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Goers v. L.A. Entertainment Group, Inc.

United States District Court, M.D. Florida, Fort Myers Division

June 14, 2017

TAMERA GOERS and ASHLEY CRISTINE MULLIGAN, individually, and on behalf of all others similarly situated Plaintiffs,
v.
L.A. ENTERTAINMENT GROUP, INC. and AMER SALAMEH, Defendants.

          ORDER

          CAROL MIRANDO United States Magistrate Judge.

         This matter comes before the Court upon review of Plaintiffs' Motion for Sanctions and/or Motion to Compel and Legal Memorandum in Support (Doc. 121, the “instant motion”) filed on February 17, 2017, Defendants' response in opposition (Doc. 123) filed on March 6, 2017, and Plaintiffs' reply (Doc. 126) filed on March 27, 2017. The Court also considers Plaintiffs' Motion for Leave to Present Oral Arguments on Plaintiffs' Motion for Sanctions and/or Motion to Compel and Legal Memorandum in Support (Doc. 150), and Defendants' response thereto (Doc. 154). For the reasons discussed below, Plaintiffs' motions are due to be denied.

         I. Background

         On July 8, 2015, Plaintiffs Tamara Goers and Ashley Cristine Mulligan filed a three count Class/Collective Action Complaint against Defendants L.A. Entertainment Group, Inc. (“L.A. Entertainment”) and Amer Salameh. Doc. 1. Plaintiffs allege that Defendants operate an adult entertainment club in Fort Myers, Florida under the name of “Babes.” Doc. 1 ¶ 55. Plaintiffs are former exotic entertainers of Babes who claim that Defendants have a longstanding policy of misclassifying their employees as independent contractors and requiring them to work as exotic dancers for up to and in excess of forty (40) hours per week without compensating them the applicable minimum and overtime rates. Id. ¶¶ 2, 3. Plaintiffs' only compensation was in the form of tips from Babes patrons. Id. ¶ 3. Counts I and II allege violations of the Fair Labor Standards Act (“FLSA”); Count III alleges violation of the Article X, Section 24, of the Florida Constitution for failure to pay Florida minimum wages. Id. ¶¶ 83-85, 93-102.

         On September 17, 2015, the Court entered a FLSA Scheduling Order directing Defendants to produce “[a]ll time sheets and payroll records in Defendant's possession, custody or control that pertain to work performed by Plaintiff[s] during the time period for which Plaintiff[s] claims unpaid wages.” Doc. 26 ¶ 1. Moreover, the Order directed that in collective action cases, “[s]aid exchange of documents shall occur within twenty-one (21) days of [the opt-in Plaintiffs'] filing of opt-in notices with this Court.” Id. ¶ 3. The following month, on October 21, 2015, Defendants' counsel e-mailed Plaintiffs' counsel stating that because Defendants “classified the entertainers as independent contractors and they worked exclusively for tips, ” Defendants did not have any time records or payroll records to produce.” Doc. 41 at 3.

         On December 21, 2015, Plaintiffs served their First Request for Production upon Defendants. Doc. 121-1. Plaintiffs have summarized the requests as seeking

the production of all personnel records and records used to track or document the number of days and the specific days worked by Plaintiffs (Request 1), any applications submitted by Plaintiffs (Request. 7); any rules that applied to dancer/entertainers (Request 10 and 15); copies of all licenses of entertainers who rendered services from July 8, 2010 to present (Request 11); any listing containing the names of dancers from July 8, 2010 to present (Request 17); and, any and all applications for employment submitted by a dancer from July 8, 2010 to present (Request 18).

Doc. 121 at 2-3; see also Doc. 121-1.[1] On February 10, 2016, Defendants responded to Plaintiffs' First Request for Production. Doc. 121-2.

         In their responses, Defendants stated that they classified Plaintiffs as independent contractors, and the only records maintained by Defendants for entertainers are some applications and licenses for current entertainers. Doc. 121-2 at 1. Defendants stated that each “Adult Entertainment License” is returned to the city when the entertainer no longer provides services. Id. at 3. Defendants also stated that they were seeking to locate the applications for Plaintiffs, but were unable to locate same. Id. at 1. Defendants denied having any rules that they promulgated to apply to entertainers. Id. at 3. Regarding the request seeking a listing containing the names of entertainers, Defendants responded that they “do not have any such listing. Defendants do have some applications of entertainers, and [do] have licenses for current entertainers.” Id. at 4. Lastly, Defendants objected to Request No. 18 seeking applications for employment submitted by entertainers “from July 8, 2010 to present” on the basis that the request is overly broad in that “the Court has not granted collective or class action status.” Id.

         On August 25, 2016, the Court granted Plaintiffs' motion for conditional certification, and ordered Defendants to produce to Plaintiffs' counsel, “a list containing the full names, stage names, job titles, last known addresses, personal email addresses, telephone numbers, dates of birth, and dates of employment for all putative class members who worked as entertainers for Defendants during the three years preceding the date of compliance.” Doc. 72 at 8. Plaintiffs state that the following month, on or about September 20, 2016, Defendants provided a list of 156 entertainers without any email addresses. Doc. 121 at 2.

         On August 11, 2016, noticed the deposition of the corporate representative of Defendant L.A. Entertainment corporate representative to occur, and specified twenty-six areas of inquiry in the notice. Id. at 3. L.A. Entertainment produced Amer Salameh as its corporate representative; however, Mr. Salameh was unable to answer many of the areas of inquiry listed in the notice. Id. at 3-5. Plaintiffs state Defendants agreed to produce Babes' managers, Jose Torres and Steve Salameh, as fact witnesses; however, both witnesses failed to appear at two of their scheduled depositions. Id. at 5-8.

         Plaintiffs filed the instant motion alleging that Defendants failed to comply with the Court's FLSA Scheduling Order, failed to respond to Plaintiffs' First Request for Production upon Defendants, failed to produce a corporate representative knowledgeable on the areas of inquiry specified in Plaintiffs' Notice of Deposition, and engaged in spoliation of evidence. Id. at 1-15. Although Plaintiffs have titled their motion as “Motion for Sanctions and/or Motion to Compel” (Doc. 121 at 1, emphasis added), the entirety of their argument is dedicated to seeking sanctions. See Doc. 121. Pursuant to the Court's inherent authority and Rule 37(b), Federal Rules of Civil Procedure, Plaintiffs request default judgment as a sanction against Defendants, and propose various alternative sanctions. Id. at 15-17. Plaintiffs' motion largely is premised on a sworn statement by a previous Babes manager, Mike McCarthy, dated September 22, 2016, that Plaintiffs contend contradicts many of Defendants' discovery responses and purports to prove Defendants destroyed evidence relevant to this action. Docs. 121 at 6-7; 93-1.

         II. Discussion

         a. Plaintiffs' Motion for Sanctions and to Compel Based on Defendants' Discovery Responses and Alleged Failure to Comply with Court Orders

         District courts have broad discretion when managing their cases in order to ensure that the cases move to a timely and orderly conclusion. Chrysler Int'l Corp. v. Chemaly, 280 F.3d 1358, 1360 (11th Cir. 2002). In that spirit, on August 1, 2016, the Court entered a Case Management and Scheduling Order (“CMSO”), setting forth a discovery deadline of February 1, 2017. Doc. 68 at 1. In its CMSO, the Court warned that it “may deny as untimely all motions to compel filed after the discovery deadline.” Doc. 68 at 2.

         First, Plaintiffs' motion to compel and for sanctions is untimely. Coleman v. Starbucks, No. 6:14-cv-527-Orl-22TBS, 2015 WL 2449585, at *8 (M.D. Fla. May 22, 2015) (“While there is no local or federal rule setting a precise deadline for the filing of a motion to compel, it is clear that any such motion must be filed within a ‘reasonable' time period.”) (citation omitted); Wane v. Loan Corp., 926 F.Supp.2d 1312, 1319 (M.D. Fla. 2013) (denying Rule 37 sanctions of striking the affidavit partly because the plaintiffs did not file a motion to compel when they realized the information was missing). Here, Plaintiffs received Defendants' responses to the First Request for Production on February 10, 2016 and the McCarthy affidavit was dated September 22, 2016, yet filed the present motion nearly one year later, and after the discovery deadline passed. Plaintiffs do not explain nor acknowledge the delay in their filing.

         By virtue of failing to address a discovery violation when the movant first learns of the issue, a party risks waiving the issue. United States v. Stinson, No. 6:14-cv-1534-Orl-22TBS, 2016 WL 8488241, at *5 (M.D. Fla. Nov. 22, 2016); see also Coleman, 2015 WL 2449585, at *8 (“[W]aiver principles apply in the discovery context just as they do in other aspects of litigation.”) (citations omitted). “The court's decision whether or not to find waiver is discretionary.” Stinson, 2016 WL 8488241, at *5 (citing Woods v. DeAngelo Marine Exhaust, Inc., 692 F.3d 1272, 1279 (Fed. Cir. 2012)). In considering the timeliness of a motion to compel or for sanctions, the Court considers “such factors as when the movant learned of the discovery violation, how long he waited before bringing it to the court's attention, and whether discovery has been completed.” Id. at *5 (citing Long v. Howard Univ., 561 F.Supp.2d 85, 91 (D.D.C. 2008)). Here, Plaintiffs received Defendants' discovery responses on February 10, 2016, waited one year to file the instant motion, and filed the motion after the discovery deadline. Similarly, Plaintiffs received Defendants' response related to their obligation under the Court's FLSA Scheduling on October 21, 2015, yet waited over one year to file the instant motion.

         Understandably, Plaintiffs rely on the sworn statement of Mr. McCarthy, which was dated September 22, 2016, in filing their motion; however, similarly there is no explanation for the five-month delay. The Court does not expect parties to immediately rush to Court whenever an opposing party fails to properly respond to a discovery request. Instead, the Court expects parties to comply with the obligations of Local Rule 3.01(g) and Federal Rule of Civil Procedure 37(a)(1) to confer in good faith in an effort to resolve the discovery disputes prior to bringing any motions to compel or for sanctions. See M.D. Fla. R. 3.01(g); Fed.R.Civ.P. 37(a)(1). The duty to confer requires a good faith conference, which means a substantive discussion in a good faith effort to resolve the dispute without court intervention. Here, however, there is no indication that Plaintiffs' delay was the result of their attempts to comply with their conferral obligations. Any attempts at conferral did not occur until February 9, 2017, after the expiration of the discovery deadline, when Plaintiffs' counsel emailed Defendants' counsel a copy of the instant motion, stating “I assume you oppose it but am forwarding it to you pursuant to Local Rule 3.01.”[2] Doc. 126-5.

         Second, the Court finds that imposition of sanctions under Rule 37(b) of the Federal Rules of Civil Procedure would be improper. Rule 37(b)(2)(A) provides that if a party fails to obey a discovery order, the court where the ...


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