             Case: 17-12751    Date Filed: 02/23/2018    Page: 1 of 17


                                                        [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 17-12751
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 9:16-cv-81696-DMM



PATRICIA GONZALEZ,

                                                    Plaintiff-Counter Defendant-
                                                    Appellant,


LESHA ROSARIO,

                                                    Plaintiff-Appellant,

                                     versus

JAMES BATMASIAN,
MARTA BATMASIAN,
each individually and d.b.a. Investments Limited,

                                                    Defendants-Counter Claimants-
                                                    Appellees.
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                           ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          ________________________

                                    (February 23, 2018)

Before WILLIAM PRYOR, ANDERSON and HULL, Circuit Judges.

PER CURIAM:

       Plaintiff Lesha Rosario appeals from the district court’s grant of judgment

as a matter of law in favor of her employers, defendants James Batmasian and

Marta Batmasian, in Rosario’s action for unpaid overtime pursuant to the Fair

Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq. Plaintiff Rosario argues

that the district court erred in granting judgment as a matter of law in favor of the

defendants, and that the district court abused its discretion in not continuing the

trial into a fourth day (Thursday) where Rosario was not present for the first three

days of trial and her counsel had concluded his witnesses (other than Rosario)

before lunch on Wednesday. After review, we affirm.

                               I.      BACKGROUND

A.    The FLSA Action

      In October 2016, plaintiff Rosario and co-plaintiff Patricia Gonzalez filed

this FLSA action against defendants James and Marta Batmasian. The complaint

alleged that Rosario and Gonzalez worked as a legal assistant and a property


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manager, respectively, for the defendants’ real estate business, elsewhere identified

as Investments Limited. The plaintiffs alleged they were not paid overtime wages

to which they were entitled, and that they were regularly instructed to work “off of

the clock”—that is, without recording their hours—so that the defendants could

avoid paying overtime.

      The complaint asserted one claim for recovery of lost overtime wages,

liquidated damages, compensatory damages, and attorney’s fees. As litigation

progressed, it became clear that the key issues were (1) whether plaintiff Rosario, a

paralegal, had actually worked the “off of the clock” hours she claimed to have

worked, and (2) whether co-plaintiff Gonzalez, a property manager, was exempt

from overtime pay under the administrative or executive exemptions of the FLSA.

B.    Scheduling Issues During Pretrial Proceedings

      Very early in the litigation, on October 19, 2016, the district court scheduled

the jury trial to take place “during the two-week trial period commencing May 1,

2017 at 9:00 a.m., or as soon thereafter as the case may be called.” The district

court scheduled a calendar call for April 26, 2017.

      The parties proceeded with discovery. Plaintiff Rosario’s deposition was

scheduled for Tuesday, February 7, 2017. The day before the deposition,

plaintiffs’ counsel, Chris Kleppin, informed the defendants that Rosario would be

unable to attend. On February 27, the defendants moved to dismiss Rosario’s

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claim for failure to prosecute, citing, among other things, her failure to appear at

her deposition. The district court denied the motion to dismiss. Rosario was

eventually deposed on April 25, 2017.

      On April 20, 2017, the plaintiffs moved to have the trial held on the second

week of the trial calendar—the week of May 8—to allow the plaintiffs additional

time to depose one witness. On April 24, 2017, the district court denied the motion

and ordered the parties to be available for the entire two-week trial period, which

began on May 1.

      The calendar call took place on April 26, 2017. The district court expressed

doubt initially as to “why this case takes four or five days,” in light of the relatively

straightforward claims and the narrow issues of disputed fact. Counsel for both

parties explained that ancillary issues would arise at trial. However, counsel for

the defendants stated that “the only thing I’m defending on is the basis that [co-

plaintiff] Gonzalez was administratively or executively exempt [from overtime]

and that [plaintiff] Rosario did not work off the clock as she claims.”

      Considering the limited scope of the trial, the district court advised that “we

will try to move pretty quickly, and you need to have people available. We are not

going to wait for people.” The district court told the parties to be ready to start

trial at 9:00 on Monday, May 1, stating:

             Nine o’clock Monday, you need to be ready to move
             quickly. If you settle, let us know right away. It affects
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             other matters, and we will try—I think we can finish this
             case in three days, but we will see. If we have to take
             four, we will; but let’s try to talk to each other, and let’s
             be more precise with the jury when they come in about
             how much time we are going to take of theirs.

      Plaintiffs’ attorney Kleppin responded, “Yes, sir.”

C.    Plaintiff Rosario’s Absence from Trial

      The trial began as scheduled on Monday, May 1, 2017. Plaintiff Rosario

was not present. During voir dire, the district court, after conferring with the

parties, informed the jurors that the trial was expected to last no more than four

days, and thus would conclude no later than Thursday, May 4. The district court

had allotted two days for the plaintiffs’ case, and Wednesday and Thursday for the

defendants’ case, jury charge, and deliberation. On several occasions throughout

the first day of trial, the district court urged plaintiffs’ attorney Kleppin to “move

forward.”

      On Tuesday morning (the second day of trial), the district court admonished

attorney Kleppin that he was “moving pretty slowly” and that he needed to put his

case on that day, stating:

             I did want to mention, Mr. Kleppin, if you have evidence
             significant to your case, you ought to put it on. You are
             moving pretty slowly . . . . This afternoon will mark the
             halfway—at the end of the day, will be the halfway point
             of the case. Barring some agreement with Counsel, you
             need to put your case on today.

Attorney Kleppin agreed to move more quickly.
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         At the beginning of the afternoon on the second trial day, the district court,

addressing attorney Kleppin, expressed its “worry that you are going to run out of

time without finishing your clients,” because “[y]ou basically have three hours and

15 minutes—about three hours left.” The district court then asked about plaintiff

Rosario’s whereabouts. This exchange followed:

               MR. KLEPPIN: [Rosario] is out of town and has made
               arrangements to be here Thursday morning, first thing.
               That is the soonest I could get her here.

               THE COURT: Well, she may be out of luck, and I don’t
               understand that. This case was set, and for her—
               Thursday is the last day of trial and it would be in [the
               defendants’] case.

Although attorney Kleppin said Rosario was coming Thursday, the district court

warned that she “may be out of luck” and that Thursday would be the defendants’

case.

         At the end of Tuesday (the second trial day) and after the jury was excused,

the district court asked attorney Kleppin about “the situation with Ms. Rosario.”

Kleppin explained that plaintiff Rosario had childcare and work-related issues

which prevented her from coming to court before Thursday morning. However,

attorney Kleppin assured the district court: “I’m not saying I want to drag my case

out until Thursday morning to try to get her in. I’m happy to rest well before

then.”



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      The district court reminded Kleppin that he had been instructed to finish

presenting his case by the end of that day, Tuesday. Nevertheless, the district court

allowed attorney Kleppin to resume his witnesses and case the next morning,

Wednesday. However, the district court advised: “I’m going to look at this issue

with Rosario. I don’t understand why she is not prosecuting her case. This is a lot

of failures, in terms of a case.”

      On Wednesday morning (the third day of trial), the district court ordered

attorney Kleppin to “finish [his] case by the midmorning break.” Kleppin asked if

he could have until noon, asserting that he could present his remaining witnesses

by that time. The district court refused, explaining that the whole trial needed to

conclude the next day (Thursday) and that the plaintiffs’ case had already taken

more than its share of time. The district court noted that although it had addressed

the pacing of the trial “at calendar call, the beginning of the case, yesterday

morning, [and] yesterday at 5:00 o’clock,” attorney Kleppin had never made clear

that his case would last into the third day of trial.

      At the midmorning recess on Wednesday, attorney Kleppin asked to

“preserve an objection with respect to Ms. Rosario.” Notably, Kleppin did not ask

the district court to prolong the trial to allow Rosario to testify; rather, Kleppin said

he “realize[d] this thing is likely to go to the jury today and maybe even get a

verdict today.” Kleppin did, however, explain again that plaintiff Rosario had

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great difficulty attending the trial due to personal circumstances. Kleppin told the

district court he had considered a motion to have Rosario appear by video

conferencing, but he acknowledged it was “way too late now to arrange all of

that.”

         The district court responded to attorney Kleppin’s objection: “I appreciate

that you are having problems with her; but, on the other hand, there are ways to

have dealt with that.”

         The plaintiffs presented their remaining witnesses, other than plaintiff

Rosario, on Wednesday morning.1 The defendants presented their only witness,

defendant Marta Batmasian, on Wednesday morning as well. Both parties rested

before the lunch recess.

D.       The Motion for Judgment as a Matter of Law
         and the Conclusion of Trial

         After the jury retired for lunch on Wednesday, the defendants moved for

judgment as a matter of law as to both plaintiffs. 2 In response, plaintiffs’ attorney

Kleppin, with respect to the case of plaintiff Rosario, “reincorporate[d] the

argument that [he] made previously” regarding Rosario’s difficulties in attending

the trial. Kleppin acknowledged that, because plaintiff Rosario had never attended

         1
         Rosario’s complaint involved overtime during 2010-2012. Rosario’s counsel had one
additional witness, who had no dealings with the plaintiffs and no dealings with the defendants’
company since 2004. The district court excluded his testimony. There is no issue in Rosario’s
appeal as to this witness.
       2
         The defendants used the term “directed verdict” rather than judgment as a matter of law.
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the trial, he had not “presented the sort of proof that you would need in an FLSA

case,” although he also cited witness James Baker’s testimony regarding cash

payments.

      Ruling on the motion, the district court noted first that “Ms. Rosario did not

appear for trial. She has had previous problems in appearing for deposition.” The

district court continued:

             [T]he defendants have presented evidence of her pay, that
             she was paid overtime. They have computer records that
             are generated, according to the testimony, automatically
             with respect to her time. There is no evidence that she
             exceeded that time.

The district court acknowledged witness James Baker’s testimony, but concluded

that the testimony was “far short of establishing some entitlement on the part of

Ms. Rosario to overtime.” The district court concluded: “I’m going to grant the

defendants’ motion as to Ms. Rosario.”

      The district court denied the motion for judgment as a matter of law as to co-

plaintiff Gonzalez. Accordingly, on Wednesday afternoon, the parties presented

their closing arguments on Gonzalez’s claim to the jury. After closing arguments,

the district court charged the jury. The jury retired at approximately 3:00 pm. Just

over an hour later, the jury returned a verdict in favor of co-plaintiff Gonzalez,

awarding her $36,939 in unpaid overtime. The trial adjourned at 4:21 on

Wednesday afternoon.

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       On May 17, 2017, the district court entered a written order memorializing its

previous grant of judgment as a matter of law against plaintiff Rosario. The

written order provided: “As the Court explained on the record, Rosario failed to

prosecute her case against Defendants by not appearing at trial. Accordingly,

judgment against Rosario is warranted.” That same day, the district court entered

final judgment in favor of Gonzalez in the amount of $73,878, consisting of the

jury’s award of $36,939 in unpaid overtime and an additional $36,939 in liquidated

damages.

       Plaintiff Rosario now appeals.3 We discuss first whether the district court

abused its discretion in not continuing the trial to Thursday. Then we review the

evidence counsel for plaintiff Rosario did present and whether the district court

erred in granting judgment as a matter of law against plaintiff Rosario.

      II.    THE DISTRICT COURT’S DENIAL OF A CONTINUANCE

       We review for abuse of discretion a district court’s decision regarding a

continuance. Romero v. Drummond Co., Inc., 552 F.3d 1303, 1313-14 (11th Cir.

2008). The denial of a request for a continuance does not constitute an abuse of


       3
         The notice of appeal was actually filed on behalf of both plaintiff Rosario and co-
plaintiff Gonzalez. However, in a footnote, the plaintiffs made clear that with respect to co-
plaintiff Gonzalez, the appeal was “really a Cross Appeal.” Co-plaintiff Gonzalez, who had
prevailed in the district court, wished only to “preserve all of her rights” in the event the
defendants appealed from the final judgment. In any event, the appellant’s brief in this appeal
was submitted only on behalf of plaintiff Rosario.
        Co-plaintiff Gonzalez has since filed a separate appeal from the final judgment, which is
proceeding as Appeal No. 17-13740. Nothing herein relates to that appeal.
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discretion unless it is “arbitrary and unreasonable and severely prejudices the

moving party.” Sec. and Exch. Comm’n v. Levin, 849 F.3d 995, 1001 (11th Cir.

2017).

      In determining whether a denial of a continuance constitutes an abuse of

discretion, we consider four factors: (1) the moving party’s diligence in case

preparation; (2) the likelihood that granting the continuance would have remedied

the need for it; (3) the level of inconvenience the court and the opposing party

would have experienced had the continuance been granted; and (4) the harm that

the moving party suffered. Romero, 552 F.3d at 1320. With respect to the second

factor, “[i]t is well-settled that a district court may deny a continuance when there

is no guarantee that granting one will enable a party to secure the crucial

testimony.” Id. at 1320-21.

      As an initial matter, we note that the plaintiffs did not formally move for a

continuance. To the contrary, attorney Kleppin stated that he would be “happy to

rest well before” Thursday morning, when plaintiff Rosario was said to be

available to testify. And on Wednesday morning, when Kleppin raised his final

objection regarding Rosario, he conceded that the case would likely conclude that

same day.

      However, to the extent plaintiffs’ counsel requested more time for Rosario to

appear, the district court did not abuse its discretion in denying the request. We

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look to the Romero factors. Romero, 552 F.3d at 1320. Admittedly, the fourth

Romero factor argues in favor of granting the continuance: without Rosario’s

testimony, her case was effectively gutted, so she was harmed when the district

court did not continue the trial over to Thursday. The other three factors, however,

amply support the district court’s action.

      First, plaintiff Rosario was not diligent in prosecuting her case. She never

attended the trial, despite knowing as early as October 19, 2016 that it would take

place during the two-week period beginning May 1, 2017. This amounts to more

than six months of notice. Furthermore, the district court confirmed on April 24,

2017 that the parties were to be available for the entire trial period; and, on

April 26, 2017, the district court set the trial for the week of May 1, 2017.

Plaintiff’s counsel said it was difficult for Rosario to attend the trial. But, as the

district court noted, “there are ways to have dealt with that,” especially considering

the amount of notice of the trial date she was given.

      Second, there was no guarantee that a one-day continuance would have

enabled attorney Kleppin to “secure the crucial testimony.” See Romero, 552 F.3d

at 1320-21. Rosario did not tell the defendants she would be unable to attend her

deposition until the day before the deposition. A similar last-minute conflict may

well have arisen for Rosario, which would have prevented her from attending and

testifying even if a continuance had been granted.

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      Third, given that the entire case and jury verdict were completed by 5:00 on

Wednesday afternoon, a continuance would have inconvenienced the district court,

and jury, and the defendants. The defendants presented their entire case on

Wednesday. It would have been unfair to tell defense counsel, after the close of

his case, that the chief witness for the plaintiffs would now be testifying the next

day. It may also have inconvenienced the district court and confused the jury to

have the plaintiffs’ case presented in a piecemeal manner.

      In sum, applying the Romero factors, and given the fact that Rosario had not

appeared for the first three days of her trial, we conclude that the district court’s

ruling was not arbitrary or unreasonable as to constitute an abuse of discretion.

Romero, 552 F.3d at 1320; Levin, 849 F.3d at 1001.

                  III.   JUDGMENT AS A MATTER OF LAW

      Having concluded that the district court did not abuse its discretion in

declining to prolong the trial, we must now consider whether judgment as a matter

of law as to plaintiff Rosario was appropriate.

      We review de novo a district court’s grant of judgment as a matter of law,

and we apply the same standards as the district court. Bogle v. Orange Cnty. Bd.

of Cnty. Comm’rs, 162 F.3d 653, 656 (11th Cir. 1998). Thus, in evaluating a

defendant’s motion for judgment as a matter of law, we must consider all evidence

in the light most favorable to the plaintiff and grant the plaintiff the benefit of all

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reasonable inferences. Id. We may affirm a grant of judgment as a matter of law

only if the facts and inferences “point so overwhelmingly in favor of the

movant . . . that reasonable people could not arrive at a contrary verdict.” Id.

(quotations omitted).

A.    FLSA

      The FLSA requires employers to pay covered employees for hours worked

in excess of forty hours per week at one and one half times the employees’ regular

pay rate. 29 U.S.C. § 207(a)(1). An employee bringing a private action for unpaid

overtime must establish two elements: (1) that she worked unpaid overtime; and

(2) that the employer knew or should have known of the overtime work. Bailey v.

TitleMax of Georgia, Inc., 776 F.3d 797, 801 (11th Cir. 2015).

B.    Evidence Presented by Plaintiff Rosario’s Counsel

      The evidence to support Rosario’s claim was as follows. James Baker, the

former controller of Investments Limited, testified that he had seen defendant

James Batmasian, as well as Jason Lazar, the company’s general counsel, make

cash payments to plaintiff Rosario. Baker testified that this was “[s]o that

[Batmasian] wouldn’t have to pay overtime, that the overtime wasn’t on the

books.” And Jason Lazar, the general counsel, testified that on occasion plaintiff

Rosario was given vouchers or gift cards to local businesses.




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      The defense presented more extensive evidence to refute Rosario’s overtime

claim. Among other things, James Batmasian testified on cross-examination that

he had never paid plaintiff Rosario in cash, and that his employees were always

paid for overtime. On cross-examination and on redirect, Jason Lazar testified that

he was not aware of plaintiff Rosario ever being paid in cash, and that the gift

cards were “a perk” rather than compensation.

      The primary evidence for the defense was the testimony of defendant Marta

Batmasian. Marta Batmasian testified that she “[knew] distinctly [Rosario] didn’t

work the hours she claimed,” calling Rosario’s claim “an incredible lie.” Rather,

Marta testified, plaintiff Rosario regularly arrived late to work in the morning, and

was not usually at the office when Marta left at night.

      In addition, Marta Batmasian identified Rosario’s “time card and pay

records with comments,” which were introduced as trial exhibits. Marta testified

that these cards recorded the times of Rosario’s arrival at and departure from work.

Marta further testified that time cards for Investments Limited employees were

automatically submitted to Paychex, an outside company, which automatically paid

the employees. This would include overtime payment for any time over eight

hours that an employee worked. Asked whether employees were paid for overtime

at Investments Limited, Marta Batmasian replied, “Every single one, every single

penny.”

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C.    Analysis of Evidence

      Here, the only evidence supporting plaintiff Rosario’s claim was witness

James Baker’s testimony that he had seen the defendants make cash payments to

Rosario, intended as overtime pay that “wasn’t on the books.” Considered in the

light most favorable to plaintiff Rosario, and with all inferences drawn in her favor,

this evidence establishes, at most, that the defendants paid Rosario for overtime

work in cash. But Rosario’s evidence does not establish the first element of an

FLSA claim; namely, that Rosario worked any overtime for which she was not

paid. Bailey, 776 F.3d at 801. Indeed, the district court found that Rosario had

presented no evidence she did any work for which she was not paid. We agree.

The defendants, on the other hand, provided evidence that Rosario was paid for all

hours she worked, including overtime hours.

      Because no trial evidence supported plaintiff Rosario’s assertion that she

worked overtime for which she was not paid, no reasonable person could conclude

that she established the first element of her FLSA claim. 29 U.S.C. § 207(a)(1);

Bailey, 776 F.3d at 801. Accordingly, the district court did not err in granting

judgment as a matter of law in favor of the defendants. Bogle, 162 F.3d at 656.

                                IV. CONCLUSION

      Based on the foregoing reasons, we conclude that the district court did not

abuse its discretion in declining to continue the trial, and did not err in granting


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judgment as a matter of law against plaintiff Rosario. We therefore affirm the

judgment against plaintiff Rosario.

      AFFIRMED.




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