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Buglak v. Wells Fargo Bank, N.A.

United States District Court, E.D. Pennsylvania

July 21, 2017

ROBERT JOSEPH BUGLAK, JR. Individually and on behalf of other employees similarly situated, Plaintiffs,
v.
WELLS FARGO BANK, N.A., Defendant.

          MEMORANDUM

          Schiller, J.

         Robert Buglak and John Silano sold residential loans for Wells Fargo Bank. According to Buglak and Silano, Wells Fargo violated the Fair Labor Standards Act (“FLSA”) by failing to pay them overtime. Wells Fargo counters by claiming that Plaintiffs are exempt from the FLSA's overtime requirements under the “outside sales exemption.” Wells Fargo filed a motion for partial summary judgment on April 18, 2017. Plaintiffs filed their response 17 days past the deadline and Wells Fargo subsequently filed a motion to strike Plaintiff's untimely response. Because the Court finds that Buglak and Silano fall within the outside sales exemption, the Court will grant Wells Fargo's motion for partial summary judgment, and deny its motion to strike as moot.

         I. BACKGROUND

         Buglak and Silano worked as mortgage officers to sell residential loans in Wells Fargo's Bensalem, Pennsylvania office. (Def's Mot. Partial Summ. J. Ex. A, [hereinafter “Buglak Dep.”] at 19:9-12; id. Ex. B, [hereinafter “Silano Dep.”] at 63:6-10.) Buglak and Silano did not have fixed work schedules; for example, Buglak's schedule varied from week to week, and Silano was generally free to arrive at the office when he wished. (Buglak Dep. 84:8-23; Silano Dep. 93:3- 16.)

         Buglak consistently spent time outside of the office at open houses to meet with realtors and customers. (Buglak Dep. 118:3-9.) Throughout the course of his employment with Wells Fargo, he attended an average of three open houses per week, usually on Sundays, for an average of three hours total. (Buglak Dep. 118:3-9; 125:4-6.) The purpose of attending these open houses was to generate business. (Buglak Dep. 118:13-16.) Buglak would follow up one to three times per week with the realtors who he met at these open houses, and estimated that each meeting lasted between 25 minutes and three hours. (Buglak Dep. 120:2-22.) Buglak also attended an average of one closing per week, which occurred outside of the office, to ensure that problems did not arise with deals and to solicit business referrals. (Buglak Dep. 121:8-122:4; Def.'s Mot. Partial Summ. J. Ex. C, at ¶¶ 4-6.) Buglak also visited the homes of customers approximately five times per week to obtain loan documentation. (Buglak Dep. 173:3-21.)

         Silano also consistently spent time outside the office. He attended an average of three to four open houses each Sunday, with the hope of earning referrals from realtors. (Silano Dep. 190:8-17; 193:21-194:6.) He spent anywhere from fifteen minutes to an hour and a half at these events. (Silano Dep. 194:20-23.) Silano also attended approximately one closing per month, which typically took place at a realtor's, attorney's, or a title company's office. (Silano Dep. 191:8-24.) He also made “cold calls, ” during which he would show up at a realtor's office and try to establish a business relationship. (Silano Dep. 189:4-11; 194:24-195:7.) These occurred two to three times per week, and would last between one minute and an hour. (Silano Dep. 189:22-190:1; 195:20-196:5.)

         II. STANDARD OF REVIEW

         Summary judgment is appropriate when the record discloses no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party bears the burden of showing that the record reveals no genuine issue as to any material fact. See Fed. R. Civ. P. 56(a); Anderson, 477 U.S. at 247. Once this burden is met, the nonmoving party must go beyond the pleadings to set forth specific facts in the record showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). In reviewing the record, “a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor.” Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994). A court may not consider the credibility or weight of the evidence in deciding a motion for summary judgment. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000); Goodman v. Pa. Tpk. Comm'n, 293 F.3d 655, 665 (3d Cir. 2002).

         III. DISCUSSION

         A. Plaintiffs' Untimely Response to Wells Fargo's Motion for Partial Summary Judgment

         Plaintiffs' failure to file a timely response to Wells Fargo's motion for partial summary judgment “does not alter the traditional summary judgment standard, [but] it [does require] that the Court account for the lack of a response in its analysis.” Reynolds v. Rick's Mushroom Serv., Inc., 246 F.Supp.2d 449, 453 (E.D. Pa. 2003). “By failing to file a response within the time specified by the local rule, the nonmoving party waives the right to respond to or to controvert the facts asserted in the summary judgment motion.” Id. (quoting Reed v. Nellcor Puritan Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002)). That said, a party's failure to file a timely response in compliance with local rules, by itself, does not require summary judgment. Id.; Fed.R.Civ.P. 56(e)(3). A court must still determine whether the moving party's alleged facts warrant summary judgment. Reynolds, 246 F.Supp.2d at 453.

         Wells Fargo filed its summary judgment motion on April 18, 2017. Local rules require a non-moving party to respond to a summary judgment motion within fourteen days. E.D. Pa. Civ. R. 7.1(c). Plaintiffs responded on May 19, 2017, seventeen days late. Due to their non-compliance with local rules, the Court will not consider Plaintiffs' response.[1] Pursuant to Rule 56(e)(3), the court will consider all facts presented by Wells Fargo as undisputed in analyzing its motion for partial summary judgment.

         B. Wells Fargo's Motion for Partial Summary Judgment

         The FLSA requires increased compensation to employees for any time worked in excess of forty hours per week. 29 U.S.C. § 207(a)(1). However, “outside salesmen” are exempt from this requirement. 29 U.S.C. § 213(a)(1). ...


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