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Sauder v. Leo's Concrete Specialties, Inc.

United States District Court, M.D. Florida, Orlando Division

November 30, 2017

DUSTIN SAUDER, Plaintiff,
v.
LEO'S CONCRETE SPECIALTIES, INC., and LEO BADALAMENTI, individually and as an officer of Leo's Concrete Specialties, Inc., Defendants.

          REPORT AND RECOMMENDATION

          GREGORY J. KELLY, UNITED STATES MAGISTRATE JUDGE.

         This cause came on for consideration without oral argument on the following motions:

MOTION: AMENDED MOTION FOR SUMMARY FINAL JUDGMENT AND MEMORANDUM OF LAW (Doc. No. 58)
FILED:September 26, 2017
THEREON it is recommended that the motion be DENIED.
MOTION: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (Doc. No. 61)
FILED:September 29, 2017
THEREON it is recommended that the motion be DENIED.

         I. BACKGROUND.

         Defendant Leo's Concrete Specialties, Inc., is a concrete and masonry company that employed Plaintiff from 2012 through March 2016, and Defendant Leo Badalamenti was an officer with the company who had the power to hire and fire employees. Doc. No. 1 at ¶¶ 6, 8, 9, 18; Doc. No. 61-1 at 6. Plaintiff worked as a Finisher Foreman and was paid an hourly rate. Doc. No. 1 at ¶ 18; Doc. No. 28 at ¶ 18. Plaintiff alleges that Defendants required him to begin his workday at The Shop, which is Leo's Concrete Specialties' principal place of business, where he would receive his orders for the day and load the company truck with the equipment “integral and indispensable” for performing his work at remote job sites from The Shop (“Job Sites”), and then drive the company truck from The Shop to the Job Sites. Doc. No. 1 at ¶¶ 6, 7, 20, 21. Plaintiff contends that he would return to The Shop at the end of the workday and unload the equipment. Id. at ¶¶ 25, 26. Plaintiff alleges that he was not paid for his work at The Shop or for traveling between The Shop and the Job Sites. Id. at ¶¶ 29-30. Based on these allegations, on May 27, 2016, Plaintiff filed a Complaint against Defendants for violating the overtime provisions of the Fair Labor Standards Act (“FLSA”). Id. at 8-9. On November 8, 2016, Defendants filed their Answer, Affirmative Defenses and Counterclaim. Doc. No. 28. On March 27, 2017, the Court dismissed the Counterclaim without prejudice. Doc. No. 36.

         II. THE MOTIONS.

         On September 26, 2017, Defendants filed an Amended Motion for Summary Final Judgment and Memorandum of Law (“Defendants' Motion”). Doc. No. 58. Defendants argue that they are entitled to judgment as a matter of law because Plaintiff cannot sufficiently prove damages. Id. at 8. On October 5, 2017, Plaintiff filed his response to Defendants' Motion, arguing that Defendants' records regarding the time Plaintiff worked are inaccurate. Doc. No. 62. Defendants did not file a reply to Plaintiff's response.

         On September 29, 2017, Plaintiff filed his Motion for Summary Judgment (“Plaintiff's Motion”). Doc. No. 61. Plaintiff argues that he is entitled to summary judgment “because there is no dispute of material fact that Plaintiff is entitled to compensation for those hours for which he worked but went unpaid and Plaintiff has provided a reasonable estimate of the damages at issue . . . .” Id. at 2. On October 11, 2017, Defendants filed their response to Plaintiff's Motion, arguing that there are issues of material fact precluding summary judgment for Plaintiff. Doc. No. 63. On October 25, 2017, Plaintiff filed his reply to Defendant's response, arguing that Defendants did not present any evidence demonstrating a disputed issue of material fact. Doc. No. 64.

         III. STAND ...


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