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W.D.Tex.: Plaintiffs Retained Right to Open and Close at Trial; Defendants’ Attempt to Shift Burden With Admissions on the Eve of Trial Denied
Ransom v. M. Patel Enters, Inc.
This case was before the court on the Defendants’ Motion to Open and Close Evidence and Case. Apparently seeking to gain the tactical advantage of addressing the jury first and last (opening and closing), normally reserved for the plaintiff in a typical case, the defendants sought leave just prior to trial to file a third amended complaint. If granted, defendants’ motion would have permitted them to admit the plaintiffs’ prima facie case (i.e. that they worked uncompensated overtime), and rendered the issue of whether plaintiffs were exempt the sole issue at trial. The plaintiffs refused to accept defendants stipulations regarding their prima facie case, instead preferring to retain the right to open and close the case. Largely due to the fact defendants’ filed their motion on the eve of trial, the court denied defendants’ motion.
Denying defendants’ motion(s), the court reasoned:
“This presents the Court with an atypical controversy—and one which the Court could not find case law discussing: the Plaintiffs oppose the Defendants’ motion to admit facts proving a portion of the Plaintiffs’ case, facts that the Plaintiffs have the burden of proving at trial. Defendants argue that the Plaintiffs’ refusal to agree to the amendment demonstrates that they are trying to unnecessarily prolong the evidence solely to hold on to the right to open and close.
The deadline to amend pleadings passed months ago. Therefore, the Defendants must demonstrate good cause to obtain leave to amend. Meaux Surface Prot., Inc. v. Fogleman, 607 F.3d 161, 167 (5th Cir.2010). “Four factors are relevant to good cause: (1) the explanation for the failure to timely move for leave to amend; (2) the importance of the amendment; (3) potential prejudice in allowing the amendment; and (4) the availability of a continuance to cure such prejudice.” Id. As the Defendants admit, this is a strategic move. They want to present their evidence first. Obtaining a strategic advantage is not good cause for leave to amend. Had the Defendants wished to obtain this advantage, they should have admitted these facts early in the case, instead of contesting them until the final pretrial conference. The Plaintiffs note that they spent time and money gathering evidence on both their prima facie case and on the issue of the individual defendants’ status as “employers” under the FLSA. Therefore, the Court DENIES Defendants’ Motion for Leave to File Third Amended Original Answer (Clerk’s Doc. No. 135).
That still leaves the order of proof. The Defendants argue that, regardless of whether the Plaintiffs accept the stipulations they have offered, the Defendants bear the burden of proof on the primary issue at trial, whether the Plaintiffs were exempt employees under the FLSA. Because the Defendants bear the burden of proof on that issue, they contend that they should present their evidence first.
It appears that there are three primary issues for trial: (1) whether the Plaintiffs can demonstrate a prima facie case under the FLSA (on which there appears to be little or no controversy); (2) whether the Plaintiffs were exempt employees under the FLSA; and (3) whether the Defendants failed to pay overtime “willfully.” The Plaintiffs bear the burden of proof on the first and last of these three items, and the Defendants on the second. As the Defendants note, the bulk of the evidence at trial will no doubt relate to the issue on which they bear the burden of proof. This does not mean that the Defendants should automatically be permitted to open and close, however. The Plaintiffs were the parties who were forced to take the initiative to file this lawsuit, the Defendants have vigorously defended it, and only in the last few days have they sought the right to open and close the evidence. Rule 16 makes it clear that these issues should be raised early in the case, not late. See FED. R. CIV. P. 16(c)(2)(A), (D), (N) and (P) (directing courts at the pretrial conference to address, among other things, “formulating and simplifying the issues,” “avoiding unnecessary proof and cumulative evidence,” “ordering the presentation of evidence early in the trial on a manageable issue that might, on the evidence, be the basis for a judgment,” and “facilitating in other ways the just, speedy, and inexpensive disposition of the action”).
The Court has wide discretion on these matters. Moreau v. Oppenheim, 663 F.2d 1300, 1311 (5th Cir.1981) (“The matter of a court’s allocation of the right to open and close … does not go to the merits of a controversy and has long not been the subject of writ of error, even when coupled with the denial of requested party realignment.”) (citing Day v. Woodworth, 54 U.S. 363, 370, 13 How. 363, 14 L.Ed. 181 (1851)). On balance, considering all of the above, the Court believes that it is appropriate to leave the order of proof as is, so that the Plaintiffs shall open and close. Accordingly, the Court DENIES the Defendants’ Motion to Open and Close Evidence and Case (Clerk’s Doc. No. 128).”
Click Ransom v. M. Patel Enters, Inc. to read the entire Order.