# Scott v. Mobilelink Louisiana, LLC

> District Court, M.D. Louisiana · January 26, 2023

URL: https://www.frixlaw.com/law-library/cases/10192517

## Case

- **Court:** District Court, M.D. Louisiana
- **Decided:** January 26, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10192517

## How later opinions describe it (automated extraction)

- holding that Rule 11 sanctions did not apply to the violation of a discovery order

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

COREY D. SCOTT, et al. CIVIL ACTION

VERSUS NO. 20-826-SDD-SDJ

MOBILELINK
LOUISIANA, LLC, et al.

ORDER PARTIALLY GRANTING
PLAINTIFFS’ MOTION FOR SANCTIONS

Before the Court is Plaintiffs’ renewed Motion for Sanctions (R. Doc. 93) against
Defendant Mobilelink Louisiana, LLC, who responded by filing an Opposition (R. Doc. 94).
In their Motion, Plaintiffs allege that Defendant has still failed to comply with the Court’s
prior discovery Order (R. Doc. 82) by not fully producing: (1) the transactional sales data used to
calculate commissions between July 2017 and the present, in response to Request for Production
No. 5; as well as (2) corrective time entries for retro pay between July 2017 and the present, in
response to Request for Production No. 15. (R. Doc. 82 at 7-8, 14-17) (compelling responses to
Request for Production Nos. 5 and 15). This information is relevant to whether Defendant violated
the FLSA by “not including the commissions earned with the hourly wage for determining the
proper overtime premium.” (R. Doc. 72 at 1).
As relief, Plaintiffs ask that Defendant be (1) “prohibit[ed] from challenging Plaintiffs’
damage calculations” and (?) required to pay $11,805.00 — “the total fees incurred ‘n connection
with Mobilelink’s discovery conduct.” (R. Doc. 93-2 at 10, 11).

The Court recently received the attached Letter requesting a Conference to discuss the
status of the pending Motion for Sanctions, as its outcome may impact the parties’ upcoming
Pretrial Order. (Exhibit A) (Letter). But a conference is unnecessary as the Court now resolves the
issue that might bear on the Pretrial Order—Plaintiffs’ request that Defendant not be allowed to
challenge their calculation of damages.
“An employee who brings suit for unpaid overtime compensation generally bears the
burden of proving, with definite and certain evidence, that he performed work for which he was
not properly compensated.” Davis v. Martin Marietta Materials, Inc., 2021 WL 3603338, at *10
(N.D. Tex. Aug. 13, 2021); see also Brown v. Fam. Dollar Stores of IN, LP, 534 F.3d 593, 594
(7th Cir. 2008) (“an employee who brings suit for unpaid overtime compensation bears the burden
to prove, with definite and certain evidence, that she performed work for which she was not
properly compensated”). But where an employer fails to maintain or provide accurate payroll
records in an FLSA action, the United States Supreme Court has established a remedy. See
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946), superseded by statute on other
grounds, 29 U.S.C. § 254(a).!
In Mt. Clemens, the Supreme Court began by recognizing that the burden to establish
unpaid compensation should not be “an impossible hurdle.” Mt. Clemens, 328 U.S. at 687. With

' Plaintiffs do not reference Mr. Clemens. In fact, the relevant part of Plaintiffs’ Motion for Sanctions, in which they
ask the Court to prevent Defendant from challenging their calculation of damages, does not contain a single citation
to any legal authority supporting their position or the relief being sought, aside from a single reference to “Rule 37.”
(R. Doc. 93-2 at 1-10). Plaintiffs also focus on Rule 11 and the obligations it imposes on counsel. (R. Doc. 93-2 at 4).
But Rule 11(d) makes one thing plainly clear: “This rule does not apply to disclosures and discovery requests,
responses, objections, and motions under Rules 26 through 37.” See also Nat. Gas Pipeline Co. of Am. v. Energy
Gathering, Inc., 2 F.3d 1397, 1410 (Sth Cir. 1993) (holding that Rule 11 sanctions did not apply to the violation of a
discovery order); DR Distributors, LLC v. 21 Century Smoking, Inc., 513 F. Supp. 3d 839, 950 (N.D. Ill. 2021) (“Rule
11 cannot be used as authority for sanctions for motions under Rules 26-37.”). The lack of research and citation to
relevant case law is confounded by the fact that Plaintiffs’ Motion, at times, is somewhat hard to follow.

that in mind, the Court determined that if an employer has failed to keep proper and accurate
records and the employee cannot offer convincing substitutes:
[t]he solution .. . is not to penalize the employee by denying him any recovery on
the ground that he is unable to prove the precise extent of uncompensated work.
Such a result would place a premium on an employer's failure to keep proper
records in conformity with his statutory duty; it would allow the employer to keep
the benefits of an employee's labors without paying due compensation as
contemplated by the Fair Labor Standards Act.
Mt. Clemens, 328 U.S. at 687; see also United States Dep't of Lab. v. Five Star Automatic Fire
Prot., L.L.C., 987 F.3d 436, 439-40 (Sth Cir. 2021) (“Seventy-five years ago in [Mz Clemens], the
Supreme Court fashioned a... . lenient standard rooted in the view that an employer shouldn't
benefit from its failure to keep required payroll records, thereby making the best evidence of
damages unavailable.”’); Henderson v. Fenwick Protective Inc., 2015 WL 9582755, at *5 (N.D.
Tex. Nov. 23, 2015) (noting that “[t]ime sheets, pay stubs, and work logs” typically substantiate
claims for unpaid overtime, but because defendants “did not participate in discovery,” court would
accept plaintiffs’ declarations instead).
And so, in situations where the employer's records cannot be trusted and the employee
lacks documentation, “an employee has carried out his burden if he proves that he has in fact
performed work for which he was improperly compensated and if he produces sufficient evidence
to show the amount and extent of that work as a matter of just and reasonable inference.” Mi.
Clemens, 328 U.S. at 687; see also United States Dep't of Lab. v. Five Star Automatic Fire Prot.,
L.L.C., 987 F.3d 436, 442 (th Cir. 2021) (relying on employee testimony and noting: “The
adequacy of the records has to do with the evidence available to establish liability and damages . .

.. [W]hen the employer has kept proper and accurate records, then the employee may easily satisfy
his burden... But where, as here, the records do not allow employees to show the uncompensated
overtime work they completed, the burden-shifting framework [of] [A¢t, Clemens] applies.”);

Rafferty v. Denny’s Inc., 13 F.4th 1166, 1191-92 (11th Cir. 2021) (“Rafferty testified and met her
burden [under] [A4t, Clemens] in the very portion of her deposition” showing there were weeks her
untipped work exceeded twenty percent of her hours as a tipped employee, resulting in her
performing work for which she was not paid); Alston v. DIRECTY, Inc., 254 F. Supp. 3d 765, 788
(D.S.C. 2017) (“[A]n FLSA plaintiff's estimations offered in sworn statements as to the amount of
improperly compensated work is, alone, sufficient to meet his initial burden under the [MJ
Clemens] framework.”); Ader vy. SimonMed Imaging Inc., 465 F. Supp. 3d 953, 964 (D. Ariz. 2020)
(“Plaintiffs submit deposition testimony, interrogatories, an email communication with a
supervisor, and FSE time records” that are available. “Plaintiffs admit they can only estimate the
amount of overtime [owed]. However, estimates are not fatal. They are expected, and frequently
relied upon .. . where the employer failed to keep accurate [records].”); Heath v. TFS Dining, LLC,
2022 WL 827654, at *3 (W.D. Tex. Mar. 18, 2022) (“Typically, plaintiffs [] rely on their
employer's timekeeping records to demonstrate that they were not properly compensated for work
they performed. If the employers’ records are inadequate or inaccurate, plaintiffs may meet their
burden by producing sufficient evidence to show the amount and extent of that allegedly
uncompensated work as a matter of just and reasonable inference.”).
The burden then shifts to the employer, who must submit either evidence of the “precise
amount of work performed” or evidence negating the “reasonableness of the inference to be drawn
from the employee's evidence.” /d. at 687-88. “If the employer fails to produce such evidence, the
court may then award damages to the employee, even though the result be only approximate.” Id.
at 688.
Under Federal Rule of Civil Procedure 37(b)(2), a district court may sanction a party that
fails to obey an order to provide or permit discovery by, among other things, “prohibiting the

disobedient party from supporting or opposing designated claims or defenses, or from introducing
designated matters into evidence... .” Fed. R. Civ. P. 37(b)(2)(A) (ii). Instead of or in addition to
that sanction, “the court must order the disobedient party, the attorney advising that party, or both
to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure
was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ.
P.37(b\(2)(C).
Here, Defendant did produce some documents in response to Request for Production No.
5 (transactional sales data) and Request for Production No. 15 (retro pay) within the September 2,
2022 deadline set by the Court. (R. Doc. 93-2 at 3). However, Plaintiffs claim this “partial
production” does not contain any transactional sales data for 2017, 2018, and part of 2022. (R.
Doc. 93-2 at 3). Moreover, Plaintiffs represent that the documents Defendant did produce are
incomplete:
[T]he spreadsheets concerning the transactional sales data contains large gaps
wherein the dates and times of the sales were omitted. Further, the spreadsheets
concerning the retro pay were only lists of who received retro pay and in which pay
period it was paid. Absent from the production was information concerning the
workweek in which the hours were worked and not compensated originally ....
(R. Doc. 93-2 at 3). Unfortunately, Plaintiff did not attach the referenced spreadsheets for the Court
to review in considering their requested relief—that Defendant be “prohibit[ed] from challenging
Plaintiffs’ damage calculations.” (R. Doc. 93-2 at 10). □
Nonetheless, the Court agrees that Defendant has failed to comply with its discovery Order
(R. Doc. 82) by not fully producing the documents responsive to Request for Production Nos. 5
and 15 and has not met its obligation to undertake discovery in a responsible manner, as required
by Rule 26(g). See Heller v. City of Dallas, 303 F.R.D. 466, 476 (N.D. Tex. 2014) (“Rule 26(g)
imposes an affirmative duty to engage in pretrial discovery in a responsible manner that is

consistent with the spirit and purposes of Rules 26 through 37.”). As the Court previously
explained, Defendant and its corporate representative have made inconsistent representations
about whether Defendant has and maintains certain documents responsive to Request for
Production No. 5 (seeking data of transactional sales on which Plaintiffs’ commissions were
based).? (R. Doc. 90 at 2). And the Court remains unsure as to whether Defendant produced an
unprepared corporate representative at its Rule 30(b)(6) deposition, or simply failed to exercise
due diligence in gathering documents responsive to written discovery requests. (R. Doc. 90 at 3)
(“At best, it seems Mobilelink either produced an unprepared witness or has not made a diligent
effort to locate responsive materials.”). But one thing is clear —- Defendant has not fully complied
with the Court’s July 28, 2022 discovery Order (R. Doc. 82).
Under the circumstances, and considering the applicable law, the Court finds the following
sanctions are most appropriate.? See Insurance Corp. of Ireland v. Compagnie des Bauxites de
Guinee, 456 U.S. 694, 707 (1982) (“Rule 37(b)(2) contains two standards . . . that limit a district
court's discretion” “any sanction must be ‘just’” and it must “specifically relate[] to the
particular ‘claim’ which was at issue in the order to provide discovery.”). First, Plaintiffs are
entitled to prove the amount and extent of their damages under the more lenient standard outlined
by the Supreme Court in Anderson vy. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946). Second,
Defendant is prohibited under Rule 37(b)(2)(A)(Gi) from introducing any evidence to challenge

? During the August 24, 2022 Status Conference, the Court learned that Defendant “now claims to not have certain
documents related to the commissions earned by Plaintiffs,” even though its own corporate representative previously
testified that Mobilelink routinely maintained these documents. (R. Doc. 90 at 2) (Defendant claimed its Rule 30(b)(6)
deponent was wrong).
3 Although not a prerequisite to the imposition of sanctions under Rule 37(b), the Court did previously warn Defendant
that its continued failure to fully comply with the July 28, 2022 discovery Order (R. Doc. 82) may result in sanctions
(R. Doc. 90 at 3). See Hal Commodity Cycles Mgmt. Co. v. Kirsh, 825 F.2d 1136, 1139 (7th Cir. 1987) (“A district
court is not required to fire a warning shot” before imposing sanctions.); Daval Steel Prod., a Div. of Francosteel
Corp. v. M/V Fakredine, 951 F.2d 1357, 1366 (2d Cir. 1991) (the Supreme Court has never said “warnings were a
requirement” before sanctions could be imposed under Rule 37(b)(2)).

Plaintiffs’ case, including Plaintiffs’ calculation of damages, that was not produced within the
September 2, 2022 deadline set by the Court’s discovery Order (R. Doc. 82). See Aktas v. Mint
Enterprise LLC, 2022 WL 11705208, at * (D.N.J. Oct. 20, 2022) (warning that if defendants did
not comply with deadline to produce time and wage documents, “Defendants will be barred from
using ... any time and/or wage records not produced” and plaintiff will “be free to argue . . . he is
entitled to prove his FLSA claim . . . under the relaxed standard articulated in Mt. Clemens”).
Therefore,
IT IS ORDERED that Plaintiffs’ Motion for Sanctions (R. Doc. 93) is partially
GRANTED and the following sanctions are imposed on Defendant, Mobilelink Louisiana, LLC:
(1) Plaintiffs are entitled to prove the amount and extent of their damages under
the standard outlined by the Supreme Court in Anderson v. Mt.
Clemens Pottery Co., 328 U.S. 680, 687 (1946); and
(2) Defendant is prohibited under Rule 37(b)(2)(A)(ii) from introducing any
evidence to challenge Plaintiffs’ case, including Plaintiffs’ calculation of
damages, that was not produced within the September 2, 2022 deadline.
Finally, Plaintiffs’ remaining request for $11,805.00 in fees under Rule 37(b)(2)(C) is
referred back to the Magistrate Judge for resolution.
IT IS SO ORDERED.
Baton Rouge, Louisiana, this, day of January, 2023.

C SHELLY D. J Ck
CHIEF DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA

8322 One Calais □□□□□□
, : Baton Rouge, LA 70805
Phone: (225) 769-246;
MAN Fax: (225) 769-246:
LIMITED LIABILITY COMPANY blackwell-bullman.con
AT LAW January 19, 3023
Via Email only: SDJ_Com@lamd.uscourts.gov
Mag. Judge Scott D. Johnson
Russel B. Long Federal Building and United States Courthouse
777 Florida Street
Baton Rouge, LA 70801
Re: Corey D. Scott et al v. Mobilelink Louisiana, LLC
Middle District of Louisiana, Case No. 20-826-SDD-SDJ
Dear Hon. Judge Johnson:
I hope that this letter finds you well.
As the Court is aware, the Plaintiffs filed a Renewed Motion for Sanctions (Rec. Doc. 93)
that is still currently pending. Additionally, the Pre-Trial Order is due to be filed on February 7,
2023. The outcome of the Renewed Motion for Sanctions has an impact on the substance of the
Pre-Trial Order such as the exhibits, witness, and defenses to be offered at trial in March.
Accordingly, Plaintiffs request a telephone status conference with the Court to determine
whether the parties need to provide any further updates or information to assist the Court in ruling
on the Renewed Motion for Sanctions.
Thank you for your assistance with this matter.
With kindest regards, I am
Very truly yours,

□□□ Bullava
JRB/sIf
cc: Susan Desmond (via email)

Ce!
di ao

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10192517. Public record. Not legal advice.