     Case: 14-11237      Document: 00513184057         Page: 1    Date Filed: 09/08/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-11237                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                        September 8, 2015
DONALD MILES,                                                              Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellee

v.

HSC-HOPSON SERVICES COMPANY, INCORPORATED; DANNIS
HOPSON,

              Defendants - Appellants




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:13-CV-1388


Before REAVLEY, DENNIS and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Donald Miles brought claims under the Fair Labor Standards Act
against defendants HSC-Hopson Services Company and its owner, Dannis
Hopson. After a jury trial, a verdict was returned for Miles in the amount of
$32,265. We AFFIRM.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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              FACTUAL AND PROCEDURAL BACKGROUND
      According to the complaint, Donald Miles worked from 2005 to 2013 as a
plumber for HSC-Hopson Services Company, a 24-hour plumbing business
located in Dallas County, Texas.
      In April 2013, Miles sued the defendants in the United States District
Court for the Northern District of Texas for violations of the Fair Labor
Standards Act (“FLSA”). In September 2014, the case was tried to a jury. At
trial, Miles presented evidence that HSC had not paid him all of the overtime
wages he was owed. He testified that even though he was directed to arrive at
the shop at 7:30 a.m. to load the work truck and receive his first assignment,
he was not paid for the time between 7:30 a.m. and 8:00 a.m. Miles also
testified that he was not paid for the time after his last job of the day was
finished, even though he would then need to drive the work truck back to the
shop, unload the equipment, and lock everything up. Office manager Gwen
Davis testified that Hopson sometimes directed her to take time off of
employees’ timecards if they were late to work. It was not uncommon for
Hopson to require Davis to take 30 minutes off a timecard if the employee was
five minutes late. She also testified that Hopson would direct her to take time
off of an employee’s timecard for lunch, even if the employee had not indicated
on the timecard that he had taken a lunch break.
      Hopson testified that employees were to report to work by 7:30 a.m. but
were not paid for the half-hour between 7:30 a.m. and 8:00 a.m. He also
testified that it was company policy that employees were not paid past the time
they finished the last job of the day. Hopson testified that he used a GPS to
track the location of his employees; if he disagreed with the time indicated on
a timecard for when an employee left the last jobsite, he would direct that the
timecard be changed or change it himself. As to compliance with the FLSA,


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Hopson testified that he went to an “E-law” website and determined his
conduct complied with FLSA guidelines. He did not consult with a lawyer or
contact the Department of Labor prior to the lawsuit being filed.
      The jury found that the defendants had willfully failed to pay Miles
overtime wages.      It awarded $16,132.50 in actual damages and an equal
amount in liquidated damages, for a total of $32,265.00. The defendants timely
appealed.
                                 DISCUSSION
      Hopson and HSC raise four issues on appeal. They contend that the
district court erred in (1) not allowing supplemental witnesses; (2) not allowing
witness Tamara Hopson Walton to testify; (3) allowing an additional jury
instruction; and (4) denying the post-judgment motions.


I. The district court’s exclusion of supplemental witnesses
      We review a district court’s decision to exclude witness testimony for
abuse of discretion. CQ, Inc. v. TXU Mining Co., 565 F.3d 268, 277 (5th Cir.
2009). At least 30 days before trial, unless otherwise ordered by the district
court, a party must provide the name, address, and telephone number of each
witness it may call at trial. FED. R. CIV. P. 26(a)(3)(A)(i) and (B). “If a party
fails to provide information or identify a witness as required by Rule 26(a) or
(e), the party is not allowed to use that information or witness to supply
evidence . . . at a trial, unless the failure was substantially justified or is
harmless.” FED. R. CIV. P. 37(c)(1).
      At a pretrial hearing less than a week before trial, the defendants
requested the addition of two witnesses. The witnesses were HSC employees.
When the district court asked defense counsel why the request was being made
after the discovery deadline, counsel explained that he had “talked more in


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depth” with Hopson and “gotten more critical information from him,” and
“[t]hat’s when the information came out.”          As to what information the
witnesses would provide, defense counsel stated that they could offer testimony
about timekeeping practices and the perspective of a current employee. Miles
objected, arguing that the witnesses’ testimony would be cumulative and that
the notice was late. The district court denied the defendants’ request. It noted
that Miles’s counsel was “entitled to fair notice of who the potential fact
witnesses in the case are, and fair notice is not the week before trial.”
      On appeal, the defendants argue that the excluded testimony would not
have been cumulative because the witnesses would have testified to “things
such as, Miles[’s] relationship with Hopson, their experience working with
Miles . . . [and] valuable timekeeping practices and procedures of the company
from an employee’s perspective . . . . ” Also, due to the exclusion, the defendants
were “unable to contradict the testimony of Miles and Gwen Davis.” The
defendants also argue that Miles was not prejudiced by the late request
because he did not conduct any depositions and therefore it is unlikely he
would have deposed the two supplemental witnesses.
      “In performing a Rule 37(c)(1) harmless error analysis . . . this court looks
to four factors: (1) the importance of the evidence; (2) the prejudice to the
opposing party of including the evidence; (3) the possibility of curing such
prejudice by granting a continuance; and (4) the explanation for the party’s
failure to disclose.” Primrose Operating Co. v. Nat’l Am. Ins. Co., 382 F.3d 546,
563-64 (5th Cir. 2004) (citation and quotation omitted).
      Based on these factors, we conclude that the district court did not abuse
its discretion in excluding the witnesses. As to the first factor, the defendants
argue that the witnesses’ testimony would not have been cumulative, but do
not state how it would have differed from the testimony at trial. They do not


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contend, for example, that the witnesses had personal knowledge of whether
Miles was paid for the hours he worked. The defendants also argue that the
witnesses would have contradicted Davis’s testimony but do not state how.
Neither do they explain how testimony regarding Miles’s relationship to
Hopson would be relevant. As to the third factor, the defendants did not
request a continuance at the pretrial hearing. Regarding the fourth factor,
defense counsel’s failure to learn of the two witnesses because he did not speak
to his client earlier does not justify the late request for supplementation. A
district court does not abuse its discretion where it “refus[es] to give ineffective
litigants a second chance to develop their case.” Reliance Ins. Co. v. La. Land
& Expl. Co., 110 F.3d 253, 258 (5th Cir. 1997). The fourth factor arguably
weighs in the defendants’ favor as Miles did not perform any depositions. It is
unknown, though, whether Miles would have deposed the additional witnesses
if the notice was given at an earlier date. The district court did not abuse its
discretion in excluding the defendants’ supplemental witnesses.


II.    The district court’s exclusion of Tamara Hopson Walton
       “At a party’s request, the court must order witnesses excluded so that
they cannot hear other witnesses’ testimony.” FED. R. EVID. 615. “This Court
reviews a district court’s compliance with Rule 615 for abuse of discretion, and
we will reverse only if [the appellant] can demonstrate prejudice.” United
States v. Green, 324 F.3d 375, 380 (5th Cir. 2003).
       On the first day of trial, the defendants invoked Rule 615. Tamara
Hopson Walton, Hopson’s daughter and a witness for the defense, was in the
courtroom. The district court said that “Ms. Walton will be excluded during
the testimony, except for her own testimony . . .” and told the attorneys that
they needed to “keep track of this[.]” The court also addressed Walton directly,


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stating, “Ms. Walton, when I excuse you, then you have to sit outside.” She
answered, “Okay.” After three recesses and a lunch break – while the defense
was cross-examining Miles – the court noticed that Walton was still in the
courtroom. Counsel was ordered to approach the bench. Defense counsel told
the court that it did not realize Walton was in the courtroom. Miles’s counsel
moved to strike the witness. The court ruled that Walton could not testify.
        The defendants argue on appeal that the district court’s penalty was too
harsh because defense counsel did not notice Walton’s presence. Further, the
defendants contend that because Walton was going to testify as to office and
timecard procedures and attack Davis’s credibility, anything Walton heard
from Miles would not have tainted her testimony.
        Even assuming it was error to exclude Walton’s testimony, and we do not
hold that it was, the defendants have not established prejudice. They do not
state how Walton’s testimony on timekeeping procedures would have differed
from the testimony presented at trial. Neither do they state how Walton’s
testimony would have discredited Davis.          The district court’s decision to
exclude Walton was not reversible error.


III.    The district court’s inclusion of an additional jury instruction
        We review challenges to jury instructions for abuse of discretion. Cozzo
v. Tangipahoa Par. Council—President Gov’t, 279 F.3d 273, 293 (5th Cir.
2002). Discretion will be abused “only if the charge as a whole is not a correct
statement of the law and does not clearly instruct the jurors regarding the legal
principles applicable to the factual issues before them.” Id. (citation omitted).
“After the close of the evidence, a party may . . . with the court’s permission,
file untimely requests for instructions on any issue.”           FED. R. CIV. P.
51(a)(2)(B).


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       Before the court began to instruct the jury, Miles’s counsel asked for an
additional jury instruction. The district court allowed it. The defendants
argue that they were prejudiced by this decision but do not explain how. 1 Miles
responds that his submission of the instruction complied with Rule 51 and that
it was an accurate statement of the law.
       Miles complied with Rule 51. He requested the instruction be given to
the jury, which the court allowed, and the instruction was given before the jury
was discharged. Further, the defendants do not argue that the instruction was
an inaccurate statement of the law. Thus, they have waived the issue on
appeal. See Ruiz v. Donahoe, 784 F.3d 247, 250 n.15 (5th Cir. 2015). The
decision of the district court to allow the additional jury instruction was not an
abuse of discretion.


IV.    The district court’s denial of the defendants’ post-judgment motions
       Where “a party fails to move for judgment as a matter of law under Rule
50(a) on an issue at the conclusion of all the evidence,” that issue is reviewed
on appeal for plain error. Md. Cas. Co. v. Acceptance Indem. Ins. Co., 639 F.3d



1The jury instruction read: “Where an employee is required to report to a designated meeting
place to receive instructions before he proceeds to another work place (such as a jobsite), the
start of the workday is triggered at the designated meeting place, and subsequent travel is
part of the day’s work and must be counted as hours worked for the purposes of the FLSA.”
This comports with 29 C.F.R. § 785.38, which states in part:
       Time spent by an employee in travel as part of his principal activity, such as
       travel from job site to job site during the workday, must be counted as hours
       worked. Where an employee is required to report at a meeting place to receive
       instructions or to perform other work there, or to pick up and to carry tools,
       the travel from the designated place to the work place is part of the day's work,
       and must be counted as hours worked regardless of contract, custom, or
       practice. If an employee normally finishes his work on the premises at 5 p.m.
       and is sent to another job which he finishes at 8 p.m. and is required to return
       to his employer's premises arriving at 9 p.m., all of the time is working time.


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701, 707-08 (5th Cir. 2011) (citation omitted). Such review looks simply to
“whether there was any evidence to support the jury verdict.” Id. at 708
(citation omitted). With respect to the defendants’ motion for a new trial and
motion for remittitur, the district court’s denial of both is reviewed for abuse
of discretion. See Lincoln v. Case, 340 F.3d 283, 290 (5th Cir. 2003). “There is
no abuse of discretion unless there is a complete absence of evidence to support
the verdict.” Id. (citation, quotation, and alteration omitted).
      The defendants did not move for judgment as a matter of law at the close
of evidence. After the verdict, the defendants filed a “Motion for Judgment as
a Matter of Law and in the alternative a Motion for New Trial and a Motion
for Remittitur,” which the district court summarily denied. On appeal, the
defendants contend that the district court erred in denying their motion
because the jury’s verdict was “against the weight of the evidence.” They
further argue that the trial was “not fair” because Hopson “met his burden to
show that he kept good payroll records” and that “he acted in good faith
reliance on U.S. Department of Labor regulations to comply with the FLSA.”
The defendants request remand to the district court for a new trial.
      Under the applicable standard of review, in order for the defendants to
overturn the district court’s denial of their post-judgment motions, they must
show that there was no evidence to support the jury’s verdict. The evidence,
though, included Miles’s timecards and his testimony that he had not been paid
for all the overtime hours worked.      Hopson testified that he expected his
workers to arrive at work at 7:30 a.m. but did not pay them until 8:00 a.m.,
and that he did not pay his employees past the completion of the last job of the
day. As to the jury’s finding that Hopson’s conduct was willful, an FLSA
violation is willful “if the employer either knew or showed reckless disregard
for . . . whether its conduct was prohibited by the statute.” Singer v. City of


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Waco, 324 F.3d 813, 821 (5th Cir. 2003) (citation and quotation omitted).
Hopson testified that he did not consult an attorney or the Department of
Labor. Instead, he went to an “E-law” website. There was also testimony that
Hopson arbitrarily reduced work time and did not pay for certain time worked.
This evidence supports the jury’s verdict that Hopson’s conduct was willful for
purposes of an FLSA violation.
      AFFIRMED.




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