Free Motion for Reconsideration - District Court of Arizona - Arizona

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RYLEY CARLOCK & APPLEWHITE One North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4417 Telephone: 602/258-7701 Telecopier: 602/257-9582 Charles L. Chester ­ 002571 [email protected] John M. Fry - 020455 [email protected] Attorneys for Defendant

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA KAYE K. HUTTON, as an individual and as representative of a class consisting of others similarly situated, Plaintiff, v. BANK OF AMERICA, N.A., Defendant. No. CV2003-2262-PHX-ROS MOTION FOR CLARIFICATION OF ORDERS REGARDING DECERTIFICATION -ANDSUMMARY JUDGMENT (Assigned to the Honorable Roslyn O. Silver)

Defendant seeks clarification of the Court's Orders regarding summary judgment (Dkt. 321) and decertification (Dkt. 322) so that the Parties' Proposed Pretrial Order addresses only necessary issues. In its Order dated March 29, 2007, the Court addressed Defendant's Motion for Summary Judgment (Dkt. 282). While the Court addressed all contentions relating to Defendant's Motion vis a vis the administrative exemption (compare Motion, section II to Order, p. 4, ln. 2 and section III.A.), the Court did not specifically address Defendant's Motion vis a vis the 2005 reclassifications (see Motion, section I). In its Order dated March 31, 2007, at section III.A., the Court addressed Defendant's Motion To Decertify Collective Action (Dkt. 281) as it related to the time periods 1 and 2, the time periods during which client managers were classified as
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overtime exempt.1 As to those time periods, the Court denied Defendant's Motion To Decertify "to the extent that Plaintiff's claims exist during the time periods when they [opt-ins] were classified as exempt by Defendant." [March 31st Order, pg. 4, lns. 12-14 (emphasis added)] Pursuant to L.R.Civ.P. 7.2(g), Defendant requests clarification regarding the Court's intent (a) on summary judgment regarding the 2005 reclassifications, and (b) in denying Defendant's Motion to Decertify only "to the extent that Plaintiff's claims exist" (emphasis added). Defendant respectfully urges the Court to (a) specifically grant summary judgment on any claim Plaintiff Hutton purports to make for harm allegedly arising from the 2005 reclassifications and (b) confirm that its use of the phrase "Plaintiff's claims" was consistent with its previous rulings that prior to final certification, there is but one plaintiff, Ms. Hutton, and that because Plaintiff lacks standing to maintain a suit relating to time period 3, it was the Court's intent not to certify a collective for time period 3. In other words, the "Plaintiff's claims [do not] exist during" time period 3, so she cannot be similarly situated to anyone who might have such a claim. As a result, claims (if any) of opt-ins still employed at the time of reclassification in 2005 are not certified. A. The Named Plaintiff Lacks Constitutional Standing During the Third Time Period; 2As a Result the Court Lacks Subject Matter Jurisdiction Over That Time Period. Defendant's request for clarification of the Court's Orders arises from the following 3-part timeline relevant to the Orders: 1. April 2005: Small Business Client Managers are re-classified as exempt.

[March 31st Order, pg. 3, f.n. 1] By this time, all nine Small Business opt-ins have left

Time period 1: pre-March 2002; time period 3: post-April/July 2005. [March 31st Order, pg. 3, lns. 5 ­ 10] 2 Rule 12(h)(3) provides that "[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action" (emphasis added). This mandate would require the Court to dismiss a claim of Ms. Hutton for harm arising from the 2005 reclassifications.
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the Bank (SOF3 11) and could not have suffered harm as a result of the reclassification. Ms. Hutton never worked in the Small Business Bank (SOF 10) and could not have suffered harm as a result of the reclassification. 2. 3. June 15, 2005: Ms. Hutton leaves employment with the Bank. [SOF 10] July 1, 2005: Premier Client Managers are re-classified as exempt.

[March 31st Order, pg. 3, f.n. 1] Because Ms. Hutton is not working for the Bank at this time, she could not have suffered harm as a result of the reclassification. "Article III of the Constitution confines the federal courts to adjudicating actual `cases' and `controversies.'" Allen v. Wright, 468 U.S. 737, 750 (1984). "The Article III doctrine that requires a litigant to have `standing' to invoke the power of a federal court is perhaps the most important of these doctrines." Id. "The requirement of standing . . . has a core component derived directly from the Constitution. A plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Id. at 751. The foregoing timeline demonstrates that the named Plaintiff, Ms. Hutton, could not have suffered harm from either the April 2005 or July 2005 reclassification, and as a result lacks standing to maintain this action, individually, as it relates to those reclassifications. This deprives the Court of subject matter jurisdiction relative to time period 3. B. Because Plaintiff's Claims Are Nonexistent After June 15, 2005, She Cannot Maintain Suit "on behalf of herself and others similarly situated" Relative To the 2005 Reclassifications. As the Court noted in its March 31, 2007, Order, "[t]he FLSA allows for a collective action by an employee on behalf of other `similarly situated' employees." [March 31st Order, pg. 1, lns. 26 ­ 27] In the Complaint, Plaintiff alleges she is suing "on behalf of similarly situated employees pursuant to 29 U.S.C. § 216(b)", and that questions of fact and law are common to the collective. [Dkt. 1, Exhibit A, ¶¶ 18-25]
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"SOF" refers to Defendant's Statement of Facts in Support of Motion for Decertification and Motion for Partial Summary Judgment (Dkt. 283).
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However, Plaintiff's Complaint was filed October 30, 2003--long before she left employment with the Bank, and before the 2005 reclassifications occurred. By virtue of the absence of constitutional standing, the named Plaintiff cannot assert (and has not even attempted to do so by amendment of the Complaint) that she is similarly situated to employees who worked for the Bank during time period 3. Consistent with the foregoing analysis, there was no reason for the Court to specifically address a 2005 reclassification claim in the March 29, 2007, summary judgment Order since it had not been pled and Plaintiff lacked standing to assert such a claim; however, clarification on this point will clarify the Parties' duties. Also

consistent with the foregoing analysis, the Court declined certification of time period 3 claims (if any) because Plaintiff Hutton's claims do not exist as of 2005, when "`they' (eight of the opt-ins) were (re)classified as exempt by Defendant." Again, clarification on this point will clarify the Parties' duties. C. Conclusion. Defendant interprets the Court's intent to be to grant summary judgment on Plaintiff's 2005 reclassification claim, if any, and to certify a collective action only as to the time periods 1 and 2. Defendant respectfully requests that the Court clarify its Orders to confirm its intent so that the Parties' Proposed Pretrial Order addresses only necessary issues. RESPECTFULLY SUBMITTED this 11th day of April, 2007. RYLEY CARLOCK & APPLEWHITE

By /s/Charles L. Chester Charles L. Chester John M. Fry One North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4417 Attorneys for Bank of America, N.A.

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CERTIFICATE OF ELECTRONIC FILING I hereby certify that on April 11th, 2007, I electronically transmitted MOTION FOR CLARIFICATION OF ORDERS REGARDING DECERTIFICATION AND SUMMARY JUDGMENT to the Clerk's Office using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants:

Ms. Lydia A. Jones ROGERS & THEOBALD, LLP 2425 East Camelback Road Phoenix, Arizona 85016 Attorneys for Plaintiff Michael O'Connor Jennings, Strouss & Salmon, P.L.C. The Collier Center, 11th Floor 201 E. Washington Street Phoenix, AZ 85004 By: /s/Bree Bellefeuille

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