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Brkovich v. Dynacom Industries, Inc.

United States District Court, Third Circuit

September 20, 2013



KIM R. GIBSON, District Judge.


Presently before the Court is a Motion for Summary Judgment (Doc. 35) filed by Plaintiff Miles J. Brkovich ("Brkovich"). Brkovich contends that Defendant Dynacom Industries, Inc. ("Dynacom") owes him wages for uncompensated work performed during a five-week period between February 22, 2010 and March 26, 2010. For the reasons that follow, the Court will grant his motion and award damages in the amount of $6, 294.00.


This Court has jurisdiction over the matter pursuant to 28 U.S.C. § 1331 because Brkovich is seeking damages under the Fair Labor Standards Act of 1938 (FLSA), ch. 676, 52 Stat. 1060 (codified as amended at 29 U.S.C. §§ 201-19 (2006)). Venue is proper under 28 U.S.C. § 1391 (b)(2) because a substantial part of the events giving rise to the claim occurred in Johnstown, Pennsylvania.


This matter arises from a dispute between an employee and an employer concerning uncompensated labor performed over a five-week period. Dynacom employed Brkovich as a full-time employee between May 11, 2009 and September 15, 2010. (See Doc. 35, at 1). During Brkovich's employment, he earned $65, 000 in yearly salary, amounting to $1, 250 per week or $31.25 per hour. (See Doc. 35, at 1; Doc. 8, Compl., Ex. B). Between February 22, 2010 and March 26, 2010, Brkovich worked approximately nine hours per day, performing his duties as Chief Financial Officer. (See Doc. 35, at 1; Doc. 8, Compl., at 1 ¶ 2). Dynacom did not pay Brkovich during this period, (Doc. 35, at 1), although Brkovich allegedly collected unemployment benefits during this time (See Doc. 13, at 4 ¶ 8).[1]

On March 11, 2011, Brkovich commenced this action by filing a pro se Complaint, seeking unpaid wages, overtime pay, and liquidated damages pursuant to the FLSA. (See Doc. 8). Brkovich attached to the Complaint copies of correspondence with Dynacom representatives, among other documents, to support his claim. (See Docs. 8-2 through 8-6). On April 15, 2011, Dynacom filed a Motion to Strike (Doc. 6), requesting that certain exhibits and portions of the complaint be stricken as immaterial, impertinent, and scandalous. Brkovich obtained counsel, who filed a brief in opposition to Defendant's Motion to Strike on May 4, 2011. (See Doc. 9).

On November 10, 2011, the Court entered an order, striking from the record certain exhibits-specifically, Exhibits D and D.1 (Doc. 8-5) and Exhibit E (Doc. 8-6)- on ground that the material constituted inadmissible evidence of offers of compromise pursuant to Federal Rule of Civil Procedure 408. (See Doc. 12). Dynacom thereafter responded to the Complaint, contending that Brkovich was an exempt employee under the FLSA and that, during the five-week period in question, Brkovich was on "layoff' status and was therefore not entitled to compensation. (See Doc. 13, at 3 ¶ 3). Dynacom further raised several cursory affirmative defenses in its Answer to the Complaint (Doc. 13), but none of these defenses have been raised since that time.[2] Aside from Dynacom's Motion to Strike the Complaint (Doc. 6) and its Answer to the Complaint (Doc. 13), Dynacom has not responded in this matter.

On December 13, 2011, Brkovich advised the Court that his attorney's law license had been suspended and that he would be continuing the litigation pro se. (See Doc. 15). During the IR 16 conference, the Court urged Brkovich to take further steps to obtain counsel, apprised him of the difficulties of proceeding pro se, but indicated that he was nevertheless permitted to continue unrepresented if he so desired. (See Doc. 19). A post-discovery conference was held on August 6, 2012, in which Brkovich failed to appear, and the Court ordered Brkovich to show cause why he should not be sanctioned for his failure to appear. On August 22, 2012, Dynacom's attorney filed a Motion to Withdraw Appearance (Doc. 29).

The Court granted counsel's motion to withdraw after Dynacom and its attorney were unable to compromise regarding the payment of legal fees. (See Doc. 38). A post-discovery conference was held on December 10, 2012, with Dynacom representatives Jeffrey Carr ("Carr") and Marshall Wingate ("Wingate") appearing in person. (See Doc. 40). At this time, the Court instructed Carr and Wingate that, because Dynacom is a corporation, it must be represented by an attorney. (See id.). Since then, Dynacom has not acquired counsel and has completely failed to participate in this litigation.

Brkovich filed a Motion for Summary Judgment (Doc. 35) on October 15, 2012. Dynacom has not responded to the motion. Pursuant to Local Rule 56, the non-moving party must file opposition to a motion for summary judgment within 30 days of service, and alleged undisputed material facts set forth in the moving party's concise statement of material facts will be deemed admitted unless specifically denied by a separate concise statement filed by the opposing party. See Local Rule 56(c)(E). Because Dynacom has not filed a response to the Motion for Summary Judgment (Doc. 35), the Court will deem the facts presented in Brkovich's concise statement of material facts as admitted.


Summary judgment is appropriate when "there is no genuine issue as to any material fact... and the moving party is entitled to judgment as a matter of law." Melrose, Inc. v. Pittsburgh , 613 F.3d 380, 387 (3d Cir. 2010) (quoting Ruehl v. Viacom, Inc. , 500 F.3d 375, 380 n.6 (3d Cir. 2007)); see also Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986); FED. R. CIV. P. 56(a).[3] Issues of fact are genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986); see also McGreevy v. Stroup , 413 F.3d 359, 363 (3d Cir. 2005). Material facts are those that will affect the outcome of the trial under governing law. Anderson , 477 U.S. at 248. The Court's role is "not to weigh the evidence or to determine the truth of the matter, but only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the nonmoving party." Am. Eagle Outfitters v. Lyle & Scott Ltd. , 584 F.3d 575, 581 (3d Cir. 2009). "In making this determination, a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor.'" Farrell v. Planters Lifesavers Co. , 206 F.3d 271, 278 (3d Cir. 2000) (quoting Armbruster v. Unisys Corp. , 32 F.3d 768, 777 (3d Cir. 1994).

The moving party bears the initial responsibility of stating the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex , 477 U.S. at 323. If the moving party meets this burden, the party opposing summary judgment "may not rest upon the mere allegations or denials" of the pleading but "must set forth specific facts showing that there is a genuine issue for trial." Saldana v. Kmart Corp. , 260 F.3d 228, 232 (3d Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 n.11 (1986)). "For an issue to be genuine, the nonmovant needs to supply more than a scintilla of evidence in support of its position-there ...

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