FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

June 30, 2006

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-16792

Non-Argument Calendar

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D. C. Docket No. 04-01240-CV-J-16-MCR

PAUL BERGQUIST,

Plaintiff-Appellant,

versus

FIDELITY INFORMATION SERVICES, INC., 

a foreign corporation,

Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(June 30, 2006)

Before BLACK, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:
Bergquist was employed by Fidelity’s predecessor, Alltel Information Services, Inc.

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Bergquist argues only that the affirmative defense was not properly raised, but does not 2

challenge the merits of the district court’ssummary judgment analysis. Cf. Greenbriar, Ltd. v. City

of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (noting that issues not argued on appeal are

deemed waived, and a passing reference in an appellate brief is insufficient to raise an issue).

2

Paul Bergquist appeals the district court’s entry of summary judgment in

favor of his former employer, Fidelity Information Services, Inc. (“Fidelity”), on 1

his claim for violation of the overtime pay requirements of the Fair Labor

Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq. On appeal, Bergquist argues

the district court erred by finding that Fidelity properly asserted, as an affirmative

defense under Rule 8(c) of the Federal Rules of Civil Procedure, the FLSA’s

exemption of computer programmers from the overtime pay provisions. After 2

careful review of the record and the parties’ briefs, we affirm. 

We review the district court’s analysis of Fidelity’s affirmative defenses

under Rule 8(c) for abuse of discretion. See E.E.O.C. v. White & Son Enters.,

881 F.2d 1006, 1009 (11th Cir. 1989) (reviewing for abuse of discretion district

court’s ruling on waiver of affirmative defenses under Rule 8(c)); cf. Amoco Oil

Co. v. Gomez,379 F.3d 1266, 1276 (11th Cir. 2004) (reviewing for abuse of

discretion district court’s denial of motion to amend answer to add counterclaim

under Rule 8(c) (citing 389 Orange St. Partners v. Arnold, 179 F.3d 656, 664 (9th

Cir. 1999) (holding that “we have held that a district court’s [ Rule 8(c) ] decisions
3

with regard to the treatment of affirmative defenses is reviewed for an abuse of

discretion”))).

As a general rule, the FLSA provides that employees are entitled to receive

overtime pay at one and one-half times their regular rate for all hours worked in

excess of forty per week. See 29 U.S.C.A. § 207(a)(1). The FLSA exempts from

its overtime pay requirements “any employee employed in a bona fide executive,

administrative, or professional capacity” who receives payment on a salary basis. 

See 29 U.S.C. § 213(a)(1); see also Avery v. City of Talladega, 24 F.3d 1337,

1340 (11th Cir. 1994). Moreover, section 213(a)(17) of Title 29 further exempts

certain specified employees from the overtime compensation requirements,

including an employee, such as Bergquist, who is “a computer systems analyst,

computer programmer, software engineer, or other similarly skilled worker” with

certain defined primary duties. Id. at § 213(a)(17). 

Prior to entering summary judgment in favor of Fidelity based on the

forgoing exemptions, the district court addressed Bergquist’s argument that

Fidelity’s failure to assert in its answer the “computer programmer” exemption as

an affirmative defense resulted in a waiver of the defense:

The Court initially notes that rule 8(c), Federal Rules of Civil

Procedure, provides that “[i]n pleading a party shall set forth

affirmatively . . . waiver, and any other matter constituting an
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avoidance or affirmative defense.” If the party fails to raise an

affirmative defense in the pleadings, the party generally waives its

right to raise the issue at trial. Hassan v. U.S. Postal Service, 842

F.2d 260, 263 (11th Cir. 1988). The purpose of requiring that an

affirmative defense be pled in the answer, however, is to provide

notice to the opposing party ‘of the existence of certain issues.’ 

Schwind [v. EW & Assoc., Inc., 357 F. Supp. 2d 691, 697 (S.D.N.Y.

2005)] (quoting Doubleday & Co. v. Curtis, 763 F.2d 495, 503 (2d

Cir. 1985)). . . . Furthermore, “if a plaintiff receives notice of an

affirmative defense by some means other than pleadings, ‘the

defendant’s failure to comply with Rule 8(c) does not cause the

plaintiff any prejudice.’” [Grant v. Preferred Research, Inc., 885 F.2d

795, 797 (11th Cir. 1989)] (quoting [Hassan, 842 F.2d at 263]). . . .

The Court finds, in the case at bar, that Defendant has not

sought leave to amend its answer. The Court also finds Defendant’s

contention that the exemption defenses were raised by reading

paragraph 7 of the Amended Complaint in conjunction with

Defendant’s Answer to be tenuous. Nevertheless, while tenuous,

review of the record easily demonstrates this case revolves around

whether Plaintiff is an exempt computer programmer. This is evident

in the Motion for More Definite Statement, the Amended Complaint,

the Answer, Defendant’s August 15, 2005 Rule 11 letter and

subsequent Rule 11 Motion, Plaintiff’s Deposition as well as being a

focal point of the parties’ Discovery. Plaintiff’s deposition explores

his occupational duties, the performance of his duties and even

touches upon Plaintiff’s understanding of the status of an exempt

employee. Moreover, Plaintiff’s First Set of Interrogatories asked

“[d]oes Defendant contend that Plaintiff was not entitled to be paid

for overtime compensation for any hours worked in excess of 40

hours during a work week[,]” to which Defendant answered “Plaintiff

was not entitled to be paid overtime compensation for any hours

worked in excess of 40 hours per week because his job title, duties

and compensation exempt Plaintiff from the overtime requirements of

the [FLSA] and regulations promulgated thereunder.” Also

noteworthy is that Defendant provided Plaintiff with notice of the

computer programmer exemption, and the opportunity to rebut it, in
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its Rule 11 letter dated August 15, 2005. Defendant, in complying

with Rule 11(c)(1)(A), Federal Rules of Civil Procedure, served the

Rule 11 letter with an attached copy of its yet to be filed Motion for

Rule 11 sanctions on Plaintiff. This occurred a month prior to the

filing of Defendant’s summary judgment motion. The Rule 11 letter

clearly and explicitly sets forth Defendant’s intention to utilize the

exemption defenses in noting that Plaintiff “met the requirements of

29 U.S.C. § 213(a)(1) and/or (2)(17) and that he was not entitled to

overtime compensation under the Act.” The Rule 11 letter also

provides that “[b]ased on the foregoing, you are and have been on

notice that Mr. Bergquist was an exempt computer professional for

the duration of his employment at Fidelity.” The attached Motion for

Rule 11 Sanctions provides an even more thorough examination of

these exemptions.

Based upon the foregoing, the Court finds the exemption

defenses in 29 U.S.C. § 213(a)(1) and 29 U.S.C. § 213(a)(17) to be

properly asserted and before the Court. Alternatively, it is clear that

Plaintiff has had notice of the exemption defenses, has had the

opportunity to respond to them and has thus not been prejudiced. 

Hassan, 842 F.2d at 263 (stating that “[w]e must avoid the

hypertechnicality in pleading requirements and focus, instead, on

enforcing the actual purpose of rule [8(c)].”).

Dist. Ct. Order Granting Defendant’s Motion for Summary Judgment (Nov. 10,

2005) (internal record citations omitted).

From our review of the record, it is plain that the purpose of Rule 8(c) --

“simply to guarantee that the opposing party has notice of any additional issue that

 may be raised at trial so that he or she is prepared to properly litigate” -- was

satisfied here. Hassan, 842 F.2d at 263 (citing Blonder-Tongue Labs., Inc. v.

Univ. of Ill. Found., 402 U.S. 313, 350 (1971)). “When a plaintiff has notice that
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an affirmative defense will be raised at trial, the defendant’s failure to comply with

Rule 8(c) does not cause the plaintiff any prejudice. And, when the failure to raise

an affirmative defense does not prejudice the plaintiff, it is not error for the trial

court to hear evidence on the issue.” Hassan, 842 F.2d at 263. 

Bergquist does not allege, and the record would not support, that he was

surprised or in any way prejudiced by the district court’s decision, given that it

clearly was on notice that the “computer programmer” exemption was a central

issue of dispute between the parties, based on all of the indicators outlined by the

district court in its order. Cf. Hassan, 842 F.2d at 263-64 (finding no abuse of

discretion in district court’s consideration of affirmative defense where plaintiff

suffered no prejudice and plaintiff received interrogatories concerning, and was

questioned extensively during her deposition about, the affirmative defense). On

this record, we discern no abuse of the district court’s discretion in its finding that

the “computer programmer” exemption was properly before it as an affirmative

defense. Based on the district court’s well-reasoned order, in which the court

applied controlling Circuit precedent and addressed every argument raised by

Bergquist in this appeal, we affirm the order of summary judgment in favor of

Fidelity.

AFFIRMED.