United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY District Judge.
prior opinion and order, the court granted plaintiff leave
to: (1) add two new plaintiffs to this proposed hybrid, FLSA
collective and Wisconsin state labor law class action; and
(2) assert a claim that PGA Inc. violated Wisconsin law by
computing overtime pay using the rate for the type of work
performed during the overtime hours, rather than the often
higher average wage rate earned by the employee during that
workweek. The court, however, denied plaintiffs leave to add
a prevailing wage claim, as well as an additional, discrete
claim concerning plaintiff Sinclair.
court's order has since spurred additional filings by the
party. In this opinion and order, the court will take up
plaintiffs' motion for reconsideration and
plaintiffs' motion for sanctions, as well as
defendant's motion to strike the third amended complaint.
Going forward, the court also encourages plaintiffs'
counsel to focus their energy on the claims actually before
the court in this case and scheduled for trial in October,
rather than search for other possible theories of liability.
If anything, plaintiffs' filings to date call into
question counsel's adequacy to serve as class counsel.
Motion for Reconsideration
prior opinion, the court denied plaintiffs leave to proceed
on a prevailing wage claim, finding that such a claim would
require class treatment under Rule 23, and that “[t]o
add an unrelated claim to this action would unduly prejudice
defendant, in light of its discovery efforts to date and
preparations to move for decertification of the FLSA
collective action and to oppose the recently-filed motion for
class certification.” (2/17/17 Op. & Order (dkt.
#61) 6-7 (citing Shady Grove Orthopedic Assocs., P.A. v.
Allstate Ins. Co., 559 U.S. 393, 400 (2010).) In denying
leave, the court, however, indicated that plaintiffs Sinclair
and Krall were free to assert a prevailing wage claim in a
separate lawsuit -- which they apparently did in state court,
and that claim has now been removed to this court.
Sinclair v. PGA, Inc., No. 17-cv-224-wmc (W.D. Wis.
Mar. 21, 2017). Even if Rule 23 did not govern a state law
prevailing wage claim brought by a representative party on
behalf of other individuals, the court also indicated in a
footnote that it would decline to exercise its supplemental
jurisdiction over this claim, because it was unrelated to the
core FLSA overtime pay claims and would likely delay
resolution of those claims. (2/17/17 Op. & Order (dkt.
#61) 6 n.3.)
prevail on a motion for reconsideration under [Rule 59(e)],
the movant must present either newly discovered evidence or
establish a manifest error of law or fact.” Oto v.
Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000)
(citation omitted). “A ‘manifest error' is
not demonstrated by the disappointment of the losing party.
It is the ‘wholesale disregard, misapplication, or
failure to recognize controlling precedent.'”
Id. (citation omitted). Consistent with this
standard, Rule 59(e) is not meant to allow the parties
“merely to relitigate old matters.” Diebitz
v. Arreola, 834 F.Supp. 298, 302 (E.D. Wis. 1993).
their motion for reconsideration, plaintiffs re-hash their
arguments that Rule 23 is “not an available mechanism
to resolve Wisconsin prevailing wage laws” -- an
argument that the court previously considered and rejected,
rendering it inappropriate for a motion for reconsideration
under Rule 59. In addition, plaintiffs contend that the
court erred in applying Justice Scalia's plurality
opinion in Shady Grove to hold that Rule 23 always
superseded state class-action rules in federal court. 559
U.S. at 406-10 (citing the Rules Enabling Act, 28 U.S.C.
§ 2072(a)). Instead, plaintiff contends that the court
should have followed Justice Stevens' opinion concurring
in the judgement, which focused on the application of the
Erie doctrine to the question at hand. Id.
at 416-428; see also Id. at 410-416 (section of
plurality opinion in which three judges join to oppose
Justice Stevens' approach).
initial matter, this court is not writing on a clean slate on
the issue, since the Seventh Circuit has cited Justice
Scalia's plurality opinion with approval. See Show v.
Ford Motor Co., 659 F.3d 584, 586 (7th Cir. 2011). Even
if the court were to apply Justice Stevens' approach,
however, plaintiffs fail to cite any authority or develop any
argument as to why the Wisconsin procedure for a
representative prevailing wage lawsuit, Wis.Stat. §
66.0903(11)(a), is substantive and not procedural, requiring
this court to apply the Wisconsin law under Erie.
Instead, plaintiffs presume that it is a substantive rule
(Mot. for Reconsideration (dkt. #62) ¶ 9), but that
assumption does not hold up. On the contrary, Justice Stevens
himself concurred in the judgement in Shady
Grove because he found that the New York statute at
issue, which restricted class actions in certain suits, was
procedural, not substantive. Moreover, in Sawyer
v. Atlas Heating & Sheet Metal Works, Inc., 642 F.3d
560, 562 (7th Cir. 2011), the court described procedures for
certifying class actions as procedural, contrasting it with a
statute of limitations, which is considered substantive.
Id. at 562 (citing Shady Grove, 559 U.S.
the court sees no basis to revisit its decision to deny
plaintiffs leave to amend their complaint to add a prevailing
wage claim. Since such a representative claim would require
class certification under Rule 23, it is simply too late to
add that claim to the proposed hybrid FLSA collective action
and class action overtime pay claims already at issue. As
such, plaintiffs' motion for reconsideration is denied.
Motions for Sanctions
couple of pages at the end of its opposition to
plaintiffs' motion for reconsideration, defendant urged
the court to award its attorneys' fees in responding to
plaintiffs' motion for reconsideration. (Def.'s
Opp'n (dkt. #63).) In tepid support, defendant cites to
Rule 11(b) and plaintiffs' flawed argument that this
court should rely on Justice Stevens' concurrence. Worse
still, in response to that request, plaintiffs filed their
own, even more curious motion for sanctions. (Dkt. #64.) In
their motion, plaintiffs argue that defendant's request
for fees was unfair in light of plaintiffs' efforts to
(1) seek reconsideration under Rule 54(b) and (2) flush out
the appropriate rule under Shady Grove to apply to
the proposed prevailing wage claim in this case.
than to note that plaintiffs should have developed their
argument in their original motion to amend, rather than
simply cite to a state law case without any explanation or
analysis as to why a state procedure embraced in that case
would govern a class action in federal court, the court will
decline both motions for attorneys' fees.