Free Memorandum in Opposition to Motion - District Court of Connecticut - Connecticut

Case 3:03-cv-01011-AWT

Document 66

Filed 05/20/2005

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT NICHOLAS CAGGIANIELLO, NEIL CIVIL ACTION NO. 3:03CV1011(AWT) HOWARD and THOMAS FALCO, on behalf of themselves and all other similarly situated employees of FSG Privatair, Inc. Plaintiffs, vs. FSG PRIVATAIR, INC., and in their individual and official capacities DAVID C. HURLEY, HUGH F. REGAN, THOMAS H. MILLER and THOMAS L. CONNELLY Defendants. MEMORANDUM OF LAW IN OPPOSITION TO MOTION FOR PROTECTIVE ORDER AND SANCTIONS Pursuant to rule 26(c) of the Federal Rules of Civil Procedure, plaintiffs in the submit this memorandum of law in opposition to the defendant's motion for protective order and sanctions. I. BACKGROUND May 20, 2005

The plaintiffs bring three claims against the defendants under §7(a) of the FLSA. The defendants claim they are not subject to the FLSA based on their alleged status as a common air carrier subject to Title II of the Railway Labor Act. Whether or not the operations of the defendants are those of a common air carrier and therefore exempt from the FLSA, as set forth in 29 U.S.C. §213(b)(3), is a question of fact determined by weighing several factors concerned with the extent to which the defendants offer the public commercial transportation for hire.

Case 3:03-cv-01011-AWT

Document 66

Filed 05/20/2005

Page 2 of 4

Per order of the court, discovery is currently limited to that addressing subject matter jurisdiction and whether or not the plaintiffs' former employer was a common air carrier for a certain period. On June 18, 2004 the court heard argument on the plaintiffs' motion to compel responses to interrogatories propounded by the plaintiffs. On March 9, 2005, the court issued a detailed ruling on the plaintiffs' motion to compel granting, modifying and denying certain of plaintiffs' discovery requests. The March 9, 2005 ruling ordered defendants to produce a summary of flight trips logged from July 1, 2000 through July 1, 2003 for each aircraft identified in interrogatories 8 and 9. On March 21, 2005 the defendants issued supplemental responses to the plaintiffs discovery request in partial compliance with Judge Martinez's March 9, 2005 order. In the cover letter transmitting the supplemental discovery compliance attorney Russell Sweeting indicated that his client was "unable to provide a trip sheet for each flight identified in interrogatories numbered 8 and 9". Attorney Sweeting further stated that his client "will seek a modification of judge Martinez's order if the parties cannot agree to narrow this demand because thousands of flights have generated tens of thousands of pages of trip sheet information from July 2000 to July 2003." Plaintiff's counsel, attorney Kaiser, responded to attorney Sweeting's March 21, 2005 correspondence and partial compliance by requesting full compliance with the court's order by letter dated March 24, 2005. Additional correspondence was exchanged between the parties addressing disagreement over whether the defendants had fully complied with Judge Martinez's order, including that concerning production of the flight trip sheet information set forth in interrogatories 8 and 9.

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Case 3:03-cv-01011-AWT

Document 66

Filed 05/20/2005

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II.

ARGUMENT The issue claimed is moot. Despite additional communication between counsel

indicating that the Plaintiffs have not filed a Motion to Compel, have not sought intervention of or from the Court, and despite the Plaintiffs lack of propounding additional discovery, Defendants persist in seeking a Motion for Protective Order. Despite communicating this to defendants, they have, as of 2:00 p.m. on this date refused to withdraw the motion for protective order and motion for sanctions thereby compelling this response from Plaintiffs. III. CONCLUSION For the reason succinctly stated above, the motion for protective order and sanctions should be denied. Respectfully submitted, THE PLAINTIFFS

BY:

______________________________ James T. Baldwin, Esq. (ct08535) COLES, BALDWIN & CRAFT, LLC. 1261 Post Road, P.O. Box 577 Fairfield, CT 06824 Tel. (203) 319-0800 Fax (203) 319-1210

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Case 3:03-cv-01011-AWT

Document 66

Filed 05/20/2005

Page 4 of 4

CERTIFICATION This is to certify that a copy of this Objection to Defendants' Motion to Exempt from Answering Complaint was sent by first class mail on February 27, 2004 to the following counsel of record: Joseph C. Maya, Esq. Maya & Associates, P.C 183 Sherman Street Fairfield, CT 06824 Russell J. Sweeting, Esq. Maya & Associates, P.C. 183 Sherman Street Richard J. Diviney, Esq. 65 Jesup Road PO Box 390 Westport, CT 06881-0390

______________________________ James T. Baldwin, Esq. Fairfield, CT 06824

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