Morgan v. Gandalf, Ltd. , 165 F. App'x 425 ( 2006 )


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  •                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 06a0083n.06
    Filed: January 31, 2006
    No. 05-3189
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    CRAIG MORGAN,                                             )
    )        ON APPEAL FROM THE
    Plaintiff-Appellant,                               )        UNITED STATES DISTRICT
    )        COURT FOR THE SOUTHERN
    v.                                                        )        DISTRICT OF OHIO
    )
    GANDALF, LTD. and PAUL THOMAS,                            )                  OPINION
    )
    Defendants-Appellees.                              )
    BEFORE:        MOORE, ROGERS, and McKEAGUE, Circuit Judges.
    McKEAGUE, Circuit Judge. This case presents an employee’s claim against his employer
    for unpaid overtime compensation under the Fair Labor Standards Act. Defendant employer moved
    for summary judgment claiming exemption, as a “motor private carrier,” from the requirements of
    the Fair Labor Standards Act. The district court granted the motion. On appeal, plaintiff-appellant
    contends the district court abused its discretion in several procedural rulings, failed to view the
    evidence in the light most favorable to him, and failed to narrowly construe the asserted exemption.
    Because we find that the district court abused its discretion in two respects that materially affected
    the record on which the summary judgment ruling was based, we vacate the lower court’s judgment.
    I. FACTUAL AND PROCEDURAL BACKGROUND
    Plaintiff Craig Morgan, a resident of Mississippi at all times relevant to this action, was
    employed by defendant Gandalf, Ltd., as a paintless dent removal (PDR) technician from April 1998
    to June 4, 2001. Gandalf is an Ohio limited liability company. Plaintiff performed automobile dent
    repair services for Gandalf’s clients in Mississippi and Louisiana during the subject three-year
    period. He was not paid an hourly wage, but was compensated strictly on a commission basis. On
    April 11, 2003, plaintiff filed a complaint against Gandalf in the Southern District of Ohio to recover
    unpaid overtime compensation owed him under the Fair Labor Standards Act (“FLSA”), 29 U.S.C.
    §§ 201 et seq. Also named as defendants are Paul Thomas, identified as Gandalf’s statutory agent
    and alleged to be an employer of plaintiff; Curtis Francois, also alleged to be an employer; and Dent
    Wizard International Corporation, a Delaware corporation doing business in Ohio, alleged to have
    become successor-in-interest to Gandalf after acquiring its assets on or about June 4, 2001. The
    district court severed the claims against defendants Francois and Dent Wizard and transferred them
    to the Eastern District of Missouri in the Fall of 2003.1
    In the remaining claims against defendants Gandalf and Thomas, plaintiff alleged that
    between April 1998 and June 4, 2001, he regularly worked more than 40 hours per week; that both
    Gandalf and Thomas, as his employers, were required to comply with federal overtime pay laws;
    that defendants failed to pay him overtime compensation when he worked more than 40 hours in a
    work week; and that this failure was in violation of the FLSA. On March 16, 2004, the district court
    issued an order of partial dismissal, holding that recovery of overtime compensation accruing prior
    to April 11, 2000 was barred by the applicable three-year statute of limitation, 29 U.S.C. § 255(a).
    1
    The claims against Francois and Dent Wizard play no role in this appeal. We note, however,
    that they were dismissed by order dated February 16, 2005, three weeks after the summary judgment
    order in this case, on grounds identical to those employed by the district court in this case. Plaintiff-
    appellant Morgan’s appeal of that summary judgment order is currently pending in the Eighth
    Circuit Court of Appeals.
    -2-
    This ruling has not been challenged. Hence, plaintiff’s claim was limited to overtime compensation
    he might be entitled to for the period April 11, 2000 to June 4, 2001.
    After completion of discovery, the parties filed cross-motions for summary judgment on
    plaintiff’s claim in late July and early August 2004. The briefing on the motions alerted the parties
    to the fact that defendants had failed to file an answer to plaintiff’s amended complaint after the
    district court granted defendants’ motion for partial dismissal on March 16, 2004. This failure was
    undisputedly a matter of mere inadvertence due to oversight by defendants’ counsel. Plaintiff
    opposed defendants’ motion for leave to file their answer out of time, contending that defendants
    had shown neither good cause nor excusable neglect, and that plaintiff would be prejudiced if
    defendants were allowed to assert affirmative defenses after discovery had already closed. The
    district court allowed the late filing of the answer by order dated November17, 2004, finding that
    plaintiff would not be unreasonably prejudiced.
    In the meantime, briefing of the motions for summary judgment had been completed in
    September and the final pretrial conference, previously scheduled for November 2004, had been
    continued pending further order of the court. On December 28, 2004, plaintiff moved for an
    extension of time to complete discovery made necessary by defendants’ late filed affirmative
    defenses. Without addressing this motion, and without conducting a hearing on the motions for
    summary judgment, the district court issued an opinion and judgment order on January 25, 2005,
    denying plaintiff’s motion for summary judgment and granting defendants’. In its 25-page opinion,
    the district court explained why it was proper to have allowed the late filing of defendants’ answer,
    -3-
    but did not mention plaintiff’s motion to extend discovery. By awarding summary judgment to
    defendants, the court effectively denied plaintiff’s discovery motion as moot.
    The court then concluded as a matter of law that defendants were exempt from the FLSA
    requirements pursuant to 29 U.S.C. § 213(b)(1) because plaintiff was an employee whose maximum
    hours of service were subject to regulation under the Motor Carrier Act (“MCA”), 49 U.S.C. §
    31502. In reaching this conclusion, the district court determined that each defendant was a “motor
    private carrier,” i.e., a person transporting property to further a commercial enterprise whose
    employee was engaged in activities that affected the safety of operation of motor vehicles
    transporting property in interstate commerce. The district court found that plaintiff, in routinely
    crossing the Mississippi/Louisiana state line to perform paintless dent repair services on defendants’
    behalf, transported PDR tools belonging to defendants in furtherance of their commercial enterprise.
    Further, the court found that plaintiff, engaged in interstate driving and maintenance of defendants’
    truck, was engaged in vehicle safety-affecting activities. The court rejected plaintiff’s contention
    that, irrespective of the exemption, he was nonetheless entitled to overtime compensation for those
    weeks when he was engaged in strictly intrastate work activities.
    On appeal, plaintiff challenges all three of these substantive determinations. In addition, he
    contends the district court abused its discretion by allowing the late filed answer, by denying his
    motion to reopen discovery, and by refusing to consider the contents of his corrected supplemental
    affidavit in opposition to defendants’ motion for summary judgment. Because the procedural rulings
    materially affected the record on which the summary judgment ruling was based, we address them
    first.
    -4-
    III. ANALYSIS
    A. Procedural Rulings
    1. Allowance of Late Filed Answer
    Defendants Gandalf and Thomas were required to file their answer within 10 days after the
    district court ruled on their motion for partial dismissal. Fed. R. Civ. P. 12(a)(4)(A). Whether to
    grant defendants an enlargement of time to file their answer was a matter committed to the district
    court’s discretion. Fed. R. Civ. P. 6(b)(2).   Under Rule 6(b)(2), it was incumbent on defendants
    to show that their failure to timely file the answer was the result of excusable neglect. “Neglect
    exists where the failure to do something occurred because of a simple, faultless omission to act, or
    because of a party’s carelessness.” Turner v. City of Taylor, 
    412 F.3d 629
    , 650 (6th Cir. 2005).
    Whether neglect was “excusable” is an equitable determination based on consideration of all
    relevant circumstances. 
    Id. These include
    the danger of prejudice to the nonmoving party, the
    length of the delay and its impact on judicial proceedings, the reason for the delay, including
    whether it was within the reasonable control of the movant, and whether the movant acted in good
    faith. 
    Id. The district
    court’s decision to allow defendants to file their answer almost eight months
    after it was due is reviewed for abuse of discretion. Allen v. Murph, 
    194 F.2d 722
    , 724 (6th Cir.
    1999). An abuse of discretion occurs when the reviewing court is firmly convinced that a mistake
    has been made, as when the lower court relies on clearly erroneous findings of fact, improperly
    applies the law, or uses an erroneous legal standard. 
    Id. -5- In
    moving for enlargement of time, defendants’ counsel John Renick explained that although
    he had prepared an answer to plaintiff’s first amended complaint in February 2004, he did not file
    it then because the motion to dismiss was still pending. After the district court’s ruling on March
    16, 2004, he overlooked the fact that the answer had not been filed until receipt of plaintiff’s
    opposition to defendants’ motion for summary judgment. He characterized his error as “strictly an
    oversight” and he disavowed any intent to delay filing the answer until after the close of discovery.
    Appellant Morgan did not and does not dispute this explanation, but insists it is insufficient
    to justify the requested enlargement of time. He contends that mere inadvertence is not “excusable
    neglect,” citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 
    507 U.S. 380
    , 392
    (1993). Inasmuch as the district court made no finding that defendants’ neglect was excusable,
    Morgan argues the court either improperly applied the law or used an erroneous legal standard,
    either of which represents an abuse of discretion.
    In Pioneer, the Supreme Court observed that although mere inadvertence does not usually
    constitute “excusable neglect” under Rule 6(b), the term is a “somewhat ‘elastic concept’ and is not
    limited strictly to omissions caused by circumstances beyond the control of the movant.” 
    Id. at 392
    (footnotes omitted). In applying this elastic concept, the court went on to emphasize that the
    determination whether neglect is excusable “is at bottom an equitable one, taking account of all
    relevant circumstances surrounding the moving party’s omission.” 
    Id. at 395.
    In other words,
    depending on the equities, mere inadvertence may warrant an enlargement of time under Rule 6(b).
    See also 
    Turner, 412 F.3d at 650
    .
    -6-
    Here, in considering the relevant factors identified in Turner, the district court focused on
    the lack of prejudice to plaintiff resulting from the late filing of the answer. The district court noted
    that the defendants in the action transferred to the Eastern District of Missouri – a case involving
    the same counsel as this case, on both sides – had in February 2004, filed their answer to Morgan’s
    similar FLSA claim and had asserted the same affirmative defenses that were ultimately asserted in
    this case. The court inferred from this that Morgan had reason to expect that defendants Gandalf
    and Thomas intended to assert the Motor Carrier Act exemption as an affirmative defense in this
    case as well. Appellant Morgan has not challenged this inference, nor has he otherwise identified
    any prejudice flowing from the late filing of the answer per se.2
    As to the reason for defendants’ delay in filing the answer, the district court acknowledged
    their admission that the delay was attributable strictly to counsel’s oversight. Yet, although attorney
    error or inadvertence will not ordinarily support a finding of excusable neglect, the district court
    failed to recognize that this important factor weighed against defendants’ requested relief. In this
    regard, the district court’s analysis is deficient. See Graphic Communications Int’l Union v.
    Quebecor Printing Providence, Inc., 
    270 F.3d 1
    , 5 (1st Cir. 2001) (noting that reason-for-delay
    factor has the greatest import and is always critical to the inquiry).
    Still, we note there is absolutely no evidence of bad faith or improper purpose on the part of
    defendants Gandalf and Thomas, and they acted to remedy their mistake as soon as they became
    aware of it.   Nonetheless, the late filing of the answer was undeniably ill-timed, coming after
    2
    The argument that plaintiff was prejudiced because the answer was filed well after the close
    of discovery and included affirmative defenses with respect to which he had no opportunity to
    conduct discovery is a separate question, addressed below. This prejudice resulted not from the late
    filing of the answer, but from the denial of the requested reopening of discovery.
    -7-
    discovery had closed and after summary judgment motions had been filed. Defendants’ delay
    adversely impacted the orderly progress of the case. This factor weighs against allowing the late
    filing of the answer. Yet, this adverse impact could be fairly ameliorated without necessarily
    precluding the filing of the answer altogether.3 Further, if the district court had denied leave to file
    the tardy answer and default had entered instead, defendants almost certainly would have been
    entitled to have the default set aside, given their facially meritorious defense and the strong policy
    favoring adjudication on the merits. See Shepard Claims Serv., Inc. v. William Darrah & Assoc.,
    
    796 F.2d 190
    , 194 (6th Cir. 1986).
    Hence, we conclude, upon fair consideration of all the relevant factors, that the question
    whether defendants’ neglect was excusable was a close question. We also conclude that the district
    court’s analysis was incomplete. We are not persuaded, however, that the decision to allow the late
    filing of the answer was an abuse of discretion.4
    2. Refusal to Reopen Discovery
    The district court having thus granted defendants relief from the standard pleading
    requirements, it might have been expected to afford plaintiff corresponding lenity by granting his
    request to reopen discovery. Even though discovery had closed on July 1, 2004, defendants had
    3
    As more fully explained below, in subpart 2, prudence counsels in favor of a less harsh
    remedy: simply reopening discovery for a short period of time.
    4
    Alternatively, Morgan argues the requested enlargement of time could be viewed as a
    motion to modify the established case management schedule, relief which requires a showing of
    “good cause,” pursuant to Fed. R. Civ. P. 16(b). Yet, even assuming such a recasting of defendants’
    motion were appropriate, the district court’s decision would still be subject to review for abuse of
    discretion, would entail scrutiny of essentially the same factors considered above, and would
    unavoidably lead to the same result. See e.g., Inge v. Rock Financial Corp., 
    281 F.3d 613
    , 625-26
    (6th Cir. 2002).
    -8-
    been allowed to file their answer four months later, formally asserting for the first time certain new
    affirmative defenses. Good cause for reopening discovery, required under Fed. R. Civ. P. 16(b), was
    established, plaintiff argued, because the MCA exemption defense, in particular, interjected new fact
    issues that had not been explored in discovery. Specifically, plaintiff asserted, by way of his
    attorney John Ferron’s affidavit:
    Had Defendants timely asserted this alleged defense, Plaintiff would have conducted
    specific discovery requiring Defendants to identify and produce relevant evidence
    demonstrating: (1) the ownership of each and every PDR Tool allegedly used by
    Plaintiff during the course of his employment; (2) the location of every worksite
    where Plaintiff performed PDR services in a given week; and (3) the dates on which
    Plaintiff traveled across state lines while performing his job. Plaintiff would also
    have sought production of each and every customer invoice showing where Plaintiff
    worked each day.
    The district court did not directly address plaintiff’s motion to reopen discovery before
    rendering it moot by granting defendants’ motion for summary judgment. In the body of its
    summary judgment opinion, the court explained why allowing the late filed answer was proper
    despite plaintiff’s unfair prejudice argument. The court did not explain, however, why it declined
    to reopen discovery. The de facto denial of the motion to reopen discovery is reviewed for abuse
    of discretion. Lanier v. Bryant, 
    332 F.3d 999
    , 1006 (6th Cir. 2003).
    In opposing plaintiff’s motion, defendants argued that further discovery was unnecessary,
    in light of the issues presented by the summary judgment motions. Apart from the prospect of what
    they characterized as needless expense, defendants did not identify how they would be prejudiced
    if discovery were reopened. Defendants proposed that the court defer consideration of the motion
    to reopen discovery until after addressing the summary judgment motions. In other words,
    -9-
    defendants recommended the court consider reopening discovery only if it determined that the
    existing record provided an inadequate basis for judgment as a matter of law.
    The district court appears to have adopted this recommendation. That is, the court ostensibly
    concluded that further discovery was unnecessary because the record was adequate to enable a ruling
    as a matter of law. Yet, this determination could only be reached after the court decided not to
    consider Morgan’s corrected supplemental affidavit. As explained below, this was an abuse of
    discretion. If the corrected affidavit and particularly Morgan’s “clarifying” statement about
    ownership of the PDR tools had been deemed admissible, the need for further discovery on the
    ownership question would have been obvious and unavoidable.
    Moreover, plaintiff Morgan had otherwise made a facially persuasive case for reopening
    discovery. First, he had demonstrated good cause for reopening discovery. Although the district
    court rightly observed that plaintiff had reason to believe defendants intended to assert the MCA
    defense, plaintiff can hardly be deemed to have been under a legal obligation to anticipate it in
    discovery.
    Second, the need for additional discovery was precipitated by defendants’ counsel’s admitted
    neglect, not plaintiff’s. After indulging defendants’ pleading tardiness, the court, in fairness, ought
    to have extended corresponding lenity to plaintiff.
    Third, plaintiff did not rely merely on nebulous assertions about what discovery might
    disclose. He identified specific information that could reasonably be expected to be included in his
    employer’s records – information that was integral to issues posed by the MCA defense. In
    particular, the importance of the ownership of the PDR tools had been made apparent by the
    - 10 -
    summary judgment briefing. The existing record on this question was anything but conclusive. In
    fact, defendants themselves had provided no evidence of their ownership of the tools. Plaintiff was
    entitled to the opportunity to explore the factual basis for defendants’ late asserted MCA defense.
    Fourth, the court was presented with no compelling or even mildly persuasive reason for not
    reopening discovery. Unless reopening discovery was bound to be futile, there was no good reason
    not to allow it. Defendants had even conceded as much. Where defendants had presented no
    evidence regarding ownership of the tools and plaintiff’s proofs were decidedly equivocal, there was
    no sound basis for the district court’s apparent conclusion that further discovery would be futile.
    Accordingly, we conclude the district court abused its discretion by denying plaintiff’s
    request to reopen discovery. See Vance v. United States, 
    90 F.3d 1145
    , 1149-50 (6th Cir. 1996)
    (summary judgment vacated and case remanded for reopening of discovery where the plaintiff had
    shown by affidavit that he had not been guilty of dilatory conduct, that specific discovery was
    relevant and needed, that he was otherwise subject to unfair prejudice, and that defendant would not
    be prejudiced by reopening of discovery).
    3. Refusal to Consider Corrected Affidavit
    In September 2004, plaintiff sought and obtained leave to file a corrected memorandum in
    opposition to defendants’ motion for summary judgment. Attached to this corrected memorandum
    was plaintiff’s corrected supplemental affidavit, dated September 3, 2004. The corrected affidavit
    purported to clarify two points: (1) plaintiff’s residency in Mississippi during the subject period;
    and (2) plaintiff’s ownership of the PDR tools. Only the latter point is significant to this appeal.
    - 11 -
    Plaintiff had stated in his July 18, 2003 affidavit, attached to his first amended complaint and
    his motion for summary judgment, that he “repaired the dents and ‘dings’ in the metal exterior of
    automobiles, using tools, equipment and supplies provided to me by Defendants.” Morgan aff. July
    18, 2003, ¶ 3 (emphasis added). This statement was “clarified” in plaintiff’s corrected affidavit in
    the following manner:
    9. When I traveled to my assigned job sites, inside or outside of Mississippi,
    I transported my tools to perform PDR services, including metal rods and reflection
    boards (“PDR tools”), in the truck that was assigned to me.
    10. Some of my PDR tools were given to me by Defendants when I first
    began my employment with them. I was solely responsible for all my PDR tools.
    When they were not in my truck or being used at a job site, I stored my PDR tools
    in my personal tool box, which I brought into my home each night for safe keeping.
    11. While performing PDR services on particularly difficult projects, I
    damaged and broke some of the PDR tools that Defendants gave to me when I started
    work. Defendants never required that I replace or reimburse them for any of my
    damaged or broken PDR tools. When Defendants sold their franchise to Dent
    Wizard in June 2001, I kept my PDR tools and continued to use them while working
    for Dent Wizard. I did not give any of them back to Defendants.
    12. Several of the PDR tools that I used on a daily basis to perform PDR
    services, while I was working for Defendants, were PDR tools that I had owned for
    years and had either purchased or acquired from third parties who were not affiliated
    with Defendants or Dent Wizard.
    13. None of the tools that I transported to and from work sites in my truck,
    while I was working for Defendants, was a tool owned by either Defendant.
    Morgan aff. Sept. 3, 2004 (emphasis added).
    These ownership-clarifying statements were intended to counter defendants’ newly asserted
    MCA defense. If plaintiff could establish that he had not transported defendants’ PDR tools across
    state lines, then the MCA exemption would undisputedly not apply. The district court refused to
    consider these statements, however, concluding that they were not clarifying, but contradictory of
    - 12 -
    plaintiff’s July 18, 2003 affidavit. The court construed plaintiff’s original statement that defendants
    had provided the PDR tools to him as an admission that defendants owned the tools, an admission
    by which he remained bound. In support, the district court cited Peck v. Bridgeport Machines, Inc.,
    
    237 F.3d 614
    , 619 (6th Cir. 2001), where the court held that a party may not create a factual issue
    by filing an affidavit, after a motion for summary judgment has been made, which contradicts his
    earlier deposition testimony.
    The district court’s refusal to consider portions of plaintiff’s corrected affidavit is an
    evidentiary ruling subject to review for abuse of discretion. See Rush v. Illinois Cent. R. Co., 
    399 F.3d 705
    , 715 (6th Cir. 2005). Morgan contends the district court abused its discretion in this
    matter because his corrected affidavit is not contradictory, but explanatory. Indeed, the corrected
    statement, that the PDR tools were given to Morgan by defendants, is not necessarily inconsistent
    with his original statement that the tools were provided to him by defendants – especially when the
    two statements are read, as they must be for purposes of defendants’ summary judgment motion, in
    the light most favorable to Morgan. See Leary v. Daeschner, 
    349 F.3d 888
    , 896 (6th Cir. 2003)
    (holding that all evidence must be viewed and all reasonable inferences must be drawn in the light
    most favorable to the nonmoving party). Until the clarifying statement was filed, Morgan’s original
    statement that the tools were provided to him by defendants begged the question whether ownership
    passed to Morgan at that time. Yet, the question was irrelevant until the MCA defense was asserted
    in defendants’ motion for summary judgment on July 30, 2004.
    Considering this chronology, both the timing and contents of Morgan’s proffered
    clarification, whether ultimately deemed truthful or not, are certainly understandable and facially
    - 13 -
    legitimate. Read in the light most favorable to Morgan, the corrected statement genuinely appears
    to illuminate or clarify his original statement. It is not necessarily contradictory or even
    inconsistent and does not necessarily suggest prevarication. The district court’s contrary conclusion
    demonstrates that it erroneously viewed both plaintiff’s original affidavit and the corrected affidavit
    in the light most favorable to the defendants, rather than to the nonmovant. The district court’s
    disallowance of the correction as contradictory thus represents a misapplication of the law governing
    summary judgment assessment of the record. This misapplication of the law represents an abuse
    of discretion.
    Further, as explained below, the error was not harmless. The exclusion of the corrected
    affidavit was critical to the district court’s assessment of the summary judgment issues.
    B. Summary Judgment Ruling
    In summarizing the substantive law pertaining to plaintiff’s FLSA claim and defendants’
    claimed exemption, the district court correctly identified the material fact issues: (1) whether
    plaintiff, in the course of performing services for defendants, engaged in interstate transportation;
    (2) whether plaintiff, when traveling interstate, transported property owned by defendants; and (3)
    whether plaintiff engaged in activities affecting the safety of operation of motor vehicles
    transporting property in interstate commerce. The district court further recognized that exemptions
    from the FLSA overtime pay requirements are to be narrowly construed against the employer.
    Martin v. Indiana Michigan Power Co., 
    381 F.3d 574
    , 578 (6th Cir. 2004).               Moreover, the
    employer claiming an exemption bears the burden of proving that it qualifies for the exemption.
    Chao v. Double JJ Resort Ranch, 
    375 F.3d 393
    , 396 (6th Cir 2004). Thus, to qualify for the
    - 14 -
    exemption, defendants were required to establish all three of the above elements by a preponderance
    of the evidence.
    As we have now held that the district court abused its discretion both by refusing to consider
    plaintiff’s corrected affidavit and by refusing to reopen discovery, the conclusion is inescapable that
    summary judgment was premature. It is now evident, in particular, that there is a genuine issue of
    material fact concerning at least the second element above, whether plaintiff, in the course of his
    employment, transported defendants’ PDR tools across state lines. Indeed, defendants presented no
    evidence that the tools Morgan transported were theirs. Their position in this regard was and is
    based entirely on Morgan’s admission in his July 18, 2003 affidavit that the tools used by him in
    performing services for defendants were provided to him by defendants.
    In his corrected affidavit, Morgan purported to explain that the tools provided to him by
    Gandalf were given to him and that all the tools he transported across state lines were his own tools
    either (1) because they had ceased to belong to Gandalf when they were given to him, or (2) because
    he had obtained them from other sources. As explained above, this clarification is not necessarily
    contradictory of Morgan’s original affidavit. Had the court allowed the clarification, Morgan’s
    corrected affidavit would have been the only evidence presented to the court that spoke directly to
    ownership of the PDR tools. In plaintiff’s opinion, the tools he transported did not belong to
    defendants. On such a record, defendants would clearly have failed to carry their burden of
    satisfying the second essential element of their MCA defense. The question of ownership of the
    - 15 -
    tools would have posed a genuine issue of material fact, foreclosing summary judgment for
    defendants.5
    Had the district court granted plaintiff Morgan’s request to reopen discovery, the issue might
    have been further developed. Plaintiff had specifically identified the ownership of the PDR tools
    as a matter he wished to explore in discovery. The district court’s denial of the request resulted in
    an artificially abbreviated record.
    Thus, the district court’s award of summary judgment to defendants is flawed. It was
    premised on the erroneous exclusion of otherwise admissible evidence material to an essential
    element of defendants’ affirmative defense, and on a record otherwise undeveloped because fair
    opportunity for discovery had been denied.
    III. CONCLUSION
    For the foregoing reasons, the district court’s award of summary judgement to defendants
    on plaintiff’s FLSA claim for recovery of unpaid overtime compensation is VACATED and the
    matter is REMANDED to the district court for further proceedings not inconsistent with this
    opinion.
    5
    We note that the record before us includes a copy of what plaintiff Morgan identified in his
    July 18, 2003 affidavit as the “Gandalf Employee Handbook.” It is actually a Dent Wizard
    Employee Handbook, ostensibly reflecting the fact that Gandalf was a Dent Wizard franchisee prior
    to June 4, 2001. In his July 18, 2003 affidavit, Morgan confirmed that his employment with
    defendants Gandalf and Thomas was subject to the terms and conditions set forth in this Handbook.
    Section 5 of the Handbook, “Work Policies and Regulations,” contains a provision entitled
    “Company Tools,” which provides that tools and equipment furnished to the employee by the
    company to complete job assignments remain the property of the company. Despite the apparent
    relevance of this provision, it appears not have been even mentioned in briefing by either side, to
    this court or to the district court. We therefore refrain from speculating about its significance and
    leave the matter for the district court to sort out on remand.
    - 16 -