Free Motion to Strike - District Court of Federal Claims - federal

Case 1:05-cv-01043-VJW

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________________________________ ) ) JORGE A. DELPIN-APONTE, et al., ) ) Plaintiffs, ) ) No. 05-1043C v. ) (Judge Wolski) ) THE UNITED STATES, ) ) Defendant. ) ____________________________________)

DEFENDANT'S MOTION TO STRIKE PLAINTIFFS' MOTION FOR LEAVE TO AMEND AND DEFENDANT'S MOTION FOR TELECONFERENCE Pursuant to Rule 7 of the Rules of this Court ("RCFC"), defendant, the United States, respectfully requests that the Court strike plaintiffs' motion for leave to amend its complaint. Plaintiffs' motion for leave to amend is facially deficient because it fails to "state with particularity the grounds" for the motion and fails to provide the Government a meaningful basis upon which to respond to the motion. See RCFC 7(b). Thus, the Court should strike plaintiffs' motion. In addition, the Government requests that the Court hold a teleconference to discuss plaintiffs' pending motions and to set an appropriate schedule for further summary judgment proceedings. ARGUMENT I. Plaintiffs' Motion Fails To State With Particularity The Grounds For The Motion Rule 7(b) of the Rules of this Court requires that any motion "state with particularity the grounds" for the motion. RCFC 7(b). "The purpose of the particularity requirement in Rule 7 is to afford notice of the grounds and prayer of the motion to both the court and to the opposing party, providing that party with a meaningful opportunity to respond and the court with enough

Case 1:05-cv-01043-VJW

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information to process the motion correctly." Registration Control Sys., Inc. v. Compusystems, Inc., 922 F.2d 805, 807 (Fed. Cir. 1990) (discussing the analogous FRCP 7(b)). Plaintiffs' motion does not comply with RCFC 7(b) because plaintiffs have failed to state with particularity the grounds for the motion in a way that would provide the Government a meaningful opportunity to respond. Plaintiffs fail to address the criteria for a motion for leave to amend the complaint, including RCFC 15 and any precedent addressing amending the complaint. Furthermore, even when plaintiffs vaguely suggest the nature of the proposed amendment ­ as opposed to the basis for seeking leave to amend ­ the motion and the proposed amended complaint do not allow for a meaningful response. For example, plaintiffs' motion indicates that plaintiffs now believe that the United States Postal Service ("USPS") "is not paying overtime in accordance with its own regulations." Pl. Mot. at 1. However, plaintiffs' amended complaint does not cite any USPS regulations. The only regulation cited in the proposed amended complaint is a Department of Labor regulation, 29 C.F.R. § 778.109. Section 778.109 provides, in part, "The regular hourly rate of pay of an employee is determined by dividing his total remuneration for employment (except statutory exclusions) in any workweek by the total number of hours actually worked by him in that workweek for which such compensation was paid." 29 C.F.R. § 778.109. Plaintiffs' reference to this regulation could suggest that plaintiffs are alleging that USPS miscalculated the regular rate. In fact, paragraph 14 of the proposed amended complaint reinforces this suggestion by contending that the regular rate is calculated by total remuneration "divided by the total number of hours actually worked during a Basic Workweek," which plaintiff defines as 40 hours of work per week. Prop. Amend. Cmpl. ¶ 9, 14 (emphasis added).

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Thus, plaintiffs proposed amended complaint contends that the regular rate is calculated based upon total remuneration for all hours of work, divided by 40 hours of work, regardless of the number of hours worked. This is contrary to the express language of the regulation and Supreme Court precedent. See 29 C.F.R. § 778.109 (stating that the denominator in calculating the regular rate is "the total number of hours actually worked by him in that workweek") (emphasis added); Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 580 (1942) (noting that "[w]age divided by hours equals regular rate. Time and a half regular rate for hours employed beyond statutory maximum equals compensation for overtime hours."). Given plaintiffs' prior lack of disagreement as to the manner of calculating the regular rate, it is possible that plaintiffs' proposed amended complaint merely reflects an error by plaintiffs' counsel. However, if that is the case, then it is unclear what plaintiffs mean in their motion when they refer to USPS's alleged violation of "its own regulations." Pl. Mot. at 1. Plaintiffs' motion for leave to amend suggests that one of the primary purposes of amending the complaint is to "describe[] the basis of the violation," Pl. Mot. at 2, but the motion and the amended complaint do not make plaintiffs' claims any clearer. For example, plaintiffs seek leave to amend the complaint to vaguely expand the class to "all postal employees within the Postal Service who have worked overtime and have not had their overtime compensation

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computed at at least 1 ½ times the Regular Rate." Prop. Amend. Cmpl. ¶ 19.1 If plaintiffs are seeking to amend the complaint to include a proposed nationwide class of USPS employees, then it is unclear how the claims in paragraphs 11 through 14 of the complaint regarding Territorial Cost of Living Adjustment ("TCOLA") relate to the vast majority of USPS employees who are not eligible for TCOLA. It is unclear from plaintiffs' motion and plaintiffs' proposed amended complaint whether plaintiffs' claims relate to TCOLA, to other premiums aside from TCOLA (and if so, which ones), or perhaps to the calculation of the regular rate. Because of plaintiffs' failure to state with particularity the grounds for amending the complaint, particularly in light of their failure to clearly state the nature of their claims, the Government cannot meaningfully respond to plaintiffs' motion for leave to amend. For these reasons, the Court should strike plaintiffs' motion pursuant to RCFC 7(b) .2 II. The Court Should Hold A Teleconference To Discuss The Pending Motions And An Appropriate Schedule For Further Proceedings In light of plaintiffs' pending motions, and in light of the current posture of this case, in which almost one year has passed since the Court permitted plaintiffs to take limited discovery

In their motion for leave to amend, plaintiffs apparently now seek national certification of a class "to include all postal employees within the Postal Service system" pursuant to RCFC 23. Pl. Mot. at 2. Plaintiffs fail to acknowledge, however, that their motion to certify a Rule 23 class of Puerto Rico USPS employees is still pending before this Court, and that plaintiffs failed to reply to the Government's demonstration that certification of a class is not appropriate even for this more limited class because, among other reasons, class actions are unavailable for claims pursuant to the Fair Labor Standards Act ("FLSA"). See Def. Resp. to Pl. Mot. to Cert., Sept. 17, 2007. Multi-party FLSA suits may instead be brought as "collective actions" governed by 29 U.S.C. § 216(b), which has provisions that are distinct from class actions brought pursuant to Rule 23 of the Federal Rules of Civil Procedure or RCFC 23. See id. at 3-7. In the event that the Court denies this motion to strike, the Government respectfully requests that the Court provide ten days from the date of the order within which the Government may file a response to plaintiffs' motion for leave to amend. -42

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pursuant to RCFC 56(f), the Government respectfully requests a teleconference with plaintiffs and the Court to discuss the pending motions and to set an appropriate schedule for further summary judgment proceedings.

Respectfully submitted, GREGORY G. KATSAS Acting Assistant Attorney General JEANNE E. DAVIDSON Director /s/ Mark A. Melnick MARK A. MELNICK Assistant Director OF COUNSEL: DANIEL GARRY Attorney Law Department United States Postal Service 475 L'Enfant Plaza, SW Washington, D.C. 20260 /s/ Michael Dierberg MICHAEL DIERBERG Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Class. Unit, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Attorneys for defendant

May 8, 2008

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