In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2744

LISA HICKS,

Plaintiff-Appellant,

v.

AVERY DREI, LLC and CHANCE FELLING,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 1:07-cv-01215-JMS-DML—Jane E. Magnus-Stinson, Judge.

ARGUED MAY 13, 2011—DECIDED AUGUST 17, 2011

Before CUDAHY, FLAUM, and KANNE, Circuit Judges.

KANNE, Circuit Judge. Lisa Hicks worked for Chance

Felling and his hotel management company, Avery Drei,

LLC, as a security guard and then as a desk clerk during

the construction and operation of a new hotel in the

Indianapolis area. After being terminated from her job as

a desk clerk, Hicks sued Felling and Avery Drei (the

“Defendants”) seeking unpaid wages, overtime pay, and

accrued vacation pay. The district court granted the De-
2 No. 10-2744

fendants’ motion for judgment as a matter of law on

Hicks’s vacation pay claim and a portion of their similar

motion on her overtime pay claim. The jury returned a

verdict in the Defendants’ favor on the remaining portion

of her overtime wages claim. Hicks appeals, challenging

both the district court’s denial of her pretrial motion to

prevent the Defendants’ introduction of belated evidence

of cash payments and its interpretations of the law in

granting the judgments as a matter of law. We affirm.

I. BACKGROUND

Hicks began working for Felling as a security guard

at the site of a hotel construction project in July 2006.

She was an hourly employee, and Felling regularly paid

her in cash for her services. Once the hotel opened in

October 2006, Hicks transitioned to working as a front

desk clerk. Felling was the owner and manager of Avery

Drei, the company that operated the hotel, so he continued to serve as Hicks’s employer at her new job. As

a desk clerk, she received her hourly wages by check

instead of cash. The parties disagree, however, about

her overtime pay at that job. Hicks alleges she was

never paid for overtime work at either her hourly rate or

at an overtime rate. Felling alleges that he gave Hicks

cash payments for overtime earnings, even though he

neither requested nor authorized her to work overtime.

For reasons immaterial to this appeal, the Defendants

terminated Hicks’s employment in April 2007, after

less than a year of work with the hotel.

In September 2007, Hicks sued the Defendants in a

proposed class action to recover compensation allegedly
No. 10-2744 3

owed for the work she and similarly situated employees

performed at the hotel. After her former coworker was

dismissed from the suit and her counsel abandoned

attempts to certify a class (despite twice requesting and

receiving extensions of time to file motions for class

certification), Hicks proceeded in the case as the sole

plaintiff seeking three forms of compensation. In Count I

she claimed the Defendants owed her overtime wages

pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C.

§ 201 et seq. In Count II she sought payment of earned

but unpaid hourly wages pursuant to Indiana’s Wage

Payment Statute, Indiana Code § 22-2-5-1 et seq. Finally,

in Count III she sought payment of accrued vacation

pay under Indiana’s Wage Claims Statute, Indiana Code

§ 22-2-9-1 et seq. The case festered for three years, with

little activity on the docket until February 2010, when

the case was set for trial in June 2010.

Also in February 2010, Hicks sent a letter to Defendants’

counsel requesting them to supplement responses to

discovery requests originally answered in 2008. The

Defendants failed to supplement their responses in accordance with Hicks’s request in a timely manner,

leading the district court to grant Hicks’s motion to

compel in May 2010. The Defendants then supplemented

their responses to the interrogatories and requests for

production specified by Hicks. But they also included an

unsolicited supplemental response to Hicks’s Interrogatory Number 12. That interrogatory requested that the

Defendants identify each instance and the amount of cash

payments made to Hicks during her employment, and

the Defendants had originally responded in 2008 with
4 No. 10-2744

seven instances of cash payments made in August and

September 2006, when Hicks was working as a security

guard. In responding to the motion to compel on June 1,

2010, the Defendants indicated they had made six additional cash payments to Hicks between December 8,

2006, and April 6, 2007, when Hicks was working as a

desk clerk.

Hicks promptly (still on June 1, 2010) moved in limine

to bar the introduction of any evidence of the alleged

additional payments during trial. She argued that the

tardy disclosure mandated exclusion under the Federal

Rules of Civil Procedure because it severely prejudiced

her case preparations. The district court was not convinced by her counsel’s assertion that indulging this

disclosure—a “mere twenty days” before trial—amounted

to “trial by ambush.” After discussing Hicks’s motion

to exclude in its final pre-trial conference on June 17,

2010, the district court ruled that the Defendants could

introduce evidence of the payments during trial. 

Trial commenced on June 21, 2010. When Hicks rested

her case the following day, the Defendants moved for

directed verdicts in their favor on Hicks’s FLSA overtime

and Indiana Wage Claims vacation pay claims. The

district court granted the motion in part, having determined that the evidence presented by Hicks could not,

as a matter of law, support a jury verdict in her favor.

On the same day, the jury returned a verdict against

Hicks on the remainder of her overtime wages claim

(the only claim remaining in the trial), and the district

court subsequently entered judgment on that verdict.
No. 10-2744 5

Hicks timely filed a notice of appeal and then moved

for a waiver of transcription fees. The Defendants opposed the motion, arguing that she did not fulfill the

district court’s request that she proffer reasons why her

issues on appeal were not frivolous. The district court

requested additional briefing from Hicks regarding the

necessity of a transcript to appeal the directed verdict on

part of her FLSA claim, but it denied the motion as to

any portions of the transcript relating to her vacation

pay claim, as it found that claim to be frivolous and

without any evidentiary foundation. Hicks moved for

reconsideration of the court’s vacation pay decision and

submitted information regarding her FLSA appeal. The

district court waived the transcription fee for the testimony relevant to her FLSA claim, but denied Hicks’s

motion for reconsideration, noting that Hicks “herself

testified at trial that she was not entitled to vacation

pay.” Hicks then procured only a partial transcript (comprising only those portions for which the transcription

fee was waived), and she submitted only a portion of

that partial transcript to this court in support of her appeal.

II. ANALYSIS

Hicks presents three issues on appeal. First, she contends that the district court erred by denying her motion

to exclude evidence of additional cash payments the

Defendants allegedly made to her. Second, she contends

that the district court erred in granting a directed verdict

in the Defendants’ favor on part of her FLSA claim for

two reasons: the district court erred in its enterprise
6 No. 10-2744

coverage determination, and there was sufficient evidence for a jury to find that the Defendants were within

the FLSA’s coverage. Third, she contends that the

district court erred in granting a directed verdict in

the Defendants’ favor on her vacation pay claim

because there was no evidence that Defendants had a

published policy departing from the state’s default rule

of pro-rata vacation accrual.

A. Vacation Pay Claim

We deal with Hicks’s vacation pay issue first because

it is frivolous. Hicks testified at trial that she and Felling

agreed that she would not earn vacation time until

after having worked for over a year. The district court

entered a directed verdict on this claim because of that

testimony: 

There is no dispute in [Hicks’s] mind that this is

not a circumstance where she was earning a little

bit a month. She had to be there a year to get a

week. She was terminated before that year. . . .

[T]he Defendant is entitled to judgment as a

matter of law with respect to the vacation claim

because of the agreement with respect to vacation

pay that the undisputed evidence establishes

in this case.

(Directed Verdict Tr. at 16-17.) We review de novo the

district court’s grant of judgment as a matter of law in

the Defendants’s favor on Hicks’s vacation pay claim.

Marcus & Millichap Inv. Servs. of Chicago, Inc. v. Sekulovski,

639 F.3d 301, 311 (7th Cir. 2011).
No. 10-2744 7

On appeal, Hicks renews the argument she made in a

motion to reconsider below: in the absence of a published

policy to the contrary, covered workers in Indiana earn

vacation time pro rata. She cites Die & Mold, Inc. v. Western,

448 N.E.2d 44 (Ind. Ct. App. 1983), in support of that

proposition, but the case does not support her argument.

Die & Mold did hold that because “vacation pay is additional wages, earned weekly, where only the time of

payment is deferred, it necessarily follows that, absent

an agreement to the contrary, the employee would be

entitled to a pro rata share of it to the time of termination.” Id. at 48 (emphasis added). But unlike in Die &

Mold, see id. at 46, the unequivocal evidence in our case

showed that Hicks and the Defendants had “an agreement to the contrary” where each understood that Hicks

was not earning vacation compensation throughout

her employment. “In other words, she never rendered

the services necessary to have her interest in vacation

pay vest.” Williams v. Riverside Cmty. Corr. Corp., 846

N.E.2d 738, 748 (Ind. Ct. App. 2006).

Hicks neither addresses this foundation for the

district court’s reasoning nor explains the contradiction

between her testimony and her position on appeal. Although she argues that the Defendants introduced no

evidence that they had a “published policy” stating

that employees would not earn vacation time pro-rata

through their first year of employment, Die & Mold

does not require that all agreements be written or memorialized in printed publications. Hicks’s argument is

meritless, and we find no error in the district court’s
8 No. 10-2744

determination that “there is absolutely no evidentiary

foundation” for her claim.

B. Admission of Evidence Regarding Cash Payments

We next address Hicks’s contention that the district

court erroneously denied her motion in limine to prevent the Defendants from introducing newly disclosed

evidence of additional cash payments. She alleges that

this error entitles her to a new trial without the admission of that evidence. As she did in her motion below,

Hicks argues that she prepared her case on the theory

that she’d been paid only by check while working as a

desk clerk and that the Defendants’ belated supplemental response alluding to evidence of cash payments

during that time was so prejudicial as to warrant

exclusion of that evidence. She makes the unsupported

allegation that the Defendants’ supplemental response

showing additional payments was “a baseless fabrication concocted by [the Defendants] to confuse this court.”

(Reply Br. at 8.)

We would ordinarily review the district court’s denial

of Hicks’s evidentiary motion in limine for an abuse of

discretion, as “decisions regarding the admission and

exclusion of evidence are peculiarly within the competence of the district court.” Aldridge v. Forest River, Inc.,

635 F.3d 870, 874 (7th Cir. 2011) (quoting Von der Ruhr v.

Immtech Int’l, Inc., 570 F.3d 858, 862 (7th Cir. 2009)). But

our review is significantly hampered by the absence of

any record of the district court’s reasoning below. Hicks

requested transcripts from the trial, but she did not
No. 10-2744 9

Nor did Hicks indicate that transcription was unavailable 1

due to the absence of an audio recording or machine-aided

shorthand record of the hearing. See Fed. R. App. P. 10(c).

request transcription of (or even waiver of the transcription fee for) the oral arguments or bench ruling on her

motion in limine. Her failure to abide by Federal Rule 1

of Appellate Procedure 10 leaves us without a meaningful basis of review and results in a forfeiture of her

argument. See Fed. R. App. P. 10(b)(2); Learning Curve

Toys, Inc. v. PlayWood Toys, Inc., 342 F.3d 714, 731 n.10

(7th Cir. 2003). Further, Hicks’s brief does not describe—let alone address or refute—any of the district

court’s reasons for denying her motion to exclude, and

she cites only one inapposite case in support of her position. See Fed. R. App. P. 28(a)(9); Smith v. Ne. Ill. Univ.,

388 F.3d 559, 569 (7th Cir. 2004). Her evidentiary challenge is therefore doubly forfeited.

We could review her forfeited contention for plain

error, but we rarely apply that doctrine in civil cases,

and our assessment shows that hers is not a case with

exceptional circumstances or one where a miscarriage

of justice could occur if we decline to exercise our discretion and apply plain error review. See Jackson v. Parker,

627 F.3d 634, 640 (7th Cir. 2010). Hicks asserts that she

prepared her entire case on the assumption that no

cash payments from her desk clerk tenure would be

discussed at trial, that the Defendants violated discovery

rules by waiting so long, and that finding out twenty

days before trial that the evidence would be presented
10 No. 10-2744

The appellees indicated that Hicks’s counsel had actual 2

knowledge of the purported cash payments at least as early as

May 20, 2010, as they were discussed during a settlement

conference before Magistrate Judge McVicker Lynch. Hicks

did not deny this knowledge. Her counsel instead moved to

strike the comment—because the disclosure of that information “clearly” violated Local Alternative Dispute Resolution

Rule 1.6—and requested that we impose sanctions for the

violation. Counsel is incorrect, as the local rules he attempts

to invoke “clearly” state: “Settlement conferences conducted

by the Judges and Magistrate Judges of the Court are not

governed by these Rules.” S.D. Ind. Local A.D.R. Rule 1.1.

Regardless, the important point is that counsel likely had

knowledge of the Defendants’ intent to prove the additional

payments at least a month in advance of trial.

left her without time to prepare her case. Yet Hicks 2

does not explain why it was an abuse of discretion to

admit the evidence; rather, she provides only a conclusory statement that the “tardy disclosure of this vital

information severely prejudiced Employee’s ability to

prosecute this action as the circumstances amply demonstrate.” (Appellant’s Br. at 8.) We cannot agree. The

alleged payments would have been made to Hicks, so

she would have had knowledge of them or of their nonexistence. She might have been surprised by evidence

thereof, but we perceive no reason why refutation

of that evidence would have required extraordinary

preparation that could not have been accomplished in

a “mere” twenty days. Perhaps she believed the evidence was prejudicial simply because it undermined

her case. Indeed, her request for a new trial where
No. 10-2744 11

that evidence would be excluded strongly suggests her

underlying objection: if “trial by ambush” was her actual

concern, the additional preparation time afforded by a

remand for retrial would certainly cure any prejudice

arising from the timing of the disclosure. Her requested

remedy convinces us that the alleged prejudice arises from

the evidence’s power to persuade and not the timing of

its disclosure. That is not a kind of “prejudice” that warrants exclusion. See Cobige v. City of Chicago, Ill., ___ F.3d

___, ___, 2011 WL 2708756, at *4 (7th Cir. July 12, 2011)

(“This kind of effect is not ‘prejudice’ at all—not unless

we count as ‘prejudice’ all evidence that undermines

the other side’s contentions . . . .”).

We also cannot conclude that a miscarriage of justice

likely occurred. We acknowledge that the Defendants

did not timely supplement their discovery responses

and even had to be compelled by the district court to

respond. See Fed. R. Civ. P. 26(e)(1). Hicks repeatedly—but selectively—quotes language from Federal

Rule of Civil Procedure 37(c) to argue that belated disclosure prevents admission of any evidence of the additional cash payments: “a party that ‘. . . fails to provide

information . . . as required by Rule 26(a) or (e) . . . is not

allowed to use that information . . . to supply evidence on

a motion, at a hearing, or at a trial . . . .’ Rule 37(c)(1)

(emphasis added).” (Appellant’s Br. at 10; Reply Br. at 8.)

Her incomplete quotation is misleading. In a salient

segment Hicks omits, the Rule goes on to qualify the

proscription on use: 

. . . unless the failure was substantially justified or

is harmless. In addition to or instead of this sanc-
12 No. 10-2744

tion, the court, on motion and after giving an

opportunity to be heard: (A) may order payment

of the reasonable expenses, including attorney’s

fees, caused by the failure; (B) may inform the

jury of the party’s failure; and (C) may impose

other appropriate sanctions, including any of the

orders listed in Rule 37(b)(2)(A)(i)-(vi).

Fed. R. Civ. P. 37(c)(1) (emphases added). The district

court responded appropriately to the Defendants’ delay

by ordering the Defendants to pay a portion of Hicks’s

attorney’s fees and by informing the jury of the allegedly

late disclosure and their answering questions about the

circumstances. See Fed. R. Civ. P. 37(c)(1). It could have

excluded the additional cash payment evidence, but

Hicks offers no convincing reason why the alternative

sanctions chosen by the district court were not sufficient remedies—let alone any indication that a miscarriage of justice resulted.

We discern neither extraordinary circumstances nor

a risk of miscarried justice in this case, so we choose not

to conduct a full plain error review of this forfeited

issue. Nor do we find any manifest indication that the

district court abused its discretion by admitting the

evidence while sanctioning the Defendants’ delay. Accordingly, we affirm its denial of Hicks’s motion in limine.

C. Enterprise Coverage under the FLSA

Hicks also contends that the district court erred in

granting a directed verdict in the Defendants’ favor on a
No. 10-2744 13

portion of her FLSA claim based on its determination

that her employer at the time did not fall within the

FLSA’s coverage. She first argues that Felling was bound

by the FLSA as a matter of law because he controlled

an enterprise of businesses with a common business

purpose. She then argues, in the alternative, that the

jury should have decided whether Felling was within

the FLSA’s coverage based on his testimony at trial

about his annual revenues in one of his companies,

Felling Hotels, LLC. We review de novo the district court’s

grant of judgment as a matter of law on Hicks’s FLSA

claim in the Defendants’s favor. Marcus & Millichap,

639 F.3d at 311.

Under the FLSA, an employer must pay its employee

overtime wages (150% of the employee’s hourly wage)

for each hour worked in excess of forty hours a week. 29

U.S.C. § 207(a)(1). For Hicks to prevail on her FLSA

claim for overtime wages, she must first demonstrate

that she or her “Employer”—a concept she defines as the

combination of Felling and Avery Drei—falls within the

Act so as to trigger its substantive provisions. During

oral arguments on the Defendants’ motion for a directed

verdict on this count, the district court concluded that

Hicks would have been engaged in commerce while

working as a desk clerk at the hotel and that she could

therefore seek overtime wages under the FLSA for

that period. Accordingly, the district court denied the

Defendants’ directed verdict motion to that extent, allowing the jury to consider her claim.

While the hotel was being constructed in 2006 and

Hicks was working as a security guard, however, Hicks
14 No. 10-2744

was arguably not engaged in interstate commerce. To

place herself within the FLSA’s protection during that

period, Hicks argues that the Defendants were part of

“an enterprise engaged in commerce” because Felling

operated several businesses. 29 U.S.C. § 207(a)(1). The

FLSA defines an enterprise as “the related activities

performed (either through unified operation or common

control) by any person or persons for a common business purpose, and includes all such activities whether

performed in one or more establishments or by one

or more corporate or other organizational units.” 29

U.S.C. § 203(r)(1). Thus, to fall within enterprise coverage, Felling’s businesses must “1) be engaged in

related activities, 2) under unified operation or common

control, and 3) have a common business purpose.” Reich

v. Gateway Press, Inc., 13 F.3d 685, 694 (7th Cir. 1994).

Further, the enterprise must have an “annual gross

volume of sales made or business done [of] not less

than $500,000.” 29 U.S.C. § 203(b)(1)(A).

According to Hicks, Felling’s various business endeavors—including Felling Hotel, LLC (operating entity for

two hotels not involved in this suit) and Felling Investments, LLC (rental property management company)—

meet these elements, as they were under Felling’s control

and operation and had combined annual gross revenues

in excess of $500,000. The district court assumed that

Hicks demonstrated the common control criterion, but

it questioned what common business purpose united

the endeavors into a single FLSA enterprise. (Directed

Verdict Tr. at 9.) Her counsel responded, “The common

business purpose is to make money and how they do
No. 10-2744 15

that can be different.” (Id. at 10.) The district court, noting

that a profit motive alone is not a sufficient common

business purpose, found that the businesses did not

constitute an enterprise under the FLSA. Accordingly,

it granted a judgment as a matter of law in the Defendants’ favor as to Hicks’s overtime claim as it related to

her time as a security guard in 2006. (Id. at 20-22.)

Hicks asks us to review and reverse that judgment, but

she takes an entirely different tack on appeal than she

took below. She now argues that Felling “used the resources of Felling Investments, LLC and Felling Hotel,

LLC for the common business purpose of constructing

the hotel.” (Appellant’s Br. at 12.) This theory was never

presented, let alone developed, in the district court.

Because she advances a completely different theory

before us than she advanced below, she has forfeited

this issue. See Jackson, 627 F.3d at 640; cf. Liberles v. Cook

County, 709 F.2d 1122, 1127 (7th Cir. 1983) (“It is a

well-settled rule that a party opposing a summary judgment motion must inform the trial judge of the reasons,

legal or factual, why summary judgment should not be

entered. If it does not do so, and loses the motion, it

cannot raise such reasons on appeal.”). The argument

she did make lacks merit; the district court was correct

that a profit motive alone does not constitute a “common business purpose” as required for enterprise coverage in the FLSA. Brennan v. Veterans Cleaning Serv.,

Inc., 482 F.2d 1362, 1367 (5th Cir. 1973) (“More than a

common goal to make a profit, however, must be shown

to satisfy the requirement.”); Wirtz v. Columbian Mut. Life

Ins. Co., 380 F.2d 903, 907 (6th Cir. 1967) (same).
16 No. 10-2744

At least sixteen of the twenty-two pages comprising the 3

directed verdict argument transcript involve counsels arguments and the district court’s ruling and reasoning on the

enterprise coverage issue. Hicks included only one of those

pages in her separate appendix, and that page does not show

the district court’s decision or rationale.

Hicks decided not to provide a complete transcript of

the district court’s reasoning regarding its enterprise

coverage decision, she changed her tack on appeal so 3

that neither the district court nor the Defendants had an

opportunity to respond to the theory now espoused, and

she neither acknowledged this forfeiture nor made

any attempt to show the elements required for plain

error review in her brief. Accordingly, we decline to

review this aspect of her contention for plain error. See

Jackson, 627 F.3d at 640.

We also find no merit in her final argument regarding

FLSA coverage. Hicks argues that the district court

should have allowed the jury to decide whether

Felling Hotels, LLC independently earned more than

$500,000 in annual revenue. She does not explain the

relevance of that potential finding in light of her defining

her “Employer” as Avery Drei and Felling individually,

but we will assume she implicitly argues that Felling

Hotels and Avery Drei are both innkeeping ventures

that should comprise an FLSA enterprise. It is true that

Felling’s testimony established that one of his businesses

(Felling Hotels) could have had revenues of over $500,000

in 2005. But the transcript shows that he was completely

uncertain about the values, and no other testimony or
No. 10-2744 17

evidence showed the amount of gross revenue the

entity earned. Nor did Hicks seek any business records

or other documentation of revenue during discovery.

Felling’s testimony, standing alone, would not support the conclusion that Felling Hotels met the revenue

threshold outlined in 29 U.S.C. § 203(b)(1)(A). See Fed. R.

Civ. P. 50(a); Zimmerman v. Chicago Bd. of Trade, 360 F.3d

612, 623 (7th Cir. 2004) (“[I]n order to reverse a district

court’s grant of judgment for the defendants as a matter

of law, there must be more than a mere scintilla of evidence to support the plaintiffs’ case.”).

Further, the ultimate determination whether the employer is an enterprise subject to FLSA’s requirements

is ordinarily the court’s province, not the jury’s. See

Sapperstein v. Hager, 188 F.3d 852, 856 (7th Cir. 1999); Reich

v. Bay, 23 F.3d 110, 114 (5th Cir. 1994); Brock v. Hamad, 867

F.2d 804, 806 (4th Cir. 1989); Brennan v. Plaza Shoe Store,

Inc., 522 F.2d 843, 846 (8th Cir. 1975). In light of the

meager evidence of revenue; Hicks’s undeveloped argument as to its significance; her decision not to include

the transcript of the court’s decision; and her neglect of

the district court’s reasoning in her appellate arguments, we cannot conclude that the district court erred

in granting the Defendants’ motion for a judgment of

law on her FLSA overtime wage claim.

III. CONCLUSION

Finding no error in the district court’s rulings and

judgments, we AFFIRM.
18 No. 10-2744

CUDAHY, Circuit Judge, concurring in part and concurring in the judgment. With respect to the issue of Fair

Labor Standards Act (FLSA) coverage, I believe that

there is sufficient evidence to avoid a judgment for

the defendants as a matter of law. Specifically, Chance

Felling’s testimony contains an admission against his

interest, as the owner of Felling Hotels, that the company could have had revenues exceeding $500,000. He

was probably the most authoritative witness on the

subject of the company’s income, and the fact that his

testimony was somewhat equivocal should fall by the

wayside when the evidence is viewed in the light most

favorable to the plaintiff. See Cooper v. Carl A. Nelson &

Co., 211 F.3d 1008, 1017 (7th Cir. 2000). However, as the

majority points out, Felling Hotels is not a named defendant, and there is no explanation how its potential

liability under the FLSA is connected to the liability of

the defendants that are named in this suit. I therefore

join the judgment of affirmance.

8-17-11