CLINARD v. BISHOPP'S HARDWARE, INC. et al
| JOE CLINARD |
| REBECAA BISHOPP and BISHOPP'S HARDWARE, INC. |
| 1:2019cv03365 |
| August 8, 2019 |
| US District Court for the Southern District of Indiana |
| Tim A Baker |
| Jane Magnus-Stinson |
| Labor: Fair Standards |
| 29 U.S.C. ยง 201 |
| Plaintiff |
Docket Report
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| Filing 14 NOTICE of Automatic Initial Extension of Time, filed by Defendants REBECAA BISHOPP, BISHOPP'S HARDWARE, INC. (Pettygrove, Joseph) |
Filing 13
ENTRY SCREENING AMENDED COMPLAINT - Plaintiff Joe Clinard was an employee of Defendant Bishopp's Hardware, Inc. ("Bishopp's") from September 2016 through June 2019. On August 8, 2019, Mr. Clinard filed a Complaint and a Motion to Proceed In Forma Pauperis in this matter. [Filing No. 1; Filing No. 2.] The Court granted Mr. Clinard's Motion to Proceed In Forma Pauperis, screened his Complaint pursuant to 28 U.S.C. 1915(e)(2), and concluded that his claims related to overtime pay and failure to make, keep, and preserve records under the Fair Labor Standards Act (the "FLSA") shall proceed, but that his remaining claims (related to failure to provide certain written notices under 29 U.S.C. 218b, the Occupational Safety and Health Act ("OSHA"), and the collection of income tax at source on wages) were dismissed. Mr. Clinard filed an Amended Complaint for Civil Case on September 26, 2019, which the Court now screens pursuant to 28 U.S.C. 1915(e)(2). The Court notes that Mr. Clinard's Amended Complaint appears to be consistent with the Court's prior screening order in that the relief he seeks relates only to unpaid overtime wages and damages under the FLSA. However, Mr. Clinard still alleges that he "was removed from the official payroll in order to evade workers compensation and OSHA reporting requirements...," and that Bishopp's "had not withheld any taxes (Federal or State) from [his] pay from May 2018-January 2019." [Filing No. 12 at 2.] As the Court has previously found, Mr. Clinard's claims under OSHA and for the failure to withhold taxes fail as a matter of law. [Filing No. 9.] Further, the Court has not identified any claims in the Amended Complaint that Mr. Clinard did not also allege in his initial Complaint. It reiterates its ruling in the previous screening order, [Filing No. 9], and again ORDERS that: *Mr. Clinard's claims related to overtime pay and failure to make, keep, andpreserve records under the FLSA shall proceed; Mr. Clinard's claim related to the failure to provide certain written notices under29 U.S.C. 218b - to the extent he intends to allege such a claim in his Amended Complaint - is DISMISSED WITHOUT PREJUDICE; Mr. Clinard's claims related to OSHA - to the extent he intends to allege such claims in his Amended Complaint - are DISMISSED WITH PREJUDICE; and Mr. Clinard's claim related to the collection of income tax at source on wages-to the extent he intends to allege such a claim in his Amended Complaint - is DISMISSED WITH PREJUDICE. (Copy to Plaintiff via U.S. mail) Signed by Judge Jane Magnus-Stinson on 9/27/2019.(JDC)
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| Filing 12 AMENDED COMPLAINT against REBECAA BISHOPP, BISHOPP'S HARDWARE, INC., filed by JOE CLINARD. (Attachments: #1 Attachment)(JDH) |
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Filing 11
ENTRY - On September 11, 2019, the Court entered an Order granting Plaintiff Joe Clinard's Motion for Leave to Proceed In Forma Pauperis, [Filing No. 2], screening Mr. Clinard's Complaint, [Filing No. 1], and denying Mr. Clinard's Motion for Default Judgment filed on September 3, 2019, [Filing No. 5] (collectively, the "Screening Order"). On September 11, 2019, Mr. Clinard filed another Motion for Default Judgment, [Filing No. 10], which is currently pending. The Court's September 11, 2019 Screening Order states that Defendants shall have through October 2, 2019 to file a response to Mr. Clinard's Complaint. [Filing No. 9 at 8.] Therefore, Mr. Clinard's second Motion for Default Judgment is inappropriate at this time and is hereby DENIED AS MOOT. #10 Defendants' response to Mr. Clinard's Complaint is due on or before October 2, 2019. Copy to Joe Clinard via U.S. mail. Signed by Judge Jane Magnus-Stinson on 9/12/2019. (JDH)
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| Filing 10 MOTION for Default Judgment, filed by Plaintiff JOE CLINARD. (Attachments: #1 Text of Proposed Order)(JDH) |
| Filing 9 ENTRY GRANTING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS, SCREENING COMPLAINT, AND DENYING MOTION FOR DEFAULT JUDGMENT - The Court, having considered the above action and the matters that are pending, makes the following rulings: 1.Plaintiff's request to proceed in forma pauperis, #2 , is GRANTED. 2.Plaintiff's claims related to overtime pay and failure to make, keep, and preserverecords under the FLSA shall proceed. 3.Plaintiff's claim related to the failure to provide certain written notices under 29 U.S.C.218b are DISMISSED WITHOUT PREJUDICE. #1 4.Plaintiff's claims related to OSHA are DISMISSED WITH PREJUDICE. #1 5.Plaintiff's claim related to Collection of Income Tax at Source on Wages areDISMISSED WITH PREJUDICE. #1 6.Mr. Clinard's Motion for Default Judgment is DENIED AS MOOT. #5 If Mr. Clinard believes that additional claims were alleged in the Complaint, but not identified by the Court, he shall have through October 10, 2019 to identify those claims. Further, the Court notes that on September 11, 2019, counsel entered their Appearances on on behalf of Defendants. Defendants shall have through October 2, 2019 to file a response to Mr. Clinard's Complaint. (See Entry). Copy to Joe Clinard via U.S. mail. Signed by Judge Jane Magnus-Stinson on 9/11/2019. (JDH) |
| Filing 8 Corporate Disclosure Statement by BISHOPP'S HARDWARE, INC.. (Mizzell, Jason) |
| Filing 7 NOTICE of Appearance by Jason T. Mizzell on behalf of Defendants REBECAA BISHOPP, BISHOPP'S HARDWARE, INC.. (Mizzell, Jason) |
| Filing 6 NOTICE of Appearance by Joseph C. Pettygrove on behalf of Defendants REBECAA BISHOPP, BISHOPP'S HARDWARE, INC.. (Pettygrove, Joseph) |
| Filing 5 MOTION for Default Judgment, filed by Plaintiff JOE CLINARD. (Attachments: #1 Certificate of service, #2 Affidavit, #3 Envelope)(JDH) |
| Filing 4 CONSENT to Jurisdiction to US Magistrate Judge by JOE CLINARD. (Attachments: #1 Envelope)(JDH) |
| Filing 3 MAGISTRATE JUDGE's NOTICE of Availability to Exercise Jurisdiction issued. (DJH) |
| Filing 2 MOTION for Leave to Proceed in forma pauperis, filed by Plaintiff JOE CLINARD. (DJH) |
| Filing 1 COMPLAINT against REBECAA BISHOPP, BISHOPP'S HARDWARE, INC., filed by JOE CLINARD. (No fee paid with this filing) (DJH) |
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