Opinion
2:22-cv-1811 -JCM-VCF
11-16-2023
Julie A. Su, Acting Secretary of Labor, United States Department of Labor, Plaintiff, v. Colvin Construction, Inc., and Michael Colvin, Defendants.
MARC A. PILOTIN Regional Solicitor BORIS ORLOV (CSBN 223532) Counsel for Wage and Hour PAIGE B. PULLEY (CSBN 312596) JULIA B. HAYER (CSBN 333454) Trial Attorneys Office of the Solicitor United States Department of Labor Attorneys for the Plaintiff Secretary of Labor FOR THE DEFENDANTS Kristol Bradley Ginapp Shareholder Holley Driggs
MARC A. PILOTIN Regional Solicitor BORIS ORLOV (CSBN 223532) Counsel for Wage and Hour PAIGE B. PULLEY (CSBN 312596) JULIA B. HAYER (CSBN 333454) Trial Attorneys Office of the Solicitor United States Department of Labor Attorneys for the Plaintiff Secretary of Labor
FOR THE DEFENDANTS Kristol Bradley Ginapp Shareholder Holley Driggs
STIPULATION TO AMEND THE ACTING SECRETARY'S SECOND AMENDED COMPLAINT PURSUANT TO FED R. CIV. P. 15(a)(2) BY STRIKING HER CLAIM OF RETALIATION
CAM FERENBACH UNITED STATES MAGISTRATE JUDGE
Plaintiff Acting Secretary of Labor for United States Department of Labor (“Acting Secretary”) and Defendants Colvin Construction, Inc. and Micheal Colvin (collectively “Defendants”), through their respective counsel, stipulate as follows:
The parties met and conferred on October 26, 2023 and discussed Defendants' Motion to Dismiss Plaintiff's Retaliation Claim of the Second Amended Complaint Pursuant to FRCP 12(b)(6) (ECF No. 42), and Defendants' Alternative Motion for a More Definite Statement Pursuant to FRCP 12(e) (ECF No. 43). The amendment described herein strikes the Acting Secretary's claim regarding the provisions of Section 15(a)(3) of the FLSA, 29 U.S.C. § 215(a)(3) (“Retaliation Claim”). Removal of this cause of action shall be without prejudice pursuant to FRCP 15(a).
The parties acknowledge that as discovery unfolds, new information related to allegations of retaliation by Defendants may be discovered. Therefore, the parties stipulate that the Acting Secretary may seek to amend her operative complaint in the future if she discovers new allegations of retaliation by Defendants during discovery. Any such amendment shall be pled in accordance with FRCP 8(a). This stipulation does not waive or alter Defendants' ability to challenge the sufficiency of any such amendment or seek other appropriate relief under FRCP 12 or any other applicable rule.
The parties, by and through undersigned counsel, hereby stipulate to the Acting Secretary amending her Second Amended Complaint pursuant to FRCP 15(a)(2) by striking the following sentences in ECF No. 41:
1. “Defendants also engaged in retaliation, including by terminating an employee when that employee complained about Defendants' failure to pay wages as required by the FLSA.” Page 2, lines 7 through 9.
2. “Defendants have willfully violated the provisions of Section 15(a)(3) of the FLSA, 29 U.S.C. § 215(a)(3), by retaliating against those exercising rights the FLSA provides. Michael Colvin terminated an employee when that employee complained about Defendants' failure to pay wages as required by the FLSA.” Page 6, lines 7-10.
The parties further stipulate that:
3. Defendants shall have 21 days from the date of the entry of the Court's Order on this stipulation to file their answer to the Acting Secretary's Second Amended Complaint
as amended herein.
4. This stipulation renders moot the relief Defendants seek in ECF No. 42 and ECF No. 43.
Respectfully submitted this 9th day of November 2023.
IT IS SO ORDERED:
IT IS HEREBY ORDERED that ECF Nos. 42 and 43 are DENIED as MOOT.