THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
Robert F. Murphy, III, Lead Plaintiff for
Patrol Officer Plaintiffs, et al. and,
Brian C. Grassey, Lead Plaintiff for
Superior Officer Plaintffs, et al.,
Plaintiffs,
v. USDC Case No.: 04-11996 RGS
Town of Natick, et al.
Defendants
PLAINTIFFS' MEMORANDUM OF LAW
IN SUPPORT OF MOTION FOR SANCTIONS
AND AN ORDER COMPELLING DEFENDANTS
TO PROVIDE PROPER RESPONSES TO PLAINTIFFS'
REQUESTS FOR ADMISSION NOS. 22, 36, 39, & 41-96
I. Introduction
Pursuant to Local Rule 7.1(B)(4) Plaintiffs file this memorandum of law
with the Court in support of Plaintiffs' Motion For Sanctions And An Order
Compelling Defendants To Provide Proper Responses To Plaintiffs' Requests For
Admission Nos. 22, 36, 39, & 41-96.
On September 15, 2004 Plaintiffs in the above-captioned matter filed a
complaint alleging that Defendants violated the Fair Labor Standards Act
("FLSA"), 29 U.S.C. §201 et seq. and sought inter alia injunctive and
declaratory relief, along with backpay and liquidated damages. After a pre-trial
conference on March 14, 2005 the court ordered that the parties undertake
100 days of voluntary informal discovery to determine whether there were
Case 1:04-cv-11996-RGS Document 27 Filed 06/07/2006 Page 1 of 18
2
significant damages (or a mere technical violation). During that 100 day period
Defendants' and Plaintiffs' counsel reviewed payroll data of the Town. From
that review Plaintiffs asserted that, if they prevailed, there was a significant
issue of damages (in excess of $300,000). It was in this context that on July 27,
2005 the parties met with the court for a follow-up scheduling conference and
reported the outcome of the informal discovery, summarized above.
After the July 27, 2005 court conference, the Court issued a scheduling
order which provided for written and other discovery through November 2005.
On November 2, 2005 (prior to the discovery deadline) Plaintiffs served their
First Request For Admissions ("RFAs") upon Defendant Town, the relevant
excerpt of which is attached hereto and incorporated herein as Attachment 1.1
Later in December 2005, the Defendant Town issued its responses to Plaintiffs'
RFAs, the relevant excerpt of which is attached hereto and incorporated herein
as Attachment 2.
Plaintiffs were dissatisfied with Defendant's responses and the parties
convened at least two telephone conferences to resolve that dispute between
December 2005 and March, 2006. Rather than filing a motion to compel at
that time, Plaintiffs decided to send a follow-up request for admission which it
hoped, as a practical matter, would avert the need for filing a motion to compel.
Accordingly on March 16, 2006, Plaintiffs served their Third RFAs upon
1 In December 2005 the parties submitted a joint motion to extend the
scheduling order, asserting that Defendants responses to Plaintiffs pending
RFAs in turn would aid the parties in determining the scope of discovery.
Case 1:04-cv-11996-RGS Document 27 Filed 06/07/2006 Page 2 of 18
3
Defendant Town.2 The Third RFA was comprised of fifty-six requests, RFA Nos.
41 through 96, but it was essentially a single question posed by each Plaintiff
going to the issue of whether the Town would admit that each plaintiff was a
non-exempt employee under the FLSA. Plaintiffs provided the RFA in this
format in an effort accommodate concerns raised by counsel relating to the
First RFAs that sought admissions on that topic through a single consolidated
request for admission. The Third RFA served by Plaintiffs upon Defendants in
March 2006 is attached hereto and incorporated herein as Attachment 3.
The time for Defendants to respond to the Third RFAs was extended, by
order of the court, to June 2, 2006, principally because prior lead and
associate counsel of Defendants left employment with the law firm representing
Defendants, and new counsel from the same law firm needed time to acclimate
himself to the case and respond to the pending Third RFAs. On June 2, 2006
Defendants served their responses to Plaintiffs' Third RFAs, a relevant excerpt
of which is attached hereto and incorporated herein as Attachment 4.3
2 There was an intervening Second RFA (which contained only one request)
served in early December which is not in dispute.
3 The last three pages are not included (two signature pages, and one
substantive page) in order to comply with the rule requiring that each item of
attachment be 2.5 megabytes or less. This does not affect the substance of the
analysis since, as discussed later, the Town's response for each of the fifty-six
plaintiffs was essentially the same.
Case 1:04-cv-11996-RGS Document 27 Filed 06/07/2006 Page 3 of 18
4
Again, Plaintiffs were dissatisfied with Defendant's responses. Another
Local Rule 7.1 Conference was convened (via telephone) on June 5, 2006, but
the parties were still unable to resolve the discovery dispute.4
Although Plaintiffs have multiple concerns with the manner in which
Defendant responded to the First RFA,5 for purposes of this motion they have
reduced the area of dispute to Defendant's response to RFA Nos. 22, 36, and
39 of the First RFA (Attach. 1-2); and Defendants entire response to RFA Nos.
41-96 of the Third RFA (Attach. 3-4).
II. Legal Analysis
A. Defendant's Response Regarding RFA Nos.
41-96 Is Defective And Defendant Should Be
Ordered To Provide A Proper Substantive
Response.
Turning first to the Third RFA, served in March 2006, the specific RFA
and response is as follows:
RFA Nos. 41 through 96
For each workweek from September 15, 2001 to present,
each of the Plaintiffs identified below (i.e., one through fifty-six)
have been employed by the Town in its police department as non-
exempt employees within the meaning of the Fair Labor Standards
Act ("FLSA"), 29 U.S.C. §§213(a)(1), such that the Town has been
4 Also, due to the delay caused by the parties attempting to voluntarily resolve
the parties discovery dispute, the parties also sought an additional
enlargement in the time for discovery to fall 2006. There is some confusion in
the record as to whether this joint motion was granted. This issued was
addressed by letter and motion to the court, sent by Defendants' counsel on
May 5, 2006 (Doc # 23-24). It appears that November 11, 2006 is the current
deadline for completion of all written discovery.
5 Plaintiffs are attempting to address those concerns separately through a
Fourth RFA that was served on June 6. Depending upon the outcome of that
Fourth RFA, there may be a further dispute.
Case 1:04-cv-11996-RGS Document 27 Filed 06/07/2006 Page 4 of 18
5
obliged for each such workweek to provide overtime compensation
to each such Plaintiff where they worked over forty-hours per week
pursuant to the FSLA, 29 U.S.C. §207:
Plaintiff No. 1 Robert F. Murphy, III
Plaintiff No. 2 * * * [Each Plaintiff as listed in the
caption is set forth expressly, one
through fifty-six]
(Attach. 3.)
RESPONSE Nos. 41 through 96
Plaintiff No. 1 Robert F. Murphy, III
Response: Objection: Defendant objects to the extent that the
request seeks admissions as to conclusion of law, rather than to
statements or opinions of fact, or the application of law to fact.
Subject to and without waiving the foregoing objections, Defendant
admits only that Plaintiff No. 1, Robert F. Murphy, III, was
employed by the Town in its police department for each workweek
from September 15, 2001 through March 31, 2006. Defendant
denies the remainder of the request.
Plaintiff No. 2 Edward Keraissey
* * * [Defendant's response for each further plaintiff was
delineated in identical fashion, except for some variation on its
statement as to the duration of employment from September 15,
2001 onward.]
(Attach. 4.)
As can be seen from the above, Defendant's objection to RFA Nos. 41-96
is that each of those RFAs sought an admission as to a "conclusion of law"
rather than admission as to "a fact or the application of law to fact". (Attach.
4.) That objection is baseless and should be rejected by the court.
It is true that in order to respond to RFA Nos. 41-96 the Defendant must
apprise itself of the legal standards that bear on the question of whether an
Case 1:04-cv-11996-RGS Document 27 Filed 06/07/2006 Page 5 of 18
6
employee shall be deemed exempt (not eligible for FLSA overtime) or non-
exempt (eligible for FLSA overtime). Those standards are set forth in the FLSA
at 29 U.S.C. §§213(a)(1) and in regulations which appear at 29 C.F.R. §541 et
seq. It is necessary for Defendant to know such standards because it must
then examine the facts relating to the assignments held by each Plaintiff during
the relevant period to determine whether, an application of those facts to the
applicable law and regulations supports the requested admission that each
Plaintiff has worked as a non-exempt employee in each week during the
relevant period (using a three year statute of limitations). On its face,
therefore, Defendant's objection to RFA Nos. 41-96 on grounds that it seeks an
admission as to a "conclusion of law" is frivolous and without colorable basis.
Moreover, RFA Nos. 41-96 provide a quintessential example of an RFA
that is expressly permitted by FRCP Rule 36(a), i.e., an RFA may require a
party engage in "an application of law to fact". FRCP Rule 36(a). In addition to
this express language of FRC Rule 36, the 1970 Amendment Advisory
Committee notes also specifically state that this is contemplated under Rule
36. In so stating the notes provide an example of applying law to the facts
which mirror the analysis that Plaintiffs have asked Defendants to perform on
the question of the exempt or non-exempt status of each Plaintiff. In that
regard the Advisory Committee stated: "For example, an admission that an
employee acted in the scope of his employment may remove a major issue from
trial. . . ." Id. Here, rather than determining whether an employee acted in the
scope of employment as described in the Advisory Committee notes, Plaintiffs
Case 1:04-cv-11996-RGS Document 27 Filed 06/07/2006 Page 6 of 18
7
seek to have Defendant admit that each Plaintiff performed duties in the scope
of a non-exempt employee within the meaning of the Fair Labor Standards Act
("FLSA"), 29 U.S.C. §§213(a)(1), and that "the Town therefore has been obliged
for each workweek to provide overtime compensation to each such Plaintiff
where they worked over forty-hours per week pursuant to the FSLA, 29 U.S.C.
§207."
For the above reasons, the Court should find that the Town has offered a
frivolous basis for refusing to respond to RFA Nos. 41-96. The Court should
issue an order as requested in the subject motion compelling the Town to issue
a proper substantive response. In ordering the Town to so respond, the Court
should also require that the Town to exhaust its investigation into the matter
so that it has all facts germane to the issue and then issue an admission that
is the result of applying the law to the facts. See 1970 Amendment, Advisory
Committee Notes for FRCP Rule 36 (citing Hise v Lockwood Grader Corp., 153
F Supp 276 (D. Nebr. 1957); E. H. Tate Co. v Jiffy Enterprises, Inc., 16 FRD
571 (E.D. Pa. 1954); Finman, The Request for Admissions in Federal Civil
Procedure, 71 Yale L. J. 371, 404-409 (1962); 4 Moore's Federal Practice
§36.04 (2d ed 1966); 2A Barron & Holtzoff, Federal Practice and procedure 509
(Wright ed. 1961).6
B. Defendant's Responses Regarding RFA Nos.
22 And 36 Are Defective And Defendant
6 Plaintiffs reserve for reply a rebuttal argument as to any other bases that
Defendant seeks to assert in any opposition Defendant files in response to this
motion.
Case 1:04-cv-11996-RGS Document 27 Filed 06/07/2006 Page 7 of 18
8
Should Be Ordered To Provide A Proper
Substantive Response.
With respect to RFA Nos. 22 and 36, they were the precursor RFAs to
RFA Nos. 41-96 (RFA Nos. 41-46 having been necessitated by the Town's
failure to properly respond regarding RFA Nos. 22 and 36). The two RFAs and
the Town's response at issue are as follows:
RFA No. 22
Each of the Superior Officer assignments referenced in RFA
No. 21 is not an exempt employment position within the meaning
of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§213(a)(1),
and the Town is obliged to provide overtime compensation to
Superior Officers in each such assignment where they work more
than forty-hours per week as required by the FSLA, 29 U.S.C.
§207.7
RESPONSE NO. 22
OBJECTION: The Defendant objects to this Request to the
extent that it is overly broad in that it refers to “the Superior
Officer assignments referenced in RFA No. 21.” Further, the
Request does not comply with Rule 36(a) of the Federal Rules of
Civil Procedure which states that “each matter of which an
admission is requested shall be separately set forth.”
Notwithstanding and without waiving pending objections, the
Defendant denies that each of the Superior Officer assignments
referenced in RFA No. 21 are not exempt employment positions
7 RFA No. 21 is incorporated by reference in RFA No. 22, and reads as follows:
"Superior Officer Plaintiffs have been assigned to one or more of the following
eight assignments from September 2001 to present unless otherwise indicated:
(a) one Lieutenant assigned as Information Services Commander from
December 9, 2004 onward; (b) approximately eleven Sergeants assigned as
Patrol Supervisors; (c) three of the eleven Sergeants assigned as Patrol
Supervisors also being assigned as Area Commander; (d) one Lieutenant
assigned as Community Services Officer through approximately September
2004; (e) one Lieutenant assigned as Executive Officer; (f) one Sergeant
assigned as Traffic Services Division Officer; (g) one Sergeant assigned as
Administrative Officer; (h) one Lieutenant assigned as Investigative Services
Commander; and (i) one Lieutenant assigned as Operations Commander."
Case 1:04-cv-11996-RGS Document 27 Filed 06/07/2006 Page 8 of 18
9
within the meaning of the Fair Labor Standards Act (“FLSA”), 29
U.S.C. §213(a)(1), and denies that it is obliged to provide overtime
compensation under the FLSA, 29 U.S.C. § 207, to Superior
Officers in each such assignment where they work more than forty-
hours per week.
RFA No. 36
Patrol Officers Plaintiffs have been assigned either as patrol
officers and/or as detectives and all such Patrol Officers are not
exempt employees within the meaning of the Fair Labor Standards
Act ("FLSA"), 29 U.S.C. §§213(a)(1). Rather, the Town is obliged to
provide overtime compensation to Patrol Officer where they work
more than forty-hours per week as required by the FSLA, 29 U.S.C.
§207.
(Attach. 1.)
RESPONSE NO. 36
OBJECTION: The Defendant objects to this Request on the
grounds that it is overly broad in that it refers to all “Patrol Officers
Plaintiffs.” Further, the Request does not comply with Rule 36(a)
of the Federal Rules of Civil Procedure which states that “each
matter of which an admission is requested shall be separately set
forth.”
Notwithstanding and without waiving said pending
objections, the Defendant denies that all Patrol Officer Plaintiffs
have been assigned as either patrol officers and/or as detectives
and denies that it is obliged to provide overtime compensation to
all Patrol Officers where they work more than forty-hours per week
as required by the FLSA, 29 U.S.C. § 207.
(Attach. 2.)
In responding to the above-quoted RFAs, the Town did not object on
grounds that Plaintiffs were requesting admissions which required the
Defendant to reach a conclusion of law. Rather its two objections were on
other grounds.
Case 1:04-cv-11996-RGS Document 27 Filed 06/07/2006 Page 9 of 18
10
Turning to the Town's first objection, for both RFA Nos. 22 and 36, the
Town objected on grounds that the RFAs were "overly broad." It appears that
the Town made this objection because the RFAs in question sought an
admission, in the aggregate, that the entire class of Superior Officer Plaintiffs
(RFA No. 22) and Patrol Officer Plaintiffs (RFA No. 36) were non-exempt
employees within the meaning of 29 U.S.C. §§213(a)(1). That objection cannot
be valid because the RFAs at issue seek to determine whether a finite group of
Plaintiffs, fifty-six of them, shall be classified as exempt or non-exempt within
the meaning of the applicable FLSA statutory provision. The RFAs do not seek
an admission for anyone other than Plaintiffs and therefore they are not overly
broad with respect to the class of individuals who are the subject of the
request. Nor are the RFAs otherwise overly broad with respect to the scope of
the admission. By such RFAs Plaintiffs ask Defendant to apply the law to facts
so that Plaintiffs' can learn whether Defendants admit that each Plaintiff is
non-exempt. This is fully germane to the disposition of the lawsuit because it
clarifies whether the Town will assert an affirmative defense based upon a
factual/legal allegation that one or more of the Plaintiffs is exempt and
therefore not entitled to FLSA overtime payments. Under these circumstances,
the objection that the request is "overly broad" should be rejected as a frivolous
objection with no colorable basis.
With respect to the second objection, for both RFA Nos. 22 and 36 the
Town also asserted that the RFAs did "not comply with Rule 36(a) of the
Federal Rules of Civil Procedure which states that 'each matter of which an
Case 1:04-cv-11996-RGS Document 27 Filed 06/07/2006 Page 10 of 18
11
admission is requested shall be separately set forth.'” It appears that the basis
for this objection is that RFA No. 22 is stated as a request for admission in the
aggregate for all Superior Officers, and that RFA No. 36 is similarly defective in
requesting an admission for the aggregate of all Patrol Officer Plaintiffs. The
Court should reject that argument. FRCP Rule 36(a), ¶2 expressly incorporates
the same type of standard as applies to a defendants' duty to respond to
complaint allegations:
A denial shall fairly meet the substance of the
requested admission, and when good faith requires
that a party qualify an answer or deny only a part of
the matter of which an admission is required, the
party shall specify so much of it as is true and qualify
or deny the remainder.
FRCP Rule 36(a)¶2; Cf. FRCP Rule 8(b).
Applying that rule to the above RFAs, then, the Court should find that
Defendant was obliged to admit so much of the request for admission that was
true, and qualify the degree to which it was denying the remainder. It did not
do this. For example, with respect to RFA No. 36, the Town crafted its
response carefully so as to avoid delineating the degree of its agreement or
disagreement with RFA No. 36 by stating "Defendant denies that all Patrol
Officer Plaintiffs have been assigned as either patrol officers and/or as
detectives and denies that it is obliged to provide overtime compensation to all
Patrol Officers where they work more than forty-hours per week as required by
the FLSA." (Attach. 2, RFA No. 36 Response.)
Faced with this response, Plaintiffs' counsel was not sure whether the
Town was denying that each and every Patrol Officer Plaintiff was non-exempt
Case 1:04-cv-11996-RGS Document 27 Filed 06/07/2006 Page 11 of 18
12
or whether the Town was being evasive and denying that "all" Patrol Officers
were non-exempt. The former understanding of the Town's response (i.e., that
all patrol officers were exempt) would be a remarkable assertion. It would be
remarkable because police officers and sergeants have long been considered
non-exempt by the courts. Indeed, it was recognition of this and a desire to
avoid costly litigation of the non-issue of the alleged exempt status of police
officers, that lead the Department of Labor (DOL) to revise the FLSA regulations
effective August 23, 2004so as to expressly state that police officers were non-
exempt. See 69 Fed. Reg. 22, 221 (Apr. 23, 2004), discussing this background
as rationale for implementing 29 C.F.R. §541.3(b), where the regulations
expressly address the non-exempt status of police officers
It was in this context that Plaintiffs' counsel engaged in a Local Rule 7.1
telephone conference with opposing (predecessor) counsel for the Town, to
clarify the Town's response regarding "all" patrol and superior officers in RFA
Nos. 22 and 36. During said Local Rule 7.1 conferences Defendant's counsel
stated that the Town did not have to qualify its response regarding the exempt
and non-exempt status of patrol and superior officers. Instead, Defendant's
counsel asserted in effect that Defendant could respond to the request for
admission as though it were a response to a cross examination question (i.e.,
that the Town would deny the entire RFA unless it was completely true as
Case 1:04-cv-11996-RGS Document 27 Filed 06/07/2006 Page 12 of 18
13
presented, without any need to qualify any aspect of the request that was true).
The parties agreed to disagree and the conference concluded.8
Based upon this analysis, the Court should find that the Plaintiffs were
within their rights under FRCP Rule 36 in posing the RFA Nos. 22 and 36
which, as noted above, sought a broad admission that would establish that all
Plaintiffs were non-exempt. Further the Court should find that the Town
breached its obligation under FRCP 36 by responding with a general denial,
without compliance with the FRCP Rule 36 standard that requires that a
response to a RFA shall "fairly meet the substance of the requested admission,
and when good faith requires that a party qualify an answer or deny only a part
of the matter of which an admission is required, the party shall specify so
much of it as is true and qualify or deny the remainder." Accordingly, the
Court should find that the Town's responses regarding FRCP Rule 22 and 36
were defective and the motion should be sustained to the extent that it relates
to compelling a proper response to RFA Nos. 22 and 36.9
8 It was in that context that Plaintiffs' counsel, in an effort to avoid a
continuing dispute, fashioned the RFAs as separately pertaining to each and
every Plaintiff, RFA Nos. 41-96, Attach. 3, still to no avail.
9 Regarding RFA No. 22 the Town also may be objecting on grounds that, to
understand RFA No. 22, requires that RFA No. 21 be read. That objection is
without basis since RFA No. 22 is clear and unambiguous, and it incorporates
by reference the job titles expressly defined in RFA No. 22.
Case 1:04-cv-11996-RGS Document 27 Filed 06/07/2006 Page 13 of 18
14
C. Defendant's Responses Regarding RFA No. 39
Is Defective And Defendant Should Be
Ordered To Provide A Full And Proper
Substantive Response.
Defendant objected as well to providing a full response to RFA No. 39, as
follows:
RFA No. 39
From September 2001 to September 2004 the Town has not
sought a legal opinion from its counsel or the Department of
Labor relating to the lawfulness of its overtime payment practices
including whether it must add wage augments to the calculation of
regular pay in computing overtime within the meaning of O'Brien
v. Town of Agawam, 350 F.3d 279 (2003); whether Superior
Officers are entitled to overtime for work performed immediately
before and after the end of their shift; and whether "private details"
that are performed for aspects of the Town's operations constitute
"hours worked" on behalf of the Town within the meaning of FLSA,
29 U.S.C. §207.
(Attach. 1)
RESPONSE NO. 39
OBJECTION: The Defendant objects to this Request based
on the grounds that it seeks information and/or communications
which are protected by the attorney client privilege. The Defendant
further objects based on the grounds that it seeks to discover the
thoughts, mental impressions, strategy and theories of the
Defendant’s attorneys. Further, the Request does not comply with
Rule 36(a) of the Federal Rules of Civil Procedure which states that
“each matter of which an admission is requested shall be
separately set forth.”
Notwithstanding and without waiving pending objections, the
Defendant admits that from September 2001 to September 2004,
the Town has not sought a legal opinion from the Department of
Labor relating to the lawfulness of its overtime payment practices.
(Attach. 2.)
Case 1:04-cv-11996-RGS Document 27 Filed 06/07/2006 Page 14 of 18
15
The Town's response to the foregoing RFA No. 39 is defective in that it
refuses to respond regarding whether the Town obtained a legal opinion from
its counsel pertaining to the lawfulness of its overtime payment practices.10
As a starting point in evaluating this RFA it is important to understand
its relevance. The FLSA at Section 216(b), 29 U.S.C. §216(b), provides for
liquidated damages as an element of the remedy for unlawful non-payment of
overtime:
Any employer who violates the provisions of section 6
or section 7 of this Act [29 USCS §§ 206 or 207] shall
be liable to the employee or employees affected in the
amount of their unpaid . . . unpaid overtime
compensation . . . and in an additional equal amount
as liquidated damages.
29 U.S.C. §216(b) (emphasis added). With regard to the standard applicable in
determining whether liquidated damages are owing, the following summarizes
the law in this area:
Once it has been determined that the State
violated the Act, it must show that it acted reasonably
and in good faith in order to avoid liability for
liquidated damages. Here the burden of proof rests
with the [the employer]. The standard for determining
whether or not to grant liquidated damages is whether
the employer "acted in good faith and had reasonable
grounds for believing that its acts did not violate [the
Act]." "The 'good faith' requirement is subjective and
requires proof that the employer had an honest
intention to ascertain and follow the requirements of
the statute. The 'reasonableness' requirement is an
objective one, and ignorance alone does not serve to
exonerate the employer."
10 It provided such information regarding whether it contacted the Department
of Labor (admitting that it had not received an opinion from the DOL).
Case 1:04-cv-11996-RGS Document 27 Filed 06/07/2006 Page 15 of 18
16
Andrews v. Dubois, 888 F. Supp. 213, 221 (D. Mass. 1995) (citations omitted)
(citing, inter alia, Reich v. Newspapers of New England, Inc., 834 F. Supp. 530,
542 (D.N.H. 1993), aff'd, 44 F.3d 1060 (1st Cir. 1995)).
Given the foregoing standard, the Court should find that liquidated
damages are mandatory unless the employer proves the elements of "good
faith" and "reasonableness" noted above. Unless Defendants are willing to
concede the lack of good faith and reasonableness of their violation of the comp
time law, the Court should allow discovery relating to the issue of whether the
Town received advice of counsel substantiating the lawfulness of its FLSA
overtime practices since it goes to the reasonableness of the Town's actions.
Dubois, 888 F. Supp. at 221.
In addition, the Court in this case must determine whether there was a
willful violation as alleged in the complaint, which in turn would warrant a
three year statute of limitations versus a two years limitations period for non-
willful violations. Reich v. Newspapers of New England, 44 F.3d 1060 (1st Cir.
1995) ("[t]he FLSA imposes a two-year statute of limitations unless the
violations are shown to be willful, in which case a three-year period applies.")
(citing 29 U.S.C. §255(a)); Andrews v. Dubois, 888 F. Supp. 213 (D. Mass.
1995). FLSA violations are willful where the employer "knew or showed
reckless disregard for the matter of whether its conduct was prohibited by the
statute." McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988);
Newspapers of New England, 44 F.3d at 1079. Accordingly, damages will run
from September 15, 2001 onward in the case of a willful violation (3 years prior
Case 1:04-cv-11996-RGS Document 27 Filed 06/07/2006 Page 16 of 18
17
to the date that the complaint was filed) and September 15, 2002 onward in
the case of a non-willful violation (2 years prior).
In this case Plaintiffs seek an admission that at all times material the
Town did not receive advice from its legal counsel that substantiated the
lawfulness of its FLSA overtime payment practices. Plaintiffs sought this
admission because said fact goes to the issue of the recklessness and
reasonableness of the Town's FLSA overtime payment practices. Consequently,
the Town should be required to present such pre-lawsuit information on the
question of whether it received a legal opinion from its counsel on this point. If
it fails to provide such information then, pursuant to FRCP Rule 36, the
admission should be deemed true.
Case 1:04-cv-11996-RGS Document 27 Filed 06/07/2006 Page 17 of 18
18
III. Conclusion
Based upon the foregoing analysis Plaintiffs respectfully request that the
Court GRANT the subject Motion For Sanctions And An Order Compelling
Defendants To Provide Proper Responses To Plaintiffs' Requests For Admission
Nos. 22, 36, 39, & 41-96 in all respects.
Respectfully submitted,
For Plaintiffs,
By their attorneys,
/s/ Jack J. Canzoneri
Jack J. Canzoneri, BBO #564126
McDonald Lamond & Canzoneri
Cordaville Office Center
153 Cordaville Road, Suite 210
Southborough, MA 01772
(508) 485-6600
Dated: June 7, 2006
CERTIFICATE OF SERVICE
I, Jack J. Canzoneri, hereby certify that I have this day via the Electronic
Case File system, served a copy of the forgoing Plaintiffs' Memorandum Of Law
In Support Of Motion For Sanctions And An Order Compelling Defendants To
Provide Proper Responses To Plaintiffs' Requests For Admission Nos. 22, 36,
39, & 41-96 upon John P. Flynn. Esq. and Joseph T. Bartulis, Jr., Esq.
counsel for the Defendants in the above-captioned matter.
Dated: June 7, 2006 /s/ Jack J. Canzoneri
Jack J. Canzoneri
Case 1:04-cv-11996-RGS Document 27 Filed 06/07/2006 Page 18 of 18
