In a recently decision, attached HERE, a towing company in Gainesville was denied the opportunity to avoid a trial over whether it improperly paid its employee. In that case, Defendant O’Grady is the sole owner and President of Defendant Ultimate Towing. He is also responsible for many duties directly relating to the operation of the business, such as budgeting, negotiating and entering into contracts, maintaining financial statements, paying taxes, driving tow trucks, dispatching, building maintenance, client development, and complying with necessary certifications.
Defendants operate a towing company located in Alachua County. Defendants are contractually prohibited from “Consent Towing,” which is defined as “calls initiated or referred though AAA or other auto clubs and any direct calls from vehicle drivers or owners” within Gainesville, FL. Defendants are also contractually prohibited from “advertis[ing] or assist[ing] in the advertisement of any business engaged in Consent Towing” within Gainesville.
Plaintiff was employed by Defendant Ultimate Towing as a tow truck driver. Plaintiff never left the state of Florida for Defendants. There are no records of any out of state tows and Defendants admit that they are “not aware that Plaintiff performed any work outside the state of Florida.” Defendants admit there are no records of any out of state tows.
In a summary judgment opinion similar to this: https://www.352law.com/news/plaintiffs-motion-for-summary-judgment-and-incorporated-memorandum-of-law, the Northern District court in the referenced opinion held in the attached that part of Defendant’s motion was itself a mockery:
For judicial estoppel to apply it must be shown that Plaintiff’s inconsistencies were “calculated to make a mockery of the judicial system.” Burnes, 291 F.3d at 1285. The only mockery here is Defendants’ assertion that judicial estoppel should apply under these facts.
Thus, based on that and other circumstances, Plaintiff’s case may proceed to trial.