UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 18-2051
MAURLANNA BRAXTON; BRITTANY SCOTT; STEPHANIE GAMBLE; BRIONNA WILLIAMS, On Behalf of Themselves and Other Similarly Situated Individuals,
Plaintiffs - Appellees,
v.
KENNETH JACKSON,
Defendant - Appellant,
and
ELDORADO LOUNGE, INC.; FOUR ONE FOUR, LLC,
Defendants.
Appeal from the United States District Court for the District of Maryland, at Baltimore. Beth P. Gesner, Magistrate Judge. (1:15-cv-03661-BPG)
Submitted: May 31, 2019 Decided: July 31, 2019
Before AGEE, DIAZ, and FLOYD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.
Kenneth Jackson, Appellant Pro Se. Kenneth C. Gauvey, LAW PRACTICE OF KEN C. GAUVEY, LLC, Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Kenneth Jackson appeals the jury verdict in favor of the plaintiffs and the magistrate
judge’s award of liquidated damages to Maurlanna Braxton, Brittany Scott, and Stephanie
Gamble in their suit alleging violation of the Fair Labor Standards Act, 29 U.S.C. §§ 201-
219 (2012), and state law. 1
After Jackson filed his notice of appeal, on November 28, 2018, the magistrate judge
awarded $71,962.50 in attorney’s fees and costs to Plaintiffs. Braxton v. Eldorado Lounge,
Inc., No. 1:15-cv-03661-BPG (D. Md., PACER Nos. 272, 273). Jackson did not file a
notice of appeal of this order in the district court. On January 28, 2019, Jackson filed an
amended informal opening brief in this Court in which he asserted that the magistrate judge
erred in the November 28, 2018 order. Plaintiffs moved to strike this filing. Even if we
could construe Jackson’s amended informal brief as a notice of appeal, it is untimely as to
the November 28, 2018 order, and we lack jurisdiction. See Fed. R. App. P. 4(a)(1)(A);
Hudson v. Pittsylvania Cty., 774 F.3d 231, 236 (4th Cir. 2014). We therefore grant
Plaintiffs’ motion to strike.
Jackson asserts several other errors in the proceedings. First, Jackson argues that
the district court erred in denying his motion for Fed. R. Civ. P. 11 sanctions. He contends
that Plaintiffs’ counsel failed to investigate Plaintiffs’ claims and filed a “frivolous”
lawsuit. He asserts that Braxton only filed suit after being contacted by counsel and that
Plaintiffs’ counsel refused to settle, running up costs out of proportion to the jury verdict.
1 The parties consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c) (2012).
2 We review a district court’s decision regarding Rule 11 sanctions for abuse of
discretion. Barlow v. Colgate Palmolive Co., 772 F.3d 1001, 1007 (4th Cir. 2014). We
will reverse for abuse of discretion only if we “form a definite and firm conviction that the
court below committed a clear error of judgment in the conclusion it reached upon a
weighing of the relevant factors.” Morris v. Wachovia Sec., Inc., 448 F.3d 268, 277 (4th
Cir. 2006) (internal quotation marks omitted). Jackson’s arguments are conclusory.
Plaintiffs’ suit had merit and was not frivolous; thus, we conclude that the district court did
not abuse its discretion in denying Jackson’s motion for sanctions.
Jackson argues that Plaintiffs never requested a class certification hearing, despite
filing a collective action pursuant to Fed. R. Civ. P. 23. To the extent that Jackson finds
fault with the district court, it is unclear what ruling, if any, Jackson contends was made in
error. Furthermore, it does not appear that Jackson ever requested the district court to rule
on Plaintiffs’ request for a collective action. We therefore have nothing to review.
Jackson next contends that the district court erred in sealing Plaintiffs’ depositions
during a telephone conference on February 27, 2017. Plaintiffs moved for a protective
order regarding information to be discussed in Plaintiffs’ depositions, particularly related
to tax returns. The magistrate judge entered a protective order designating the tax
information as “Attorneys’ Eyes Only” but specifically allowed Jackson access to the
information. As a result, Plaintiffs withdrew their motion for a protective order. Although
it appears that the magistrate judge sealed the deposition transcripts, Jackson does not
establish error in that ruling or how it prejudiced him.
Jackson next argues that the magistrate judge should have granted his motion to
compel Plaintiffs to turn over various items in discovery. The magistrate judge determined 3 that the motion was untimely and that the information sought did not exist. We review a
district court’s discovery rulings for abuse of discretion. Lord & Taylor, LLC v. White
Flint, L.P., 849 F.3d 567, 572 (4th Cir. 2017).
Defendants propounded discovery to Plaintiffs on August 31, 2016. 2 Plaintiffs
responded on October 7, 2016. Pursuant to local rule, any motion to compel regarding
those discovery requests should have been filed by November 6, 2016. D. Md. Local Rule
104.8(a) (providing that motions to compel should be filed within 30 days of discovery
response). Jackson did not file a motion to compel until December 8, 2017, which was
beyond the discovery deadline of March 6, 2017. Furthermore, in the motion to compel,
Jackson conceded that Plaintiffs’ counsel informed him that the requested discovery did
not exist and was not in Plaintiffs’ possession. We conclude, therefore, that the district
court did not abuse its discretion in denying Jackson’s motion to compel.
Jackson then contends that the magistrate judge should have granted his motion to
strike several pretrial submissions by Plaintiffs. Jackson argues that the magistrate judge’s
order barred him from introducing Plaintiffs’ 1099s and other tax documents as evidence
at trial. Furthermore, Jackson asserts that he conferred with corporate counsel and
Plaintiffs’ counsel as to a pretrial order and that counsel changed the wording of the pretrial
order without consulting Jackson.
Regarding the 1099s, the motion to strike did not concern any of this evidence.
Furthermore, the exhibit list indicates that Plaintiffs’ 1099s were introduced as evidence at
2 Plaintiffs sued not only Jackson but also the businesses he operated—Eldorado Lounge, Inc. and Four One Four, LLC (d/b/a King and Diamonds). The business entities did not appeal.
4 trial. As to the pretrial order, we review a denial of a motion to strike for abuse of
discretion. United States v. Ancient Coin Collectors Guild, 899 F.3d 295, 312 (4th Cir.
2018), cert. denied, 139 S. Ct.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 18-2051
MAURLANNA BRAXTON; BRITTANY SCOTT; STEPHANIE GAMBLE; BRIONNA WILLIAMS, On Behalf of Themselves and Other Similarly Situated Individuals,
Plaintiffs - Appellees,
v.
KENNETH JACKSON,
Defendant - Appellant,
and
ELDORADO LOUNGE, INC.; FOUR ONE FOUR, LLC,
Defendants.
Appeal from the United States District Court for the District of Maryland, at Baltimore. Beth P. Gesner, Magistrate Judge. (1:15-cv-03661-BPG)
Submitted: May 31, 2019 Decided: July 31, 2019
Before AGEE, DIAZ, and FLOYD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.
Kenneth Jackson, Appellant Pro Se. Kenneth C. Gauvey, LAW PRACTICE OF KEN C. GAUVEY, LLC, Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Kenneth Jackson appeals the jury verdict in favor of the plaintiffs and the magistrate
judge’s award of liquidated damages to Maurlanna Braxton, Brittany Scott, and Stephanie
Gamble in their suit alleging violation of the Fair Labor Standards Act, 29 U.S.C. §§ 201-
219 (2012), and state law. 1
After Jackson filed his notice of appeal, on November 28, 2018, the magistrate judge
awarded $71,962.50 in attorney’s fees and costs to Plaintiffs. Braxton v. Eldorado Lounge,
Inc., No. 1:15-cv-03661-BPG (D. Md., PACER Nos. 272, 273). Jackson did not file a
notice of appeal of this order in the district court. On January 28, 2019, Jackson filed an
amended informal opening brief in this Court in which he asserted that the magistrate judge
erred in the November 28, 2018 order. Plaintiffs moved to strike this filing. Even if we
could construe Jackson’s amended informal brief as a notice of appeal, it is untimely as to
the November 28, 2018 order, and we lack jurisdiction. See Fed. R. App. P. 4(a)(1)(A);
Hudson v. Pittsylvania Cty., 774 F.3d 231, 236 (4th Cir. 2014). We therefore grant
Plaintiffs’ motion to strike.
Jackson asserts several other errors in the proceedings. First, Jackson argues that
the district court erred in denying his motion for Fed. R. Civ. P. 11 sanctions. He contends
that Plaintiffs’ counsel failed to investigate Plaintiffs’ claims and filed a “frivolous”
lawsuit. He asserts that Braxton only filed suit after being contacted by counsel and that
Plaintiffs’ counsel refused to settle, running up costs out of proportion to the jury verdict.
1 The parties consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c) (2012).
2 We review a district court’s decision regarding Rule 11 sanctions for abuse of
discretion. Barlow v. Colgate Palmolive Co., 772 F.3d 1001, 1007 (4th Cir. 2014). We
will reverse for abuse of discretion only if we “form a definite and firm conviction that the
court below committed a clear error of judgment in the conclusion it reached upon a
weighing of the relevant factors.” Morris v. Wachovia Sec., Inc., 448 F.3d 268, 277 (4th
Cir. 2006) (internal quotation marks omitted). Jackson’s arguments are conclusory.
Plaintiffs’ suit had merit and was not frivolous; thus, we conclude that the district court did
not abuse its discretion in denying Jackson’s motion for sanctions.
Jackson argues that Plaintiffs never requested a class certification hearing, despite
filing a collective action pursuant to Fed. R. Civ. P. 23. To the extent that Jackson finds
fault with the district court, it is unclear what ruling, if any, Jackson contends was made in
error. Furthermore, it does not appear that Jackson ever requested the district court to rule
on Plaintiffs’ request for a collective action. We therefore have nothing to review.
Jackson next contends that the district court erred in sealing Plaintiffs’ depositions
during a telephone conference on February 27, 2017. Plaintiffs moved for a protective
order regarding information to be discussed in Plaintiffs’ depositions, particularly related
to tax returns. The magistrate judge entered a protective order designating the tax
information as “Attorneys’ Eyes Only” but specifically allowed Jackson access to the
information. As a result, Plaintiffs withdrew their motion for a protective order. Although
it appears that the magistrate judge sealed the deposition transcripts, Jackson does not
establish error in that ruling or how it prejudiced him.
Jackson next argues that the magistrate judge should have granted his motion to
compel Plaintiffs to turn over various items in discovery. The magistrate judge determined 3 that the motion was untimely and that the information sought did not exist. We review a
district court’s discovery rulings for abuse of discretion. Lord & Taylor, LLC v. White
Flint, L.P., 849 F.3d 567, 572 (4th Cir. 2017).
Defendants propounded discovery to Plaintiffs on August 31, 2016. 2 Plaintiffs
responded on October 7, 2016. Pursuant to local rule, any motion to compel regarding
those discovery requests should have been filed by November 6, 2016. D. Md. Local Rule
104.8(a) (providing that motions to compel should be filed within 30 days of discovery
response). Jackson did not file a motion to compel until December 8, 2017, which was
beyond the discovery deadline of March 6, 2017. Furthermore, in the motion to compel,
Jackson conceded that Plaintiffs’ counsel informed him that the requested discovery did
not exist and was not in Plaintiffs’ possession. We conclude, therefore, that the district
court did not abuse its discretion in denying Jackson’s motion to compel.
Jackson then contends that the magistrate judge should have granted his motion to
strike several pretrial submissions by Plaintiffs. Jackson argues that the magistrate judge’s
order barred him from introducing Plaintiffs’ 1099s and other tax documents as evidence
at trial. Furthermore, Jackson asserts that he conferred with corporate counsel and
Plaintiffs’ counsel as to a pretrial order and that counsel changed the wording of the pretrial
order without consulting Jackson.
Regarding the 1099s, the motion to strike did not concern any of this evidence.
Furthermore, the exhibit list indicates that Plaintiffs’ 1099s were introduced as evidence at
2 Plaintiffs sued not only Jackson but also the businesses he operated—Eldorado Lounge, Inc. and Four One Four, LLC (d/b/a King and Diamonds). The business entities did not appeal.
4 trial. As to the pretrial order, we review a denial of a motion to strike for abuse of
discretion. United States v. Ancient Coin Collectors Guild, 899 F.3d 295, 312 (4th Cir.
2018), cert. denied, 139 S. Ct. 1191 (2019). The magistrate judge denied the motion to
strike as noncompliant with an order directing the parties not to file any other motions until
further notice from the court. We conclude that the magistrate judge did not abuse her
discretion in denying Jackson’s motion to strike. Moreover, Jackson fails to identify how
the submitted pretrial order differed from the one reached allegedly with his consent.
Jackson then argues that Braxton failed to produce sufficient evidence of her lost
wages. At trial, Defendants failed to move for judgment pursuant to Fed. R. Civ. P. 50.
Accordingly, this issue is not preserved. Belk, Inc. v. Meyer Corp., U.S., 679 F.3d 146,
154-55 (4th Cir. 2012) (noting requirement of compliance with Rule 50 to preserve
sufficiency of evidence for appellate review).
Next, Jackson questions how the magistrate judge could award liquidated damages
while respecting the district court’s denial in part of Plaintiffs’ motion for summary
judgment. Jackson asserts that the district court determined that Defendants had not
violated the FLSA or state law. He believes that the only issues for the jury to determine
were whether Defendants had violated another state statute and, if so, Plaintiffs’ damages.
Jackson also contends that the magistrate judge should not have awarded liquidated
damages because Defendants did not act willfully, as determined by the jury.
Jackson has misinterpreted the district court’s order. The district court did not grant
summary judgment to Defendants. The denial of summary judgment simply meant that
the matter would proceed to trial. Variety Stores, Inc. v. Wal-Mart Stores, Inc., 888 F.3d
5 651, 659 (4th Cir. 2018) (noting that purpose of motion for summary judgment is to
determine if there is a genuine dispute of material fact for trial).
Furthermore, the FLSA requires a district court to award liquidated damages equal
to the amount of unpaid wages or overtime compensation, 29 U.S.C. § 216(b), unless the
court, in its discretion, determines that “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].” 29 U.S.C. § 260. Good faith in this context requires more than “remain[ing]
blissfully ignorant of FLSA requirements” and taking “an ostrichlike approach to
[FLSA][.]” Roy v. Cty. of Lexington, 141 F.3d 533, 548-49 (4th Cir. 1998) (internal
quotation marks omitted). Good faith “requires that an employer first take active steps to
ascertain the dictates of the FLSA and then move to comply with them.” Reich v. S. New
England Telecomm. Corp., 121 F.3d 58, 71 (2d Cir. 1997).
Jackson conflates the jury’s finding that Defendants did not act willfully with a
finding that Defendants did not act in bad faith. Moreover, good faith in the context of
liquidated damages is an affirmative defense. Mayhew v. Wells, 125 F.3d 216, 220 (4th
Cir. 1997). We conclude that the magistrate judge did not abuse her discretion in
determining that Jackson had failed to demonstrate good faith efforts to comply with the
FLSA.
We also find no merit in Jackson’s argument that the district court failed to rule on
two motions to dismiss. The district court granted Plaintiffs’ motion to strike Jackson’s
first motion to dismiss. Jackson resubmitted this motion, but the district court’s partial
6 grant of Plaintiffs’ motion for summary judgment denied Jackson’s motion. The magistrate
judge explicitly denied Jackson’s second motion to dismiss.
We find merit in Jackson’s assertion that the magistrate judge misstated the damages
awarded to Gamble. The jury found that Gamble was entitled to damages of $120. In its
order awarding liquidated damages, the magistrate judge erroneously stated this amount as
$210 and awarded an identical amount as liquidated damages, for a total award of $420.
Based on the jury’s verdict, the correct total damages due to Gamble is $240. We therefore
vacate the magistrate judge’s order awarding liquidating damages and the judgment and
remand for correction of this error.
We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED