Howard v. Second Chance Jai Alai LLC et al

Filing 47

ORDER granting 38 Motion for Attorney Fees; denying 41 Motion for Sanctions; granting in part and denying in part 43 Motion for Protective Order. See Order for details. Signed by Magistrate Judge Philip R. Lammens on 1/29/2016. (JWM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
CHRISTOPHER HOWARD and
JEFFREY GREENSTONE, on behalf of
themselves and all others similarly
situated
Plaintiffs,
v.

Case No: 5:15-cv-200-Oc-PRL

SECOND CHANCE JAI ALAI LLC
Defendant.

ORDER
Pursuant to prior notice, a hearing was held in this case on January 28, 2016. The
undersigned heard argument of counsel regarding several pending matters, including Plaintiffs’
Amended Notice and Motion for Requested Fees and Expenses (Doc. 38), Plaintiffs’ motion for
sanctions (Doc. 41), and Defendant’s Motion for Protective Order (Doc. 43).
I.

Background

Plaintiffs worked as poker dealers for Defendant at its Ocala Poker & Jai-Alai
establishment. Plaintiffs bring this case pursuant to the Fair Labor Standards Act (FLSA), and
allege that Defendant created an invalid tip pool by sharing Plaintiffs’ tips with ineligible
employees. Plaintiffs allege that they were required to participate in a tip pool with various other
employees such as managers, vault personnel, floor personnel, and cashiers over at least the past
3 years. As a result of an ongoing discovery dispute between the parties, the undersigned
conducted a hearing to address pending matters.

II.

Plaintiffs’ Amended Notice and Motion for Requested Fees and Expenses

The first issue to be addressed is Plaintiffs’ Amended Notice of requested fees and
expenses (Doc. 38). This request arises from the Court’s prior order granting Plaintiffs’ motion
to compel (Doc. 34), and subsequent order denying Defendant’s motion to reconsider that Order
(Doc. 39). The parties’ initial discovery dispute centered on Defendant’s failure to respond to
interrogatories. Previously, the Court granted the motion to compel in favor of Plaintiffs, and
Plaintiffs’ were directed to submit their reasonable attorney’s costs and fees pursuant to Rule
37(a)(5)(A) of the Federal Rules of Civil Procedure.
Plaintiffs claim 15.7 hours of attorney time x $350 per hour for a total of $5,495.00.
Defendant objects (Doc. 40) and argues that the rate should be $300 per hour, and the amount of
time claimed for preparing the motion to compel is excessive.
Upon consideration, while a rate of $350 per hour is not necessarily excessive, the
undersigned finds that a rate of $300 per hour is more reasonable for this stage in the proceedings.
Further, the Court agrees with Defendant’s argument that some of the time claimed by Plaintiffs
was not incurred in making the motion to compel, but would have been incurred anyway. For
example, Plaintiffs claim a total of 1.1 hours for reviewing and analyzing discovery responses,
time which would have been incurred regardless of the motion to compel. The remaining time
claimed was spent on counsel’s conference with opposing counsel, preparation of the motion,
review of the order on the motion, preparation of time records, and review and response to
Defendant’s motion for reconsideration. Notably, Defendant’s motion for reconsideration was
effectively a belated response to Plaintiffs’ motion to compel, and the Court finds that Plaintiffs’
time spent responding was also a reasonable expense incurred in making the motion to compel.

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According, the Court finds that Plaintiffs reasonably incurred 14.6 hours of attorney time
in making the motion, and are therefore entitled to attorney’s fees in the amount of $4380.00 ($300
per hour x 14.6 hours).
III.

Plaintiffs’ Motion For Sanctions

Plaintiffs have moved for sanctions (Doc. 41), arguing that Defendant still has not
complied sufficiently with discovery requests.

Plaintiffs argue that, based on Defendants

responses to interrogatories, it is impossible to tell which employees held positions such as chip
runner, teller, cashier, and or podium person, and those distinctions are significant to the issues on
the case regarding tip pool eligibility. Plaintiffs seek further clarification regarding employees
categorized as “Cage” personnel. Plaintiffs also contend that Defendant will not state which
employees were considered “Vault Personnel.”
The dispute centers on the following interrogatory and response:
Interrogatory Number 2 asked “For each employee identified in
Interrogatory No. 1, state the position(s) worked by each such
employee and their job duties.”

Response:
See attached Exhibit 1. A “Dealer” Simply means a poker
dealer. An employee categorized as “BAR” would be cocktail
waitresses and bartenders. Their job duties are as their
name implies. An employee categorized as “DELI” would be
cooks/cashiers that work in the deli that provides food
service to customers. Their job duties are as their name
implies. An employee categorized as “CAGE” would be
chip runners, cashiers/tellers, and podium persons.
Cashiers/tellers sell chips and cash out chips to customers.
They also sell poker tournament seats/tickets and cash out
winnings for the tournaments. Chip runners sell chips on
the floor to poker players and cash out winnings for the
tournaments. Chip runners sell chips on the floor to poker
players and collect seat cards. Podium persons seat players,
sell chips and take out seat reservations. They also track
“high hands” for jackpots that are periodically paid out.

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Defendant responds that it has already fully and completely responded to all discovery, but
that Plaintiffs remain dissatisfied because the answers do not comport with Plaintiffs’ narrative of
the case. Defendant maintains that the roles of “chip runners, cashier, etc.” are not distinct
positions, but duties that “Cage” employees would be requested to perform, and that it has
responded to the interrogatories to the best of its ability given the way Defendant categorizes
employees. Defendant further argues that it made available 23 banker’s boxes of documents in
December, and gave Plaintiffs’ counsel an opportunity to inspect them. Defendant has also
provided accounting information on a flashdrive, and, as a courtesy, provided an employee to
explain payroll information to Plaintiffs.
Upon consideration, the Court finds that Plaintiffs’ motion for sanctions (Doc. 41) is due
to be denied. As discussed at the hearing, however, Defendant will be directed to make available
for inspection all personnel records for the 31 employees identified as “Cage” employees, to the
extent such records exist.
IV.

Defendant’s Motion for Protective Order

Finally, the Court heard argument regarding Defendant’s Motion for Protective Order.
(Doc. 43). Counsel for Plaintiffs explained the need to interview current and former employees
of Defendant in order to ascertain who many have information relevant to Plaintiffs’ claims.
Plaintiffs maintain that it would be cost prohibitive to depose all 159 identified employees, and
that the ethical rules permit such communications. Defendant has requested a protective order,
and urges the Court to impose restrictions such as those set forth in NAACP v. Florida Dept. of
Corrections, 122 F. Supp. 2d 135 (M.D. Fla. 2000). Plaintiffs argue that such restrictions are
unnecessary and that counsel has already agreed not to interview any current managerial
employees.

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The Court is mindful of the relative value of Plaintiffs’ claims in this case, and it is
understandable that taking 159 depositions (or even 31) would be cost prohibitive. Although
Plaintiffs do not specify their claimed FLSA damages in the Answers to Court Interrogatories
(Docs. 12 & 13), their claims are likely to be modest. The Court agrees that nothing in the ethical
rules, including Rule 4-4.2 of the Florida Rules of Professional Conduct, prevents Plaintiffs’
counsel from conducting ex parte, informal interviews of current rank-and-file employees whose
statements may not constitute an admission on the part of the organization. Likewise, nothing
prohibits Plaintiffs’ counsel from contacting and interviewing witnesses who are former
employees of Defendant without prior notification to and consent from Defendant’s counsel. This
is true regardless of whether they are former managers if they have not maintained ties with the
corporation and have not sought or consented to representation by the corporations’ attorneys.
See Stone v. Geico General Ins. Co., Case No. 8:05-cv-636-T-30TBM, November 7, 2005; H.B.A.
Management, Inc. v. Estate of May Schwartz, 693 So. 2d 541 (Fla. 1997) (construing rule 4-4.2 to
concern only current employees and agents whose actions may impute liability to the corporation
or whose statements may constitute admissions of the corporation).
Counsel for Defendant represented that the 31 Cage employees of interest to Plaintiffs are
non-managerial and that they are generally former employees. In an abundance of caution, during
the interview process, counsel for Plaintiffs shall inquire as to whether the interviewee is
represented by counsel, is a current or former employee, and whether the employee identifies
himself or herself as a managerial employee. In the event that any interviewee identifies as being
represented by counsel, or if a current employee identifies himself or herself as managerial, counsel
for Plaintiffs must immediately terminate the interview and notify counsel for Defendant
accordingly.

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Defendant’s motion for protective order will be granted to the limited extent that Plaintiffs’
counsel is prohibited from communications with current managerial employees of Defendant, as
would be prohibited by Rule 4-4.2 in any event. Otherwise, Defendant’s motion is due to be
denied. In conducting any interviews, Plaintiffs’ counsel is reminded that he must comply with
all applicable ethical rules, including Rule 4-4.2 of the Florida Rules of Professional Conduct, and
that any information obtained in the employee interviews may not be used to bind Defendant or as
an admission by a party-opponent under Rule 801 of the Federal Rules of Evidence.
V.

Conclusion

For the reasons stated above, it is ordered that:
(1) Plaintiffs’ Motion for Fees and Expenses (Doc. 38) is GRANTED pursuant to Rule
37(a)(5)(A), and Defendant shall pay Plaintiffs’ reasonable expenses and attorney’s
fees in the amount of $4,380.00.
(2) Plaintiff’s Motion for Sanctions (Doc. 41) is DENIED. As agreed at the hearing,
however, on or before February 8, 2016, Defendant shall make available to Plaintiffs
for inspection all personnel records of the 31 “Cage” employees.
(3) Defendant’s Motion for Protective Order (Doc. 43) is GRANTED in part and
DENIED in part, as set forth in this Order.
(4) If the parties desire to schedule a settlement conference before a United States
Magistrate Judge, they may file an appropriate motion or contact the Courtroom
Deputy.
DONE and ORDERED in Ocala, Florida on January 28, 2016.

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Copies furnished to:
Counsel of Record
Unrepresented Parties

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