William Hornady v. Outokumpu Stainless USA, LLC

USCA11 Case: 22-13691 Document: 76-1 Date Filed: 10/11/2024 Page: 1 of 34

[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-13691

____________________

WILLIAM HEATH HORNADY,

CHRISTOPHER MILLER,

TAKENDRIC STEWART,

COLIN HARTERY,

Plaintiffs-Appellees-Cross Appellants,

LAFAYETTE WILSON,

BRIAN MOORE,

Plaintiffs-Appellees,

versus

OUTOKUMPU STAINLESS USA, LLC,

Defendant-Appellant-Cross Appellee.

USCA11 Case: 22-13691 Document: 76-1 Date Filed: 10/11/2024 Page: 2 of 34

2 Opinion of the Court 22-13691

____________________

Appeals from the United States District Court

for the Southern District of Alabama

D.C. Docket No. 1:18-cv-00317-JB-N

____________________

Before BRANCH, GRANT, Circuit Judges, and CALVERT,∗ District

Judge.

GRANT, Circuit Judge:

In this labor dispute, the district court ordered defendant

Outokumpu Stainless to produce key time and pay records. For

more than two years, Outokumpu begged for more time and

promised both the court and the plaintiffs that it would produce

the records—but time after time, it failed to comply. And as it

repeated this pattern, Outokumpu began to paint its third-party

payroll processor as the true culprit. Until, that is, the payroll

processor caught wind of Outokumpu’s misrepresentations and

corrected the record. Confronted with a merry-go-round of

broken promises and blatant misrepresentations, along with an

upcoming wage-and-hour trial for which no wages or hours were

known, the district court issued the only sanction remaining in its

arsenal: default judgment.

∗ Honorable Victoria M. Calvert, United States District Judge for the Northern

District of Georgia, sitting by designation.

USCA11 Case: 22-13691 Document: 76-1 Date Filed: 10/11/2024 Page: 3 of 34

22-13691 Opinion of the Court 3

Outokumpu now turns to this Court for relief, but it will

find none. First, we conclude that the district court did not err

when it found Outokumpu’s intentionally subversive approach to

discovery worthy of the sanction of last resort. Second, because

district courts have plenary power to reconsider their interlocutory

orders, we conclude that the court here did not abuse its

considerable discretion when it declined to revisit the default

judgment sanction. Third, we determine that the district court

properly found that the plaintiffs alleged a sufficient basis for their

claims, entitling them to relief on all counts. Fourth, and finally, we

conclude that the record does not enable us to analyze the last issue

raised—the district court’s application of the statute of

limitations—and so we remand for more explanation.

I.

Outokumpu Stainless, USA, is the domestic subsidiary of

Outokumpu Oyj—a multinational steel fabricator and

manufacturer headquartered in Finland. It has operated a steel mill

in Calvert, Alabama for over a decade. As Outokumpu admits, at

least some of its employees are covered by the Fair Labor Standards

Act, 29 U.S.C. § 201 et seq.

Four of those employees sued Outokumpu under the FLSA

and Alabama common law. Alleging a series of wage-and-hour

violations, they sought relief for themselves and all other similarly

situated employees who opted in to the suit. Specifically, in Count

I, the named plaintiffs alleged that Outokumpu violated the FLSA

by (a) failing to pay wages for the entire time they were clocked in

USCA11 Case: 22-13691 Document: 76-1 Date Filed: 10/11/2024 Page: 4 of 34

4 Opinion of the Court 22-13691

and working or available to work, (b) failing to pay overtime for all

qualifying hours at one and one-half times an hourly rate that

included monthly bonuses, and (c) failing to pay overtime on the

regular payment date and instead paying overtime as “trued up”

wages calculated at a later date. Count II alleges common law

claims for quantum meruit, or unjust enrichment in the

alternative. And Count III brings the same FLSA claims as Count

I, but on behalf of the collective employees.

A.

Several of the FLSA’s requirements—and how they relate to

Outokumpu’s pay practices—are relevant to understanding the

plaintiffs’ claims. The FLSA requires covered employers to pay an

employee “one and one-half times the regular rate at which he is

employed” for hours worked beyond forty per week. 29 U.S.C.

§ 207(a)(1). The employee’s “regular rate” of pay must reflect all

compensation, excluding overtime payments, that the employee

ordinarily receives during the workweek. Id. § 207(e)(5). The

correct balance between overtime and so-called “straight time”

depends on multiple considerations, including the temporal

relationship between an employee’s work schedule and the

employer’s fixed workweek, whether the employer has paid the

employee a nondiscretionary bonus, and whether the employer

has adopted a “rounding policy” that creates discrepancies between

the time employees are clocked in and the time for which wages

are paid.

USCA11 Case: 22-13691 Document: 76-1 Date Filed: 10/11/2024 Page: 5 of 34

22-13691 Opinion of the Court 5

Outokumpu’s pay practices implicated all of the above. As

an employer subject to the FLSA, the company was required to

“make, keep, and preserve” all records of its employees, including

those related to “the wages, hours, and other conditions and

practices of employment.” 29 U.S.C. § 211(c). Indeed, it would be

nearly impossible for an Outokumpu employee to determine on

his own whether he was correctly paid for his work. The pay rate

changed based on the shift worked, the way time was rounded, the

level of work, and the company’s monthly incentive plan.

Whether overtime was paid correctly depended on these factors as

well as how Outokumpu defined its workweek.

The paychecks themselves did not reflect this level of

nuance—they categorized total straight time, overtime, and

holiday pay, but did not identify any step-up rates. Nor did

Outokumpu otherwise provide this information to its employees,

who would have needed to record their own daily clock-in and

clock-out times, along with the applicable pay rates, to confirm that

they were paid appropriately for their overtime. Outokumpu was

the only party with access to this information, which was necessary

to understand if the “regular rate” of pay was calculated correctly.

See 29 C.F.R. § 778.115.

Outokumpu’s records were similarly indispensable to

evaluating the merits of the plaintiffs’ challenge to the rounding

policy. Rounding clock-in and clock-out times is generally

permitted, so long as the practice “will not result, over a period of

time, in failure to compensate the employees properly for all the

USCA11 Case: 22-13691 Document: 76-1 Date Filed: 10/11/2024 Page: 6 of 34

6 Opinion of the Court 22-13691

time they have actually worked.” 29 C.F.R. § 785.48(b).

Outokumpu used two different rounding policies during the

relevant time period, both of which the plaintiffs claim resulted in

chronic underpayment. Neither policy can be adjudged without

Outokumpu’s time and pay records.

Finally, whether the plaintiffs were paid properly also hinges

on the precise details of Outokumpu’s incentive plan. According

to this plan, Outokumpu pays its employees a nondiscretionary

bonus every month. These incentive-based payments could

implicate the calculation of an employee’s “regular rate of pay.”

See 29 C.F.R. § 778.209. And when they did, any overtime would

need to be recalculated to reflect the revised regular rate. Id. Here

too, only Outokumpu had the information necessary to make that

calculation.

The bottom line is that Outokumpu was the only party who

had the evidence at the heart of the plaintiffs’ claims.

B.

Over the course of nearly two years, the district court

ordered Outokumpu to produce the key pay, time, and incentive

plan records twelve separate times. Faced with these orders,

Outokumpu repeatedly told the court that it would produce the

necessary records. But when the time came to comply, somehow

Outokumpu always had another excuse—leaving the plaintiffs

without any way to prove their case. To cap it all off, Outokumpu

followed up on these discovery violations with outrageous

misrepresentations to both the plaintiffs and the court.

USCA11 Case: 22-13691 Document: 76-1 Date Filed: 10/11/2024 Page: 7 of 34

22-13691 Opinion of the Court 7

At the suit’s inception in the fall of 2018, Outokumpu

stipulated that it would promptly “produce a copy of all time sheets

and payroll records” and assured the court that the parties were

“exchanging information effectively.” This promise was

memorialized in the first scheduling order, which required

Outokumpu to produce—in Microsoft Excel format—daily clock-

in and clock-out times, information about how it calculated

bonuses, and detailed pay records that included the pay period and

all applicable hourly rates. On the deadline, Outokumpu produced

verified pay records for one batch of plaintiffs in an Excel file, and

PDF spreadsheets of daily clock-in and clock-out times. Although

the plaintiffs relied on these documents to estimate damages for a

settlement conference, they would later learn that the records were

full of false or incomplete data.

After settlement negotiations failed, the court again ordered

Outokumpu to produce the necessary time, pay, and bonus

records. In a pattern of conduct that would repeat itself many

times over, Outokumpu failed to comply by the deadline, assured

the plaintiffs that its failure was not intentional but a product of

“some sort of mistake, confusion, or misunderstanding,” promised

to “provide responses as soon as reasonably possible”—and then

did nothing to change its behavior. The company made no

disclosures, offered no responses to discovery, and gave no

estimate of when the information would be provided. These

deficiencies prompted the plaintiffs’ first of many motions to

compel. After Outokumpu failed to respond to the motion, the

USCA11 Case: 22-13691 Document: 76-1 Date Filed: 10/11/2024 Page: 8 of 34

8 Opinion of the Court 22-13691

magistrate judge sanctioned Outokumpu by striking five of its

affirmative defenses.

The sanction did not end Outokumpu’s streak of

noncompliance—it again refused to produce the necessary records,

convinced the plaintiffs and the court that it needed more time, and

then failed to meet the extended deadline too. Faced with another

motion to compel, Outokumpu stressed that court intervention

was unwarranted and promised to provide the time and pay

records “within a reasonable time period” if mediation failed to

resolve the dispute. Mediation failed, and Outokumpu promised

to deliver the records by the date of the next settlement hearing.

Continuing the pattern, the settlement conference came and went

without any documents being produced, and the plaintiffs filed yet

another motion to compel. True to form, Outokumpu agreed to

supplement its production but then failed to produce the records.

Outokumpu followed-up on that failure by attempting to

move the goalposts—representing that, even after sixteen months

of litigation, it would be too burdensome to produce the time and

pay records without yet another extension. The magistrate judge,

in a fit of generosity, accommodated this request and ordered

Outokumpu to produce the records over the next three months.

During that time, the plaintiffs deposed Outokumpu’s

payroll specialist and learned that the verified pay summaries and

time records originally produced in 2018 were incorrect and

incomplete—ultimately meaningless. The Outokumpu-created

pay records did not show the correct pay rates, and there was no

USCA11 Case: 22-13691 Document: 76-1 Date Filed: 10/11/2024 Page: 9 of 34

22-13691 Opinion of the Court 9

way to tell from the daily clock-in and clock-out records whether

Outokumpu had applied its rounding policy or paid the employee

for the full time.

The records that Outokumpu produced in response to the

court’s latest order fared no better. For each employee and for each

pay period, the spreadsheets produced included over 120 columns

of data. Remarkably, none of these columns contained any

information about pay rates—neither base rate of pay, nor step-up,

holiday, overtime, or nighttime pay rates. At the next discovery

hearing, the plaintiffs accused Outokumpu of bad faith, but

Outokumpu again pleaded innocence and asked for another four

months to produce the time and pay records. The conference

ended with a new scheduling order designed to cure Outokumpu’s

recurring discovery deficiencies the next month—now the ninth

discovery order related to Outokumpu’s pay and timekeeping

practices. 1

1 Outokumpu’s conduct related to the time and pay records starkly illustrates

its indifferent attitude toward discovery. This pattern of conduct is just as

visible in Outokumpu’s failures to provide the linchpin incentive plan data.

Outokumpu was first required to produce this information as part of the

plaintiffs’ initial discovery requests—a request which Outokumpu objected to

as “overly broad.” This objection was an issue in the plaintiffs’ second and

third motions to compel. In response, Outokumpu promised to provide the

data, then delivered unresponsive information. Outokumpu repeated this

conduct three more times: either the court ordered Outokumpu to produce

the documents or Outokumpu represented to the court that it would, and

then Outokumpu failed to produce anything whatsoever.

USCA11 Case: 22-13691 Document: 76-1 Date Filed: 10/11/2024 Page: 10 of 34

10 Opinion of the Court 22-13691

Outokumpu, acting consistently if nothing else, flouted this

order too, failing to produce the required time, pay, and incentive

plan records by the June 1 deadline. The plaintiffs moved for

sanctions in mid-June, incensed by the success Outokumpu’s

repeated discovery violations had in stymying their case. For its

part, Outokumpu maintained that all of the previous “issues with

the production,” were inadvertent “errors or oversight,” insisting

that there was “clearly not any willful or bad faith conduct.”

C.

While the plaintiffs’ latest motion for sanctions was pending,

several troubling misrepresentations came to light. These

misrepresentations centered on Outokumpu’s attempt to blame its

third-party payroll processor, Automatic Data Processing, Inc., for

its own discovery violations.

Outokumpu first raised the specter of ADP’s alleged

misconduct in the fall of 2018, describing the requested records as

“ADP pay records.” Then, after it was caught producing false

records, Outokumpu again blamed ADP, arguing that part of the

necessary records came “not from the company but from the ADP

system.” And again—when faced with the possibility of

sanctions—Outokumpu painted ADP as the real culprit and

accused it of having “not been very helpful.”

That was just the start of the ADP narrative. Outokumpu

successfully delayed the plaintiffs’ motion for summary judgment

by representing that it was still waiting on information from ADP

and that it was “just as frustrated as [the plaintiffs] on this particular

USCA11 Case: 22-13691 Document: 76-1 Date Filed: 10/11/2024 Page: 11 of 34

22-13691 Opinion of the Court 11

situation.” Outokumpu later deflected the plaintiffs’ motion for

sanctions by asking the magistrate judge for time to subpoena

ADP. Then Outokumpo claimed the subpoena proved fruitless.

When the plaintiffs renewed their motion for sanctions,

Outokumpu once again shifted the blame onto ADP.

In reality, ADP had diligently complied with every request.

ADP responded to the subpoena within one day, explaining that it

did not ordinarily create time reports, but still offering PDF records

of the limited data it had. It also explained that Outokumpu itself

could create the required reports in Excel format using its payroll

software. 2 Following these exchanges, ADP rightfully believed

that it had complied with the terms of the subpoena. It did not

know that Outokumpu had not produced any documents to the

plaintiffs or that the plaintiffs had renewed their motion for

sanctions in response to that continued failure of production.

Troubled by ADP’s apparent role in the never-ending

discovery dispute, the district court instructed Outokumpu to

confer with ADP in advance of a hearing set later that month. At

that next hearing, Outokumpu reassured the court that it had

indeed “reach[ed] out” to ADP but “ha[d] not gotten a response

yet.” Although the court could not have known it, Outokumpu

had not contacted ADP until three hours before the start of the

hearing—despite having twelve days to comply. ADP, for its part,

2 In a follow-up email, ADP provided Outokumpu with the contact

information of the ADP associate who could help Outokumpu produce the

reports in Excel format.

USCA11 Case: 22-13691 Document: 76-1 Date Filed: 10/11/2024 Page: 12 of 34

12 Opinion of the Court 22-13691

responded promptly; five hours after Outokumpu made contact, it

offered to create a responsive Excel report customized for the case.

No matter—Outokumpu never produced the PDFs or even

admitted that ADP had offered them. Instead, Outokumpu

expressed frustration at the hearing and told the court that “it

would be . . . helpful to hear [ADP’s] explanation to the Court.”

Believing—understandably—that ADP had intentionally

flouted the subpoena, the district court entered a show cause order,

directing an ADP corporate representative to appear fourteen days

later. The court simultaneously directed Outokumpu to serve

ADP with the order. It will likely come as no surprise that

Outokumpu did not comply. First, it waited ten days to tell ADP

about the hearing. And even then, it led ADP to believe that the

hearing would be canceled if ADP could provide the necessary data

before the hearing date.

Believing Outokumpu’s representations, ADP produced an

Excel report two days later that included pay data going back to

2018—everything still retained in its system. But not until the night

before the hearing did Outokumpu tell ADP that it was still going

forward as planned. The hearing marked the first time that ADP

learned what Outokumpu had been telling the court all along,

which left it understandably unprepared to answer the court’s

questions. The court set another hearing for a week later.

At the second show cause hearing, ADP was able to correct

the record and shine a light on Outokumpu’s misrepresentations.

In a desperate attempt to avoid a “blame game,” Outokumpu tried

USCA11 Case: 22-13691 Document: 76-1 Date Filed: 10/11/2024 Page: 13 of 34

22-13691 Opinion of the Court 13

to walk back its earlier statements, insisting that it had not

attributed the discovery delays to ADP. The district court, with

assistance from ADP, rejected Outokumpu’s attempts to rewrite

the record. After hearing arguments on the issue, the district court

informed the parties that “a sanction has to happen here.”

D.

Although the district court said that it was “loath to enter a

default as to liability,” it did not see “any other recourse.” On

November 18, 2021, the court formally entered default judgment

on liability against Outokumpu under Federal Rule of Civil

Procedure 37(b)(2)(A)(vi). After detailing Outokumpu’s never-

ending discovery violations, the court found clear and convincing

evidence that Outokumpu had acted in bad faith. A review of the

record showed a “clear picture of willful and prejudicial discovery

abuse,” including unrebutted evidence that Outokumpu doctored

and produced false records, refused to produce other records it had

previously agreed to produce, and made substantial

misrepresentations to the plaintiffs and the court in an attempt to

foist the blame for its discovery failures on anyone but itself.

Finally, the district court concluded that no sanction other than

default judgment would be sufficient to address Outokumpu’s bad

faith.

Outokumpu fired their old counsel and moved for

reconsideration. New counsel, however, appeared to continue

singing from the same song sheet, telling the court that the old

attorney had “accurately characterized the need for ADP’s help in

USCA11 Case: 22-13691 Document: 76-1 Date Filed: 10/11/2024 Page: 14 of 34

14 Opinion of the Court 22-13691

producing documents in Excel format.” While that motion was

pending, the parties disputed how damages should be calculated.

Outokumpu raised a series of objections to the plaintiffs’ proposed

damages calculation—some of which were sustained—and the

district court settled on a final methodology. The district court

denied the motion to reconsider and awarded the plaintiffs

$13,171,958.56 in damages, $12,606,408.58 of which were for the

collective FLSA action and $565,549.98 of which were for the 276

individual claims under Alabama law.

Both parties appealed. Outokumpu takes issue with the

district court’s entry of default judgment as a sanction, denial of the

motion to reconsider sanctions, and its determination that certain

allegations made by the plaintiffs were well pleaded. In their cross

appeal, the plaintiffs argue that the district court erred by limiting

damages to those claims that fell within the FLSA’s statute of

limitations.

II.

“This Court reviews sanctions orders for abuse of

discretion.” J.C. Penney Corp. v. Oxford Mall, LLC, 100 F.4th 1340,

1346 (11th Cir. 2024). That standard means that “we review the

district court’s legal conclusions de novo and its subsidiary factual

findings for clear error.” Skanska USA Civ. Se. Inc. v. Bagelheads, Inc.,

75 F.4th 1290, 1311 (11th Cir. 2023). We also review for abuse of

discretion a district court’s decision whether to reconsider its own

interlocutory order. Region 8 Forest Serv. Timber Purchasers Council

v. Alcock, 993 F.2d 800, 805–06 (11th Cir. 1993). This Court reviews

USCA11 Case: 22-13691 Document: 76-1 Date Filed: 10/11/2024 Page: 15 of 34

22-13691 Opinion of the Court 15

the sufficiency of the allegations in a complaint de novo. Eagle

Hosp. Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298, 1303

(11th Cir. 2009).

III.

On appeal, Outokumpu does not argue that this conduct

was not sanctionable—and how could it. Instead, it says that for

two reasons the district court should not have awarded the

ultimate sanction of default judgment. Neither carries the day.

First, Outokumpu contends that it should not be sanctioned

for the conduct of its attorneys. This argument is wrong several

times over. To start, it is generally “not an abuse of discretion to

charge [parties] personally with ‘the consequences of the acts or

omissions of their freely selected agent.’” Jochum v. Schmidt, 570

F.2d 1229, 1232 (5th Cir. 1978) (alteration adopted and quotation

omitted). 3 “There is certainly no merit to the contention that

dismissal of petitioner’s claim because of his counsel’s unexcused

conduct imposes an unjust penalty on the client.” Link v. Wabash

R.R. Co., 370 U.S. 626, 633 (1962). To hold otherwise “would be

wholly inconsistent with our system of representative litigation.”

Id. at 634. 4

3 Decisions by the former Fifth Circuit handed down before October 1, 1981,

are binding on this Court. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th

Cir. 1981) (en banc).

4 To be sure, we have suggested that this principle—that the client owns the

attorney’s errors—does not apply in the Rule 11 sanctions context. Byrne v.

USCA11 Case: 22-13691 Document: 76-1 Date Filed: 10/11/2024 Page: 16 of 34

16 Opinion of the Court 22-13691

What’s more, the district court sanctioned Outokumpu only

after specifically finding that it had acted in bad faith. Indeed, the

district court specifically “rejected the notion” that Outokumpu

was “an innocent victim of its former counsel.” Outokumpu, not

its attorney, was responsible for producing the time and pay

records required for the plaintiffs’ suit. And Outokumpu, not its

attorney, willfully and repeatedly refused to do so. In its nearly

100-page order, the district court painstakingly detailed every way

in which both Outokumpu and its counsel intentionally sabotaged

the judicial process. Outokumpu presents no evidence on appeal

that the district court erred at all in making those factual findings,

much less did so clearly. The harsh sanction of default judgment is

appropriate here where Outokumpu itself is culpable. See Betty K

Agencies, Ltd. v. M/V MONADA, 432 F.3d 1333, 1338 (11th Cir.

2005).

Second, Outokumpu argues that the district court should

have imposed lesser sanctions because the plaintiffs eventually

received all the records they sought. According to Outokumpu,

ADP’s production of certain records after the second show cause

order, eighth scheduling order, and fifth motion to compel cured

any discovery violation and rendered the sanction of default

unnecessarily severe.

To call that a remarkable contention is exercising a great

deal of judicial restraint. To start, any cure would have been only

Nezhat, 261 F.3d 1075, 1120 n.88 (11th Cir. 2001). But the district court here

relied on Rule 37 to sanction Outokumpu, so that limitation is irrelevant.

USCA11 Case: 22-13691 Document: 76-1 Date Filed: 10/11/2024 Page: 17 of 34

22-13691 Opinion of the Court 17

partial because Outokumpu has still failed to produce every

missing piece of evidence. It has not provided the plaintiffs with

the time and pay records from 2015 to 2017—the very years when

its exposure was greatest. Those records no longer exist, and it was

Outokumpu who failed to maintain them. The district court

determined that this failure was spoliation, and we have no qualms

about that conclusion.

Even if Outokumpu were correct that it had lived up to its

discovery obligations, the district court’s sanction would not have

outstripped the company’s disclosure violations. Generally

speaking, sanctions of last resort—such as dismissals or default

judgments—are appropriate only “when less drastic sanctions

would not ensure compliance with the court’s orders.” Malautea v.

Suzuki Motor Co., 987 F.2d 1536, 1542 (11th Cir. 1993). But “[w]hen

lesser sanctions would be ineffective, Rule 37 does not require the

vain gesture of first imposing those ineffective lesser sanctions.” Id.

at 1544. Outokumpu points to no authority supporting its

argument that eventual production of the required discovery

displaces sanctions for earlier noncompliance. That ask-for-

forgiveness-rather-than-permission rule would strip sanctions of

any deterrent effect—malicious actors could repeatedly violate

court orders with peace of mind, knowing that any future sanction

could be nullified after the fact by simple compliance with the

initial order.

The record shows that the district court did not abuse its

discretion by deciding that no sanction short of default judgment

USCA11 Case: 22-13691 Document: 76-1 Date Filed: 10/11/2024 Page: 18 of 34

18 Opinion of the Court 22-13691

was appropriate. In fact, lesser sanctions had already been tried—

and to no avail. After one of Outokumpu’s many discovery

violations, the magistrate judge struck five of Outokumpu’s

affirmative defenses. Neither this nor any of the many other orders

against Outokumpu deterred Outokumpu’s “unrelenting

campaign to obfuscate the truth.” See id. As the district court

determined, Outokumpu’s “deceitful, subversive and manipulative

conduct”—set forth above in unflattering detail—would not have

changed with a sanction less harsh than default judgment. The

district court properly considered and rejected lesser sanctions. It

did not abuse its discretion by resorting to the sanction of last

resort.

IV.

We next consider the district court’s denial of Outokumpu’s

motion for reconsideration. That turns out to be a somewhat

trickier question, if only because our precedents are less than clear

about what standard of review district courts should employ when

faced with such a motion in the context of a non-final order.

The answer is Rule 54(b), which governs a district court’s

reconsideration of interlocutory orders. Entry of a non-final

default judgment is one such order. Under Rule 54(b), district

courts retain plenary power to reconsider an interlocutory order

before the entry of final judgment. And when a district court

exercises its power, this Court reviews only for abuse of discretion.

Here, we find no abuse of discretion and affirm the district court’s

denial of Outokumpu’s motion to reconsider sanctions.

USCA11 Case: 22-13691 Document: 76-1 Date Filed: 10/11/2024 Page: 19 of 34

22-13691 Opinion of the Court 19

A.

This Court has yet to precisely define the standards

governing Rule 54(b) motions to reconsider. In our silence, some

district courts have applied the more definite standards from Rule

59(e) or Rule 60(b). See, e.g., Reynolds v. Calhoun, 650 F. Supp. 3d

1272, 1275 (M.D. Ala. 2023) (collecting cases); Grier v. Griffin Moving

& Storage, Inc., 452 F. Supp. 3d 1325, 1333 (S.D. Fla. 2017). But

those standards—whether addressing newly discovered evidence

or manifest errors under Rule 59(e), or mistake, inadvertence,

fraud, and the like under Rule 60(b)—do not apply here. Rules

59(e) and 60(b) only come into play after a final, appealable

judgment is entered. See Alcock, 993 F.2d at 806 & n.5; Toole v.

Baxter Healthcare Corp., 235 F.3d 1307, 1315 (11th Cir. 2000).

Rule 54(b) is relevant at earlier stages of a case. It provides

that an order “that adjudicates fewer than all the claims or the

rights and liabilities of fewer than all the parties . . . may be revised

at any time before the entry of a judgment adjudicating all the

claims and all the parties’ rights and liabilities.” Fed. R. Civ. P.

54(b). When, as here, a district court enters a non-final order, it

should evaluate motions to reconsider that order under the

standards inherent in Rule 54(b)—plenary authority “to reconsider,

revise, alter or amend” a non-final order before the entry of final

judgment. Toole, 235 F.3d at 1315 (quotation omitted); see also

Hardin v. Hayes, 52 F.3d 934, 938 (11th Cir. 1995) (“[S]ince an order

granting a new trial is an interlocutory order, the district court has

plenary power over it” and may modify it “at any time prior to final

judgment.” (quotation omitted)).

USCA11 Case: 22-13691 Document: 76-1 Date Filed: 10/11/2024 Page: 20 of 34

20 Opinion of the Court 22-13691

A federal court’s inherent authority to correct its own errors,

so long as it possesses jurisdiction over the action, is firmly rooted

in the common law. See Doss v. Tyack, 55 U.S. (14 How.) 297, 312–

13 (1852); Bucy v. Nev. Constr. Co., 125 F.2d 213, 216–17 (9th Cir.

1942). The Supreme Court too has long recognized that “if an

interlocutory decree be involved, a rehearing may be sought at any

time before final decree.” John Simmons Co. v. Grier Bros., 258 U.S.

82, 90–91 (1922); see also Dietz v. Bouldin, 579 U.S. 40, 46 (2016)

(“[T]he Court has recognized that a district court ordinarily has the

power to modify or rescind its orders at any point prior to final

judgment in a civil case.”). For that reason, until final judgment, a

district court may “reconsider any portion of its decision and

reopen any part of the case.” Marconi Wireless Tel. Co. of Am. v.

United States, 320 U.S. 1, 47 (1943); accord 18B Charles Alan Wright

& Arthur R. Miller, Federal Practice & Procedure § 4478 (3d ed. June

2024 update).

This inherent power was recognized—not changed—by

Rule 54(b). See City of Los Angeles, Harbor Div. v. Santa Monica

Baykeeper, 254 F.3d 882, 886–89 (9th Cir. 2001). Indeed, when Rule

54(b) was amended in 1946 to add that non-final orders are “subject

to revision at any time” before final judgment (substantially the

same language in today’s rule), the Committee explained that this

change (along with allowing district courts to certify immediate

appeals) “re-establish[ed] an ancient policy with clarity and

precision.” Fed. R. Civ. P. 54(b) (1946); 1946 Advisory Committee

Notes on Rule 54.

USCA11 Case: 22-13691 Document: 76-1 Date Filed: 10/11/2024 Page: 21 of 34

22-13691 Opinion of the Court 21

Though district courts enjoy plenary power to reconsider

non-final rulings, they need not employ plenary review when doing

so. Indeed, in most instances district courts should hesitate before

revisiting their earlier interlocutory orders; important interests of

finality, stability, and predictability underly that justifiable caution.

Cf. United States v. Williams, 728 F.2d 1402, 1406 (11th Cir. 1984);

Ins. Grp. Comm. v. Denver & Rio Grande W. R.R. Co., 329 U.S. 607,

612 (1947).

A district court’s discretion in these matters is governed by

the law-of-the-case doctrine, which in this context functions as a

guide for courts rather than “a limit to their power.” See

Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 815–17

(1988). Operating with more or less force depending on the stage

of litigation, the doctrine as a whole “expresses the practice of

courts generally to refuse to reopen what has been decided.” Id. at

817 (quotation omitted). So district courts should gently keep in

mind the general point that “when a court decides upon a rule of

law, that decision should continue to govern the same issues in

subsequent stages in the same case.” Arizona v. California, 460 U.S.

605, 618 (1983). 5 “Common sense, not a rigid set of rules,” governs

when there is no higher court mandate. 18 James Wm. Moore et

5 The part of the law-of-the-case doctrine known as the “mandate rule”—

which sounds in principles of authority and constrains lower courts in the

wake of higher court rulings—is not implicated when a court reconsiders its

non-final order. Bryan A. Garner et al., The Law of Judicial Precedent § 52, at

442, § 55, at 459–60 (2016); see also Piambino v. Bailey, 757 F.2d 1112, 1120 (11th

Cir. 1985); 18B Wright & Miller, supra, § 4478.3.

USCA11 Case: 22-13691 Document: 76-1 Date Filed: 10/11/2024 Page: 22 of 34

22 Opinion of the Court 22-13691

al., Moore’s Federal Practice § 134.21[1] (3d ed. June 2024 update); see

also White v. Murtha, 377 F.2d 428, 431–32 (5th Cir. 1967).

A district court’s decision to reconsider an interlocutory

order is thus committed to its sound judgment, which we review

for abuse of discretion. See Alcock, 993 F.2d at 805–06. If the

movant is able to meet a significantly higher showing for

reconsideration—for example, the standards applicable to Rules

59(e) or 60(b), or the exceptions to the mandate rule—the district

court should not hesitate to revisit its prior ruling. But just because

a movant fails to meet these higher standards does not mean that

reconsideration cannot be had—the district court may still have

room to conclude that reconsideration is appropriate.

On the flip side, a district court typically would not abuse its

discretion when rejecting a motion to reconsider an interlocutory

order if the movant simply rehashed arguments already considered

and rejected. Cf. Am. Home Assurance Co. v. Glenn Estess & Assocs.,

Inc., 763 F.2d 1237, 1239 (11th Cir. 1985). And finally, the more

time that has passed between a district court’s ruling and a party’s

motion to reconsider that ruling, the less willing the court ought to

be to entertain the party’s request. Parties must “be able to rely on

the rulings that progressively direct proceedings toward trial.” 18B

Wright & Miller, supra, § 4478.1.

In short, district courts have discretion to revisit their prior

interlocutory orders, considering both the weight of the moving

party’s arguments and the disruption that a change would cause in

light of the time that has passed since the decision was initially

USCA11 Case: 22-13691 Document: 76-1 Date Filed: 10/11/2024 Page: 23 of 34

22-13691 Opinion of the Court 23

made. Only when the district court abuses that considerable

discretion will we set aside a Rule 54(b) decision.

Viewed against this backdrop, the district court here did not

abuse its considerable discretion by denying Outokumpu’s motion

to reconsider the sanction order. The district court recognized its

plenary power to revisit its order and refused to do so for reasons

well within its discretion. In fact, the district court (though

understanding that it need not reconsider all aspects of its decision)

entertained most of Outokumpu’s arguments in full. And

Outokumpu—after years of misbehavior—simply failed to provide

the court with an adequate reason to revise the sanction order.

Instead, the company almost exclusively raised arguments that had

already been rejected. The district court’s rejection of

Outokumpu’s unashamed rehash was no abuse of discretion.

B.

Outokumpu’s principal argument on appeal is that the

district court should have applied Rule 55(c)’s “good cause”

standard to the motion for reconsideration, and it should have

found that Outokumpu met that standard. That Rule provides that

a “court may set aside an entry of default for good cause, and it

may set aside a final default judgment under Rule 60(b).” Fed. R.

Civ. P. 55(c). What Outokumpu fails to realize, however, is that

the good cause standard applies to entries of default, not entries of

default judgment. That may sound like a distinction without a

difference, but it is not. And the second half of Rule 55(c)—

directing courts to apply the Rule 60(b) standard—applies only to

USCA11 Case: 22-13691 Document: 76-1 Date Filed: 10/11/2024 Page: 24 of 34

24 Opinion of the Court 22-13691

final default judgments. The order here is neither an entry of

default nor a final default judgment; it is the entry of a non-final

default judgment. The court entered judgment against

Outokumpu but did not finalize the damages. Accordingly, Rule

55(c) does not govern. 6

The text of Rule 55 draws a distinction between defaults and

default judgments. Rule 55(a), titled “Entering a Default,” provides

that “[w]hen a party against whom a judgment for affirmative relief

is sought has failed to plead or otherwise defend . . . , the clerk must

enter the party’s default.” By contrast, Rule 55(b), titled “Entering

a Default Judgment,” requires the clerk to “enter judgment . . .

against a defendant who has been defaulted for not appearing,” so

long as “the plaintiff’s claim is for a sum certain or a sum that can

be made certain by computation.” Otherwise, Rule 55(b) requires

the plaintiff to “apply to the court for a default judgment,” which

may be entered against a party if certain other conditions are met.

So a Rule 55 “default” is when a party does not defend, and section

(b) directs the court or the clerk to enter a default judgment when

a party defaults on that basis. Rule 55(c) continues this distinction

between defaults and default judgments by requiring courts to use

a different standard when setting aside “an entry of default” as

opposed to “a final default judgment.”

The district court here never entered a Rule 55(a) default

against Outokumpu. Instead, it relied on Rule 37(b)(2)(A)(vi),

6 It is, of course, a higher standard than Rule 54(b)’s, in any event.

USCA11 Case: 22-13691 Document: 76-1 Date Filed: 10/11/2024 Page: 25 of 34

22-13691 Opinion of the Court 25

which authorized it to “render[] a default judgment against the

disobedient party” as a sanction for disobeying “an order to provide

or permit discovery.” Because the district court entered a default

judgment against Outokumpu rather than a default, Rule 55(c)’s

“good cause” standard does not apply.

The second half of Rule 55(c)—permitting courts to “set

aside a final default judgment under Rule 60(b)”—is similarly inapt.

A non-final default judgment is “an interlocutory order and thus

not subject to being vacated under Rule 60(b).” Bon Air Hotel, Inc.

v. Time, Inc., 426 F.2d 858, 862 (5th Cir. 1970) abrogated on other

grounds by Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994). At

the time Outokumpu moved for reconsideration, the entry of

default judgment was not final because the amount of damages to

be awarded was still outstanding. Guy v. Dzikowski (In re Atlas), 210

F.3d 1305, 1307 (11th Cir. 2000). Instead, the district court had only

entered default judgment on Outokumpu’s liability. In 2015, Rule

55(c) was amended “to insert the word ‘final’ before ‘default

judgment.’” 10A Wright & Miller, supra, § 2692. This change was

intended “to make plain the interplay between Rules 54(b), 55(c),

and 60(b).” 2015 Advisory Committee Notes on Rule 55. “A

default judgment that does not dispose of all of the claims among

all parties is not a final judgment unless the court directs entry of

final judgment under Rule 54(b).” Id. So Rule 60(b)’s heightened

standards “apply only in seeking relief from a final judgment”; until

then, “Rule 54(b) allows revision of the default judgment at any

time.” Id. (emphasis added).

USCA11 Case: 22-13691 Document: 76-1 Date Filed: 10/11/2024 Page: 26 of 34

26 Opinion of the Court 22-13691

V.

We now turn to Outokumpu’s final contention, that the

district court should not have credited the plaintiffs’ legal

arguments in support of several claims.

After a default, the defendant cannot contest the plaintiff’s

factual allegations. Nishimatsu Constr. Co., v. Houston Nat’l Bank,

515 F.2d 1200, 1206 (5th Cir. 1975). But the same is not true for

legal arguments; those can be challenged as not offering a sufficient

basis for the judgment. Id. When deciding whether the claims are

sufficiently pleaded, we apply the same analysis we use when

evaluating Rule 12(b)(6) motions to dismiss. Surtain v. Hamlin

Terrace Found., 789 F.3d 1239, 1245 (11th Cir. 2015). By that

standard, the complaint must contain “sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its

face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted).

And a claim is plausible “when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. Under 12(b)(6),

as here, legal theories contained in a complaint are not accepted as

true. Id. And that makes sense—defendants can forfeit the ability

to contest the truth of facts asserted, but a default does not give the

court powers beyond those established by law.

Outokumpu challenges the district court’s conclusion that

the plaintiffs’ workweek and bonus claims were well pleaded. In

the Third Amended Complaint, two of the plaintiffs’ allegations

were that Outokumpu violated the FLSA by (1) failing to calculate

USCA11 Case: 22-13691 Document: 76-1 Date Filed: 10/11/2024 Page: 27 of 34

22-13691 Opinion of the Court 27

its workers’ wages on a fixed, 168-hour workweek and

(2) improperly structuring its incentive bonus plan such that the

bonus percentage was not applied to the gross amount of pay the

employee earned during the calendar month in which the bonus

was calculated. Both allegations state plausible claims for relief.

First, the workweek claim. The FLSA requires employees to

be paid overtime at one and one-half times the regular rate of pay

for any hours worked in excess of forty per workweek. 29 U.S.C.

§ 207(a)(1). The “workweek is a fixed and regularly recurring

period of 168 hours—seven consecutive 24-hour periods”—that

“need not coincide with the calendar week but may begin on any

day and at any hour of the day.” 29 C.F.R. § 778.105. “Once the

beginning time of an employee’s workweek is established, it

remains fixed regardless of the schedule of hours worked by him.”

Id.

The plaintiffs’ complaint alleges two separate violations of

this workweek requirement. Each allegation—supported by

testimony from Outokumpu’s payroll specialist—states a plausible

claim for relief. One is that from 2015 until January 27, 2019,

Outokumpu’s workweek ran from Monday to Sunday, but the

company paid overtime based on the number of hours worked

between a different sequence of days. 7 That alone is a sufficient

basis for judgment in their favor; if Outokumpu’s workweek was

Monday to Sunday, but it calculated overtime based on the hours

7 Mid-litigation and in response to the plaintiffs’ lawsuit, Outokumpu changed

its workweek definition to begin on Sunday and end on Saturday

USCA11 Case: 22-13691 Document: 76-1 Date Filed: 10/11/2024 Page: 28 of 34

28 Opinion of the Court 22-13691

worked between Sunday and Saturday, miscalculations would

have inevitably occurred.

The plaintiffs also allege that Outokumpu allocated all the

time associated with an employee’s shift to a single workweek

regardless of when the shift began or ended. So, for example, a

shift that spanned the end of one workweek and the beginning of

the next would have counted only toward the hours worked in the

first workweek. This too presents a sufficient basis for judgment in

favor of the plaintiffs on their workweek claim. If Outokumpu

allocated all hours worked during a shift to only one workweek,

even if that shift spanned multiple workweeks, overtime

miscalculations would have been unavoidable.

Second, the bonus claim. The FLSA requires employers to

calculate overtime pay as a function of the employee’s “regular

rate.” 29 U.S.C. § 207(a)(1). The “regular rate” includes “all

remuneration for employment,” save for several exemptions. Id.

§ 207(e). Sometimes when an employer pays a bonus, that bonus

is considered part of the employee’s total remuneration for a given

workweek, which means the employer must recalculate the

overtime rate to take that bonus into account. 29 C.F.R.

§§ 778.208, 778.209. Other bonuses, however, do not trigger a

recalculation. Id. When a bonus is a “[p]ercentage of total

earnings,” employers need not recalculate the overtime rate: a

“bonus based on a percentage of total wages . . . increases both

straight time and overtime wages by the same percentage, and

thereby includes proper overtime compensation as an arithmetic

USCA11 Case: 22-13691 Document: 76-1 Date Filed: 10/11/2024 Page: 29 of 34

22-13691 Opinion of the Court 29

fact.” 29 C.F.R. §§ 778.210, 778.503. These bonuses, in other

words, “provide for the simultaneous payment of overtime

compensation due on the bonus.” Id. § 778.210.

Every month, Outokumpu paid its employees a

nondiscretionary incentive bonus if the mill met certain production

criteria. The plaintiffs allege that this bonus did not qualify as an

FLSA-approved percentage bonus because the “percentage is

applied to the gross amount of pay received by the employee during

the calendar month” and not “the gross amount of pay the

employee earned during the calendar month.” Paychecks received

during a 30-day calendar month, for example, may have only

covered 4 workweeks, or 28 days. And if the mill met production

goals during that 30-day period, a bonus was applied to only 28

days’ worth of paychecks.

The plaintiffs say that this mismatch between pay periods

and calendar months means Outokumpu’s incentive bonus plan

did not qualify as a percentage bonus. Because the bonus was

neither an exemption under § 207(e) nor a proper percentage

bonus, they argue, the FLSA required Outokumpu to recalculate

the plaintiffs’ regular rate. And because Outokumpu failed to

account for the incentive bonuses in the regular rate, Outokumpu

failed to accurately calculate the overtime rate. As plaintiffs’

counsel explained to this Court, the rounding and bonus claims

overlap—there is no way to separate the two.

Outokumpu tries to rebut the plaintiffs’ arguments, pointing

to evidence uncovered during discovery that it says contradicts the

USCA11 Case: 22-13691 Document: 76-1 Date Filed: 10/11/2024 Page: 30 of 34

30 Opinion of the Court 22-13691

plaintiffs’ stated facts. That evidence is irrelevant. The question

here is whether the plaintiffs’ complaint states a plausible claim for

relief. And in answering that question, we assume all well-pleaded

factual allegations are true. See Surtain, 789 F.3d at 1245. Given the

sparse factual record, we cannot say that the plaintiffs have failed

to allege a sufficient basis for their claims. It may be that

Outokumpu could have prevailed on the merits had it chosen to

litigate this case, and in the process produced records that rebutted

the plaintiffs’ factual allegations. But Outokumpu gave up that

right, thumbing its nose at the judicial process and forcing the

district court to rule on the issue at a premature stage in the

litigation. The district court committed no error when it awarded

judgment on the plaintiffs’ workweek and bonus claims.8

VI.

On cross-appeal, the plaintiffs argue that the district court

improperly credited Outokumpu’s statute of limitations defense

when it calculated the damages owed. 9

8 Outokumpu briefly argues that the plaintiffs’ state-law claims are preempted

by federal law. As Outokumpu acknowledges, however, this argument

depends on an affirmative defense that was struck as a sanction along with the

answer. As a result, the district court did not commit reversible error by

refusing to credit it.

9 Outokumpu also challenges the district court’s damages calculation as not

supported by an adequate evidentiary basis. The joint submission on damages

included over 100 pages of exhibits showing damages member-by-member

and period-by-period, with detailed individual examples demonstrating how

USCA11 Case: 22-13691 Document: 76-1 Date Filed: 10/11/2024 Page: 31 of 34

22-13691 Opinion of the Court 31

The FLSA’s statute of limitations provides that an action

must commence no later than three years after a willful violation

of the statute. 29 U.S.C. § 255(a). For party plaintiffs the action

commences on the date the complaint is filed, and for opt-in

plaintiffs the action commences on the date their consent is filed in

court. Id. § 256. Here, the class complaint was filed on July 30,

2018, meaning that only paychecks received on or after July 30,

2015, are actionable for named party plaintiffs. For any plaintiffs

who later opted in to the class, the § 255(a) three-year statute of

limitations would limit claims to only those paychecks received no

more than three years before the opt-in date.

The plaintiffs also sought recovery for the later opt-in

plaintiffs back to July 30, 2015. To get around § 255(a)’s bar, they

argued that the statute of limitations should be equitably tolled.

The district court rejected the attempt. In a normal case, that

would be the end of it—but this is no normal case.

The statute of limitations provided by § 255(a) is an

affirmative defense, which means it must be specifically pleaded.

Day v. Liberty Nat’l Life Ins., 122 F.3d 1012, 1014–15 (11th Cir. 1997);

see also Fed. R. Civ. P. 8(c)(1). “[F]ailure to plead the bar of the

statute of limitations constitutes a waiver of the defense,” even

damages broke down by individual pay period. The district court used

“mathematical calculations” supported by submissions from both parties to

arrive at the final damages figure. See Adolph Coors Co. v. Movement Against

Racism & the Klan, 777 F.2d 1538, 1544 (11th Cir. 1985). There is no merit to

the argument that the district court’s calculations lacked an adequate

evidentiary basis.

USCA11 Case: 22-13691 Document: 76-1 Date Filed: 10/11/2024 Page: 32 of 34

32 Opinion of the Court 22-13691

when the “complaint itself interjected the issue into the case.” Day,

122 F.3d at 1015. And a forfeited affirmative defense “is excluded

from the case.” Wood v. Milyard, 566 U.S. 463, 470 (2012) (alteration

adopted and quotation omitted).

Here, Outokumpu asserted the statute of limitations defense

in each of its answers. The magistrate judge first struck the defense

from Outokumpu’s second amended answer as a sanction. And

although Outokumpu re-pleaded the defense in its third amended

answer, the district court struck that entire answer as part of its

final sanction. As a result of these two sanctions, the statute of

limitations defense was effectively unpleaded.

Even so, when the plaintiffs submitted proposed damages

that included claims dating back to July 2015 for opt-in parties,

Outokumpu objected, arguing that the scope of relief was

inconsistent with the court’s earlier ruling rejecting equitable

tolling and applying § 255(a)’s statute of limitations. Although the

plaintiffs pointed out that any affirmative defense would have

needed to be asserted in Outokumpu’s now-nonexistent answer,

the district court sustained Outokumpu’s objection.

Reviewing the record, we cannot determine why the district

court decided to sustain the objection. “A court has an obligation

to assure that there is a legitimate basis for any damage award it

enters.” Anheuser-Busch, Inc. v. Philpot, 317 F.3d 1264, 1266 (11th

Cir. 2003). When a court enters default judgment, the award

entered must be at the very least “a reasonable estimate of

damages.” Adolph Coors Co. v. Movement Against Racism & the Klan,

USCA11 Case: 22-13691 Document: 76-1 Date Filed: 10/11/2024 Page: 33 of 34

22-13691 Opinion of the Court 33

777 F.2d 1538, 1544 (11th Cir. 1985). While the default judgment

may not “exceed in amount what is demanded in the pleadings,” a

court “may award substantially less tha[n] what was requested

whenever the damage proceeding indicates that only a smaller

award is warranted.” 10A Wright & Miller, supra, § 2688.

Although we review a district court’s award of damages

under a clearly erroneous standard, the sparse record here renders

this question incapable of meaningful appellate review. See Meader

ex rel. Long v. United States, 881 F.2d 1056, 1060 (11th Cir. 1989). It

could be the case that the district court limited the plaintiffs’ claims

as an attempt to estimate damages more faithfully. Or perhaps the

court rejected the plaintiffs’ equitable tolling arguments on the

merits. Or perhaps in the flurry of the case it was not clear that the

affirmative defense had been stricken. Or perhaps it was

something else—the record does not say. Consequently, we

remand to the district court to explain or reconsider its reasoning

for sustaining Outokumpu’s objection on the statute of limitations

defense.

* * *

The “most severe in the spectrum of sanctions provided by

statute or rule must be available to the district court in appropriate

cases.” Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639,

643 (1976). It is hard to imagine a more appropriate case than this

one. Years of obstinance, dozens of discovery violations, and

unceasing attempts to blame others finally caught up with

Outokumpu. Even on appeal, the company displays a remarkable

USCA11 Case: 22-13691 Document: 76-1 Date Filed: 10/11/2024 Page: 34 of 34

34 Opinion of the Court 22-13691

lack of contrition. The district court did not err when it entered

default judgment, when it refused to reconsider that decision, or

when it determined which of the plaintiffs’ claims were well

pleaded. Accordingly, we AFFIRM those decisions. We cannot,

however, properly evaluate the plaintiffs’ arguments about

§ 255(a)’s statute of limitations. We therefore VACATE AND

REMAND the calculation of damages for the district court to more

thoroughly explain its reasoning on that issue.