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Rindfleisch v. Gentiva Health Services, Inc.

United States District Court, N.D. Georgia

July 26, 2013

LISA RINDFLEISCH; TIFFANY MELENDEZ; MICHELLE GENTILE; LAURIE BAKER; and CHRISTINA NELMES, on behalf of themselves and others similarly situated, Plaintiffs,
v.
GENTIVA HEALTH SERVICES, INC, Defendant

Decided: July 25, 2013.

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For Lisa Rindfleisch, Tiffany Melendez, Michelle Gentile, Laurie Baker, Christina Nelmes, on behalf of themselves and others similarly situated, Plaintiffs: Abigail E. Shafroth, Christine E. Webber, LEAD ATTORNEYS, PRO HAC VICE, Cohen Milstein Hausfeld & Toll, Washington, DC; Gilda A. Hernandez, LEAD ATTORNEY, PRO HAC VICE, The Law Offices of Gilda A. Hernandez, PLLC, Apex, NC; Samuel L. Starks, LEAD ATTORNEY, Martin & Jones, Atlanta, GA; Walter M. Wood, LEAD ATTORNEY, PRO HAC VICE, H. Forest Horne, Jr., PRO HAC VICE, Martin & Jones-NC, Raleigh, NC; J. Douglas Richards, PRO HAC VICE, Cohen Milstein Hausfeld & Toll, PLLC-NY, New York, NY.

For Gentiva Health Services, Inc., Defendant: A. Michael Weber, LEAD ATTORNEY, PRO HAC VICE, Littler Mendelson, PC-NY, New York, NY; Michael S. McIntosh, LEAD ATTORNEY, PRO HAC VICE, Littler Mendelson, PC -VA, McLean, VA; Steven Wright Likens, LEAD ATTORNEY, PRO HAC VICE, Littler Mendelson, P.C.-TN, Memphis, TN; Angelo Spinola, Anne Marsha Mellen, Marcia A. Ganz, Littler Mendelson, P.C.-Atl, Atlanta, GA; Christine E. Webber, Cohen Milstein Hausfeld & Toll, Washington, DC; Lisa A. Schreter, Littler Mendelson, PC-GA, Atlanta, GA.

OPINION

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ORDER

HONORABLE STEVE C. JONES, UNITED STATES DISTRICT JUDGE.

This matter is before the Court on Gentiva Health Services, Inc.'s (" Gentiva" ) Motion to Exceed Page Limits for Dispositive Motions [Doc. No. 497], Plaintiffs' Motion to Strike the Expert Report and Testimony of Alfred H. Perry, or, in the Alternative, Notice of Objection to the Same [Doc. No. 578], Plaintiffs' Motion to Strike the Declaration and Testimony of Alfred B. Robinson, Jr., or, in the Alternative, Notice of Objection to the Same [Doc. No. 621], Gentiva's Motion to Strike Plaintiffs' Response to Gentiva's Statement of Supplemental Facts in Opposition to Plaintiffs' Motion for Partial Summary Judgment [Doc. No. 623], Gentiva's Request for Oral Argument on its Motion for Partial Summary Judgment on the Lawfulness of its Fee Payments [Doc. No. 572], Gentiva's Motion for Partial Summary Judgment on the Lawfulness of its Fee Payments [Doc. No. 512], Plaintiffs' Motion for Partial Summary Judgment [Doc. No. 502], and Gentiva's Motion for Summary Judgment on the " Uniqueness"

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of Class Members' Duties Under the FLSA's " Fee Basis" Regulation [Doc. No. 511]. For the reasons explained in this order, Gentiva's motion to exceed page limits is GRANTED, Plaintiffs' motion to strike the expert report of Alfred H. Perry, Plaintiffs' motion to strike the declaration Alfred B. Robinson, Jr., and Gentiva's motion to strike Plaintiffs' response to Gentiva's supplemental facts are DENIED, Gentiva's request for oral argument is DENIED, Gentiva's motion for partial summary judgment on the lawfulness of its fee payments is DENIED, Plaintiffs' motion for partial summary judgment is GRANTED, and Gentiva's motion for summary judgment on the " uniqueness" of class members' duties is DISMISSED AS MOOT.

I. FACTUAL AND PROCEDURAL BACKGROUND

Gentiva provides home healthcare services to patients throughout the United States[Doc. No. 508, 1]. [1] To provide these services, Gentiva employs registered nurses and physical or occupational therapists to provide in-home healthcare to Gentiva's patients (collectively " Clinicians" ) [Doc. No. 508, 1]. Since December of 2008, Gentiva pays the majority of its Clinicians on a pay per-visit plan (the " PPV Plan" ) [Doc. No. 586, 4-5]. [2] Under the PPV Plan, Clinicians are paid a set fee for a " routine visit" to a patient's home (" visit fees" ) [Doc. No. 586, 14]. These visit fees do not vary based on the time it takes Clinicians to complete a specific in-home visit [ id. at 15]. In addition, Clinicians under the PPV Plan are also paid on what Gentiva describes as a " flat rate" for non-visit related work (" non-visit fees" ) [ id. at 19]. In setting the amount of non-visit fees, Gentiva factors in the amount of time it takes Clinicians to perform a specific non-visit related activity [ id. ].

Gentiva maintains that the PPV Plan constitutes a " fee basis" payment under the Fair Labor Standards Act (" FLSA" ), 29 U.S.C. § 201 et seq. [ id. at 14]. Therefore, Gentiva classifies all of its Clinicians compensated under the PPV Plan as professional employees exempt from overtime compensation under the FLSA [ id. at 10].

On May 10, 2010, former Clinicians Lisa Rindfleisch, Tiffany Melendez, Michelle Gentile, Laurie Baker, and Christina Nelmes (collectively " named plaintiffs" ) filed this action, on behalf of themselves and other similarly situated individuals, against Gentiva seeking overtime wages under the FLSA [Doc. No. 1, 1]. [3] In support of their FLSA claim, named plaintiffs

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assert that the PPV Plan, because the amount of the non-visit fees incorporates the time it takes Clinicians to complete a specific non-visit activity, constitutes payment on both a fee basis and hourly basis [Doc. No. 502-1, 12-14]. Based on this allegation, named plaintiffs assert that the PPV Plan is a " hybrid compensation system" and, therefore, is not a valid fee basis payment that would exempt them or other Clinicians from receiving overtime pay [ id. ]. Therefore, named plaintiffs assert that Gentiva owes all former and current Clinicians paid under the PPV Plan overtime compensation under the FLSA [Doc. No. 1, 22]. On April 13, 2011, this action was conditionally certified as a collection action under the FLSA, with the class consisting of all Clinicians employed three years prior to April 13, 2011[Doc. No. 167, 11-13].

On May 26, 2011, in order to expedite this proceeding, this Court bifurcated this case into a liability phase and a damages phase [Doc. No. 194, 6]. This action is currently in the liability phase, which concerns whether the PPV Plan is unlawful under the FLSA [ id. at 6-7]. The damages phase, if the PPV Plan is found to be unlawful, will address which Plaintiffs (meaning the named plaintiffs and the Clinicians who have opted into this action) were improperly denied overtime compensation by Gentiva [ id. at 7]. In summary, the only issue for the Court to determine at this stage of the litigation process is whether or not the PPV Plan is unlawful under the FLSA.

As discovery in the liability phase has concluded, Plaintiffs have filed a motion for partial summary judgment regarding the legality of the PPV Plan [Doc. No. 502, 1]. Likewise, Gentiva has filed the following motions regarding this action's core liability issue: 1. A motion for partial summary judgment on the lawfulness of its fee payments [Doc. No. 512, 1]; and 2. A motion for summary judgment on the " uniqueness" of class members' duties under the FLSA's " fee basis" regulation [Doc. No. 511, 1]. In connection with these motions for summary judgment on the liability issue, the following motions have also been filed: 1. Gentiva's motion to exceed page limits for dispositive motions [Doc. No. 497, 1]; 2. Plaintiffs' motion to strike the expert report and testimony of Alfred H. Perry, or, in the alternative, notice of objection to the same [Doc. No. 578, 1]; 3. Plaintiffs motion to strike the declaration and testimony of Alfred B. Robinson, Jr., or, in the alternative, notice of objection to the same [Doc. No. 621, 1]; 4. Gentiva's motion to strike Plaintiffs' response to Gentiva's statement of supplemental facts in opposition to Plaintiffs' motion for partial summary judgment [Doc. No. 623, 1]; and 5. Gentiva's request for oral argument on its motion for partial summary judgment on the lawfulness of its fee payments [Doc. No. 572, 1]. [4] As each is ripe for adjudication, the Court addresses the aforementioned motions below.

II. GENTIVA'S MOTION TO EXCEED PAGE LIMITS FOR DISPOSITIVE MOTIONS

Local Rule 7.1(D) states that " briefs filed in support of a motion or in response to a motion are limited in length to twenty-five (25) pages." LR 7.1(D), NDGa. In this action, Gentiva has filed two motions for summary judgment on the liability issue, attaching with each motion a brief in support that greatly exceeds the 25 page limitation. [5] However, before filing

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its motions for summary judgment, Gentiva filed a separate motion requesting " leave of this Court to file briefs in support of its two motions for summary judgment on class-wide liability that exceed the 25-page limitation set forth in Rule 7.1(D) of the Local Rules of this Court" [Doc. No. 497, 1]. In support of this motion, Gentiva argues " both motions require a detailed presentation and analysis of the extensive evidentiary record in this case and how that establishes Gentiva's entitlement to summary judgment" [ id. at 4]. Plaintiffs oppose Gentiva's motion, arguing " [t]he issues in this case are straightforward and limited in number; they entail neither the complexity nor the range that would warrant such a colossal extension" [Doc. No. 500, 1].

The Court agrees that the significant number of pages Gentiva provides in its attached briefs appear excessive. This is particularly true in light of the fact that this action's liability phase only concerns the legal issue of whether the PPV Plan violates the FLSA. However, the Court acknowledges that Gentiva's motions for summary judgment must synthesize over two years of discovery. Further, the Court notes that Plaintiffs were awarded leave to file a response to Gentiva's summary judgment motion on the lawfulness of its fee payments that exceeded the 25 page limitation [Doc. No. 577, 1]. Therefore, in its discretion, the Court accepts and considers Gentiva's motions for summary judgment in their current form. Accordingly, Gentiva's Motion to Exceed Page Limits for Dispositive Motions [Doc. No. 497] is hereby GRANTED.

III. PLAINTIFFS' MOTION TO STRIKE THE EXPERT REPORT AND TESTIMONY OF ALFRED H. PERRY, OR, IN THE ALTERNATIVE, NOTICE OF OBJECTION TO THE SAME; PLAINTIFFS' MOTION TO STRIKE THE DECLARATION AND TESTIMONY OF ALFRED B. ROBINSON, JR., OR, IN THE ALTERNATIVE, NOTICE OF OBJECTION TO THE SAME; GENTIVA'S MOTION TO STRIKE PLAINTIFFS' RESPONSE TO GENTIVA'S STATEMENT OF SUPPLEMENTAL FACTS IN OPPOSITION TO PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT

A motion to strike is governed by Federal Rule of Civil Procedure 12(f), which states " [t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). Pursuant to Federal Rule of Civil Procedure 7(a), " pleading" is a term of art that is limited to: a complaint; a third-party complaint; an answer to a complaint, counterclaim, crossclaim, or a third party complaint; and, if one is ordered by the Court, a reply to an answer. Fed.R.Civ.P. 7(a)(1)-(7).

Plaintiffs have filed a motion to strike the expert report of Alfred H. Perry, which is attached as an exhibit to Gentiva's motion for summary judgment on the lawfulness of its fee payments [Doc. No. 578, 1]. Plaintiffs have also filed a motion to strike the declaration of Alfred B. Robinson, Jr., ...


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