WILKS v. BOYS

ALETA TRAUGER, District Judge

Pending before the court is Defendant's Motion to Strike Exhibits Attached to Dkt. #362 (Docket No. 371), to which the plaintiff has responded (Docket No. 398). For the reasons discussed herein, the defendant's motion will be granted in part and denied in part.

ANALYSIS

The defendant has moved to strike a number of the many exhibits attached to Plaintiffs' Response to Defendant's Motion Challenging Collective Treatment of Plaintiffs' Claims (Docket No. 362) ("Response"). The court will address each category of contested exhibits in turn.

I. The declarations filed in support of the plaintiffs' Response, as well as those originally submitted in earlier filings and later resubmitted, will not be stricken based on the defendant's contention that the plaintiffs submitted them after failing to disclose the declarants' identity during discovery.

The defendant has moved to strike seventeen of the plaintiffs' declarations because the plaintiffs submitted the declarations without disclosing the declarants' identity during discovery. ( See Docket No. 372 at 2.) Rule 37(c)(1) provides that "[a] party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed." Fed.R.Civ.P. 37(c)(1).

The defendant claims that it was harmed by the plaintiffs' failure to disclose this information because it "never had the opportunity to depose these individuals or seek further information from them to test the specious allegations that they now raise for the first time in their respective declarations." ( See Docket No. 360 at 4 (referred to in Docket No. 372 at 3).)

In response to the defendant's motion to strike these declarations, the plaintiffs argue that the submission of the declarations without prior disclosure of the declarants' identity was not prejudicial. ( See Docket No. 398 at 4.) In support of their claims that these declarations should be allowed into evidence, they note that they offered eight of the declarations into evidence as part of their motion for conditional certification for notice purposes. ( See Docket No. 11 (including, among others, the statements of declarants Carol Fulginiti, Charles Godfrey, Lisa Hess, Richard Martinez, La Donna McCoy, Patrick Reeners, Steven Robyn, and Rosann Wilks).) Accordingly, they argue, the defendant was "clearly on notice that [the plaintiffs] may rely on these individuals to oppose any effort to decertify the conditionally certified class." ( See Docket No. 398 at 4.)

The plaintiffs also emphasize that five additional declarations were submitted by active plaintiffs in this case, who have responded to the defendant's discovery requests and whom the defendant reserved the right to depose. ( See Docket No. 388-2 at 2; Docket No. 398 at 4 n. 4 (referring to plaintiffs Earl Caesar, David Jerome, Anthony Underdown, Kim Balderas, and Todd Stuve).) As such, they claim, the defendant knew of the existence of these plaintiffs and was on notice that they may be called on to support their own case. ( See Docket No. 398 at 4.)

Finally, the plaintiffs argue that the remaining four declarations should be allowed into evidence because Terrance Burget was, in fact, deposed by the defendant, Conrad Domantay was identified in the plaintiffs' Rule 26(a)(1) disclosures (although his last name was misspelled), and Paul Shanahan and Mario Villegas testified in a related case. ( See Docket No. 398 at 5.) The court will address these latter two declarations below. See infra, p. 9. The court finds that any failure by the plaintiffs to disclose the identity of the other fifteen declarants was harmless and that the declarations should remain in evidence. See Fed.R.Civ.P. 37(c)(1) (indicating that evidence about which a party has failed to make the requisite disclosures still may be used if "such failure is harmless"); Fed.R.Civ.P. 37 advisory committee notes (noting the intent of the rules to provide an exception that avoids "unduly harsh penalties").

The defendant also uses Rule 37(c)(1) to target some additional declarations that originally were submitted as attachments to Plaintiffs' Memorandum of Law in Opposition to Defendant's Motion for Partial Summary Judgment and in Support of Plaintiffs' Cross Motion for Summary Judgment (Docket No. 339). ( See Docket No. 372 at 3; Docket No. 360 at 1.) The plaintiffs' responses as to these declarations mirror their assertions above. They argue that they disclosed the identity of a number of the declarants in their 26(a) initial disclosures, although the defendant points out that these names were buried among approximately 4,370 others ( see Docket No. 360 at 4), that the defendant actually deposed two declarants, and that the remaining few are flat-rate plaintiffs who were the subject of the motion for summary judgment regarding whether they were exempt from FLSA requirements and that the defendant thus knew of their existence. ( See Docket No. 388 at 2.) The court finds that, as with the declarations discussed above, any failure by the plaintiffs to disclose the identity of these declarants was harmless and, as such, the declarations should remain in evidence.

II. The court finds no merit to the defendant's arguments that certain plaintiffs' declarations should be stricken because they are conclusory, speculative, untimely, and contradicted by direct evidence.

The defendant claims that some of the declarations attached to the plaintiffs' Response contain statements about its purported national policy to deprive them of overtime that qualify as nothing more than "mere speculation" and "bare conclusory assertions." ( See Docket No. 372 at 7.) As indicated in the court's contemporaneously issued Memorandum, the court has found that the plaintiffs have presented sufficient evidence of this national policy to allow them to survive the defendant's motion to decertify their class. Accordingly, it finds this argument by the defendant to be without merit.

The defendant also asserts that at least six of these declarations "provide almost no objective evidence that any of the alleged events even occurred in the time period covered by this litigation." ( See Docket No. 372 at 9.) The plaintiffs argue that the declarations are, in fact, timely, because each of them "includes a statement that the policies the declarant encountered were consistent throughout the time the declarants worked at Pep Boys." ( See Docket No. 398 at 14.) Even if the declarations pertain, in part, to a time frame outside the scope of this case, such would go to the weight afforded them, rather than to their admissibility. The declarations will not be stricken on these grounds.

Finally, the defendant claims that many of the plaintiffs' newly submitted statements are contradicted by direct evidence, including the plaintiffs' own admissions made later in the case, and are therefore inadmissible. See First Bank of Marietta v. Hartford Underwriters Ins. Co., No. 98-4284, 1999 WL 1021852, at *4 (6th Cir. Nov. 3, 1999) ("If an affidavit is . . . inconsistent with a party's prior discovery responses, the affidavit is inadmissible and should not be considered. . . .").

In asserting that the plaintiffs' statements about the defendant's no-overtime policy are later contradicted, the defendant relies on the plaintiffs' statements that they were scheduled to work 40 hours each week, as well as evidence that the plaintiffs did receive some overtime pay. ( See Docket No. 372 at 6.) Neither of these assertions, however, demonstrates any contradiction of the plaintiffs' earlier statements. While the plaintiffs admit that they were scheduled to work 40 hours a week, they claim that they often worked additional hours in unscheduled time. ( See Docket No. 362 at 1.) Additionally, evidence that the plaintiffs received some overtime pay is not proof that they received all of the overtime pay that they had earned.

In addition to its general contentions that the plaintiffs' statements have since been contradicted by other evidence, the defendant specifically targets the statements of Joel Liebskind and Art Lopez. It claims that both declarants purportedly make "material misrepresentations" as to whether their time was shaved. ( See Docket No. 372 at 11.) Specifically, the defendant contends that the declarants' time records reveal that time was actually added to, rather than deducted from, their payroll records. ( See id.) The plaintiffs respond that these statements should not be stricken because the time records actually do reveal that time was shaved. ( See Docket No. 398 at 10.) Because it is not apparent that any of the declarations contested by the defendant on these grounds are inconsistent with the plaintiffs' prior discovery responses, they will remain in evidence.

The defendant also asserts that eight of the declarations attached to the plaintiffs' Response should be stricken because the plaintiffs fail to cite to them in their pleadings. ( See Docket No. 372 at 3-4.) While this is true, the defendant engaged in much the same behavior. ( See, e.g., Docket No. 327 (indicating that the defendant did not cite to the depositions of James Benja or Sharleen McQueen, nor to the Response to the Defendant's Interrogatories of Carleen Mowrey, despite listing these items as exhibits ( see Docket No. 328-1)).) The court notes that the defendant has cited no precedent to support its assertion and finds that the eight declarations targeted by the defendant on these grounds should not be stricken on these grounds.

III. The court will not strike nine of the plaintiffs' declarations based on the defendant's contention that it was precluded from taking discovery from the declarants and that the declarations were not based on the declarant's personal knowledge.

The defendant contends that nine statements previously submitted by the plaintiffs in support of their Motion for Expedited Court-Supervised Notice to Prospective Class Members Pursuant to 29 U.S.C. Section 216(b) ( see Docket No. 10 (Plaintiffs' Motion); Docket No. 11 (Plaintiffs' Memorandum)) and then resubmitted as part of the plaintiffs' Response should be stricken because "after these individual declarants' claims were dismissed from this litigation, Pep Boys was precluded from taking any discovery from them regarding the allegations made in these declarations." ( See Docket No. 372 at 13.) This court ruled in January 2005 that the defendant could not take the depositions of any plaintiffs whose claims were dismissed due to their failure to respond to interrogatories. ( See id. at 14; see also Docket No. 398 at 15 (indicating that the plaintiffs do not refute the defendant's contention that the court made this ruling).) As such, the defendant argues, it will be prejudiced by the use of the statements made by these declarants, particularly given that the one dismissed plaintiff whom it did depose allegedly repudiated the statements made in his declaration. ( See Docket No. 372 at 15.)

The plaintiffs respond that the defendant will not be prejudiced by the use of these statements because they were previously entered into evidence and are consistent with the deposition testimony and declarations of other plaintiffs in this case. ( See Docket No. 398 at 15.) They emphasize that they did not "rely solely upon these previously admitted declarations, but reference them because they show the consistency with which Pep Boys implemented the policies, procedures and practices that form the basis of this case." ( See id.) The defendant cites no case law supporting its argument that these earlier-submitted declarations should now be stricken, and the court does not find its arguments to be persuasive.

The defendant also claims that these same declarations, as well as some declarations previously submitted by the plaintiffs, contain statements that are not based on the personal knowledge of the declarants. ( See Docket No. 372 at 14; Docket No. 360 at 9-10.) Such an argument is not convincing. Judge Echols addressed — and dismissed — this same contention in Clark v. Dollar General, No. 3:00-0729, 2001 WL 878887, at *1 (M.D. Tenn. May 23, 2001), when he denied a defendant's motion to strike similar statements made by FLSA plaintiffs. In doing so, he found that "to the extent that the declarants described practices that occurred in their stores, that evidence is based on personal knowledge arising from the declarants' performance of the duties of their positions." See id. Accordingly, the court finds the defendant's arguments on this point to be unpersuasive.

IV. While some of the statements the defendant labels as "rife with hearsay" are, in fact, admissible, others will be stricken.

The defendant labels as impermissible hearsay a number of declarations submitted by the plaintiffs, including some that were the subject of the defendant's earlier motion to strike, ( see Docket No. 360 at 11), some that the plaintiffs submitted, for the first time, with their Response, ( see Docket No. 372 at 7-9), and some that were previously submitted by non-plaintiffs in another state court action ( see Docket No. 372 at 18).

A. The declarations of plaintiffs in this case will be admitted only to the extent that they contain statements made by identified speakers.

The defendant claims that many of the declarations submitted by the plaintiffs in this case contain statements that qualify as hearsay and are, therefore, inadmissible. It also asserts that some of these statements lack foundation because they were made by unnamed declarants. ( See Docket No. 372 at 9.) As such, it argues, it has been unable to probe the testimony of these unidentified speakers, and their statements should be stricken. ( See id.)

The defendant has not listed each statement that it seems to contest, but rather provides the court with a sort of sampling. ( See Docket No. 372 at 8-9; Docket No. 360 at 11.) The plaintiffs have offered a number of theories as to why these statements are, in fact, admissible. ( See Docket No. 398 at 11-13.)

The court finds that, to the extent that the statements made by named declarants are offered to prove the truth of the matter asserted, they qualify as admissions of a party opponent and are admissible as non-hearsay. See Fed.R.Evid. 801(d)(2)(D). The court, however, also finds persuasive the defendant's complaints about the statements made by unidentified speakers. See Clark, 2001 WL 878887, at *1 (excluding statements made by unidentified managers where the defendant had not had the opportunity to cross examine them). Accordingly, the portion of the plaintiffs' declarations that refer to statements made by nameless declarants will be stricken. The court did not rely on any of these statements when ruling on the defendant's Motion Challenging Collective Treatment of Plaintiffs' Claims (Docket No. 324 at 1) or on the parties' motions for partial summary judgment (Docket No. 303 at 1; Docket No. 339 at 7).

B. The statements gleaned from previous court proceedings are inadmissible hearsay.

The defendant has moved to strike the declarations of two former Pep Boys managers, who are not parties to this case, that were filed in a previous court proceeding and submitted by the plaintiffs as attachments to their Response. ( See Docket No. 372 at 18.) The plaintiffs defend the admission of these declarations on the grounds that the managers' statements qualify as admissions of a party opponent. See Fed.R.Evid. 801(d)(2)(D). A cursory review of the two declarations in question, however, reveals that neither manager was employed by the defendant at the time he made his in-court statement. ( See Docket No. 363-35; Docket No. 363-31.) Accordingly, this exception does not apply. Because the court finds that no other hearsay exclusions or exceptions can be appropriately applied here, these statements will be stricken.

These declarations were filed "in support of class certification" in Dubrow v. Pep Boys, No. 00-CC-30942 (Cal.Super.Ct. Aug. 30, 2002).

V. The "Budgeted Payroll Packet" (Docket No. 363-59) will not be stricken.

The defendant claims that the exhibit that is labeled as "Pep Boys Staffing and Scheduling" is inadmissible because it is not properly authenticated, as the plaintiffs have provided no information "regarding, among other things, its author, its purpose, its intended audience, or even what the contents of the document purportedly describes or depicts." ( See Docket No. 372 at 16.) The defendant claims that it has presented evidence that this document comes from the 1994-1996 time period. ( See id. at 17.)

The plaintiffs oppose the defendant's arguments as to authenticity by pointing out that the defendant itself produced the document. ( See Docket No. 398 at 16.) Additionally, they assert that they cited to this document as proof that managers earned bigger bonuses by controlling their labor costs and staying within authorized employee work hours. ( See Docket No. 362 at 22.) The plaintiffs claim that they have sufficiently authenticated the document and that any question as to its time frame goes to its weight, rather than its admissibility. ( See Docket No. 398 at 17.)

Neither party has indicated to which discovery request the defendant was responding when it produced this document.

Because the document appears to be a slide show about the importance of controlling labor costs, ( see Docket No. 363-59), it is a fair inference that it was, as the plaintiffs claim, presented to the defendant's employees for training purposes at some point in time ( see Docket No. 398 at 16). The defendant has not contested this assertion. Given this and the fact that the defendant itself produced the very document it now challenges, the court will not strike this exhibit. See Lewis v. Horace Mann Ins. Co., 410 F. Supp. 2d 640, 648 (N.D. Ohio 2005) (labeling as "utterly spurious and devoid of merit" a defendant's contention that documents it produced during discovery were unauthentic). When this document was used goes to its weight, not its admissibility. Even if it was not used during the relevant time period, the defendant, no doubt, employed managers during the relevant time period who had earlier been exposed to this training.

VI. The declaration of Keith Nickerson (Docket No. 363-25) will not be stricken.

Finally, the defendant argues that the plaintiffs' exhibit containing the declaration of Litigation Director Keith Nickerson, which explains a report purporting to demonstrate the defendant's failure to "maintain and produce full and complete time cards and pay roll information" should be stricken because the plaintiffs apparently forgot to include the report underlying Nickerson's assertion. ( See Docket No. 372 at 17 (referring to Docket No. 363-25).) The defendant finds support for this assertion in Logan v. Denny's, Inc., 259 F.3d 558, 570 (6th Cir. 2001) (disregarding affidavits in a summary judgment motion when a party failed to attach the documents underlying them).

The plaintiffs cite this failure as a "minor oversight" that the defendant is "magnifying . . . to the point of absurdity" and point out that the report was already in the court's possession as part of their Memorandum of Law in Opposition to Defendant's Motion for Partial Summary Judgment and in Support of Plaintiffs' Cross Motion for Summary Judgment . ( See Docket No. 398 at 17-18 (potentially referring to Docket No. 343-4, which appears to be the report at issue here).) They also note that their mention of Mr. Nickerson's declaration in Docket No. 362 referenced only his declaration, not the substance of the underlying report and that, therefore, while "the summary report ideally should have been attached to Mr. Nickerson's affidavit," such was not required. ( See id. at 18.) The court finds the plaintiffs' arguments to be persuasive and denies the defendant's motion to strike this declaration.

CONCLUSION

For the reasons discussed above, the Defendant's Motion to Strike Exhibits Attached to Dkt. #362 (Docket No. 371) will be granted in part and denied in part.

An appropriate order will enter.