                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-2092
                                    ___________

Ronald L. Lester,                      *
                                       *
                  Appellant,           *
                                       * Appeal from the United States
     v.                                * District Court for the Eastern
                                       * District of Missouri.
Wildwood Financial Group, Ltd., a      *
Missouri Corporation; Robert D. Baker, *      [UNPUBLISHED]
                                       *
                  Appellees.           *
                                  ___________

                              Submitted: January 13, 2000

                                   Filed: January 21, 2000
                                    ___________

Before BOWMAN, FAGG, and LOKEN, Circuit Judges.
                           ___________

PER CURIAM.

       Wildwood Financial Group, Ltd. and its president, Robert D. Baker, (collectively
Wildwood) provide seminars for people interested in starting equipment leasing
businesses. Ronald L. Lester entered into an Independent Contract Agreement with
Wildwood to market the seminars and was paid on a commission basis. When the
relationship between Wildwood and Lester ended, Lester filed suit under the Fair Labor
Standards Act (FLSA), claiming he was a Wildwood employee entitled to minimum
wage and overtime compensation. Lester moved for summary judgment and Wildwood
opposed his motion, arguing that Lester was not covered under the FLSA because he
was an independent contractor. The district court found Lester was an independent
contractor and granted summary judgment sua sponte to Wildwood. Lester appeals and
we affirm.

       Initially, we address both Lester's motion for leave to include in the joint
appendix evidence not designated by the parties and Wildwood's motion to strike the
same items. The record before the district court when it decided the summary judgment
motion did not include the disputed items, which Lester later presented in support of
his motion for reconsideration. The motion for reconsideration, however, cannot be
used "to introduce new evidence that could have been adduced during pendency of the
summary judgment motion." Concordia College Corp. v. W. R. Grace & Co., 999 F.2d
326, 330 (8th Cir. 1993); accord National Bank of Commerce v. Dow Chem. Co., 165
F.3d 602, 607 n.5 (8th Cir. 1999). Accordingly, we grant Wildwood's motion to strike
and do not consider any evidence not before the district court when it decided the
summary judgment motion.

        On appeal, Lester first claims the district court could not grant summary
judgment sua sponte to Wildwood because Wildwood did not move for summary
judgment based on Lester's independent contractor status. Contrary to Lester's view,
we have held that sua sponte summary judgment is proper where the "'party against
whom judgment will be entered was given sufficient advance notice and an adequate
opportunity to demonstrate why summary judgment should not be granted.'" Madewell
v. Downs, 68 F.3d 1030, 1048 (8th Cir. 1995) (citation omitted). Because Lester
"initially moved the district court to rule on [his employment status] on a summary
judgment basis[,] . . . and [made] no showing that [h]e was not afforded a full and fair
opportunity to develop the record [to address Wildwood's independent contractor
argument]," Johnson v. Bismarck Public School Dist., 949 F.2d 1000, 1005 (8th Cir.
1991), we conclude the district court properly granted summary judgment sua sponte
to Wildwood.

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       Lester next claims the district court improperly considered the Independent
Contractor Agreement in determining that Lester was not an employee. We disagree.
Although contract language is not solely determinative of employment status, see
McComb v. McKay, 164 F.2d 40, 49 (8th Cir. 1947), the district court could properly
consider the language as one "circumstance[] of the whole activity." Id. at 48; Birchem
v. Knights of Columbus, 116 F.3d 310, 313 (8th Cir. 1997) (listing contract language
as a factor supporting existence of independent contractor relationship under common
law of agency).

       Finally, Lester contends the district court's factual findings concerning the nature
of the relationship between Lester and Wildwood did not support its conclusion that
Lester was an independent contractor. Having carefully reviewed the record and the
parties' briefs, we conclude the district court's analysis was supported by its factual
findings and we affirm for the reasons set forth in its thorough opinion. See Berger
Transfer & Storage v. Central States, Southeast and Southwest Areas Pension Fund,
85 F.3d 1374, 1378 (8th Cir. 1996) (standard of review).

        We thus affirm the district court's grant of summary judgment sua sponte to
Wildwood. We deny both parties' requests for sanctions because we cannot "'conclude
with certainty that [either party] acted vexatiously or in bad faith'" in preparing the
appendix on appeal. Burull v. First Nat. Bank, 831 F.2d 788, 790 (8th Cir. 1987)
(citation omitted).

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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