Hite v. Hill Dermaceuticals, Inc.

Filing 33

ORDER: Defendant's Objections 25 to the Magistrate Judge's November 18, 2013, Order 24 are OVERRULED in part and SUSTAINED in part as detailed herein. Signed by Judge Virginia M. Hernandez Covington on 12/23/2013. (CH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOEZETTE HITE,
Plaintiff,
v.

Case No. 8:12-cv-2277-T-33AEP

HILL DERMACEUTICALS, INC.,
Defendant.
_______________________________/
ORDER
This cause comes before the Court pursuant to Defendant
Hill Dermaceuticals, Inc.’s Objections (Doc. # 25) to the
Magistrate Judge’s Order (Doc. # 24) on Plaintiff’s Motion to
Compel (Doc. # 20).

Plaintiff Joezette Hite filed a timely

memorandum in opposition to the Objections.

(Doc. # 32).

For the reasons that follow, Hill Dermaceuticals’ Objections
are overruled in part and sustained in part as detailed
herein.
I.

Background
Hite initiated this action against her former employer,

Hill Dermaceuticals, on October 5, 2012.

(Doc. # 1).

Hite’s

Complaint contains three counts: (1) gender discrimination in
violation of Title VII and the Florida Civil Rights Act
(FCRA), (2) pregnancy discrimination in violation of Title

VII and the FCRA, and (3) violations of the Family and Medical
Leave Act.

(Id.).

On October 10, 2013, Hite filed a Motion to Compel
Discovery and for Sanctions regarding Hite’s Second Request
for Production of Documents.
Hite

requested:

(1)

“All

(Doc. # 20).

weekly

reports

Specifically,
and

commission

reports for all Sales Representatives reporting to Elizabeth
Schmidt for calendar year 2009 and 2010” (Id. at 3); (2) “Any
and all documents which Elizabeth Schmidt indicated maybe
(sic) in a dresser drawer during her deposition including but
not limited to all field training reports regarding Plaintiff
during her entire period of employment” (Id. at 4); (3) “All
field

training

reports

for

all

Sales

Representatives

reporting to Elizabeth Schmidt for the years 2009 and 2010”
(Id. at 5); (4) “Financial statements for Defendant including
income statements and balance sheets for 2008, 2009, 2010,
and 2011” (Id. at 6); and (5) “All commission statements and
field evaluation reports conducted on Elizabeth Schmidt by
any supervisor for 2008-2011” (Id.).
On November 13, 2013, Judge Porcelli heard oral argument
on Plaintiff’s Motion to Compel (Doc. # 23), and on November
18, 2013, Judge Porcelli entered an Order which granted in
part and denied in part Plaintiff’s Motion (Doc. # 24).

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Specifically, Judge Porcelli granted Plaintiff’s Motion as to
Second Request for Production Nos. 1, 3 and 4, and denied the
Motion as to Second Request for Production Nos. 2 and 5.
(Doc. # 24).
II.

Legal Standard
A

district

court

shall

consider

objections

to

a

magistrate judge’s order on nondispositive matters and modify
or set aside any portion of the order if it is found to be
“clearly erroneous” or “contrary to law.” Fed. R. Civ. P.
72(a). “Clear error is a highly deferential standard of
review.”

Holton v. City of Thomasville Sch. Dist., 425 F.3d

1325, 1350 (11th Cir. 2005).

A finding of fact is clearly

erroneous only if the reviewing court is left with a definite
and firm conviction that a mistake has been made. See Ford v.
Haley, 195 F.3d 603, 617 (11th Cir. 1999).

A finding is

contrary to law if it fails to apply or misapplies relevant
statutes, case law, or rules of procedure. 800 Adept, Inc. v.
Murex

Sec.,

Ltd.,

No.

6:02-cv-1354-ORL-19DAB,

2007

WL

2826247, at *1 (M.D. Fla. Sept. 25, 2007).
III. Discussion
Hill Dermaceuticals raises three discrete objections to
Judge Porcelli’s Order on Hite’s Motion to Compel.
will address each of these objections in turn.

3

The Court

A.

Judge Porcelli’s Finding that Information Regarding
the Performance of Other Sales Representatives is
Relevant to Demonstrating Pretext in this Case

Judge Porcelli reasoned in the November 18, 2013, Order
that, “[g]iven the sequence of events leading to Plaintiff’s
termination, the information sought by Second Request for
Production No. 1 is relevant to demonstrating pretext under
the McDonnell Douglas burden-shifting framework.”

(Doc. # 24

at 2-3) (citing McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973)).

Based on this reasoning, Judge Porcelli granted

Hite’s Motion to Compel as to Second Request for Production
No. 1 as well as No. 3, both of which request information
regarding the performance of other Hill Dermaceuticals sales
representatives.

(Doc. # 24 at 3).

Hill Dermaceuticals

maintains that information regarding the job performance of
other

sales

representatives

is

not

relevant

“because

Defendant has never asserted and does not intend to assert
that Plaintiff’s job performance was the reason for her
termination.”
Dermaceuticals

(Doc.
argues

#

25
that

at
Judge

5).

Specifically,

Porcelli’s

ruling

Hill
“is

clearly erroneous and contrary to law,” (Id. at 3), because
the requested information, regardless of what it
might reveal about Plaintiff’s (or anyone else’s)
job performance, will not have any effect on the
outcome of the case.
For the sake of argument,
what if the requested information shows that

4

Plaintiff’s job performance was substandard in
comparison to her colleagues?
That would merely
have provided Defendant with another legitimate,
non-discriminatory reason on which it could have
relied on deciding to terminate Plaintiff. On the
other hand, again for the sake of argument, what if
the requested information shows that Plaintiff’s
job performance was better than that of her
colleagues?
That would simply demonstrate that
such reason would not have provided a legitimate,
non-pretextual basis for Plaintiff’s termination,
and thus, shows only that it’s a good thing that
Defendant did not rely on that reason for
terminating Plaintiff.
(Id. at 7).
Hite counters, however, that “a plaintiff can establish
that the employer’s stated reason is pretextual through a
variety of forms of evidence and a plaintiff may not be forced
to pursue any particular means of demonstrating pretext.”
(Doc. # 32 at 5).

In particular, Hite cites Ross v. Rhodes

Furniture, 146 F.3d 1286 (11th Cir. 1998), for the proposition
that “[a] plaintiff can use any evidence of the employer’s
past discriminatory conduct to meet her burden of persuasion
in a circumstantial evidence case.”

(Doc. # 32 at 5).

Indeed, in Rhodes, the Eleventh Circuit explains that a
plaintiff may carry the burden of demonstrating pretext “by
producing any evidence that, if believed, sustains his burden
of proof to demonstrate the existence of a genuine issue of
fact as to the truth of” the defendant’s legitimate, non-

5

discriminatory reason for firing the plaintiff.

Rhodes, 146

F.3d at 1291 (internal citation and quotation marks omitted).
Furthermore,

Hite

argues

that

“[d]ishonesty

can

be

‘affirmative evidence of guilt,’” and that “[p]roof that an
employer’s ‘explanation is unworthy of credence’ allows a
jury to reasonably infer that the defendant is ‘dissembling
to cover up a discriminatory purpose.’” (Doc. # 32 at 7)
(quoting Cleveland v. Home Shopping Network, Inc., 369 F.3d
1189, 1194-95 (11th Cir. 2004)).

Hite explains that “Schmidt

knew of the [Hill Dermaceuticals’ alleged nondiscriminatory
reason for terminating Hite] before November 4, 2010 when
Plaintiff

was

asked

to

resign,”

and

that

a

jury

may

accordingly find Hill Dermaceuticals’ reason for termination
– Hite’s operation of an allegedly competing business – to be
a “strategic afterthought once Plaintiff did not immediately
resign . . . .”

(Doc. # 32 at 7).

Perhaps most importantly, Hite correctly contends that
“[t]he scope of discovery depends on the relevancy of the
evidence and not whether it will, standing alone, establish
pretext.”

(Id.).

Indeed, Judge Porcelli aptly summarized

the range of permissible discovery in his November 18, 2013,
Order:

“In

federal

court,

parties

may

obtain

discovery

regarding any non-privileged matter relevant to a party’s

6

claim or defense . . . .

Relevant information need not be

admissible at trial if it appears reasonably calculated to
lead to the discovery of admissible evidence.”

(Doc. # 24 at

1) (citing Fed. R. Civ. P. 26(b)(1)).
The Court agrees with Judge Porcelli’s determination
that information regarding the job performance of other sales
representatives is relevant to demonstrating pretext under
the

McDonnell

Douglas

burden-shifting

framework,

and

accordingly declines to find Judge Porcelli’s ruling on this
issue to be clearly erroneous or contrary to law.

Hill

Dermaceuticals’ Objections are thus overruled as to Second
Request for Production Nos. 1 and 3.
B.

Judge Porcelli’s Finding that Hite has Properly
Pled and Supported a Claim for Punitive Damages
1.

Pleading Requirements

Judge Porcelli determined in his November 18, 2013,
Order that, “since Plaintiff properly pled a request for
punitive damages in her Complaint pursuant to Title VII and
the Florida Civil Rights Act [ ], Plaintiff is entitled to
discovery of Defendant’s financial worth at this time.” (Doc.
# 24 at 4).

Hill Dermaceuticals argues, however, that Hite

“has not pleaded any facts or allegations in the body of her
Complaint as required to actually state a claim for punitive

7

damages,” and thus that Judge Porcelli’s ruling is “clearly
erroneous.”

(Doc. # 25 at 8).

“While courts sometimes refer to a ‘claim’ for punitive
damages, there is no such free-standing claim for relief.
Rather, punitive damages is a component of the relief sought
as to various causes of action.”

Soliday v. 7-Eleven, Inc.,

No. 2:09-cv-807-FtM-29SPC, 2011 WL 1837807, at *1 (M.D. Fla.
Apr. 20, 2011). “While a claim must be stated with sufficient
factual detail to be plausible . . . , Rule 8(a)(3) merely
requires ‘a demand for the relief sought.’”

Id.; see also

Gallina v. Commerce and Indus. Ins., No. 8:06-cv-1529-T27EAJ, 2008 WL 3895918, at *1 (M.D. Fla. Aug. 15, 2008) (“When
pleading punitive damages, a plaintiff must merely comply
with Federal Rule of Civil Procedure 8(a)(3), which requires
‘a concise statement identifying the remedies and the parties
against whom relief is sought.’”).

Thus, although Hill

Dermaceuticals is correct in arguing that “[p]unitive damages
are available under the Civil Rights Act of 1991 only when
the employer has engaged in discriminatory practices with
malice

or

with

reckless

indifference

to

the

federally

protected rights of an aggrieved individual,” (Doc. # 25 at
8-9), the present Objections are not the proper vehicle by
which the appropriateness of a punitive damages award may be

8

tested.

See Ward v. Estaleiro Itajai S/A, 541 F. Supp. 2d

1344, 1359 (S.D. Fla. Mar. 31, 2008) (“To hold that the
plaintiff in an action at law may have discovery of damages
is not to say that the remedy will be granted as of course,
or that protection will not be given to his adversary against
impertinent intrusion . . . .”) (internal quotation omitted).
2.

Evidentiary Showing

Hill Dermaceuticals next argues that, “even if Plaintiff
had

properly

pleaded

a

punitive

damages

claim

in

her

Complaint, which she has not, she has not put forth any
evidence demonstrating a reasonable basis for her claim, as
required
discovery

to
on

Dermaceuticals

establish
the

entitlement

claim.”

cites

to

(Doc.
Haaf

v.

to
#

25

financial
at

Flagler

worth

10).

Hill

Construction

Equipment, LLC, No. 10-62321-CIV, 2011 WL 1871159, at *2 (S.D.
Fla. May 16, 2011), in elaborating that
Plaintiff failed to cite any case law supporting
the contention that a mere pleading for punitive
damages was sufficient to generate an entitlement
to financial and net worth information, or
bolstering the argument that [the discovery
component of § 768.62, Florida Statutes, which
authorizes punitive damages under Florida law,] did
not apply at all because the claim is in federal
court.
(Doc. # 25 at 11) (quoting Haaf, 2011 WL 1871159, at *2)
(internal quotation marks omitted).

9

Section 768.72, Florida Statutes, provides in relevant
part:
In any civil action, no claim for punitive damages
shall be permitted unless there is a reasonable
showing by evidence in the record or proffered by
the claimant which would provide a reasonable basis
for recovery of such damages. . . . The rules of
civil procedure shall be liberally construed so as
to allow the claimant discovery of evidence which
appears reasonably calculated to lead to admissible
evidence on the issue of punitive damages.
Fla. Stat. 768.72(1).

The court in Haaf determined that,

“[d]espite the lack of a binding Eleventh Circuit opinion on
this precise issue,” § 768.72’s discovery component applies
in federal court cases involving Florida state claims.

2011

WL 1871159, at *2.
Although “[i]n Cohen v. Office Depot, Inc., 184 F.3d
1292, 1299 (11th Cir. 1999), the Eleventh Circuit held that
the pleading rules established in Federal Rule of Civil
Procedure

8(a)(3)

preempt

§

768.72’s

requirement

that

a

plaintiff must obtain leave of court before including a prayer
for punitive damages,” the Eleventh Circuit “did not decide
whether

the

statute’s

discovery

component

(requiring

a

showing of a reasonable basis in the evidence for an award of
punitive damages before a party is entitled to discover
financial worth information) applies in federal litigation.”
Haaf, 2011 WL 1871159, at *1.

10

Hill Dermaceuticals thus argues that, like the plaintiff
in Haaf, Hite “has proffered no evidence to the Court – no
affidavit, no deposition transcript, no interrogatory answer,
nor

any

admission

Plaintiff’s

claim

by

Defendant

for

–

punitive

that
damages

could

support

and

justify

Plaintiff’s request for Defendant’s financial information.”
(Doc. # 25 at 11).
In response, Hite neglects to address the potential
application of § 768.72.

Instead, Hite provides numerous

case citations to bolster her position that “Defendant’s
financial

worth

may

be

reasonably

calculated

to

support

plaintiff’s claim for punitive damages” (Doc. # 32 at 8), and
additionally

provides

legal

argument

regarding

imputing

malice to an employer based on the unlawful acts of an
employee “serving in a ‘managerial capacity’ and ‘acting in
the scope of employment.’” (Id. at 9). However, Hite appends
several attachments to her response, including an excerpt
from the deposition of Elizabeth Schmidt already filed by
Hill

Dermaceuticals

motion.

in

support

(See Doc. # 32 at 13).

of

its

summary

judgment

Presumably, Hite submits

this evidence with the intention of supporting her punitive
damages claim, although Hite does not indicate that any such

11

evidence was presented to Judge Porcelli at the time of his
November 18, 2013, ruling.
Federal courts analyzing the applicability of § 768.72
in cases involving state law claims have come to differing
conclusions regarding a plaintiff’s obligation to make an
evidentiary

showing

damages discovery.

prior

to

the

permission

of

punitive

While some cases, such as Haaf, state

that a plaintiff must “proffer some evidence to support the
punitive damages claim,” 2011 WL 1871159, at *2, other cases,
such as Ward v. Estaleiro Itajai S/A, 541 F. Supp. 2d 1344,
1359 (S.D. Fla. 2008), conclude that § 768.72 “is a pleading
statute that has no effect on discovery practice in federal
court.”
Indeed, Ward reasoned that, “[i]f application in federal
court would require a showing before net worth discovery is
allowed, the Court finds that there is a conflict between
Federal Rule of Civil Procedure 26(b)(1) and the so-called
discovery aspect of § 768.72(1).”

541 F. Supp. 2d at 1359.

See also Gottwald v. Producers Group I, LLC, No. 12-81297CIV, 2013 WL 1776154, at *3 (S.D. Fla. Apr. 25, 2013) (finding
that

“it

is

clear

that

Section

768.72’s

restriction

on

financial worth discovery conflicts with Rule 26’s mandate of
a broad and liberal discovery regime”); but see Gallina, 2008

12

WL

3895918,

correctly

at

*1

concluded

(finding
that

that

“the

pursuant

to

magistrate
Eleventh

judge

Circuit

precedent, a plaintiff who pleads punitive damages in a
federal diversity action 1 is not required to show evidence in
the record to provide a basis for its demand,” but also
finding that, “[u]nless liability for punitive damages is
established at trial, the discovery sought is not relevant”).
As explained in Ward, “[t]he Federal Rules are not
wanting for procedures to protect parties from vexatious
discovery requests.

The Rules prevent the discovery of

certain information upon a showing of harm to the disclosing
party.”

541 F. Supp. 2d at 1356.

Hill Dermaceuticals does

not claim, for instance, that it is entitled to a protective
order to prevent any “annoyance, embarrassment, oppression or
undue burden or expense” associated with the production of
the requested documents.
Hill

Dermaceuticals

Fed. R. Civ. P. 26(c)(1).

argues

generally

1

that

Rather,

“compelling

Gallina addresses a plaintiff’s duty to provide an
evidentiary basis for its punitive damages demand in the
context of a federal diversity action. 2008 WL 3895918, at
*1. In the present case, the Court’s jurisdiction over Hite’s
state law claims is predicated on supplemental jurisdiction
rather
than
diversity.
Hill
Dermaceuticals
does
not
acknowledge this distinction in its Objections. However, the
Court finds this distinction inconsequential for purposes of
the present analysis.

13

discovery of Defendant’s financial information would permit
Plaintiff

to

conduct

a

vastly

overbroad

and

unwarranted

fishing expedition into Defendant’s confidential financial
information.”

(Doc. # 25 at 11).

“[T]he procedure for discovery in federal court, as
evidenced by Rule 26(b)(1), is aimed at the broad and liberal
discovery of all relevant facts . . . .”
2d at 1355.

Ward, 541 F. Supp.

Furthermore, “[t]he scope of discovery, whether

merits or financial worth, is [ ] within the discretion of
the court.”

Soliday v. 7-Eleven, No. 2:09-cv-807-FtM-29SPC,

2010 WL 4537903, at *3 (M.D. Fla. Nov. 3, 2010).

At this

juncture, the Court does not review anew Hite’s Motion to
Compel, but instead is duty-bound to determine whether Judge
Porcelli’s ruling was either clearly erroneous or contrary to
law.

Given the current state of disagreement among federal

trial courts on the issue of evidentiary prerequisites for
financial
Porcelli’s

worth

discovery,

decision

this

generally

Court

finds

permitting

that

Judge

production

of

financial worth discovery in this case was neither clearly
erroneous nor contrary to law.
C.

Judge Porcelli’s Order Compelling Disclosure of
Financial Statements and Income Documents for the
Years 2008, 2009, 2010, and 2011

14

Hill Dermaceuticals argues that, even if “the Court
finds that discovery of Defendant’s financial information is
appropriate at this point or after its summary judgment
ruling, at a minimum, the Court must significantly limit the
scope of the requested discovery because Judge Porcelli’s
Order requiring production of financial information for the
years of 2008 through 2011 exceeds the proper and allowable
scope of financial worth discovery.”

(Doc. # 25 at 13).

Hite’s response neglects to address this argument.
The Court acknowledges that “[o]nly current financial
documents are relevant to a claim for punitive damages.” Lane
v. Capital Acquisitions, 242 F.R.D. 667, 668 (S.D. Fla. 2005)
(finding a plaintiff’s discovery requests “overbroad on their
face in that some seek financial records for a five year
period and some seek records for an unlimited time period”
and requiring production of financial records for only the
most recent 2.5 years); see also Williams v. South Lubes,
Inc., No. 1:12-cv-180, 2012 WL 6135170, at *2 (N.D. Fla. Dec.
3, 2012) (“Plaintiff’s request for financial data spanning
five years is overbroad.”).

However, the Court additionally

notes that “there is no binding authority limiting discovery
of net worth information to the current one year period.”
Soliday, 2010 WL 4537903, at *3 (finding a three-year period

15

to be reasonable and “well within the sound discretion of the
court”).
The Court notes Hill Dermaceuticals’ failure to raise
this argument in its brief before Judge Porcelli (Doc. # 21
at 9-10), but nonetheless finds it appropriate to narrow the
scope of permissible discovery in this instance, as Hite has
offered

no

financial

explanation
information.

for

seeking

The

Court

nearly

six-year-old

agrees

with

the

abovementioned cases finding a request for financial data
spanning five years to be overbroad; thus, given the principle
that “only current financial documents are relevant to a claim
for punitive damages” – a principle that remains uncontested
by

Hite

–

the

Court

finds

Hite’s

request

for

financial

information from 2008 and 2009, more than four years removed
from

Hill

overbroad.

Dermaceuticals’

current

financial

state, 2

Hite is entitled only to the financial statements

requested from years 2010 and 2011; the Court accordingly

2

Without any indication from the parties as to the accounting
practices of Hill Dermaceuticals, the Court presumes for
purposes of this analysis that the four most recent years of
financial data include the calendar years 2013, 2012, 2011,
and 2010.
As Hite apparently has not requested financial
data for 2012 and 2013, the Court finds discovery of financial
data from only 2010 and 2011 to be appropriate at this time.

16

sustains

Hill

Dermaceuticals’

Objection

to

this

limited

extent.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant’s Objections (Doc. # 25) to the Magistrate
Judge’s November 18, 2013, Order are OVERRULED in part
and SUSTAINED in part as provided herein.

(2)

With regard to Document Request No. 4, Plaintiff is
entitled only to the financial statements requested for
years 2010 and 2011.

Judge Porcelli’s Order (Doc. # 24)

is otherwise AFFIRMED.
DONE and ORDERED in Chambers in Tampa, Florida, this
23th day of December, 2013.

Copies: All Counsel of Record

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