United States District Court, E.D. Virginia, Norfolk Division
R. ALEXANDER ACOSTA, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR Plaintiff,
MEDICAL STAFFING OF AMERICA, LLC, D/B/A STEADFAST MEDICAL STAFFING, AND LISA ANN PITTS Defendant.
MEMORANDUM OPINION AND ORDER
Raymond A. Jackson United States District Judge.
FACTUAL AND PROCEDURAL HISTORY
the Court is R. Alexander Acosta's
("Secretary") objection to the Magistrate
Judge's order granting Defendant's Motion to Strike
the Secretary's Revised Schedule A document attached to
the Secretary's Complaint. ECF No. 133.
Secretary's Complaint was filed on May 2, 2018. ECF No.
1. The Complaint states that Defendants may be liable to
current and former employees unknown to the Secretary at the
time the Complaint was filed and for ongoing violations of
the Fair Labor Standards Act ("FLSA"). Id.
at 4 ¶ (2). The Secretary's Revised Schedule A was
filed on May 13, 2019 and increases the number of potential
beneficiaries of the Secretary's suit from 84 to 389 to
reflect newly discovered potential violations of the FLSA by
the Defendants. ECF No. 133. The Secretary's Revised
Schedule A does not alter the Complaint itself. ECF No. 135
Magistrate Judge granted the Defendant's Motion to Strike
(ECF No. 118) on May 24, 2019, with a docket entry
("docket entry") finding the Secretary's
Revised Schedule A occurred after the issuance of the Final
Pretrial Order. ECF No. 133. Additionally, the Magistrate
Judge found the Secretary's Revised Schedule A to
constitute an amendment to his Complaint, thereby requiring
leave of court or Defendant's consent consistent with
Fed.R.Civ.P. 15(a)(2). ECF No. 133.
nondispositive matter, the review of a magistrate's order
is properly governed by the "clearly erroneous or
contrary to law standard of review." See Tafas v.
Dudas, 530 F.Supp.2d 786, 792 (E.D. Va. 2008). Only if a
magistrate judge's decision is "clearly erroneous or
contrary to law" may a district judge modify or set
aside any portion of the decision. Fed.R.Civ.P. 72(a);
see 28 U.S.C. § 636(b)(1)(A). An order is
clearly erroneous when although there is evidence to support
it, the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been
committed. United States v. U.S. Gypsum Co., 333
U.S. 364, 395 (1948). Where a magistrate judge's ruling
constitutes an abuse of discretion or is contrary to law,
district courts must vacate it in order to give effect to the
plain language of 28 U.S.C. § 636(b)(1)(A). In re
Outsidewall Tire Litigation, 267 F.R.D. 466, 470 (E.D.
objection to the Magistrate Judge's docket entry, the
Secretary argues the Revised Schedule A does not constitute
an amendment to its Complaint, thereby circumventing the
requirements for the amendment of pleadings in Fed.R.Civ.P.
15 and Fed.R.Civ.P. 16. ECF No. 135. In opposition to the
Secretary's objection, Defendants claim the Magistrate
Judge's docket entry subjecting the Revised Schedule A to
the requirements of Fed.R.Civ.P. 15(a)(2) was not clearly
erroneous or contrary to law. ECF No. 136 at 5-7. In
addition, Defendants contend the inclusion of the Revised
Schedule A would be improper because a Final Pretrial Order
has been issued and Fed.R.Civ.P. 16(e) precludes modification
of the docket entry absent a finding of manifest injustice.
Id. at 7-16.
Objection to the Exclusion of Revised Schedule A Under
support of his objection to the Magistrate Judge's docket
entry, the Secretary relies on U.S. Dep't of Labor v.
Fire & Safety Investigation Consulting Servs. No.
1:17CV25, 2018 WL 2065941 (N.D. W.Va. May 3, 2018). In
Fire & Safety, the Secretary's complaint
alleged back wages and liquidated damages may be due for
certain present and future employees unknown at the time the
complaint was filed. Id. at *3. The Secretary was
permitted to file a Revised Schedule A without amending its
complaint because the allegations in the complaint were not
limited to the employees listed in the original Schedule A.
the complaint at issue in Fire Safety, the
allegations in the Secretary's Complaint were not
confined to those employees specifically listed in the
original Schedule A. In addition to the employees listed in
the original Schedule A, the Complaint seeks additional
amounts of back wages and liquidated damages for continuing
violations of the FLSA and for violations presently unknown
to the Secretary. ECF No. 1 at 4 ¶ (2).
oppose the Secretary's objection, arguing the Revised
Schedule A obligates the Secretary to seek leave of court, as
an amendment to its Complaint. In support of its opposition
to the Secretary's objection, Defendants rely on a series
of cases in which the Secretary sought to file a Revised
Schedule A (or analogous attachment) which added
beneficiaries who were not named in the original Schedule A
accompanying the complaint. ECF No. 136 at 5-7. Although the
Secretary sought leave of court to file a Revised Schedule A
in each of the cases the Defendants cite, in no case was
leave of court cast as a mandatory step . required to file a
Revised Schedule A. Further, the Secretary was permitted to
file a Revised Schedule A in each case the Defendants cite,
with one court characterizing the addition of employees to a
Revised Schedule A as a "purely technical matter."
Reich v. Great Lakes Collection Bureau, 176 F.R.D.
81-85 (W.D.N.Y. June 27, 1997). Therefore, as a general
matter, the Secretary should be permitted to submit a Revised
Schedule A without amending his complaint.
Revised Schedule A and ...