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Moss v. Geared 2 Serve Staffing, LLC

United States District Court, S.D. Indiana, Indianapolis Division

January 21, 2015

HOMER J. MOSS, Plaintiff,


WILLIAM T. LAWRENCE, District Judge.

This cause is before the Court on the cross motions for partial summary judgment filed by the parties. The motions are fully briefed, [1] and the Court, being duly advised, DENIES the Plaintiff's motion (Dkt. No. 24) and GRANTS IN PART AND DENIES IN PART the Defendants' motion (Dkt. No. 27) for the reasons, and to the extent, set forth below.


As an initial matter, the Plaintiff, Homer J. Moss, moved the Court to strike the Defendants' brief and their designation of evidence in support of their motion for partial summary judgment because the documents were filed just after midnight following the due date (Dkt. No. 30). According to the Court's case management system, the Defendants' motion was timely filed on September 26, 2014, at 11:52 p.m. Then, defense counsel began the filing process for his supporting brief prior to midnight, but the brief was not actually filed until 12:21 a.m. on September 27, 2014.[2] The Defendants' designation of evidence was thereafter filed at 12:47 a.m. Thus, the brief and the designation of evidence were not timely filed. The Court, however, will not strike the Defendants' belated filings in this case. This is a first offense for defense counsel, and, as far as the Court can tell, the Plaintiff is not prejudiced by the late filings. Therefore, the Court DENIES the Plaintiff's motion to strike.


Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." In ruling on a motion for summary judgment, the Court accepts as true the admissible evidence presented by the non-moving party and draws all reasonable inferences in the non-movant's favor. Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009). However, "[a] party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial." Id. Finally, the non-moving party bears the burden of specifically identifying the relevant evidence of record, and "the court is not required to scour the record in search of evidence to defeat a motion for summary judgment." Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001).


Moss was an employee of Defendant Geared 2 Serve Staffing, LLC ("Geared"). At all times relevant to this litigation, Defendant Rick Hartman was the sole manager of Geared. Hartman and Moss were also "long time friend[s]." Dkt. No. 34-1 at ΒΆ 9. On February 1, 2009, Moss agreed to store several large items on his property for Hartman. The items included a 1995 Ford Super Duty Power Stroke, a "Heat King" brand ground heater with a generator, and a "Heat King" brand ground/concrete heater without a generator. At some point, however, Moss and Hartman's relationship soured, and Moss quit his job with Geared in June 2011.

During his employment with Geared, Moss generally received his wages though direct deposit on a weekly basis. Rather than direct deposit Moss's wages for his last two weeks of work, however, Geared prepared two hard-copy checks for Moss.[3] Moss never picked up the checks, and Geared never mailed or otherwise delivered the checks to Moss. To this date, Moss has not received any compensation for his final two weeks of work.

On April 18, 2012, Moss recorded a Notice of Intention to Hold Lien in the Hamilton County Recorder's Office in relation to the items he was storing on his property. The lien was addressed to Geared. Shortly thereafter, on April 30, 2012, Moss filed suit against Geared in the Boone County Superior Court. He sought payment of his wages under Indiana's wage payment statute, as well as damages for storing the truck and ground heaters on his property. He also asked the court to foreclose on his personal property lien. After Geared failed to timely respond to the complaint, Moss moved for default judgment. The court granted the motion, and issued an order of foreclosure.

On March 20, 2013, Geared filed a motion to set aside the default judgment. On March 22, 2013, however, Moss sold the ground heaters at auction for $7, 425.00.[4] Moss also had the Ford truck towed from his property to a tow yard. On July 12, 2013, the court held a hearing on Geared's motion, and on November 22, 2013, the court granted the motion and set aside the default judgment and the order of foreclosure.

Apparently unhappy with how he pled his original complaint, on March 17, 2014, Moss filed an amended complaint adding Hartman as a Defendant. Moss's amended complaint also alleged new theories of recovery. Moss alleged a wage-payment claim under the Fair Labor Standards Act ("FLSA") (not Indiana's wage payment statute), and a claim for overtime wages under the FLSA (collectively asserted under Count I). His complaint also alleged the same unjust enrichment claim (seeking damages related to his storage of the truck and the ground heaters), and lien foreclosure claim, as his original complaint. Interestingly, this time, Moss also alleged in his amended complaint that Hartman, and not Geared, was the owner of the truck and the ground heaters. The amended complaint was removed to this Court on April 1, 2014.

Thereafter, Moss filed a second amended complaint on April 28, 2014. The second amended complaint contained the same claims as the previous complaint, but alleged individual liability against Hartman with ...

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