STEPHANIE R. GREEN, et al., on Behalf of Themselves and All Others Similarly Situated, Plaintiffs,
HARBOR FREIGHT TOOLS USA, INC., Defendant.
MEMORANDUM AND ORDER
JULIE A. ROBINSON UNITED STATES DISTRICT JUDGE
Plaintiffs bring this collective action under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b), against defendant Harbor Freight Tools (“Harbor Freight”), claiming they were misclassified as exempt from the FLSA’s overtime requirements and are owed overtime compensation. This matter is before the Court on Defendant’s Motion for Summary Judgment (Doc. 445) with respect to Plaintiff Brent Foster,  as well as its Motion for Summary Judgment (Doc. 447) with respect to Plaintiffs Stephanie Green, Trey Pace, Dennis Collins, and Andy VanMeter. Plaintiffs responded and Defendant filed a Motion to Strike Testimony of Kent Koentopp and Ray Shadel from consideration in Plaintiffs’ responses (Doc. 458). For the reasons explained in detail below, Defendant’s motions are denied.
I. Procedural Background
Plaintiffs filed suit against Harbor Freight on July 21, 2009, claiming they were misclassified as exempt from the FLSA’s overtime requirements, and are owed overtime compensation for the time they worked. Plaintiffs filed their claims on their own behalf and on behalf of others who are “similarly situated.” On August 17, 2010, this Court conditionally certified the following class:
Individuals employed by Harbor Freight Tools USA, Inc. and any predecessors from the time period three years from the date of the Court’s order to the present with the title Store Manager at any Harbor Freight Tools retail store.
On August 17, 2012, this Court granted Defendant’s motion to decertify the conditionally certified class of workers, and dismissed without prejudice the claims of the thirty-one opt-in claimants. While recognizing that the collective class had made a general showing of similarity with respect to some aspects of their positions as Store Managers, the Court concluded that given the fact intensive nature of the executive exemption analysis, Plaintiffs did not demonstrate that they were “similarly situated” to the extent necessary to make collective treatment of their claims proper and efficient under the FLSA.
Harbor Freight now moves for summary judgment on the claims of the five remaining named Plaintiffs.
II. Summary Judgment Standard
Summary judgment is appropriate if the moving party “shows that there is no genuine dispute as to any material fact and [it] is entitled to judgment as a matter of law.” A fact is only material under this standard if a dispute over it would affect the outcome of the suit. An issue is only genuine if it “is such that a reasonable jury could return a verdict for the nonmoving party.” The inquiry essentially determines if there is a need for trial, or whether the evidence “is so one-sided that one party must prevail as a matter of law.”
The moving party bears the initial burden of providing the court with the basis for the motion and identifying those portions of the record that show the absence of a genuine issue of material fact. Where, as here, the movant bears the burden of proof on a claim or defense, it must show that the undisputed facts establish every element of the claim entitling it to judgment as a matter of law. If the moving party properly supports its motion, the burden shifts to the non-moving party, “who may not rest upon the mere allegation or denials of his pleadings, but must set forth specific facts showing that there is a genuine issue for trial.” In setting forward these specific facts, the nonmovant must identify the facts “by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.” If the evidence offered in opposition to summary judgment is merely colorable or is not significantly probative, summary judgment may be granted. A party opposing summary judgment “cannot rely on ignorance of the facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial.” Put simply, the nonmoving party must “do more than simply show there is some metaphysical doubt as to the material facts.”
Finally, summary judgment is not a “disfavored procedural shortcut”; on the contrary, it is an important procedure “designed to secure the just, speedy and inexpensive determination of every action.”
III. Motion to Strike
Before determining the uncontroverted facts in this matter, the Court must address Harbor Freight’s motion to strike. The standards for ruling on a motion to strike are well established. Rule 12(f) of the Federal Rules of Civil Procedure provides that the court may order stricken from any pleading “any redundant, immaterial, impertinent or scandalous matter.”Because striking an entire pleading, or a portion thereof, is a drastic remedy, and because a motion to strike may often be brought as a dilatory tactic, motions to strike under Rule 12(f) are generally disfavored. The decision to grant a motion to strike lies within the court’s sound discretion.
Here, Harbor Freight moves to strike the deposition testimony of former District Managers Kent Koentopp and Ray Shadel as well as other plaintiffs and/or opt-in plaintiffs from Plaintiffs’ response in opposition to summary judgment, on the grounds that such testimony lacks the personal knowledge necessary to refute Plaintiffs’ own admissions and Harbor Freight’s other material facts under Fed.R.Civ.P. 56(e), D. Kan. Rule 56.1(d) and Fed.R.Evid. 602. In the alternative, Harbor Freight asks the Court to disregard those portions of the testimony that do not meet the requirements of those rules. Harbor Freight does not identify specific objectionable testimony, but objects to the testimony in its entirety.
The amendments to Fed.R.Civ.P. 56(c), effective December 1, 2010, provide the appropriate summary judgment procedures for setting forth the parties’ factual positions. This includes the provision that “a party may object that material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” The advisory committee notes on this amendment explain:
The objection functions much as an objection at trial, adjusted for the pretrial setting. The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated. There is no need to make a separate motion to strike. If the case goes to trial, failure to challenge admissibility at the summary-judgment state does not forfeit the right to challenge admissibility at trial.
Local Rule 56.1(d) deals with presentation of factual material, and states in relevant part:
All facts on which a motion or opposition is based must be presented by affidavit, declaration under penalty of perjury, and/or relevant portions of pleadings, depositions, answer to interrogatories and responses to requests for admissions. Affidavits or declarations shall be made on personal knowledge and by a person competent to testify to the facts stated that are admissible in evidence.
The Court stresses that Harbor Freight’s Motion to strike is not the proper method to address Koentopp and Shadel’s testimony. The proper method is to dispute the facts relied on in the deposition testimony as not supported by admissible evidence. It suffices that the party objecting to summary judgment material simply state the objection with a brief description (akin to a speaking objection) and citation to the Federal Rule or case upon which the objection is based, in response to the factual averment itself. In this case, Harbor Freight specifically disputes both Plaintiffs’ responses to its statement of uncontroverted facts, as well as Plaintiffs’ additional statements of fact. Harbor Freight does not merely refer to its motion to strike in its response and/or reply, but offers specific and detailed objections to facts that rely on Koentopp or Shadel’s respective testimony, or the testimony of certain plaintiffs regarding other plaintiffs. Accordingly, the Court declines to strike Plaintiffs’ references to Koentopp and Shadel’s deposition testimony as set forth in their responses and Statement of Additional Uncontroverted Facts, and will instead disregard any testimony that is immaterial or otherwise does not comply with the relevant rules.
In so ruling, the Court notes that Plaintiffs filed suit on July 21, 2009; as named Plaintiffs, the statute of limitations for Plaintiffs’ claims goes back three years from the date of filing. Thus, the relevant time period in question for the named Plaintiffs is July 21, 2006 to the present.
Rule 602 requires that a testifying witness “ha[ve] personal knowledge of the matter” testified to.” Koentopp was employed with Harbor Freight for thirteen years and served as a District Manager from January 2000 to July 2007. During that time, Koentopp supervised Foster, Pace, Collins and Green. Shadel worked at Harbor Freight for nineteen years and served as a District Manager between 2006 and April 2010. During that time, Shadel supervised Foster, Green, Van Meter and Collins. Thus, both had personal knowledge of the average amount of time they visited the stores in their district, how often they were in contact with their Store Managers, and what direction was given. By contrast, their personal knowledge of a given Plaintiffs’ day-to-day activities and performance of their duties is based on discussions with Plaintiffs and their perceptions as District Managers; both Koentopp and Shadel admit that they did not have personal knowledge of duties Plaintiffs actually performed on a daily basis. Because the Court’s analysis is framed by the individualized nature of Plaintiffs’ claims, it will disregard any testimony regarding Plaintiffs’ actual day-to-day activities that is not based on the witness’s personal knowledge or observation during the relevant time frame in which each directly supervised the respective Plaintiffs. Likewise, the Court will limit the testimony of named Plaintiffs’ to their personal experience working in multiple stores, or personal observation of other named or opt-in Plaintiffs.
Plaintiffs also purport to offer Koentopp and Shadel’s testimony to establish Harbor Freight’s corporate policies with respect to Store Managers. This testimony is especially relevant to the primary duty factors, including establishing whether Plaintiffs were relatively free from direct supervision, as Plaintiffs contend that they were micro-managed through Harbor Freight’s corporate policies, which rendered them Store Managers in name only. The foundation for this testimony is grounded in Koentopp and Shadel’s years of experience with Harbor Freight and their personal knowledge and understanding of corporate policies as they relate to store managers in general. The Court will consider this testimony.
IV. Uncontroverted Facts
The following facts are either uncontroverted, stipulated to, or viewed in the light most favorable to Plaintiffs.
Harbor Freight sells tools from more than 300 retail stores throughout the United States. Store Managers are the highest ranking employees in Harbor Freight stores. All of Harbor Freight Store Managers’ job duties and responsibilities are defined in a two-page job description as follows:
1. Ensures excellent customer service.
2. Assures that store is clean and well maintained.
3. Trains and develops employees. Selects, directs and evaluates personnel in all aspects of hiring, discipline, counseling, termination.
4. Oversees or performs product inventory, ordering, receiving, opening and closing.
5. Oversees or performs labor scheduling, hiring, wage administration, sales reporting, office procedure, receipts and deposits.
6. Controls loss and inventory shrink. Responsible for store cash handling.
7. Ensures an accident-free and non-violent workplace.
8. Plans, assigns, delegates, and ...