Mayan v. Mayan et al
Filing
67
ORDER granting in part and denying in part 60 Motion to Compel ; granting in part and denying in part 61 Motion to Compel. Signed by Magistrate Judge Thomas B. Smith on 4/21/2017. (EC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
RAHMATULLAH MAYAN,
Plaintiff,
v.
Case No: 6:15-cv-2183-Orl-18TBS
ZARGHEE MAYAN, SOHAIL MAYAN
and 786-ZZPA, INC.,
Defendants.
ORDER
Pending before the Court are Defendant/Counter-Plaintiff 786-ZZPA, Inc.’s Motion
to Compel Production of Documents from Plaintiff Rahmatullah Mayan (Doc. 60) and
Z86-ZZPA. Inc.’s Motion to Compel Interrogatory Answers (Doc. 61). No response to
either motion has been filed, as required by Local Rule 3.01(b), and the time for doing so
has expired. Upon review, the motions are granted in part and denied in part, as set forth
below.
I. Background
In May 2014, Plaintiff Rahmatullah Mayan (“Rahmatullah”) began working for
Defendants Zarghee Mayan ("Zarghee"), Sohail Mayan ("Sohail"), and 786-ZZPA, Inc. at
their restaurant, New Texas Fried Chicken, located at 400 S. Orange Blossom Trail in
Orlando, Florida (the “First Location”). Rahmatullah alleges that he worked for
Defendants as a cook, as well as working at the register and the drive-through window
(Doc. 21 at ¶ 9). Defendants allege that Rahmatullah worked or volunteered for them,
intermittently, from May 2014 until November 2015 (Doc. 32, Counterclaim ¶ 14). During
this period, Rahmatullah resided in Sohail’s household as a family member (Doc. 32 ¶
13).
Rahmatullah claims that in August 2014, Defendants informed him that, in
exchange for $45.000, he could purchase a fifteen percent (15%) interest in the First
Location (Doc. 21 ¶12). Rahmatullah alleges that $20,000 was paid to Defendants who
advised him that the remaining $25,000 would be deducted from his wages (Id. ¶¶ 13-14).
Defendants opened another New Texas Fried Chicken located at 2200 Americana
Boulevard in Orlando, Florida (the "Second Location") in March 2015, and allegedly told
Rahmatullah he could purchase a fifteen percent ( 15%) interest in that restaurant for
$8.000 (Id. ¶¶ 8, 17). In November 2015, “after disagreeing with Plaintiff’s lifestyle
choices, the Mayan family asked [Rahmatullah] to leave the household.” (Id. ¶ 16). In or
around November 28, 2015, Defendants terminated Rahmatullah's employment at the
First and Second Locations (Doc. 21 ¶ 23; Doc. 32 ¶ 17). Rahmatullah filed this lawsuit
on December 30, 2015 (Doc. 1).
On February 23, 2016, Rahmatullah filed his Second Amended Complaint (Doc.
21) alleging that Defendants violated the Fair Labor Standards Act (“FLSA”), 29 U .S.C. §
20I et. seq., by failing to pay Rahmatullah minimum and overtime wages he was owed
during his employment by Defendants. (Id. ¶¶ 34-38). Rahmatullah also alleges that
Zarghee and Sohail breached the verbal agreements whereby Rahmatullah would
purchase interests in the First and Second Locations (Id. ¶¶ 39-43).
On July 14, 2016, Defendants filed their Amended Answer with Affirmative
Defenses, Counterclaim, and Third-Party Complaint (Doc. 32). 786-ZZPA, Inc. brings the
Counterclaim and Third-Party Complaint against Rahmatullah and Third-Party Defendant,
Bismillah SNR, LLC (“Bismillah”). The Counterclaim and Third-Party Complaint alleges
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that Rahmatullah is and has always been Bismillah's sole member (Doc. 32 ¶ 19).
Bismillah allegedly registered the Florida fictitious name “# I Texas Fried Chicken.” (Id. ¶
20.) And, Rahmatullah and Bismillah allegedly opened a restaurant under that fictitious
name (the "Competing Restaurant") (Id. ¶21).
786-ZZPA, Inc. brings claims against Rahmatullah and Bismillah for unfair
competition, trade infringement, trade dilution, unfair and deceptive trade practices,
service mark infringement, trade libel, and misappropriation of trade secrets (Id.). 786ZZPA claims that “[Rahmatullah] and Bismillah designed the Competing Restaurant to
look like it was affiliated with 786-ZZPA's restaurant.” (Id. ¶ 22). According to 786-ZZPA,
Rahmatullah and Bismillah painted the Competing Restaurant in the same color scheme,
offered the same menu items in a substantially similar menu, designed and used a
substantially similar logo on the storefront and marketing material, advertised the
Competing Restaurant in a similar manner, and otherwise misled 786-ZZPA.lnc.'s
customers and vendors into believing that the Competing Restaurant was affiliated with
786-ZZPA, Inc.'s restaurants (Id. ¶¶ 22-36). 786-ZZPA, Inc. also avers that Rahmatullah
published a photograph of himself on Facebook wearing a shirt with the name "# l Texas
Fried Chicken" and smoking a marijuana cigar, which associated 786-ZZPA, Inc.'s brand
with illegal drug use (Id. ¶37).
These claims and counterclaims frame the discovery disputes at issue.
II. Motion to Compel Production
786-ZZPA, Inc. served its First Set of Requests for Production of Documents on
Rahmatullah on December 12, 2016 (Doc. 60-1). Rahmatullah served objections and
responses (Doc. 60-2), and represented, as to most requests, that he would “produce
those documents in his possession which are responsive to this request, to the extent
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that they have not already been produced.”(Id.). According 786-ZZPA, Inc., on or about
February 3, 2017, Rahmatullah’s then-counsel 1 served a 14-page PDF in response to the
thirty-one requests. This PDF is not before the Court, but 786-ZZPA, Inc. represents that
it contained: witness affidavits (pages 1-4), Articles of Organization for Bismillah (pages
5-6), duplicative screenshots of the same redacted Facebook messenger conversation
(pages 7-8, 14), a screenshot of text messages (page 9), a screenshot of payment
receipts (page 10), a screenshot of part of a text conversation (page 11), and partially
illegible screenshots of photographs of the menu for #1 Texas Fried Chicken (pages 1213). Counsel conferred regarding what 786-ZZPA, Inc. felt was an insufficient production
and misplaced or unsupported objections (Docs. 60-3 and 60-4). On March 17, 2017,
Rahmatullah served amended or supplemented responses (Doc. 62-1). No additional
documents were produced. This motion followed.
A party may file a motion to compel against another party who fails to permit
inspection of documents within its possession, control, or custody. See FED. R. CIV. P.
34(a)(1), 37(a)(3)(B)(iv); Bloodworth v. United States, 623 F. App'x 976, 979 (11th Cir.
2015). In relevant part, Rule 37(a)(4), FED. R. CIV. P., states “[f]or purposes of this
subdivision (a), an evasive or incomplete ... answer, or response must be treated as a
failure to ... answer, or respond.” Defendant contends that Plaintiff has failed to properly
comply with his discovery obligations in that he raises inappropriate objections to some
requests and promised production of documents, but did not produce them. I have
reviewed the objections and responses, and find as follows.
1
Counsel has since withdrawn and Plaintiff is proceeding pro se.
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Request Nos. 2, 3, & 4
No. 2: Complete communications, as such word is defined above, between
you and any Defendant in this case that included discussion of any matters
related to the claims in your second amended complaint or 786-ZZPA,
INC.’s counterclaim.
Response: Responding Party objects to the extent that such documents
are, by their very nature, equally available to Defendants. Notwithstanding
and subject to that objection, Responding Party will produce those
documents in his possession which are responsive to this request, to the
extent that they have not already been produced. Discovery is in its infancy
in this matter, and Responding Party reserves to right to produce additional
documents as they are discovered.
No. 3: Complete communications, as such word is defined above, between
you and anyone else, including your father, Matiullah Babur, and any other
individual: (a) Wherein matters related to the claims in your second
amended complaint were discussed; (b) Wherein matters related to the
claims in 786-ZZPA, INC’s counterclaim were discussed; (c) Wherein your
role, position, or occupation for or with 786-ZZPA, INC. was discussed; (d)
Wherein Zarghee Mayan or Sohail Mayan were discussed, directly or
indirectly; (e) The use of 786-ZZPA, INC.’s service mark, logo, trade name,
or trademark, or variations thereof.
Response as to subparts a through d: Responding Party will produce those
documents in his possession which are responsive to this request, to the
extent that they have not already been produced. Discovery is in its infancy
in this matter, and Responding Party reserves to right to produce additional
documents as they are discovered.
Response as to subpart e: Responding Party is not aware of any responsive
documents in his possession. Discovery is continuing.
Responding Party amends this response to indicate that he has thoroughly
reviewed the records in his possession, and has not located any responsive
documents. Discovery is continuing.
No. 4: Any and all letters, emails, text messages, and other
communications, as such term is defined above, between you and any
officers, agents, employees, or representatives of 786-ZZPA, INC. that
relate in any way, directly or indirectly, to your employment, role, duties, or
position with 786-ZZPA, INC., or the claims in your complaint or the
counterclaim.
Response: Responding Party objects to the extent that such documents
are, by their very nature, equally available to Defendants. Notwithstanding
and subject to that objection, Responding Party will produce those
documents in his possession which are responsive to this request, to the
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extent that they have not already been produced. Discovery is in its infancy
in this matter, and Responding Party reserves to right to produce additional
documents as they are discovered.
786-ZZPA, Inc. argues that Rahmatullah’s objections are baseless, and the
documents provided are insufficient, incomplete, or otherwise lacking in that they do not
include complete communications in native format, but are screenshots which are
missing information such as the date of the communication. The Court agrees, in part.
Courts, including this one, have explained that producing documents
“notwithstanding” objections “preserves nothing and wastes the time and resources of the
parties and the court.” Nationwide Mut. Fire Ins. Co. v. Kelt, Inc., No. 6:14-CV-749-ORL41, 2015 WL 1470971 at *4 (M.D. Fla. Mar. 31, 2015), quoting Martin v. Zale Del., Inc.,
2008 WL 5255555, *2 (M.D. Fla. Dec.25, 2008) and citing Chambers v. Sygma Network,
Inc., No. 6:12–cv–1802–Orl–37TBS, 2013 WL 1775046, at *3 (M.D. Fla. Apr.25, 2013);
Pepperwood of Naples Condominium Ass'n., Inc. v. Nationwide Mutual Fire Ins. Co., No.
2:10–cv–753–FtM–36SPC, 2011 WL 3841557, at *2 (M.D.Fla. Aug.29, 2011); Guzman v.
Irmadan, Inc., 249 F.R.D. 399, 401 (S.D.Fla.2008); Howard v. Sweetheart Cup Co., No.
00 C 648, 2001 WL 721765, at *3 (N.D. Ill. June 27, 2001). Moreover, “merely because
an item may be available from another source is not a proper objection.” Central
Transport Int’l, Inc. v. Global Advantage Distrib., Inc., No. 2:06–401-FtM-29SPC, 2007 WL
3124715, at *2 (M.D. Fla. 2007). Rahmatullah’s objections are therefore overruled. To the
extent he has withheld any responsive documents (or portions of the documents
produced, or documents in their native format) on the basis of these objections, the
motion is granted, and Rahmatullah shall produce such withheld documents within seven
days from the rendition of this Order.
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786-ZZPA, Inc.’s request for an order compelling “complete” communications
assumes that Rahmatullah has additional documents which were not produced. 786ZZPA, Inc. has not presented any basis for such a conclusion and Rahmatullah has
explicitly disclaimed additional documents, at least with respect to Request 3. As
Rahmatullah is obligated to supplement discovery if other documents come to light, the
motion is denied to the extent it seeks an order to compel production of documents
Rahmatullah claims he does not have.
Request No. 5
Any and all photographs of the competing restaurant, in full or in part,
interior or exterior.
Response: Responding Party is not aware of any responsive documents in
his possession. Discovery is continuing.
Amended Response: Responding Party amends this response to indicate
that he has thoroughly reviewed the records in his possession, and has not
located any responsive documents.
786-ZZPA, Inc. contends that Rahmatullah is “not being truthful” in that he has
publicly posted pictures to his Facebook profile and the Competing Restaurant’s website.
As Rahmatullah has not responded to the motion, the Court accepts this representation
as uncontested. The motion is therefore granted as to this request. Rahmatullah is
ordered to produce any photographs of the Competing Restaurant within seven days from
the rendition of this Order. 2
Request Nos. 6 and 7
No. 6: In their original or native format, all advertising materials used to
promote or advertise the competing restaurant, including any and all
coupons, fliers, pamphlets, brochures, T-shirts, polo shirts, business cards,
hats, key chains, pens, cups, plates, table tents, etc.
Defendant did not define “photograph” in the Requests. To the extent the images posted to the
internet are digital, Plaintiff is ordered to produce those images.
2
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Response: Responding Party will produce those documents in his
possession which are responsive to this request, to the extent that they
have not already been produced. Discovery is in its infancy in this matter,
and Responding Party reserves to right to produce additional documents as
they are discovered.
No. 7: In their original or native format, all menus used by the competing
restaurant, including any distinctive “grand opening” menus; specials;
seasonal or “limited time” menus; beverage menus; and desert menus. (In
the case where an oversized menu is attached to the wall or structure within
the competing restaurant, legible photographic reproductions are
acceptable. However, other menus should be produced in native format.)
Response: Responding Party will produce those documents in his
possession which are responsive to this request, to the extent that they
have not already been produced. Discovery is in its infancy in this matter,
and Responding Party reserves to right to produce additional documents as
they are discovered.
786-ZZPA, Inc. contends that the two screenshots produced are insufficient
as Rahmatullah promoted the Competing Restaurant on social media and through
an advertising flier, a copy of which 786-ZZPA, Inc. obtained through a third-party
subpoena. 786-ZZPA, Inc. argues that if Rahmatullah discarded these materials “it
is likely he spoliated evidence.”
The issue of spoliation is not properly joined on the record before the Court.
Rahmatullah has responded that he will produce responsive documents “to the
extent they have not already been produced.” For present purposes, that
qualification is overruled. The motion is granted as to these requests, and
Rahmatullah is ordered to produce any responsive documents within seven days
from the rendition of this Order.
Requests 8, 11, 12, 13, 16, and 18-22
For these requests, Rahmatullah responds that he is “not aware of any
responsive documents in his possession,” despite a “thorough review” of his
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records. See responses to Requests 8, 11, 12, 13, 16, and 18-22. 786-ZZPA, Inc.
argues that the documents requested (tax returns, recipes used by the Competing
Restaurant, contracts, leases for the property, vendor invoices, receipts and the
like) should be in Rahmatullah’s actual possession, but if they are not, they are
reasonably within his custody or control, and Rahmatullah should be ordered to
contact his landlord, vendors and accountant, in order to provide the documents. I
agree.
Pursuant to Rule 34(a), a party must produce documents in response to a
request for production where those documents are “in the responding party's
possession, custody, or control [.]” FED. R. CIV. P. 34(a). “Whether documents are
in a parties control under Rule 34 is broadly construed.” Costa v. Kerzner Int'l
Resorts, Inc., 277 F.R.D. 468, 470–71 (S.D. Fla. 2011), citing SeaRock v. Stripling,
736 F.2d 650, 653 (11th Cir.1984) (finding that “[c]ontrol is defined not only as
possession, but as the legal right to obtain documents requested upon demand”).
See also Sergeeva v. Tripleton Int'l Ltd., 834 F.3d 1194, 1201 (11th Cir. 2016)
(finding the SeaRock standard to be the “correct legal standard.”). To the extent
Rahmatullah is a party to any lease, contract or transaction, he has the right to
obtain a copy of any such document. Similarly, a copy of any tax return he filed is
within his control. The motion is granted as to these requests. Rahmatullah is
ordered to produce the requested responsive documents within seven days from
the rendition of this Order.
Request Nos. 9 & 10
No. 9: Your complete cell phone records for the period you were allegedly
working for 786-ZZPA, INC. (from May 1, 2014, through and until November
28, 2015).
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No. 10: Your complete cell phone records for the period in which you
allegedly ceased working at 786-ZZPA, INC. and began preparations for
opening the competing restaurant (from November 28, 2015, through and
until December 31, 2016).
Plaintiff provided the same response to both of these requests:
Response: Responding Party objects that this request seeks information not
relevant to the subject matter of this lawsuit and not calculated to lead to the
discovery of admissible evidence. This request is also an invasion of
Plaintiff’s right to privacy. Responding Party will not produce any responsive
documents to this request as drafted.
Amended response: Responding Party is requesting copies of his complete
cell phone records during the requested time period. He will redact out
personal calls, and will otherwise produce the same once they are in his
possession.
With respect to the relevancy objections, parties “may obtain discovery
regarding any non-privileged matter that is relevant to any party's claim or defense
and proportional to the needs of the case.” FED. R. CIV. P. 26(b)(1). The federal
rules “strongly favor full discovery whenever possible.” Farnsworth v. Procter &
Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985). Still, discovery must be
relevant. “[R]equiring relevance to a claim or defense ‘signals to the court that it
has the authority to confine discovery to the claims and defenses asserted in the
pleadings, and signals to the parties that they have no entitlement to discovery to
develop new claims or defenses that are not already identified in the pleadings.’”
Builders Flooring Connection, LLC v. Brown Chambless Architects, No.
2:11CV373-MHT, 2014 WL 1765102, at *1 (M.D. Ala. May 1, 2014) (quoting GAP
Report of Advisory Committee to 2000 amendments to Rule 26). “As the Advisory
Committee Notes say, ‘[t]he Committee intends that the parties and the court focus
on the actual claims and defenses involved in the action.’” Liese v. Indian River
Cty. Hosp. Dist., 701 F.3d 334, 355 (11th Cir. 2012) (quoting the GAP Report).
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Rahmatullah’s phone records are relevant to the claims and defenses at issue in
both the wage and hour claims and the counterclaim, as Rahmatullah is alleged to
have contacted 786-ZZPA, Inc.’s vendors, suppliers, and advertisers. As for
privacy concerns, 786-ZZPA, Inc. correctly notes that the records do not include
the contents of phone calls, but merely the numbers, dates, times, and phone call
lengths. The motion is granted as to this request. Rahmatullah is ordered to obtain
his phone records, as he represented he would, and produce them to 786-ZZPA,
Inc. within seven days.
Request Nos. 14 and 15
786-ZZPA, Inc. asks for a printout of Rahmatullah’s Facebook friends list
and comments posted to his Facebook page that mention 786-ZZPA, Inc. or either
restaurant. Despite Rahmatullah’s response that he will produce the responsive
documents, he has not done so. The motion is granted as to this request.
Rahmatullah is ordered to produce the requested documents within seven days
from the rendition of this Order.
Request No. 24
Any and all law enforcement records or reports wherein you were arrested
or charged, or if the police were called to your home or workplace, as a
result of any illegal drug use or distribution or sale of illegal drugs.
Response: Responding Party objects that this request seeks information not
relevant to the subject matter of this lawsuit and not calculated to lead to the
discovery of admissible evidence. This request is also an invasion of
Plaintiff’s right to privacy. Further, Responding Party is not aware of any
responsive documents in his possession.
Amended response: Responding Party amends this response to indicate
that he has thoroughly reviewed the records in his possession, and has not
located any responsive documents.
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786-ZZPA, Inc. argues that the objections based on relevancy and privacy
are misplaced as Rahmatullah “opened the door” to character evidence when he
filed this lawsuit. I do not agree. Filing a wage and hour claim does not necessarily
make a party’s criminal history relevant and there is nothing in the FLSA that limits
its coverage to only non-offenders. Moreover, the request seeks records where
Rahmatullah was “arrested or charged” (not convictions) or “the police were
called.” As framed, this request is objectionable on its face. The motion is denied
with respect to this request.
Request Nos. 26, 29-31
These requests seek financial records relevant to the claims and
Rahmatullah has responded that he will produce the documents. 786-ZZPA, Inc.
represents that he has not done so, as the only responsive documents produced
are two screenshots of what appear to be two electronic transfers of $2000. 786ZZPA, Inc. is entitled to production of the requested documents. Screenshots
which do not contain all relevant information will not suffice. The motion is granted
as to these requests and Rahmatullah is ordered to provide the bank records
within seven days from the rendition of this Order.
III. Motion to Compel Interrogatory Answers
On December 28, 2016, 786-ZZPA, Inc. served its First Set of Interrogatories on
Rahmatullah (Doc. 61-1). Rahmatullah responded, serving objections with answers (Doc.
61-2). Counsel conferred and Rahmatulla’s then-lawyer served unverified amended
responses (Doc. 61-5). 786-ZZPA, Inc. moves to compel better, verified answers. Rule
37(a)(3)(B)(iii) allows a “party seeking discovery ... [to] move for an order compelling an
answer, designation, production, or inspection” when “a party fails to answer an
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interrogatory submitted under Rule 33.” Rule 37(a)(4) further states that “an evasive or
incomplete ... answer, or response must be treated as a failure to ... answer, or respond.”
I have reviewed the seven Interrogatories, answers and objections at issue, and find as
follows.
Interrogatory No. 2
Did you open, or facilitate the opening of, the competing restaurant? If so,
please provide any and all reasons or justifications for your doing so and
identify any and all individuals who assisted. If not, explain your answer,
and explain who, if anyone, did.
Object to the extent that the request is compound, conjunctive, and contains
unenumerated subparts, such that the total number of interrogatories
exceeds the amount permitted by the FRCP. Notwithstanding and subject to
those objections, Responding Party responds:
Responding Party did open a new restaurant, dubbed herein the “competing
restaurant.” Following his termination, Responding Party needed a way to
earn a living, and believed that he could successfully operate a chicken
restaurant. To the extent that “assisted” has been subsequently defined in
your correspondence, we provide the following names:
Monti Baburi – loaned Responding Party money towards the opening of the
store. He may be contacted through his counsel Stephen Luther, at
sluther@addmg.com.
786-ZZPA, Inc. argues that the objection as to the number of interrogatories is
baseless and the answer itself is incomplete and insufficient. 786-ZZPA, Inc. is partially
correct. Rule 33(a) provides that “[u]nless otherwise stipulated or ordered by the court, a
party may serve on any other party no more than 25 written interrogatories, including all
discrete subparts.” FED. R. CIV. P. 33(a)(1). “Courts in this Circuit often use a ‘related
question’ test to determine whether a subpart is part of an interrogatory or is more
properly considered a discrete, separate interrogatory.” Guarantee Ins. Co. v. Heffernan
Ins. Brokers, Inc., No. 13-23881-CIV, 2014 WL 5319866, at *5 (S.D. Fla. Oct. 16, 2014).
Under this test, courts assess “whether the particular subparts are logically or factually
subsumed within and necessarily related to the primary question.... If the subparts are
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subsumed and necessarily related to the primary question, then the subpart is not
“discrete” within the meaning of Rule 33(a).” Oliver v. City of Orlando, No. 6:06CV-1671ORL-31DAB, 2007 WL 3232227, at *2 (M.D. Fla. Oct. 31, 2007) (internal citations
omitted). “[A]n interrogatory containing subparts directed at eliciting details concerning a
‘common theme’ should generally be considered a single question.” Border Collie
Rescue, Inc. v. Ryan, No. 3:04CV568J32HTS, 2005 WL 662724, *1 (M.D.Fla. Mar.15,
2005) (further noting that “an interrogatory which contains subparts that inquire into
discrete areas should, in most cases, be counted as more than one interrogatory.”). Here,
the question follows a common theme regarding the circumstances of the creation of the
Competing Restaurant, the subparts are, thus, not discrete, and Rahmatullah’s objection
is overruled.
That said, I do not agree that the answer provided is insufficient or incomplete. As
defined in the referred-to subsequent correspondence (Doc. 61-3 at 2-3), “assisted”
includes scouting the location, financing, preparing the building, marketing the new
location, and other things. Rahmatullah has listed a name as responsive to this
Interrogatory. Although 786-ZZPA, Inc. presumes that others also assisted, there is no
basis for that assumption in this record. If the answer is verified, this represents an
adequate response, subject, of course, to the penalties of perjury and the obligation to
supplement should later information become available. Therefore, the motion is granted,
in part, to the extent that Rahmatullah is ordered to provide sworn responses within seven
days from the rendition of this Order. Rahmatullah shall review all answers provided in his
Amended Response (Doc. 61-5), supplement them, if they are incomplete or inaccurate,
and execute the verification before a notary public within seven days from the rendition of
this Order.
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Interrogatory No. 6
Did you create the menu for the competing restaurant? If so, please explain
how you acquired the recipes and/or cooking instructions used to prepare
each menu item, including sauces and marinades.
Object to the extent that the request is compound, disjunctive, and contains
unenumerated subparts, such that the total number of interrogatories
exceeds the amount permitted by the FRCP. Further object to the extent
that the request is vague and ambiguous as to “create the menu.”
Notwithstanding and subject to those objections, Responding Party
responds: a) Responding Party did create the menu for the restaurant, in
that he selected the items that would be served thereat. b) The recipes are
ones he used before in his work at various fried chicken restaurants,
including those restaurants previously owned by his father where
Defendants had also worked prior to opening their current restaurants. The
sauces were purchased pre-made from Restaurant Depot.
786-ZZPA, Inc. contends that the objection should be overruled, as above, argues
that the answer is vague, and Rahmatullah “must be required to identify those ‘various
restaurants’ and state which recipes, for which menu items, were acquired from which
restaurant.” (Doc. 61 at 6). The objection regarding subparts is overruled, for the reasons
stated above. The answer is not vague and is sufficient for present purposes.
Nonetheless, the answer still needs to be verified. Therefore, the motion is granted, in
part, to the extent that Rahmatullah is ordered to provide sworn responses within seven
days from the rendition of this Order. Rahmatullah shall review all answers provided in his
Amended Response (Doc. 61-5), supplement them, if they are incomplete or inaccurate,
and execute the verification before a notary public within seven days from the rendition of
this Order.
Interrogatory Nos. 11 & 12
No. 11 — For each month in the relevant time period, please provide a list of
all of your income, from whatever source, including, without limitation,
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wages, gifts, and loans, and identify the source of income, type of income,
and the amount.
Object to the extent that the request is compound, disjunctive, and contains
unenumerated subparts, such that the total number of interrogatories
exceeds the amount permitted by the FRCP. Further object to the extent
that the request is unduly burdensome and not reasonably tailored to elicit
relevant admissible evidence. Notwithstanding and subject to those
objections, Responding Party responds:
Responding Party cannot break down his income for the months set forth,
as he has no records thereof. During the time he worked for Defendants, his
income was as stated in the Complaint.
No. 12 — For each month from about May 2014 through November 2015,
please provide a list of all of your expenditures, including, without limitation:
rent, utilities, car payments, insurance, legal fees, fines, loan payment,
clothing, food, medical bills, entertainment, etc., and identify the amount on
each.
Object to the extent that the request is compound, disjunctive, and contains
unenumerated subparts, such that the total number of interrogatories
exceeds the amount permitted by the FRCP. Further object to the extent
that the request is unduly burdensome and not reasonably tailored to elicit
relevant admissible evidence. Notwithstanding and subject to those
objections, Responding Party responds:
Responding Party cannot break down his costs for the months set forth, as
he has no records thereof.
786-ZZPA, Inc. reiterates its argument with respect to the number of
interrogatories, and the Court agrees, for the reasons stated above. However, I do not
agree that the rest of the objections are baseless. 786-ZZPA, Inc. is seeking all of the
details of Rahmatullah’s finances based upon a conclusory assertion that Rahmatullah’s
“income and expenses are highly relevant to R. Mayan’s claims, as well as 786-ZZPA,
INC.’s counterclaims and affirmative defenses.” (Doc. 61 at 8). 786-ZZPA, Inc. fails to
show how the amount Rahmatullah spent on food in May 2014 or a sweater in June 2015
is relevant to anything pled here. Rahmatullah’s relevancy objection is sustained and the
motion is denied as to these Interrogatories.
Interrogatory No. 13
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In the last ten (10) years, have you ever been arrested or charged with a
crime? If so, please provide a detailed description of each and every arrest
or charge, including the dates and places of each arrest, the charge
and the reason(s) for the arrest, and the disposition or outcome.
Object to the extent that the requests, including subparts, exceed the 25
permitted by FRCP 33. Further object that the request is not reasonably
tailored to the discovery of relevant or admissible information. Further object
to the extent that the information is publically available and therefore equally
available to Propounding Party as it is to Responding Party. As such,
Responding Party will not respond to this request.
In the unverified supplement, Rahmatullah offered a list of charges in Orange
County since he began working for Defendants. 3 786-ZZPA, Inc. argues that it is entitled
to a full explanation of Rahmatullah’s criminal history. Again, I do not see the relevance.
While a conviction is discoverable and may be relevant, 786-ZZPA, Inc. does not offer
any argument why a 10 year history of any arrests pertains to any matter pled here. Such
“bad act” evidence is not normally admissible to prove a person’s character, See FED. R.
EVID. 404(b). As worded, this interrogatory is overbroad on its face, the relevancy
objection is sustained, and the motion to compel is denied as to this Interrogatory.
Interrogatory No. 19
Did you contact[,] or hire[,or] use ASTRO SIGNS, INC. or JOSE SOSA to
create, manufacture, or produce signs, posters, or other displays for the
competing restaurant? If so, please identify your communications with
ASTRO SIGNS, INC. or JOSE SOSA and explain what, if anything, either of
them produced.
Object to the extent that the requests, including subparts, exceed the 25
permitted by FRCP 33. Further object that the request is compound and
repeatedly disjunctive and unintelligible. Responding Party cannot therefore
respond to said interrogatory.
3April
of 2015 – misdemeanor possession - Nolle Prosequi
May of 2015 – possession (3 counts) – Nolo contendere/Nolle Prosequi
June of 2015 – driving with suspended license – dismissed.
November of 2016 – driving with suspended license – dismissed.
September of 2016 – possession – case is still active.
September of 2016 – Driving with a suspended license – Nolo contendere. (Doc. 61-5 at 7).
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[unverified amended response:]
Responding Party Amends his response to state that he did contact Jose
Sosa to make a sign – and he did make the sign. After a thorough search of
the records in his possession, responding party cannot identify any
communications with Astro Signs or Jose Sosa.
786-ZZPA, Inc. argues that Rahmatullah’s amended answer is evasive and
insufficient. I disagree. If sworn, the answer, while not as detailed as 786-ZZPA, Inc.
would prefer, fairly addresses the Interrogatory and provides responsive information. As
the amendment is not verified, however, the motion is granted, in part, and Rahmatullah
shall review his amended answers and provide verification within seven days from the
rendition of this Order.
Interrogatory No. 22
In your answers to the Court’s interrogatories (Doc. 24, ¶ 7), you only
calculated totals of hours worked throughout multi-week periods but did not
provide actual dates and hours worked. Please provide in detail a list of the
hours you contend you worked on each date in question, and, for each date,
specify whether your work was performed at 400 S. Orange Blossom Trail
or 2200 Americana Boulevard and the number of hours at each. Your
answer should be in chart format ...
Object to the extent that the requests, including subparts, exceed the 25
permitted by FRCP 33. Responding Party further objects that the request is
unduly burdensome. Notwithstanding and subject to those objections,
Responding Party responds:
[Original answer:]
Responding Party does not have detailed records that demonstrate the
specific dates and hours he worked. He did, however, work, on average, the
number of hours as set forth in the Complaint. Further, he is producing
affidavits that corroborate these claims.
[Amended answer (unverified)]
Responding Party amends his response to confirm that he does not have
any records in his possession from which to draw more specific or detailed
conclusions about the exact dates or times he worked at each of the
restaurants. He does not currently have access to his text messages from
that time frame (other than those already produced). He clearly did not work
during the specific time frame when he was out of the country. He was shot
once while working for Defendants – but returned to work the following day.
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786-ZZPA, Inc. contends that this response is evasive and incomplete because a
detailed answer is “essential.” Information from which Rahmatullah could compile this
“detailed list” is, according to 786-ZZPA, Inc., available to Rahmatullah by refreshing his
memory with a calendar and “reviewing text messages, phone records, bank and credit
card statements, travel records, hospital records (for example, for the time when he was
shot), police records (if he was ever arrested), and other documentation.” (Doc. 61 at 1314). I disagree that it is Rahmatullah’s burden to provide this level of detail. As the
Eleventh Circuit has noted:
Although a FLSA plaintiff bears the burden of proving that he or she worked
overtime without compensation, “[t]he remedial nature of this statute and the
great public policy which it embodies ... militate against making that burden
an impossible hurdle for the employee.” Anderson v. Mt. Clemens Pottery
Co., 328 U.S. 680, 687, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946). It is the
employer's duty to keep records of the employee's wages, hours, and other
conditions and practices of employment. Id. The employer is in a superior
position to know and produce the most probative facts concerning the
nature and amount of work performed and “[e]mployees seldom keep such
records themselves.” Id.
Allen v. Bd. of Pub. Educ. for Bibb Cty., 495 F.3d 1306, 1315 (11th Cir. 2007) (emphasis
added). The original response is sufficient here. The motion is denied as to this
Interrogatory.
IV. Conclusion
To the extent ordered above, Rahmatullah shall provide full and complete
responses to 786-ZZPA, Inc.’s interrogatories, signed under oath, and shall produce all
documents responsive to 786-ZZPA, Inc.’s requests to produce as set forth herein within
seven days from the rendition of this Order. Rahmatullah is cautioned that failure to timely
comply with the terms of this Order may result in the imposition of sanctions, including
monetary sanctions and, if appropriate, dismissal of his claims.
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DONE and ORDERED in Orlando, Florida on April 19, 2017.
Copies furnished to:
Counsel of Record
Unrepresented Parties
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