Perez v. Mediglez Wellness Center, Inc. et al
Filing
26
ORDER: Defendant Julio Gonzalez is DIRECTED to serve on Plaintiff and file with the Court, on or before July 31, 2013, a Verified Summary of all hours worked by Plaintiff during each relevant pay period, the rate of pay, and the wages paid, includin g overtime pay, if any. Defendant Julio Gonzalez is DIRECTED to notify the Court, on or before July 31, 2013, as to whether he intends to defend against this action pro se. Failure to timely respond to this Court's Order will result in the imposition of sanctions. Signed by Judge Virginia M. Hernandez Covington on 7/18/2013. (LRM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
EVELIN Y. PEREZ,
Plaintiff,
v.
Case No. 8:12-cv-2751-T-33EAJ
MEDIGLEZ WELLNESS CENTER, INC.,
and JULIO GONZALEZ,
Defendants.
________________________________/
ORDER
This
Defendant
matter
Julio
comes
Gonzalez
before
has
the
failed
Court
to
sua
comply
sponte.
with
the
Court‟s FLSA Scheduling Order (Doc. # 9) and the Court‟s
Order directing compliance with the FLSA Scheduling Order
(Doc. # 13). Gonzalez has also failed to respond to this
Court‟s direction to notify the Court whether he intends to
obtain legal counsel or to defend against this action pro
se. Accordingly, the Court directs Gonzalez to comply with
the
FLSA
Scheduling
Order
on
or
before
July
31,
2013.
Gonzalez is further directed to notify the Court, on or
before July 31, 2013, regarding his intent to proceed in
this action.
Discussion
On
January
2,
2013,
this
Court
entered
its
FLSA
Scheduling Order. (Doc. # 9). Plaintiff complied with the
Order by filing her Answers to the Court's Interrogatories
on
January
Mediglez
31,
2013.
Wellness
(Doc.
Center
#
and
12).
However,
Defendants
Julio
Gonzalez
failed
to
comply with the Order's requirement that "[n]o later than
fifteen (15) days after Plaintiff(s) file(s) Answers to the
Court's
Interrogatories,
Defendant(s)
shall
serve
on
Plaintiff(s) and file with the Court a Verified Summary of
all hours worked by Plaintiff(s) during each relevant pay
period, the rate of pay and wages paid, including overtime
pay, if any." (Doc. # 9 at ¶ 2).
Accordingly, on February 21, 2013, the Court directed
Defendants
“to
serve
Plaintiff
and
file
with
the
Court
their Verified Summary on or before February 28, 2013 . . .
.” (Doc. # 13 at 1). Additionally, the Court stated, “In
the event that Defendants have also failed to serve on
Plaintiff . . . „a copy of all time sheets and payroll
records that support or relate to the time periods in the
Verified Summary‟ as required by the FLSA Scheduling Order
. . ., Defendants are directed to serve on Plaintiff, on or
before February 28, 2013, a copy of all such time sheets
2
and
payroll
records.”
(Id.
at
2).
Neither
Defendant
complied with the Court‟s Order.
On March 4, 2013, the Honorable Elizabeth A. Jenkins,
United States Magistrate Judge, entered an Order (Doc. #
15) granting the Unopposed Motion to Withdraw as Counsel of
Record
for
LaMontagne,
Defendants
Esq.
on
(Doc.
#
February
14)
26,
filed
by
2013.
Rachel
M.
Accordingly,
Defendants have been unrepresented since that time.
On
April
22,
2013,
the
Court
entered
an
Order,
stating, “Gonzalez is directed to inform the Court that he
intends to proceed in this action pro se or to file a
notice of appearance of new counsel on or before May 3,
2013.”
1
(Doc. # 16 at 4). Gonzalez failed to respond to the
Court‟s Order, and on May 6, 2013,
Plaintiff
moved the
Court to enter default judgment against both Defendants.
(Doc. # 17). The Court denied the motion, stating:
Defendant Mediglez Wellness Center's responsive
pleadings have not been stricken from the record
and, therefore, a Motion for Default Judgment
against Mediglez Wellness Center is inappropriate
at this time. Furthermore, while the Court
In the same Order, the Court also reminded corporate
Defendant Mediglez Wellness Center that, pursuant to Middle
District of Florida Local Rule 2.03(e), a corporation may
appear and be heard only through counsel admitted to
practice in the Court. (Doc. # 16 at 4). As such, the Court
provided Mediglez Wellness a final opportunity to retain
counsel. (Id. at 5).
3
1
certainly
does
not
condone
Defendant
Julio
Gonzalez's failure to respond as the Court
instructed, the Court declines to take the
drastic measure of entering default against him
because of this single incident. Additionally,
Gonzalez, as an individual, has every right to
represent himself in this action. As such, the
Court will not strike his pleadings or enter
default against him merely because he is no
longer represented by counsel.
(Doc.
#
18).
The
Court
subsequently
granted
Plaintiff‟s
motion to strike Mediglez Wellness‟ pleadings (Doc. # 23),
and the Clerk entered default against Mediglez Wellness on
July 12, 2013 (Doc # 25).
As of the date of this Order, Gonzalez has neither
complied with the terms of the FLSA Scheduling Order nor
notified the Court whether he intends to proceed in this
action
pro
se.
While
Gonzalez,
as
an
individual,
is
certainly entitled to represent himself in this case, see
28 U.S.C. § 1654, pro se litigants are subject to the same
law and rules of court as litigants represented by counsel.
See Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989). As
such,
Gonzalez‟s
Court‟s
Court‟s
FLSA
continued
Scheduling
Order
directing
failure
Order
(Doc.
compliance
to
#
comply
with
the
9)
and
with
the
#
13)
is
(Doc.
unacceptable. Pursuant to Federal Rule of Civil Procedure
37, the Court may sanction a party for failure to obey
4
orders such as the Court‟s FLSA Scheduling Order, and the
sanctions may include actions such as striking pleadings or
rendering a default judgment against the disobedient party.
See Fed. R. Civ. P. 37(b)(2).
The Court will afford Gonzalez a final opportunity to
comply with this Court‟s Orders. As such, the Court directs
Gonzalez to serve on Plaintiff and file with the Court, on
or before July 31, 2013, a Verified Summary of all hours
worked by Plaintiff during each relevant pay period, the
rate of pay, and the wages paid, including overtime pay, if
any. Furthermore, Gonzalez is directed to notify the Court,
on or before July 31, 2013, as to whether he intends to
defend against this action pro se. If Gonzalez fails to
timely respond to this Court‟s Order, the Court will impose
sanctions on Gonzalez, including striking his pleadings,
leaving him open to default judgment.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)
Defendant
Julio
Gonzalez
is
DIRECTED
to
serve
on
Plaintiff and file with the Court, on or before July
31, 2013, a Verified Summary of all hours worked by
Plaintiff during each relevant pay period, the rate of
5
pay, and the wages paid, including overtime pay, if
any.
(2)
Defendant
Julio
Gonzalez
is
DIRECTED
to
notify
the
Court, on or before July 31, 2013, as to whether he
intends to defend against this action pro se.
(3)
Failure to timely respond to this Court‟s Order will
result in the imposition of sanctions.
DONE and ORDERED in Chambers, in Tampa, Florida, this
18th day of July, 2013.
Copies:
All Counsel of Record
Mediglez Wellness Center, Inc.
Mr. Julio Gonzalez
6
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