IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CORNELIUS SMITH, et al., )

 )

Plaintiffs, )

 )

v. ) CIVIL ACTION 14-0107-WS-B

 )

WERNER ENTERPRISES, INC., ) 

 )

Defendant. )

 ORDER

This matter is before the Court on the parties’ motions for partial summary 

judgment. (Docs. 86, 93). The parties have filed briefs and evidentiary materials 

in support of their respective positions, (Docs. 87-89, 94-95, 99-100, 107-08), and 

the motions are ripe for resolution. This order addresses only the issues of the 

willfulness and liquidated damages. After careful consideration, the Court 

concludes that the motions as to these issues are due to be denied.

BACKGROUND

This is the second FLSA action brought by plaintiffs employed by the 

defendant to provide certain trucking services to a non-party (“Boise”) that 

operates a paper mill in Jackson, Alabama. See Pritchett v. Werner Enterprises, 

Inc., Civil Action No. 12-0182-WS-C. In Pritchett, the parties filed competing 

motions for summary judgment concerning the statute of limitations and liquidated 

damages, which the Court denied after finding genuine issues of material fact. 

(Id., Doc. 106). 

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DISCUSSION

Summary judgment should be granted only if “there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(a). The party seeking summary judgment bears “the initial 

burden to show the district court, by reference to materials on file, that there are no 

genuine issues of material fact that should be decided at trial.” Clark v. Coats & 

Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The moving party may meet its 

burden in either of two ways: (1) by “negating an element of the non-moving 

party’s claim”; or (2) by “point[ing] to materials on file that demonstrate that the 

party bearing the burden of proof at trial will not be able to meet that burden.” Id. 

“Even after Celotex it is never enough simply to state that the non-moving party 

cannot meet its burden at trial.” Id.; accord Mullins v. Crowell, 228 F.3d 1305, 

1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992). 

“When the moving party has the burden of proof at trial, that party must 

show affirmatively the absence of a genuine issue of material fact: it must support 

its motion with credible evidence ... that would entitle it to a directed verdict if not 

controverted at trial. [citation omitted] In other words, the moving party must 

show that, on all the essential elements of its case on which it bears the burden of 

proof, no reasonable jury could find for the nonmoving party.” United States v. 

Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991) (en banc) 

(emphasis in original); accord Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 

(11th Cir. 1993).

“If the party moving for summary judgment fails to discharge the initial 

burden, then the motion must be denied and the court need not consider what, if 

any, showing the non-movant has made.” Fitzpatrick, 2 F.3d at 1116; accord 

Mullins, 228 F.3d at 1313; Clark, 929 F.2d at 608. 

“If, however, the movant carries the initial summary judgment burden ..., 

the responsibility then devolves upon the non-movant to show the existence of a 

genuine issue of material fact.” Fitzpatrick, 2 F.3d at 1116. “If the nonmoving 

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party fails to make ‘a sufficient showing on an essential element of her case with 

respect to which she has the burden of proof,’ the moving party is entitled to 

summary judgment.” Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett, 

477 U.S. 317 (1986)) (footnote omitted); see also Fed. R. Civ. P. 56(e)(2) (“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 ... 

consider the fact undisputed for purposes of the motion ....”).

In deciding a motion for summary judgment, “[t]he evidence, and all 

reasonable inferences, must be viewed in the light most favorable to the 

nonmovant ....” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 

(11th Cir. 2003).

There is no burden on the Court to identify unreferenced evidence 

supporting a party’s position.1 Accordingly, the Court limits its review to the 

exhibits, and to the specific portions of the exhibits, to which the parties have 

expressly cited. Likewise, “[t]here is no burden upon the district court to distill 

every potential argument that could be made based upon the materials before it on 

summary judgment,” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 

(11th Cir. 1995), and the Court accordingly limits its review to those arguments the 

parties have expressly advanced. 

I. Willfulness.

“[E]very such action shall be forever barred unless commenced within two 

years after the cause of action accrued, except that a cause of action arising out of 

 1 Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials, but it 

may consider other materials in the record.”); accord Adler v. Wal-Mart Stores, Inc., 144 

F.3d 664, 672 (10th Cir. 1998) (“The district court has discretion to go beyond the 

referenced portions of these [summary judgment] materials, but is not required to do 

so.”). “[A]ppellate judges are not like pigs, hunting for truffles buried in briefs,” and 

“[l]ikewise, district court judges are not required to ferret out delectable facts buried in a 

massive record ....” Chavez v. Secretary, Florida Department of Corrections, 647 F.3d 

1057, 1061 (11th Cir. 2011) (internal quotes omitted). 

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a willful violation may be commenced within three years after the cause of action 

accrued ....” 29 U.S.C. § 255(a). The plaintiff moves for summary judgment as 

to this issue. (Doc. 93 at 1).

“To establish that the violation of the Act was willful in order to extend the 

limitations period, the employee must prove by a preponderance of the evidence 

that his employer either knew that its conduct was prohibited by the statute or 

showed reckless disregard about whether it was.” Alvarez Perez v. SanfordOrlando Kennel Club, Inc., 515 F.3d 1150, 1162-63 (11th Cir. 2008). “The Code 

of Federal Regulations defines reckless disregard as the ‘failure to make adequate 

inquiry into whether conduct is in compliance with the Act.’” Id. (quoting 5 

C.F.R. § 551.104); accord Davila v. Menendez, 717 F.3d 1179, 1185 (11th Cir. 

2013) (an employer acts with reckless disregard “‘if the employer should have 

inquired further into whether [its] conduct was in compliance with the Act, and 

failed to make adequate further inquiry.’”) (quoting 29 C.F.R. § 578.3(c)(3)). 

According to the defendant, a violation is not willful when “the employer 

relies on advice of counsel.” (Doc. 99 at 18-19).2 Among the requirements for 

successful reliance on advice of counsel is that the client “supply [counsel] with 

all of the information needed to arrive at an informed opinion on the subject.” 

Alvarez Perez, 515 F.3d at 1168. The Court agrees with the plaintiffs that the 

testimony of the defendant’s witnesses concerning the solicitation and receipt of 

legal advice is sufficiently vague, porous and contradictory that a jury would be 

justified in finding that the defendant did not supply counsel with all the 

information needed to arrive at an informed opinion as to whether the drivers on 

 2 Cutting and pasting from its brief in Pritchett, the defendant also says a violation 

is not willful when “case law is unclear” or when the employer relies on an industry 

standard. (Doc. 99 at 18-19). These sweeping statements are as insupportably overbroad 

today as they were two years ago, for reasons the Court has explained. (Pritchett, Doc. 

106 at 9-11). Since the defendant does not advance these propositions as bases for 

denying the plaintiffs’ motion, (Doc. 99 at 19-20), the Court need not consider them 

further. 

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the Boise contract could lawfully be paid no overtime.3 But the Court disagrees 

that this evidence so strongly supports the plaintiffs that no properly functioning 

jury could fail to find willfulness under the governing standard. Accordingly, their 

motion for summary judgment as to willfulness is due to be denied.

II. Liquidated Damages.

“Any employer who violates the provisions of ... section 207 of this title 

shall be liable to the employee or employees affected in the amount of their ... 

unpaid overtime compensation ... and in an additional equal amount as liquidated 

damages.” 29 U.S.C. § 216(b). Thus, “[w]hen the jury finds an employer has 

violated the overtime provision of the FLSA and assesses compensatory damages, 

the district court generally must add an award of liquidated damages in the same 

amount ....” Alvarez Perez, 515 F.3d at 1163. The parties both seek summary 

judgment as to this issue. (Doc. 86 at 1; Doc. 93 at 1). 

[I]f the employer shows to the satisfaction of the court that 

the act or omission giving rise to such action was in good faith and 

that he had reasonable grounds for believing that his act or omission 

was not a violation of the [FLSA], the court may, in its sound discretion, 

award no liquidated damages or award any amount thereof not to exceed 

the amount specified in section 216 of this title. 

29 U.S.C. § 260. “The employer bears the burden of establishing both the 

subjective and objective components of that good faith defense against liquidated 

damages.” Alvarez Perez, 515 F.3d at 1163.4

 3 A properly functioning jury could also find that the defendant did not seek, and 

did not receive, any opinion that the Boise drivers were not covered by the FLSA or were 

exempt from its overtime requirements. 

4 A determination that the employer acted willfully precludes a finding that the 

employer acted in good faith so as to potentially escape liability for liquidated damages. 

Davila, 717 F.3d at 1186. Because the defendant’s willfulness remains an open question, 

the Court cannot rely on this rule to resolve the liquidated damages issue. But neither 

must the Court await the jury’s ruling on willfulness before resolving the parties’ motions 

for summary judgment as to liquidated damages because, since “the burden of proof is 

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“To satisfy the subjective ‘good faith’ component, the employer has the 

burden of proving that it had an honest intention to ascertain what the Act requires 

and to act in accordance with it.” Davila, 717 F.3d at 1186 (internal quotes 

omitted). “Apathetic ignorance is never the basis of a reasonable belief,” and the 

objective component of the defense thus “requires some duty to investigate 

potential liability under the FLSA.” Barcellona v. Tiffany English Pub, Inc., 597 

F.2d 464, 469 (5th Cir. 1979).

The defendant again relies on advice of counsel. (Doc. 99 at 22-23). As 

the Court has previously held, “[j]ust as failure to provide counsel the relevant 

facts can support a finding of willfulness, it may also reflect an inadequate 

investigation for purposes of objective good faith.”5 As discussed in Part I, the 

evidence would not compel a properly functioning jury to find that the defendant 

provided counsel the relevant facts and obtained a considered, legally relevant 

opinion concerning the lawfulness of not paying the Boise drivers overtime. The 

defendant’s motion for summary judgment must thus be denied. But, as also 

indicated in Part I, a properly functioning jury would be justified in finding for the 

defendant on these points. Thus, the plaintiffs’ motion for summary judgment 

must also be denied.

CONCLUSION

For the reasons set forth above, the motions of the plaintiffs and the 

defendant for summary judgment as to the issues of willfulness and liquidated 

damages are denied. 

DONE and ORDERED this 21st day of July, 2015.

s/ WILLIAM H. STEELE

CHIEF UNITED STATES DISTRICT JUDGE 

 

placed differently ..., a finding that willfulness was not present may co-exist peacefully 

with a finding that good faith was not present.” Id. (internal quotes omitted). 

5 (Pritchett, Doc. 106 at 13).

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