Does Res Judicata apply when an flsa claim is filed, and then a retaliation flsa claim is filed independent of the original claim

FLSA RETALIATION AND RES JUDICATA ISSUE RESOLVED AT 11TH CIRCUIT

Brief Filed With 11th Circuit – Disposition is pending.

STATEMENT OF THE ISSUES

I. THE JUNE 1, 2010 ORDER BY MAGISTRATE JUDGE GREGORY J. KELLY WHICH GRANTED DEFENDANT/APPELLEE’S MOTION FOR SUMMARY JUDGMENT UNDER THE DOCTRINE OF RES JUDICATA. THE ORDER FAILS TO OBSERVE THAT PLAINTIFFS/APPELLANTS’ CLAIM OF FLSA RETALIATION IS STILL VIABLE GIVEN THIS COURT’S RULING IN Pleming v. Universal- Rundle Corp., 142 F.3d 1354 (11th Cir. 1998).

STATEMENT OF THE CASE

On February 5, 2009, Plaintiffs/Appellants Leonard Moore, Jason Evers, and Christopher Lungrin, hereinafter referred to as (“Plaintiffs”) filed suit against Defendant/Appellee Sei Pak, hereinafter referred to as (“Pak”), as well as Appliance Direct, Inc., in the United States District Court, Middle District of Florida (Retaliation Case Dkt. #1). Plaintiffs sued Pak and Appliance Direct for retaliation under the Fair Labor Standards Act (“FLSA”).
The main retaliatory actions perpetuated against Plaintiffs include the fact that each Plaintiff was not awarded a position by Defendants as a contractor driver dRes Judicata, flsa retaliationue to their involvement in an FLSA overtime lawsuit against the same Defendants in an earlier lawsuit before the United States District Court for the Middle District of Florida (Case No.: 6:08-cv-317-19DAB), as well as Defendants actively preventing their “subcontractors” from hiring any of the Plaintiffs. Further, it was during the time of the initial FLSA overtime lawsuit that Defendants began to change the employment status of their delivery truck drivers from company employees to contracted drivers.
Over the course of the proceedings in the Overtime Case, mediation was held with United States Magistrate Judge David A. Baker. During the mediation, the parties explored resolving all of Plaintiffs’ claims, present and future.
Defendants filed their Motion for Summary Judgment on January 11, 2010 (Retaliation Case, Dkt. #29). Plaintiffs timely filed their Response in Opposition to Defendants’ Motion for Summary Judgment on February 1, 2010 (Retaliation Case, Dkt. #32). While awaiting Magistrate Judge Kelly’s ruling on Defendants’ Motion, the Judge Ordered that both parties provide supplemental memoranda answering seven (7) questions that the Court had posed related to Defendants’ Motion for Summary Judgment (Retaliation Case, Dkt. #47). Complying with Judge Kelly’s Order, counsel for Defendants filed their Supplemental Memorandum in Support of Summary Judgment on April 26, 2010 (Retaliation Case, Dkt. #57). After reviewing Defendants legal arguments contained within their supplemental memorandum, Plaintiffs submitted their own Supplemental Response Memorandum in Opposition to Summary Judgment on April 30, 2010 (Retaliation Case, Dkt. #59). On June 1, 2010, Judge Kelly released his Order granting Defendant’s Motion for Summary Judgment based on improperly relying upon the doctrine of res judicata (Retaliation Case, Dkt. #60). Given Judge Kelly’s Order, the Clerk for the Middle District of Florida entered judgment in favor of Defendants on June 2, 2010 (Retaliation Case, Dkt. #61). Lastly, a Suggestion of Bankruptcy was filed with respect to Defendant Appliance Direct, Inc., on June 7,
2010 (Retaliation Case, Dkt. #62).
STATEMENT OF THE FACTS
Plaintiffs initially began their dispute with Defendants Appliance Direct, Inc., and Sei Pak on March 4, 2008 when they filed a collective action complaint alleging violations of the overtime provisions of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et. seq.
It is Plaintiffs’ assertion that, after their FLSA overtime case had been settled, but prior to an entry of judgment, Defendants began retaliating against the Plaintiffs by not offering them a realistic opportunity to enter into independent contractor agreements with Defendants in order to conduct delivery services. Other delivery truck drivers, who were not been named plaintiffs in the FLSA overtime lawsuit, were offered independent contractor agreements and routes; however, Plaintiffs were not afforded the same opportunities to be considered for those same agreements and/or routes. On February 5, 2009, the Plaintiffs filed an one-count federal complaint alleging FLSA retaliation , pursuant to the FLSA, 29 U.S.C. § 215(a)(3).
After Plaintiffs were denied the contractor delivery driver status by Defendant Sei Pak, their employment with the company was terminated on or about March 24, 2009.

SUMMARY OF THE ARGUMENT
The doctrine of res judicata has been fully briefed by this Court in its analysis of Pleming v. Universal Rundle Corporation, 142 F.3d 1354 (11th Cir. 1998). Contained within said analysis, this Court reasoned that “the parties frame the scope of ligation at the time the complaint is filed.” Pleming, at 1357.
Given the fact that Plaintiffs faced retaliation for being involved in the FLSA overtime lawsuit after the initial complaint for that proceeding was filed, Magistrate Judge Kelly’s June 1, 2010 Order is misguided. Under Fed. R. Civ. P. 15(d), a plaintiff cannot be punished for exercising his or her option not to supplement their complaint. Such is the case here in this present appeal, as Plaintiffs exercised that option and decided it best to file a separate lawsuit alleging retaliation under the FLSA.
Magistrate Judge Kelly’s June 1, 2010 Order granting Defendant’s Motion for Summary Judgment based upon the doctrine of res judicata does not follow this Court’s analysis found in the Pleming case. Therefore, the Order should be vacated and the case be remanded back to the District Court for further proceedings.

ARGUMENT
II. MAGISTRATE JUDGE GREGORY J. KELLY’S JUNE 1, 2010 ORDER FAILS TO OBSERVE THAT PLAINTIFFS/APPELLANTS’ CLAIM OF FLSA RETALIATION IS STILL VIABLE GIVEN THIS COURT’S RULING IN Pleming v. Universal- Rundle Corp., 142 F.3d 1354 (11th Cir. 1998).

Magistrate Judge Gregory J. Kelly’s June 1, 2010 Order (Retaliation Case, Dkt. #60) mistakenly granted Defendant/Appellee’s Motion for Summary Judgment on the basis that the doctrine of res judicata bars Plaintiffs/Appellants’ claims of retaliation under the Fair Labor Standards Act (“FLSA”). In his analysis, Magistrate Judge Kelly seems to believe that since Plaintiffs/ Appellants were aware of their claims of retaliation during the pendency of their initial FLSA overtime proceeding that the doctrine of res judicata precludes Plaintiffs/Appellants’ subsequent lawsuit.
Plaintiffs/ Appellants were involved in a collective action against Defendants Appliance Direct, Inc., and Sei Pak, for violations of the overtime provisions contained within the FLSA. The complaint for this initial lawsuit, referred to by Magistrate Judge as the “Overtime Case,” was filed on March 4, 2008 (See Moore, et. al. v. Appliance Direct, Inc., et. al., Case No.: 6:08-cv-317-Orl-19DAB).
The Overtime Case proceeded as normal, with full discovery being conducted as to the allegations of unpaid overtime wages. Although a mandated settlement conference was held before Magistrate Judge David A. Baker on November 21, 2008, no settlement could be reached. However, on December 8, 2008, counsel for Plaintiffs filed their Status Report with the District Court as to the progress of the Overtime Case’s settlement (Overtime Case, Dkt. # 41). As notated by Magistrate Judge Kelly in his June 1, 2010 Order, Plaintiffs, for the first time over the course of the Overtime Case’s proceedings, made mention of Defendants’ retaliatory actions against Plaintiffs. The exact phrasing of the disclosure is as follows:
“Defendant agreed to pay calculated overtime and offer Plaintiffs the opportunity to become subcontractors for Defendant, an opportunity previously not granted to Plaintiffs because Plaintiffs were named on a lawsuit against Defendant[s].”
Plaintiffs’ Status Report (Overtime Case, Dkt. #41 at 1).
Prior to this point in the proceedings, Plaintiffs had made no mention of the fact that Plaintiffs were experiencing retaliation by Defendant for their named involvement in the FLSA overtime lawsuit. Despite each party filing their own Status Report, no settlement was reached until Defendants served an Offer of Judgment on each of the Plaintiffs on December 12, 2008 (Overtime Case, Dkt. # 44-1, 45-1, 46-1). For their own personal reasons, each of the named Plaintiffs accepted their respective Offers of Judgment to resolve only their overtime claims (Overtime Case, Dkt. # 49-53). Subsequent to a fairness hearing held by Magistrate Judge David A. Baker, judgment was entered into the Plaintiffs favor by the Clerk of the District Court (Overtime Case, Dkt. #70).
Despite not pleading otherwise, over the course of the proceedings for the Plaintiffs’ Overtime Case, Plaintiffs became aware of the fact that their involvement in the FLSA lawsuit led to their denial of an opportunity to be awarded independent contract delivery drivers for Defendant. In fact, Defendants’ retaliatory actions against Plaintiffs did not even commence until after Plaintiffs filed their FLSA overtime complaint with the District Court on March 4, 2008. In his June 1, 2010 Order, Magistrate Judge Kelly erroneously reasons that because Plaintiffs were aware of their claim for retaliation during the pendency of the Overtime Case, that Plaintiffs’ claims of FLSA retaliation are barred due to res judicata. However, this Court has thoroughly addressed the issue of res judicata in its decision under Pleming v. Universal-Rundle Corporation, 142 F.3d 1354 (11th Cir. 1998). Applying the same standards set forward by this Court in Pleming, Magistrate Judge Kelly’s June 1, 2010 Order must be vacated and remanded back to the District Court for further proceedings.
Res judicata, otherwise referred to as claim preclusion, “bars a subsequent claim when a court of competent jurisdiction entered a final judgment on the merits of the same cause of action in a prior lawsuit between the same parties.” Id., at 1356 (citing I.A. Durbin, Inc. v. Jefferson National Bank, 793 F.2d 1541, 1549 (11th Cir. 1986)). However, the Pleming Court reiterated the fact that Federal Rule of Civil Procedure 15(d), which has authority over supplemental pleadings, makes supplementing a pleading optional. Therefore, a plaintiff cannot be punished under res judicata for exercising his or her option not to supplement their pleadings to include an after-acquired claim. Id., at 1357 (see Manning v. City of Auburn, 953 F.2d 1355, 1360 (11th Cir. 1992).
Such is the case in the instant appeal. In his Order, Magistrate Judge Kelly seems to punish Plaintiffs for choosing not to amend their claims, and instead, file a separate lawsuit alleging FLSA retaliation. Courts have long held that “the parties frame the scope of litigation at the time the complaint is filed.” Pleming, at 1357. Therefore, Plaintiffs/ Appellants claims at the time of their initial lawsuit involved violations of the FLSA’s overtime provisions exclusively, not any potential claims of retaliation. Given the explicitly-stated Fed. R. Civ. P 15(d), Plaintiffs/ Appellants inaction in this regard does warrant a preclusion of their claims under the doctrine of res judicata.
In a recent case also held before this Court, it was asserted that “the preclusion of claims that ‘could have been brought’ does not include claims that arose after the original complaint was filed in the prior action, unless the plaintiff actually asserted the claim in an amended pleading, but res judicata does not bar the claim simply because the plaintiff elected not to amend his complaint.” Sherrod v. The School Board of Palm Beach County, et. al., 272 Fed. Appx. 828, 829-830 (11th Cir. 2008). Such reasoning only provides further support that Magistrate Judge Kelly wrongly applied the doctrine of res judicata to the instant appeal.
Lastly, in the last page of his June 1, 2010 Order, Magistrate Judge Kelly seems to also make the argument that Plaintiffs claims should be barred given the fact that Plaintiffs raised the FLSA retaliation as an issue during the Overtime Case when they disclosed the issue in their Status Report (see Dkt. #60, pg. 20). This statement towards the conclusion of the Overtime Case’s proceedings cannot be construed as an actual assertion of the Plaintiff’s FLSA retaliation claim. It was simply an attempt by Plaintiff s and Defendant to resolve all issues.
In Coon v. Georgia Pacific Corporation, 829 F.2d 1563 (11th Cir. 1987), this Court reasoned that a district court was not improper in refusing to consider a plaintiff’s unpled claims, even though those same claims had been included in her brief and discovery requests (emphasis added). Here in the instant appeal, Plaintiffs only made mention to the retaliation each had been faced with one time in the Plaintiffs’ Mediation Status Report as part of mediation. This utterance, as part of the mediation conducted by Magistrate Judge Baker, in no way conforms to the Federal Rules of Civil Procedure regarding amending claims and cannot be conveyed as such. Following the reasoning held by the Coon Court, the panel present in Pleming found that while a litigant may otherwise assert a claim without filing a supplemental pleading, those other means must follow in line with the rules of procedure, which for example, would be an amendment through Fed. R. Civ. P. 15(b) or 16(e). Pleming, at 1358. Plaintiff’s mentioning of retaliation in their Mediation Status Report does not qualify under either of these examples, and as such, cannot qualify as an actual assertion of their FLSA retaliation claim.
Moreover, because the Status Report required by the District Court was a status of the mediation results conducted by Magistrate Judge Baker, such Status Report is privileged under the rules governing mediation. See Federal Rules of Evidence 408 and 501.

CONCLUSION
In summation, Magistrate Judge Kelly erred in granting Defendants’ Motion for Summary Judgment through his June 1, 2010 Order. Taking this Court’s reasoning in Pleming v. Universal-Rundle Corporation, 142 F.3d 1354 (11th Cir. 1998) into account, Magistrate Judge Kelly mistakenly interprets the doctrine of res judicata as precluding Plaintiffs’ claims. Plaintiff respectfully requests that the June 1, 2010 Order granting Defendants’ Motion for Summary Judgment be vacated and that this action be remanded to the District Court for further proceedings.

Respectfully Submitted,

_________________________
Maurice Arcadier, Esquire
Attorney for Appellant

CERTIFICATE OF COMPLIANCE
I certify that the foregoing complies with the type-volume Fed. R. App. P. 32(a)(7)(B). This brief contains 3,017 words.

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the original and six (6) copies of the foregoing has been furnished by Federal Express and electronic format to the Clerk of the United States Court of Appeals for the Eleventh Circuit, 56 Forsyth Street, N.W., Atlanta, Georgia 30303; and that a true and correct copy of the foregoing has been furnished by Federal Express to Appellee, c/o Christopher J. Coleman, Esquire, Schillinger & Coleman, P.A., 1311 Bedford Drive, Melbourne, Florida 32940, this 26th day of July, 2010.

ARCADIER & ASSOCIATES, P.A.

_____________________________
Maurice Arcadier, Esquire
Florida Bar No. 131180
Attorney for Appellant/Plaintiff
2815 W. New Haven, Suite 304
Melbourne, Florida 32904
Phone: (321) 953-5998
Fax: (321) 953-6075
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Attorney:
Maurice Arcadier
Status:
Pending
Date Filed:
2012

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