govinfo:USCOURTS-tnwd-2_23-cv-02453-10

IN THE UNITED STATES DISTRICT COURT  
WESTERN DISTRICT OF TENNESSEE 
WESTERN DIVISION 
 
 
KENNETH MERRITT, 
 
Plaintiff, 
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v. ) No. 2:23-cv-02453-SHM-tmp 
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WIPRO LIMITED, 
  
Defendant. 
 
 
  
ORDER ADOPTING REPORT AND RECOMMENDATION 
 
Before the Court is the Report and Recommendation filed by 
Chief United States Magistrate Judge Tu M. Pham on March 25, 
2025. (ECF No. 78.) In the Report and Recommendation, the 
Magistrate Judge recommends that pro se Plaintiff Kenneth 
Merritt’s second Motion for Summary Judgment (ECF No. 62) be 
denied both as premature and on the merits. (See ECF No. 78.)  
 The Report and Recommendation (ECF No. 78) is ADOPTED. 
Plaintiff’s Motion for Summary Judgment (ECF No. 62) is DENIED. 
I. Background 
Plaintiff filed his first summary judgment motion on August 
5, 2025. (ECF No. 32.) The Court adopted the Report and 
Recommendation denying Plaintiff’s motion as premature on 
February 6, 2025. (See ECF No. 60.) Plaintiff filed a second 
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Motion for Summary Judgment on February 13, 2025. (ECF No. 62.) 
Defendant filed a Motion to Exclude Plaintiff’s second statement 
of undisputed material facts and memorandum of law and an 
Alternative Response in Opposition to Summary Judgment on March 
5, 2025. (ECF No. 73.) Plaintiff replied on March 13, 2025. (ECF 
No. 77.) On March 25, 2025, the Magistrate Judge recommended 
that Plaintiff’s second summary judgment motion be denied. (ECF 
No. 78.) 
On March 26, 2025, Plaintiff filed a “Motion to Reassign 
the Case to a Senior Judge and Reconsideration of Summary 
Judgment” that the Court construes as an objection to the Report 
and Recommendation, at least in part. (See ECF No. 79.) On April 
9, 2025, Defendant responded in opposition to Plaintiff’s 
objection. (See ECF No. 80.) On April 14, 2025, Plaintiff filed 
an unauthorized reply that the Magistrate Judge struck from the 
record. (See ECF Nos. 81, 86 at 3.) 
On May 2, 2025, the Magistrate Judge denied Plaintiff’s 
motion for reassignment and reconsideration, construing it, at 
least in part, as a motion for recusal and reconsideration. (ECF 
No. 86.) The Magistrate Judge found Plaintiff’s  requests for 
recusal and reconsideration lacked merit and denied both. (See  
id.)  
On June 10, 2025, the Magistrate Judge filed a Report and 
Recommendation on Defendant’s Motion for Rule 37 Sanctions. (ECF 
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No. 101.) The Magistrate Judge recommends that Plaintiff’s case 
be dismissed with prejudice as a sanction for failure to comply 
with discovery. (Id.) Objections are due by June 24, 2025. (Id.) 
The parties’ pending motions were denied as moot on June 
11, 2024. (See ECF Nos. 84, 85, 95–98, 102–105.) 
II. Standard of Review 
Pro se litigants “enjoy the benefit of a liberal 
construction of their pleadings and filings.” Boswell v. Mayer, 
169 F.3d 384, 387 (6th Cir. 1999). The “appropriate liberal 
construction” may sometimes require “active interpretation” to 
construe the pro se litigant’s filing. See Franklin v. Rose, 765 
3 F.2d 82, 85 (6th Cir. 1985). Courts may not make claims and 
arguments on behalf of pro se litigants. See Martin v. Overton, 
391 F.3d 710, 714 (6th Cir. 2004). 
A. Objections to a Report and Recommendation 
Pursuant to Federal Rule of Civil Procedure 72(b)(2), 
“[w]ithin 14 days after being served with a copy of the 
recommended disposition, a party may serve and file specific 
written objections to the proposed findings and 
recommendations.” Fed. R. Civ. P. 72(b)(2). District courts 
review portions of a report and recommendation to which a party 
has properly objected de novo. Id. Although a district court 
must review those portions de novo, it need not articulate each 
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reason for rejecting the objections. See Tuggle v. Seabold, 806 
F.2d 87, 92 (6th Cir. 1986). 
Objections must be specific; a “general objection to the 
entirety of the magistrate’s report has the same effects as would 
a failure to object.” Howard v. Sec'y of Health & Hum. Servs., 
932 F.2d 505, 509 (6th Cir. 1991). Absent objections, reports 
are reviewed for clear error. See Fed. R. Civ. P. 72(b) advisory 
committee notes. 
B. Summary Judgment 
Summary judgment is granted if there is no genuine issue of 
material fact, and the moving party is entitled to judgment as 
a matter of law. See Fed. R. Civ. P. 56(c). The movant has the 
burden of establishing that there are no genuine issues of 
material fact, which may be accomplished by demonstrating that 
the nonmoving party lacks evidence to support an essential 
element of its case. Peeples v. City of Detroit, 891 F.3d 622, 
630 (6th Cir. 2018). There is a dispute about a material fact if 
the evidence is such that a reasonable jury could return a 
verdict for the nonmovant. EEOC v. Ford Motor Co., 782 F.3d 753, 
760 (6th Cir. 2015) (en banc). Inferences must be drawn in the 
light most favorable to the nonmovant. Bledsoe v. Tenn. Valley 
Auth. Bd. of Dirs., 42 F.4th 568, 578 (6th Cir. 2022). 
Although Rule 56(b) permits a party to file a summary 
judgment motion “at any time,” “[t]he general rule is that 
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summary judgment is improper if the non-movant is not afforded 
a sufficient opportunity for discovery.” See Est. of Zakora v. 
Chrisman, 44 F.4th 452, 479 (6th Cir. 2022), cert. denied sub 
nom. Chrisman v. Est. of Zakora, 143 S. Ct. 2608 (2023) (quoting 
Vance v. United States, 90 F.3d 1145, 1148 (6th Cir. 1996)). 
When “a nonmovant shows by affidavit or declaration that, 
for specified reasons, it cannot present facts essential to 
justify its opposition, the court may: (1) defer considering the 
motion or deny it; (2) allow time to obtain affidavits or 
declarations or to take discovery; or (3) issue any other 
appropriate order.” Fed. R. Civ. P. 56(d). 
III. Law 
To succeed on an unpaid overtime claim under the Fair Labor 
Standards Act (“FLSA”), 29 U.S.C §§ 201, et seq., a plaintiff 
must first establish: “(1) an employer-employee relationship; 
(2) that the employer or its employees are engaged in interstate 
commerce; (3) that the employee worked more than forty hours; 
and (4) that overtime was not paid.” See Stansbury v. Faulkner, 
443 F. Supp. 3d 918, 925 (W.D. Tenn. 2020) (citing Whaley v. 
Henry Ford Health System, 172 F. Supp. 3d 994, 1001 (E.D. Mich. 
2016)). “Once a plaintiff has established these elements, the 
burden shifts to the employer who may show by a preponderance of 
the evidence that one of the exemptions afforded by § 213 of the 
FLSA applies to the employment in question.” Stansbury, 443 F. 
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Supp. 3d at 925 (citing Kowalski v. Kowalski Heat Treating, Co., 
920 F. Supp. 799, 806 (N.D. Ohio 1996)). 
IV. Analysis 
The Magistrate Judge recommends that Merritt’s second 
summary judgment motion be denied because it is untimely amid 
ongoing discovery disputes and because it fails to meet 
Plaintiff’s burden on the merits. (See ECF No. 78.)  
First, the Magistrate Judge concludes that the motion is 
premature because the parties have not completed discovery. (See 
id. at 10–11.) Defendant Wipro has filed a Rule 56(d) declaration 
alleging that Plaintiff “has not produced a single document to 
Wipro.” (Id. at 11.) After Plaintiff had filed his second summary 
judgment motion, the Magistrate Judge granted Defendant’s Second 
Motion to Compel on March 6, 2025. (Id.)  
Second, the Magistrate Judge concludes that Merritt’s 
motion fails on the merits because he has not met the high bar 
of producing evidence showing that no reasonable jury could 
return a verdict for the nonmovant. (See id. at 12-13.)  
 To the extent Plaintiff specifically objects to the 
Magistrate Judge’s Report and Recommendation, Plaintiff argues 
that the Magistrate Judge’s conclusion on the merits improperly 
revisits legal conclusions the Court made at the motion to 
dismiss stage. (See ECF No. 79 at 3.) The remainder of 
Plaintiff’s objections are general. See Howard, 932 F.2d at 509. 
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The Magistrate Judge did not improperly reexamine the 
sufficiency of Plaintiff’s FLSA claim. Although Plaintiff is 
correct that the Court determined at the motion to dismiss stage 
that Plaintiff had plausibly alleged a violation of the FLSA, 
the standard for testing the sufficiency of his claim is higher 
at summary judgment than it was when the Court examined his FLSA 
claim at the motion to dismiss stage. Compare Kovalchuk v. City 
of Decherd, 95 F.4th 1035, 1037 (6th Cir. 2024) (motion to 
dismiss standard), with Ford Motor Co., 782 F.3d at 760 (summary 
judgment standard). 
The Magistrate Judge’s Report and Recommendation concludes 
that Plaintiff’s Motion for Summary Judgment should be denied, 
but it does not conclude that Plaintiff’s claim could not be 
established at all. Plaintiff’s FLSA claim remains pending, and 
he may succeed on that claim, but only if he complies with the 
discovery process and provides sufficient admissible evidence to 
substantiate it. 
Because the Magistrate Judge correctly concludes that 
Plaintiff has not met the high bar of producing evidence showing 
that no reasonable jury could return a verdict for the nonmovant, 
Plaintiff’s objection is overruled. See Ford Motor Co., 782 F.3d 
at 760. (See id. at 12-13.) 
 
 
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V. Conclusion 
After reviewing de novo the portions of the Report to which 
Plaintiff specifically objected, and after clear-error review of 
the balance of the Magistrate Judge’s Report and Recommendation, 
the Report and Recommendation (ECF No. 78)  is ADOPTED. 
Plaintiff’s second Motion for Summary Judgment (ECF No. 62) is 
DENIED.  
SO ORDERED this  11th  day of June, 2025. 
/s/ Samuel H. Mays, Jr. 
          SAMUEL H. MAYS, JR.  
          UNITED STATES DISTRICT JUDGE 
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