Carruega v. Steve's Painting, Inc. et al

Filing 29

ORDER denying 26 Defendants' Amended Motion for Reconsideration of this Court's Order Granting Plaintiff's Motion to Compel, or in the Alternative, Defendants' Motion to Request Limited Discovery; granting in part and denying in part 28 Plaintiff's Motion for Attorneys' Fees. Plaintiff is AWARDED attorney's fees in the amount of $2,100.00. Signed by Magistrate Judge Carol Mirando on 8/7/2017. (HJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
LORENZO CARRUEGA, on behalf of
himself and others similarly situated
Plaintiff,
v.

Case No: 2:16-cv-715-FtM-29CM

STEVE’S PAINTING, INC. and
STEVEN BLAIR,
Defendants.
ORDER
This matter comes before the Court upon review of Defendants Steve’s
Painting Inc.’s (“Steve’s Painting”) and Steven Blair’s (“Blair”) (collectively,
“Defendants”) Amended Motion for Reconsideration of this Court’s Order Granting
Plaintiff’s Motion to Compel, or in the Alternative, Defendants’ Motion to Request
Limited Discovery (Doc. 26) filed on June 23, 2017, and Plaintiff Lorenzo Carruega’s
(“Carruega”) Motion for Attorney’s Fees (Doc. 28) filed on July 14, 2017.
opposes Defendants’ motion for reconsideration.

Doc. 27.

Carruega

Although Carruega

states that Defendants oppose his motion for attorney’s fees, Defendants have not
filed any response, and their time to do so has expired.

Doc. 28 at 6.

On September 21, 2016, Carruega filed a Complaint and Demand for Jury Trial
against Defendants, seeking recovery of overtime compensation and unpaid
minimum wages under the Fair Labor Standards Act (“FLSA”).

Doc. 1.

On May

26, 2017, Carruega filed a motion to compel Steve’s Painting’s responses to his

interrogatories and requests for production of documents served in April 2017. Doc.
22.

Carruega alleged that Steve’s Painting did not respond at all to his discovery

requests.

Id. at 2.

Steve’s Painting did not respond to the motion to compel,

creating a presumption that the motion was unopposed.

Great Am. Assur. Co. v.

Sanchuk, LLC, No. 8:10-cv-2568-T-33AEP, 2012 WL 195526, at *3 (M.D. Fla. Jan. 23,
2012).

As a result, upon review of Carruega’s discovery requests and motion to

compel, the Court granted the motion to compel.

Doc. 23.

In doing so, the Court

also found that Steve’s Painting waived its objections to Carruega’s interrogatories
by not timely raising them.

Id. at 3. On June 22, 2017, Defendants moved for

reconsideration of the Court’s Order (Doc. 23), which the Court denied without
prejudice for failure to comply with Local Rule 3.01(g).
I.

Docs. 24, 25.

Motion for Reconsideration of the Court’s Order (Doc. 26)

On June 23, 2017, Defendants filed the present motion, seeking the Court’s
reconsideration of its Order granting Carruega’s motion to compel.

Doc. 26.

As

grounds for reconsideration, Defendants allege that on January 7, 2014, Carruega
executed a general release of claims by which Plaintiff released and discharged
Defendants for any and all causes of action.

Id. at 2. Defendants ask the Court to

give effect to Carruega’s general release by limiting all of Carruega’s discovery
requests to a time period of January 2014 to September 2015.

Id. at 3. Defendants

further state that in response to the Court’s Order, they produced all requested
documents in their control and possession.

Id. at 3-4.

In addition, Defendants

assert that Carruega may not seek to discover the identities of Defendants’ other

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employees when Carruega has not moved to certify a class in this matter.
5.

Id. at 4-

Carruega responds that Defendants failed to make a timely objection, and

Carruega’s general release is not enforceable because it was not an appropriate
settlement of his FLSA claim.

Doc. 27.

“Reconsideration of a court’s previous order is an extraordinary remedy and,
thus, is a power which should be used sparingly.”

Carter v. Premier Rest. Mgmt.,

No. 2:06-CV-212-FTM-99DNF, 2006 WL 2620302, at *1 (M.D. Fla. Sept. 13, 2006)
(citing Am. Ass’n of People with Disabilities v. Hood, 278 F. Supp. 2d 1337, 1339 (M.D.
Fla. 2003)).

Courts have recognized three grounds to justify reconsideration: “(1) an

intervening change in the controlling law; (2) the availability of new evidence; [or] (3)
the need to correct clear error or prevent manifest injustice.” Sussman v. Salem,

Saxon & Nielsen, P.A., 153 F.R.D. 689, 694 (M.D. Fla. 1994).

“A motion for

reconsideration should raise new issues, not merely readdress issues litigated
previously,” Paine Webber Income Props. Three Ltd. P’ship v. Mobil Oil Corp., 902 F.
Supp. 1514, 1521 (M.D. Fla. 1995), and must “set forth facts or law of a strongly
convincing nature to demonstrate to the court the reason to reverse its prior decision.”

Carter, 2006 WL 2620302, at *1 (citing Taylor Woodrow Constr. Corp. v.
Sarasota/Manatee Auth., 814 F. Supp. 1072, 1072-73 (M.D. Fla. 1993)). It is the
movant’s burden to establish the “extraordinary circumstances” justifying
reconsideration.

Mannings v. Sch. Bd. of Hillsborough Cty., Fla., 149 F.R.D. 235,

235 (M.D. Fla. 1993).

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Here, as a ground for reconsideration, Defendants rely on Plaintiff’s general
release that was executed in January 2014, which was not previously before the
Court.

Docs. 26, 26-1.

To “introduce previously unsubmitted evidence on a motion

to reconsider,” Defendants, as movants for reconsideration here, bear the burden to
show that “the evidence was not available during the pendency of the motion [to
compel.]”

Mays v. U.S. Postal Serv., 122 F.3d 43, 46 (11th Cir. 1997). Under Rule

60(b) of the Federal Rules of Civil Procedure, which guides Defendants’ burden of
presenting new evidence, reconsideration is appropriate where “there is new evidence
that could not have been discovered previously with reasonable diligence.”

Sec. and

Exch. Comm’n v. Kirkland, No. 6:06-cv-183-Orl-28KRS, 2008 WL 918705, at *1 (M.D.
Fla. Apr. 2, 2008); see Macleod v. Scott, No. 3:14-cv-793-J-39MCR, 2014 WL 7005910,
at *3 (M.D. Fla. Dec. 10, 2014) (“Although not specifically mentioned in the Federal
Rules of Civil Procedure, a motion seeking a reconsideration of an earlier ruling is
governed either by Rule 59 or Rule 60.”).

The court “does not abuse its discretion to

deny reconsideration based on evidence that was available to the party, but the party
failed to collect it or produce it.”

Kirkland, 2008 WL 918705, at *1 (citing Bernstein

v. Boies, Schiller & Flexner LLP, 236 F. App’x 564, 571 (11th Cir. 2007)).
Here, Carruega’s general release clearly was available to Defendants prior to
the filing of the Complaint because it was executed in January 2014.

Doc. 26-1.

Defendants state that they did not timely provide the general release and their
response to Carruega’s motion to compel for the Court’s review because of a
calendaring error.

Doc. 26 at 4.

See Sussman, 153 F.R.D. at 695 (citation omitted)

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(“A motion to reconsider, which is based upon evidence that could have been
introduced during the pendency of the motion [to compel,] will be denied without an
abuse of discretion.”); Mays, 122 F.3d at 46 (“[W]here a party attempts to introduce
previously unsubmitted evidence on a motion to reconsider, the court should not
grant the motion absent some showing that the evidence was not available during the
pendency of the motion.”).

Accordingly, Defendants may not introduce this new

evidence with its motion for reconsideration.

Doc. 26-1; see Mays, 122 F.3d at 46;

Sussman, 153 F.R.D. 689 at 695 (citation omitted).
Furthermore, as Carruega argues, the validity of his general release is in
question because there are only two ways for a claim under the FLSA to be settled or
compromised.

Doc. 27; Lynn’s Food Store, Inc. v. United States, 679 F.2d 1350,

1352-53 (11th Cir. 1982).

The first is under 29 U.S.C. § 216(c), providing for the

Secretary of Labor to supervise the payments of unpaid wages owed to employees.

Id. at 1353. The second is under 29 U.S.C. § 216(b) when an action is brought by
employees against their employer to recover back wages.

Id. When the employees

file suit, the proposed settlement must be presented to the district court for the
district court to review and determine that the settlement is fair and reasonable.

Id.

at 1353-54. Defendants do not argue at all that Carruega’s release of his FLSA claim
meets this criteria.

Doc. 26; Id.

Even assuming the general release is valid, the

Complaint clearly states that he was not compensated properly from September 2013
to September 2015.

Doc. 1 at 4.

Yet, Defendants have not challenged the

Complaint to limit the timeframe of Carruega’s claim.

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Doc. 26.

Accordingly,

Carruega’s FLSA claim stands as alleged in the Complaint.

Doc. 1.

As a result,

Carruega’s discovery related to the timeframe as alleged in the Complaint is relevant
for discovery purposes.

See id.; Fed. R. Civ. P. 26(b)(1).

Lastly, Defendants argue that Carruega may not discover the identities of
other putative class members at this stage. 1 Doc. 26 at 4-5. This is an objection
Defendants should have raised before, not at this stage, and does not constitute a
proper ground for reconsideration.

See Sussman, 153 F.R.D. at 694. As the Court

clearly held, Defendants waived its objection to Carruega’s interrogatories and
created a presumption that Carruega’s motion to compel was unopposed by not timely
responding to either Carruega’s discovery requests or motion to compel.
3; see Fed. R. Civ. P. 33(b)(3).

Doc. 23 at

Based on the findings above, the Court will deny

Defendants’ motion for reconsideration.
II.

Carruega’s Motion for Attorney’s Fees (Doc. 28)

In granting Carruega’s motion to compel, the Court denied without prejudice
Carruega’s request for attorney’s fees associated with the motion to compel because
Carruega did not provide any documentation as to the amount of time expended on
bringing the motion or the hourly rate.

Doc. 23 at 5.

On July 14, 2017, Carruega

filed a motion for attorney’s fees, seeking an award of attorney’s fees in the amount
of $5,016.00.

Doc. 28 at 2.

His counsel states that in relation to Carruega’s motion

Carruega’s Interrogatory No. 15 seeks contact and work-related information of
Defendants’ other employees, who received overtime compensation from September 2013 to
the end of their employment. Doc. 22-1 at 10-11. Similarly, Carrugea’s First Requests to
Produce Nos. 14 and 15 seek documents regarding Defendants’ other employees. Doc. 22-2
at 4.
1

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to compel and Defendants’ motion for reconsideration, counsel expended 9.6 hours at
an hourly rate of $500.00, and his paralegal expended 1.6 hours at an hourly rate of

Id.

$135.00.

In support, counsel attaches his declaration to the motion, which

includes an itemization of the time expended.

Doc. 28-1.

Defendants have not

responded to this motion, and their time to do so has expired.

Defendants’ non-

response to the motion creates a presumption that this motion is unopposed.

Great

Am. Assur., 2012 WL 195526, at *3.
Rule 37(a)(5)(A) of the Federal Rules of Civil Procedure provides that if a
motion to compel discovery is granted, the court must, after giving an opportunity to
be heard, require the party whose conduct necessitated the motion to pay the moving
party’s reasonable expenses incurred in bringing the motion, including attorney’s
fees. 2

Fed. R. Civ. P. 37(a)(5)(A).

When a party makes a claim for fees, however,

it is the party’s burden to establish entitlement and document the appropriate hours
and hourly rate.

Am. Civil Liberties Union of Ga. v. Barnes, 168 F.3d 423, 427 (11th

Cir. 1999) (citing Norman v. Housing Auth. of Montgomery, 836 F.2d 1292, 1303 (11th
Cir. 1988)).

Here, Carruega met his burden by providing the necessary

documentation of his counsel’s hours and rates.

2

Doc. 28-1.

Carruega may not

The court must not order the payment if:

(i)

the movant filed the motion before attempting in good faith to obtain the
disclosure or discovery without court action;

(ii)

the opposing party’s nondisclosure, response, or objection was substantially
justified; or

(iii)

other circumstances make an award of expenses unjust.

Fed. R. Civ. P. 37(a)(5)(A)(i)-(iii).

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recover,

however,

any

expenses

associated

with

Defendants’

motion

for

reconsideration because Rule 37(a)(5)(A) permits an award of only “reasonable
expenses incurred in making the motion [to compel.]”

Fed. R. Civ. P. 37(a)(5)(A).

Accordingly, the Court will grant in part and deny in part Carruega’s motion for
attorney’s fees by awarding the attorney’s fees for 4.2 hours expended at an hourly
rate of $500.00 associated with filing the motion to compel.

Doc. 28.

ACCORDINGLY, it is hereby
ORDERED:
1.

Defendants’ Amended Motion for Reconsideration of this Court’s Order

Granting Plaintiff’s Motion to Compel, or in the Alternative, Defendants’ Motion to
Request Limited Discovery (Doc. 26) is DENIED.
2.

Plaintiff’s Motion for Attorneys’ Fees (Doc. 28) is GRANTED in part and

DENIED in part.

Plaintiff is AWARDED attorney’s fees in the amount of $2,100.00.

DONE and ORDERED in Fort Myers, Florida on this 7th day of August, 2017.

Copies:
Counsel of record

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