United States District Court, D. Maryland
Lipton Hollander United States District Judge.
Second Amended Complaint (ECF 28), plaintiffs Maurlanna
Braxton, Brittany Scott, Stephanie Gamble, and Brionna
Williams, on behalf of themselves and others similarly
situated, filed a wage action against two Baltimore
nightclubs at which they previously worked: Eldorado Lounge,
Inc. (“El Dorado”) and Four One Four LLC, doing
business as Kings & Diamonds (“Kings &
Diamonds”) (collectively, the “Corporate
Defendants”). They also sued defendant Kenneth Jackson,
who owns El Dorado and holds a one-half ownership interest in
Kings & Diamonds. ECF 28 at 1; ECF 93-2 (Kenneth Jackson
deposition) at 3-4.
particular, plaintiffs allege violations of the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 201
et seq.; the Maryland Wage and Hour Law
(“MWHL”), as amended, Md. Code (2016 Repl. Vol.),
§§ 3-401 et seq. of the Labor and
Employment Article (“L.E.”); and the Maryland
Wage Payment and Collection Law (“MWPCL”), as
amended, L.E. §§ 3-501 et seq. In support
of their claims, plaintiffs allege that they were employed by
defendants as exotic dancers, but were not paid a minimum
wage. ECF 28 at 6-7. Rather, they were paid by commission,
receiving half the price of the drinks that customers of the
clubs bought for them. ECF 93-7 (defendants' responses to
interrogatories) at 9.
motions are now pending. Plaintiffs have filed a Motion for
Partial Summary Judgment as to defendants' liability and
with respect to their affirmative defenses (ECF 93),
supported by a memorandum (ECF 93-1) (collectively,
“Motion”) and numerous exhibits. The Corporate
Defendants responded in opposition (ECF 100), and submitted
numerous exhibits. Jackson also opposes the Motion. ECF 101.
The Corporate Defendants later amended their opposition. ECF
105. Plaintiffs replied. ECF 109 (“Reply”).
addition, plaintiffs filed a “Motion to Strike Response
in Opposition to Motion for Summary Judgment, ” seeking
to exclude from the Court's consideration the affidavits
of two former employees of defendants. ECF 106 (“Motion
to Strike Affidavits”). Jackson and the Corporate
Defendants oppose the Motion to Strike Affidavits. ECF 110
(Jackson); ECF 111 (Corporate Defendants). Plaintiffs
replied. ECF 114.
Corporate Defendants submitted a “Motion for Leave to
File Response to Plaintiff's Reply to Opposition for
Motion for Partial Summary Judgment” (ECF 117), which I
shall construe as a motion for leave to file a surreply
(“Motion for Surreply”). Plaintiffs oppose the
Motion for Surreply. ECF 122. Without leave of court, the
Corporate Defendants subsequently filed the Surreply. ECF
126. Thereafter, plaintiffs submitted a Motion to Strike
Defendants' Surreply (ECF 127, “Motion to Strike
Surreply”), which the Corporate Defendants oppose. ECF
has filed a “Motion For Sanctions For Violations Under
Federal Rule Of Civil Procedure 11(c), ” lodged against
plaintiffs' counsel. ECF 129 (“Motion for
Sanctions”). No response was filed.
hearing is necessary to resolve the motions. See
Local Rule 105.6. For the reasons that follow, I shall grant
plaintiffs' Motion in part and deny it in part. I shall
also grant plaintiffs' Motion to Strike Affidavits; deny
defendants' Motion for Surreply; deny plaintiffs'
Motion to Strike Surreply, as moot; and deny Jackson's
Motion for Sanctions.
noted, plaintiffs worked as exotic dancers and were paid by
commission. It is undisputed that they were not paid wages.
ECF 93-7 at 8-9. The amount each dancer made from commissions
each night was purportedly recorded by the club (id.
at 9), and was paid in cash to the dancers the same night.
Id. at 18.
were also allowed to keep any money they received in tips for
dances (ECF 93-2 at 25), and defendants claim the tips were
sometimes substantial. Id. at 35. However,
plaintiffs were also expected to “tip-in”-to pay
some amount at the beginning of the evening that would cover
repairs for anything the dancers broke, a DJ, and other
related expenses of the clubs. Id. at 34-35. Tip-in
at El Dorado seems to have been about $35 (id. at
38), and was assessed at least on the weekends, if not every
night. Id. at 34. Plaintiffs allege that in certain
circumstances they were required to pay other fees and fines,
such as if they left the building during work (ECF 93-3,
Declaration of Scott, ¶ 5), or if they wanted the DJ to
play specific songs for their dances. ECF 93-6 (Declaration
of Braxton), ¶ 4. Defendants dispute these other fees.
ECF 93-7 at 20.
classified the dancers, including plaintiffs, as independent
contractors rather than employees, and plaintiffs signed an
“Independent Contractor Employment Agreement.”
See ECF 100-4 at 1. The parties dispute whether the
dancers were assigned set shifts. See ECF 93-3,
¶ 5; ECF 93-7 at 21.
facts are included in the Discussion.
order to determine the evidence within the scope of the
Motion, I must resolve whether to consider the two challenged
affidavits submitted by the Corporate Defendants. And, I must
determine whether to consider the Corporate Defendants'
surreply. Therefore, I shall first address the Motion to
Strike Affidavits, the Motion for Surreply, and the Motion to
Motion to Strike Affidavits
have moved to strike two affidavits submitted as exhibits
with the Corporate Defendants' opposition to the Motion.
The affiants are two of the Corporate Defendants' former
bartenders. ECF 100-40 (Affidavit of Kimberly Jones); ECF
100-41 (Affidavit of Tenia Stuckey). In the affidavits, Ms.
Stuckey and Ms. Jones discuss the employment process and
management structure of the clubs, disputing some elements of
plaintiffs' declarations (e.g., that plaintiffs were
fined or subject to pre-determined schedules). Id.
complain that the witnesses were not disclosed by defendants
in response to plaintiffs' interrogatories. Therefore,
they insist that the affidavits should not be considered on
summary judgment, under Fed.R.Civ.P. 37(c)(1). ECF 106-1 at
37(c)(1) provides, in relevant part: “If a party fails
to provide information or identify a witness as required by
Rule 26(a) or (e), the party is not allowed to use that
information or witness to supply evidence on a motion, at a
hearing, or at a trial, unless the failure was substantially
justified or is harmless.” District courts have broad
discretion to decide harmlessness. Wilkins v.
Montgomery, 751 F.3d 214, 222 (4th Cir. 2014). The basic
purpose of Rule 37(c)(1) is to prevent surprise and prejudice
to the opposing party. Southern States Rack and Fixture,
Inc. v. Sherwin-Williams Co., 318 F.3d 592, 596 (4th
undisputed that defendants did not name the affiants in their
response to plaintiffs' interrogatories. Defendants were
asked to supply the names of “each person . . . with
knowledge regarding the facts and circumstances . . .
referred to in the operative Complaint.” ECF 106-2 at
7. Defendants responded with one name: William Shepherd, the
co-owner of Kings & Diamonds. Id. Nowhere did
defendants identify Ms. Jones or Ms. Stuckey.
suggests that disclosure was unnecessary because (1)
“Plaintiffs' attorney . . . did or should have
discovered the identity of Jones and Stuckey . . . from his
clients' recollection of the facts and persons
surrounding the allegations of the complaint itself;”
and (2) “Plaintiffs identified Kimberly Jones  and
Tenia Stuckey  during their depositions.” ECF 110 at
3-4. The Corporate Defendants make the same arguments. ECF
111 at 3.
the first argument, even if plaintiffs were aware of other
witnesses, this does not excuse defendants from properly
answering the interrogatory. See C. Wright & A.
Miller, 8 Fed. Prac. & Proc. Civ. § 2014
(3d ed.) (discussing discovery obligations in matters already
known to the requesting party). The second argument-that the
affiants had already been identified by the plaintiffs
themselves-strains credulity. Defendants cite the depositions
of Scott and Braxton, in which they mention that they had
dealt with a bartender named “Jamilla.” ECF 110-3
at 6-7, 20.
was asked: “[D]oes Jamilla have a last name to the best
of your knowledge?” She answered: “No.” ECF
110-3 at 20. According to defendants, “Jamilla”
is a nickname for Tenia Stuckey. ECF 110 at 4. Defendants
never explain why plaintiffs would have known that Jamilla is
actually Tenia Stuckey.
argument that plaintiffs identified Kimberly Jones is equally
unpersuasive. They cite to the deposition of plaintiff Gamble
and claim she alluded to Jones. ECF 111 at 3. In that
deposition, ECF 110-3 at 14, Gamble was asked if someone
inspected her nails and hair. Gamble answered in the
affirmative. Then, she was asked: “And who was
that?” Gamble responded: “Uh, what was her name?
Oh, geez. Oh, goodness. Big lips, full boobs. Oh, my
goodness. I can't remember. She's a [sic] older lady.
She stopped working because she got sick, bronchitis.
Can't remember her name. But yeah, she was a bartender at
King at [sic] Diamonds.” Id. This response
does not reflect an awareness of the identity of Kimberly
may not presume that plaintiffs know of defense witnesses, or
how to contact them. It is clear that the fact witnesses were
undisclosed during discovery.
Southern States, 318 F.3d at 597, the Fourth Circuit
set out a five-factor test to determine if a failure to
disclose was nonetheless justified or harmless, such that it
could be considered. The factors are: “(1) the surprise
to the party against whom the evidence would be offered; (2)
the ability of that party to cure the surprise; (3) the
extent to which allowing the evidence would disrupt the
trial; (4) the importance of the evidence; and (5) the
nondisclosing party's explanation for its failure to
disclose the evidence.” Id. The burden of
showing that nondisclosure was justified or harmless lies
with the non-disclosing party. See Sprint Nextel Corp. v.
Simple Cell Inc., 248 F.Supp.3d 663, 677 (D. Md. 2017)
(citing Southern States, 318 F.3d at 596).
prolonging the discussion, it is clear that plaintiffs
suffered surprise from defendants' nondisclosure of the
two witnesses, which they could not cure after the completion
of discovery, at the summary judgment stage. Although this
case is not yet at the trial stage, plaintiffs have not had
an opportunity to depose the witnesses for purposes of
summary judgment. Moreover, the statements in the
affidavits-especially the statements as to the dancers'
work schedules (ECF 100-40 at 1) and the lack of fines (ECF
100-41 at 1)-are pertinent to plaintiffs' claims. And, as
discussed, defendants' explanation for their failure to
disclose is sorely lacking.
Blake of this Court considered a similar issue in Sprint
Nextel, 248 F.Supp.3d at 678, and decided to exclude the
evidence from consideration in summary judgment proceedings,
but to allow it at trial. I opt to do the same. Therefore,
the Motion to Strike Affidavits of Stuckey and Jones shall be
granted. However, defendants shall not be prevented from
using those witnesses at trial, conditioned on defendants
making the witnesses available for deposition within 30 days
following the docketing of this Memorandum Opinion.
Motion for Surreply and Motion to Strike Surreply
Corporate Defendants filed a Motion for Surreply (ECF 117),
along with the proposed Surreply. ECF 126. Plaintiffs oppose
the Motion for Surreply (ECF 122) and have moved to strike
the Surreply. ECF 127. The Corporate Defendants oppose the
Motion to Strike Surreply. ECF 130.
Rule 105.2(a) provides that a party is not permitted to file
a surreply without permission of the court. The filing of a
surreply “is within the Court's discretion,
see Local Rule 105.2(a), but they are generally
disfavored.” EEOC v. Freeman, 961 F.Supp.2d
783, 801 (D. Md. 2013), aff'd in part, 778 F.3d
463 (4th Cir. 2015); see also, e.g., Chubb &
Son v. C & C Complete Servs., LLC, 919
F.Supp.2d 666, 679 (D. Md. 2013). A surreply may be permitted
when the party seeking to file the surreply “would be
unable to contest matters presented to the court for the
first time” in the opposing party's reply.
Clear Channel Outdoor, Inc. v. Mayor & City Council
of Baltimore, 22 F.Supp.3d 519, 529 (D. Md. 2014)
(quotations and citations omitted). However, a surreply is
not permitted where the reply is merely responsive to an
issue raised in the opposition. See Khoury v.
Meserve, 268 F.Supp.2d 600, 605-06 (D. Md. 2003). In
that posture, there was a full opportunity to present the
movant's arguments, and a surreply is unnecessary.
Id. at 606.
their Motion for Surreply, the Corporate Defendants state no
legal basis for why a surreply is appropriate. Instead, they
assert: “Plaintiff(s) have intentionally misstated and
mischaracterized the facts of the case and the arguments
contained therein.” ECF 117 at 1. Moreover, they state
that they “respectfully seek clarity and further
support its [sic] previous arguments in aid of this Honorable
Court's dispositive Ruling.” Id. The
Corporate Defendants offer no specifics, nor do they cite any
legal authority for their Motion for Surreply.
I do not view the Surreply as a response to a matter raised
for the first time in the Reply, I shall deny the Motion for
Surreply. As a result, I shall deny, as moot, plaintiffs'
Motion to Strike Surreply. ECF 127.
Plaintiffs' Motion for Partial Summary Judgment
seek summary judgment as to four issues: (1) whether
plaintiffs were employees of defendants for purposes of the
FLSA, MWHL, and MWPCL; (2) whether defendants violated the
FLSA, MWHL, and MWPCL by failing to pay plaintiffs a minimum
wage; (3) whether plaintiffs are entitled to recover wage
damages equal to the minimum wage for each week while
employed by defendants; and (4) whether defendants'
affirmative defenses may be applied to mitigate or negate the
award of wages and damages.
reasons that follow, I shall grant the Motion in part and
deny it in part.
Standard of Review
Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is appropriate only “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24
(1986); see also Iraq Middle Mkt. Dev. Found. v.
Harmoosh, 848 F.3d 235, 238 (4th Cir. 2017) (“A
court can grant summary judgment only if, viewing the
evidence in the light most favorable to the non-moving party,
the case presents no genuine issues of material fact and the
moving party demonstrates entitlement to judgment as a matter
of law.”). The non-moving party must demonstrate that
there are disputes of material fact so as to preclude the
award of summary judgment as a matter of law. Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 585-86 (1986).
Supreme Court has clarified that not every factual dispute
will defeat the motion. “By its very terms, this
standard provides that the mere existence of some
alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment;
the requirement is that there be no genuine issue of
material fact.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986) (emphasis in
original). A fact is “material” if it
“might affect the outcome of the suit under the
governing law.” Id. at 248. There is a genuine
issue as to material fact “if the evidence is such that
a reasonable jury ...