in claims appear to be based on same IV.A.2, Part applied the district court conduct, alleged are skeptical we that the wrong in standard deсertifying the district court any would afford more relief However, action in collective O’Brien. a upon putative remand on the common- remand, the surely defendants would raise law claims in plain- O’Brien than what judicata res and ask district court to already tiffs received on counts and II dismiss extant plaintiffs’ Dellarussiani pursuant to the offer of in Della- judicata claim once and for all. Res in Nevertheless, say russiani. we cannot as this instance is an “insurmountable hurdle” a matter of disposition law how the of a Myer has mootness-like effects. See claim FLSA affects common-law Inc., Life, v. Americo require analysis claims. That would (8th Cir.2006). the elements of and remedies offered compared common-law claims to the Rather grant than the defendants’ possible claim. FLSA It is that a federal plain motion to dismiss the Dellarussiani claim could be moot while a supplemental in appeal tiffs’ as to Prompt O’Brien their might claim based on same conduct Pay claim, Act we instead choose to avoid be. transgressing boundary between moot claim preclusion. ness and The motion is The definitively doctrine that would bar 4113.15(B) § denied as to the claim for pursuing Dellarussiani from in of himself or themselves and upon and behalf claims O’Brien common-law their employees similarly situated.” 29 preclusion, not other claim remand is putative 216(b) added). (emphasis § Therefore, for dis- U.S.C. the reasons mootness. section, have we previous cussed class actions under Fed.R.Civ.P. Unlike Della- jurisdiction over the subject-matter require collective actions under FLSA as the com- appeal russiani opt class members to into the putative claims, the motion to dismiss mon-law 216(b) (“No § em class. See U.S.C. these respect accordingly denied is plaintiff be a. such ployee party shall claims. he his consent in gives action unless writ party con ing relief to become such such for common-law plaintiffs pled The court sent is filed which such in Dellarussiani. See but not opt-in 11-14; brought.”). employ 4- These J.A. action J.A. Dellarussiani plaintiffs, unlike party are absent class court dismissed ees Because the district in a class action. 7B members Rule 23 See plaintiffs from O’Brien the Dellarussiani Miller, Kane, Wright, & Federal Practice plain- the Dellarussiani prejudice, without (3d at 474 n. and Procedure ed. brought common-law tiffs could have But not. they did Dellarussiani. claims Therefore, inevitably be barred they will two-stage followed a affirm the decertifi- judicata. res We do, process, many certification courts to the in O’Brien as Dellarussiani cation opt-in whether the determine similarly are not situated plaintiffs: similarly plaintiffs were situated. See lead *16 the plaintiffs, the lead under FLSA n. 48. After initial id. the not have claims they will class, of the the conditional certification They actionable conduct. grounded the discovery. entered parties into At the sec- nothing litigate in have left to stage, ond the district court reviewed the moot or of their claims O’Brien are all produced during discovery and evidence claim-precluded.
bewill
the class for two main reasons.
decertified
First,
stated
the district court
that each
The O’Brien suit
IV.
presented by
plaintiff
each
would
claim
Therefore,
the two
only
lead O’Brien
analy-
require an extensive individualized
par-
LeVan are now
plaintiffs and Stevie
a FLSA
sis to determine whether
violation
the
appeal
to the
from
O’Brien district
ties
occurred, frustrating the “collective
had
decertification order. After we dis-
court’s
questions
of
of fact
consideration
common
of
why
application
court’s
cuss
the district
Second,
72.
the
and law.” O’Brien J.A.
language from the
“similarly
situated”
not
a
alleged violations were
based on
error,
why
partly
explain
was
FLSA
we
scheme,
broadly applied, common
nor
district court’s decertification of
widespread
the violations
even
were
then
action will be affirmed. We
collective
plaintiffs,
only
who constituted
among
evidentiary and
court’s
discuss
district
fraction
the total number of
a small
of
rulings concerning the
summary-judgment
potential collective-action members. See
plaintiffs.
two lead O’Brien
Specifically,
69.
out of the 426 poten-
J.A.
members,
collective-action
the distriсt
tial
A. Decertification
produced
evidence
court noted that
through discovery
only
revealed that
five
provides
The Fair
Standards Act
Labor
that
time-
plaintiffs alleged
em-
ten
their
against
of action
an
of the
private
a
cause
altered,
five
that
only
alleged
“by
employees
or more
sheets were
ployer
any one
clock,
sent,
they
that
required
required
plaintiffs
were
work off
could
court
allege
they
allege
and three
failed to
were victims of a single
decision,
they
policy,
from
practice.
plan
suffered
either
Id.
infected
dis-
crimination),
grounds
on other
overruled
Standard,
1.
review
Palace, Inc.,
Costa,
v.
Desert
539 U.S.
of
90,
(2003);
123 S.Ct.
hours
Both
meaning
“similarly
situated”
the district court and the defendant note
of
particular
that to determine
vio-
The Fair Labor Standards Act
place
lation
FLSA took
in this case
situated,”
“similarly
does not define
requires
analysis
individualized
that ex-
However,
neither has this court.
district
alleged
amines
facts of each
violation.
courts have based their final-certification
reason,
For this
decerti-
variety
factors,
decisions on a
of
including
fied, determining that individualized issues
employment settings
“factual and
predominated.
plaintiffs,
individual[ ]
the different de
fenses to
the plaintiffs may
which
be sub
such
But
collection
individualized
ject
basis,
on an individual
the de
analyses
required
[and]
of the district court.
gree
procedural
impact
FLSA,
fairnеss
Under
opt-in
*17
certifying the action as a collective action.”
to be “similarly
need
situated.” While
Kane,
Miller,
See 7B Wright,
supra,
&
Congress
imported
could have
the more
497; Anderson,
§ 1807 n.
supra,
65 at
stringent
488
criteria for class
un
certification
F.3d at
plaintiffs
23,
lead
bear the
der Fed.R.Civ.P.
it has not done so in
showing
plaintiffs
burden of
that
opt-in
Grayson,
the FLSA. See
Granted,
plaintiffs
it is clear that
“similarly situated”
In-
of what
means.
they suffer
23(b)(3)
when
similarly
are
situated
predo-
of
that Rule
arguing
stead
-violating policy, and
a single,
from
not
a criterion for
minance should
be
FLSA—
conduct in
policy
that
or of
proof
when
of
216(b)
actions, plaintiffs say
§
collection
a viola
conformity
policy proves
that
with
putative
that
collective-action members
In the instant
plaintiffs.
to
tion as
all
whose “causes of action under
FLSA
case,
partiсu
a violation as to one
proof of
place
accrued at about
time and
prove
not
that
defen
plaintiff
lar
does
approximate
plaintiff
manner
the named
plaintiffs rights
other
violated
dant
similarly
would
situated” to the lead
be
Nevertheless,
plain
the FLSA.
under
plaintiffs.
Appellants’
See O’Brien
Br.
“similarly
according
situated”
tiffs are
(citing
Pritchard v. Dent Wizard In-
216(b). Furthermore,
possible
is
(S.D.Ohio
Corp.,
tern.
210 F.R.D.
testimony from a subset of
representative
2002)).
explain
Defendants
those
facilitate the
could be used to
plaintiffs
by plaintiffs
cases cited
arise
situations
violations,
proof
FLSA
presentation
where
has
a court
to decide whether
ordinarily be
such
would
indi
proof
when
employees
exempt
certain class of
from
Family
Morgan v.
Dollar
vidualized. See
requirements.
overtime-pay
FLSA’s
1263-65,
Stores, Inc.,
F.3d
1279-
defendants,
cases, argue
Those
lend them-
amended) (determin
Cir.2008) (as
(11th
adjudication
selves to collective
exemption from
although proof
ing
questions predominate.
common
in-
For
overtime-pay requirements might
FLSA’s
stance,
easily
can
decide
a court
individualized,
plain
certain
appear
(as
all
dent-removal
technicians
testimony could be
representative
tiffs’
Pritchard)
overtime-pay
are
from
exempt
exemption’s inapplicability,
used
show
requirements,
having
without
to examine
action
all
collective
specific
factual situation of each dent-
situated),
filed,
cert.
similarly
petition for
removal technician.
2009)
(U.S.
(No.
Apr.
district
should
Spoliation
should have been on notice ear
defendants
filing
than the
of the
lier
date
sanctions,
discovery
a motion
In
suit.
O’Brien
inten-
alleged that the defendants
Time
tionally
destroyed
lost or
some of the
yet
has not
consid-
As the district court
(TPCA)
Change
Reports.
Approval
Punch
notice
employer
ered whether the
was on
seeking
In addition to
J.A. 55.
duty
preserve
O’Brien
its
evidence before the
sanctions,
monetary
employees
lawsuit,
wanted
in the
we do not conclude
missing
infer that the
spoliation
place.
the district court to
instance that
did take
first
Rather,
adverse to the
consider
reports would have been
can
employ-
reports
suggest
Id.
4. These
facts which
employer.
TPCA
could
sys-
missing
computer
anticipated
er should have
printed by
defendants’
*20
in-
preserved.
needed to be
For
day,
the com-
records
at the end of each
but
tem
stance,
separate
obligation
that within four to
from defendants’
to
plaintiffs assert
relevant,
after
the McDonald’s
buying
six weeks
produce
non-privileged discovery
stores,
Donnelly
defendant
that
learned
Finally,
argue
materials.
defendants
that
prior
by
the
owners had been sued
for-
missing reports,
pertain
the
all
two
but
had not
employee
mer
who claimed she
the
period
to
time
before the lawsuit was
wages
her.
O’Brien
paid
been
due
See
Resp.
See
at
filed.
O’Brien
Br.
26. But
Br. at 7.5
maintain
Reply
Plaintiffs also
above,
stated
the district court
should
Donnelly
manag-
that
knew that one of his
consider whether the
a duty
defendant had
changing employees’
ers was
time records
preserve
the
even
records
before
by inserting
breaks
that one
O’Brien was filed.
managers
employees
was
work off
making
7,
Reply
the clock. See
Br. at
9-
O’Brien
2. O’Brien
10.6
the
appeal
Plaintiffs
district court’s deci-
spoli-
If
district court
the
concludes that
portions
sion
strike
of an affidavit that
place,
ation
take
the district
can
did
her summary-judgment
O’Brien filed with
consider,
authority,
under
its inherent
they
papers
allegedly
conflicted
it was negligence
whether
or bad faith that
portions
prior
her
deposition
testi-
relatedly,
motivatеd
defendants and
mony. The district court based its deci-
sanction,
any,
imposed.
what
if
should be
party
sion
the rule
“a
cannot cre-
(6th
Wolever,
Adkins v.
F.3d
a genuine
ate
issue of
fact
material
(en
Cir.2009)
banc).
affidavit,
filing an
after a
for
motion
sum-
argue
Plaintiffs also
that the defendants
made,
mary judgment has been
that essen-
a duty
preserve
longer
were under
tially
deposition
contradicts
earlier
[her]
days
than 72
electronic versions
testimony.”
Penny v. United Parcel
reports.
Appellants’ Br. at
TPCA
O’Brien
Serv.,
(6th
Cir.1997).
29.
provide
authority
But
no
The district court found that O’Brien
that proposition. What matters is whether
thing
“twice testified that the
she
first
did
produces
employer
reports
dis-
when she walked into the restaurant was
covery,
copy
in either
or
hard
electronic
in.”
Donnelly
clock
O’Brien v. Ed
En-
form.
ters., Inc.,
2:04-CV-00085,
No.
2007 WL
Defendants also maintain that
did
(S.D.Ohio
18, 2007)
at *3
Dec.
produce payroll
fact
records which show
(emphasis original).
The two
the hours worked.
Br. at
Resp.
O’Brien
(1)
sources the court looked to
pages
However,
27.
payroll
records would
deposition
45 and 46 of O’Brien’s
testimo-
show
edits were made
case,
ny
Rogan
in another
Ed Donnelly
v.
employees’
defendants
time-sheets.
(2)
Enterprises,
deposition
and O’Brien’s
reports
are
TPCA
therefore relevant
this case. Id.
to one of
theories of how the
However, plaintiffs pointed out
alleged FLSA
happened.
violations
De-
may
deposition
argue
fendants
O’Brien also testified
her
edits were
reason,
id.,
good
performed
made for
see
instant
but
case
question of
proper
whether the edits were
in.
clocking
work tasks before
Defen-
Although
reply
particular
again,
reply
brief
repro-
cites
6. Here
brief cites and
pages
Donnelly's deposition transcript,
excerpts
depo-
duces
one
from
Chad Totche's
pages
joint ap-
those
are
transcript,
pages
not included in the
but
are
sition
those
not in-
pendix
supplemental appendix.
appendices.
cluded
*21
testimony during
in
deposition
to this was that “the
O’Brien’s
argument as
dants’
time,
she
instant
a new
in a
testimony
given
‘was
O’Brien
the
case—at
after
action,
twice to
already
under oath
in
cir-
place,
had
testified
new
a new
under
her
contrary,
consultation with
from
prior
cumstances removed
her
tes-
after
her
questioning from
lawyer,
upon
and
in the
timony
Rogan case—serves as an
”
at
and “that
lawyer
deposition,’
her
own
independent
of the testi-
reaffirmation
testimony given with assis
belated
[t]his
mony
provided during
she
de-
originally
—
no
from
tance of counsel—is
different
entirely
in
It
position
Rogan.
this
of an inconsistent affidavit.”
submission
testimony
consistent reaffirmation of her
brief). Faced
(quoting
Id.
defendants’
Rogan
this
that
that convinces
Court
deposition testi
subsequent
with O’Brien’s
subsequent testimony
Plaintiff O’Brien’s
in,
clocking
that she
before
mony
worked
discrepancy
looks like a
that creates
question
before it
the court framed
not a
“transparent
discrepan-
sham” and
question Plain
accordingly: “The essential
cy
credibility
that
“an issue
creates
Sears,
argument poses
[Reid
under
v.
tiffs’
go[es]
weight
... or
to the
of the evi-
(6th
Co.,
&
from earlier.” J.A. Later in defense deposition, counsel at least one On direct examination —after resumed their examination O’Brien. following occurred7 —the ex- recess had O’Brien testified that the schedule would change occurred: her set in an hour have to come before the restaurant she would opened, but come
Q. you testified earlier that You also approximately 4:30 a.m. have addi- mornings you would when clock perform tional time to tasks before the work, right? would in to come restaurant opened: A. Yes. Q. you And that on a did volunteer Q. you perform' any ever work Did basis? actually you tasks would clock in? before A. No. A. Yes. Well, Q. Donnelly you Mr. told not to Q. you per- tasks would What work come until an hour before the restau- opened, form? right? rant He open A. said it took an hour A. lights. Turn on the Turn on the restaurant, it took closer but to an tables, fryer, grill, oven. prep hour and a half. safe, pull reg- out the Count—unlock money your your ister count But Q. drawers and instructions from em- there, Turn on ployer count the the com- was to come in an hour before safe. puters. computers, you’d opened, right? Turn restaurant in, clock put register the drawer —the A. To clock in. registers.
drawers in well, Q. your Did instruction Mr.— Q. long you say a—how was to Is there would come in an hour the res- before you perform opened, took for tasks taurant ? right those clocking before in? A. Yes.
A. 15 minutes. About 76) (O'Brien deposition). Dep. (noting eluding portion 7. See J.A. 215 that a defendants’ right “short recess” was taken before con- Q. Donnelly you ease, Mr. never instructed Rogan internally inconsistent. to come in an hour and a Admittedly, the more testimony favorable half before opened, restaurant correct? testimony O’Brien is that her attorney elicited from her after recess. The A. Correct. dis
trict court was convinced that this anwas attempt to create a “sham” issue of fact Q. manager] Nancy never in- [Your deposition O’Brien’s initial testi you to structed come an hour and a mony in the instant indepen case was “an half opened? before the restaurant *24 dent reaffirmation of testimоny she A. No. originally provided during deposition in Q. ... you you ever tell Ed that [D]id Rogan.” 2007 WL at coming into the restaurant more Indeed, concluded, *4. the court is this “[i]t than an hour before? entirely consistent of her reaffirmation A. I told him that I approxi- come at testimony in Rogan that convinces this mately I good open- 4:30 so could have a Court that Plaintiff O’Brien’s subsequent ing and the open restaurant would on testimony looks like a discrepancy that time. a ‘transparent creates sham’ and not a Q. said, no, And is that when he come discrepancy that creates ‘an issue of credi in at 5:00? bility ... go[es] or to weight only A. He said it takes an hour to ” added) evidence.’ (emphasis Id. (quoting open the store. And he didn’t want me Bank Ill. v. Signal Safety Allied Re clocking in until closer to 5:00. (7th Sys., straint 75 F.3d 1169-70 Q. He never agreed pay you Cir.1996)).8 above, however, As shown time more than an hour before the store Rogan testimony itself was not consistent. opened, correct? There is no discrepancy real between [Objection] depositions. O’Brien’s two If anything, A. I don’t believe there an agree- was what the O’Brien testimony in the instant ment. case Rogan reaffirms is that her testimony Q. said, He never I’ll pay you for more was likewise internally inconsistent. That than an hour opened, before the store O’Brien could be inconsistent both her correct? depositions regarding subject may in A. only He pay wanted to for an hour dicate a lack credibility on part her thought because he you that’s all need- go weight to the of the evidence.9 you ed. And did need more. c. (O’Brien 80-82) J.A. 218-20 Dep. (empha- Affidavit added). sis In her affidavit filed at summary- deposition
O’Brien’s
testimony in
in-
case,
stage of this
case,
stant
like her deposition testimony in averred the following:
8.
reasoning,
Given such
responses
seems doubtful that
interrogatories.
See Bank of
recognized
Ill.,
district court would have
. a fact issue is to create sham davit tries instruction Donnelly’s Mr. follоwed cross-examined the affiant was regard. this Aerel, testimony. 448 F.3d during earlier result, time- Defendants’ As a 10. matters, factor because 909. This at my hours of relating to records keeping neverthe cross-examined but party who is time that all of the do not reflect work only to testimony, unequivocal less offers store. at the North worked affidavit, has by a later contradicted J.A. 330-31. a sham fact issue. tried to create indeed Franks, at 1237 deposi- generally See testimony her initial
O’Brien’s Inc., Tires, v. Michelin (citing she clocked case that in the instant tion Camfield (8th 1361, 1364-65 Corp., 719 F.2d only Tire other tasks performing first before Cir.1983) consider whether for factors to the last sen- contradicts unambiguously exists). That is not the sham fact issue affidavit—that 9 of the paragraph tence here, inconsis alleged “the case Donnelly’s instruction O’Brienfollowed with affidavit existed by tency But as created time. in until a certain to clock Kennett-Murray deposition itself.” above, testimony suggests other discussed (5th Bone, Cir. F.2d 894 affidavit, Corp. v. Donnelly that, with consistent not have court should The district in until to not clock also instructed the affidavit. disregarded testified at never time. O’Brien a certain Summary Judgment d. stricken, them from being effectively but neutralizes their plaintiffs. usefulness for portion Yet of paragraph Nevertheless, the inconsistencies within of the affidavit is not essential for the Rule Rogan depositions, O’Brien and when analysis:10 genuine issue of material affidavit, read with the reveal a genuine already fact had been “raised the depo issue of fact. material sition even without consideration of the Kennett-Murray, affidavit.” aspect F.2d The other of the affidavit that should be considered is paragraph significantly which overlaps with remaining portion paragraph 9 legal claim on which the district pro- portion paragraph and a 7 remain to be grant summary ceeded to judgment to de- considered. O’Brien claims in paragraph 9 fendants that O’Brien worked “off the required report she “was to work clock.” Paragraph 10 of the affidavit week, at 4:30 a.m. during the and 5:30 a.m. result, reads as follows: “As a Defendants’ Sundays.” apрarently This conflicts timekeeping relating my records hours deposition testimony, O’Brien’s dis- of work do not reflect all of the time that I above, cussed that Donnelly “never in- worked at the North store.” Though de- structed to come in an hour [her] and a stricken, fendants moved for it to be it is half before the restaurant opened”—nor not clear that the court struck it. See Nancy, did manager. her To avoid a con- 2007 WL at *2 (noting flict deposition with this that would call for *26 that “Defendants ask the Court to strike the affidavit to be stricken as an attempt 6-11,” paragraphs but then listing the “at- fact, to create a sham dispute of por- this paragraphs” issue of the O’Brien Affidavit tion of the affidavit should be read 6-9). paragraphs We assume it was ie., limited that O’Brien “was re- manner — effectively stricken because the court quired” report to to work at those earlier struck paragraphs it, the preceding on times, but Donnelly not that Ed Nancy or explicitly which it relied. (O’Brien’s manager) required her to do so. By interpreting this sentence as O’Brien Striking or disregarding paragraph 10 feeling (to required perhaps by so) what she the extent the court did grant- — deemed to the job demands of the ing summary judgment defendants —to report early, the affidavit does not conflict O’Brien’s “off the clock” claim was errone- deposition with her and is therefore not Admittedly, ous. a colorable argument subject being Indeed, stricken. her de- can be made that this court should affirm position testimony supports such a read- the district grant court’s of summary judg- ing: Donnelly only pay wanted to for an ment for defendants as to O’Brien’s “off while, hour prep time according to the clock” claim notwithstanding our ruling O’Brien, “you did need more.” This read- that the district court should not have ing of portion this of paragraph 9 and of portions stricken of the O’Brien affidavit. language similar in paragraph 7 saves Plaintiffs’ FLSA claims are of two variet- 10. A district granting summary Bearden, court’s order matter of law. Patton v. 8 F.3d (6th Cir.1993). is de reviewed novo. Ciminillo v. deciding When a motion Streicher, (6th Cir.2006). summary judgment, the court must view reviewing In summary judg- a motion for the evidence and draw all reasonable infer- ment, we must determine whether the evi- nonmoving party. ences in favor of the Mat- presents dence disagreement Co., a sufficient sushita Electric Industrial v. Zenith Radio require jury 574, 587, submission to a Corp., whether it is 475 U.S. 106 S.Ct. (1986). so party prevail one-sided that one must as a L.Ed.2d 538 altered, has never heard that improperly altered she her ies: that defendants time records had altered Ed time records that defen- been Don- (O’Brien nelly Enterprises. time pay J.A. 211-12 dants did 50-51). latter, Thus, As for allegation clock.” Dep. worked “off the O’Brien’s deposition at her as fol- regarding unsupported O’Brien testified her time records is lows: and thus insufficient to survive summary However, judgment. the district in at the court’s
Q. clocked time that you So spoliation issue may clocked reconsideration of you out at the came to work analysis its summary-judgment alter time left? you Therefore, alteration claims. we vacate A. Yes. grant summary judgment. Q. assuming computer that ac- So you curately accepted Returning theory: information to the off-the-clock punched and that it into it wasn’t later then, Assuming, computer was computer changed, records would accurate subsequently and was not you the actual time worked? changed, deposition O’Brien’s testimony reflect records computer A. The would. the computer records reflected her time initially actual worked would seem to 40) (O’Brien Dep. (emphasis add- J.A. 208 imperil O’Brien’s “off the clock” claim. To ed). testimony damaging This italicized the extent affidavit subsequent contra- argument. clock” “off the Of O’Brien’s (as this testimony paragraph dicts 10 of course, if only damaging one assumes it is does) the affidavit it would seem to not records were accurate computer However, have been error to strike it. changed. and were not later excerpt deposition this of O’Brien’s testi- Therefore, before we discuss whether mony should in context. be read testimony just cited extin- deposition question preceding testimony about guishes theory, off-the-clock we computer clocking records concerned in: have to discuss time-sheet—alteration *27 question to the answered ‘Tes” of no to theory. provide Plaintiffs evidence whether she in at the time “clocked that that the support allegation time records came to at work and clocked out [she] altered to subsequently were O’Brien’s Although supra. [she] time left.” See this appel- Plaintiffs write detriment. their O’Brien, helpful testimony is also not for “[discovery in late that the case be- brief already we have discussed how she later that, many occasions, Ap- low on revealed testimony contradicted in the this same pellees’ improperly changed managers deposition deposition, Rogan and how the many Appellants’ recorded hours of Thus, was unclear as well. point on this pay work in to them less than order testimony deposi- conflicting within Br. 11. Appellants’ They cite due.” raises a genuine tions issue of material fact multiple argument for this sources —none to the pre- as off-the-clock claim which determine, which, can of as far as we summary judgment cludes for defendants support or time- either O’Brien’s Prater’s theory. on Moreover, sheet—alteration claim. as the observed, argument. other district O’Brien testified at Defendants raise one court defendants, if According she has no to even the affida- deposition personal her that dispute time vit is and a factual ex- knowledge whether her records were considered Donnelly Enterprises ists as to O’Brien clocked first by altered Ed or Ed whether that, in, clocking being aside or worked defen- Donnelly from first before himself— her is not the FLSA because attorney told time records dant liable under her my on as discrepancies paycheck is no evidence that knew com- there defendants compen- pared the actual hours I working O’Brien was without with number of for 37. But worked Defendants. Appellees’ Br. at sation. deposition clearly cre- testimony
O’Brien’s 7. At the time I Defen- worked for issue, genuine factual because she ates dants, I wrote of down the number Donnelly knew she was asserts compare hours I worked a ledger to working off the clock. See J.A. 223 line my And, paychеcks. at least with on 89). (O’Brien Dep. at occasions, my pay- four I noticed that did not reflect all I had checks the hours Thus, the district court not err in did working my ledger. noted summary defendants’ granting motion result, complained 8. As Chad as to the claim that O’Brien’s Totche, the restaurant manager However, records were altered. be- time store, North on at least two occasions ruling spolia- on cause district court’s apparent my shortages pay. about the might tion create a fact as to the issue occasions, claims, 9. On those Mr. told grant we Totche alteration vacate pay me that he would summary judgment. look into The district did me, discrepancy get back striking portions err in affida- O’Brien’s But, to that effect. Totche vit and thus erred when it defen- words Mr. granted up follow summary judgment motion for never did with me. dants’ as to “off the O’Brien’s clock” claim. J.A. 333. The district court these struck paragraphs hearsay. as inadmissible Prater 2007 WL at *5-6. The appeal Plaintiffs court’s deci- pointed district court testimo- Prater’s portions sion strike affidavit and ny, court, as characterized the district summary- documentation that, other filed at the ledger, “without his he not know does judgment stage by plaintiff Dallas Prater. any he given worked overtime in district court struck or otherwise dis- week, he has no recollection when regarded paragraphs 6-9 of affidavit any given day.” he worked at *5 Id. hearsay; inadmissible paragraphs 10-13 (citing Dep. Prater The district Rule; violating the Best Evidence pointed testimony court also to Prater’s paragraphs 15-16 for being that, inconsistent it, as the district court put “he cannot deposition testimony and thus barred identify overtime for which he claims *28 above; by the rule discussed and exhibits paid referencing he was not without 6 and and paragraph Thus, 14 of affidavit Id. ledger.” con- district court (which 7) is based on cluded, exhibit because the testimony Prater’s that was un- he do qualify exhibits “pedagogical as de- “is derpaid entirely based recollec- his vices,” argued which is what tion of the information in the contained O’Brien, they were. 2007 WL 2003, however, personal ledger. In Plain- 4510246, at *4-10. in We consider each away pay tiff Prater ledger threw his turn. Consequently, argue records. Defendants testimony about the information
a. 6-9 ¶¶ Affidavit ledger stated in the amounts to inadmissi- (citations omitted). hearsay.” ble Id. Paragraphs 6-9 of Prater’s affidavit read follows: agreed The district court defen- with Throughout my 6. employment argument testimony dants’ about Defendants, I significant often ledger beyond noticed contents fact — Prater he noticed in the ledger a inadmissible what remembers kept that Prater —is ledger purposes plain- should be stricken. is admissible for the hearsay “[T]he to show portion can consider the statements this of the Court tiffs offer affidavit. a ledger. Prater created that Plaintiff Thus, swept the district court too broad- however, Court, disregard Plaintiff will ly when it declined to consider Prater’s regarding the con- Prater’s attestations regarding “attestations the contents of the ledger.” Id. at *6. tents of the ledger.” 2007 WL at *6 added). it (emphasis The district court erred when of Prater’s disregarded paragraphs these First, paragraphs 6 and 9 and ¶¶ affidavit. b. 10-13 Affidavit paragraph Prater’s affidavit most Paragraphs of the Prater affidavit 10-13 Second, ledger. discuss the do not as follows: read hearsay. are not in the affidavit statements member, opening 10. As an shift crew argue,
As routinely reported I to work for Defen- testimony merely describes the Prater’s dants at the North store at 4:00 a.m. personally took actions he reported 11. I to work at When 4:00 properly affidavit de- past.... Prater’s a.m., I often times had to wait for an personally down that he wrote scribes opening manger [sic]-including shift ledger in a hours he worked because Totche, Angela Chad Tall and David shorting him Appellees were he believed arrive at the North store to Pra- Clark-to wages paychecks. in his hours and the restaurant. open testimony regarding his use of the ter’s not in ledger, which itself is evidence 12. an opening manager Once shift had it, misplaced Prater later is not store, at the North arrived would be- an out of court statement made gin working right away clocking without than the declarant that is someone other opening managers because the shift truth of the matter as- offered for the told me would clock me at 4:00 serted. a.m., which was the time I arrived at the (citation omitted; Br. 37-38 Appellants’ North store. original). The affidavit emphasis lawsuit, In pro- Defendants introduce the contents purport does not my timekeeping duced some of records Rather, as evidence. ledger relating showing the times res- (a kept ledger fact the shows that Prater managers taurant clocked me on De- consider; court said it could see However, system. computer fendants’ at least four supra), that he “noticed” times, my beginning work as entered ledger diverged times that from his managers on the restaurant Defendants’ as to the number of hours paychecks computer and reflected on Defendants’
worked, that, result,” he com- “[a]s records, timekeeping are later than the *29 pro- Totche. His affidavit plained to Chad usually to De- reported time work for why vides a foundation for Prater believes fendants, 4:00 a.m. which was defendants; might he was cheated it J.A. 333-34. dispute any also be used to corroborate evaluating paragraphs, In these the dis- testimony by Though ledger’s Totche. the previous may be inadmissible trict court was mindful of Prater’s contents themselves (for deposition testimony importantly, it example, prove ledger that the ac- —most seems, following colloquy: paychecks), from Prater’s tually diverged me,
Q. you telling though, Are quently, operates Fed.R.Evid. 1002 every you time that worked was testimony bar that Plaintiff Prater’s accordance with the schedule at the res- anything scheduled start time was other taurant? presented than what is in the written A. schedules. Yes. (Prater Dep.
J.A. 257 (citation omitted). Id. testimony, deposition Based on this Alternatively, the court ruled that paragraphs district court ruled that 10-13 testimony was barred as inconsistent with of the affidavit violated the Best Evidence prior deposition testimony: Prater’s Rule, prove which states that “[t]o Plaintiff Prater testified that always he ..., a writing original content of writ- reported to work in accordance with the ing required, ... except as otherwise written schеdules. The written sched- provided these rules or Act of Con- ules reflect that Plaintiff Prater was gress.” Fed.R.Evid. 1002. ac- The court begin never scheduled to work at 4:00 knowledged plaintiffs correctly point- during am period employ- his first ed out that Rule 1002 apply does not when ment with Accordingly, Defendants. proponent of the evidence is not seek- Plaintiff Prater’s attestations that he ing prove writing. the contents of the routinely reported to work at 4:00 a.m. The court then ar- characterized are inadmissible contradictions of his gument as to Rule application 1002’s to the prior deposition testimony. instant case: (citation omitted). Id.
Plaintiffs conclude that the Rule is in- applicable here because Mr. Prater’s The district court’s decision to testimony is not prove offered to disregard paragraphs these in the affidavit schedule, contents of the but instead is First, was error. these averments them offered to establish his actual hours of selves “prove were not offered to the con work, and to demonstrate that Defen- terms, tent writing.” By of a its that is timekeeping dants’ records are inaccu- only applies. time that Rule 1002 words, rate. In other Plaintiffs assert district court concluded that the averments that the Prater Affidavit is not disput- in the affidavit were deficient ing the accuracy content or of the were not “the best evidence when Plain schedules, but instead it attests to when reported Prater to work any given tiff reported Plaintiff Prater to work. added). day.” (emphasis Id. The best (citation 2007 WL at *7 prove evidence to may contention omitted). rejected The court argu- schedules, requiring but the best evi ment: (here, dence apparently, available schedules) argument, however,
Plaintiffs’ ignores prove something besides the prior Plaintiff Prater’s deposition testi- “content” of the schedules is not what the mony in which he testified that al- he Best Evidence Rule demands. See All ways Swann, worked accordance with state Ins. v.Co. (11th Cir.1994) (“Rule
written schedules. If Plaintiff Prater requires pro always reported to work in accordance duction an original document when schedules, with the written proponent best evi- of the evidence seeks to dence of when Plaintiff reported prove Prater the content of the writing. It does *30 any given day not, however, work on is require production aof docu day. written schedule for the simply Conse- ment because the document con- by Then, facts that are also testified to cause it was short staffed. on tains witness.”) (citations quotation occasions, and internal thee I [sic] traveled to the omitted); see also Simas v. First marks grill South store to work a shift as a Union, But, Fed. Credit Citizens’ I cook. did not clock in at the (1st Cir.1999) for the (quoting Allstate my South store to record hours of work. general that “there is no rule proposition Instead, I was told the South proof of a fact will be excluded unless managers store that one of the North proponent furnishes the best evidence its managers store clock would me that a power” reasoning plaintiff in his However, out at the North store. none prove application “can he filed a loan sim- produced the records Defendants testimony” trial ply through his own any my this lawsuit show work hours application). does not need to furnish the store, at the South which averaged ten Second, this affidavit does not contradict per shift. hours deposition con- deposition when the is The J.A. 334. district court ruled that light plain- strued in the most favorable to paragraphs these conflict with Prater’s de- tiffs, at required summary judg- as is position testimony that, as the district — stage. questions immediately ment it, court put Prater “admitted that he has preceding colloquy quoted above con- independent no recollection of when he any “days” cerned that Prater was sched- or of how much time worked he worked on work, not uled to work but did and vice any given day. He also admitted that he Thus, context, when read in it versa. knowledge has no having ever worked “every Prater’s statement seems Finally, off the clock at the South store. time” that Prater worked he worked Plaintiff Prater testified that he never accordance with the schedule was tes- pay[.]” worked ten hours without By he timony dаys as to the worked. (citations at WL *8 contrast, paragraphs these the affidavit omitted). alleges concern the hours that Prater he Thus, days worked he worked. The district court erred. Prater especially there is no “Well, deposition yeah” his answered contradiction — one that would call for Prater’s affidavit to question about it would be disregarded. The district court was in [i.e., “very sitting today hard here at the error when it ruled otherwise. [i.e., deposition] opposing for me counsel] you particular days year to ask of the back ¶¶
c. 15-16 Affidavit many you 2002 how hours worked or granted The court defendants’ motion to you up day, when showed wouldn’t paragraphs strike 15 and 16 of the Prater (Prater 83). Thus, it?” Dep. J.A. 261 being prior affidavit as inconsistent with question “very was whether would be ” deposition testimony. The affidavit states: such a question. (Empha hard” “ask added.)11 occasions, approximately 15. On nine I question sis This followed a in query acknowledged arrived for work at the North store to which Prater he morning and was instructed one did not know the that it answer and would remember,” managers query North store that was be “hard to but that needed to work at the South store be- was worded as follows: “And other than 11. Such a reading testimony reasonably question is from must be read far in the defendants, summary charitable to but on light best for the nonmovant. reading appropriate, such *31 (Prater 107-08). recollection, Dep. After a you if I asked J.A. 269-70 generalized record, off the Prater then like, in brief discussion week, the first week particular
a follows: testified as you know whether do November your week from you worked overtime that why got I ain’t no A. That’s records. added). memory?” (emphasis Id. might That be when I worked at south store. following in deposition, Later mean, Q. you you do when What occurred:
colloquy at the store? worked south days that we Q. any And for A. There was times I went down to the here in these time go through would there. south to work for them down records, any inde- you don’t have punch they they in I went When needed — you of when worked pendent recollection they call and said needed some- would days, you? on those do there, body go so I would down down offhand, no. right A. No. Not and work. And whoever the man- there 98). (Prater First, Dep. we note J.A. charge say ager was would qualification that Prater does not have in, punch punch would me I—be- us— “right any “independent such recollection” I would ask them if I would wait cause not a clear admission offhand.” This is I got punch until down there and recollec- independent that Prater has no no, they say, punch you And we’ll what. Second, it not clear what an “inde- tion. is So, know, I you in here. went on down why is or a recollec- pendent recollection” and worked. years ago tion of events of several that is (Prater 108). Dep. Opposing J.A. 270 not would be insufficient. “independent” changing Prater of his counsel accused Third, probably importantly, most testimony, explained: but Prater day-by-day question potential involves Well, forgot A. because I about me date, Prater inquiry each would be —for going down to the south store and work- para- he asked when worked'—but ing. graphs question of Prater’s affidavit do Q. you you Do know whether or not Indeed, allege specific not dates. you punched when went to the implicitly acknowledges affidavit that Pra- to work? south store dates, specific ter does not know the No, A. I do not. states that Prater arrived at the North go store and was instructed to to the South Q. you having don’t know of ever So “approximately store on nine occasions.” 10 hours off the clock at the worked added.) (Emphasis store, you? south do right. giving A. That’s don’t mind Finally, Prater disputed exhibit minutes, hours, not them few but ten deposition shown to him at his that said he [sic]. Septem- worked 10 hours off the clock on
ber 2002: (Prater Dep. J.A. Q. you any understanding Do have Here, testifying present Prater is why say you someone would worked he not deposition, tense: as of his does day hours on that off the clock? him punched know whether someone else No, working A. I wasn’t no 10 hours when he went to the South store it. he off the clock at the getting paid off the clock without worked 5,10, minutes, testimony Maybe even 15 but not 10 South store for ten hours. Such admittedly helpful hours.
601 not contradict 14 graph case. But the affidavit does of Prater’s affidavit which was 16 of the affida- testimony paragraph 7, this based on exhibit because the exhibits do — of the records only says vit that “none qualify not as “pedagogical devices” as de- lawsuit” show produced Defendants by Bray, fined United States v. at store. any of his work hours the South (6th 1104, Cir.1998),12 which is what words, may personally In Prater not other they claimed are.13 The in, punched he was but he know whether portions court found that the of the exhib- pro- whether the records could still discern that portions plain- its were based on by the reflect the hours duced defendants tiffs’ that already affidavits the court found Moreover, he worked. that he asserts inadmissible were themselves inad- are paragraphs 15 and 16 consistent missible. The court also observed that testimony deposition explaining Prater’s “the exhibits are not representa- accurate store, go needing to down to South tions of the evidence.” 2007 WL himself, punch not he would 4510246, at *10. manag- that he told that a North store was er would clock him at the North store. Since these pedagogi exhibits are The district court’s characterization that cal devices and are not themselves evi alleges “Prater in his that he is affidavit dence, it does not matter whether the dis claiming days he worked ten-hour without trict court considered them or not. Any (O’Brien, pay at the South store” 2007 WL by decision a district court to strike or added; (emphasis citing at *8 affidavit)) otherwise not consider a “pedagogical de technically 16 of is paragraph summary-judgment erroneous. vice” at stage be, most, would harmless error. A pe reasons, For all these the district court dagogical device is not evidence. On a paragraphs erred when it struck these summary motion for judgment, such a de the Prater affidavit. merely vice is offered to “aid” the court. ¶ U; d. whatever reason'— n Exhibits 6 and 7 Affidavit judge If a district —for believes that a pedagogical device would disregarded The district court para- help exhibits 6 and and thus him or her to rule on a motion for "pedagogical clarify a simplify complex This court understands de- testimony 12. vice” to be: or other information and evidence or to presentation argu- assist counsel in the pre- an illustrative aid such as information jury. ment to the chalkboard, chart, court or flip sented on (internal Bray, like, F.3d at (1) citations drawing, and the is used to omitted). evidence, summarize or illustrate such as documents, recordings, testimony, or trial Although plaintiffs initially state in their evidence; (2) that has been admitted is "damage brief that their evidence; calculations are (3) itself not admitted into proper 56(c),” evidence extent, under Fed.R.Civ.P. may through cap- reflect to some go argue "damage then on to their organizational tions or other devices or de- themselves, are calculations not evidence but scriptions, the inferences and conclusions are the consolidation of evidence adduced underlying by drawn from the evidence relevant summary's from and admissible evidence al- proponent. type This of exhibit " ready presented to the district argument court in this 'more akin to than evidence’ Therefore, organize[s] jury's Appellants’ damage case. since calcula- [it] examination proper pedagogical testimony already tions are devices and documents admit- have ted in evidence.” Trial courts have discre- should been considered the district tionary authority permit Appellants’ (emphasis counsel to em- court.” Br. add- ed). ploy pedagogical-device such "summaries” is, by preponderance plaintiff prove must such a device summary judgment, ‘performed that he or she work definition, evidence useless.14 *33 properly for which he was [or she] ” Summary judgment e. Myers Copper v. Cellar compensated.’ (6th Cir.1999) 546, re- Corp., two theories of 192 F.3d 551 Plaintiffs articulate Pottery time records were v. Mt. Clemens covery: (citing Anderson that plain- Co., 680, 686-87, their detriment and changed to 66 S.Ct. 90 328 U.S. the clock.” The first (1946), worked “off superseded by tiffs statute L.Ed. 1515 Prater, and the district theory fails as to as stated in Carter v. grounds on other it entered was not error when Co., 463 F.2d 1293 Panama Canal as to summary judgment for defendants (D.C.Cir.1972)). To determine the extent thаt man- claim. Prater has testified damages, plaintiff “prove can his or of time- would the time-in and agers “fix[ ]” ‘under-compensation’ damages through her necessary, but he was not aware out when discovery analysis employer’s changes being inaccurate. See of such However, if records. code-mandated (Prater 67); Dep. see also J.A. J.A. inadequate employer kept inaccurate or (Prater 106). He also testified Dep. records, proof burden inten- knowledge anyone that he has no relaxed, and, of that re- upon satisfaction or tionally altering hourly his time records burden, the onus shifts to the em- laxed anyone hourly else’s time records. J.A. negate employee’s inferential ployer to (Prater 141); J.A. 258 Dep. see also added) (emphasis Id. damage estimate.” (Prater 77). stated, though, we Dep. As (citing Pottery, Clemens 328 U.S. at Mt. grant the district court’s of sum- vacate 687-88, 66 S.Ct. is- mary judgment, spoliation open remains for the district court to sue imply Plaintiffs that their claims consider on remand. dismissed on sum should not have been However, given evidentiary rulings they only needed mary judgment because above, burden, the district court erred when it satisfy initial as the this lesser summary granted defendants’ motion for inaccurate and defendants’ records were However, as to Prater’s “off the clock” inadequate. Mt. Clemens Pot remand. claim. We reverse and tery progeny and its do not lessen proof showing that a FLSA standard of Ip. proof Burden of Rather, violation occurred. Mt. Clemens an argu Pottery gives plaintiff another a FLSA easier Plaintiffs raise are. way damages the district court to show what his her appeal, ment on which keeps inaccurate or opinion, employer did not discuss in its but which When records, inadequate plaintiff for a pertains grant to our decision to affirm the FLSA were, damages his or her a summary judgment plain on some of show what begin with, plaintiff prove FLSA does not need to tiffs’ claims. To “FLSA tionary authority” permit the use of such 14. Note that this discussion is restricted to Furthermore, devices). of a motion for sum- court's consideration limit note the obvious mary judgment proceedings and other that a district court does not have license jury present which there is no to consider disregard it wants to. We whatever evidence A have li- evidence. district court does not only discussing "pedagogical devices” are keep any pedagogical cense to device it party brings characterized as such jury's eyes. Bray, wishes from a Cf. them before the court. (noting "discre- at 1111 that trial courts have every uncompensated minute work. Dellarussiani from the O’Brien Rather, can damages, appeal PART, she estimate her is GRANTED IN but DE- shifting employer. the burden to the If PART NIED IN as to the Prompt Pay Act estimate, employer negate cannot and common-law claims. These cases are may damages then the “court award to the REMANDED for further proceedings con- employee, though even the result be opinion. sistent with this approximate.” Pottery, Mt. Clemens WHITE, short, Circuit Judge, concurring
U.S. at
show that there was a violation under majority concur opinion except FLSA. It would allow prove them to regard with to its determination that the by way estimate, of if damages they had plaintiffs’ Dellarussiani common-law already liability. established Plaintiffs’ claims in necessarily O’Brien are barred a genuine failure to show issue of material judicata. res I would leave such a fact as to the time-sheet —alterations determination to the district court on re- required entry claims the district court’s of mand. them, summary judgment against though discussed, grant summary judg-
ment is vacated for the district spoliation
revisit the issue. Conclusion
V. reverse the rulings
We district court’s regard to the presented by affidavits America, UNITED STATES of the lead on summary judgment. Plaintiff-Appellee, entry summary And we vacate the judg- v. against plaintiffs ment on the time-sheet— Kyle Dwayne MOSLEY, claims, alteration Defendant- because we have also Appellant. remanded the district court’s consider- ation whether spoliation sanctions for are No. 08-1783. may warranted. This alter the merits of United States Appeals, Court of summary-judgment analysis of the Sixth Circuit. lead plaintiffs’ time-sheet —alteration claims. Argued: April 2009. The district court’s decertification of the July 23, Decided and Filed: collective action in O’Brien is affirmed. Dellarussiani, Regarding entry
judgment favor due to moot-
ness, as well as entry summary defendants’ favor are af-
firmed, with the exception the issue of attorney fees awarded Dellarussia-
ni is remanded to the court.
Accordingly, the district court is AF-
FIRMED IN PART and IN REVERSED
PART. Defendants’ motion to dismiss the