2005 | Cited 0 times | D. South Dakota | August 26, 2005


Plaintiff, Lee Carda, previously moved for summary judgment asto whether defendant E.H. Oftedal & Sons, Inc., (Oftedal) is anenterprise for purposes of the Fair Labor Standards Act (FLSA),whether the executive exemption applies to this case, and onOftedal's barratry and breach of loyalty counterclaims. Becauseneither party submitted a statement of undisputed material factsas is required by Local Rule 56.1(B), the court was unable todetermine whether there was a jury question as to any of Carda'sclaims. Thus, the court denied the motion for summary judgment.Carda also previously moved in limine to preclude theintroduction of evidence that he secretly copied Oftedal documents. The court granted Carda'smotion in limine. The court also previously granted Carda'smotion to compel requests for admissions.

Carda now renews his motion for summary judgment. Oftedalopposes the motion and moves to reconsider the court's ordergranting the motion in limine to preclude the introduction ofevidence that Carda secretly copied files while he worked forOftedal. Oftedal also asks the court to reconsider its order tocompel. The court grants Carda's renewed motions for summaryjudgment and denies Oftedal's motion to reconsider.


The evidence, viewed in the light most favorable to thenonmoving party, Oftedal, is:

Oftedal is a road construction company based in Miles City,Montana. Oftedal offered Carda a field engineer position inDecember of 2001, while he was an industrial management graduatestudent at South Dakota State University. He was offered anannual salary of $41,000 per year, plus a yearly bonus, 401Kplan, health insurance, life insurance, paid vacation, anout-of-town living allowance, and use of a company vehicle. Cardawas told that he would have to work overtime occasionally andwould not receive overtime pay. Carda accepted the job offer andbegan working for Oftedal on May 20, 2002. Oftedal assigned him to the Strawberry Hill construction projecton Highway 385, near Deadwood, South Dakota.

The Oftedal management structure starts with the field engineerposition, and progresses up to foreman, assistant superintendent,superintendent, estimator, and ultimately to the project manager,the top position. The field engineer is a management trainee whoworks as an assistant to the superintendent and the projectmanager on a particular construction project. A field engineerenters data into a computer, prepares reports, reviews workorders or other reports prepared by foremen, reviews time cards,and performs other clerical duties. The field engineer is alsoresponsible for managing the field office, which includesordering office supplies and forms, ensuring that the officeequipment is working properly, and making sure that all thepaperwork and invoices are properly sorted before sending them tothe Miles City office.

Hal Fluglevand, the president of Oftedal, reviewed Carda'sreports with Oftedal superintendents to minimize projectexpenses. For example, if a report showed that it was spendingtoo much money using a particular construction machine,Fluglevand would substitute a cheaper machine and monitor thechange in the next reports. If a report showed unusual expenses,Fluglevand would discuss it with Carda to determine whether thereport was accurate. Fluglevand testified that a field engineerneeds the ability to analyze information rather than just enter numbers into a computer. Forexample, the field engineer reviews timecards submitted byemployees every day that showed how many hours they had worked.The Strawberry Hill project had 100 employees, so there were 500timecards to review each week. If a timecard appeared to bequestionable, Carda needed to use his judgment based on hisunderstanding of the project and make sure that the proper amountwas paid.

Oftedal superintendent Ken Mumbower testified that the fieldengineer "spends a lot of his day getting information andbuilding a base for how a project will be built. He'll spend alot of his day working with the foremen, superintendents,sometimes on the phone with the project manager, to solveproblems and help the flow of the project." Carda ensured thatthe project had an adequate supply of construction materials,dealt with subcontractors, and made sure that every employeeturned in a timecard. Mumbower testified that Carda was the solecontact with Kip Johnson, the South Dakota Department ofTransportation (DOT) inspector for the project. Carda kept trackof how much work had been done and billed the state accordingly.For example, Carda measured how much of a wire-face wall had beenbuilt because Johnson had disputed the amount that the state owedOftedal for its work. Mumbower stated that Carda was responsiblefor inspecting supplies delivered for the wire-face wall andrejecting a shipment that was damaged. Mumbower hired Chaska Weiscz as a field office clerk to assistCarda. She answered the phone, made copies, and did othersecretarial work primarily for Carda. Carda supervised Weiscz,but Mumbower determined her work schedule and wages. Carda didnot regularly supervise any other employee. Mumbower testifiedthat he got angry with Carda when Carda told Weiscz to come workwith him in the office on a Saturday. Mumbower thought that Cardashould have been in the field that day and that neither of themshould have been working in the office that day.

Mumbower stated that Carda had the authority to hire flaggersand laborers, under his direction. Oftedal hired almost everycertified flagger that applied, but did not hire every laborerthat applied. All hiring decisions had to be approved by Mumboweror a foreman, because Carda would not have known that a positionneeded to be filled unless an Oftedal manager told him. Cardatestified that Mumbower told him to hire a tanker truck driverwhen one of its drivers quit without notice at the end of theworkday. Mumbower told Carda to "have somebody in here in themorning." Carda had applications from three qualified drivers andimmediately hired the first one that he was able to reach byphone. Carda testified that this was the only job interview heconducted at Oftedal, which consisted of calling the truck driverto tell him, "We got a position if you want it." Carda testified that his main responsibility was preparingreports. He entered job cost information into the computer andperformed other miscellaneous tasks as needed. Carda emailed thereports to Fluglevand. Sometimes Fluglevand would notice that acost figure seemed too high or too low, and would ask Carda toinvestigate it. At other times, Carda would notice a problem inthe reports and bring it to Fluglevand's attention. Cardaoccasionally operated a bulldozer or other heavy equipment, andhe once built a silt fence. He sometimes picked up parts or ranother errands. He was responsible for giving new employees drugtests and for notifying management if a test came back positivefor illegal drugs.

Carda testified that he was responsible for submitting billinginformation to Johnson, the DOT representative. Johnson would"stop in and just ask for the printout of the worksheet fromExcel . . . and if he had any questions he'd come back." Cardaalso assisted in making payments to Hoffman, the subcontractorhired to haul rock for the project. Payment was based on theweight of truckloads of rock. The Oftedal scale operator wouldmake scale tickets that listed the weight of the material. Cardawas responsible for checking the scale tickets to see if theoperator had indicated that he had made a mistake. If there was adispute with Hoffman, Carda would show them where an error hadbeen made on its scale ticket. Carda was instructed to submit a time card for the hours thathe worked each week. He was told to enter 40 hours on histimecard even if he worked more than 40 hours per week, becausehe was paid based on an annual salary. Carda testified that heworked more than 40 hours per week every week that he wasemployed by Oftedal. Carda never requested overtime pay and didnot complain that he was working too many hours until earlyAugust of 2003. At this time he told Fluglevand that he was nothappy with the long hours and would be resigning in two weeks. Aco-worker convinced him to keep his job. Carda was laid off onSeptember 12, 2003.

Carda had been keeping his own records of the hours that heworked, and he had consulted an attorney about filing an FLSAsuit against Oftedal. Before he left, he copied several hundredtimesheets and employment records of other Oftedal employees. Healso used a digital camera that belonged to Oftedal to collectother evidence. On April 14, 2004, Carda sued Oftedal, seeking ajudgment for overtime compensation, liquidated damages, and anaward of costs and attorney's fees. Carda now moves for summaryjudgment on several issues. Oftedal opposes the motion forsummary judgment and moves to reconsider evidentiary rulings.


Rule 56(c) of the Federal Rules of Civil Procedure providesthat summary judgment "shall be rendered forthwith if thepleadings, depositions, answers to interrogatories, and admissions on file, together with theaffidavits, if any, show that there is no genuine issue as to anymaterial fact and that the moving party is entitled to a judgmentas a matter of law." Fed.R.Civ.P. 56(c). Only disputes overfacts that might affect the outcome of the case under thegoverning substantive law will properly preclude summaryjudgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Summary judgment is notappropriate if a dispute about a material fact is genuine, thatis, if the evidence is such that a reasonable jury could return averdict for the nonmoving party. Id. The moving party bears theburden of bringing forward sufficient evidence to establish thatthere are no genuine issues of material fact and that the movantis entitled to judgment as a matter of law. Celotex Corp. v.Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265(1986). The nonmoving party is entitled to the benefit of allreasonable inferences to be drawn from the underlying facts inthe record. Vette Co. v. Aetna Cas. & Sur. Co., 612 F.2d 1076,1077 (8th Cir. 1980). The nonmoving party may not, however,merely rest upon allegations or denials in its pleadings, butmust set forth specific facts by affidavits or otherwise showingthat a genuine issue exists. Forrest v. Kraft Foods, Inc.,285 F.3d 688, 691 (8th Cir. 2002). DISCUSSION

1. Coverage under FLSA

An employee becomes subject to the FLSA overtime requirementsif the employee's work is considered to be "engaged in commerce"or "in the production of goods for commerce" or if all of anemployer's employees are covered under enterprise coverage. See29 U.S.C. § 207(a)(1) and 29 U.S.C. § 203(s)(1). Oftedalstipulates that Carda is individually covered for purposes of29 U.S.C. § 207(a)(1) and that it is "engaged in commerce" or "inthe production of goods for commerce" for purposes of thatsection. This narrows the issue to whether Carda was an "exempt"employee under the Act.

2. Executive Exemption

The provisions of the FLSA do not apply to "any employeeemployed in a bona fide executive, administrative, orprofessional capacity[.]" 29 U.S.C. § 213(a)(1). Carda contendsthat he does not qualify as an "executive" for purposes of theFLSA. The current regulations define the term "employee employedin a bona fide executive capacity" as any employee: (a) Whose primary duty consists of the management of the enterprise in which he is employed or of a customarily recognized department or subdivision thereof; and (b) Who customarily and regularly directs the work of two or more other employees therein; and (c) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement and promotion or any other change of status of other employees will be given particular weight; and (d) Who customarily and regularly exercises discretionary powers; and (e) Who does not devote more than 20 percent . . . of his hours of work in the workweek to activities which are not directly and closely related to the performance of the work described in paragraphs (a) through (d) of this section[.]29 C.F.R. § 541.1(a).1

To qualify for the executive exemption, the employer has theburden to prove that the employee customarily and regularlydirects the work of two or more full-time employees. Murray v.Stuckey's, Inc., 50 F.3d 564, 566 (8th Cir. 1995). Cardastates in Plaintiff's Statement of Undisputed Material Facts(PSUMF) that he did not customarily and regularly direct two ormore other employees as part of his employment with Oftedal.(Docket 117, ¶ 61). Oftedal admits that Carda did not customarilyand regularly direct two or more other employees as part of hisemployment in Defendant's Response to Plaintiff's Statement ofUndisputed Material Facts (DRPSUMF). (Docket 129, ¶ 44). Bothparties agree that Carda did not regularly direct the activitiesof two or more other full-time employees. Accordingly, as amatter of law, Carda does not fall under the executive exemption.Thus, the remaining issues for trial are whether Carda is exempt from the FLSA under the"administrative" or "professional" exemptions.

3. Barratry

Carda moves for summary judgment on Oftedal's barratrycounterclaim. "Barratry is the assertion of a frivolous ormalicious claim or defense or the filing of any document withmalice or in bad faith by a party in a civil action." SDCL20-9-6.1. An action is frivolous "when the proponent can presentno rational argument based on the evidence or law in support ofthe claim." Citibank (S.D.), N.A. v. Hauff, 668 N.W.2d., 528,537, (S.D. 2003) (internal quotations omitted). A frivolous claimis a legal position so wholly without merit as to be absurd.Id. (quotations omitted).

Carda has identified evidence of many facts in support of hisunderlying FLSA claim and his motions for partial summaryjudgment. His evidence consists of sworn testimony by bothparties and copies of Oftedal's wage policies and employeetimecards. Carda has cited relevant statutes and caselaw insupport of his legal arguments. Carda's FLSA claims and motionsare not frivolous. Furthermore, this court is unaware of anySouth Dakota decision finding that a party committed barratry.But see Flugge v. Flugge, 681 N.W.2d 837, 846, 2004 (S.D.2004) (awarding appellate attorney's fees of $3,000 in partbecause barratry claim was frivolous). Oftedal contends that Carda's lawsuit was filed in bad faithbecause he copied evidence that would support his claim and spoketo an attorney while he was employed by Oftedal. This is notrelevant to whether Carda's lawsuit was filed in bad faith orwhether his claims were frivolous. Because Oftedal has notidentified any material issues of fact regarding thiscounterclaim, Carda is entitled to summary judgment on thebarratry claim.

4. Breach of Duty of Loyalty and Good Faith

A. Choice of Law

Before addressing the substantive law, the court must determinewhether the laws of Montana or South Dakota apply. Oftedalcontends that Montana law applies to the breach of duty ofloyalty and good faith claim, while Carda argues that SouthDakota law applies. In diversity cases, federal courts apply thechoice of law rules of the forum state to determine which state'ssubstantive law applies. Retail Associates, Inc. v. Macy's East,Inc., 245 F.3d 694, 697 (8th Cir. 2001). Thus, SouthDakota's choice of law rules will be applied.

1. Breach of good faith

Under South Dakota law, "before a party can sue for breach ofgood faith, a contract must be proven. Contract law does notrecognize a breach of good faith separate from a contract."Garrett v. BankWest, Inc., 459 N.W.2d 833, 843 (S.D. 1990).Thus, the court will apply the South Dakota choice of law provisions that govern contracts. Under South Dakota's choiceof law provisions: A contract must be construed in accordance with the law of the place where made unless it is shown that it was the intention of the parties to be bound by the law of some other place. The test of the place of a contract is the place where the last act is done by either of the parties which is necessary to complete the contract and give it validity.Briggs v. United Services Life Ins. Co., 117 N.W.2d 804, 807(S.D. 1962) (internal citations omitted). Here, neither partycontends that the contract contained a choice of laws provision.The last act done was the acceptance of the offer by Carda inSouth Dakota. Thus, South Dakota law governs the breach of goodfaith claim.

2. Duty of Loyalty

The South Dakota Supreme Court has recognized the breach ofduty of loyalty to be a tort claim. Setliff v. Stewart,694 N.W.2d 859, 867 (S.D. 2005). South Dakota follows the mostsignificant relationship test in multi-state tort claims, whichis derived from the Restatement (Second) of Conflict of Laws §§ 6and 145 (1971). Chambers v. Dakotah Charter, Inc.488 N.W.2d 63, 67 (S.D. 1992). Under § 145, the court considers the placewhere the injury occurred, the place where the conduct causingthe injury occurred, the place of incorporation and business ofthe parties, and the place where the relationship between theparties is centered. Id. at 68 (citing Restatement (Second) supra § 145. These contacts are evaluated according totheir relative importance to each case. Burhenn v. Dennis SupplyCo., 685 N.W.2d 778, 784 (S.D. 2004).

Carda was working on the Strawberry Hill construction projectnear Deadwood, South Dakota. Any acts of alleged disloyalty byCarda toward Oftedal occurred in South Dakota. Oftedal isincorporated in and has its principal office and places ofbusiness in Montana. Carda was a resident of South Dakota at alltimes relevant to this litigation. The place where therelationship between the parties is centered is South Dakota.Because the most significant relationships are centered in SouthDakota, the court finds that South Dakota law applies to thebreach of duty of loyalty cause of action.

B. Substantive Law

Oftedal contends that Carda violated the implied covenant ofgood faith and fair dealing. The South Dakota Supreme Court hasheld, however, that the implied covenant of good faith and fairdealing does not apply to the employment-at-will context. Breenv. Dakota Gear & Joint Co., Inc., 433 N.W.2d 221, 224 (S.D.1988). Even if it did, Carda's actions do not rise to the levelof actionable conduct. "The term `good faith' generally indicatesan absence of bad faith on behalf of a party to a contract."Mahan v. Avera St. Luke's, 621 N.W.2d 150, 159, 2001 SD 9 (S.D.2001). Bad faith behavior is implicitly unreasonable, "thereforea breach of the covenant of good faith cannot exist when the parties act in a reasonable manner." 160. Depriving the other party of rights under the contract,preventing the other party from receiving the benefits of thebargain, or interfering in the other party's performance of thecontract are examples of bad faith. Id. While this list is notexhaustive, Oftedal does not allege that Carda did any of thesethings.

Oftedal also alleges that Carda breached his duty of loyaltyunder South Dakota law. SDCL 60-2-13 sets forth the duty ofloyalty an employee owes his employer as determined by the SouthDakota legislature: "An employee who has any business to transacton his own account, similar to that entrusted to him by hisemployer, must always give the latter the preference." Employeesviolate their duty of loyalty to their employer when they competeagainst their employer. See Paint Brush Corp., Parts BrushDiv. v. Neu, 599 N.W.2d 384, 390-91 (S.D. 1999) (evidence thatemployee copied secret manufacturing process and founded a paintbrush company to compete with employer while he was stillemployed by employer sufficient to survive summary judgment). Anemployee, however, "is entitled to make `arrangements' for somenew employment by a competitor and should be given some latitudein this regard." Setliff v. Akins, 616 N.W.2d 878, 886 (S.D.2000). While an employee may plan and take limited steps to begincompeting with his employer, an employee may not secretlycommunicate with, solicit, and/or hire employees or customers of his employer for such rival business before theend of his employment. Id.

Oftedal puts forth no evidence that Carda competed against itin the highway construction business or transacted business onhis own account while an employee. Oftedal references no evidencethat Carda solicited Oftedal employees to go to work for acompetitor. (DRPSUMF, ¶ 39). Oftedal admits that Carda was notworking for one of its competitors while Carda was employed withOftedal. (DRPSUMF, ¶ 40). Furthermore, Oftedal puts forth noevidence that Carda used the copies of the records he made forany purpose other than for his FLSA claim against Oftedal.(DRPSUMF, ¶ 41).

Restatement (Second) of Agency § 395 also recognizes a duty onthe part of an employee to his employer

not to use or to communicate information confidentially given him by the principal or acquired by him during the course of or on account of his agency or in violation of his duties as agent, in competition with or to the injury of the principal, on his own account or on behalf of another, although such information does not relate to the transaction in which he is then employed, unless the information is a matter of general knowledge.Here, however, Oftedal cites no evidence that Carda used anyinformation he obtained while employed with Oftedal to competewith Oftedal. (DRPSUMF, ¶ 38). Oftedal complains that Carda leftemployment on Friday and went to work with its competitor thefollowing Monday and thus concludes that Carda must have negotiated for employment with Oftedal's competitorwhile being employed by Oftedal. The law, however, does notpreclude an employee from making arrangements for new employmentwith a competitor while still employed.

As evidence of breach of the duty of loyalty and bad faith,Oftedal complains that: (1) Carda and another employee, MikeBerry, met with an attorney about their FLSA claim while theywere still employed by Oftedal; (2) Carda surreptitiously copiedhis and Berry's time cards and furnished them to counsel; (3)Carda photographed timecards using Oftedal's digital camera andburned those time cards onto a CD from the camera; (4) Cardaasked another Oftedal employee to be a witness regarding his FLSAclaim; (5) Carda did not request overtime pay from Oftedal whilehe was employed by Oftedal; (6) Carda asked for a reference fromhis supervisor; and (7) after he was laid off by the competitor,Carda drew unemployment compensation against Oftedal's accountfor a four-month time period.

Some of Carda's actions about which Oftedal complains about areprotected by federal law and cannot be considered unreasonable.For example, federal law permits Carda to file an FLSA claim andencourage other Oftedal employees to join the suit. See29 U.S.C. § 215(a)(3) (prohibiting retaliation against any employeewho "instituted or caused to be instituted any proceeding underor related to this chapter.") An employee is not barred under the FLSA from receiving overtime compensation by hisfailure to demand such compensation during his employment.George Lawley & Son Corp. v. South, 140 F.2d 439, 442 (1stCir. 1944). Copying payroll records might not be protected byfederal law, but the information would have been discoverablepursuant to Fed.R.Civ.P. 26(b)(1). Carda's document copyingdoes not rise to the level of unreasonable behavior cited inMahan. See 621 N.W.2d at 160. Furthermore, South Dakota statelaw governs the unemployment account that will be charged when anemployee is laid off from employment. SDCL 61-5-28.

After considering all the evidence in the light most favorableto Oftedal, the court finds that no material questions of factexist on Oftedal's counterclaim for breach of the duty of goodfaith and loyalty. But even if Oftedal had sufficient evidence tosurvive a motion for summary judgment on this state-law claim,Carda would be entitled to summary judgment on the claim becausethe claim violates the FLSA and the Supremacy Clause of theUnited States Constitution.

An employee may not waive his or her right to overtime payunder the FLSA. Barrentine v. Arkansas-Best Freight System,Inc., 450 U.S. 728, 740, 101 S. Ct. 1437, 1444-45,67 L. Ed. 2d 641 (U.S. 1981).

The Fair Labor Standards Act was not designed to codify or perpetuate [industry] customs and contracts . . . Congress intended, instead, to achieve a uniform national policy of guaranteeing compensation for all work or employment engaged in by employees covered by the Act. Any custom or contract falling short of that basic policy . . . cannot be utilized to deprive employees of their statutory rights.Id. at 741. In fact, an employee's "right to recover [under theFLSA] would not be barred by his failure during his employment todemand compensation for his overtime." George Lawley,140 F.2d at 442.

In Lyle v. Food Lion, Inc., 954 F.2d 984 (4th Cir. 1991),the Fourth Circuit Court of Appeals upheld the district courtjudgment in favor of the plaintiff-employees, and affirmed thedismissal of the defendant's counterclaim for breach ofcontractual and fiduciary duties. In response to a plaintiff'sovertime claims, Food Lion sought indemnity from a manager whohad worked "off the clock" and permitted another employee to dothe same. Id. at 986. The district court properly dismissed thecounterclaim because the FLSA would not allow the defendant toindemnify itself for its own violations of the Act. Id. at 987.This would have violated the Supremacy Clause of theUnited States Constitution and undermined employer's incentives tocomply with the FLSA. Id. (citing LeCompte v. Chrysler CreditCorp., 780 F.2d 1260, 1264 (5th Cir. 1986)). Similarly, astate law counterclaim against Carda for filing this FLSAlawsuit, failing to complain about the lack of overtime pay, orworking without overtime pay despite knowledge of federalemployment laws would raise Supremacy Clause issues and underminethe basic goals of the FLSA. See id. Accordingly, the court finds no genuine issues of material factas to Oftedal's breach of loyalty and good faith counterclaimsand grants Carda's motion for summary judgment on thesecounterclaims.

5. Oftedal's Motion to Reconsider the Order to Compel Requestsfor Admissions and Attorney's Fees

The court has reviewed its earlier Order Granting Plaintiff'sMotion to Compel Request for Admissions and for Attorney's Feesand Costs in light of the objections raised by Oftedal in itsmotion for reconsideration. After careful consideration, themotion to reconsider is denied. Oftedal's response to the Requestfor Admissions is due by September 3, 2005.

6. Oftedal's Motion to Reconsider the Exclusion of Evidence ofHow Carda Obtained Work Records

While Carda worked for Oftedal, he secretly copied computerrecords and paper files that support his claim that Oftedalshould have paid him overtime. The court granted Carda's motionto exclude evidence related to how he obtained the records, afterfinding it is irrelevant under Fed.R.Evid. 401. Oftedal nowmoves this court to reconsider exclusion of the evidence thatCarda secretly copied employment records.

As noted above, Oftedal's breach of duty of loyalty and goodfaith claim is dismissed. In its motion to reconsider, Oftedaldoes not cite any evidence suggesting Carda formed a new companyor lured employees to a competitor's company, or anything elsethat would support its breach of duty of loyalty claim. Nor does it cite any binding caselaw that supports itsclaim that copying company documents to support a FLSA lawsuitviolates the duty of loyalty under South Dakota law. Instead,Oftedal repeats the same argument it has made in several filingswith this court, i.e., that Carda's copying of employmentrecords somehow precludes him from filing suit to enforce theovertime provisions of the FLSA. The court finds that evidence asto how Carda obtained work records is still irrelevant to anyissue in this case. Furthermore, if the evidence has some limitedprobative value, the unfair prejudice to Carda outweighs thatlimited probative value. The motion to reconsider is denied.

Accordingly, it is hereby

ORDERED that Carda's renewed motions for summary judgment(Docket 113, 114, and 115) are granted.

IT IS FURTHER ORDERED that Oftedal's motions forreconsideration (Docket 104 and 105) are denied.

IT IS FURTHER ORDERED that Oftedal's response to the Requestfor Admissions is due by September 3, 2005.

Back to top