Wyndham Vacation Ownership, Inc. et al v. Slattery, Sobel & Decamp, LLP et al
ORDER granting in part and denying in part 724 Plaintiffs' Motion for Assessment of Expenses and Fees; denying 799 Defendants' Motion for Sanctions; adopting 841 Report and Recommendations. Signed by Judge Wendy W. Berger on 9/16/2022. (MDJ)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
WYNDHAM VACATION OWNERSHIP,
INC., WYNDHAM VACATION
RESORTS, INC., WYNDHAM RESORT
SHELL VACATIONS, LLC, SVCAMERICANA, LLC and SVC-HAWAII,
Case No. 6:19-cv-1908-WWB-EJK
SLATTERY, SOBEL & DECAMP, LLP,
DEL MAR LAW GROUP, LLP,
CARLSBAD LAW GROUP, LLP, JL
“SEAN” SLATTERY, PANDORA
MARKETING, LLC, PANDORA
SERVICING, LLC, INTERMARKETING
MEDIA, LLC, KENNETH EDDY,
WILLIAM WILSON and RICH FOLK,
THIS CAUSE is before the Court on Plaintiffs’ Motion for Assessment of Expenses
and Fees (Doc. 724), Pandora Defendants’ Motion for Sanctions (Doc. 799), and and the
parties’ respective Oppositions (Doc. Nos. 753, 794-1; 820; 831-1) thereto. United States
Magistrate Judge Embry J. Kidd entered a Report and Recommendation (“R&R,” Doc.
841), in which he recommends denying Pandora Defendants’ Motion for Sanctions and
granting in part Plaintiffs’ Motion for Assessment of Expenses and Fees.
Defendants filed Objections (Doc. 842), to which Plaintiffs filed a Response. (Doc. 851).
The issue at hand revolves around a Confidential Settlement Agreement (“CSA,”
Doc. 799-1) that Plaintiffs and Pandora Defendants entered to resolve Plaintiffs’ violation
of a confidentiality agreement and Pandora Defendants’ discovery violations. As part of
the CSA, Plaintiffs agreed to the following:
3. Waiver of Sanctions Motion. Wyndham agrees not to seek sanctions
against the Marketing Defendants and/or their counsel in connection with
any issues raised in and/or by the Sanctions Motion, which issues raised
accrued on or prior to October 5, 2020. To be clear and avoid doubt, nothing
herein shall prevent any Party from seeking discovery orders or other relief,
including sanctions, attendant to matters not addressed in the previously
filed Sanctions Motion and/or related to future discovery disputes between
the Parties that relate to issues that accrued on or after October 5, 2020.
(Id. at 2).
Pandora Defendants contend Plaintiffs violated the CSA by seeking sanctions for
issues waived in the CSA, which ultimately resulted in this Court’s January 18, 2022 Order
(“Sanctions Order,” Doc. 689). Thus, Pandora Defendants seek sanctions for such
violations, including the reversal of the defaults entered against them in the Sanctions
Order. Pandora Defendants also rely on the CSA to challenge Plaintiffs’ Motion for
Assessment of Expenses and Fees.
Parties may object to orders issued by magistrate judges on non-dispositive
matters. Fed. R. Civ. P. 72(a); see also 28 U.S.C. § 636(b)(1). “The district judge in the
case must consider timely objections and modify or set aside any part of the order that is
clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a). “A finding is ‘clearly
erroneous’ when although there is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been committed.”
TemPay, Inc. v. Biltres Staffing of Tampa Bay, LLC, 929 F. Supp. 2d 1255, 1260 (M.D.
Fla. 2013) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). “An
order is contrary to law when it fails to apply or misapplies relevant statutes, case law or
rules of procedure.” Id. (quotation omitted). “A judge of the court may accept, reject, or
modify, in whole or in part, the findings . . . made by the magistrate judge. The judge may
also receive further evidence or recommit the matter to the magistrate judge with
instructions.” 28 U.S.C. § 636(b)(1).
Pandora Defendants’ Motion for Sanctions
The R&R addresses Pandora Defendants’ assertion that sanctions are appropriate
under Rule 37(b)(2) because the CSA should be treated the same as a stipulated
confidentiality agreement. (Doc. 841 at 5). The R&R notes that such assertion is based
on an erroneous interpretation of Magistrate Judge Kidd’s prior discovery order related to
a confidentiality agreement. Therein, Magistrate Judge Kidd stated that “[b]ecause the
Court enforces stipulated confidentiality agreements in the same manner as a court order,
the Court looks to Federal Rule of Civil Procedure 37(b)(2) for appropriate sanctions.”
(Id. at 5–6 (quoting Doc. 210 at 8)). Here, however, the Motion for Sanctions is not based
on a court order. Accordingly, the R&R recommends that the Motion for Sanctions be
denied. (Id. at 6–7).
Pandora Defendants argue that the R&R unduly focuses on the question of
whether Rule 37(b) sanctions are proper in response to Plaintiffs’ alleged failure to comply
with the CSA and failed to address their request for relief under the Court’s inherent
authority and Rule 54(d). (Doc. 842 at 4). The Court finds no error as to Rule 37(b)
because there is no allegation that Plaintiffs violated a discovery order. See Williams v.
Ala. Dep’t of Corr., 649 F. App’x 925, 927 (11th Cir. 2016). As for Pandora Defendants’
argument that relief is warranted under the Court’s inherent authority or Rule 54(d),
Plaintiffs insist that the grounds for this Court’s sanctions go well beyond the terms of the
CSA. (Doc. 851 at 8). Plaintiffs also highlight that Pandora Defendants offered no legal
analysis for their request to vacate the defaults under Rule 54(b). (Id. at 8–9).
The Court does not find that Plaintiff’s engaged in misconduct that warrants
vacatur of the defaults under Rule 54(b) and declines to exercise its inherent authority to
sanction Plaintiffs for any alleged violation of the CSA. Although some of the discovery
violations and discovery complaints occurred prior to the date set forth in the CSA,
Pandora Defendants came up far short in any attempt to rectify the deficiencies after
October 2020 and continued to violate the Court’s orders. Indeed, Pandora Marketing
waited until June 2021, after continuing complaints of deficient discovery production, to
hire an outside collection vendor that uncovered an additional 1.9 million documents.
(Doc. 536 at 10:23–11:24). Pandora Marketing estimated that it would take months
beyond the discovery deadline to comb through the discovery. (Id. at 24:21–25:11).
Referral to dates preceding the CSA serves to buttress the time and effort it took to obtain
discovery. Such delay and disregard for this Court’s orders warranted the sanctions
imposed by the Sanctions Order.
Plaintiffs’ Motion for Assessment of Fees
Again, Pandora Defendants argue that Plaintiffs are not entitled to fees because
Plaintiffs violated the CSA in order to obtain the fee award. The R&R, citing Kokkonen v.
Guardian Life Ins. Co. Am., 511 U.S. 375 (1994), suggests that this Court does not have
jurisdiction to enforce or interpret the CSA. (Doc. 841 at 8–12). The R&R recommends
that if the Court considers the CSA, it should exclude Plaintiffs’ expenses and fees related
to motions filed on or prior to October 5, 2020, which include docket entries 82, 85, 86,
87, 88, 118, and 127. (Id. at 12). Pandora Defendants object that such conclusion is
nonsensical because the CSA prohibited future sanction motions, not motions preceding
October 5, 2020. Plaintiffs did not file an objection to such recommendation, but they
contend in their Response to Pandora Defendants’ Objection that reconsideration of the
Sanctions Order, including which motions are recoverable, is improper.
While Pandora Defendants are adamant that Kokkenen does not govern the
instant issue because the case is still active, they argue that they are not asking the Court
to enforce the CSA. Rather Pandora Defendants are asking the Court to sanction
Plaintiffs for litigation improprieties and misrepresentations made to the Court. (Doc. 842
at 11). If that is the case, there is no need to address jurisdiction and the Court finds
Plaintiffs did not act improperly in seeking sanctions for Pandora Defendants’ continued
failure to abide by the Court’s orders. As explained above, Pandora Defendants had
ample time to comply with discovery orders and willfully failed to do so. The fact that
Plaintiffs agreed not to seek sanctions for such failures that occurred prior to October 5,
2020, does not restrict them from seeking sanctions for future violations even if related to
discovery sought and not received prior to October 5, 2020. Thus, Pandora Defendants’
Objections will be overruled.
Accordingly, it is ORDERED and ADJUDGED as follows:
1. Pandora Defendants’ Objection (Doc. 842) is OVERRULED.
2. The Report and Recommendation (Doc. 841) is ADOPTED to the extent set
forth herein and CONFIRMED and made a part of this Order.
3. Plaintiffs’ Motion for Assessment of Expenses and Fees (Doc. 724) is
GRANTED in part as set forth in the R&R and this Order. Plaintiffs are
awarded $192,092.50 in attorney’s fees and $12,529.16 in expenses to be
paid jointly and severally by Pandora Marketing, LLC, Pandora Servicing,
LLC, Rich Folk, William Wilson, and Intermarketing Media, LLC. The Motion
is DENIED in all other respects.
4. Pandora Defendants’ Motion for Sanctions (Doc. 799) is DENIED.
DONE AND ORDERED in Orlando, Florida on September 16, 2022.
Copies furnished to:
Counsel of Record
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