Calderone et al v. Scott
Filing
125
ORDER denying 117 Plaintiffs' Motion to Compel. Eight opt-in plaintiffs, Donna L. Aiossa-McNally, Peter Bears, Robert Brown, Samuel Flores, Michael James Goeb, Marie E. Langston, Roberto Torres, and Campion E. Wylie, shall have up to and i ncluding December 19, 2016 to SHOW CAUSE in writing as to why sanctions should not be imposed for failure to comply with the Court's Orders (Docs. 98, 113). See Order for details. Signed by Magistrate Judge Carol Mirando on 12/13/2016. (HJ)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KEVIN CALDERONE, GEORGE
SCHWING, MICHAEL ZALESKI and
SELENA LEE, an individual
Plaintiffs,
v.
Case No:2:14-cv-519-FtM-PAM-CM
MICHAEL SCOTT,
Defendant.
ORDER
This matter comes before the Court upon review of Plaintiffs’ Motion to Compel
(Doc. 117) filed on November 18, 2016.
Defendant opposes the requested relief.
Doc. 120.
I.
Background
On September 4, 2014, Plaintiffs Kevin Calderone, George Schwing, Michael
Zalenski, and Selena Lee (“Plaintiffs”) filed a Complaint against Defendant Michael
Scott (“Defendant”).
Doc. 1.
On December 29, 2014, Plaintiffs filed an Amended
Collective & Class Action Complaint (“Amended Complaint”) on behalf of themselves
and other similarly situated employees against Defendant in his official capacity
under the Fair Labor Standards Act (“FLSA”) and the Florida Minimum Wage Act
(“FMWA”). 1 Doc. 11. Plaintiffs are former employees of the Lee County Sheriff’s
Plaintiffs also alleged Counts V and VI of Unjust Enrichment against Defendant.
Doc. 11 at 24-26. On April 16, 2015, Senior United States District Judge John E. Steele
granted Defendant’s motion to dismiss Counts V and VI and dismissed Counts V and VI of
1
Office, and Defendant is Sheriff of Lee County, Florida. Id. at 2-3 ¶¶ 2-6.
Plaintiffs
allege that Defendant required or permitted his employees to work “off-the-clock” for
which the employees were not compensated.
Id. at 2-3 ¶¶ 20-21.
On May 28, 2015, Senior United States District Judge John E. Steele entered
a Case Management and Scheduling Order (“CMSO”) setting the deadline for
disclosure of expert reports to September 14, 2016 for Plaintiffs and to October 14,
2016 for Defendant, the discovery deadline to November 1, 2016, the deadline for
dispositive motions to December 1, 2016, and a trial term of March 6, 2017.
Doc. 41.
Subsequently, on July 16, 2015, Judge Steele granted Plaintiffs’ motion for
conditional certification pursuant to 29 U.S.C. § 216(b).
Doc. 54 at 4-5. Plaintiffs’
putative class consists of former or current deputy sheriffs who, in the past three
years, allegedly performed off-the-clock work for which they were not compensated in
violation of the FLSA. Doc. 68 at 1.
in.
As of this date, sixty-four plaintiffs have opted
Doc. 89 at 3.
On August 1, 2016, Defendant served written interrogatories to each of the
sixty-four (64) opt-in plaintiffs, but Plaintiffs resisted responding to the
interrogatories by filing a motion for a protective order (Doc. 92) on August 30, 2016.
Doc. 118 at 1.
On September 16, 2016, the Court held a hearing and denied
Plaintiffs’ motion for a protective order.
Doc. 98.
The Court directed the named
and opt-in plaintiffs to respond to Defendant’s interrogatories on or before October 7,
2016.
Id. at 3.
The Court also entered the amended CMSO, extending the
the Amended Complaint. Doc. 38 at 5.
-2-
discovery deadline to November 15, 2016 and the deadline for dispositive motions to
December 8, 2016. Id.; Doc. 99.
Since then, this case has been assigned to United
States District Judge Paul A. Magnuson and has a trial date to commence on March
1, 2017.
II.
Doc. 106.
Order to Show Cause (Doc. 113)
On November 9, 2016, Defendant filed a motion seeking an extension of the
deadlines for the opt-in plaintiffs to respond to Defendant’s interrogatories, for
Defendant to respond to Plaintiffs’ motion for partial summary judgment, and for
dispositive motions.
Doc. 112.
Defendant stated that despite the Court’s Order
(Doc. 98) directing the opt-in plaintiffs to respond to the interrogatories by October 7,
2016, only eighteen (18) of the sixty-four (64) opt-in plaintiffs had responded to
Defendant’s interrogatories on or before November 7, 2016.
Id. at 6-7.
On November 14, 2016, the Court ordered Plaintiffs and Plaintiffs’ counsel to
show cause for their failure to comply with the Court’s Order (Doc. 98).
4.
Doc. 113 at
The Court found that the opt-in plaintiffs’ incomplete responses to Defendant’s
interrogatories were a clear violation of the Court’s Order (Doc. 98).
Id. at 3.
The
Court also directed all of the remaining opt-in plaintiffs to serve complete responses
to Defendant on or before November 28, 2016.
Id. at 4.
Because of the opt-in
plaintiffs’ non-compliance with the Order (Doc. 98), the Court extended the parties’
deadline for dispositive motions to January 6, 2017.
Id.
On November 21, 2016, Plaintiffs responded to the Order to Show.
Doc. 118.
Plaintiffs allege that their counsel has been working nearly seven days a week to
-3-
serve complete discovery responses, but experienced some difficulties because some
opt-in plaintiffs changed their contact information and one opt-in plaintiff recently
became deceased.
Id. at 1-2.
On December 1, 2016, Plaintiffs filed Opt-in Plaintiffs’ Notice of Compliance
Re: Doc. 113.
Doc. 119.
The Notice states that fifty-three (53) opt-in plaintiffs
provided responses on or before November 28, 2016 pursuant to the Order (Doc. 113).
Id. at 1-2. The Notice, however, also shows that eleven (11) opt-in plaintiffs still
have not responded to Defendant’s interrogatories.
Id. at 2-3. Except for three opt-
in plaintiffs, 2 eight opt-in plaintiffs have not responded for unknown reasons.
Id.
As a result, the Court will provide one last opportunity to the eight (8) opt-in
plaintiffs, Donna L. Aiossa-McNally, Peter Bears, Robert Brown, Samuel Flores,
Michael James Goeb, Marie E. Langston, Roberto Torres, and Campion E. Wylie, to
show cause as to why they should not be sanctioned for violation of the Court’s Orders
(Docs. 98, 113).
Id. The Court will take no further action on the Order to Show
Cause (Doc. 113) against Plaintiffs and Plaintiffs’ counsel.
III.
Plaintiffs’ Motion to Compel (Doc. 117)
Plaintiffs allege that on October 14, 2016, Plaintiffs served a Second Request
for Production to Defendant.
Doc. 117 at 1.
Defendant argues that according to
Rules 6(d) and 5(b)(2)(E) of the Federal Rules of Civil Procedure, 3 he had thirty-three
According to the Notice, one opt-in plaintiff is deceased, another is not within reach,
and the other does not meet this case’s class definitions. Doc. 119 at 3 n.1, 2, 3.
2
Rule 6(d) allows additional three days for service for certain modes of service under
Rule 5(b). Fed. R. Civ. P. 6(d). Effective December 1, 2016, service by electronic means
under Rule 5(b)(2)(E) is no longer part of Rule 6(d). Fed. R. Civ. P. 6 advisory committee’s
3
-4-
(33) days to respond to Plaintiffs’ discovery request, making his response due on
November 16, 2016.
Doc. 120 at 5-6 ¶ 20.
On November 16, 2016, Defendant
objected as untimely to Plaintiffs’ discovery request.
Doc. 117 at 1-2 ¶ 4; Doc. 117-
2.
Plaintiffs filed the present motion three days after the discovery deadline of
November 15, 2016, seeking to compel Defendant to serve his response to Plaintiffs’
discovery request.
Docs. 99, 117.
In support, Plaintiffs cite to Rosa v. Wellington
Academy, LLC, in which the Court granted in part and denied in part the defendant’s
motion to extend the discovery deadline.
5373304, at *3 (M.D. Fla, Sept. 26, 2016).
No. 2:15-cv-187-FtM-38CM, 2016 WL
Plaintiffs also argue that Defendant
engaged in gamesmanship by waiting the full thirty-three (33) days to respond in a
short email.
Doc. 117 at 3.
As Defendant correctly points out, the original CMSO plainly states that the
parties “shall timely serve discovery requests so that the rules allow for a response
prior to the discovery deadline.”
Doc. 41 at 2-3.
This means that all discovery must
Mount Vernon Fire Ins. Co. v. National Fire
be completed by the discovery deadline.
Ins. Co., of Hartford, No. 8:07-cv-1593-T-24EAJ, 2008 WL 2397606, at *2 (M.D. Fla.,
June 10, 2008).
A responding party may object to untimely discovery requests on
this basis, and the parties should not expect the Court to resolve discovery disputes
arising after the discovery deadline.
Id.
note to 2016 amendment.
-5-
Here, Plaintiff’s discovery request was untimely.
See id. (holding that
discovery requests requiring responses after the discovery deadline were untimely).
Knowing that Defendant’s response deadline fell outside of the discovery deadline,
however, Plaintiffs did not move to extend the discovery deadline before the discovery
deadline expired.
Doc. 117. Plaintiffs also demonstrate their full awareness of the
Court’s directives concerning the discovery deadline.
Id. at 2. Plaintiffs’ actions
make this case distinguishable from Rosa, in which the defendant moved to extend
the discovery deadline so that the plaintiff had sufficient time to respond to the
defendant’s discovery request before the discovery deadline.
See Rosa, 2016 WL
5373304, at *1.
Furthermore, Plaintiffs’ motion to compel also is untimely.
According to the
CMSO, “the Court may deny as untimely all motions to compel filed after the
discovery deadline.” Doc. 41 at 3.
The Court considers several factors to determine
whether the untimely motion to compel should be allowed on the merits.
Kearny
Partners Fund, LLC ex rel. Lincoln Partners Fund, LLC v. U.S., No. 2:10-cv-153-FtM99SPC, 2012 WL 5906895, at *1 (M.D. Fla., Nov. 26, 2012).
The factors the Court
considers are: “the danger of prejudice to respondent; the length of the delay and its
potential impact on judicial proceedings; the reason for the delay, including whether
it was within the reasonable control of movant; and whether movant acted in good
faith, with primary importance accorded to absence of prejudice to respondent and
the interests of judicial administration.”
Id.
Plaintiffs also must demonstrate
excusable neglect because their motion to compel was filed after the discovery
-6-
deadline.
Eli Research, LLC v. Must Have Info Inc., No. 2:13-cv-695-FtM-38CM,
2015 WL 4694046, at *2 (M.D. Fla., Aug. 6, 2015).
Here, the Court finds that the factors weigh in favor of denying Plaintiffs’
motion to compel as untimely.
See Kearny Partners Fund, 2012 WL 5906895, at *1.
The procedural history of this case shows that the case has been pending for over two
years since September 4, 2014.
Doc. 1.
deadline once on September 16, 2016.
The Court already extended the discovery
Docs. 98, 99.
Yet, Plaintiffs do not address
the relevant law or demonstrate excusable neglect in their brief.
Doc. 117; Eli
Research, 2015 WL 4694046, at *2. Furthermore, as Defendant points out, Plaintiffs
do not explain why they could not have served their discovery request earlier.
117, 120 at 8.
Docs.
In light of the length of this case’s procedural history and the
upcoming deadline for dispositive motions, the Court finds that Plaintiffs’ motion to
compel should not be allowed on the merits.
ACCORDINGLY, it is hereby
ORDERED:
1.
Eight opt-in plaintiffs, Donna L. Aiossa-McNally, Peter Bears, Robert
Brown, Samuel Flores, Michael James Goeb, Marie E. Langston, Roberto Torres, and
Campion E. Wylie, shall have up to and including December 19, 2016 to SHOW
CAUSE in writing as to why sanctions should not be imposed for failure to comply
with the Court’s Orders (Docs. 98, 113). Failure to respond to this Order to Show
Cause may result in the imposition of sanctions without further notice.
-7-
2.
The Court will take no further action on the Order to Show Cause (Doc.
113) against Plaintiffs and Plaintiffs’ counsel.
3.
Plaintiffs’ Motion to Compel (Doc. 117) is DENIED.
DONE and ORDERED in Fort Myers, Florida on this 13th day of December,
2016.
Copies:
Counsel of record
-8-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?