United States District Court, S.D. Florida
AIM RECYCLING OF FLORIDA, LLC, and LKQ PICK YOUR PART SOUTHEAST, LLC, Plaintiffs,
METALS USA, INC., UNIVERSAL SCRAP MANAGEMENT, LLC, OBED LENDIAN, and SAMUEL ABREU, Defendants.
BLOOM UNITED STATES DISTRICT JUDGE
CAUSE is before the Court upon Plaintiffs AIM
Recycling Florida, LLC (“AIM”), and LKQ Pick Your
Part Southeast, LLC's (“LKQ”) (collectively,
“Plaintiffs”), Motion to for Leave to Supplement
the Summary Judgment Record with Newly Obtained Recordings of
Defendant Obed Lendian. ECF No. . Defendants Metals USA,
Inc. (“Metals”), and Obed Lendian
“Defendants”) filed a Response in Opposition, ECF
No.  (“Response”), to which Plaintiffs
replied, ECF No.  (“Reply”). The Court has
reviewed the Motion, all opposing and supporting submissions,
the record, and the applicable law, and is otherwise fully
advised. For the reasons discussed below, Plaintiffs'
Motion is granted.
initiated this RICO action against Metals and Samuel Abreu
(“Abreu”), alleging a multi-year conspiracy to
steal valuable scrap metal from Plaintiffs' facility, on
February 9, 2018, ECF No. , and the case was originally
assigned to the Honorable William J. Zloch, ECF No. . On
April 10, 2018, Plaintiffs amended their Complaint, naming
Lendian and Universal Scrap Management, LLC
(“Universal”) as additional defendants. ECF No.
point during the litigation, Abreu began cooperating with the
Department of Justice (“DOJ”). ECF No.  at
3. Pursuant to this cooperation and unbeknownst to Lendian,
from February 2018 to May 2018, Abreu began recording
telephone conversations between Abreu and Lendian at the
request of law enforcement. ECF No.  at 1.
that the Defendants were targets of a criminal investigation
by the DOJ, on March 1, 2019, Defendants filed a Motion for
Temporary Stay. ECF No. . On April 4, 2019, Judge Zloch
granted the Motion for Temporary Stay, pending the resolution
of Defendants' parallel criminal case. ECF No. . On
June 27, 2019, the instant action was reassigned to Judge
Beth Bloom. ECF No. . On August 26, 2019, the DOJ
provided Defendants with a declination letter, indicating
that the criminal investigation was closed and that the DOJ
would not be prosecuting. ECF No.  at 1-2. On August 28,
2019, after being advised that the DOJ was closing its
criminal investigation into Defendants, this Court lifted the
stay. ECF No. . Further, the Court set an October 22,
2019, deadline to file all dispositive motions and
rescheduled the instant action for trial during the two-week
trial calendar beginning on February 2, 2020. Id.
this action was stayed pending Defendants' criminal
prosecution, on February 15, 2019, Plaintiffs filed their
Motion for Partial Summary Judgment as to Liability, ECF No.
, and corresponding Statement of Material Facts in
Support of Plaintiffs' Motion for Partial Summary
Judgment as to Liability, ECF No. . Plaintiffs'
Motion for Partial Summary Judgment was never resolved prior
to the case being stayed.
August 29, 2019, after this Court lifted the stay, Plaintiffs
filed their Renewed Motion for Summary Judgment, ECF No.
, incorporating the Statement of Material Facts from
their original Motion for Summary Judgment, ECF No. . On
September 12, 2019, Defendants filed their Response in
Opposition to Plaintiffs' Motion for Summary Judgment,
ECF No. , together with their Counterstatement of
Disputed Material Facts, ECF No. . The Counterstatement
of Disputed Material Facts included as an attachment
Lendian's sworn affidavitasserting additional facts that he
previously could not testify to, in order to rebut the
adverse inferences derived from Lendian's prior
invocation of his Fifth Amendment rights. ECF No. [166-1]. On
September 19, 2019, Plaintiffs submitted their Reply. ECF No.
. Thus, Plaintiffs' Renewed Motion for Partial
Summary Judgment became ripe for this Court's review on
September 19, 2019.
on September 23, 2019, Defendants filed their competing
Motion for Summary Judgment, ECF No. , and accompanying
Statement of Material Facts, ECF No. . Briefing on
Defendants' Motion for Summary Judgment was completed on
October 11, 2019. See ECF No. .
to the instant Motion, upon learning of the DOJ's
declination letter on August 26, 2019, Plaintiffs began
investigating the possibility of obtaining the recordings of
the telephone conversations between Abreu and Lendian. ECF
No.  at 4. On September 23, 2019, in compliance with the
Touhy protocols, Plaintiffs issued subpoenas to both
the Fraud Section of the DOJ and to the FBI in order to
obtain the recordings. Id. Plaintiffs also
contemporaneously notified Defendants of these subpoenas, and
Plaintiffs provided Defendants with copies of the subpoenas
on September 26, 2019. Id. at 5-6. Defendants
neither objected to, nor moved to quash, the subpoena that
resulted in the production of the recordings at issue.
Id. at 5. On October 1, 2019, the Fraud Section of
the DOJ, through the United States Attorney's Office for
the Southern District of Florida, produced copies of the
requested recordings, which Plaintiffs in turn provided to
Defendants in exact copies. Id. at 4. Upon receiving
the recordings, Plaintiffs immediately engaged a certified
third-party vendor to produce certified English transcripts
of the recorded conversations, which were all in Spanish.
obtaining the certified English translations of the
recordings, on October 28, 2019, Plaintiffs filed the instant
Motion, seeking leave to supplement the summary judgment
record. See generally Id. On November 4, 2019,
Defendants filed their Response, arguing that the Motion
should be denied as untimely because it was filed after the
October 22, 2019, deadline to file dispositive motions and
that the recordings are not newly discovered evidence. ECF
No. . In their Reply, Plaintiffs argue that the Motion
is timely because Plaintiffs acted diligently in obtaining
the recordings and English translations after this Court
lifted the stay in the instant action. ECF No. .
within the Southern District have cautioned that
“limited circumstances warrant the filing of
supplemental materials. Supplements are to be used only for
newly discovered evidence or information.” Girard
v. Aztec RV Resort, Inc., No. 10-62298-CIV, 2011 WL
4345443, at *3 (S.D. Fla. Sept. 16, 2011). “Generally
speaking, a Court should only grant a motion to supplement a
summary judgment record where such evidence was not available
prior to the motion's filing.” Selectica, Inc.
v. Novatus, Inc., No. 6:13-cv-1708-Orl-40TBS, 2015 WL
12843841, at *2 (M.D. Fla. Sept. 30, 2015) (citing Mays
v. U.S. Postal Serv., 122 F.3d 43, 46 (11th Cir. 1997)).
As such, “a party may file a supplement when, through
no fault of the filing party, certain relevant materials were
not in the party's possession at the time that the party
filed its motion, response, or reply, ” or when such
materials were not known to exist at the time of filing.
Girard, 2011 WL 4345443, at *3. However, the
unavailability of supplementary materials cannot be the
product of the filing party's own failure to diligently
discover such evidence. See Kerruish v. Essex Holdings,
Inc., No. 16-cv-60877, 2018 WL 5629924, at *3 n.8 (S.D.
Fla. Mar. 23, 2018), aff'd, 777 Fed.Appx. 285
(11th Cir. 2019). Similarly, “[s]upplemental filings
should not raise issues for the first time that could have,
with reasonable diligence, been raised before.”
Girard, 2011 WL 4345443, at *3.
district courts have wide discretion to manage their own
dockets. Wilson v. Farley, 203 Fed.Appx. 239, 250
(11th Cir. 2006); Dietz v. Bouldin, 136 S.Ct. 1885,
1888-89 (2016) (noting that a district court has the inherent
power “to manage its docket and courtroom with a view
toward the efficient and expedient resolution of
cases”). Furthermore, courts have an interest in
resolving cases on their merits. Selectica, Inc.,
2015 WL 12843841, at *2. Thus, a court may permit parties to
supplement the summary judgment record with newly discovered
or previously unavailable evidence, where doing so would
allow for the “efficient and expedient
resolution” of the case on the merits. Dietz,
136 S.Ct. at 1888-89; Selectica, Inc., 2015 WL
12843841, at *2; compare Selectica, Inc., 2015 WL
12843841, at *2 (permitting supplementation of the summary
judgment record after the deadline to file dispositive
motions had passed), with Marajh v. Broadspire Servs.,
Inc., No. 07-60975-CIV, 2008 WL 5063870, at *11 (S.D.
Fla. Nov. 21, 2008) (denying motion to supplement ...