Free Order on Motion for Miscellaneous Relief - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Pending before the Court are Plaintiff's Motion for Final Finding of Willfulness (Doc. 18 #278), Plaintiff's Motion to Strike (Doc. #295), Defendant's Motion to Strike (Doc. #279), 19 and Defendant's Motion for Summary Judgment (Doc. #282). For the following reasons, the 20 Court denies in part and grants in part Defendant's Motion for Summary Judgment, denies 21 Plaintiff's Motion for Final Finding of Willfulness, and denies as moot Plaintiff's and 22 Defendant's Motions to Strike. 23 I. 24 Plaintiff was employed by Defendants from March of 1999 until June of 2005 as a 25 26 27 28 There are two categories of Client Managers - "Premier Client Managers" and "Small Business Client Managers." The Premier Client Managers handle individual clients,
Document 321 Filed 03/29/2007 Page 1 of 14
1

IN THE UNITED STATES DISTRICT COURT FOR THE 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. CV 03-2262-PHX-ROS ORDER

FACTS AND PROCEDURAL HISTORY

"Client Manager."1 She brought this collective action under the Fair Labor Standards Act

Case 2:03-cv-02262-ROS

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

("FLSA"), 29 U.S.C. § 201, et seq., on behalf of herself and a class consisting of all Client Managers employed in Arizona by Defendant from October 20002 until the present. Plaintiff alleges that Defendant failed to pay the Client Managers for overtime, as required by the FLSA. While there is a dispute as to Plaintiff's actual job responsibilities, generally speaking, Defendant is in the business of providing financial services to individuals and businesses and Plaintiff, as a Client Manager, would interact with the clients in some fashion so that the clients would use Defendant's services for their financial needs. Plaintiff argues that her primary function as a Client Manager was sales, whereas Defendant argues that while Plaintiff did sell financial products, this was not the crux of the position and Plaintiff's primary duty was to manage Bank of America's relationship with the clients. Prior to March 2002, Defendant classified the Client Manager position as exempt from the overtime requirements of the FLSA. Effective March 1, 2002, however, Defendant reclassified the Client Manager position as overtime eligible under the FLSA. Then in April 2005 and July 2005, Defendant reclassified the Small Business Client Manager and Premier Client Manager positions back to exempt from the overtime requirements of the FLSA.. II. LEGAL STANDARD A court must grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the non-moving party, "show that there is no genuine

while the Small Business Client Managers handle Small Business clients. Plaintiff filed her Complaint on October 30, 2003. Under 29 U.S.C. § 255, a "cause of action . . . may be commenced within two years after the cause of action accrued, and every such action shall be forever barred unless commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued." In a prior order, the Court found that there was enough evidence on the issue of willfulness for it to be submitted to a jury. Nonetheless, the parties are still in dispute on this issue and the appropriate statute of limitations, as evidenced by Plaintiff's Motion for a Finding of Willfulness (Doc. #278), and Defendant's Motion for Summary Judgment, both of which address the issue of willfulness. -2Document 321 Filed 03/29/2007 Page 2 of 14
2

Case 2:03-cv-02262-ROS

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Substantive law determines which facts are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Also, the dispute must be genuine, that is, "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims." Celotex, 477 U.S. at 323-24. Summary judgment is appropriate against a party who "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322; see also Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir. 1994). The moving party need not disprove matters on which the opponent has the burden of proof at trial. Celotex, 477 U.S. at 323. The party opposing summary judgment "may not rest upon the mere allegations or denials of [the party's] pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995). There is no issue for trial unless there is sufficient evidence favoring the non-moving party; if the evidence is merely colorable or is not significantly probative, summary judgment may be granted. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). However, because "credibility determinations, the weighing of evidence, and the drawing of inferences from the facts are jury functions, not those of a judge, . . . the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor" at the summary judgment stage. Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)); see Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). III. DISCUSSION -3Document 321 Filed 03/29/2007 Page 3 of 14

Case 2:03-cv-02262-ROS

1 2 3

Defendant moves for summary judgment, and makes the following arguments: 1. 2. The Client Managers are exempt from the FLSA's overtime provisions. During the time period in which the Client Managers were classified by Defendant as overtime eligible, Defendant had neither actual nor constructive knowledge that the Client Managers were working unpaid overtime. Defendant did not willfully violate the FLSA, and therefore a two-year statute of limitations should apply. Plaintiff is not entitled to treble damages under Arizona Revised Statute ("A.R.S.") section 23-355.

4 5 6 7 4. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3.

Plaintiff did not file a Motion for Summary Judgment, however, she has filed a Motion for Finding of Willfulness, in which she asks the Court to find that Defendant willfully violated the FLSA and thus the three year statute of limitations applies. Each of these arguments will be addressed in turn. A. Administrative exemption.

Defendant moves for summary judgment arguing that at all times the Client Manager position was exempt from the FLSA overtime requirement. The FLSA requires that employers engaged in commerce pay overtime to their employees. Under 29 U.S.C. § 207(a)(1), "no employer shall employ any of his employees . . . for a workweek longer than forty hours unless such employee receives compensation for his employement in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed." Section 213 of the FLSA, however, provides exceptions to this rule, including an administrative exception. According to 29 U.S.C. § 213(a)(1), employers do not have to pay overtime wages to "any employee employed in a bona fide executive, administrative, or professional capacity." The term "employee employed in a bona fide administrative capacity" has been defined as any employee:3

Prior to August 23, 2004, the term "employee employed in a bona fide administrative capacity" was defined as any employee compensated by salary of not less than $250 per week and the primary duty was defined only as "work requiring the exercise of discretion and independent judgment." 29 C.F.R. 541.2 (2003). -4Document 321 Filed 03/29/2007 Page 4 of 14

3

Case 2:03-cv-02262-ROS

1 2 3 4 5 6 7

(1) Compensated on a salary or fee basis at a rate of not less than $455 per week, exclusive of board, lodging or other facilities; and (2) Whose primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers; and (3) Whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance. 29 C.F.R. 541.200 (2006). Thus, if the Client Manager position is to be considered exempt

8 from the FLSA overtime requirement, the three part administrative exemption test must be 9 met. Each of the three parts is addressed in kind. 10 1. 11 Defendant argues that the Client Manager position is paid on a salary basis at a rate 12 greater than $455 per week. "An employee will be considered to be paid on a 'salary basis' 13 within the meaning of these regulations if the employee regularly receives each pay period 14 on a weekly, or less frequent basis, a predetermined amount constituting all or part of the 15 employee's compensation, which amount is not subject to reduction because of variations in 16 the quality or quantity of the work performed." 29 C.F.R. 541.602(a) (2006), previously 17 codified at 29 C.F.R. 541.118 (2003). Plaintiff and Defendant do not dispute that the Client 18 Manager position was always paid at a rate much greater than $455 per week, but Plaintiff 19 argues that if a Client Manager exceeded their accrued sick and vacation time and wished to 20 take additional time off, she would not be compensated for this time. Thus, the pay was 21 subject to reduction due to a variation in the quantity of their work. This feature, however, 22 does not make the Client Managers non-salary employees. According to 29 C.F.R. § 23 541.602(a)(2), a salaried employee's compensation can be reduced for "full-day absences . 24 . . after the employee has exhausted [accrued leave.]" Thus, the Court finds that the Client 25 Manager position was paid on a salary basis and summary judgment is granted in favor of 26 Defendant on this issue. 27 2. 28 -5Case 2:03-cv-02262-ROS Document 321 Filed 03/29/2007 Page 5 of 14

Salary.

Work directly related to management.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

Defendant argues that the Client Managers' duties is "non-manual work directly related to the management or general business operations of the employer or the employer's customers," and thus meet the second prong of the administrative exemption test. The phrase "directly related to the management or general business operation" refers to the type of work performed by the employee, which means an employee must perform work directly related to assisting with the running or servicing of the business and not from working on a manufacturing production line or selling a product in a retail or service establishment. 29 C.F.R. 541.201. Further, the employee's "primary duty" must be administrative or managerial in nature. 29 C.F.R. § 541.700 discusses this requirement in detail: (a) "[P]rimary duty" means the principal, main, major or most important duty that the employee performs. Determination of an employee's primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee's job as a whole. Factors to consider when determining the primary duty of an employee include, but are not limited to, the relative importance of the exempt duties as compared with other types of duties; the amount of time spent performing exempt work; the employee's relative freedom from direct supervision; and the relationship between the employee's salary and the wages paid to other employees for the kind of nonexempt work performed by the employee. 29 C.F.R. § 541.203 (2005) lists several other examples that apply the administrative

18 exemption, including the employees in the financial services industry who meet the test: 19 20 21 22 23 It is noted in the same regulation, however, that such employees do not qualify for the 24 exemption if their primary duty is selling financial products. 25 Consistently, courts have found that inside salespersons do not fall under the 26 administrative exemption, as they do not perform work of "substantial importance." See 27 28 -6Case 2:03-cv-02262-ROS Document 321 Filed 03/29/2007 Page 6 of 14

. . . if their duties include work such as collecting and analyzing information regarding the customer's income, assets, investments or debts; determining which financial products best meet the customer's needs and financial circumstances; advising the customer regarding the advantages and disadvantages of different financial products; and marketing, servicing or promoting the employer's financial products.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Martin v. Cooper Elec. Supply Co., 940 F.2d 896, 906 (3rd Cir. 1991); 29 C.F.R. 541.205(a) (2003). Plaintiff argues that the primary duty of Client Managers is selling financial products. Plaintiff offers evidence that sales are "90%" of the Client Managers' job, and that the majority of the Client Managers' time is spent cold-calling potential clients from a call list provided by Defendant. Plaintiff argues that they are routinely given sales training, and their job performance, bonus, and incentive pay are measured by sales. Further, Client Managers do not have Series 7 Investment Licenses4 qualifying them as financial advisors or financial planners, and therefore they do not hold themselves out as such to clients. Rather, Bank of America employs separate "Financial Advisors" who have such credentials and perform financial advisor tasks. It is Defendant's position, however, that the primary duty of the Client Managers is to manage the relationship between their clients and Bank of America. Defendant maintains that Client Managers advise and service clients, determine what products and services meet individual client's needs, develop financial strategies, and introduce clients to specific products to meet their needs. Defendant argues that relationship management is the Client Managers' primary duty. Both parties have presented affidavits and evidence which supports their position showing a genuine issue of material fact whether the primary duty of Client Managers is sales, whether the work performed by the Client Managers is of substantial importance to Defendant, and whether the work performed by the Client Managers is related to the management or general business operations of Defendant or its customers. Adickes, 398 U.S. at 158-59 (stating that credibility determinations, the weighing of evidence, and the drawing of inferences from the facts are jury functions, not those of a judge, . . . the evidence of the

"Individuals who want to enter the securities industry to sell any type of securities must take the Series 7 examination, formally known as the General Securities Representative Examination. Individuals who pass the Series 7 are eligible to register with all self-regulatory organizations to trade." See http://www.sec.gov/answers/series7.htm. -7Document 321 Filed 03/29/2007 Page 7 of 14

4

Case 2:03-cv-02262-ROS

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

non-movant is to be believed, and all justifiable inferences are to be drawn in his favor at the summary judgment stage). Summary judgment is not proper on this issue. 3. Exercise of discretion and independent judgment.

An employee must "customarily and regularly exercise discretion and independent judgment . . . with respect to matters of significance." 29 C.F.R. 541.202 (2005); 29 C.F.R. § 541.207 (2003) (stating that the use of discretion and independent judgment must be "with respect to matters of significance"). Further defining this criterion, the regulation states that it involves the comparison and the evaluation of possible courses of conduct and acting or making a decision after the various possibilities have been considered, and implies that the person has the authority to make an independent choice. 29 C.F.R. § 541.207 (2003). Defendant cites Hogan v. Allstate Ins. Co., 210 F. Supp.2d 1312 (M.D. Fla. 2002), and argues that the Client Managers are similar to the insurance agents, who were found to exercise discretion and independent judgment. In Hogan, the Court found that insurance agents "decided who to hire, what to pay them and the hours to be worked," and that they used discretion in determining which insurance policies matched each customer's specific needs. Id. Defendant argues, that like insurance agents, Client Managers use discretion by determining what financial products or services to offer Defendant's clients. Further, Defendant maintains that Client Managers have discretion to overrule guidelines and the decisions of other associates by allowing associates to pay checks drawn by clients on insufficient funds. The Client Mangers, according to Defendant, can also make wire transfers with no written order, and waive overdraft fees and loan origination fees. The Client Managers can also appeal an underwriting turn-down of a request for credit by requesting an exception through their Market Manager. See 29 C.F.R. § 541.202(b) (stating that matter of significance can include whether the employee has authority to commit the employer in matters that have significant financial impact; whether the employee has authority to waive or deviate from established policies and procedures without prior approval . . . .").

-8Case 2:03-cv-02262-ROS Document 321 Filed 03/29/2007 Page 8 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Plaintiff argues that the primary job of Client Managers is sales, they infrequently exercise discretion, and rarely with any significance. Plaintiff maintains they have no input into the design of the products sold or the types of products sold. The Client Managers are given a list of clients that they were to "cold call." This list is created by the Market Manager, and the Client Managers have no input with respect to the composition of the list, are told which customers to call, and are expected to follow certain scripts when talking with a client. They have no control over their sales goals, which are determined by the Bank. Client Managers do not direct the work of other Bank employees, or have the authority to reprimand or terminate anyone. Both parties have presented affidavits and evidence which supports their position indicating that there is a genuine issue of material fact whether the Client Managers "customarily and regularly exercise discretion and independent judgment." 29 C.F.R. 541.202 (2003); see Adickes, 398 U.S. at 176. Summary judgment is not proper on this issue. B. Defendant's knowledge

"An employer who is armed with [knowledge that an employee is working overtime] cannot stand idly by and allow an employee to perform overtime work without proper compensation, even if the employee does not make a claim for the overtime compensation." Newton v. City of Henderson, 47 F.3d 746, 748 (5th Cir. 1995) (quoting Forrester v. Roth's I.G.A. Foodliner, Inc., 646 F.2d 413, 414 (9th Cir.1981)). "[I]f the employee fails to notify the employer or deliberately prevents the employer from acquiring knowledge of the overtime work, the employer's failure to pay for the overtime hours is not a violation of § 207. " Id. (quoting Forrester, 646 F.2d at 414). Harvill v. Westward Communications, L.L.C., 433 F.3d 428, 441 (5th Cir. 2005). There is no specific requirement that the employer must encourage employees not to work overtime or preclude overtime without prior approval, but an employer may not encourage employees to not record overtime.. Defendant argues that from March 2002 until June 2005 (the period of time when the Client Managers were classified by Defendant as subject to the FLSA overtime requirement), -9Document 321 Filed 03/29/2007 Page 9 of 14

Case 2:03-cv-02262-ROS

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Defendant had no knowledge that any of the Client Managers were working off the clock. See Bjornson v. Daido Metal U.S.A., Inc., 12 F.Supp.2d 837, 842 (N.D. Ill.1998) (requiring that employer have either actual or constructive knowledge that Plaintiff was working unpaid overtime); Slattery v. HCA Wesley Rehabilitation Hosp., Inc., 83 F.Supp.2d 1224, 1230 (D.Kan. 2000) (stating that "[t]o support [] a claim [under 29 U.S.C. § 207(a)], the plaintiff must show that she actually worked overtime, that the amount of overtime was shown by justifiable and reasonable inference, and the employer had actual or constructive knowledge of the overtime"). Defendant maintains that upon reclassification as overtime eligible, the Client Managers were given specific training on the requirement to record all hours worked on their timesheet. Further, all Plaintiffs were paid for recorded overtime. Additionally, Defendant argues that the Client Managers were never told to work off the clock. Thus, Defendant argues, it had neither actual or constructive knowledge that employees were working unpaid overtime. Plaintiff contends that the Client Managers were explicitly told to work as many hours as it took to meet their sales goals, and not to record all hours worked due to budget constraints. Plaintiff maintains that the Client Managers were limited to 3 overtime hours per week. Further, Plaintiff argues, Defendant was aware that many Client Managers were working more than 40 hours a week and yet were not reporting the overtime worked. Plaintiff submitted depositions and affidavits stating that the Market Managers (the supervisors of the Client Managers) would comment that the Client Managers were working 50-60 hours. These same Market Managers were the employees of Defendant who approved the Client Managers time sheets. Summary judgment is not proper on this issue.

C.

Willful violations

Both parties have moved for summary judgment on the issue of willfulness. In a prior order, the Court found that there was an issue of fact regarding willfulness that must be decided by the jury. Nothing has changed, and summary judgment is not proper on this issue. - 10 Document 321 Filed 03/29/2007 Page 10 of 14

Case 2:03-cv-02262-ROS

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

D.

State law treble damages

Defendant moves for summary judgment on Plaintiff's state law treble damages claim, arguing that (1) federal preemption defeats Plaintiff's claim; (2) there is a good faith dispute whether Defendant should have paid the Client Managers for overtime; and (3) Plaintiff does not have a contractual right to compensation for unrecorded overtime. 1. Federal Preemption

Section 218(a) of the FLSA provides that: No provision of this chapter or of any order thereunder shall excuse noncompliance with any Federal or State law or municipal ordinance establishing a minimum wage higher than the minimum wage established under this chapter or a maximum work week lower than the maximum workweek established under this chapter, and no provision of this chapter relating to the employment of child labor shall justify noncompliance with any Federal or State law or municipal ordinance establishing a higher standard than the standard established under this chapter. No provision of this chapter shall justify any employer in reducing a wage paid by him which is in excess of the applicable minimum wage under this chapter, or justify any employer in increasing hours of employment maintained by him which are shorter than the maximum hours applicable under this chapter. The section, however, does not address the issue of whether states may provide remedies in excess of the FLSA for the failure to pay overtime compensation, or whether federal preemption prohibits such remedies. Plaintiff is seeking treble damages under A.R.S. § 23-355 for Defendant's failure to pay overtime wages. A.R.S. § 23-355 states: If an employer, in violation of the provisions of this chapter, shall fail to pay wages due any employee, such employee may recover in a civil action against an employer or former employer an amount which is treble the amount of the unpaid wages. Defendant argues Courts are split on the issue of whether federal preemption

23 precludes the recovery of such damages. Defendant cites two cases decided in this Court 24 Spieth v. Adasen Distributing, Inc., 1989 WL 61187 (D. Ariz. 1989) and Aragon v. Bravo 25 Harvesting, Inc., 1993 WL 432402 (D. Ariz. 1993) which are contrary to its position. 26 Defendant contends, however, the Court should not follow the rationale in those cases, and 27 should find that the FLSA preempts the recovery of state law damages for the failure to pay 28 - 11 Case 2:03-cv-02262-ROS Document 321 Filed 03/29/2007 Page 11 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

overtime compensation that are in excess of the remedies provided by the FLSA. Defendant cites Lerwill v. Inflight Motion Pictures, Inc., 343 F. Supp. 1027 (N.D. Cal. 1972) in support of this proposition. The trend in the law is that the FLSA does not preempt such remedies. Lerwill, has been called "dubious authority," for such a proposition because it is a contract dispute case. In Lerwill, the Plaintiffs sought to incorporate provisions of the FLSA into the terms of the contract. "Lerwill was about the plaintiff's effort to get a more favorable remedy. The facts in Lerwill, therefore, are inapposite to the procedural facts in this case." Takacs v. A.G. Edwards and Sons, Inc., 444 F.Supp.2d 1100, 1117 (S.D.Cal. 2006) (citing Williamson v. General Dynamics Corp., 208 F.3d 1144 (9th Cir. 2000). Accordingly, this Court will adhere to the law of this District that the FLSA does not preempt state law damages claims in excess of remedies provided by the FLSA and summary judgment will be denied on this issue. See Takacs v. A.G. Edwards & Sons, 444 F. Supp.2d 1100, 1117-18 (S.D. Cal. 2006) 2. Good Faith Dispute

Defendant argues that during the time period that it classified the Client Managers as overtime eligible under the FLSA, it did not know or have reason to know that the Client Managers were not reporting all of their overtime hours. Thus, any failure to pay overtime was inadvertent and involves a good faith dispute. Further it is argued since the treble damage remedy of A.R.S. § 23-355 is not applicable to good faith disputes, Plaintiff cannot recover on such grounds. The Court has found that there is a issue of fact with respect to Defendant's knowledge of the Client Managers unreported overtime. Thus, Defendant's Motion for Summary Judgment regarding this issue will be denied.

3.

Contractual Rights

Defendant argues in order to recover under A.R.S. § 23-355, Plaintiff must show that she had a contractual right to recovery. Aragon, 1993 WL 432402 at *2, 5. Defendant maintains that while it promised to compensate Client Managers for overtime work, the promise was accompanied by the requirement that the Client Managers record all time - 12 Document 321 Filed 03/29/2007 Page 12 of 14

Case 2:03-cv-02262-ROS

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

worked. Thus, since the Client Managers failed to record their time, Defendant is not liable for treble damages. Plaintiff responds that since the Client Managers were told by Defendant to not record all of their overtime, Defendant's argument has no merit. The Court agrees. Having already found that there is a issue of fact with respect to Defendant's knowledge of the Client Managers unreported overtime, the Court will deny Defendant's Motion for Summary Judgment on these grounds. E. Plaintiff's procedural objections

In her Response to Defendant's Motion for Summary Judgment, Plaintiff makes two procedural objections. The first is that Defendant's Motion for Summary Judgment should be stricken because it is in violation of the Court's Rule 16 Scheduling Order. Plaintiff argues that since Defendant has already filed a Motion to Decertify, another dispositive motion is not allowed under the Court's Rule 16 Order. This is incorrect. A Motion to Decertify is not a dispositive motion because even if the Motion were granted, it would not dispose of the case in its entirety. Second, Plaintiff argues that Defendant's evidence regarding "good faith/advice of counsel" should be stricken, and incorporates by reference her Motion to Strike. The Federal Rules do not provide for motions to strike except pursuant to Rule 12(f), which is not applicable here. Since the Court did not take this evidence into consideration in deciding either Defendant's Motion for Summary Judgment or Plaintiff's Motion for Final Finding of Willfulness, the Court will deny Plaintiff's Motion to Strike as moot.

F.

Defendant's motions to strike

Defendant requests that the Court strike Plaintiff's Motion for Final Finding of Willfullness. Again, the Federal Rules do not provide for this motion to strike and since the Court has denied Plaintiff's Motion, the Court will deny Defendant's Motion to Strike as moot.

- 13 Case 2:03-cv-02262-ROS Document 321 Filed 03/29/2007 Page 13 of 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Also, Defendant filed a Motion in Limine to Strike Opinions of Oran Clemons (Doc. #297). The Court did not consider the opinions of Oran Clemons in reaching its conclusions. IV. CONCLUSION Accordingly, for the foregoing reasons, IT IS ORDERED THAT Defendant's Motion for Summary Judgment (Doc. #282) is DENIED IN PART and GRANTED IN PART. IT IS FURTHER ORDERED THAT Plaintiff's Motion for Final Finding of Willfulness (Doc. #278) is DENIED. IT IS FURTHER ORDERED THAT Plaintiff's Motion to Strike (Doc. #295) is DENIED AS MOOT. IT IS FURTHER ORDERED THAT Defendant's Motion to Strike (Doc. #279) is DENIED AS MOOT. IT IS FURTHER ORDERED THAT Defendant's Motion to Strike (Doc. #297) is DENIED. IT IS FURTHER ORDERED THAT a Final Pretrial Conference is set for June 15, 2007. The parties shall submit all Motions in Limine and a Joint Final Pre-trial Order by June 01, 2007.

DATED this 29th day of March, 2007.

- 14 Case 2:03-cv-02262-ROS Document 321 Filed 03/29/2007 Page 14 of 14