Cazorla Salinas v. Weinkle et al

Filing 39

ORDER granting in part and denying in part Plaintiff's 33 Motion to Strike Defenses, for Santions, and to Compel Mediation. Please see Order for details. Signed by Magistrate Judge Alicia O. Valle on 8/18/2015. (ms01)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 14-CV-62481-BLOOM/VALLE
ISABEL TARCILA CAZORLA SALINAS,
Plaintiff,
vs.
BARNEY WEINKLE and ILENE WEINKLE,
Defendants.
_______________________________________/
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION TO STRIKE DEFENSES,
FOR SANCTIONS, AND TO COMPEL MEDIATION
THIS MATTER is before the Court on Plaintiff’s Motion to Strike Defenses, for
Sanctions, and to Compel Mediation (the “Motion”) (ECF No. 33). United States District Judge
Beth Bloom has referred all discovery matters to the undersigned for appropriate disposition.
See (ECF No. 17). The Court has reviewed Plaintiff’s Motion, the pro se Defendants’ Response
(ECF No. 37), and the applicable law, and is otherwise duly advised in the premises.
Accordingly, for the reasons set forth below, Plaintiff’s Motion is GRANTED IN PART AND
DENIED IN PART.
BACKGROUND
This is a Fair Labor Standards Act case. See (ECF No. 1). Plaintiff has sued Defendants
for unpaid minimum and overtime wages during her employment as Defendants’ housekeeper.
See id. Defendants have denied liability and asserted a counterclaim against Plaintiff for breach
of the implied covenant of good faith and fair dealing. (ECF No. 8). Defendants are proceeding
pro se.

In her Motion, Plaintiff seeks sanctions against Defendants for failing to attend their
depositions on June 8, 2015 and the court-ordered mediation on June 10, 2015. Pursuant to the
parties’ agreement, (ECF No. 25), the Court issued an order scheduling mediation with Bruce
Alexander on June 10, 2015. (ECF No. 27). On that day, Plaintiff, her counsel, and the mediator
all appeared for mediation. (ECF No. 33 at 3). Defendants, however, did not show up. After
waiting for fifteen minutes, Plaintiff’s counsel called Defendants, who advised that they were not
aware of the mediation and thus would not be attending. Id. The mediator then filed a report
indicating that Defendants had “failed to appear at mediation.” (ECF No. 32).
Plaintiff’s counsel also claims that she noticed Defendants’ depositions for June 8, 2015.
(ECF No. 33 at 2-3). According to Plaintiff’s counsel, she informed Defendants that they needed
to appear for their depositions on June 8th, unless they committed to being deposed on June 25th,
their preferred date. Id. Because Defendants purportedly never confirmed that they would
appear for deposition on June 25th, Plaintiff’s counsel went forward with the depositions on
June 8th. Id. But Defendants did not show up. (ECF No. 33-1).
In response, Defendants state that they missed the mediation on June 10, 2015 due to a
“scheduling error.” (ECF No. 38 at 1). Nevertheless, Defendants claim that they “immediately
made [themselves] available to reschedule” the mediation at Plaintiff’s convenience.
Defendants also explain that they have since appeared for the depositions.

Id.

According to

Defendants, Plaintiff is simply attempting to portray them as noncompliant and take advantage of
their pro se status. Id.
DISCUSSION
“The striking of affirmative defenses is a ‘drastic remedy’ generally disfavored by
courts.” Pujals ex rel. El Rey De Los Habanos, Inc. v. Garcia, 777 F. Supp. 2d 1322, 1327 (S.D.

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Fla. 2011) (citations omitted). However, under Local Rule 16.2(e), the “[f]ailure to comply with
the attendance . . . requirements [of mediation] may subject a party to sanctions by the Court.”
Likewise, 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.”
In this case, the Court ordered mediation for June 10, 2015 based on the parties’
agreement, but Defendants failed to appear. (ECF Nos. 25, 31, and 32). Accordingly, the Court
finds that sanctions are appropriate. However, the Court finds that sanctions are not appropriate
in connection with the missed June 8, 2015 depositions. Mindful that Defendants are proceeding
pro se, Plaintiff has not submitted any evidence establishing that Defendants were given “proper
notice” of the depositions. Rather, Plaintiff’s counsel merely claims that she sent a Notice of
Depositions to Defendants (on an unknown date, to an unknown place, and in an unknown
manner), scheduling their depositions for June 8, 2015. (ECF No. 33 at 2-3). Without any
evidence that the pro se Defendants were actually given proper notice, the Court declines to
sanction Defendants for failing to appear for the depositions.
Accordingly, it is hereby ORDERED AND ADJUDGED that Plaintiff’s Motion to
Strike Defenses, for Sanctions, and to Compel Mediation (ECF No. 33) is GRANTED IN
PART AND DENIED IN PART as follows:
(1)

The Motion is GRANTED insofar as Plaintiff seeks to compel Defendants’

appearance at mediation and seeks sanctions for Defendants failure to appear at the court-ordered
mediation. The parties shall confer and schedule a time, date, and place for mediation on or
before August 21, 2015, and shall file a notice with the Court indicating the same.

The

mediation shall take place no later than August 30, 2015, and the parties shall file a mediation

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report within seven (7) days of the mediation. Additionally, by September 25, 2015, Defendants
shall reimburse Plaintiff for the full cost of the June 10, 2015 mediation.
(2)

Plaintiff’s Motion to strike Defendants’ affirmative defenses, compel their

attendance at future depositions, and for an award of fees and costs in connection with the
missed depositions is DENIED.
DONE AND ORDERED in Chambers at Fort Lauderdale, Florida, on August 18, 2015.

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

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