Bautista-Cruz et al v. D&K Harvesting, Inc.

Filing 39

ORDER granting in part and denying in part 38 Defendant's Unopposed Motion for Enlargement of Time to Respond to Court's Order (D.E. 37). The parties shall have up and including October 27, 2016 to jointly file either (1) a proposed settlement agreement if the parties have settled, or (2) a Case Management Report if the parties have not settled. Signed by Magistrate Judge Carol Mirando on 9/26/2016. (HJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BALDEMAR BAUTISTA-CRUZ,
RICARDO GUERRERO-CHAVERO,
JOSE OMAR MARTINEZ-CORONEL,
ENRIQUE MARTINEZ-ZEFERINO,
LEOPOLDO ANTONIO ORTEGA,
EFREN PICHARDO-HERNANDEZ,
ANTONIO MARCELINO ROSENDO,
EDGAR DAVID VELAZQUEZREYES, NORBERTO BAUTISTAJUAREZ, MARIO ALBERTO
ROMERO-SANTOS, JAVIER RUBIOHERNANDEZ, ANTONIO CORONAGOMEZ, REYNALDO SALASLORENZO and JUAN CARLOS
MARTINEZ-PEREZ,
Plaintiffs,
v.

Case No: 2:15-cv-725-FtM-29CM

D&K HARVESTING, INC.,
Defendant.
ORDER
This matter comes before the Court upon review of Defendant’s Unopposed
Motion for Enlargement of Time to Respond to Court's Order (D.E. 37) (Doc. 38) filed
on September 23, 2016. Plaintiff does not oppose the requested relief. Doc. 38 at 3.
On January 27, 2016, the Court entered a FLSA Scheduling Order requiring
the parties to meet and confer in person within thirty (30) days of the filing of all
answers to the Court’s interrogatories, or no later than May 26, 2016, whichever date

is sooner. 1 Doc. 17 at 3. The parties then had to file a Report Regarding Settlement
by June 27, 2016 because the Court ordered filing of a report within thirty (30) days
of concluding the settlement conference. Doc. 17 at 4.
On June 29, 2016, two days after the deadline to file a Report Regarding
Settlement, the parties filed the Joint Motion to Continue Conciliation Discussions.
Doc. 33. The parties submitted that they could complete their discussions by August
26, 2016, and if successful, would file a proposed settlement agreement by September
2, 2016. Id. at 2. If the parties did not reach a settlement before August 26, 2016,
the parties stated that they would prepare and file a Case Management Report by
August 26, 2016. Id. On July 1, 2016, the Court granted the motion and allowed
the parties until August 26, 2016 to complete their conciliation discussions and until
September 2, 2016 to submit their proposed settlement agreement. Doc. 34. As of
this date, however, the parties have not filed either a proposed settlement agreement
or a Case Management Report. As a result, the Court ordered the parties to file
either (1) a proposed settlement agreement if the parties have settled, or (2) a Case
Management Report if the parties have not settled on or before September 27, 2016.
Doc. 37.
In response to the Order (Doc. 37), Defendant submits that even though the
Court’s deadline of August 26, 2016 to finish settlement discussions had passed, the

The three plaintiffs answered the Court’s interrogatories and filed a Notice of Filing
Answers to the Court’s Interrogatories on February 24, 2016. Doc. 24. The four plaintiffs
filed their notice of filing answers on March 7, 2016. Doc. 24. As of this date, the seven
remaining plaintiffs have not answered the Court’s interrogatories. Therefore, the deadline
to meet and confer was May 26, 2016. Doc. 17 at 3.
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parties still are engaged in settlement discussions. Doc. 38 at 1. Defendant states
that the discussions have been delayed because Plaintiff’s attorney has changed
firms, and new counsel has unsuccessfully sought to appear on behalf of Plaintiff. 2

Id. at 2. Defendant argues that to respond to the Order (Doc. 37), the parties need
fourteen (14) days following the Court’s approval of an anticipated renewed Motion
for Substitution of Counsel or an Amended Notice of Appearance. Id. at 3. As of
this date, neither of the documents has been filed.
The FLSA Scheduling Order clearly warns that “[f]ailure to comply may result
in the imposition of sanctions, including but not limited to the dismissal of the case
and the striking of pleadings.” Doc. 17 at 5. The Order further prescribes that
“[e]ither party, for good cause shown, may move to alter this schedule should the
circumstances so warrant.” Id. at 6. In fact, the parties moved once to amend the
schedule and extend the deadline to continue settlement discussions on June 29,
2016, two days after the deadline to file a Report Regarding Settlement. Docs. 17,
33. In their motion for extension, the parties jointly moved to set the two dates,
August 26, 2016 and September 2, 2016, as their new deadlines, and the Court
subsequently granted their motion. Id.; Doc. 34. However, when the deadlines of
August 26, 2016 to finish settlement discussions and of September 2, 2016 to file a

On September 15, 2016, attorney Robert Dwyer filed a Notice of Substitution of
Counsel within Same Firm (Doc. 35), construed as a Motion for Substitution of Counsel. The
Court denied without prejudice the motion because the motion did not comply with Local
Rule 2.03(b). Doc. 36.
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report with the Court approached, the parties took no action and let the deadlines
pass without seeking extensions.
Now, on September 23, 2016, almost a month after the deadline of August 26,
2016 to finish settlement discussions, Defendant filed this motion explaining that the
Court’s denial of attorney Robert Dwyer’s motion to substitute (Doc. 36) on September
16, 2016 necessitates the present motion. Such explanation ignores that the motion
for substitution was filed on September 15, 2016, twenty (20) days after the deadline
to finish settlement discussions and thirteen (13) days after the deadline to file a
report with the Court. Doc. 34. Regardless of the Court’s Order on substitution of
counsel (Doc. 36), the parties should have finished discussions and had a report ready
to file by September 2, 2016 at the latest. Doc. 34. The Court’s Order (Doc. 37)
extended the deadline the parties chose by twenty-five (25) days, and yet the parties
state that the Order (Doc. 37) does not give them enough time to comply. Doc. 38 at
3.
Furthermore, Defendant proposes an undefined date as a new deadline.
Defendant recommends that the new deadline be fourteen (14) days following the
Court’s approval of an anticipated renewed Motion for Substitution of Counsel or an
Amended Notice of Appearance. Id. Given the posture of this case, the Court is not
willing to accept an undefined date as the new deadline. Instead, the Court will
grant an additional thirty (30) days for the parties to jointly file either (1) a proposed
settlement agreement if the parties have settled, or (2) a Case Management Report if
the parties have not settled. The parties should be mindful of the warning that

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“[f]ailure to comply may result in the imposition of sanctions, including but not
limited to the dismissal of the case and the striking of pleadings.” Doc. 17 at 5.
ACCORDINGLY, it is hereby
ORDERED:
1.

Defendant’s Unopposed Motion for Enlargement of Time to Respond to

Court’s Order (D.E. 37) (Doc. 38) is GRANTED in part and DENIED in part.
2.

The parties shall have up to and including October 27, 2016 to jointly file

either (1) a proposed settlement agreement if the parties have settled, or (2) a Case
Management Report if the parties have not settled.
DONE and ORDERED in Fort Myers, Florida on this 26th day of September,
2016.

Copies:
Counsel of record

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