Popov v. George & Sons Towing, Inc. et al

Filing 51

ORDER granting in part and denying in part 41 The Plaintiff's Renewed Motion to Compel Answers to Interrogatory NOS. 8, 12, 13, and 15 of Plaintiff's First Set of Interrogatories and Request NO. 28 of the Plaintiff's First Request f or Production. The Plaintiff's Renewed Motion to Compel Answers to Interrogatory NOS. 8, 12, 13 is GRANTED but MODIFIED so that the Interrogatories only apply to George and Sons Towing and are restricted to the years from 2009 up to the start of the instant litigation. The Plaintiff's Renewed Motion to Compel Answers to Interrogatory number 15 is DENIED. The Plaintiff's Renewed Motion to Compel Request for Production number 28 is GRANTED but MODIFIED so that the production of docu ments only applies to investigations by the DOL involving George and Sons Towing and is restricted to the years from 2009 up to the start of the instant litigation. The Defendant has up to and including December 26, 2012, to Answer the Interrogatories and Produce, if any, the requested documents. Signed by Magistrate Judge Sheri Polster Chappell on 12/5/2012. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

FLORIN POPOV, on his own behalf and
others similarly situated
Plaintiff,
v.

Case No: 2:12-cv-123-FtM-99SPC

GEORGE & SONS TOWING, INC.,
GEORGE MARTIN and DEBRA
MARTIN,
Defendants.
___________________________________/

ORDER
This matter comes before the Court on the Plaintiff's Renewed Motion to Compel
Answers to Interrogatory NOS. 8, 12, 13, and 15 of Plaintiff's First Set of Interrogatories and
Request NO. 28 of the Plaintiff's First Request for Production (Doc. #41) filed on November 8,
2012. The Defendants George and Sons Towing, Inc., and George and Debra Martin filed their
Response in Opposition (Doc. # 48) on November 27, 2012. The Motion is now fully briefed
and ripe for the Court’s review.
The Federal Rules state that, “[t]he party upon whom the request [for production] is
served shall serve a written response within 30 days after the service of the request.” Fed. R. Civ.
P. 34(b). Likewise, a party upon whom interrogatories have been served has 30days to respond
either by filing answers or objections to the propounded interrogatories. Fed. R. Civ. P. 33(b). If
the serving party does not receive a response to their interrogatories and request for production,
then the serving party may request an order compelling disclosure. Fed. R. Civ. P. 37(a).

Whether or not to grant the motion to compel is at the discretion of the trial court. Commercial
Union Insurance Co. v. Westrope, 730 F.2d 729, 731 (11th Cir. 1984).
The Plaintiff moves the Court to compel answers to Interrogatory numbers 8, 12, 13, 15,
and Request for Production number 28. The Court will address the interrogatories and request
for production in order.
Interrogatories
Interrogatory number 8 asks for
If Defendants or any entity owned in whole or in part by either Defendant has
been sued or investigated by the U.S. Department of Labor or has received a
claim by or demand from any employee regarding minimum wage or overtime
compensation within the past 10 years, state the name of the claimant for the suit,
claim and/or investigation, the result of the suit, claim and/or investigation and
describe in detail the factual basis of the suit, claim and/or investigation.
The Defendant objected to Interrogatory number 8 arguing that the request was vague, unduly
burdensome and overly broad in that it seeks out any information about any entity owned in
whole or in part that has been investigated or sued by the Department or Labor or has had a wage
claim filed against it.
The Defendant’s objection is well taken in part. The FLSA has a maximum statute of
limitations limiting claims past three years old or older. 29 U.S.C. § 255(a). Thus, the time
frame for Interrogatory number 8 is overbroad. The Interrogatory is also overbroad in that it
asks for any and all entities owned in whole or in part by the Defendants. Other entities are not
the subject of this lawsuit and therefore, any request beyond George and Sons Towing, Inc.
would be considered overboard and a fishing expedition.

However, whether or not the

Defendants have been investigated by the Department of Labor (DOL) is relevant in that it goes
to the accused willful and reckless behavior on the part of the Defendants. Whether such
evidence is admitted in trial is a matter for the Court to determine at a later date. Thus, the

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Motion to Compel Interrogatory number 8 is due to be modified and restricted to any DOL
investigations into George and Sons Towing from 2009 up the filing of the instant litigation.
Interrogatory number 12 asks the Defendants to
Please identify all current and former employees of Defendants whose duties were
similar to those performed by Plaintiff for Defendants and who were compensated
in a manner similar to Plaintiff between March, 2009 and the present. For all such
individuals, please provide their job title, dates of employment, and last known
mailing address and telephone number and e-mail address.

Similarly Interrogatory number 13 requests the Defendants
Please identify all current and former employees of Defendants whose duties were
similar to those performed by Plaintiff for Defendants and who were compensated
in a manner similar to Plaintiff between March, 2010 and January, 2012. For all
such individuals, please provide their job title, dates of employment, and last
known mailing address and telephone number.

The Defendant argues that Interrogatories numbers 12 and 13 seek irrelevant information
and are not reasonably calculated to lead to admissible evidence. The Federal Rules of Civil
Procedure allow discovery of any relevant, non-privileged material that is admissible or
reasonably calculated to lead to admissible evidence. Fed. R. Civ. P. 26(b)(1). Courts interpret
relevancy “broadly to encompass any matter that bears on, or that reasonably could lead to other
matter[s] that could bear on, any issue that is or may be in the case. Oppenheimer Fund, Inc. v.
Sanders, 437 U.S. 340, 351 (1978).
The Defendant’s objections are overruled, the Plaintiff has good cause to seek others who
worked for the Defendants in the same or similar capacity. Franco v. Bank of America Corp.,
691 F. Supp. 2d 1324, 1326 (M.D. Fla. 2010) (allowing the plaintiff to investigate through
discovery if there were others similarly situated to the plaintiff who worked for the defendant).
However, as drafted, the Interrogatories numbers 12 and 13 are overly broad in that they seek

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other similarly situated employees who work for the Defendants. The Martin Defendants may
have other businesses but the only business entity at issue in this case is George and Sons
Towing, Inc.

Thus, Interrogatories numbers 12 and 13 are limited to similarly situated

employees at George and Sons Towing from 2009 until the filing of this litigation.
Interrogatory number 15 asks the Defendant to:
Identify all individuals employed by Defendants at the same location(s) where
Plaintiff performed work for Defendants between March, 2009 and January, 2012,
and state the job titles, dates of employment, and last known address and
telephone number and e-mail address of all such individuals.
The Defendant objected to Interrogatory number 15 arguing [t]hat it seeks irrelevant
information and it is not reasonably calculated to lead to the discovery of admissible evidence.
Defendants also object to this request on the basis that it is overly broad and unduly burdensome.
Moreover, it seeks private employee contact information. Further, Plaintiff’s counsel appears to
be attempting to use this litigation as an improper forum to seek other potential plaintiffs.
The Defendants’ objection is well taken. Discovery into other employees who occupied
positions that are not similarly situated to the job performed by the Plaintiff is overboard and not
reasonably calculated to lead to admissible evidence in this case and the Motion to Compel an
answer to Interrogatory number 15 is due to be denied.
Request for Production
Request for Production number 28 asks the Defendant to produce:
With respect to any audits, reconciliations, reviews or investigations by the U.S.
Department of Labor, Wage and Hour Division, on or after 2002 of the corporate
Defendant or any entity owned in whole or in part by any Defendant in this case,
produce all correspondence, reports, schedules, work papers, opinions and other
documents that relate or pertain to said inquiry by the DOL of Defendant’s
compensation practices.

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The Court modified the Motion to Compel Interrogatory number 8 because its scope and reach is
overbroad.

Since Request for Production number 28 requests the Defendant to produce

documents related to Interrogatory number 8, the Motion to Compel is due to be modified along
the same lines as Interrogatory number 8. Therefore Request for Production number 28 is
limited in scope to any DOL investigations into George and Sons Towing from 2009 until the
date of the filing of the instant litigation.
Thus, after reviewing the Parties memoranda of law, the Court finds the Motion to
Compel should be granted in part, denied in part and modified in part.
Accordingly, it is now
ORDERED:
The Plaintiff's Renewed Motion to Compel Answers to Interrogatory NOS. 8, 12, 13, and
15 of Plaintiff's First Set of Interrogatories and Request NO. 28 of the Plaintiff's First Request for
Production (Doc. #41) is GRANTED in part and DENIED in part.
(1) The Plaintiff's Renewed Motion to Compel Answers to Interrogatory NOS. 8, 12, 13
is GRANTED but MODIFIED so that the Interrogatories only apply to George and
Sons Towing and are restricted to the years from 2009 up to the start of the instant
litigation.
(2) The Plaintiff's Renewed Motion to Compel Answers to Interrogatory number 15 is
DENIED.
(3) The Plaintiff's Renewed Motion to Compel Request for Production number 28 is
GRANTED but MODIFIED so that the production of documents only applies to
investigations by the DOL involving George and Sons Towing and is restricted to the
years from 2009 up to the start of the instant litigation.

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(4) The Defendant has up to and including December 26, 2012, to Answer the
Interrogatories and Produce, if any, the requested documents.
DONE and ORDERED in Fort Myers, Florida this 5th day of December, 2012.

Copies: All Parties of Record

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