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Sims v. Event Operations Group Inc.

United States District Court, N.D. Alabama, Southern Division

March 21, 2019

EVENT OPERATIONS GROUP, INC., et al., Defendants.



         Plaintiff Michelle Lee Sims (“Sims” or “Plaintiff”) brought this action on September 1, 2017, against Defendants Event Operations Group, Inc. (“EOG”) and Mike Jones (“Jones, ” and together with EOG, “Defendants”), alleging Defendants violated the Fair Labor Standards Act (“FLSA”) by failing to pay her overtime compensation. (Doc. 1). Sims has since amended her complaint, and her second amended complaint, (doc. 15) is the operative pleading. Sims now moves for partial summary judgment. (Doc. 24).[2] Defendants oppose the motion in part. (Doc. 28). Sims has filed a reply in support. (Doc. 32). Sims has also moved to strike evidentiary material Defendants have submitted in opposition in the motion for summary judgment, (doc. 30), and Defendants oppose that motion to strike, (doc. 33). For the reasons stated below, the motion to strike is DENIED and the motion for summary judgment is GRANTED.

         I. Standard of Review

         Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” “Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 447 U.S. 317, 322 (1986). The moving party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving party, who is required to “go beyond the pleadings” to establish that there is a “genuine issue for trial.” Id. at 324. (citation and internal quotation marks omitted). A dispute about a material fact is 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).

         The Court must construe the evidence and all reasonable inferences arising from it in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 255 (all justifiable inferences must be drawn in the non-moving party's favor). Any factual disputes will be resolved in Plaintiffs favor when sufficient competent evidence supports Plaintiffs version of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 1276-78 (11th Cir. 2002) (a court is not required to resolve disputes in the non-moving party's favor when that party's version of the events is supported by insufficient evidence). However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald Mtn. Park, Ltd. v. Oliver, 836 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere ‘scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).

         II. Evidentiary Objection

         As noted above, Sims has moved to strike nearly identical declarations by Jones or, failing that, what she alleges are inadmissible portions of those declarations. (Doc. 30).

         With the December 1, 2010 rules change to Rule 56 of the Federal Rules of Civil Procedure, motions to strike submitted on summary judgment are no longer appropriate. Revised Rule 56(c)(2) provides that “[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” The Advisory Committee Notes specify as follows:

Subdivision (c)(2) provides that a party may object that material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence. The objection functions much as an objection at trial, adjusted for the pretrial setting. The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated. There is no need to make a separate motion to strike. If the case goes to trial, failure to challenge admissibility at the summary-judgment stage does not forfeit the right to challenge admissibility at trial.

Fed. R. Civ. P. 56, Adv. Comm. Notes, “Subdivision (c)” (2010 Amendments). “Before this amendment, parties properly challenged evidence used in a summary judgment motion by filing a motion to strike. The plain meaning of these provisions show that objecting to the admissibility of evidence supporting a summary judgment motion is now a part of summary judgment procedure, rather than a separate motion to be handled preliminarily.” Campbell v. Shinseki, 546 Fed.Appx. 874, 879 (11th Cir. 2013).

         A. Declarations in General

         The two declarations Sims objects to are identical apart from their signature blocks. (Compare doc. 28 at 11-14 with doc. 29). Both declarations are attributed to “Mike Jones, in my capacity as CEO of Event Operations Group, Inc., and in my proper person herein.” (Doc. 28 at 14; doc. 29 at 4). The first was submitted along with Defendants' response to Sims' motion for summary judgment on September 10, 2018 (one day before Defendants' response deadline, (see doc. 27)); it is dated the same day. (Doc. 28 at 11-14). Instead of a signature, the declaration states it was “reviewed and approved by Declarant with signature to follow.” (Id. at 14). True to that representation, the second declaration, submitted separately on September 24, 2018 and dated the same day, contains a signature. (Doc. 29 at 4).

         Sims argues the unexecuted declaration submitted timely with Defendants' motion for summary judgment is technically defective because it fails to include a statement that it was made under penalty of perjury. (Doc. 30 at 3-4). She then contends the executed declaration is procedurally defective because it fails to comply with the requirement in the undersigned's Initial Order requiring evidentiary materials to be filed along with briefs, (see doc. 18 at 6). Regardless of any technical defect in the original affidavit, based on Defendants' representations Jones was unavailable to sign the declaration when their brief was due, (doc. 33 at 1-2), the undersigned will excuse Defendants' noncompliance with the Initial Order and will consider the substantively identical executed declaration (the “Jones Declaration”) timely filed.[3]

         B. Inadmissible Portions of the Jones Declaration

         Sims points to three paragraphs in the Jones Declaration she says contain inadmissible evidence: paragraphs 5, 11, and 13. (Doc. 30 at 5-6). In relevant part, these paragraphs state:

5. In my capacity as CEO of EOG I would not have had, and did not have, knowledge of payroll miscalculations relating to Ms. Sims or of her self-scheduling of company scheduling of her hours and events. EOG has company policies in place to handle payroll calculations and employee scheduling and to prevent payroll miscalculations and occasions of self-scheduling. If the policies in place were not being followed then that would be the only possible way that payroll miscalculations and mis[-]scheduling could and would occur. In my view as CEO, the company and its executive leadership and its owners did what was supposed to have been done. Paid employees who chose to bypass policies leading to errant payroll calculations and errant scheduling would have been the cause of such, not the owners of EOG and not the entity EOG. It is my strong belief and position that there was no neglect on the part of the owners or on behalf of the company because that is simply not the case.
[. . .]
11. As CEO of EOG, and in my individual capacity, I state to the Court that any failure of EOG to pay overtime (time and one-half) amounts to Ms. Sims for the overtime hours alleged to having been worked by her was the product of and attributable to company policies having not been followed which in no way occurred . . . at the direction of the ownership and executive leadership of EOG. No. purposeful ...

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