Mondragon et al v. Fernandez, No. 5:2008cv05722 - Document 102 (N.D. Cal. 2012)
Court Description: ORDER DENYING PLAINTIFF'S RULE 50(B) MOTION FOR JUDGMENT AS A MATTER OF LAW (rmwlc2, COURT STAFF) (Filed on 7/3/2012)
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Mondragon et al v. Fernandez Doc. 102 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 SAN JOSE DIVISION United States District Court For the Northern District of California 10 11 12 13 FLORENCIA MONDRAGON, ) ) ) ) ) ) ) ) ) ) ) Plaintiff, v. JESUS FERNANDEZ, et al., 14 Defendant. 15 16 17 Case No.: C 08-05722 RMW ORDER DENYING PLAINTIFF’S RULE 50(b) MOTION FOR JUDGMENT AS A MATTER OF LAW [Re Docket No. 100] Florencia Mondragon (“plaintiff”), after conclusion of a trial by jury, moves for judgment as 18 a matter of law under Fed. R. Civ. P. 50(b). For the reasons set forth below, the court denies the 19 motion. 20 21 I. BACKGROUND Plaintiff filed this wage and hour case on December 22, 2008, asserting claims under the Fair 22 Labor Standards Act (FLSA) and the California Labor Code (CLC) against her former employer, 23 Jesus Fernandez (“defendant”). The case went to trial on March 27, 2012. During the presentation 24 of defendant’s case, plaintiff’s counsel engaged in the following exchange with the court: 25 26 27 28 Mr. Wang: Well, It’s Okay. Just in case—there’s one issue. Do we have time to move for summary judgment after defense rests? The court: After—if you want to reserve a motion, you can reserve it. I don’t want to hold the jury up, but if you want to make it and argue it later you can. 1 Case No.: C 08-05722 RMW ORDER DENYING PLAINTIFF’S RULE 50(b) MOTION FOR JUDGMENT AS A MATTER OF LAW Dockets.Justia.com 1 Mr. Wang: Okay. Because I think defense failed to make the exemption questions. 2 The court: They haven’t finished their case yet. 3 Mr. Wang: Yeah, I’m prepared for that, Your Honor. 4 5 See Dkt. No. 100 at 6. Plaintiff did not raise her motion for “summary judgment” at any other point during the trial. 6 The jury found that plaintiff was an exempt employee under the FLSA, but deadlocked on the 7 question of whether she was an exempt employee under California law. Plaintiff subsequently 8 brought this motion for judgment as matter of law under Federal Rule of Civil Procedure 50(b), 9 asserting that there is a legally insufficient evidentiary basis for a reasonable jury to determine that United States District Court For the Northern District of California 10 she is an exempt employee under the CLC. 11 II. DISCUSSION 12 1. Plaintiff is Procedurally Barred From Asserting a Rule 50(b) Motion for Judgment as a Matter of Law Because She Did Not Properly Preserve the Motion 13 In order to renew a motion for judgment as a matter of law after trial under Rule 50(b), a 14 party must first challenge the sufficiency of the evidence “before the case is submitted to the jury.” 15 Fed. R. Civ. P. 50(a); see also Humetrix v. Gemplus, 268 F.3d 910, 923 (9th Cir. 2001). A motion 16 under Rule 50(a) must “specify the judgment sought and the law and facts that entitle the movant to 17 the judgment.” Fed. R. Civ. P. 50(a). Courts strictly construe the requirement that a Rule 50(a) 18 motion be made at the close of evidence. See Humetrix, 268 F.3d at 923. This requirement “serves 19 the important purpose of alerting the opposing party to the alleged insufficiency of the evidence at a 20 point in the trial where the party may still cure the defect by presenting further evidence.” Farley 21 Transp. Co. v. Santa Fe Trail Transp. Co., 786 F.2d 1342, 1346 (9th Cir. 1985). 22 This case closely resembles Humetrix. In that case, the defendants’ attorneys paused during 23 the presentation of their own case and engaged in the following colloquy with the court: 24 25 26 27 28 Mr. Devereaux: I just wanted to confirm that the Rule 50 motions the court will hear after the case has been submitted. The court: I will hear the Rule 50 motions after the case. It’s been preserved. Mr. Deutsch [Counsel for Inovaction]: And renewed? 2 Case No.: C 08-05722 RMW ORDER DENYING PLAINTIFF’S RULE 50(b) MOTION FOR JUDGMENT AS A MATTER OF LAW 1 2 The court: And renewed. Humetrix, 268 F.3d at 923. 3 Defendants then failed to move for judgment as a matter of law under Rule 50(a) at the close 4 of evidence. On appeal, the Ninth Circuit found that the above exchange did not preserve a renewed 5 motion for judgment as a matter of law under Rule 50(b). As the court explained, “asking if one will 6 have the opportunity to make a motion and making a motion are two different things.” Id. at 923. 7 In this case, plaintiff concedes that she did not submit a timely motion under Rule 50(a). 8 Nevertheless, she requests the opportunity to “renew” a motion for judgment as a matter of law, 9 claiming that her counsel’s exchange with the court during the presentation of defendant’s case-in- United States District Court For the Northern District of California 10 chief should be construed as a motion under Rule 50(a). However, as plaintiff’s counsel clearly 11 asked if he could move for judgment as a matter of law “once the defense rested,” his question did 12 not put defendant on notice of the alleged inadequacy in his case at a point in the trial when he could 13 “still cure the defect by presenting further evidence.” Farley, 786 F.2d at 1346. Nor did plaintiff’s 14 cryptic reference to “exemption questions” satisfy Rule 50(a)’s requirement to “specify the judgment 15 sought and the law and facts that entitle the movant to the judgment.” Fed. R. Civ. P. Rule 50(a). 16 Thus, under Humetrix, plaintiff’s motion is procedurally barred. 17 Plaintiff’s reliance on Reeves v. Teuscher, 881 F.2d 1495 (9th Cir. 1989) is misplaced. In 18 Reeves, the Ninth Circuit expressly found that the moving parties “attempted to move for a directed 19 verdict after all the evidence was in” but that “the court interrupted them and told them to renew 20 their motion after the verdict.” Id. at 1498. By contrast, in this case, the court specifically stated that 21 if plaintiff wanted to reserve her motion, she must raise it after the defense rested, which she failed 22 to do. Moreover, the trial court in Reeves invited the moving parties to “renew” their motion after 23 the verdict, demonstrating that the judge accepted the pre-verdict motion. Id. Where the court takes 24 a motion for judgment as a matter of law “under advisement” during the trial, it “maintains the 25 motion as a continuing objection to the sufficiency of the evidence, provides notice to the opposing 26 party of the challenge, and constitutes a judicial indication that renewal of the motion is not 27 necessary to preserve the moving party’s rights.” Farley, 786 F.2d at 1346-47. No such 28 3 Case No.: C 08-05722 RMW ORDER DENYING PLAINTIFF’S RULE 50(b) MOTION FOR JUDGMENT AS A MATTER OF LAW 1 acknowledgment by the court occurred here. Accordingly, the court denies plaintiff’s motion under 2 Rule 50(b). 3 4 2. Plaintiff is Not a Nonexempt Employee as a Matter of Law Even if the court considers plaintiff’s motion on the merits, it is denied. Plaintiff asserts that 5 based on the evidence, no reasonable jury could have found that she was an exempt employee as 6 defined by California Labor Code Section 515 and Title 8 of the California Code of Regulations, 7 Section 11050. To qualify for an exemption, California law requires that an employee serve in an 8 administrative, executive or professional capacity, and perform duties commensurate with his or her 9 position at least 50% of the time. See Cal. Lab. Code § 515; Campbell v. PricewaterhouseCoopers, United States District Court For the Northern District of California 10 LLP, 602 F. Supp. 2d 1163, 1182 (E.D. Cal. 2009). To determine if an employee is primarily 11 engaged in exempt duties such that he or she meets the 50% threshold, the court must “inquir[e] into 12 the realistic requirements of the job,” considering not only how the employee actually spends his or 13 her time, but also the employer’s expectations. Ramirez v. Yosemite Water Co., Inc., 20 Cal. 4th 14 785, 802 (Cal. 1999) (emphasis is original). The defendant bears the burden of proving that the 15 employee is exempt. Campbell, 602 F. Supp. 2d at 1171 (citing Ramirez, 20 Cal. 4th at 794-95). 16 In the instant case, plaintiff claims that the evidence produced at trial showed that she spent 17 30.5 hours per week engaged in managerial duties, including: hiring employees, processing 18 employee payrolls, setting up cash registers, ordering inventory, making employee schedules, and 19 supervising employees during their shifts. Dkt. No. 98 at 3-8. Because plaintiff contends that she 20 worked 72 hours per week in total, this falls shy of the 36 hours per week required for her to meet 21 the exemption under California law. According to plaintiff, she spent her remaining hours 22 performing the non-exempt “duties of a bartender.” Dkt. No. 98 at 2. However, a reasonable jury 23 could conclude that during the times when plaintiff worked as a bartender, she simultaneously 24 continued to operate in her managerial role. Cf. 29 CFR § 541.106(b) (“An assistant manager in a 25 retail establishment may perform work such as serving customers, cooking food, stocking shelves 26 and cleaning the establishment, but performance of such nonexempt work does not preclude the 27 exemption if the assistant manager's primary duty is management.”); see also Bell v. Farmers Ins. 28 Exch., 87 Cal. App. 4th 805, 814-15 (Cal. Ct. App. 2001) (“Regulatory history supports the use of 4 Case No.: C 08-05722 RMW ORDER DENYING PLAINTIFF’S RULE 50(b) MOTION FOR JUDGMENT AS A MATTER OF LAW 1 federal authorities as an aid to interpretation of the administrative exemption of title 8, section 2 11040, subdivision 1(A).”). 1 This is particularly plausible given the evidence that she was often the 3 only person working at the establishment, and therefore had to fulfill multiple duties at once. Dkt. 4 No. 93 at 49-50, 70. 5 At oral argument, plaintiff encouraged the court to view her as a “straw boss” hired to 6 perform bartending duties, despite her designation as a manager. 2 However, whether plaintiff was 7 hired as a manager with occasional bartending duties or vice versa is a question of fact. Because 8 there is sufficient evidence for a jury to find that plaintiff was hired as a manager, the court cannot 9 accept the assertion that she was a “straw boss” as a matter of law. Thus, plaintiff has failed to show United States District Court For the Northern District of California 10 that no reasonable jury could find that she is an exempt employee under California law. 11 3. The Court Declines to Consider Whether Entry of Judgment on Plaintiff’s Equitable Claim is Proper Under Rule 52 12 Finally, plaintiff offers the rather novel argument that under Fed. R. Civ. P. 52, the court may 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 enter judgment on her claim for restitution sua sponte, despite the fact both parties consented, either expressly or impliedly, to a jury trial on both equitable and legal claims. Plaintiff contends that the court may declare post-hoc that the jury was “advisory” pursuant to Rule 39(c), which allows equitable claims to be tried to advisory juries, and that because the jury deadlocked, the court’s entry of judgment in her favor would not constitute an impermissible jury “veto.” While plaintiff cites appellate cases upholding somewhat similar procedures by district courts, there is no authority allowing a trial court to declare a jury “advisory” several weeks after the case has concluded. See 1 Similarly, California Wage Orders specifically provides that “The activities constituting exempt work and nonexempt work shall be construed in the same manner as such terms are construed . . . under the Fair Labor Standards Act.” 8 Cal. Code Regs. tit. 8, § 11050(1)(B)(1)(e). 2 The term “straw boss” is used to describe a class of employees known as “working foremen,” who are typically laborers or mechanics engaged in production-type duties. See 29 C.F.R. § 5.2(m); DLSE Enforcement Policies and Interpretations Manual, March 2006, http://www.dir.ca.gov/dlse/dlsemanual/dlse_enfcmanual.pdf. The Department of Labor suggests that the managerial duties of a “straw boss” should not be counted as exempt work for the purposes of meeting the 50% threshold. See id. at 51-3. While the court is highly dubious that plaintiff could fit into such a category, it will assume for the purpose of the instant motion that a bar manager could, under certain circumstances, be considered a “straw boss.” 5 Case No.: C 08-05722 RMW ORDER DENYING PLAINTIFF’S RULE 50(b) MOTION FOR JUDGMENT AS A MATTER OF LAW Merex A.G. v. Fairchild Weston Sys., 29 F.3d 821, 827 (2d Cir. 1994) (district court declared jury 2 advisory at close of plaintiff’s case-in-chief); Ed Peters Jewelry Co. v. C & J Jewelry Co., 215 F.3d 3 182, 188 (1st Cir. 2000) (district court declared jury advisory at close of evidence but before the case 4 was submitted to the jury). Moreover, the cited authorities held that district courts did not abuse 5 their discretion in sua sponte declaring a jury advisory after the presentation of evidence, but noted 6 that “advance notice should be given, if at all possible, of a ruling disqualifying a jury … in what 7 was considered at the outset to be a jury trial.” Id. Other courts have held that advance notice is a 8 prerequisite for invoking Rule 39(c). See Thompson v. Parkes, 963 F.2d 885, 888 (6th Cir. 1992) 9 (“The rule requires that the court’s initiative in ordering a trial to an advisory jury must occur, and 10 United States District Court For the Northern District of California 1 the parties be made aware of it, before the case is submitted.”); Bereda v. Pickering Creek Indus. 11 Park, Inc., 865 F.2d 49, 53 (3d Cir. 1989) (requiring a district court to “notify both sides of a jury’s 12 advisory status no later than the time at which the jury selection has begun”). While the Ninth 13 Circuit has not expressly addressed this issue, it found in a similar context that because of the 14 “significant tactical differences in presenting a case to a court, as opposed to a jury[,] the parties are 15 entitled to know at the outset of the trial whether the decision will be made by the judge or the jury.” 16 Pradier v. Elespuru, 641 F.2d 808, 811 (9th Cir. 1981). Thus, to the extent it has discretion to do so, 17 the court declines to declare the jury advisory at this late stage and without notifying the parties in 18 advance. Accordingly, the court rejects plaintiff’s invitation to consider whether she is entitled to 19 judgment under Rule 52. 20 21 III. ORDER For the foregoing reasons the court denies plaintiff’s motion for judgment as a matter of law. 22 23 IT IS SO ORDERED. 24 Dated: July 3, 2012 25 _________________________________ RONALD M. WHYTE United States District Judge 26 27 28 6 Case No.: C 08-05722 RMW ORDER DENYING PLAINTIFF’S RULE 50(b) MOTION FOR JUDGMENT AS A MATTER OF LAW
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