                                                        [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                  FILED
                                                         U.S. COURT OF APPEALS
                                 _____________             ELEVENTH CIRCUIT
                                                               FEB 04, 2010
                                  No. 09-12577                  JOHN LEY
                                 _____________                ACTING CLERK


              D.C. Docket No. 07-01322-CV-T-24-TGW


DEANA VONDRISKA, individually and on
behalf of other similarly situated employees,
JENNIFER ANDREWS, individually and on
behalf of other similarly situated employees,

                                                        Plaintiffs-Appellants,

                                      versus


GERALD CUGNO,
PAYCHEX BUSINESS SOLUTIONS, INC.,

                                                        Defendants-Appellees.

                                 ____________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                                 ____________

                                (February 4, 2010)

Before BARKETT, PRYOR and HILL, Circuit Judges.
HILL, Circuit Judge:

      Deana Vondriska appeals the entry of summary judgment against her in this

action under the Fair Labor Standards Act (“FLSA”). The district court held that

the defendant, Paychex Business Solutions, Inc., was not Vondriska’s employer

for purposes of the Act. For the following reasons, we vacate the judgment and

remand for further proceedings.

                                          I.

      Paychex Business Solutions, Inc. (“Paychex”) is an employee leasing

company that provides administrative services to business clients, including

payroll processing, employee benefits, and human resource consulting. Premier

Mortgage Funding (“Premier”) engaged Paychex to provide a variety of

administrative services.

      Deana Vondriska originally filed suit against Premier for failure to pay

minimum wage and overtime compensation in violation of the FLSA.

Subsequently, Premier filed for bankruptcy and this action was stayed as to it.

Vondriska amended her complaint to name Paychex as a defendant. On Paychex’s

motion, the district court bifurcated the proceedings to make an initial

determination as to whether Paychex was Vondriska’s employer. The parties filed

cross-motions for summary judgment on the employer issue and the matter was

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referred to a magistrate judge.

      Paychex attached to its motion for summary judgment the depositions of

Premier’s President and its Director of Operations, both taken prior to the time

Paychex was added as a defendant and at which it was neither noticed nor present.

The magistrate refused to consider the depositions under the authority of Rule

32(a), Fed. R. Civ. P., and recommended to the district court that it enter summary

judgment against Vondriska on the employer issue and dismiss the case.

      In its objections to the magistrate’s report and recommendation, Vondriska

for the first time urged the district court to treat the depositions as affidavits under

Rule 56(e). The district court held that Rule 32(a) required that it exclude the

deposition testimony under these circumstances, and that even if Rule 56

controlled, and the testimony in the depositions were considered as affidavits, that

the testimony did not satisfy Rule 56's requirement that it be in a form admissible

at trial. The district court considered the merits without the testimony and entered

judgment for Paychex.

      The district court abused its discretion in holding that Rule 32(a) controls

the admission of the testimony in these depositions. In order to support a motion

for summary judgment under Rule 56(e), testimony must be sworn, competent and

on personal knowledge, and set out facts that would be admissible in evidence at

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trial. Depositions, even those taken without notice to or the presence of the later

non-moving party on summary judgment, can contain such testimony. First of all,

like an affidavit, the testimony is sworn. Therefore, it is admissible to the extent

that the deponent’s testimony was competent, on personal knowledge, and set out

facts admissible at trial. See Bozeman v. Orum, 422 F.3d 1265, 1267 n. 1 (11th Cir.

2005) (holding that sworn statements before a court reporter where non-moving

party was neither noticed nor present satisfied requirements of Rule 56(e)); 8A

Wright, Miller & Marcus, Federal Practice and Procedure § 2142 (2d ed. 1994)

(stating that deposition testimony is “at least as good as an affidavit and should be

usable whenever an affidavit would be permissible”). The district court, therefore,

should have considered the testimony contained in the proffered depositions to the

extent that the testimony satisfied the other requirements of the rule.

      In the alternative, the district court held that even if the depositions were not

barred by Rule 32(a), they did not satisfy these requirements of Rule 56(e)

inasmuch as the depositions contained hearsay that would have been inadmissible

at trial. Our review of the depositions reveals that they contain much testimony

that would be admissible at trial. The affiants testified as to Paychex’s

involvement in and control of Premier’s employees, facts relevant to the

determination of the employer status of Paychex. The affiants were officers of

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Premier and, therefore, competent to testify on these matters, and they testified on

personal knowledge. To the extent that these depositions contain such testimony,

that testimony should have been considered by the district court in ruling on

Paychex’s employer status.

      Accordingly, the district court abused its discretion in excluding the

deposition testimony from its consideration of the merits of this action. The

judgment is, therefore, due to be

      VACATED and REMANDED for further proceedings not inconsistent with

this opinion.




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