United States District Court, W.D. Pennsylvania
ERIC BOYINGTON, on behalf of himself and all others similarly situated, Plaintiffs,
PERCHERON FIELD SERVICES, LLC, Defendant.
GIBSON, UNITED STATES DISTRICT JUDGE
before the Court is the Motion for Partial Summary Judgment
(ECF No. 193) filed by Plaintiff Eric Boyington
(“Boyington”), on behalf of himself and others
similarly situated. This Motion has been fully briefed by all
parties (see ECF Nos. 194, 195, 196, 197, 205, 206,
207, 208, 209, 210) and is ripe for disposition.
case is a hybrid collective/class action brought under the
Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§§ 201-19, and the Pennsylvania Minimum Wage Act
(“PMWA”), 43 Pa. Cons. Stat. §§
333.101-15. (ECF No. 1 ¶ 1.) Plaintiffs are current and
former Right of Way Agents (“ROW
Agents”) for Defendant Percheron Field Services,
LLC (“Percheron”). Plaintiffs allege that
Percheron improperly classified them as overtime-exempt
employees and, thus, seek backpay for non-payment of overtime
wages, liquidated damages, and reasonable attorneys' fees
and costs under the FLSA. (Id. ¶¶ 1, 75.)
their Motion for Partial Summary Judgment, Plaintiffs ask the
Court to enter judgment as a matter of law on two discrete
issues: (1) whether Defendant made a judicial admission that
Defendant misclassified the ROW Agents as overtime exempt
prior to December 31, 2014 and (2) whether the Second
Affirmative Defense asserted in Defendant's Amended
Answer must be dismissed under the law of the case doctrine.
For the reasons that follow, Plaintiffs' Motion for
Partial Summary Judgment is GRANTED IN PART
and DENIED IN PART.
Jurisdiction and Venue
Court has jurisdiction over Plaintiffs' FLSA claims under
28 U.S.C. § 1331 and supplemental jurisdiction over
their related state law claims under 28 U.S.C. §
1367(a). Because a substantial part of the events underlying
this case occurred in Altoona, Pennsylvania in the U.S.
District Court for the Western District of Pennsylvania,
venue is proper in this District pursuant to 28 U.S.C. §
present Motion for Partial Summary Judgment was filed on
October 14, 2016. (ECF No. 193.) Briefing concluded on this
Motion on November 28, 2016. (See ECF Nos. 194, 195,
196, 197, 205, 206, 207, 208, 209, 210.)
case has featured frequent and contentious disputes. Most
relevant to the present Motion, the Court denied
Defendant's Motion to Enforce Settlement Agreement (ECF
No. 64) by Memorandum Opinion and Order of June 14, 2015.
(ECF No. 96.) Shortly thereafter, on July 13, 2015, Defendant
filed its Motion for Reconsideration or, in the Alternative,
for Permission to File an Interlocutory Appeal (ECF No. 111),
which the Court denied by Memorandum Opinion and Order of
March 24, 2016. (ECF No. 141.)
Court granted Plaintiffs' Motion to Conditionally Certify
an FLSA Collective and to Facilitate Notice (ECF No. 45) by
Memorandum Opinion and Order of June 16, 2015. (ECF No. 97).
However, Plaintiffs' Motion for Class Certification (ECF
No. 224) filed on March 31, 2017- but not scheduled to be
fully briefed until November 15, 2017 (see ECF No.
249)-remains pending before the Court.
also filed two motions to strike (ECF Nos. 253, 254) on
October 16, 2017, asking the Court to strike numerous
declarations submitted by Plaintiffs in support of their
Motion for Class Certification. (ECF No. 224). These motions
to strike-the disposition of which could affect the
Court's ruling on Plaintiffs' Motion for Class
Certification (ECF No. 224)-await responsive briefing by
Plaintiffs and are not yet ripe for disposition.
Motion for Partial Summary Judgment and accompanying briefs
move for summary judgment on two matters. (See ECF
Nos. 193, 194, 208.) First, Plaintiffs ask the Court to hold
that, pursuant to the admissions of Defense Counsel, no
overtime exemptions apply to any of the ROW Agents subject to
this lawsuit for any overtime damages through December 31,
2014. (See ECF No. 194 at 1.) Second, Plaintiffs ask
the Court to dismiss the Second Affirmative Defense asserted
in Defendant's Amended Answer on the basis of the law of
the case doctrine. (See id.)
Court addresses each of these requests in turn.
Defense Counsel's Admission Regarding Overtime
first argue that Defendant “has unequivocally admitted
that no overtime exemptions apply to the opt-in
plaintiffs” because of a judicial admission made by
Defense Counsel. (Id. at 3.) At an oral argument
before the Court on July 13, 2016, Defense Counsel stated:
The defendant has waived its affirmative defenses associated
with the classification of these individuals as exempt during
the time period when they were paid on a day-rate basis.
That's originally what this case was about. These folks
were classified as exempt, but it was admitted that they were
not paid a fixed salary for all hours worked through the end
of 2014. And, as a result of that, Percheron acknowledges
that it is liable for misclassification prior to December
31st, 2014, leaving the key factual dispute for this whole
litigation to be the question of hours worked.
(ECF No. 196-1 at 11:8-17.) On the basis of this statement by
Defense Counsel, Plaintiffs ask this Court to “rule
that no overtime exemptions under the FLSA or PMWA apply to
any of the Percheron ROW Agents, either in the FLSA
collective action or in the proposed Rule 23 class, for any
of the time periods worked through December 31, 2014.”
(ECF No. 194 at 3.)
also specifically assert that this judicial admission by
Defense Counsel should apply to all potential Rule 23 class
members-not only to Boyington-because such potential Rule 23
class members must be similarly situated to Boyington, must
satisfy the typicality and other requirements of Rule 23, and
must necessarily have the same employment and pay
characteristics. (Id. at 4.) Lastly, Plaintiffs
argue that, if the Court grants summary judgment as to
Boyington, such a judgment would also apply to other ROW
Agents under the doctrine of issue preclusion. (ECF No. 208
Defense Counsel's Verbal Admissions Are Binding on
preliminary consideration, the Court must determine whether
the verbal admissions made by Defense Counsel at an oral