Summary
denying plaintiff's motion for judgment on the pleadings after determining that defendant did not act in bad faith by asserting that it lacked knowledge or information regarding plaintiff's allegations and thus had not admitted the allegations were true
Summary of this case from Nationwide Agribusiness Ins. Co. v. Varco Pruden Bldgs., Inc.Opinion
Civil Action No. 5:04-CV-144-C.
August 17, 2004
ORDER
ON THIS DAY THE COURT CONSIDERED Plaintiff JAMES SULLIVAN's Motion for Partial Summary Judgment, filed on July 14, 2004. Defendants did not file a Response.
Plaintiff argues that he is entitled to partial summary judgment on the issue of liability because Defendants have failed to comply with Rule 8(b) of the Federal Rules of Civil Procedure which requires that "[a] party shall state in short and plain terms the party's defenses to each claim asserted and shall admit or deny the averments upon which the party relies." FED. R. CIV. P. 8(b). Specifically, Plaintiff contends that Defendants' Answer does not make any denial whatsoever and that consequently Defendants' failure to deny Plaintiff's allegations constitutes an admission, citing Federal Rule of Civil Procedure 8(d) and J.B.C. Lockwood, Jr. v. Wolf Corporation., 629 F.2d 603, 611 (9th Cir. 1980).
Generally, a party must have adequate time to discover information essential to his opposition before entry of summary judgment is appropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511 n. 5 (1986). The Court is of the opinion that summary judgment on the issue of liability is premature at this point in the litigation, as Plaintiff has made claims on behalf of others similarly situated. The FLSA "provides that one or more representative plaintiffs can pursue a collective action alleging violations of [its] . . . provisions." Cash v. Conn Appliances, Inc., 2 F. Supp. 2d 884, 897 (E.D. Tex. 1997) (citing 29 U.S.C. § 216(b)). To maintain a collective action, the named representatives and the members of the prospective collective action must be similarly situated, and the action must be one of general effect, not one which is purely personal to the individual plaintiff. Id. A showing that there are other employees of the employer who desire to opt in also must be made before a case can proceed as a FLSA collective action. Id. These unresolved issues make summary judgment premature at this point.
The Court notes that Defendants have failed to respond to Plaintiff's motion. Rule 56(e) requires a non-moving party to "set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). This does not mean, however, that a moving party is automatically entitled to summary judgment if the opposing party does not respond. See Anchorage Assocs. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 174-75 (3d Cir. 1990). Even were the Court to consider Plaintiff's motion for summary judgment as timely, Rule 56(e) specifically provides that "[i]f the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." FED. R. CIV. P. 56(e) (emphasis added). The Court still maintains the discretion to determine whether summary judgment is appropriate, i.e., whether the moving party has shown itself to be entitled to judgment as a matter of law.
Because Plaintiff does not ask the Court to go beyond the pleadings to resolve the issue of liability, his motion is more in the nature of a Rule 12(c) motion for judgment on the pleadings, and as such it would not be premature. Therefore, the Court will convert it to a Rule 12(c) Motion for Judgment on the Pleadings. Under a Rule 12(c) motion, the standard is the same as that applied to Rule 12(b)(6) motions, i.e., judgment on the pleadings is appropriate where, even if all allegations of fact of the opposing party are accepted as true, the moving party is nevertheless clearly entitled to judgment as a matter of law. Hebert Abstract Co., Inc. v. Touchstone Props., Ltd., 914 F.2d 74, 76 (5th Cir. 1990). The issue here is how the Court is to assess the allegations of fact of Defendants, who are the opposing parties. While Plaintiff would have this Court deem Defendants to have admitted Plaintiff's statement of the facts, Plaintiff's argument fails to consider the significance of the second sentence of Rule 8(b), which states that "if a party is without knowledge or information sufficient to form a belief as to the truth of an averment, the pleader shall so state and this has the effect of a denial." FED. R. CIV. P. 8(b). The Court notes that an answer may not have the effect of a denial where the facts are patently within the defendant's personal knowledge. See Harvey Aluminum, Inc. v. NLRB, 335 F.2d 749, 758 (9th Cir. 1964) (refusing to treat statement of lack of knowledge or information as denial, and consequently treating it as an admission, where the truth or falsity of the matter was necessarily within the party's control and knowledge); American Photocopy Equip. Co. v. Rovico, Inc., 359 F.2d 745 (7th Cir. 1966) (same). In the present case, however, because Plaintiff has alleged facts involving unnamed, similarly situated persons, it is not bad faith for Defendants to claim they "have no knowledge or information sufficient to form a belief regarding the truth of the allegations of pararagraph (sic) VII of the complaint," and the Court will not deem Defendants to have admitted Plaintiff's allegations.
CONCLUSION
Consequently, summary judgment on the issue of liability is not appropriate under the circumstances, and Plaintiff's Motion for Partial Summary Judgment is DENIED without prejudice to being reasserted later at the appropriate time. Furthermore, having converted Plaintiff's motion into a Rule 12(c) Motion for Judgment on the Pleadings, the Court is of the opinion that this motion should likewise be DENIED.
SO ORDERED.