Barnes v. Frameless Shower Doors & Enclosures, Inc. et al
ORDER denying Plaintiff's Motion to Compel Defendants' Video Footage. Signed by Magistrate Judge Alicia O. Valle on 6/4/2015. (ms01)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 14-CV-62243-BLOOM/VALLE
FRAMELESS SHOWER DOORS &
ENCLOSURES, INC. d/b/a THE
ORIGINAL FRAMELESS SHOWER DOORS,
and JOHN SERINO,
PLAINTIFF’S MOTION TO COMPEL DEFENDANTS’ VIDEO FOOTAGE
THIS MATTER is before the Court on Plaintiff’s Motion to Compel Defendants’ Video
Footage (“Motion”) (ECF No. 54). United States District Judge Beth Bloom has referred all
discovery matters to the undersigned for appropriate disposition. (ECF No. 11). The Court has
reviewed the Motion, Defendants Frameless Shower Doors & Enclosures, Inc.’s (“Frameless”)
and John Serino’s Response (ECF No. 57), Plaintiff’s Reply (ECF No. 59), and is otherwise duly
advised in the premises. For the reasons set forth below, Plaintiff’s Motion is DENIED.
This is a Fair Labor Standards Act (“FLSA”) case. Plaintiff has sued Defendants for
allegedly failing to pay her proper overtime wages. See Complaint (ECF No. 1). A central issue
in this case, therefore, is whether Plaintiff worked more than 40 hours per week during her
employment with Frameless from July 21, 2014 to September 29, 2014. See (ECF No. 5-1).
On November 17, 2014, Plaintiff served her First Request for Production of Documents
on Defendants. (ECF No. 54-1). Request Number 11 asked Defendants to produce:
All documents, including but not limited to, correspondence and
communications, memoranda, notes, video or audio recordings,
transcriptions, written statements or other reductions to writings,
between Defendants and any current or former director, officer, or
current or former agent or employee of Defendants before or after
Plaintiff’s employments with Defendants began, regarding
Plaintiff’s employment with Defendants, any allegation contained
in Plaintiff’s Complaint, any response in Defendants’ Answer and
Affirmative Defenses, and any and all subsequent answers and
affirmative defenses filed by Defendants—amended or otherwise.
Id. at 11 (emphasis added). Request Number 12, for its part, asked Defendants to produce:
All documents, including, but not limited to, correspondence and
communications, memoranda, notes, video or audio recordings
transcriptions, written statements or other reductions to writing, of
interviews or conversations with any current or former director,
officer or current or former agent or employee of Defendants,
concerning Plaintiff’s employment with Defendants or the subject
matter of this Action.
Id. at 11-12 (emphasis added). In response to Request Numbers 11 and 12, Defendants stated
“None known.” (ECF No. 54-2 at 3).
On January 7, 2015, Plaintiff deposed Frameless’ corporate representative, Michael High.
(ECF No. 54-3). During the deposition, Mr. High testified that Frameless has 15 or 16 video
cameras on its premises that would show the times when Plaintiff arrived and left work each day.
Id. at 2:10-3:6. Plaintiff’s counsel immediately asked for a copy of all of the video footage
covering Plaintiff’s employment period to evince how many hours Plaintiff worked each day.
Id. at 4:24-5:5, 7:3-14.
Defendants’ counsel, for his part, agreed to produce the footage. 1
Id. at 6:3-4, 9:8-11.
Shortly thereafter, on January 12, 2015, Defendants’ counsel sent Plaintiff’s counsel an
email advising that the cost of compiling and producing the requested video footage would be
Although Defendants dispute that the video is responsive to Request Number 12, see (ECF
No. 57 at 3), the parties agree that the video is responsive to Request Number 11, see (ECF
No. 54 at 2) and (ECF No. 57 at 3).
$9,375.00. (ECF No. 54-4). According to Defendants’ counsel, Plaintiff would have to bear this
cost. Id. This cost was based on a quote Frameless had procured from its IT consultant, Romy
Computer Services, Inc. (“Romy”). (ECF No. 54-5). Romy estimated that it would take around
75 hours (at the rate of $125.00 per hour) to review all the video and document Plaintiff’s “time
in and out.” Id.
Despite receiving Defendants’ counsel’s email on January 12, 2015, Plaintiff’s counsel
did not respond to the email until more than two months later.
See (ECF No. 54-6).
On March 16, 2015, Plaintiff’s counsel emailed Defendants’ counsel:
As you’re aware, I did not request a price quote for Defendants’ IT
consultant to review the video footage. My request for production
requested the actual footage. This is my effort to confer before
moving to compel.
Id. at 1-2. The parties then exchanged several additional emails about the video footage later that
same day, but to no avail. See id.
On April 6, 2015, Plaintiff moved to compel Defendants to produce the video footage
without any prepayment. (ECF No. 54). The Motion is now ripe for adjudication.
Under Local Rule 26.1(i)(1), “motions to compel discovery . . . shall be filed within thirty
(30) days of the occurrence of grounds for the motion. Failure to file a discovery motion within
thirty (30) days, absent a showing of reasonable cause for a later filing, may constitute a waiver
of the relief sought.” S.D. FLA. L.R. 26.1(i)(1). This rule “‘reflects a policy of promoting the
prompt resolution of discovery disputes by requiring the parties to timely bring to the court’s
attention matters that the parties cannot resolve amongst themselves.’” Muzaffarr v. Ross Dress
for Less, Inc., No. 12-61996-CIV, 2013 WL 5311233, at *1 (S.D. Fla. Sept. 23, 2013) (quoting
Manno v. Healthcare Revenue Recovery Grp., LLC, No. 11-61357-CIV, 2012 WL 1409532,
at *2 (S.D. Fla. Apr. 23, 2012)).
What constitutes “the occurrence of grounds” for a motion to compel depends on the
facts of each dispute. See Manno, 2012 WL 1409532 at *2. As then-Magistrate Judge Robin
Rosenbaum has explained, the “occurrence of grounds” for a motion “could be any of several
acts besides service of discovery responses—e.g., a letter from counsel, an e-mail message, a
phone call, or discussions during a deposition.” Id. “[T]he key point is that once a party seeking
discovery learns that the opposing party objects to providing the requested discovery, the first
party must seek relief from the court within thirty days or else be deemed to have waived such
relief.” Id.; see, e.g., Global Satellite Commc'n Co. v. Starmill U.K. Ltd., No. 02-61752-CIV,
2005 WL 5960933, at *2 (S.D. Fla. Nov. 17, 2005) (denying motion to compel for failure to file
within 30 days of the occurrence of grounds for the motion).
In this case, the current discovery dispute arose from Defendants’ demand that Plaintiff
pay Romy $9,375.00 to compile, review, and produce video footage. The occurrence of the
grounds for Plaintiff’s Motion, therefore, was Defendants’ counsel’s email on January 12, 2015,
demanding the prepayment.
Plaintiff thus had thirty days from that date (i.e., until
February 11, 2015) to move to compel production of the video footage. But Plaintiff did not file
her Motion until April 6, 2015—84 days after Defendants’ counsel’s email. See (ECF No. 54).
Consequently, Plaintiff’s Motion is untimely and thus “constitute[s] a waiver of the relief
sought” unless Plaintiff can show “reasonable cause” for the delay.
See S.D. FLA. L.R.
Based on the record before the Court, Plaintiff has not shown reasonable cause for the
84-day delay. For example, despite receiving Defendants’ counsel’s email on January 12, 2015,
Plaintiff’s counsel waited until March 16, 2015—more than two months—to first respond to
Defendants’ demand for prepayment.
Although the parties’ email exchange on January 12,
2015 referenced an agreement to “suspend[ ] the advancement of the litigation pending the
outcome of mediation,” see (ECF No. 54-6 at 2), Local Rule 26.1(i)(1) specifically states that the
deadline for filing discovery motions may not be extended by stipulation. See S.D. Fla. L.R.
26.1(i)(1) (“Neither this thirty (30) day period nor any other Court-ordered scheduling deadlines
may be extended by stipulation.”).
In short, Plaintiff’s counsel has not cited anything in the record to support the 84-day
delay in filing the Motion. Accordingly, because Plaintiff has not shown reasonable cause for
the delay, Plaintiff has waived the relief sought. See, e.g., Procaps S.A. v. Patheon Inc., No. 1224356-CIV, 2014 WL 1237553, at *3 (S.D. Fla. Mar. 26, 2014) (denying motion to compel filed
96 days after the occurrence of grounds for the motion as untimely absent a showing of
reasonable cause for the delay); Muzaffarr, 2013 WL 5311233 at *1 (denying motion to compel
filed 52 days after the occurrence of the grounds for the motion); Manno, 2012 WL 1409532 at
*2 (denying motion to compel filed three days late due to a calendaring error caused by a leap
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that Plaintiff’s
Motion to Compel Defendants’ Video Footage (ECF No. 54) is DENIED.
DONE AND ORDERED in Chambers in Fort Lauderdale, on June 4, 2015.
ALICIA O. VALLE
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
United States District Judge Beth Bloom
All Counsel of Record
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