United States District Court, S.D. Florida
KATHERINE MITCHELL CRUZ ORTIZ, JOISELYN C. ROBLETO, and all others similarly situated under 29 U.S.C. 216b, Plaintiffs,
N.H. INC. a/k/a MERIDIAN FOOD MARKET, MONEY GRAM, MOHAMMED HOSSAIN, Defendants.
ORDER ON DEFENDANTS' MOTION FOR
G. TORRES UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on N.H. Inc.'s (“N.H.
Inc.”) a/k/a Meridian Food Market, Money Gram, and
Mohammed Hossain's (“Defendants”) motion for
reconsideration against Katherine Mitchell Cruz Ortiz and
Joiselyn C. Robleto (“Plaintiffs”). [D.E. 72].
Plaintiffs responded on December 26, 2017 [D.E. 73] to which
Defendants replied on December 28, 2017. [D.E. 74].
Therefore, Defendants' motion is now ripe for
disposition. After careful consideration of the motion,
response, reply, relevant authority, and for the reasons
discussed below, Defendants' motion is
filed this action pursuant to the Fair Labor Standards Act
(“FLSA”) for unpaid overtime wages during their
employment as cash checking clerks. Plaintiff Ortiz sought
unpaid wages from February 20, 2012 through January 9, 2017
and Plaintiff Robleto sought unpaid wages from June 1, 2012
through January 9, 2017. [D.E. 1]. Plaintiffs resigned their
employment positions on January 9, 2017 and filed this action
against Defendants on January 13, 2017. Plaintiffs alleged in
their statement of claims that they worked sixty-five hours
per week and that all of the time spent working over forty
hours during any particular week was uncompensated.
September 27, 2017, the Court permitted Plaintiffs to dismiss
their claims against Defendants without prejudice. [D.E. 58].
In doing so, the Court held that if Plaintiffs decided to
re-file this action at a later date, Plaintiffs would pay all
taxable costs and attorneys' fees that Defendants
incurred in defending this action. Plaintiffs were also
ordered to preserve all documents that Defendants previously
requested in discovery, including cell phone records and tax
returns for the relevant time period that Plaintiffs alleged
they were owed unpaid wages. If Plaintiffs failed to preserve
the documents requested, their claims would be limited to the
time period that Plaintiffs could sue for unpaid wages in any
APPLICABLE PRINCIPLES AND LAW
have distilled three major grounds justifying
reconsideration: (1) an intervening change in controlling
law; (2) the availability of new evidence; and (3) the need
to correct clear error or manifest injustice.”
Instituto de Prevision Militar v. Lehman Bros.,
Inc., 485 F.Supp.2d 1340, 1342 (S.D. Fla. 2007) (quoting
Cover v. Wal-Mart Stores, Inc., 148 F.R.D. 294, 295
(M.D. Fla. 1993) (internal quotation marks omitted)); see
also Smith v. Ocwen Financial, 488 Fed.Appx.
426, 428 (11th Cir. 2012) (citing Arthur v. King,
500 F.3d 1335, 1343 (11th Cir. 2007) (“The only grounds
for granting a motion for reconsideration are
newly-discovered evidence or manifest errors of law or
fact.”)). Newly raised arguments that should have been
raised in the first instance are not appropriate on a motion
for reconsideration. See Gougler v. Sirius Prods.,
Inc., 370 F.Supp.2d 1185, 1189 (S.D. Ala. 2005).
motion for reconsideration should also not be used as a
vehicle to reiterate arguments previously made because
“[i]t is an improper use of the motion to reconsider to
ask the Court to rethink what the Court already thought
through- rightly or wrongly.” Z.K. Marine, Inc. v.
M/V Archigetis, 808 F.Supp. 1561, 1563 (S.D. Fla. 1992)
(quoting Above the Belt, Inc. v. Mel Bohannan Roofing,
Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983) (internal
formatting omitted)). If a motion merely submits previously
rejected arguments, those motions are generally denied.
See Sierra Equity Grp., Inc. v. White Oak Equity
Partners, LLC, 687 F.Supp.2d 1322, 1324 (S.D. Fla. 2009)
(quoting Rueter v. Merrill Lynch, Pierce, Fenner &
Smith, Inc., 440 F.Supp.2d 1256, 1268 (N.D. Ala. 2006)
(noting that “motions to reconsider are not a platform
to relitigate arguments previously considered and
rejected”)). “[However], [a] motion to reconsider
would be appropriate where, for example, the Court has
patently misunderstood a party, or has made a decision
outside the adversarial issues presented to the Court by the
parties, or has made an error not of reasoning but of
apprehension.” Z.K. Marine, 808 F.Supp. at
1563 (internal formatting and citation omitted).
speaking, motions for reconsideration are considered an
“extraordinary remedy” and subject to a district
court's substantial discretion. See Tristar
Lodging, Inc. v. Arch Specialty Ins. Co., 434 F.Supp.2d
1286, 1301 (M.D. Fla. 2006) (quoting Sussman v. Salem,
Saxon & Nielsen, P.A., 153 F.R.D. 689, 694 (M.D.
Fla. 1994)); Burger King Corp. v. Ashland Equities,
Inc., 181 F.Supp.2d 1366, 1369-70 (S.D. Fla. 2002)
(citing Am. Home Assur. Co. v. Glenn Estess &
Assocs., Inc., 763 F.2d 1237, 1238-39 (11th Cir. 1985))
(“District court decisions on motions for
reconsideration are reviewed for abuse of discretion, thus
affording the courts with substantial discretion in their
December 5, 2017, we granted in part and denied in part
Defendants' motion for an award of attorney's fees
and costs. [D.E. 71]. Specifically, we held that if
Plaintiffs re-file their claims against Defendants in a
subsequent action, Plaintiffs shall pay Defendants $16,
867.50 (51.9 hours at a $325 hourly rate) in attorneys'
fees before that action may proceed. As for
Defendants' request for costs in the amount of $1, 074.70
[D.E. 60-2], we denied Defendants' motion because it
failed to comply with Local Rule 7.3(c).
argue that the denial of their costs on procedural grounds
was a mistake because Local Rule 7.3 contemplates two
alternative bases for seeking costs: (1) one arising from an
order that would otherwise be non-appealable; and (2) the
other arising from a final judgment or appealable order.
Defendants suggest that the Court's Order allowing
Plaintiffs to voluntarily dismiss their claims under Rule 41
was neither a final judgment nor an appealable order. See
Versa Prod., Inc. v. Home Depot, USA, Inc., 387 F.3d
1325, 1327 (11th Cir. 2004) (“A dismissal without
prejudice, which is not appealable, is distinguished from a
dismissal with prejudice, which is appealable.”).
Therefore, Defendants argue that they complied with the plain
language of Local Rule 7.3 and that their motion for costs
should have been considered on the merits because the
requirement to file a bill of costs applies only to final
judgments or other appealable orders.
argument is well taken. Local Rule 7.3(c) requires parties to
file a bill of costs concerning non-taxable expenses and
costs arising from entry of a final judgment or
another appealable order:
A bill of costs pursuant to 28 U.S.C. § 1920 shall be
filed and served within thirty (30) days of entry of
final judgment or other appealable order that gives rise to a
right to tax costs under the circumstances listed in 28
U.S.C. § 1920. Prior to filing the bill of costs,
the moving party shall confer with affected parties under the
procedure outlined in S.D.Fla.L.R.7.1(a)(3) in a good faith
effort to resolve the items of costs being sought. An
application for a bill of costs must be submitted on form (or
in form substantially similar to) AO 133 of the
Administrative Office of the United States Courts and shall
be limited to the costs permitted by 28 U.S.C. § 1920.
Expenses and costs that the party believes are recoverable
although not identified in § 1920 shall be moved for as
provided in paragraph 7.3(a) above. The bill of costs shall
attach copies of any documentation showing the amount of