Rodriguez et al v. City of Albuquerque

MOTION for Summary Judgment Based on Res Judicata or Collateral Estoppel

D.N.M.November 6, 2008

CH1 11597478.1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO LAWRENCE RODRIGUEZ, STEVEN J. DURAN, ROSEMARY NEAL, JASON BROWN and GREG MIERA, On behalf of themselves and other Present and former City employees, Plaintiffs, v. CITY OF ALBUQUERQUE, Defendant. No. CIV 07-00901 JA/ACT MOTION FOR SUMMARY JUDGMENT BASED ON RES JUDICATA OR COLLATERAL ESTOPPEL Defendant, City of Albuquerque (“City”), by and through its attorneys, Seyfarth Shaw LLP, and pursuant to Fed. R. Civ. P. 56(c) hereby moves for partial summary judgment on the basis of res judicata or collateral estoppel. A Memorandum of Law (“Memorandum”) setting forth the grounds for the City’s Motion is filed with this Motion. Counsel for Plaintiffs has been consulted and Plaintiffs do not concur in this Motion. For the reasons explained in the City’s Memorandum, the City respectfully requests that the Court grant its motion for partial summary judgment and dismiss Plaintiffs’ complaint in its entirety. The doctrine of res judicata, or alternatively collateral estoppel, bars relitigation of Plaintiffs’ claims. Plaintiffs allege that the City has violated the Fair Labor Standards Act by not paying them the overtime wages to which they are entitled. Specifically, they allege they have a right to recover for unpaid overtime wages owed to them for hours worked in excess of their normal 40- Case 1:07-cv-00901-JB-ACT Document 36 Filed 11/06/08 Page 1 of 3 2 CH1 11597478.1 hour or other regular work week. They also allege that the City fails to include all properly applicable “other” compensation in calculating the “regular rate of pay” and that the City is incorrectly taking “credits” or “offsets” against overtime pay. Each of these claims was previously litigated, tried to this Court, and decided in favor of the City in another case, Chavez v. City of Albuquerque, No. 02-0562 JH/ACT (D. N.M.). The Chavez Court decided the exact same claims brought in this case, was between the same parties, and was in fact brought by the same Plaintiffs’ counsel. As explained in the City’s memorandum, all elements of collateral estoppel or res judicata are met and Plaintiffs’ are barred from relitigating their claims. The City respectfully requests that the Court grant its motion for summary judgment, dismissing Plaintiffs’ complaint in its entirety. Respectfully Submitted, Robert M. White City Attorney /s/ Electronically signed Michael Garcia Assistant City Attorneys P.O. 2248 Albuquerque, N.M. 87103 (505) 768-4500 I HEREBY CERTIFY that on the 6th day of November, 2008, I filed the foregoing electronically through the CM/ECF system, which caused the following parties or counsel to be served by electronic means, as more fully reflected on the Notice of Electronic Filing: Sam Bregman, Attorney for Plaintiffs sam@bregmanlawfirm.com Paul Livingston, Attorney for Plaintiffs living@rt66.com Case 1:07-cv-00901-JB-ACT Document 36 Filed 11/06/08 Page 2 of 3 3 CH1 11597478.1 Eric Loman, Attorney for Plaintiffs eric@bregmanlawfirm.com Edward W. Bergmann ebergman@seyfarth.com /s/ Michael I. Garcia Michael I. Garcia Case 1:07-cv-00901-JB-ACT Document 36 Filed 11/06/08 Page 3 of 3