UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

THOMAS E. PEREZ, Secretary of Labor, )

United States Department of Labor, )

)

 Plaintiff, )

)

 v. ) CIVIL NO. 2:15cv176

)

FIVE M’S, LLC, and Indiana Limited Liability )

Company d/b/a PREMIER AUTO, PREMIER )

AUTO SALES, and VALPARAISO )

TRANSMISSION a/k/a VALPARAISO CAR )

CARE AND TRANSMISSION, R-WAY, INC.,)

an Indiana Corporation d/b/a L&W AUTO )

SALVAGE, and JOHN MORGAVAN, )

an Individual, )

)

 Defendants. )

OPINION AND ORDER

This matter is before the court on a “Motion for Leave to File Declarations Instanter”,

filed by the plaintiff, Thomas E. Perez, Secretary of Labor, United States Department of Labor

(“DOL”), on September 19, 2016. The Defendants have not filed a response to the motion.

Also before the court is a “Defendants’ Motion for Leave to File Sur-Reply to

Department of Labors’s Motion to Strike Affidavit of Neal Guirarelli and New Evidence Raised

by Department of Labor, filed by the defendants on October 5, 2016. The DOL has not filed a

response to the motion.

Discussion

The DOL has brought a complaint against the defendants alleging various violations of

the Fair Labor Standards Act (“FLSA)”. The following facts are relevant to the DOL’s motion for

leave to file declarations. On August 1, 2016, The DOL filed its motion for summary judgment
against Defendants [Doc. 24]. On September 1, 2016, Defendants filed a response. [Doc. 27] 

Defendants also filed a Motion to Strike Portions of the Declaration of Nancy Alcantara [Doc.

26]. Attached to the DOL’s reply to the motion for summary judgment, as well as to its Response

to Defendant’s Motion to Strike Portions of the Declaration of Nancy Alcantara, is an Amended

Declaration of Nancy Alcantara and a Revised Declaration of Nadine Walter. Alcantara is the

Wage and Hour Investigator who conducted the investigation of the Defendants. Walter is one of

Defendants’ former employees. Also attached to the DOL’s reply to summary judgment and

response to motion to strike are eight new Declarations obtained from Defendants’ former

employees: Robert Aubin, Don Pavichevich, James Wilhelm, Thomas Bade, Robert Gale, Dan

Gresham, Caleb Naasko, and Marcus Rogers. The DOL also submitted the Declarations of

Marian Nicksich and Laura Plonka, the Wage and Hour personnel who were involved with the

Defendants in Wage and Hour’s 2005 investigation of Defendant Valparaiso Transmission and

its 2012 conciliation involving Defendant L&W Auto Salvage and Defendant Morgavan.

This court is permitted under Federal Rule of Civil Procedure 56(e)(1) to consider

supplementary declarations:

If a party fails to properly support an assertion of fact or fails to

properly address another party's assertion of fact as required by Rule

56(c), the court may: 

(1) give an opportunity to properly support or address the fact; 

(2) consider the fact undisputed for purposes of the motion; 

(3) grant summary judgment if the motion and supporting materials--

including the facts considered undisputed--show that the movant is

entitled to it; or 

(4) issue any other appropriate order. 

FED. R. CIV. P. 56(1)-(4) (emphasis added). The DOL claims that the Amended Declaration of

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Nancy Alcantara serves to support its findings of FLSA violations and back wage calculations.

The DOL states that the Amended Declaration is substantially the same as Alcantara’s previous

Declaration and does not prejudice the Defendants. The DOL further states that the Declarations

of Defendants’ former employees serve to properly support the facts regarding hours worked by

Defendants’ employees. The DOL maintains that these Declarations also do not prejudice

Defendants. The DOL states that the Defendants are aware of the DOL’s position of using a 47-

hour workweek for L & W Auto Salvage and a 50-hour workweek for Valparaiso Transmission

in the back wage calculations. The DOL further states that the Declarations of the retired Wage

and Hour personnel involved in the previous investigation and conciliation confirm the findings

of those previous investigations. The DOL contends that all of these Declarations contain

admissible evidence that does not prejudice Defendants and clarifies the summary judgment

record and that striking these Declarations would be an unduly harsh sanction. See Lewis v. Bay

Indus., Inc., 51 F. Supp. 3d 846, 852–53 (E.D. Wis. 2014) (concluding that granting a motion for

leave to file supplemental declarations “was appropriate, as striking the declarations would be an

unduly harsh sanction” where defendant suffered no prejudice and plaintiff obtained

supplemental declarations promptly). 

As noted above, there have been no objections to the filing of the Declarations covered by

the instant motion. Accordingly, as the law fully supports the granting of the motion to file, the

DOL’s motion will be granted.

Next, the court will address the Defendants’ motion for leave to file sur-reply to the

motion to strike the affidavit of Neal Guirarelli and new evidence raised by the DOL. As noted

above, the DOL filed a motion for summary judgment on August 1, 2016. The Defendants filed

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their response to the motion for summary judgment on September 1, 2016. The Defendants’

motion for summary judgment included an affidavit from Neal Guirarelli. The Defendants also

filed a motion to strike the affidavit of Nancy Alcantara, which the DOL filed in support of their

motion for summary judgment. On September 19, 2016, the DOL filed their reply in support of

their motion for summary judgment. The DOL included 13 new exhibits, including 10 new

affidavits that were not included in the DOL’s original motion for summary judgment. The DOL

also included two revised affidavits from Nadine Walter and Nancy Alcantara, which were

included in the DOL’s original motion for summary judgment. Additionally, on September 19,

2016, the DOL also filed a motion to strike the affidavit of Neal Guirarelli. Further, the DOL

filed a response to the Defendants’ Motion to Strike the declaration of Nancy Alcantara. The

response included 12 affidavits.

 The ability to file a sur-reply may be gained only be leave of the court and by the

showing of some factor that justifies deviation from the rule. Taylor v. Lifetouch National School

Studios, Inc., 490 F. Supp. 2d 944, 950 (N.D. Ind. 2007). Seeking permission [to file a sur-reply]

is not a mere technicality to be overlooked. Goltz v. University of Notre Dame Du Lac, 177

F.R.D. 638, 642 (N.D. Ind. 1997). The Defendants argue that a sur-reply should be allowed in

this case because the DOL filed a motion strike the affidavit of Neal Guirarelli, the DOL

included 13 new exhibits in their reply brief, and 12 new exhibits in response to the Defendants’

motion to strike the declaration of Nancy Alcantara.

As noted above, the DOL has not filed an objection to the defendants’ motion. In light of

the large amount of new evidence submitted by the DOL in their reply to their motion for

summary judgment, the court will grant the Defendants leave to file a sur-reply. The sur-reply is

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to be filed within 10 days of the date of this Order.

Conclusion

On the basis of the foregoing, Perez’ Motion for Leave to File Declarations Instanter [DE

33] is hereby GRANTED. Also, the Defendants’ Motion for Leave to File Sur-Reply [DE 34] is

also hereby GRANTED. Defendants’ Sur-Reply is to be filed within 10 days of the date of this

Order.

 Entered: December 28, 2016.

 s/ William C. Lee 

 William C. Lee, Judge

 United States District Court

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