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AIM Recycling of Florida, LLC v. Metals USA, Inc.

United States District Court, S.D. Florida

November 13, 2019

AIM RECYCLING OF FLORIDA, LLC, and LKQ PICK YOUR PART SOUTHEAST, LLC, Plaintiffs,
v.
METALS USA, INC., UNIVERSAL SCRAP MANAGEMENT, LLC, OBED LENDIAN, and SAMUEL ABREU, Defendants.

          ORDER

          BETH BLOOM UNITED STATES DISTRICT JUDGE

         THIS 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. [238]. Defendants Metals USA, Inc. (“Metals”), and Obed Lendian (“Lendian”) (collectively, “Defendants”) filed a Response in Opposition, ECF No. [246] (“Response”), to which Plaintiffs replied, ECF No. [254] (“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.

         I. BACKGROUND

         Plaintiffs initiated this RICO[1] 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. [1], and the case was originally assigned to the Honorable William J. Zloch, ECF No. [2]. On April 10, 2018, Plaintiffs amended their Complaint, naming Lendian and Universal Scrap Management, LLC (“Universal”) as additional defendants. ECF No. [24].[2]

         At some point during the litigation, Abreu began cooperating with the Department of Justice (“DOJ”). ECF No. [238] 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. [246] at 1.

         Believing 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. [122]. On April 4, 2019, Judge Zloch granted the Motion for Temporary Stay, pending the resolution of Defendants' parallel criminal case. ECF No. [146]. On June 27, 2019, the instant action was reassigned to Judge Beth Bloom. ECF No. [147]. 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. [151] 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. [154]. 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.

         Before 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. [120], and corresponding Statement of Material Facts in Support of Plaintiffs' Motion for Partial Summary Judgment as to Liability, ECF No. [119]. Plaintiffs' Motion for Partial Summary Judgment was never resolved prior to the case being stayed.

         On August 29, 2019, after this Court lifted the stay, Plaintiffs filed their Renewed Motion for Summary Judgment, ECF No. [158], incorporating the Statement of Material Facts from their original Motion for Summary Judgment, ECF No. [119]. On September 12, 2019, Defendants filed their Response in Opposition to Plaintiffs' Motion for Summary Judgment, ECF No. [165], together with their Counterstatement of Disputed Material Facts, ECF No. [166]. The Counterstatement of Disputed Material Facts included as an attachment Lendian's sworn affidavit[3]asserting 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. [171]. Thus, Plaintiffs' Renewed Motion for Partial Summary Judgment became ripe for this Court's review on September 19, 2019.

         Additionally, on September 23, 2019, Defendants filed their competing Motion for Summary Judgment, ECF No. [177], and accompanying Statement of Material Facts, ECF No. [178]. Briefing on Defendants' Motion for Summary Judgment was completed on October 11, 2019. See ECF No. [212].

         Relevant 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. [238] 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. Id.

         After 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. [246]. 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. [254].

         II. LEGAL STANDARD

         Courts 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.

         Nonetheless, 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 ...


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