[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-16046 DECEMBER 13, 2010
________________________ JOHN LEY
CLERK
D. C. Docket No. 08-22317-CV-EGT
ISABEL DIAZ,
plaintiff and all others
similarly situated under
29 U.S.C. 216(b),
Plaintiff-Appellant,
versus
JAGUAR RESTAURANT GROUP, LLC,
EDUARDO DURAZO,
JAGMAR MANAGEMENT GROUP, LLC,
Defendants-Appellees,
JAGMAR BRANDS, LLC,
Defendant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 13, 2010)
Before CARNES, FAY and SILER,* Circuit Judges.
PER CURIAM:
Isabel Diaz (“Diaz”) filed a lawsuit against Jaguar Restaurant Group, LLC,
Jagmar Management Group, LLC, Jagmar Brands, LLC 1, and Eduardo Durazo
(collectively, “Jaguar”), her former employer, for unpaid overtime wages under the
Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201–216. During trial, the
district court allowed Jaguar to amend its Answer pursuant to Federal Rule of Civil
Procedure 15(b) to include the administrative exemption as an affirmative defense
as it found that Diaz had injected the issue through her testimony at trial. The jury
returned a verdict finding that Diaz had worked more than 40 hours per week for
which she was not compensated, but also finding that she was exempt from the
requirements of the FLSA as she was an administrative employee. Subsequently,
Diaz filed this appeal challenging the district court’s decision to allow Jaguar to
amend its Answer during trial. We reverse the district court’s decision allowing
Jaguar to amend its Answer, and remand this case to the district court for a trial on
damages.
_____________________
* Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting
by designation.
1
Jagmar Brands, LLC is no longer a party in this case as it was stipulated during trial
that it would be voluntarily dismissed with prejudice from this matter.
2
I. BACKGROUND
Isabel Diaz worked as a bookkeeper for Jaguar from December 2004 to
March 2008. During her employment, Diaz performed numerous administrative
tasks in addition to her bookkeeping duties. For example, she managed the cash
register, distributed tips, opened bank accounts, maintained menus, processed new
employees into the system, ran errands, managed liquor orders, and occasionally
opened the restaurant. Although Diaz often worked long hours, Jaguar did not
compensate Diaz for work performed in excess of 40 hours per week.
On August 20, 2008, Diaz filed this lawsuit against Jaguar under the FLSA
to recover unpaid overtime wages. In its Answer, Jaguar raised five affirmative
defenses, including the defense that Diaz was an independent contractor. Jaguar,
however, did not raise the administrative exemption as an affirmative defense.
Subsequently, the parties conducted discovery and, on December 23, 2008, Diaz
was deposed. Following discovery, on February 17, 2009, Jaguar filed its Motion
for Summary Judgment, which was denied.
On October 1, 2009, the parties filed a Joint Pretrial Stipulation. In the Joint
Pretrial Stipulation, Jaguar raised the administrative exemption for the first time.
In one line of the Joint Pretrial Stipulation, Jaguar stated that whether Diaz was
“employed in an administrative or professional capacity” was an issue of fact
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which required proof at trial. In a footnote in the Joint Pretrial Stipulation, Diaz
objected to Jaguar’s insertion of this issue, stating that this defense was never
raised by Jaguar and was thus waived. Then, on October 5, 2009, the district court
conducted a pretrial conference, during which Jaguar did not raise the
administrative exemption issue, and the district court did not address the issue in
its Omnibus Order Following Pretrial Conference. The day before trial, on
October 19, 2009, the parties filed their proposed Joint Jury Instructions and Jaguar
included one instruction on the administrative exemption, to which Diaz objected.
Despite the objections filed by Diaz, Jaguar did not file a motion to amend its
Answer to include the administrative exemption as an affirmative defense at any
time prior to trial.
On October 20, 2009, trial commenced. At the close Jaguar’s case, Jaguar
filed a Motion to Amend Answer to Conform to the Evidence in order to include
the administrative exemption as an affirmative defense. Diaz objected to the
amendment, arguing that Jaguar waived the defense by not raising it earlier and
that Diaz had not introduced any new evidence through her testimony. The district
court granted Jaguar’s motion over Diaz’s objection, allowing Jaguar to amend its
Answer and allowing the jury instructions and verdict form to be altered
accordingly. Subsequently, the jury returned a verdict finding that Diaz worked
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more than 40 hours per week for which she was not compensated, but that she was
exempt from the requirements of the FLSA as an administrative employee. Diaz
timely filed this appeal alleging that the district court committed reversible error by
allowing Jaguar to amend its Answer during trial.
II. STANDARD OF REVIEW
“The Federal Rules of Civil Procedure are designed to avoid surprise and
thus to facilitate a proper ruling on the merits of each case.” Combee v. Shell Oil
Co., 615 F.2d 698, 701 (5th Cir. 1980).2 Pursuant to that philosophy, Federal Rule
of Civil Procedure 15(b) “permits amendments to the pleadings even after
judgment if the issues involved are tried by the express or implied consent of the
parties.” Id. “Allowing an amendment to the pleadings at the close of trial to
conform to the evidence presented is within the trial court’s discretion.” Borden,
Inc. v. Fla. E. Coast Ry. Co., 772 F.2d 750, 758 (11th Cir. 1985). Thus, we review
the district court’s decision to grant Jaguar leave to amend its Answer for abuse of
discretion. See Combee, 615 F.2d at 701.
III. DISCUSSION
Jaguar failed to plead the administrative exemption as an affirmative defense
in its Answer. In the fourteen months between the filing of its Answer and the
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.
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commencement of trial, Jaguar never moved to amend its Answer to include the
administrative exemption. Jaguar also did not raise the issue of the administrative
exemption during discovery. The only time Jaguar raised the issue prior to trial
was by inserting it in one line of the Joint Pretrial Stipulation and in the proposed
Joint Jury Instructions, to which Diaz objected. Jaguar did not raise the issue
during the pretrial conference and the district court did not include the issue in its
Omnibus Order Following Pretrial Conference. If ever there were a classic case of
waiver, this is it! See Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1239 (11th
Cir. 2010) (“Failure to plead an affirmative defense generally results in a waiver of
that defense.”). Jaguar repeatedly waived the administrative exemption defense by
failing to plead the defense in its Answer and by failing to move to amend its
Answer before trial.
Ideally, cases should be tried on their merits. Accordingly, even if Jaguar
failed to plead the administrative exemption defense, the district court could allow
Jaguar to amend its Answer during trial if the issue was tried by the parties’
express or implied consent, or included in a pretrial order. See Fed. R. Civ. P.
15(b); see Steger v. Gen. Elec. Co., 318 F.3d 1066, 1077 (11th Cir. 2003)
(“[I]ssues not raised in the pleadings may be treated as if they were properly raised
when they are ‘tried by express or implied consent of the parties,’ Federal Rule of
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Civil Procedure 15(b), or are included in a pretrial order.”). In this case, the issue
was not included in the district court’s Omnibus Order Following Pretrial
Conference. Further, it is clear that the administrative exemption issue was not
tried by the parties’ express consent as Diaz opposed the insertion of the issue in
the Joint Pretrial Stipulation, proposed Joint Jury Instructions, and at trial. See R.
Vol. 5: 160–65. The district court, however, found that the issue was tried by
implied consent as it believed Diaz introduced the issue of the administrative
exemption through her testimony at trial. Thus, the district court allowed the
amendment.
The district court erred in finding that the administrative exemption issue
was tried by implied consent and in thereby allowing Jaguar to amend its Answer.
That issue was not tried by implied consent as Diaz’s testimony was relevant to
another defense in this case: Jaguar’s independent contractor defense. “The
introduction of evidence arguably relevant to pleaded issues cannot serve to give a
party fair notice that new issues are entering the case.” Wesco Mfg., Inc. v.
Tropical Attractions of Palm Beach, Inc., 833 F.2d 1484, 1487 (11th Cir. 1987);
see Jimenez v. Tuna Vessel Granada, 652 F.2d 415, 421 (5th Cir. 1981) (stating
that implied consent cannot be found when “evidence is introduced that is relevant
to an issue already in the case and there is no indication that the party who
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introduced the evidence was seeking to raise a new issue”). Diaz’s testimony was
relevant to counter Jaguar’s independent contractor defense, and she clearly was
not seeking to raise the administrative exemption as a new issue. Further, we
cannot conclude that her testimony was “much more strongly relevant” to the
administrative exemption than to the independent contractor defense, which could
be construed as notice of a new issue. See United States f/u/b/o Seminole Sheet
Metal Co. v. SCI, Inc., 828 F.2d 671, 677 (11th Cir. 1987). Thus, her testimony
cannot be considered implied consent to try the administrative exemption.
IV. CONCLUSION
For the foregoing reasons, we reverse the district court’s decision to allow
Jaguar to amend its Answer during trial and remand for the district court to
conduct a trial on damages.
REVERSED and REMANDED.
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