Free Reply to Response to Motion - District Court of Federal Claims - federal

Case 1:05-cv-01043-VJW

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS NO: 05-1043C JORGE A. DELPIN APONTE, et al., v. UNITED STATES OF AMERICA

PLAINTIFF'S REPLY TO DEFFENDANTS OPPOSITION TO AMMEND COMPLAINT

BEFORE THE HONORABLE COURT:
1. Plaintiffs complaint, moved the Honorable to Court to amend case the all

essentially

incorporate

into

the

postal employees within the Unites States Postal Service who have been paid overtime at less than 1 ½ times the Regular Rate. Defendant opposed said request by motion This motion is plaintiffs

dated June 20, 2008 (Dkt. #106). reply to defendant's opposition.

2. Plaintiffs' motion to amend the complaint and the amended complaint delineate itself that the are US concise, Postal on point fails and to clearly pay its

Service

employees overtime at 1 ½ times the Regular Rate. motion and in the proposed amended complaint,

In said we also

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clearly

delineate

how

FLSA

demands

that

the

USPS

pay

overtime to its employees 1 ½ times the Regular Rate. 3. Quite frankly, there is nothing more to be said on this regards. We have Congress' unambiguously stated policy

through FLSA, and we have the complaint clearly stating that the USPS is not following the Law because it pays employees an amount of money which is less that 1 ½ times the Regular Rate. 4. We respectfully proposed that such a pleading is sufficient as a matter of law. Moreover, we also have the clear

record of Defendant's testimony admitting that it pays an amount less than the one mandate by applicable law. This

in itself deals with Defendant's unsupported claim that the proposed amended complaint and the motion to amend do not communicate which is the policy Defendant is breaching. 5. Defendant also state at page 9 of their motion that:

"Because the complaint does not identify what regulations have allegedly of the been violated and is it unclear is as to the to

nature

claims

asserted,

impossible

determine what facts would be required to establish such a claim or claims, or otherwise respond to the complaint." 6. Plaintiffs respectfully propose that all Defendant has to do is proof to the Court that it is paying overtime to

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postal

employees

at

1

½

times

the

Regular

Rate

in

accordance with FLSA.

If Defendant can proof that it has

paid and it is paying overtime to postal employees at 1 ½ times the Regular Rate as mandated by Congress, then the complaint is wrong and it will be dismissed. Otherwise,

plaintiffs and postal employees need to be compensated and are entitled to a injunctive relief as will be amply

discussed in plaintiffs' motion for summary judgment. 7. Thus, we respectfully propose, Defendant's opposition

attempts to deal with a matter which is subject for summary judgment or trial as the Court will opportunely decide. Meanwhile, the Second Amended Complaint is sufficient as a matter of law and provides sufficient, ample and adequate notice to Defendant. 8. We also note that the only significant difference between the Amended Complaint and the Second Amended Complaint is the inclusion of all postal employees within the Postal Service System who are victims of the intentional breach by Defendant. Our Amended Complaint did not stop Defendant

from filing and answer or for moving the Court for summary judgment; and it does not stop them from pleading likewise this time around. In this regards and as a matter of fact,

we note that this will be the only true amendment to the

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complaint, since the Amended Complaint was needed because of the transfer Defendant pleaded before the USDC Puerto Rico. 9. The arguments regarding the application of FRCP 23 are

noteworthy, and plaintiffs grant that the process before this Court and under FLSA differ somewhat from those under FRCP 23. Nevertheless, this does not mean that the

complaint cannot be amended to include all postal employees within the Postal Service System. 10. All arguments set forth by Defendant are directed at

what this Honorable Court can or cannot do when faced with a pleading the as that presented around in the captioned had no matter. problem

Again,

first

time

Defendant

whatsoever in answering the complaint. does. 11. Defendant's argument in itself

Now it allegedly

supports

plaintiffs'

contention, since it correctly shows that this Court has ample discretion to dictate the proceedings for inclusion and redress of these employees. Nonetheless, this does not

mean that the complaint is wrong, and it only means that, when appropriate, the parties will propose and the Court will decide how to handle this aspect of the litigation,

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since these employees are entitled to compensation--assuming plaintiffs prevail in their overtime claim. 12. For example, at page 4 Defendant pleads: "Furthermore,

courts sometimes use the terms collective action and class action interchangeably. See Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102 & n.3 (10th Rule use Cir. 23 2001) class similar

(distinguishing actions, but

collective noting that

actions courts In

from

often case

terminology

for

both)."

this

Defendant's

opposition is procedural in nature. 13. Another example within Defendant's motion is at page 5 "The Supreme Court has concluded that notice

as follows:

of an FLSA action is a matter squarely within the trial court's discretion, Hoffmann-La Roche, 493 U.S. at 171-74, and this Court in some instances has concluded that

providing notice is inappropriate. E.g., Briggs v. United States, 54 Fed. Cl. 205, 206-07 (2002) (rejecting

plaintiffs' request for notice by the Court, and stating that Hoffman-La to Roche "does not hold of that such a court is as

required

order

the

issuance

notices

plaintiffs request, nor does it raise such a presumption"); Adams v. United States, 21 Cl. Ct. 795, 797 (1990)

(rejecting request for notice by the Court, and noting that

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"there is no presumption that the court ought to facilitate expansion of the plaintiff group")." We agree that the

Court is not required to proceed in any specific matter, but, again, when appropriate the Court will be briefed on this aspect of this case and the Court will decide which mechanisms need to be follow in order to be fair with these thousands of employees the Postal Service has short-changed for many, many years. 14. These quotes support the contention or that, anything actions

dealing

with

class

certification

collective

proceedings are for later handling upon plaintiffs' request to the Court accordingly. If the pleading is faulty, then

Defendant can respond to the complaint stating it so, and we can then later correct the pleading when filing for

class or collective certification at the time appropriate for such request. 15. Alternatively, since it is clearly within the Court's how to proceed in matters like this, we

discretion

sincerely believe that this particular case warrants that the Court take control of the organization and notification of the existing claims to all postal employees. is simple: The issue

The Postal Service does not pay overtime at 1 ½ The notice process is another story,

the Regular Rate.

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since we are talking about the past and the future overtime pay of hundreds cannot of be by thousands abandoned the Postal of employees. since which and they for These were many

individuals already years

again, Service

abandoned has

intentionally,

willingly

improperly

shortchanged them of their lawful overtime pay. WHERETOFORE, plaintiffs request that this Honorable Court authorizes the Second Amended Complaint.

Respectfully submitted, S/ Santiago F. Lampón

SANTIAGO F. LAMPÓN LAMPÓN & ASSOCIATES PO BOX 363641 SAN JUAN, PR 00936-3641 Tel: (787) 273-6767 Fax: (787) 758-3679 Attorney for Plaintiffs June 26, 2008 CERTIFICATE OF SERVICE I hereby certify that on this same date, a copy of the foregoing motion has been filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system. S/ Santiago F. Lampón