Free Proposed Pretrial Order - District Court of Colorado - Colorado

Case 1:03-cv-02485-MSK-PAC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CIVIL ACTION NO. 03-MK-2485 CAMILLE MELONAKIS-KURZ, INDIVIDUALLY AND ON BEHALF OF OTHER SIMILARLY SITUATED EMPLOYEES, AND OTHER INDIVIDUALS WHO HAVE CONSENTED TO JOIN THIS ACTION, Plaintiff, v. HEARTLAND HOME FINANCE, INC., Defendant. FINAL PRETRIAL ORDER

1. DATE AND APPEARANCES The parties appeared before this Court on February 10, 2006 at 10:25 a.m. Plaintiffs were represented by Donald H. Nichols, Paul J. Lukas and Michele R. Fisher, of Nichols Kaster & Anderson, PLLP, 4600 IDS Center, 80 South 8th Street, Minneapolis, MN 55402. Defendant was represented by David J. Carr and Steven F. Pockrass of Ice Miller LLP, Suite 3100, Indianapolis, IN 46282-0200. 2. JURISDICTION Plaintiffs bring this overtime case under the Federal Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (the "FLSA"). This Court has jurisdiction pursuant to 28 U.S.C. § 1331. 3. CLAIMS AND DEFENSES Plaintiffs are 956 loan officers who worked for Defendant Heartland Home Finance ("Defendant") at its approximately 67 branch offices in 31 states. Plaintiffs have brought this action under the FLSA to recover overtime pay Defendant denied them for a three year statutory period, plus liquidated damages and attorneys' fees and costs. Plaintiffs maintain that this case should not be decertified for trial and will address this issue in their Memorandum in Opposition to Defendant's Motion for Decertification. 1

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Defendant asserts that the named Plaintiff, Camille Melonakis-Kurz, was exempt from overtime under the Fair Labor Standards Act ("FLSA"), and that even if she was not exempt, she did not work overtime, and Defendant did not suffer or permit her to work overtime. Defendant did not willfully violate the FLSA, and Plaintiff's claims for liquidated damages are barred because Defendant acted in good faith and on reasonable grounds. Plaintiff's claims also are barred by the equitable doctrines of accord and satisfaction, waiver, estoppel and laches. Defendant asserts that those individuals who claim to be similarly situated to MelonakisKurz. Are not entitled to any overtime compensation and that there is no similarly situated class. Plaintiff is exempt from overtime consideration under the ("FLSA") under the administrative exemption, as well as the exemption for commissioned salespeople engaged in retail sales. Moreover, Defendant has had in place a policy prohibiting managers from employing loan officers such as Plaintiff in excess of 40 hours per week. Thus, even if overtime occurred, it was the result of rogue management and requires individualized analysis of each loan officer's situation. As a result, class issues do not predominate, and this case should not be certified as a collective action for any purpose. Defendant possesses multiple offices which are run in largely autonomous fashion, sometimes with more than one branch manager per location supervising autonomous teams within the branch, and again, individual issues would predominate over collective issues. Further, venue is not proper for other potential plaintiffs because they have by contract agreed to litigate disputes in the states in which they were employed. Defendant acted in good faith, and consistent with the FLSA; thus no claim exists for liquidated damages or attorney fees. Recent prior Department of Labor (DOL) investigations resulted in correction of some deficiencies, but those were addressed at that time and DOL did not see a basis for pursuing the types of claims now asserted by Plaintiff. 4. STIPULATIONS Melonakis-Kurz worked for Defendant's Aurora, Colorado, branch office as a loan officer, commencing on approximately March 24, 2003, and concluding with her resignation on August 14, 2003. Throughout Melonakis-Kurz's employment with Defendant, the Branch Manager for Defendant's Aurora, Colorado office, was Josh Nielsen-Mayer. 5. PENDING MOTIONS On January 26, 2006, Plaintiffs brought a motion for partial summary judgment that is currently pending. On January 31, 2006, Defendant brought a motion for decertification that is currently pending. Depending on the Court's ruling on these significant motions, the evidence presented at trial may be substantially decreased.

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6. WITNESSES a. List the nonexpert witnesses to be called by each party. List separately: (1) witnesses who will be present at trial (see Fed. R. Civ. P. 26(a)(3)(A)); Plaintiff's Witnesses: Name Camille Melonakis-Kurz Jeff Horton Testimony Will testify to among other things, job duties as a loan officer and overtime hours. Will testify to among other things, job duties as a loan officer, overtime hours, and falsification of timesheets. Will provide testimony about Heartland's overtime policies and practices and investigations into wage and hour practices. Will provide testimony about Heartland's overtime policies and practices and investigations into wage and hour practices. Will provide testimony about Heartland's payroll system and procedures.

Donald Flynn

Thomas Beck

Rachelle Schuster Ott

Plaintiffs reserve the right to supplement this list and to call witnesses listed by Defendant. Defendant's Witnesses Name Camille Melonakis-Kurz Josh Nielsen-Mayer Testimony Will testify regarding the allegations in her Complaint. Will testify regarding the job duties of a loan officer and other positions in the Aurora branch, the operations of the Aurora office, and his interactions with and observations of Plaintiff. Will provide testimony about Heartland's operations, policies, practices and procedures. Will provide testimony about Heartland's operations, policies, practices and procedures. Will provide testimony about Heartland's payroll and human resources operations, policies, practices and procedures.

Donald Flynn Thomas Beck Rachelle Ott

Defendant reserves the right to supplement this list and to call witnesses listed by Plaintiff. (2) witnesses who may be present at trial if the need arises (see Fed. R. Civ. P. 26(a)(3)(A)); and 3

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Defendant's Witnesses Name Andrew Brantingham Jay Dunsing Marty Pieczynski Testimony Will testify regarding Plaintiff's alleged damages and the calculation of those damages. Will testify regarding Heartland's operations, policies, practices and procedures. Will testify regarding his job duties, observations and communications as a regional manager over multiple branches, including the Aurora branch. Will testify regarding the issue of willfulness. Will testify regarding the issue of willfulness. Will testify regarding the issue of willfulness. Will testify regarding the issue of willfulness. Will testify regarding the issue of willfulness.

Bob Janda Rodney Drew Al Sanford Eric Jarold Megan Bradley

Defendant also may call other individuals worked as loan officers for Defendant in Aurora, Colorado, during the same time period as Melonakis Kurz to discuss their job duties, experiences, communications and observations. The names of such individuals are: Patrick Masterson Robert Tyrell Rita Novey Anne Chapman Michael Sapp Peter Walseth Lisa Adams Olivia Poulsen Eric Zelt Bryan Pilosi Bayln Bates Daniel Harrison Curt Clegg Kimberly Caswell Adam Bard Ed Benko Ryan Lubitz Jason Harris Chad Roberson Defendant reserves the right to supplement these lists and to call witnesses listed by Plaintiff. Plaintiffs object to Defendant calling the following witnesses because Defendant failed to disclose these individuals in response to Plaintiffs' discovery requests and are for the first time disclosing them when the parties are getting ready for trial: Megan Bradley, Patrick Masterson, 4

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Robert Tyrell, Rita Nove, Anne Chapman, Michael Sapp, Peter Walseth, Lisa Adams, Olivia Poulsen, Eric Zelt, Bryan Pilosi, Bayln Bates, Daniel Harrison, Curt Clegg, Kimberly Caswell, Adam Bard, Ed Benko, Ryan Lubitz, Jason Harris, Chad Roberson. (3) witnesses where testimony is expected to be presented by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony. See Fed. R. Civ. P. 26(a)(3)(B).

Plaintiffs will present the video taped depositions of the following: Name Agostini, Roy Alawan, Scott Benson, John (manager) (rough draft) Berman, Howard Bias, Brian Block, Kevin (manager) Clark, Michael Cousino, Ryan Dary, Matthew Donahoo, Lisa DiBlasi, Tony Fleck, Sharon Flynn, Patrick (manager) Gaddis, Antonio Gleason, Shauna Gunn, Terence Heath, Dan (manager) Hines, Michael Howard, Anthony Janda, Robert (manager) Jarold, Eric (manager) Johnson, Phillip Kopronica, Daniel Kirkland, Edward (manager) Lambros, Alex Miles, Daryl Modell, Connie Notaro, Holly (manager) Provost, Adam Pusey, Jacqueline (manager) Reynolds, Bradly (manager) Roddy, Nirit Transcript Pages (Video depos) 10-11, 33-36, 86-89, 91, 130-32 20-21, 31-33, 39-42 4, 10, 14-15 9-13, 63-64, 140-42 35-36 13, 27 27-29, 38-40, 64-65 9-13, 15-16, 26-29 10-11, 41-42, 68 79-81, 84-86, 104 39-40, 47-48 20-23 6-8, 13 8-12 15-16, 22-23, 30-31, 36-39, 48, 135-36, 145-46, 155-58 8-11, 13, 18-19, 37-42, 46-47 6-7, 27 107 38-43, 52-53 6, 25-26, 42-43 5-6, 8-9, 10-15, 26-28 7-9, 34-35, 37-39, 83-85 6, 8-11, 58-59 8, 23-25, 27, 32, 103-04, 112-13 10-12, 16-18, 79-85 7-12, 31-32, 46, 48-49 7, 20-21 5-6, 9-12, 17, 26 13-18, 53-58 5, 12-19, 24-25, 30-31 16-17, 37-41, 64-65, 68-69, 102-03 11-14, 34-42, 44-46, 50-53, 69-70 5

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Rodriguez, Louis Schwiderson, Jamie Westbeld, James (manager) Ziemack, Paul

26-28, 40-42 31-32, 64-67, 72 6, 10 10-13, 87

Plaintiffs reserve the right to supplement this list and to call witnesses listed by Defendant. For all persons listed above by Plaintiffs, Defendant reserves the right to use any portion of the deposition and/or to call that person as a witness at trial. In addition, Defendant reserves the right to use any portion of the deposition of any other person deposed in this matter. b. List the expert witnesses to be called by each party. List separately: (1) witnesses who will be present at trial (see Fed. R. Civ. P. 26(a)(3)(A));

Plaintiffs will present Dr. David Jones at trial. He will testify as to Plaintiffs' damages and his method for computing those damages. Dr. Jones will rely upon payroll information and dates of employment provided by Defendant, and Declarations from the opt-in Plaintiffs of their overtime hours worked, in making his calculations. Defendant believes that Plaintiff's damage claims involve simple mathematical calculations and that expert testimony is not necessary or appropriate. Defendant intends to present Tom Beck to testify regarding the damages alleged by Plaintiff, but has not yet decided whether to designate Mr. Beck as an expert. (2) witnesses who may be present at trial (see Fed. R. Civ. P. 26(a)(3)(A)); and

(3) witnesses where testimony is expected to be presented by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony. See Fed. R. Civ. P. 26(a)(3)(B). [With each witness' name, set forth (1) the witness' address and telephone number if not previously disclosed, (2) a short statement as to the nature and purpose of the witness' testimony, and (3) whether he or she is expected to testify in person or by deposition.] 7. EXHIBITS [a. List the exhibits to be offered by each party and identify those to be stipulated into evidence. This list should be specific enough so that other parties and the court can understand, merely by referring to the list, each separate exhibit which will be offered. General references such as "all deposition exhibits"or"all documents produced during discovery"are unacceptable.]

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Plaintiff(s): Exhibit 1 Employment Agreement of Camille Melonakis Kurz, dated March 24, 2003, bates stamped DEF554-558; Employment Agreement of Camille Melonakis Kurz, dated July 11, 2003, bates stamped DEF473-491; Timesheets of Camille Melonakis Kurz bates stamped DEF39-52, 75-118, 244289, 2531-2549; Earnings statement for Camille Melonakis-Kurz (provided electronically by Defendant with no bates stamp); Masterfile Audit Report for Camille Melonakis-Kurz bates stamped DEF509-10; Heartland's Appraisal Policy signed by Camille Melonakis-Kurz bates stamped DEF561; Sampling of timesheets from 32 offices in 10 states where the hours reflect over 40 per week (bates ranges vary-this is the same exhibit submitted to Court as Ex. 7 to Plaintiffs' Motion for Summary Judgment); Additional documents evidencing overtime hours worked, bates stamped DEF 7689, 8080, 13735, 13767, 13769 and NKA 16493, 21447, 22861, 22873, 23400, 23426; Plaintiffs' letter to Defendant attaching spreadsheet of those subject to docking; Heartland Home Finance "The Basics" document setting forth how to perform loan officer job, bates stamped DEF1115-1117; Phone scripts for loan officers bates stamped NKA 21920-21, 21927, 21994-95; Production goals documents, and warnings and termination notices for failing to produce, bates stamped DEF 2, 1108, 7479, 7555, 8727-29, 12701, 13731, 13767 and NKA 21463, 22317, 22861; Documents referring to "sales," bates stamped DEF 1114 and NKA 16497; Sample timesheet reflecting only 40 hours per week, bates stamped DEF 4111-12; U.S. Department of Labor Investigation documents bates stamped HF16-39; Lead sheets bates stamped NKA25690,25691, 25701, 25716, 25727, 25740-41, 7

Exhibit 2

Exhibit 3

Exhibit 4

Exhibit 5 Exhibit 6

Exhibit 7

Exhibit 8

Exhibit 9 Exhibit 10 Exhibit 11 Exhibit 12

Exhibit 13 Exhibit 14 Exhibit 15 Exhibit 16

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25744, 25750-51 (these were produced at Plaintiff's deposition); and Exhibit 17 List of standard documents necessary for loan, bates stamped NKA25694 (these were produced at Plaintiff's deposition); Camille Melonaksi-Kurz business card bates stamped NKA3919.

Exhibit 18

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Defendant: Exhibit A Exhibit B Exhibit C Exhibit D Exhibit E Exhibit F Exhibit G Exhibit H Exhibit I Itinerary for Regional Managers meeting 7/29/03 (DEF00001) Itinerary for Regional Managers meeting 1/13 ­ 1/14/03 (DEF0002-0003) Manager's Day/Loan Officer's Day (DEF00004) Heartland Bill Payer (DEF00008) Colorado 1 time sheets (DEF00009-00052) Colorado 2 time sheets (DEF00053-00074) Documents from DOL investigation of Aurora Branch (DEF00224-00227, 00230-00236) Additional Colorado 1 time sheets (DEF00244DEF00289) Employer records and documents concerning Melonakis-Kurz (DEF00290-00331, DEF00473-DEF00563) Colorado Department of Labor investigation documents, receipts, letters, and checks (DEF00332-DEF00472 ­ FOIA) St. Louis Dept. of Labor investigation documents (FOIA) Dayton Dept. of Labor investigation documents (FOIA) Heartland Loan Officer Training Manual (DEF00150-01300) Manager Guide Loan Officer Training Program (DEF01301-01469) Heartland Employee Handbook Memo dated July 7, 2003 (DEF 15167) Documents pertinent to Aurora, Colorado Branch and loan officers (DEF 16484-16504) Camille Melonakis-Kurz Deposition Transcript Camille Melonakis-Kurz Deposition ­ Ex. 1 Camille Melonakis-Kurz Deposition ­ Ex. 2 Camille Melonakis-Kurz Deposition ­ Ex. 3 9

Exhibit J

Exhibit K Exhibit L Exhibit M Exhibit N Exhibit O Exhibit P Exhibit Q Exhibit R Exhibit S Exhibit T Exhibit U

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Defendant reserves the right to present any other exhibits that were submitted in support of Defendant's Motion for Decertification or that otherwise have been filed in this case. Defendant also reserves the right to supplement this list to introduce exhibits listed by Plaintiff. (1) Other parties: [The following paragraph shall be included in the final pretrial order.] b. Copies of listed exhibits must be provided to opposing counsel and any pro se party no later than five days after the final pretrial conference. The objections contemplated by Fed. R. Civ. P. 26(a)(3) shall be filed with the clerk and served by hand delivery or facsimile no later than 11 days after the exhibits are provided. 8. DISCOVERY Discovery was extended by the Court to February 23, 2006. 9. SPECIAL ISSUES Based on counsels' review of the transcript of the December 6, 2004 trial setting conference, this Court's scheduling orders, and the Court's Memorandum Opinion and Order on Class Certification, the parties have based this final pretrial order on a trial solely for the case of Camille Melonakis-Kurz. Even so, Plaintiffs do not concede that this case should be decertified for trial. A stipulated protective order regarding confidential information will be submitted to the Court for approval. While not germane to the Melonakis-Kurz trial, there remains an open issue regarding the appropriate sanctions as to other Plaintiffs for failure to appear at their depositions. Plaintiffs disagree and believe this issue was resolved at the hearing before Magistrate Judge Coan. 10. SETTLEMENT a. Counsel for the parties attended a mediation to settle this case on October 20, 2004, but were not successful. b. The participants in the settlement conference, included counsel, party representatives, and any pro se party. c. The parties were promptly informed of all offers of settlement.

d. Counsel for the parties and any pro se party (do) (do not) intend to hold future settlement conferences. 10

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e. It appears from the discussion by all counsel and any pro se party that there is [select one]: (a good possibility of settlement.) (some possibility of settlement.) (little possibility of settlement.) (no possibility of settlement.) f. The date of the next settlement conference before the magistrate judge or other alternative dispute resolution method. g. Counsel for the parties and any pro se party considered ADR in accordance with D.C.COLO.LCivR.16.6. 11. OFFER OF JUDGMENT [The following paragraph shall be included in the final pretrial order:] Counsel and any pro se party acknowledge familiarity with the provision of rule 68 (Offer of Judgment) of the Federal Rules of Civil Procedure. Counsel have discussed it with the clients against whom claims are made in this case. 12. EFFECT OF FINAL PRETRIAL ORDER [The following paragraph shall be included in the final pretrial order:] Hereafter, this Final Pretrial Order will control the subsequent course of this action and the trial, and may not be amended except by consent of the parties and approval by the court or by order of the court to prevent manifest injustice. The pleadings will be deemed merged herein. This Final Pretrial Order supersedes the Scheduling Order. In the event of ambiguity in any provision of this Final Pretrial Order, reference may be made to the record of the pretrial conference to the extent reported by stenographic notes and to the pleadings. 13. TRIAL AND ESTIMATED TRIAL TIME; FURTHER TRIAL PREPARATION PROCEEDINGS 1. whether trial is to the court or a jury or both,

This case will be tried to a jury. 2. 3 days. 3 situs of trial, and 11 estimated trial time,

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Denver, Colorado. 4 any other orders pertinent to the trial proceedings.]

[Counsel and the parties should note that the procedures for setting and conducting trial and for further conferences before trial vary according to the district judge assigned to the case. The judges all have written procedures which can be obtained from the clerk's office.] DATED this _____ day of _____________ 200__. BY THE COURT:

____________________________________

APPROVED: NICHOLS KASTER & ANDERSON, PLLP ICE MILLER LLP

/s/ Michele R. Fisher ________________________

/s/ David J. Carr ______________________

Donald H. Nichols, #78918 Paul J. Lukas, # 22084X Michele R. Fisher, #303069 Rachhana T. Srey, #340133 4600 IDS Center 80 South Eighth Street Minneapolis, Minnesota 55402 Telephone (612) 256-3200 Fax (612) 215-6870 ATTORNEYS FOR PLAINTIFFS

David J. Carr Steven F. Pockrass Margaret D. Wielenberg One American Square Suite 3100 Indianapolis, IN 46282-0200 Telephone (317) 236-2100 Fax (317) 236-2219 ATTORNEYS FOR DEFENDANT

[Please affix counsels' and any pro se party's signatures before submission of the final pretrial order to the court.]

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