United States District Court, M.D. Florida, Fort Myers Division
TAMERA GOERS and ASHLEY CRISTINE MULLIGAN, individually, and on behalf of all others similarly situated Plaintiffs,
L.A. ENTERTAINMENT GROUP, INC. and AMER SALAMEH, Defendants.
MIRANDO United States Magistrate Judge.
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.
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.
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.
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. On February 10,
2016, Defendants responded to Plaintiffs' First Request
for Production. Doc. 121-2.
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.
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.
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.
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.
Plaintiffs' Motion for Sanctions and to Compel Based on
Defendants' Discovery Responses and Alleged Failure to
Comply with Court Orders
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
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.
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.
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.” Doc. 126-5.
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 ...