United States District Court, D. Maryland
RICHARD D. BENNETT, UNITED STATES DISTRICT JUDGE
Helder Vladimir Lovo (“Lovo”) brings this lawsuit
against defendants American Sugar Refinery
(“ASR”) and Ryan Wooters (“Wooters”)
for alleged violations of the Fair Labor Standards Act of
1938 (“FLSA”), 29 U.S.C. § 201 et.
seq.; the Maryland Wage and Hour Law
(“MWHL”), Md. Code Ann., Lab. & Empl. §
3-401 et. seq.; and the Maryland Wage Payment and
Collection Law (“MWPCL”), Md. Code Ann., Lab.
& Empl. § 3-501 et. seq. Now pending are
plaintiff's motion for sanctions (ECF No. 38),
defendants' motion to strike (ECF No. 48),
defendants' motions for summary judgment (ECF No. 36,
37), and plaintiff's motion for partial summary judgment
(ECF No. 40). The motions are fully briefed, and no oral
argument is necessary. See Local Rule 105.6. For the
reasons below, defendants' motions for summary judgment
are granted, and plaintiff's motion for partial summary
judgment, plaintiff's motion for sanctions, and
defendants' motion to strike are denied. Judgment shall
be entered in favor of both defendants ASR and Wooters and
against plaintiff Lovo.
dispute concerns defendants ASR's and Wooters'
alleged wrongful failure to pay overtime compensation to
plaintiff Lovo during Lovo's employment with defendants.
Lovo was employed by ASR, a refiner and seller of sugars and
other sweeteners, from September 28, 2015 to November 24,
2017 as a Process Supervisor at ASR's Baltimore Refinery.
ECF No. 36-3, DeAngelo Decl. ¶ 3; ECF No. 36-4, Lovo Tr.
18:5-9, 55:10-14; ECF No. 36-5, Moore Decl. ¶ 3. As a
Process Supervisor, Lovo reported to a Process Manager, who
in turn reported to the Refinery Manager. ECF No. 36-4, Lovo
Tr. 87:5-9; ECF No. 36-3, DeAngelo Decl. ¶ 13-14. From
June 2016 through the termination of Lovo's employment,
Wooters was the Process Manager to whom Lovo reported. ECF
No. 36-4, Lovo Tr. 93:3-11. Wooters in turn reported to the
Refinery Manager, Kelly DeAngelo (“DeAngelo”).
ECF No. 36-3, DeAngelo Decl. ¶ 14.
Process Department at ASR's Baltimore Refinery is divided
into five areas of operation: (1) the dock operations, where
raw sugar is unloaded from ships and stored in sheds, (2) the
Wash House, where raw sugar is rid of impurities and color,
(3) the Filter House, where sugar is filtered further through
an ion exchange process and carbon filters, (4) the Pan
House, where sugar is filtered again, recrystallized, and
sent to driers, and (5) a specialty products operation, where
sugar is refined for pharmaceutical use. ECF No. 36-3,
DeAngelo Decl. ¶¶ 7-12. From September 2015 to
December 2016, Lovo served as the Process Supervisor for the
dock operations. From December 2016 through the end of his
employment with ASR in November 2017, Lovo served as the
Process Supervisor for the both the Wash House and the Filter
House. ECF No. 36-4, Lovo Tr. 16:17-20, 88:7-10, 148:3-8.
description for the Process Supervisor position lists the
following duties: direct sugar refining operations; direct
teams of specialized employees ensuring good manufacturing
practices and safe operating procedures; and achieve standard
production volume, quality standards, and regulatory
compliance through the supervision of hourly personnel (up to
30) on rotating shifts. ECF No. 36-5, Ex. 1. As Process
Supervisor of the dock operations, Lovo supervised
approximately seventeen to twenty employees, including five
full-time operators and twelve to fifteen
longshoremen. ECF No. 36-4, Lovo Tr. 87:14-88:6,
90:19-91:13. His role was to manage the process of
discharging raw sugar from cargo ships, which required cranes
and heavy equipment to transport the sugar from the holds of
the ships into storage sheds. Id. at 88:11-90:4. As
Process Supervisor of the Wash House and the Filter House,
Lovo supervised approximately five full-time operators.
Id. at 325:6-326:4. In this role, he managed the
refining process to ensure the sugar production goals were
met. Id. at 175:7-9.
on these job duties, ASR characterized Lovo as an exempt
executive and administrative employee under the FLSA and
MWHL. Therefore, Lovo was not paid overtime
compensation. Lovo disputes this characterization, claiming
he was nothing more than “the point of
communication” between upper management and individuals
working as operators. ECF No. 39, p. 2.
Lovo filed suit against ASR in this Court on February 14,
2017. ECF No. 1. Lovo amended his complaint on August 30,
2017, adding Wooters as an additional defendant. ECF No. 13.
Lovo alleges three counts against ASR and Wooters as his
employers based on their failure to pay overtime: (1)
violation of the FLSA, (2) violation of the MWHL, and (3)
violation of the MWPCL. On February 26, 2018, ASR and Wooters
each filed a motion for summary judgment arguing that Lovo
was at all relevant times an exempt employee under the
applicable law. ECF No. 36, 37. In response to
Wooters' motion for summary judgment, Lovo filed a motion
for partial summary judgment. ECF No. 40. Additionally, the
parties have filed two discovery-related motions. First, Lovo
filed a motion for sanctions against ASR on March 28, 2018.
ECF No. 38. Second, ASR and Wooters filed a motion to strike
on April 27, 2018.ECF No. 48.
Federal Rule of Civil Procedure 56(c), a court must grant
summary judgment “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.” See
Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247
(1986). A genuine issue of material fact exists where,
“the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
at 248. The party seeking summary judgment bears the initial
burden of demonstrating the absence of a genuine dispute of
material fact. See Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). When reviewing a motion for summary
judgment, the court must take all facts and inferences in the
light most favorable to the non-moving party. Scott v.
Harris, 550 U.S. 372, 378 (2007).
party opposing summary judgment must, however, “do more
than simply show that there is some metaphysical doubt as to
the material facts.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986); see
also In re Apex Express Corp., 190 F.3d 624, 633 (4th
Cir. 1999). The non-movant “‘may not rest upon
the mere allegations or denials of [his] pleadings,' but
rather must ‘set forth specific facts showing that
there is a genuine issue for trial.'” Bouchat
v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 522
(4th Cir. 2003) (alteration in original) (quoting
Fed.R.Civ.P. 56(e)); see also Adickes v. S. H. Kress
& Co., 398 U.S. 144, 160-61 (1970). A court should
enter summary judgment when a party fails to make a showing
sufficient to establish elements essential to a party's
case, and on which the party will bear the burden of proof at
trial. Celotex Corp., 477 U.S. at 322-23.
initial matter, the parties raise numerous issues related to
discovery. Lovo moves for sanctions against ASR, requesting
that this court (1) strike confidentiality designations from
ASR's discovery production and strike the documents
themselves, (2) strike two exhibits attached to ASR's
motion that were not produced in discovery, and (3) strike
the “Declaration of Kelly DeAngelo” submitted and
relied upon by ASR (ECF No. 36-3). ECF No. 38. ASR and
Wooters move to strike the “Statement of Michael
Ford” submitted and relied upon by Lovo (ECF No.
39-13). ECF No. 48. For the following reasons, both motions
Lovo contends ASR improperly designated 943 pages of produced
documents as confidential in violation of this court's
discovery order. Pursuant to Federal Rule of Civil Procedure
37, Lovo requests that this court (1) strike the
confidentiality designations from all of ASR's discovery
production, (2) strike specific documents designated as
confidential and attached to ASR's motion and prevent ASR
from relying upon them as evidence in support of its motion,
and (3) order ASR and/or its counsel to pay Lovo's
attorneys' fees incurred in asserting this motion. ECF
No. 38-1, p. 21.
31, 2017, ASR produced 156 documents in response to
Lovo's first discovery request. ECF No. 38-1, ¶ 1.
On August 15, 2017, Lovo submitted to ASR supplemental
discovery requests, in response to which ASR produced an
additional 367 documents. Id. at ¶ 2. On
September 8, 2017, Lovo submitted a third request for
documents. Id. at ¶ 4. In response to this
request, ASR informed Lovo that it needed a protective order
before making the production because of the confidential
nature of the documents requested. Id. Accordingly,
the parties signed and submitted to this Court a proposed
discovery order regarding confidentiality. Id. at
¶ 5; ECF No. 23. This Court signed the order (the
“Confidentiality Order”) on November 9, 2017. ECF
relevant part, the Confidentiality Order instructs,
The designation of confidential information shall be made by
placing or affixing on the document…the word
‘CONFIDENTIAL.' One who provides material may
designate it as ‘CONFIDENTIAL' only when such
person in good faith believes it contains sensitive personal
information, trade secrets or other confidential research,
development, or commercial information which is in fact
confidential. A party shall not routinely designate material
as ‘CONFIDENTIAL,' or make such a designation
without reasonable inquiry to determine whether it qualifies
for such designation.
ECF No. 26, ¶ 1(a). Additionally, the Confidentiality
Order requires that documents designated as confidential that
need to be filed with the court be filed under seal.
Id. at ¶ 2. The Confidentiality Order allows
either party to challenge a designation of confidentiality
upon motion, placing the burden of proving the
confidentiality on the party asserting confidentiality.
Id. at ¶ 4. If such a motion is granted, the
moving party is entitled to attorneys' fees pursuant to
Federal Rule of Civil Procedure 37(a)(5) unless “(i)
the movant filed the motion before attempting in good faith
to obtain the disclosure or discovery without court action;
(ii) the opposing party's nondisclosure, response, or
objection was substantially justified; or (iii) other
circumstances make an award of expenses unjust.”
the Confidentiality Order was signed, ASR produced 943 pages
of documents, each of which it designated as
“CONFIDENTIAL.” ECF No. 38-1, ¶ 6. Lovo
claims ASR over-designated documents as confidential and
asserts that each of the 943 pages was improperly designated
as confidential. Id. at ¶¶ 6-7. This
over-designation allegedly prejudiced Lovo because it
required Lovo to file any designated documents on which it
relied in its motions briefings under seal. Id. at
¶ 10. Meanwhile, ASR failed to file under seal
designated documents on which it relied in its briefings.
bears the burden of proving the confidentiality of the
documents disputed by Lovo. This Court need not, however,
engage in the task of combing through 943 pages of documents
to determine whether ASR has met its burden. The production
at issue consisted of company emails and personal cell phone
records, characterized by ASR as confidential
“commercial information” and “sensitive
personal information.” ECF No. 42, p. 4; ECF No. 42-1
(describing the need for a protective order because the
requested emails “include[d] confidential information
about the operation of ASR's business”). Because
the documents produced consisted of business emails and
personal phone records, ASR did not violate the
Confidentiality Order by designating these documents as
confidential. Thus, Lovo's motion is denied with respect
to the designations.
even if ASR's designations violated the Confidentiality
Order, the designations were substantially justified.
Additionally, ASR offered to re-evaluate and negotiate any
documents that Lovo wished to attach to its
briefings. Accordingly, sanctions are unnecessary.
Exhibits Not Produced in Discovery
Lovo requests two exhibits attached to ASR's motion for
summary judgment be stricken because they were not produced
in discovery. The first exhibit is an email chain between
Lovo and DeAngelo dated November 19, 2017 (the
“November 19 Email”). ECF No. 36-3, Ex. 1. The
second exhibit is an email from Lovo announcing his
resignation dated November 24, 2017 (the “November 24
Email”). ECF No. 36-5, Ex. 3. Lovo contends these
emails should have been produced during discovery in response
to three of Lovo's document requests. ASR made its
production in response to the three relevant requests on
November 10, 2017, at which time the emails in question did
not yet exist. ASR did not supplement its production with
these emails at a later date.
Federal Rule of Civil Procedure 37(c), “[i]f 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.” The court may
also, “on motion and after giving an opportunity to be
heard, ” impose other sanctions. Fed.R.Civ.P. 37(c).
District courts have broad discretion to determine whether a
party's non-disclosure of evidence is substantially
justified or harmless. Wilkins v. Montgomery, 751
F.3d 214, 222 (4th Cir. 2014). The Fourth Circuit has
announced five factors to guide this analysis:
(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 non-disclosing party's explanation for its
failure to disclose the evidence.
Id. (quoting S. States Rack & Fixture, Inc.
v. Sherwin-Williams Co., 318 F.3d 592, 596-97 (4th Cir.
2003)). The non-disclosing party bears the burden of
establishing these factors, but courts are “not
required to tick through each of the factors” in
explaining their analyses. Id. (emphasis deleted).
failure to disclose the November 19 and November 24 emails
was harmless. First, these emails were of no surprise to Lovo
given that the emails were either sent by or received by Lovo
while this litigation was pending. ECF No. 36-3; ECF No.
36-5. Second, because there was no surprise, there was no
need for Lovo to cure the surprise. The third factor
concerning disrupting trial is irrelevant because today's
decision on the summary judgment motions closes this case.
Fourth, both exhibits are of minimal importance. It is
undisputed that the November 24 Email in which Lovo announced
his resignation is “of minimal consequence.” ECF
No. 38-1, p. 21; ECF No. 42, p. 8. The November 19 Email is
more important as it serves as evidence of the type of
decisions Lovo routinely made as Process Supervisor, but it
was not the only evidence suggestive of Lovo's level of
decision-making and is therefore not of significant
importance. Finally, ASR explains that its counsel did not
determine that the emails were responsive to Lovo's
discovery requests until it prepared its motion for summary
judgment. ECF No. 42, p. 10. In light of these factors, this
Court concludes the non-disclosure was harmless and
accordingly declines to strike the two exhibits.
two affidavits submitted by the parties in support of their
motions are the subject of motions to strike. First, Lovo
moves to strike the “Declaration of Kelly
DeAngelo” (the “DeAngelo affidavit”)
submitted by ASR (ECF No. 36-3) in support of its motion for
summary judgment. Second, defendants move to strike the
“Statement of Michael Ford” (the “Ford
affidavit”) submitted by Lovo (ECF No. 39-13) in
support of his response in opposition to ASR's motion for
Fed.R.Civ.P. 56(c)(4), an affidavit used to support a motion
must “be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters
stated.” “[A] court may strike portions of
affidavits that lack personal knowledge, contain hearsay, or
rest upon conclusory statements.” Contracts
Materials Processing, Inc. v. Kataleuna GmbH Catalysts,
164 F.Supp.2d 520, 527 (D. Md. 2001) (citation omitted).
a district court may decline to consider an affidavit under
the sham affidavit doctrine. Under this doctrine,
“‘a party cannot create a genuine issue of fact
sufficient to survive summary judgment simply by
contradicting his or her own previous sworn statement (by,
say, filing a later affidavit that flatly contradicts that
party's earlier sworn deposition) without explaining the
contradiction or attempting to resolve the
disparity.'” Zimmerman v. Novartis Pharm.
Corp., 287 F.R.D. 357, 362 (D. Md. 2012) (quoting
Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795,
806 (1999)). At the summary judgment stage, a court's use
of the sham affidavit rule “must be carefully limited
to situations involving flat contradictions of material
fact.” Id. (citation and internal quotation
requests that this Court strike the DeAngelo affidavit
submitted by ASR in support of its motion for summary
judgment, claiming DeAngelo lacks personal knowledge to
support his affidavit. ECF No. 38-1, p. 26.
affidavit affirms that he has personal knowledge of the
matters to which he testified within the statement. ECF No.
36-3, Appendix A, ¶ 1. DeAngelo served as the Refinery
Manger during the relevant period. Id. at ¶ 2.
As the Refinery Manager, he was at the top of the reporting
chain: Process Supervisors, like Lovo, reported to Process
Managers, like Wooters, who reported to DeAngelo.
Id. at ¶¶ 13-16. DeAngelo's role and
duties as the Refinery Manager are sufficient to show that he
has personal knowledge to support his affidavit. See
Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 135 n. 9
(4th Cir. 2002) (“Bell Atlantic's affidavits
contain sufficient information, including a description of
the affiant's job titles and duties, to establish that
the affiants' statements were made based on personal
knowledge.”). In fact, Lovo personally exchanged emails
with DeAngelo regarding the performance of Lovo's job
duties. See e.g. ECF No. 36-3, Ex. 1. Based on
DeAngelo's role at ASR, job duties, and personal
communications with Lovo about Lovo's job duties, this
Court concludes DeAngelo's affidavit was supported by
personal knowledge, and Lovo's motion for sanctions is
move to strike Ford's affidavit on three grounds: (1)
Ford did not read the affidavit before signing it, (2) the
affidavit is a “sham affidavit” because it is
contradicted by Ford's deposition testimony, and (3) Ford
failed to comply with certain discovery requests. ECF No. 48.
arguments for striking the Ford affidavit are unpersuasive.
First, Ford, who was employed as a Process Supervisor at ASR
during the relevant time period, testified that he “did
read [the affidavit].” He stated, “I actually
went through it, scanned through it…I'm aware of
what's in it.” ECF No. 48-2, Ford Dep. 93:18-94:1.
Second, the affidavit is not a sham affidavit. The sham
affidavit doctrine applies to affidavits that contradict a
party's “own previous sworn
statement.” Zimmerman, 287 F.R.D. at 362
(quoting Cleveland v. Policy Mgmt. Sys. Corp., 526
U.S. 795, 806 (1999)) (emphasis added). Ford's affidavit
was provided to defendants twenty days prior to
Ford's deposition. Accordingly, this doctrine has no
application here. Finally, although defendants now allege
that Ford failed to comply with discovery requests,
defendants never moved to compel disclosure or discovery
pursuant to Federal Rule of Civil Procedure 37. This motion
to strike, filed months after discovery closed, is the first
time defendants have raised the ...