                                                  [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS
                                                             FILED
                   FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                     ________________________ ELEVENTH CIRCUIT
                                                     MARCH 27, 2007
                            No. 06-13126            THOMAS K. KAHN
                    ________________________            CLERK
              D.C. Docket No. 03-00519-CV-FTM-99SPC


DELICE RODRIQUE,

                                                Plaintiff,

MARTIN SCHAEFER,

                                               Plaintiff-Appellant,

                             versus

ECKERD CORPORATION OF FLORIDA, INC.,

                                                Defendant,
ECKERD CORPORATION,

                                                Defendant-Appellee.

                    ________________________

                          No. 06-13129
                   ________________________
            D.C. Docket No. 03-00495-CV-FTM-33DNF
                     2:03cv00495 & 2:03cv00673
LANCE TEBLUM,
et al.,

                                               Plaintiffs-Appellants,
                                            versus

ECKERD CORPORATION OF FLORIDA, INC.,

                                                                 Defendant,
ECKERD CORPORATION,

                                                                  Defendant-Appellee.
                               ________________________

                      Appeals from the United States District Court
                           for the Middle District of Florida
                            _________________________

                                     (March 27, 2007)

Before BARKETT, KRAVITCH and STAHL,* Circuit Judges.

PER CURIAM:

       Martin Schaefer and Lance Teblum (“Plaintiffs”) appeal from (1) a Final

Judgment denying the motion for leave to file for partial summary judgment and

directing that the case be closed; (2) a February 7, 2006 order on Eckerd’s motion

for summary judgment; and (3) a May 18, 2006 order denying their motion for

relief from judgment.

       Plaintiffs, acting individually and on behalf of all others similarly situated,

sued Eckerd Corporation of Florida, Inc. and Eckerd Corporation (“Eckerd”)



       *
         Honorable Norman H. Stahl, United States Circuit Judge for the First Circuit, sitting by
designation.

                                                2
alleging violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et

seq., for misclassification of employees as “exempt” under the Act.1 Eckerd

removed the case to federal court and, in its answer, raised as an affirmative

defense the use of a fluctuating workweek method (“FWW”) of compensation

permitted by the Act as an alternative form of compliance. Eckerd then filed a

motion for summary judgment on April 8, 2005.

       Plaintiffs filed two separate motions to enlarge the time to respond to

Eckerd’s motion, several pleadings pertaining to the length of a permissible

response, and ultimately, on June 16, 2005, filed their response to Eckerd’s

summary judgment motion. They did not file a motion for summary judgment of

their own. Their response simply addressed the FWW.

       For summary judgment purposes, the district court consolidated this case

with Teblum v. Eckerd Corp, in which another class of employees sought the same

relief as Rodrique and Schaefer. The court first determined that the Department of

Labor had indeed provided alternative ways for employers to meet the overtime

requirements of the Act, and that the FWW was one such acceptable method.

Accordingly, Plaintiffs were not, in fact, misclassified as “exempt employees,” as

their complaint alleged. Plaintiffs did not dispute this, and simply argued that


       1
        Eckerd Corporation of Florida, Inc. and plaintiff Delice Rodrique were subsequently
dismissed from the case.

                                              3
Eckerd had not met all of the five requirements of the FWW. The court

determined that Eckerd’s compensation plan met four of the five required elements

of a valid FWW method, but that a genuine issue of material fact existed as to

Eckerd’s computation of non-productive time into overtime compensation. For

this reason, the district court denied Eckerd’s motion for summary judgment on

February 7, 2006.

      Two days later, on February 9, 2006, the court held a pre-trial conference.

Shortly thereafter, Plaintiffs filed a motion for leave to file an untimely motion for

summary judgment and to amend the district court’s order denying Eckerd’s

motion for summary judgment so as to permit a certification for an interlocutory

appeal. At some time in the interim, the parties settled the sole issue left

unresolved in the court’s order denying Eckerd’s motion for summary judgment:

Eckerd’s computation of non-productive time into overtime compensation. On

April 25, 2006, the parties filed a joint motion to approve that settlement

agreement.

      On April 28, 2006, the district court granted the motion, finding that “the

settlement fairly and reasonably resolve[d] the disputed issues in this matter” and

constituted a reasonable compromise. The court then denied Plaintiffs’ motion for

leave to file for partial summary judgment, finding that it would be prejudicial to



                                           4
Eckerd to allow such a motion at this late stage of the proceedings. Finally, the

court directed the clerk to terminate all pending motions and close the case. On

May 4, 2006, Schaefer filed a motion for relief from judgment pursuant to Federal

Rule of Civil Procedure 60(b), challenging the closure of the case and attempting

to argue the issues raised in their untimely motion for partial summary judgment,

which had not been permitted to be filed. The district court denied the motion, and

Plaintiffs brought this appeal.

      We have reviewed this record and find no reversible error in the trial court’s

rulings. The procedural history, including the partial settlement of the FWW issue,

precludes any relief at this juncture.

      AFFIRMED.




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