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14‐609‐cv Gavin v. NVR, Inc. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals for the Second Circuit, held 2 at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New 3 York, on the 27th day of May, two thousand fifteen. 4 5 PRESENT: RALPH K. WINTER, 6 RAYMOND J. LOHIER, JR., 7 SUSAN L. CARNEY, 8 Circuit Judges. 9 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 10 PETER GAVIN, K. MAURA MUELLER, 11 PATRICK TRACY, on behalf of himself 12 and all other employees similarly situated, 13 14 Plaintiffs‐Appellants, 15 16 v. No. 14‐609‐cv 17 18 NVR, INC., 19 20 Defendant‐Appellee.*1 21 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 22 23 FOR APPELLANTS: J. NELSON THOMAS (Michael J. Lingle, on the brief), 24 Thomas & Solomon LLP, Rochester, NY. *1The Clerk of the Court is respectfully directed to amend the caption of this case as set forth above. 1 2 FOR APPELLEE: BARRY J. MILLER (James M. Hlawek, on the brief), Seyfarth 3 Shaw LLP, Boston, MA. 4 5 Appeal from a judgment of the United States District Court for the Western 6 District of New York (David G. Larimer, Judge). 7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 8 DECREED that the appeal is DISMISSED insofar as it challenges the District Court’s 9 denial of summary judgment and the judgment of the District Court is otherwise 10 AFFIRMED. 11 Patrick Tracy1 appeals the District Court’s denial of his motions for summary 12 judgment, class certification, and judgment as a matter of law or for a new trial, all 13 related to his claims for overtime pay under the Fair Labor Standards Act of 1938 (FLSA) 14 and the New York Labor Law. He also challenges the District Court’s jury instructions. 15 We assume the parties’ familiarity with the facts and record of the prior proceedings, to 16 which we refer only as necessary to explain our decision to dismiss in part and affirm in 17 part. 18 Under the circumstances of this case, where Tracy subsequently lost after a full 19 trial on the merits, we do not have jurisdiction to review Tracy’s challenge to the District 20 Court’s February 23, 2009 decision and order resolving his summary judgment motion. 21 In denying the motion, the District Court assumed Tracy’s legal argument was correct 22 and nevertheless relied on the existence of several genuine disputes of material fact. 23 Accordingly, we dismiss Tracy’s appeal of the District Court’s denial of summary 24 judgment. See Ortiz v. Jordan, 562 U.S. 180, 190‐91 (2011); Schaefer v. State Ins. Fund, 25 207 F.3d 139, 142‐43 (2d Cir. 2000). 1 Although Peter Gavin and K. Maura Mueller are technically parties to this appeal, they have not advanced any independent arguments in the briefs they submitted jointly with Tracy to the Court. We assume that Tracy’s arguments incorporate those of Gavin and Mueller. See Time Warner Cable Inc. v. FCC, 729 F.3d 137, 142 n.1 (2d Cir. 2013). 2 1 Tracy also challenges the District Court’s jury instructions on the issue of the 2 outside salesperson exemption. Among other things, he argues that the District Court 3 erred in reading portions of a Department of Labor opinion letter to the jury and 4 instructing the jury that it should consider NVR’s expectations concerning Tracy’s role 5 as a sales and marketing representative. Having reviewed the instructions in full, we 6 conclude that the District Court’s instructions did not “mislead[] the jury as to the 7 correct legal standard” or fail to “adequately inform the jury on the law.” Turley v. ISG 8 Lackawanna, Inc., 774 F.3d 140, 153 (2d Cir. 2014) (quotation marks omitted). 9 Finally, Tracy challenges the District Court’s decertification of his conditionally 10 certified FLSA collective action and its denials of his motions for class certification and 11 judgment as a matter of law or for a new trial. As to those challenges, we affirm for 12 substantially the reasons provided by the District Court in its April 29, 2013 and 13 February 12, 2014 decisions and orders. 14 We have considered Tracy’s remaining arguments and conclude that they are 15 without merit. For the foregoing reasons, we DISMISS Tracy’s appeal as it relates to the 16 District Court’s denial of his summary judgment motion and otherwise AFFIRM the 17 judgment of the District Court. 18 FOR THE COURT: 19 Catherine O’Hagan Wolfe, Clerk of Court 3
Document Info
Docket Number: 14-609-cv
Filed Date: 5/27/2015
Precedential Status: Non-Precedential
Modified Date: 4/17/2021