United States District Court, S.D. Georgia, Dublin Division
WILLIE MACK HENRY, BRIAN POWELL, SHAUN POWELL, MELVIN THOMAS, EBB O'NEAL, JR., AUTHOR LEE HAVARD, CHARLINE WRIGHT, and CAROLYN HORNE, Plaintiffs,
JOHNNY VAUGHN, Defendant.
captioned matter brought pursuant to the Fair Labor Standards
Act ("FLSA"), 29 U.S.C. § 201 et
seq., is scheduled for a bench trial on November 28,
2017. In its Order of October 10, 2017, the Court granted
Plaintiffs' motion to withdraw their request for a jury
present, Defendant Johnny Vaughn has moved the Court to
reconsider the Order of October 10, 2017. In the Order, the
Court noted that Defendant Vaughn did not object or otherwise
discuss Plaintiffs' representation at the pretrial
conference that they planned to file a motion to withdraw
their jury demand. The Court also noted that Defendant Vaughn
did not timely respond to Plaintiffs' written motion to
withdraw, which was filed on September 8, 2017. Accordingly,
the Court determined that Defendant Vaughn consented to the
withdrawal of the jury trial demand. (See Order of
Oct. 10, 2017, Doc. No. 69, at 2-3.)
motion for reconsideration, Defendant Vaughn complains that
he did not affirmatively assent to the withdrawal of the jury
demand at the pretrial conference because he was not asked.
This argument is unavailing, however, because the Court gave
Defendant Vaughn every opportunity to bring up the matter
when it asked him more than once if he had anything else he
wanted to discuss. More importantly, the Court has now had
opportunity to review the audio recording of the pretrial
conference proceeding. The following exchange took place:
THE COURT: What else, Mr. Vaughn?
DEFENDANT: I was looking at the pretrial order here.
There's some things on here that I did not -- that I saw
for the first time and I was not in agreement with any jury
trial. I was not in agreement.
Defendant Vaughn affirmatively stated at the pretrial
conference that he did not want a jury trial.
Vaughn also insists that he sent his request for a jury trial
two days after he received Plaintiffs' motion to withdraw
but that it was sent back to him because he had not signed
it. The record of the case belies this assertion.
Clerk docketed a Notice of Filing Deficiency on October 3,
2017, as to "Defendant Notice of Jury Trial
Request/' which is dated September 28, 2017. Defendant
Vaughn's response to Plaintiff's motion to withdraw
was due to be filed on September 22, 2017; accordingly,
Defendant Vaughn's attempt to object was filed too late
even if it had not been deficient.
motion for reconsideration will not be granted unless the
movant can show: (1) an intervening change in controlling
law; (2) the availability of new evidence; and (3) the need
to correct clear error or prevent manifest injustice.
See, e.g., Ctr. for Biological Diversity v.
Hamilton, 385 F.Supp.2d 1330, 1337 (N.D.Ga. 2005);
Sussman v. Salem, Saxon & Nielsen, P.A., 153
F.R.D. 689, 694 (M.D. Ga. 1994). Defendant Vaughn has not
established any of these criteria. Therefore, his motion to
reconsider the Order of October 10, 2017 (doc. no. 70), which
allowed the jury trial demand to be withdrawn, is hereby
Vaughn also filed a "Motion to Dismiss Statute of
Limitations." The statute of limitations for an FLSA
overtime compensation claim is two years unless the
employer's violation was willful, in which case the FLSA
allows a three-year statute of limitations period.
See 29 U.S.C. § 255(a).
his motion, Defendant Vaughn complains that "[n]o
plaintiff has addressed or stated that any act of the
employer was willful." (Doc. No. 71, at 1.) This is not
true. Plaintiffs assert throughout the complaint that the
failure to compensate them in accordance with the FLSA was
willful. (Compl., Doc. No. 1, ¶¶ 36, 41, 49, 57,
64, 71, 79, 87, 95, 103.) Defendant Vaughn raised the statute
of limitations defense in his answer (Ans., Doc. No. 6, Third
Defense), and it will be enforced against Plaintiffs'
claims for damages. Whether the limitations period will be
two years or three years will depend upon Plaintiffs'
proof at trial. Indeed, the burden will be on Plaintiffs to
show not only an FLSA violation but also that any violation
was willful if they want the three-year statute of
limitations to apply. Accordingly, to the extent that
Defendant Vaughn seeks to foreclose the opportunity for
Plaintiffs to establish willfulness in the trial of the case,
his motion to dismiss (doc, no. 71) is
DENIED. Both parties will be permitted to
introduce any admissible evidence on the issue of willfulness
for the purpose of determining the correct statute of