Free Response to Order - District Court of Delaware - Delaware

Case 1 :04-cv-00414-SLR Document 103 Filed 07/09/2008 Page 1 ot 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
WILLIE DAVIS, JR., et al., ;
Plaintiffs, X
v. ; Civil Action No. 04··414—SLR
MOUNTAIRE FARMS, INC., et al., 2
Defendants. *5;
/
MOUN'1`AIRE’S RESPONSE AS REQUESTED IN
ORDER OF JULY 3, 2008
As demonstrated by the facts set forth below, Plaintiffs’ allegation that Defendant
Mountaire’s counsel misrepresented the facts in order to avoid Plaintiffs’ effort to settle
this case, as referenced in the Cot1rt’s Order dated July 3, 2008 (Di. 102), is unfounded.
On April 17, 2008, Magistrate Judge Thynge conducted a conference call with
respect to settlement. The parties were far apart. Magistrate Judge Thynge tentatively
scheduled the case for mediation June 24, 2008, at 10:00 am. She directed the parties to
tile mediation statements, after which she would decide whether to proceed with the
mediation or cancel it. ~
On July 13, 2008, Mountaire submitted its mediation statement. After reviewing
the facts and issues, Mountaire stated that it did not see a practical basis for settling this
h case. The statement, which is on tile with Magistrate Judge Thynge, includes the
following:
Settlement efforts and proposal
There have not been any settlement discussions. Mindfut ofthe
cost of litigation, the Company would like to say it would consider a low-

Case 1:04-cv-00414-SLR Document 103 Filed 07/09/2008 Page 2 of 4
cost settlement, but it does not seem feasible because of its practical
implications. The Company does not see how this case can be settled
without inviting future litigation by the same employees on the same basis.
lt is our understanding that employees cannot, even in a settlement
agreement, waive their right to bring claims for future alleged violations of
the FLSA. The Company believes that the ability to classify the Crew
Leaders as salaried exempt is valuable and does not wish to reclassify
them as hourly. The Company would have no ability to control the Crew
Leaders’ overtime hours, because their work is performed in the field
without any immediate supervision.
On Wednesday June 18, 2008, there were depositions in the companion Weston
case. After Plaintiffs’ counsel departed, Arthur Brewer, Mountaire’s counsel, reminded
Cher Vinlc, Mountaire’s Director of I-luman Resources, about the mediation scheduled for
Tuesday, June 24, 2008. Ms. Vink said she could not attend, because she had been
subpoenaed to appear in a trial in Wisconsin starting Monday, June 23 at 1:00 pm.] She
said she probably would be available by telephone on the 24m.
The next day, June 19, 2008, Mr. Brewer called Magistrate Judge Thynge’s office
and explained the situation to her secretary. Judge 'l`hynge’s secretary told Mr. Brewer to
write a letter to the Magistrate Judge explaining the situation. She told Mr. Brewer that
she would make sure l\/lagistrate'Judge Thynge looked at the mediation statements, and
said if the mediation went forward, it would not be a problem if Ms. Vinlc was available
by telephone.
C Mr. Brewer then wrote a letter dated June 19, 2008, to Magistrate Judge Thynge.
D.l. l01—3 (Exhibit 1). The letter starts by describing the status ofthe mediation, i.e., that
the Magistrate Judge was going to review the mediation statements to decide whether it
E As Plaintiffs acknowledge, Ms. Vink did testify in Wisconsin on June 23. See
D.I. l01-3 (Exhibit 3).
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Case 1:04-cv-00414-SLR Document 103 Filed 07/09/2008 Page 3 of 4
would be fruitful to go forward with the mediation conference. The letter goes on to
state:
I was advised yesterday that the person who was going to be in attendance
with me from Mountaire will be unable to attend the conference because
she has been subpoenaed to participate in litigation in Northern Wisconsin
involving her prior employer. I will attempt to see if Ms. Vink,
Mountaire’s representative, can be available by telephone in the event you
decide the conference should go forward. I would greatly appreciate your
letting me know how best to proceed.
The same day, J une 19, 2008, Magistrate Judge Tliynge issued an order canceling
the mediation conference. The Order specifically states that the decision was based on
the mediation statements, not Ms. Vinl<’s availability. "l'l` IS ORDERED that @
reviewing the mediation statements submitted by counsel, Judge Thynge has cancelled
the mediation scheduled for Tuesday, June 24, 2008, at 10:00 a.mQ" D1. l00. Clearly, if
Judge ”i`hynge had wanted to hold the settlement conference, she could have demanded
that someone else appear in Ms. Vink’s place, or that Ms. Vink make herself available by
telephone, or that the mediation conference be continued to a different date.
On Thursday, July 2, 2008, Plaintiffs’ counsel sent l\/lountaire’s counsel a draft of
his Motion to Revoke the Pro Hoc Vice admission of Arthur Brewer. In an effort to
placate Plaintiffs’ counsel, Mountaire’s counsel Eric Hemrnendinger read to Plaintiffs’
counsel the portion of the mediation statement quoted above, and e—1nailed to Plaintiffs’
counsel a copy of Ms. Vink’s subpoena to appear in Shell Lake, Wisconsin on June 23,
2008, at 1:00 p.rn. A copy of that subpoena is attached as Exhibit l. A short time later,
Plaintiffs’ counsel tiled the Motion to Revolce, without mentioning the content of the
mediation statement, the text of Magistrate Judge Thynge’s June 19, 2008 Order, or that a A
copy ofthe subpoena had been provided.
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Case 1:04-cv-00414-SLR Document 103 Filed 07/09/2008 Page 4 of 4
=. peetfully submitted,
-· `- `-JL li ' in l I, ______-. l ‘k- hr.,·'j-
thew F. Boyer U el. *2 ar gl;. **1;
CONNOLLY BOVE LODG & HU liif , LLP
1220 Market Street
P. O. Box 2207
Wilmington, DE l9899
(302) 884-6585
Arthur M. Brewer (admitted Pro Hee I/ice)
Eric Hemmendinger (admitted Pro Hac Wee)
SHAWE & ROSENTHAL, LLP
Sim Life Building, 11th Floor
20 S. Charles Street
Baltimore, MD 21201
(410) 752-1040
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