JENNIFER JENKINS, Plaintiff-Appellant, v. S. DAVID ANTON, PA, d.b.a. Anton…
Apr 29, 2019OUTCOME: Mr. Thompson won this case at trial and the decision was upheld on Appeal.
James M. Thompson represented Defendant David Anton, PA and Cynthia Sass represented Plaintiff Jeniffer Jenkins. The district court entered a judgment against the employee on her FLSA overtime claim a ... fter a bench trial and denied her motion requesting relief under Rule 59 and Rule 60. The Eleventh Circuit affirmed, ruling in part that the testimony of an impeachment witness, who was unavailable during the trial, was not newly discovered evidence for purposes of a new trial under Rule 59. The parties offered two very different stories at the trial. The employee, a paralegal, alleged she worked about 70 hours a week. The employer, on the other hand, testified she never worked more than 40 hours, reasoning that her predecessor never worked overtime, her successor never worked overtime, and his practice was slow during her employment. The district court resolved the conflicts in the evidence in favor of the employer, primarily because it matched the evidence of other employees, including the bookkeeper and the employee’s successor. The employee’s predecessor was the unavailable witness. On appeal, the employee argued the district court abused its discretion by denying relief under Rule 59 because, among other things, her predecessor was now available and would “directly rebut” the employer. The Court rejected the contention that the predecessor’s testimony was “newly discovered evidence” and further rejected the employee’s contention that the testimony was indispensable. The Court highlighted the fact that the plaintiff had never asked the district court for a continuance, which it considered a strategic choice that backfired on her. The Court further explained that adopting the plaintiff’s position would incentivize parties to manipulate Rule 59 by “rolling the dice” and trying their case without a witness that they knew about at trial, and, then using that witness, if they lost, to ask for a second bite at the apple
