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Regan v. City of Charleston

United States District Court, D. South Carolina, Charleston Division

August 18, 2014

James Regan, Jesse Faircloth, Michael Pack, Thomas Haffey, Jacob Stafford, and Kyle Watkins, Each on Behalf of Himself and All Others Similarly Situated, Plaintiff,
v.
City of Charleston, South Carolina, Defendant

For James Regan, Jesse Faircloth, Michael Pack, Thomas Haffey, Jacob Stafford, Kyle Watkins, Each on behalf of himself and all others similarly situated, Plaintiffs: Ben LeClercq, William G DesChamps , IV, LEAD ATTORNEYS, LeClercq Law Firm, Mt Pleasant, SC; Carlos V Leach, PRO HAC VICE, Morgan and Morgan, Orlando, FL.

For Matthew Dunn, Each on Behalf of Himself and All Others Similarly Situated, Matt Klinker, Each on Behalf of Himself and All Others Similarly Situated, Michael Calabro, Each on Behalf of Himself and All Others Similarly Situated, Michael Hanuscin, Each on Behalf of Himself and All Others Similarly Situated, Michael Walker, Each on Behalf of Himself and All Others Similarly Situated, Milton Green, Nicholas Boyer, Pat Mulhern, Each on Behalf of Himself and All Others Similarly Situated, Paul Tumminia, Each on Behalf of Himself and All Others Similarly Situated, Pete Salvo, Each on Behalf of Himself and All Others Similarly Situated, RJ Evan, Each on Behalf of Himself and All Others Similarly Situated, Richard Worrell, Each on Behalf of Himself and All Others Similarly Situated, Ronald McGee, Each on Behalf of Himself and All Others Similarly Situated, Ryan Delk, Each on Behalf of Himself and All Others Similarly Situated, Ryan Malone, Each on Behalf of Himself and All Others Similarly Situated, Ryan Taylor, Sr, Each on Behalf of Himself and All Others Similarly Situated, Scott Mcwetly, Each on Behalf of Himself and All Others Similarly Situated, Sean Kilcoyne, Each on Behalf of Himself and All Others Similarly Situated, Shane Hayre, Each on Behalf of Himself and All Others Similarly Situated, Shawn Hayes, Each on Behalf of Himself and All Others Similarly Situated, Stephen Webb, Each on Behalf of Himself and All Others Similarly Situated, Steven White, Each on Behalf of Himself and All Others Similarly Situated, Timothy Goodwin, Each on Behalf of Himself and All Others Similarly Situated, Todd Delamielleure, Delamielleure, Travis Doverspike, Delamielleure, Travis Holseberg, Each on Behalf of Himself and All Others Similarly Situated, Trevor Miles, Each on Behalf of Himself and All Others Similarly Situated, Victor Fernandez, Each on Behalf of Himself and All Others Similarly Situated, William Bristow, Each on Behalf of Himself and All Others Similarly Situated, William Kilcoyne, Each on Behalf of Himself and All Others Similarly Situated, William R Glover, Each on Behalf of Himself and All Others Similarly Situated, William Towne, Each on Behalf of Himself and All Others Similarly Situated, Willie Day, Each on Behalf of Himself and All Others Similarly Situated, Galen Scougale, Glenn Baumuller, Grant Belleau, Herbert Scott, Hugo Marchand, James Dewitt, James Jacques, Jason Dunigan, Jason Jenkins, Jeffrey McGee, Jeremiah Jenkins, Jeremy Tipton, Joe Johnson, Joseph Hardin, Joseph Simmons, John Kilcoyne, John Mccambidge, John McHaffey, John Cooper, John Lemacks, Joshua Hamilton, Joshua Turner, Justin Kahle, Keith Peterson, Kenneth Jenkins, Kevin Pool, Kevin Carter, Kip Hibbard, Lawrence Rossi, Adam Suiter, Albert Graziani, Alexzander Glover, Alfonso Procopio, Alford Brewington, Andrew Crotty, Anthony Greene, Arthur Wittner, Aubrey Tillman, Bill Haigler, Bobby Wright, Brad Mizzell, Brian Champlin, Brent Allen Gunn, Bryan Bolick, Buck Newcomb, Christopher Zailski, Corey Godwin, David Glover, David Morris, David Ryan Hurst, Demetrius Frye, Derek Westfield, Devin Hodgman, Donovan Richardson, Dru Wolfe, Dwayne Felder, Emory Nix, Floyd Small, Sr, Frankie Delesline, Stacey Washington, Justin Perkey, Xavier Passement, Brian Mann, George Corrie, Kyle Weiss, Evan Kraack, Luke Diemunsch, John Steinert, Sean Rivers, Christopher Tennyson, Earl Dunlap, Franklin Lemacks, Matthew Jones, Michael Sullivan, Roachie Robinson, Evan English, Dewayne Jacques, John Tumminia, Frank Dabney, Joshua Delk, Zolt Szoke, Nathan Hawkins, John Hachett, Rufus Brown, Edward Henry, Kyle Minasian, Ryan Ward, Edward Mascaro, William Johnson, Plaintiffs: Ben LeClercq, LEAD ATTORNEY, William G DesChamps , IV, LeClercq Law Firm, Mt Pleasant, SC; Carlos V Leach, PRO HAC VICE, Morgan and Morgan, Orlando, FL.

For Glenn E Baldwin, Daniel Arthur, Scott Bailey, Plaintiffs: Ben LeClercq, LEAD ATTORNEY, William G DesChamps , IV, LeClercq Law Firm, Mt Pleasant, SC.

For Clint Yutzy, Davis Michael Benson, Jerome R Washington, Sr, Joseph W Johnston, Kevin Brophy, Laval Green, Matthew Gilbert, Michael Chandler, Robert Deal, Robert M Barrienau, Ronald Witt, Todd Herring, Ryan Hall, Michael Gorby, Demeial Seabrook, Joseph Rivers-Robinson, Terry Frank Hess, Phillip Holt, Brian Koster, John McClary, Bryan Markham, Buel Brown, Casey Sullivan, Dan Young, David Fleming, Gregg Hayre, Gregory Miller, Jason Evans, Jerry Lane Warren, John Cole, Kim Drayton, Kyle Best, Maynard Hunt Cain, Michael Barrett, Michael Savage, Nicholas Daymus, Nicholas Smith, Patrick Jones, Peter Russell Gessner, Robert Barrett, Robert Fulmer, Stephen Shuler, Thomas Tallent, Timothy Black, William Finley, Adam Mims, Brian Green, Brian Kropp, Clifton Schurlknight, Frankie Miles, Jake Jenkins, John McDonald, Joseph Adams, Lester Lasmarias, Marian Sanford, Matthew Fogliano, Randal Evans, Rob Tackett, Plaintiffs: Ben LeClercq, William G DesChamps , IV, LEAD ATTORNEYS, LeClercq Law Firm, Mt Pleasant, SC; Carlos V Leach, LEAD ATTORNEY, PRO HAC VICE, Morgan and Morgan, Orlando, FL.

For Charleston SC, City of, Defendant: Caroline Wrenn Cleveland, LEAD ATTORNEY, Caroline Wrenn Cleveland Law Office, Charleston, SC.

Page 699

ORDER

PATRICK MICHAEL DUFFY, United States District Judge.

This matter is before the Court on Plaintiffs James Regan, Jesse Faircloth, Michael Pack, Thomas Haffey, Jacob Stafford, and Kyle Watkins's (" Plaintiffs" ) Motion to Reconsider the Court's July 16, 2014 Order, ECF No. 76. In the July 16, 2014 Order (" Prior Order" ), the Court granted in part and denied in part Plaintiffs' Motion for Conditional Class Certification (" Motion for Conditional Certification" ) of a putative class pursuant to the collective action provision of the Fair Labor Standards Act (" FLSA" ), 29 U.S.C. § 216(b). Plaintiffs now move the Court to reconsider a single issue addressed in the Prior Order, namely, the denial of Plaintiffs' request that the

Page 700

City be required to produce email addresses for potential plaintiffs. For the reasons set forth herein, the Court denies Plaintiffs' Motion to Reconsider.

BACKGROUND

Plaintiffs, current or former firefighters with the City of Charleston's (" Defendant" or " the City" ) Fire Department, commenced this action on November 7, 2013, on behalf of themselves and others similarly situated, seeking unpaid overtime compensation pursuant to the FLSA. On February 7, 2014, Plaintiffs filed a Motion for Conditional Certification seeking to conditionally certify this matter as a collective action under the FLSA, as well as requesting permission to send notices to potential plaintiffs. In order to facilitate this notice, Plaintiffs requested that the City be ordered to produce " the names, addresses, telephone numbers, and email addresses of all members belonging to the putative Class and the subclasses." Pls.' Mot. for Conditional Certification 2, ECF No. 43 (emphasis added); see also id. at 21, 23 (repeating request for email addresses).

The City responded to the Motion for Conditional Certification on February 26, 2014, consenting in part to conditional certification, while also asserting specific objections to the proposed primary class and subclasses and to a number of the requested notice provisions and procedures. With regard to Plaintiffs' request for email addresses, the City initially stated that " Defendant represents that it does not have the requested email addresses." Def.'s Resp. to Pls.' Mot. for Conditional Certification 2, ECF No. 49. However, the City subsequently issued a more specific denial, asserting that it " does not maintain a record of the personal email addresses for its employees, and [that] it cannot produce what it does not have." Id. at 29 (emphasis added); see also id. at 30 (" Defendant does not have the personal email addresses." (emphasis added)). Plaintiffs filed their Reply on March 10, 2014. Notwithstanding the City's apparent interpretation of Plaintiffs' request as pertaining solely to " personal," or " private," email addresses, Plaintiffs did not address this issue in their Reply, instead electing to limit their Reply to only two points raised by the City in its Response.

Following a status conference on June 30, 2014, the Court issued the Prior Order, granting in part and denying in part Plaintiffs' Motion for Conditional Certification. In doing so, the Court ordered the City to serve upon Plaintiffs' counsel within ten days of entry of the Prior Order the names and addresses for all potential opt-in plaintiffs. However, the Court denied Plaintiffs' request for email addresses and telephone numbers of potential plaintiffs, reasoning that Plaintiffs had " provided no basis for their need" for this additional contact information.[1] Prior Order 12.

Plaintiffs timely filed the instant Motion to Reconsider on July 25, 2014, asking the Court to reassess its denial of Plaintiffs' request for email addresses to account for what it asserts is new evidence. On August 11, 2014, the City filed its Response, opposing the present Motion on various grounds and asking the Court to impose sanctions pursuant to Local Civil Rule 7.09,

Page 701

DSC. Plaintiffs' Motion to Reconsider and the City's request for sanctions are ripe for consideration.

STANDARD OF REVIEW

Plaintiffs filed the instant Motion to Reconsider pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. However, because the Prior Order was an interlocutory order,[2] Plaintiffs' Motion to Reconsider is more appropriately considered in the context of " the [C]ourt's inherent power to reconsider and revise any interlocutory order, as recognized by Rule 54(b)." Jensen v. Conrad, 570 F.Supp. 91, 103 (D.S.C. 1983); see Fed.R.Civ.P. 54(b) (" [A]ny order or other decision, however designated, that adjudicates fewer than all the claims . . . may be revised at any time before the entry of judgment adjudicating all the claims." ). Accordingly, the Court construes the present Motion as brought pursuant to Rule 54(b) of the Federal Rules of Civil Procedure.

" An interlocutory order is subject to reconsideration at any time prior to the entry of a final judgment." Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1469 (4th Cir. 1991); see Fed.R.Civ.P. 54(b). While the precise standard governing motions to reconsider an interlocutory order is unclear, the Fourth Circuit has stated that Rule 54(b) motions are " not subject to the strict standards applicable to motions for reconsideration of a final judgment." Am. Canoe Ass'n v. Murphy Farms, Inc., 326 F.3d 505, 514 (4th Cir. 2003); see also R.E. Goodson Constr. Co. v. Int'l Paper Co., CIV.A. 4:02-4184 RBH, 2006 WL 1677136, at *1 (D.S.C. June 14, 2006) (noting that the Fourth Circuit has offered little guidance as to the appropriate standard for evaluating Rule 54(b) motions other than admonishing district courts not to apply the standard for Rule 60(b) motions). Nevertheless, district courts in the Fourth Circuit generally look to Rule 59(e)'s standards for guidance. E.g., Joe Hand Promotions, Inc., 2012 WL 6210334, at *2; Ruffin v. Entm't of E. Panhandle, 3:11-CV-19, 2012 WL 1435674, at *3 (N.D.W.Va. Apr. 25, 2012). Therefore, a motion to reconsider an interlocutory order may be granted for the following reasons: " (1) to accommodate an intervening change in controlling law; (2) to account for new evidence not [previously] available . . . ; or (3) to correct a clear error of law

Page 702

or prevent manifest injustice." Pac. Ins. Co. v. Am. Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998). A motion for reconsideration is not, however, an opportunity to relitigate issues already ruled upon simply because a party is dissatisfied with the outcome. Joe Hand Promotions, 2012 WL 6210334, at *2 (citing R.E. Goodson Constr. Co, 2006 WL 1677136, at *1). Further, such a motion may not be used to raise arguments or introduce evidence that could have been addressed or presented previously. See Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5, 128 S.Ct. 2605, 171 L.Ed.2d 570 (2008); City of Charleston, S.C. v. Hotels.com, LP, 586 F.Supp.2d 538, 541 (D.S.C. 2008) (citing Pac. Ins. Co., 148 F.3d at 403).

DISCUSSION

I. Motion to Reconsider

Plaintiffs maintain that reconsideration of the Prior Order is warranted to account for new evidence previously unavailable and to prevent manifest injustice.[3] Specifically, Plaintiffs argue that because Plaintiffs' counsel's " recently discovered" that the City " created and does in fact maintain email accounts for the firefighters," Pls.' Mot. to Recons. 3, ECF No. 78, the Court should reconsider its Prior Order and require the City to produce the email addresses.[4] In support of their position, Plaintiffs principally rely on the affidavit of Plaintiff James Regan (" Regan Affidavit" ), the veracity of which the City vehemently disputes. For the reasons detailed below, the Court denies Plaintiffs' Motion to Reconsider.

As an initial matter, the Court notes that Plaintiffs' failure to address in their Reply the City's response to, and interpretation or characterization of, Plaintiffs' request as pertaining only to personal email addresses is a " strategic decision[] for which the Plaintiff[s] bear[] responsibility." Ingle ex rel. Estate of Ingle v. Yelton, 439 F.3d 191, 198 (4th Cir. 2006) (quoting Lostumbo v. Bethlehem Steel, Inc., 8 F.3d 569, 570 (7th Cir. 1993) (internal quotation marks omitted)); cf. City of Charleston, S.C., 586 F.Supp.2d at 541 (noting that a motion to reconsider " may not be used to initiate arguments or legal theories that the proponent had the ability to address prior to the judgment." (citing Pac. Ins. Co., 148 F.3d at 403)). Nevertheless, because Plaintiffs' primary contention is that reconsideration of the Prior Order is warranted to account for new evidence, the Court will entertain the present Motion to the extent such is the case. However, as detailed below, the Court finds that Plaintiffs have not carried their burden in this regard. Accordingly, the Court denies Plaintiffs' Motion to Reconsider.

Plaintiffs have failed to demonstrate that reconsideration of the Prior Order is warranted to account for new evidence. Although Plaintiffs contend that reconsideration is necessary in light of

Page 703

Plaintiffs' counsel's " recent[] discover[y]" that the City " created and does in fact maintain email accounts for the firefighters," Pls.' Mot. to Recons. 3, Plaintiffs have failed to establish that this evidence is in fact " new" or that it was previously unavailable. Indeed, the evidence before the Court supports the opposite conclusion.

While Plaintiffs offer the Regan Affidavit and other exhibits in support of their position that the City maintains employer-issued, or " work," email addresses for all current firefighters, this evidence is by no means new. In fact, the Regan Affidavit explicitly references and relies upon emails sent and received by Regan's work email address that predate even the filing of Plaintiffs' Complaint. As evidenced by the Fire Department's Code of Conduct, which Plaintiffs have appended to their Motion to Reconsider, Plaintiffs are required to check these work email accounts during each shift.[5] Therefore, to simultaneously acknowledge Plaintiffs' frequent and longstanding use of work email addresses while arguing that their existence amounts to new evidence strains credulity. Additionally, the City notes that at Regan's deposition, Plaintiffs' counsel produced at least twenty-eight pages of documents that contained work email addresses for firefighters employed by the City. Thus, it is clear that Plaintiffs and Plaintiffs' counsel were, or should have been, previously aware of the fact that the City maintained work email addresses for all firefighters. Therefore, because " [m]otions for reconsideration are inappropriate merely to introduce . . . new evidence that could have been adduced during the pendency of the prior motion," GTR Rental, LLC v. DalCanton, 547 F.Supp.2d 510, 516 (D.S.C. 2008) (citing Keene Corp. v. Int'l Fid. Ins. Co., 561 F.Supp. 656 (N.D.Ill. 1982)), the Court denies Plaintiffs' Motion to Reconsider.

II. Request for Sanctions

In its Response to Plaintiffs' Motion to Reconsider, the City asks the Court to exercise its authority under Local Civil Rule 7.09, DSC, to impose sanctions on Plaintiffs for filing what it asserts is a " frivolous motion." Def.'s Resp. to Pls.' Mot. to Recons. 14, ECF No. 84. Specifically, the City claims it is entitled to an award of attorney's fees and costs incurred in responding to Plaintiffs' Motion to Reconsider. The Local Civil Rules provide that " [w]here the Court finds that a motion is frivolous or filed for delay, sanctions may be imposed against the party or counsel filing such motion." Local Civil Rule 7.09, DSC. While the Court is vested with the " inherent power to control the judicial process and litigation, . . . the power is limited to that necessary to redress conduct 'which abuses the judicial process.'" Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 45-46, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991)). With this limitation in mind, the Court concludes that sanctions against Plaintiffs are not warranted at this time. Thus, after careful

Page 704

review and consideration, the Court denies the City's request for sanctions.

CONCLUSION

Therefore, for the foregoing reasons, it is ORDERED that Plaintiffs' Motion to Reconsider is DENIED. It is FURTHER ORDERED that Plaintiffs' request for sanctions is DENIED.

AND IT IS SO ORDERED.


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