Espinoza et al v. Galardi South Enterprises, Inc. et al

Filing 267

OMNIBUS ORDER on Pending Motions Regarding the Florida Minimum Wage Act's Constitutionality 245 , 249 , and 253 , and Reopening the Case. Signed by Magistrate Judge Jonathan Goodman on 10/12/2017. (jf00)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 14-21244-CIV-GOODMAN
[CONSENT CASE]
JASZMANN ESPINOZA, et al.,
Plaintiffs,
v.
GALARDI SOUTH
ENTERPRISES, INC., et al.,
Defendants.
______________ /
OMNIBUS ORDER ON PENDING MOTIONS
REGARDING THE FLORIDA MINIMUM WAGE ACT (“FMWA”)’S
CONSTITUTIONALITY [ECF NOS. 245; 249; 253] AND REOPENING CASE
MOTIONS RELATED TO THE FMWA’S CONSTITUTIONALITY
Before the Court are several motions concerning Plaintiffs’ ability to now file a
dispositive motion for a determination that certain provisions of the FMWA are
unconstitutional.
Specifically, on May 1, 2017, Plaintiffs filed a motion for a determination that
certain provisions of the FMWA violate Article X, Section 24 and Article I, Section 21 of
the Florida Constitution (the “Motion”). [ECF No. 245]. 1 Defendants moved for the

On April 28, 2017, Plaintiffs originally and improperly filed the motion and its
memorandum of law as exhibits to its motion for leave to file excess pages. [ECF Nos.
240; 240-1; 240-2]. On the same date, the Undersigned granted Plaintiffs’ motion for
excess pages but required Plaintiffs to refile the substantive motion and memorandum
of law as new and separate docket entries. [ECF No. 244]. Plaintiffs did not refile the
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Court to toll its response time to the Motion (“Toll Response Time Motion”) because (1)
Plaintiffs failed to serve its Motion on Florida’s Attorney General, pursuant to Federal
Rule of Civil Procedure 5.1; and (2) the Court had not yet certified to Florida’s Attorney
General that the FMWA’s constitutionality had been questioned, as required by 28
U.S.C. § 2403(B). [ECF No. 249].
The Undersigned then issued, sua sponte, an Endorsed Order that required
Plaintiffs to respond to Defendants’ Toll Response Time Motion and to address:
(1) whether the issues raised in Plaintiffs’ motion must be certified to the
Florida Supreme Court; (2) to describe in detail the dates, times, and
efforts Plaintiffs made to comply with the requirements of Federal Rule of
Civil Procedure 5.1 and Plaintiffs should include copies of the proof of
service as exhibits to their response (either through certified or registered
mail or through the Florida Attorney General’s electronic address); (3)
whether the Court should stay or extend Defendants’ response to
Plaintiffs’ motion because the Court has not yet certified to the Florida
Attorney General under 28 U.S.C. Section 2403(B) that the
constitutionality of the Florida Minimum Wage Act has been questioned;
and (4) whether the Undersigned must strike Plaintiffs’ motion, given the
expired pretrial deadlines in this case.
[ECF No. 251].
On May 11, 2017, Plaintiffs complied with the Undersigned’s Endorsed Order
and filed a response to Defendants’ Toll Response Time Motion. [ECF No. 254]. On May
15, 2017, Defendants filed a reply to Plaintiffs’ response. [ECF No. 258].

motion and memorandum until May 1, 2017. [ECF Nos. 245; 246]. Thus, the
Undersigned deems May 1, 2017 as the Motion’s operative filing date.
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On May 11, 2017, Plaintiffs also filed a motion for leave of court to file a
supplemental response to Defendants’ motion for partial summary judgment [ECF No.
196] limited to the issue of the FMWA’s constitutionality (“Supplemental Response
Motion”). [ECF No. 253]. Defendants responded in opposition to Plaintiffs’
Supplemental Response Motion. [ECF No. 259]. Plaintiffs did not file a reply to
Defendants’ response.
On June 14, 2017, the Court certified to Florida’s Attorney General that Plaintiffs
challenged the FMWA’s constitutionality and required the State to “notify the Court by
appropriate filing of whether it intends to intervene.” [ECF No. 260]. The Court also
stayed the case until October 2017, pending the State’s possible intervention. [ECF No.
261]. On August 18, 2017, Florida’s Attorney General indicated that the State will not
intervene in this case. [ECF No. 262]. As a result, the Court deems it appropriate to
reopen the case at this juncture.
The Court has now reviewed all the pending motions and related filings
regarding the FMWA’s constitutionality and the record, and for the reasons outlined
below, the Undersigned strikes Plaintiffs’ Motion as untimely [ECF No. 245], denies as
moot Defendants’ Toll Response Time Motion [ECF No. 249], because Plaintiffs’ Motion
is now stricken, and denies Plaintiffs’ Supplemental Response Motion. [ECF No. 253].

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RELEVANT PROCEDURAL BACKGROUND TO PENDING MOTIONS
Plaintiffs’ Motion, currently before the Court, is not the first time Plaintiffs have
challenged the FMWA’s constitutionality in this case. In fact, on June 10, 2014, Plaintiffs
filed a motion for determination that certain provisions of the FMWA violate Article X,
Section 24 and Article I, Section 21 of the Florida Constitution and a motion for leave to
file excess pages to the supporting memorandum. [ECF Nos. 43-45]. On June 11, 2014,
United States District Judge Jose E. Martinez struck Plaintiffs’ first motion based on
Plaintiffs’ failure to comply with Local Rule 7.1, as Plaintiffs’ motion failed to include a
good faith conferral certificate, and denied Plaintiffs’ motion for excess pages. [ECF
Nos. 50-51].
After the parties consented to full magistrate judge jurisdiction, on May 12, 2015,
the Court entered a pre-trial and trial scheduling order that set a dispositive motion
deadline of January 11, 2016. [ECF No. 184].
On February 5, 2016, the Court granted Defendants’ motion to stay the case
pending resolution of the interlocutory appeal of this Court’s Order denying Defendant
Fly Low Inc.’s motion to compel arbitration. [ECF Nos. 191; 198; 216].
In that 12-page Order, the Court stated: “Within fourteen (14) days of the
Eleventh Circuit’s issuance of a decision on Defendants’ appeal of its motion to enforce
arbitration, the parties shall jointly file a notice of the result and providing their

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positions on reopening the case and the issuance of a proposed amended trial
scheduling order.” [ECF No. 216, pp. 11-12].
On June 1, 2016, the Eleventh Circuit entered a one-sentence Order, granting
Appellees’ (i.e., Plaintiffs) motion to dismiss the appeal as moot. But the parties did not
file a joint notice of this result.
On January 10, 2017, however, an attorney representing Plaintiffs telephoned
chambers and spoke to the law clerk now assigned to this case, and asked about the
case’s status and when the Court planned to reopen the case. See [ECF No. 219].
On January 25, 2017, the Undersigned held a telephonic status conference, where
several issues were discussed in the aftermath of the Eleventh Circuit’s Order
dismissing as moot Defendants’ interlocutory appeal. [ECF No. 224].
In a post-hearing Order, the Court rescheduled the case for trial and reset several
pretrial deadlines. [ECF No. 223]. Specifically, the post-hearing Order stated that
Defendants had until Friday, May 12, 2017, to file optional replies to Plaintiffs’ response
to Defendants’ motion for partial summary judgment (ECF No. 196). [ECF No. 223]. On
May 12, 2017, Defendants did in fact file their reply to Plaintiffs’ response to
Defendants’ motion for partial summary judgment (ECF No. 196). [ECF No. 256].
The Undersigned’s post-hearing Order also stated that “[a]ll other deadlines,
other than the ones specifically listed here, which previously expired under the earlier
trial scheduling order, remain expired. Therefore, the deadline to file any additional
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summary judgment motions, for example, has already expired.” [ECF No. 223, p. 6, n.
1].
ANALYSIS
The Motion [ECF No. 245] and Toll Response Time Motion [ECF No. 253]
After reviewing the record, it is clear that Plaintiffs did not refile their June 10,
2014 motion for determination that certain provisions of the FMWA violate Article X
Section 24 and Article I Section 21 of the Florida Constitution until May 1, 2017, the
Motion’s filing date. [ECF No. 245]. This is almost three years later.
As a result, the Motion violates both this Court’s original trial scheduling Order’s
January 11, 2016 dispositive motion deadline and the post-hearing Order that clarified
that previously expired deadlines under the earlier trial scheduling Order remain
expired. [ECF Nos. 184; 223, p. 6, n. 1]. The Court’s Orders’ clear language leaves no
doubt that dispositive motions, such as Plaintiffs’ Motion regarding the FMWA’s
constitutionality, are not permitted at this stage of the case. [ECF Nos. 184; 223].
The parties agree that the Motion is untimely. [ECF Nos. 254, pp. 4-5; 259, p. 1].
Plaintiffs even concede that its “current motion should have been filed by January 11,
2016, the date established for filing of ‘summary judgment or other dispositive motions’
in the May 12, 2015 Scheduling Order [ECF 184][.]” [ECF No. 254, pp. 4-5].
However, Plaintiffs argue that “under the circumstances presented in this case,
the Court need not and should not strike the motion. To do so would elevate form over
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substance.”[ECF No. 254, p. 5]. Specifically, Plaintiffs claim that the Court should
disregard the violations of the Court’s scheduling Orders and the untimeliness of
Plaintiffs’ Motion because (1) Judge Martinez’s original order striking its motion was
erroneous; (2) Plaintiffs’ Motion and its corresponding memorandum are the exact
replicas of the June 10, 2014 filings; (3) resolution of Defendants’ partial summary
judgment motion [ECF No. 196] is dependent on a determination of the FMWA’s
constitutionality; and (4) the trial is not scheduled until “January 18, 2018.” 2 [ECF No.
254, pp. 5-6].
Federal Rule of Civil Procedure 16(b)(4) states: “A [trial] schedule may be
modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4).
“This good cause standard precludes modification unless the schedule cannot ‘be met
despite the diligence of the party seeking the extension.’” Sosa v. Airprint Sys., Inc., 133
F.3d 1417, 1418 (11th Cir. 1998) (quoting Fed. R. Civ. P. 16 advisory committee note)
(internal citation omitted).
Here, Plaintiffs are seeking a de facto extension of time to file a dispositive
motion, but do so without providing any reason whatsoever, let alone good cause,
explaining why they waited so long to refile the original June 10, 2014 motion. If it is
true that the original motion and memorandum are indeed replicas of the current
Motion and memorandum, then all that Plaintiffs had to do was update the date and
This January 18, 2018 trial date cited by Plaintiffs is erroneous. Trial is actually
set for January 8, 2018. [ECF No. 223].
2

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upload the documents on CM/ECF. This was a six-minute, or .1 billing entry endeavor,
which certainly does not justify the three-year delay.
Rather than setting forth good cause for its delay as required by Rule 16,
Plaintiffs instead argue that Judge Martinez’s decision striking its original order was
erroneous. Even if the Court disagreed with Judge Martinez’s Order, which it is without
jurisdiction to do, Plaintiffs’ actions in this case have been anything but diligent. It
appears that Plaintiffs simply forgot about the existence of this FMWA motion
altogether -- just as they forgot about the need to alert chambers about the dismissal of
the interlocutory appeal.
Therefore, Plaintiffs have failed to meet their burden to prove that they could not
meet the dispositive motion deadline in the original trial scheduling Order despite their
diligence. Because of this, the Court finds that Plaintiffs’ Motion is untimely.
It is true that Plaintiffs’ response to Defendants’ partial summary judgment
motion [ECF No. 196] does address the issue of the FMWA’s constitutionality.
However, the fact that Plaintiffs have not briefed this issue as thoroughly as they would
like to, based on their lack of diligence to timely refile their original FMWA motion, is
an error entirely of Plaintiffs’ own doing. See Terrill v. Electrolux Home Products, Inc., No.
CV 108-030, 2010 WL 11492278, at *2 (S.D. Ga. May 24, 2010) (denying the defendant’s
motion to compel as untimely because the defendant failed to show good cause to alter
scheduling deadlines, and finding that the “fact that Defendant failed to pursue
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discovery on class certification was by its own choice. In other words, Defendant chose
to ignore the scheduling deadlines at its own peril.”).
Although Plaintiffs argue that there is ample time for the Court to rule on the
Motion because trial is not until January of 2018, the Court disagrees. After certifying
the constitutional challenge to Florida’s Attorney General, the Court needed to stay the
case pending the State’s decision on whether to intervene. Given this necessary delay,
trial begins in three months. The Undersigned and my law clerk would be prejudiced
by permitting Plaintiffs to file their untimely Motion -- because it would leave the Court
with inadequate time to rule on this dispositive Motion.
At the last hearing in which the Court continued the special set trial, I specifically
advised counsel about the link between the special set trial date and the deadlines for
filing dispositive motions. I carefully explained that I would need at least three months
after a summary judgment motion (or other case-dispositive motion) was fully ripe to
review, research, draft and issue an order. Even if I were to permit the filing of the
untimely Motion, which the Court will not do, by the time it is ripe, it would be too
close to the trial date to enable an adequate review of the issues.
Therefore, the Court strikes the Motion with prejudice, which means that
Plaintiffs are not permitted to refile the Motion. Because the Undersigned strikes
Plaintiffs’ Motion, Defendants’ Toll Response Time Motion is denied as moot.
Supplemental Response Motion
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Plaintiffs seek leave of Court to supplement their 10-page response to
Defendants’ motion for partial summary judgment, which Plaintiffs filed on April 28,
2017, with their 40-page memorandum on the FMWA constitutionality issue. [ECF Nos.
196; 242; 253]. The Supplemental Response Motion is Plaintiffs’ second bite of the apple
to refile the FMWA memorandum. Essentially, if the Court finds that the Motion is
untimely, which it did, then Plaintiffs are seeking another avenue to beef up their
FMWA analysis and circumvent the local rules’ page limit for filing responses to
motions.
On May 12, 2017, Defendants filed their reply to Plaintiffs’ response, which was
permissible and timely pursuant to the Court’s post-appeal hearing Order. [ECF Nos.
223; 256].
In Plaintiffs’ Supplemental Response Motion, they argue that the Supplemental
Response, i.e. the 40-page FMWA memorandum, is synonymous to an out-of-time
response. [ECF No. 253, p. 3]. The Court disagrees as Plaintiffs’ original response was
not untimely. More accurately, Plaintiffs are seeking to supplement or amend the
original, timely response with additional arguments.
The Undersigned has broad discretion on whether to permit an amendment to a
party’s filing. 5 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE

AND

PROCEDURE § 1194, at 65 (3d ed. 2004); see also Factory Direct Tires, Inc. v. Cooper Tire &
Rubber Co., No. 3:11CV255/RV/EMT, 2012 WL 2873232, at *2 (N.D. Fla. June 13, 2012),
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report and recommendation adopted, 2012 WL 2873153 (N.D. Fla. July 12, 2012) (internal
citation omitted).
When determining whether to permit an amendment to a party’s filing, the
Court considers: (1) whether the adverse party will be prejudiced by the amendment;
(2) whether the “amendment is necessary to insure that the case is adjudicated fairly
and justly;” and (3) whether the amendment will help resolve the litigation at an early
date. Factory Direct Tires, 2012 WL 2873232, at *1 (internal quotation omitted).
Here, the 40-page amendment will prejudice Defendants because they have
already replied to Plaintiffs’ response and would not have the opportunity to respond
to Plaintiffs’ additional arguments. The amendment is not necessary to insure that the
case is adjudicated fairly because Plaintiffs still raised the issue of the FMWA’s
constitutionality in their response to Defendants’ partial summary judgment motion.
Thus, the issue has been briefed, although it may not be briefed to the extent that
Plaintiffs desire.
Furthermore, the amendment will not help resolve the litigation at an early date.
In fact, it would do the opposite, and unduly delay this case. This is because, by
permitting the amendment, the Court would need to give Defendants time to amend
their reply to address Plaintiffs’ additional arguments raised in the amendment. This
would vitiate Defendants’ partial summary judgment motion’s ripe status, and, as a

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result, prejudice the Court by not giving it sufficient time to rule on the motion before
trial.
For these reasons, the Court denies Plaintiffs’ Supplemental Response Motion.
[ECF No. 253].
CONCLUSION
Accordingly, the Undersigned strikes Plaintiffs’ Motion [ECF No. 245], denies as
moot Defendants’ Toll Response Time Motion [ECF No. 249], and denies Plaintiffs’
Supplemental Response Motion. [ECF No. 253].
DONE and ORDERED in Chambers, in Miami, Florida, on October 12, 2017.

Copies furnished to:
All Counsel of Record

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