Aguilar v. United Floor Crew, Inc et al

Filing 54

ORDER GRANTING 50 DEFENDANTS' MOTION TO COMPEL AND FOR SANCTIONS. Signed by Magistrate Judge Alicia O. Valle on 4/2/2015. (ms01)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 14-CV-61605-BLOOM/VALLE
RAUL AGUILAR,
Plaintiff,
vs.
UNITED FLOOR CREW, INC.,
DENNIS LARIOS, PRESIDENTE
SUPERMARKET #18, and
PRESIDENTE SUPERMARKET #27,
Defendants.
/
ORDER GRANTING DEFENDANTS’
MOTION TO COMPEL AND FOR SANCTIONS
THIS MATTER is before the Court on Defendants United Floor Crew, Inc. and Dennis
Larios’ (the “UFC Defendants”) Motion to Compel and for Sanctions (“Motion”) (ECF No. 50).
The Court has reviewed the Motion, Plaintiff’s Response (ECF No. 52), the UFC Defendants’
Reply (ECF No. 53), and is otherwise duly advised in the premises.
I.

BACKGROUND

This is a Fair Labor Standards Act (“FLSA”) 1 case in which Plaintiff has sued Defendants
under federal and state law to recover alleged unpaid minimum and overtime wages. See Second
Amended Complaint (ECF No. 30). On March 3, 2015, the UFC Defendants noticed Plaintiff’s
deposition for Monday, March 23, 2015 at 10:00 a.m. in the UFC Defendants’ counsel’s office.
(ECF No. 50-1). All the required deposition participants were present at that date and time, except
Plaintiff. (ECF No. 50 at 1). Indeed, the UFC Defendants’ counsel, Plaintiff’s counsel, the
Presidente Defendants’ counsel, a court reporter, and an interpreter all were present in the UFC
1

29 U.S.C. §§ 201 et seq.

Defendants’ counsel’s office on March 23, 2015 at 10:00 a.m. for the deposition. Id. Only Plaintiff
was missing. Id. After waiting forty minutes for Plaintiff to arrive, the UFC Defendants’ counsel
concluded the deposition. Id. at 1-2; see also Certificate of Nonappearance (ECF No. 50-2).
As a result of Plaintiff’s failure to appear for his deposition, the UFC Defendants’ counsel
claims that he lost an hour of his time and his clients incurred court reporter and translator fees
totaling $323.50. (ECF No. 50-3). The UFC Defendants thus move for an order compelling
Plaintiff to appear at his rescheduled deposition on April 9, 2015 in the UFC Defendants’ counsel’s
office, as well as an award of their fees and costs for the missed deposition and filing this Motion.
(ECF No. 50 at 2). Plaintiff opposes the Motion.
II.

DISCUSSION

Under Federal Rule of Civil Procedure 37(d)(1)(A)(i), a court may order sanctions if “a
party . . . fails, after being served with proper notice, to appear for that person’s deposition.”
Additionally, “the court must require the party failing to act, the attorney advising that party, or both
to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the failure
was substantially justified or other circumstances make an award of expenses unjust.” FED. R. CIV.
P. 37(d)(3).
In this case, Plaintiff does not argue that the deposition was improperly noticed. Nor does
Plaintiff dispute that he failed to appear for his deposition. What Plaintiff argues, instead, is that he
did not fail to appear “in a sanctionable manner.” (ECF No. 52 at 2). According to Plaintiff, he was
merely “lost and in continuous communication with [his counsel] trying to find the building,” and
that Plaintiff’s counsel found him “approximately 1 hour and 15 minutes past the scheduled
deposition time,” but by that time defense counsel said it was too late to go forth with the
deposition. Id. at 1-2. Taking Plaintiff at his word, that still does not change the fact that Plaintiff
never showed up for his deposition, that the deposition participants waited forty minutes for
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Plaintiff to arrive, and that the UFC Defendants incurred fees and costs in connection with the
missed deposition.

The undersigned thus concludes that Plaintiff’s failure to appear was not

substantially justified and that the circumstances make the award of expenses just.
Accordingly, it is hereby ORDERED AND ADJUDGED that the UFC Defendants’ Motion
to Compel and for Sanctions is GRANTED. Plaintiff shall pay the UFC Defendants $500.00 by
May 2, 2015 to defray their fees and costs in connection with the missed deposition and the filing of
their Motion.
In addition, Plaintiff shall appear for deposition at the UFC Defendants’ counsel’s office on
April 9, 2015 at a time to be agreed upon by the parties.
DONE AND ORDERED in Chambers at Fort Lauderdale, Florida, on April 2, 2015.

____________________________________
ALICIA O. VALLE
UNITED STATES MAGISTRATE JUDGE
Copies provided to:
The Honorable Beth Bloom
All counsel of record

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