Melendres v. Mangual's General Services, Inc. et al

Filing 79

ORDER granting 71 Defendants' Motion in Limine to Exclude Witnesses and Exhibits. Signed by Magistrate Judge Edwin G. Torres on 7/13/2017. (js02)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 15-24691-Civ-KING/TORRES
FRANK BETANCOURT,
Plaintiff,
v.
MANGUAL’S GENERAL SERVICES, INC.,
JOSE E MANUGAL,
Defendants.
______________________________________/
ORDER ON DEFENDANTS’ MOTION
TO EXCLUDE WITNESSES AND EXHIBITS
This matter is before the Court on Mangual’s General Services, Inc. and Jose
E. Mangual’s (collectively, “Defendants”) Motion to Exclude Witnesses and Exhibits
(“Motion”) against Frank Betancourt’s (“Plaintiff” or “Mr. Betancourt”). [D.E. 71].
Plaintiff responded on July 10, 2017. [D.E. 74]. Therefore, Defendants’ Motion is
now ripe for disposition.1

After careful consideration of the Motion, response,

relevant authority, and for the reasons discussed below, Defendants’ Motion is
GRANTED.

On July 5, 2017, the Honorable James Lawrence King referred Defendants’
Motion to the undersigned Magistrate Judge for disposition. [D.E. 72].
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I.

BACKGROUND

This lawsuit was originally filed by Jorge R. Melendres on December 21,
2015, alleging unpaid overtime under the Fair Labor Standards Act (“FLSA”). An
Amended Complaint was filed on December 29, 2015 adding Mr. Betancourt as a
plaintiff. A Second Amended Complaint was filed on March 10, 2016 in which Mr.
Betancourt added a claim of alleged retaliation under the FLSA.

While Mr.

Melendres is no longer a party to this action, Defendants have denied liability and
maintain that they did not employ Plaintiff.
Specifically, Plaintiff alleges that between the period of June 14, 2014
through January 30, 2016, Plaintiff worked an average of fifty-two (52) hours per
week and was paid an average of $15.00 per hour. Yet, Plaintiff alleges that he was
never paid the extra half time rate for any hours worked over forty (40) hours in a
week as required by the Fair Labor Standards Act. Mr. Betancourt therefore claims
the half time overtime rate for each hour worked above forty (40) hours in a week.
Because he made a demand for his legally mandated unpaid overtime wages and
joined this lawsuit on January 20, 2016, Plaintiff alleges that Defendants
terminated him in violation of 29 U.S.C. 215(A)(3).
In October 2016, Plaintiff moved for leave to file a third amended complaint
to add Lazaro Ortiz (“Ortiz”) as a party to this action. [D.E. 26]. In November 2016,
the Court denied Plaintiff’s motion for leave to amend and noted that “[t]his action
has been pending since December 21, 2015,” holding that Plaintiff failed to show
good cause for the delay in seeking the amendment. [D.E. 30]. Ortiz then filed his
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own action against the same Defendants in Ortiz et al. v. Mangual’s General
Services, Inc. 16-24789-Civ-DPG (the “Ortiz Action”). Yoandris Medina (“Medina”)
later joined that lawsuit as a plaintiff.
At the pre-trial conference, the Court bifurcated the trial to address the issue
of whether Defendants employed Plaintiff (trial on liability) before addressing other
issues (trial on damages) to avoid confusion of the jury. On May 18, 2017, Plaintiff
filed an Amended Exhibit List and Amended Witness List and the parties filed their
Amended Joint Pre-trial Stipulation on May 30, 2017.

[D.E. 66]. The trial on

liability is currently scheduled for two weeks beginning July 24, 2017.
II.

ANALYSIS

Defendants’ Motion seeks to exclude exhibits and witnesses identified in
Plaintiff’s Amended Exhibit list and Amended Witness List.

[D.E. 63-64].

Specifically, Defendants move to exclude: (1) Ortiz, (2) Medina, (3) Defendants’
responses to the First Request for Production served in the Ortiz Action, (4)
Defendants’ responses to the First Request for Admissions in the Ortiz Action, (5)
Defendants’ responses to the First Set of Interrogatories in the Ortiz Action, and (6)
Plaintiff’s reservation of rights to introduce any of the Defendants’ exhibits in the
Ortiz Action.
On February 17, 2016, the Court entered its Scheduling Order in this action
and set March 1, 2017 as the date by which the parties were required to complete
all discovery. [D.E. 15]. In preparation for the pre-trial conference, the parties
prepared and filed [D.E. 58] a joint pre-trial stipulation and attached their
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respective exhibit and witness lists. Defendants contend that this was the first time
– on April 27, 2017 [D.E. 58] – that Plaintiff notified Defendants of the intent to call
Ortiz and Medina as witnesses or use any discovery from the Ortiz Action in this
trial and Defendants purportedly noted their objections to the proposed evidence
accordingly. Because Plaintiff allegedly failed to disclose any of these witnesses or
exhibits, Defendants argue that they must be excluded as a matter of law.
A.

The Exclusion of Ortiz and Medina as Trial Witnesses

Defendants argue that on June 27, 2016, they served their First Set of
Interrogatories to Plaintiff. Specifically, interrogatory 1 asked Plaintiff to identify
all persons he believed may have information or knowledge, or who may possess
any documents, relating to any of the allegations set forth in the complaint or
Defendants’ answer and affirmative defenses.

The interrogatory requested that

Plaintiff identify the substance of the information or knowledge the person may
possess.

Plaintiff responded on July 28, 2016.

In response to interrogatory 1,

Defendants claim that Plaintiff failed to identify either Ortiz or Medina as a witness
relevant to this case.
As the case progressed, Defendants contend that Plaintiff failed to amend or
supplement his response at any point before the close of discovery and never
indicated to Defendants that either individual would be a potential witness. It was
purportedly not until Plaintiff provided his initial trial witness list on April 27, 2017
– after the close of discovery – that Defendants became aware of Plaintiff’s intent to
have Ortiz or Medina testify or to have discovery from the Ortiz Action used in this
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case.

Because Plaintiff allegedly violated Federal Rule of Civil Procedure 26,

Defendants believe that the testimony of Ortiz and Medina must be excluded
because Plaintiff’s omission was not substantially justified or harmless. See FED. R.
CIV. P. 26(e)(1); 37(c)(1) (“If a party fails to provide information or identify a witness
as required by Rule 26(a) or (e), the party is not allowed to use that information or
witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure
was substantially justified or is harmless.”).
Federal Rule of Civil Procedure 26(a)(1)(A) provides that “a party must,
without awaiting a discovery request, provide to the other parties . . . the name . . .
of each individual likely to have discoverable information—along with the subjects
of that information—that the disclosing party may use to support its claims or
defenses.” FED. R. CIV. P. 26. The disclosing party is under a continuing obligation
to “supplement or correct its disclosure or response . . . in a timely manner” if
additional persons become known and that “information has not otherwise been
made known to the other parties during the discovery process or in writing.” FED.
R. CIV. P. 26(e)(1)(A).
As a consequence for violating Rule 26, Rule 37 allows the Court to exclude a
witness as a sanction unless the failure was either substantially justified or
harmless. “The burden of establishing that a failure to disclose was substantially
justified or harmless rests on the nondisclosing party.” Mitchell v. Ford Motor Co.,
318 F. App’x 821, 824 (11th Cir. 2009) (quoting Leathers v. Pfizer, Inc., 233 F.R.D.
687, 697 (N.D. Ga. 2006)). “In addition to or instead of [exclusion], the court, on
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motion and after giving an opportunity to be heard: (A) may order payment of the
reasonable expenses, including attorney’s fees, caused by the failure [to disclose];
(B) may inform the jury of the party’s failure; and (C) may impose other appropriate
sanctions.” FED. R. CIV. P. 37(C). “In determining whether a witness is properly
excluded based on a failure to disclose, the Eleventh Circuit considers: ‘(1) the
importance of the testimony; (2) the reason for the appellant’s failure to disclose the
witness earlier; and (3) the prejudice to the opposing party if the witness had been
allowed to testify.”’ Godwin v. Wellstar Health Sys., Inc., 2015 WL 7313399, at *2
(N.D. Ga. Nov. 19, 2015) (quoting Bearint ex rel. Bearint v. Dorell Juvenile Grp.,
Inc., 389 F.3d 1339, 1353 (11th Cir. 2004)).
Here, Defendant argues that there is no justification for Plaintiff’s failure to
disclose Ortiz or Medina under Rule 26. The fact that Defendants may have been
aware of the existence of Ortiz and Medina as a result of their separately pending
lawsuit purportedly does not excuse Plaintiff from his obligation under the Federal
Rules to identify them as persons with knowledge of the allegations underlying this
action or of providing the substance of their alleged knowledge as it relates to this
case.
Plaintiff’s response is that his failure to disclose Ortiz and Medina as
potential trial witnesses is harmless.

Plaintiff argues that there should be no

surprise in Ortiz’s relevance because Ortiz previously attempted to join this matter
in October 2016. As stated earlier, Plaintiff moved for leave to file a third amended
complaint to add Ortiz as a party to this action. [D.E. 26]. But, in November 2016,
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the Court denied Plaintiff’s motion for leave to amend and noted that “[t]his action
has been pending since December 21, 2015,” holding that Plaintiff failed to show
good cause for the delay in seeking the amendment. [D.E. 30]. Ortiz then filed his
own action against the same Defendants in the Ortiz Action. And Medina later
joined that lawsuit as a plaintiff. As such, Plaintiff contends that Defendants had
adequate time to conduct discovery – based on the awareness of the Ortiz Action –
and that the testimony of Ortiz and Medina is critical to the issues presented.
As a separate argument, Plaintiff argues that Local Rule 26.1(g) required
defense counsel to file their Motion within thirty days after it learned of the alleged
deficiency.

Plaintiff contends that the original pretrial stipulation was filed on

April 27, 2017 and that both Ortiz and Medina were listed in the attached witness
lists.

Because Defendants’ Motion was not filed until June 30, 2017, Plaintiff

argues that Defendants have failed to comply with the time frame set forth in the
Local Rules and that Defendants never sought an enlargement. As such, Plaintiff
suggests that Defendants’ Motion can be summarily denied because it is untimely.2
There is no dispute that Defendants did not become aware of Plaintiff’s intent
to disclose Ortiz or Medina until April 27, 2017 – after the deadline for motion
practice passed on March 6, 2017. According to the Court’s Scheduling Order, the
Defendants’ response, with respect to the timeliness of their Motion, is that
there is no dispute that the motion deadline in this action passed on March 6, 2017.
However, Defendants note that they could not have moved to exclude evidence that
it was not aware Plaintiff intended to use until on or about April 27, 2017. As such,
Defendants believe there is good cause for the relief requested and that, at the
pretrial conference, the Court discussed some of the proposed evidence and
suggested that the parties would likely need to brief evidentiary issues as it relates
to these untimely disclosed witnesses.
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2

Court ordered that “[a]ll unresolved motions will be considered and ruled upon at
the pre-trial conference” on May 9, 2017. [D.E. 15]. During the pre-trial conference,
Defendants suggested that the Court discussed some of the proposed evidenced and
listened to the parties’ objections as to some of the evidence to be presented at trial.
The Court purportedly noted that the parties would likely need to brief outstanding
evidentiary issues, which may explain why Defendants’ Motion was not filed until
June 30, 2017.
However, it is still not entirely clear as to why Defendants waited so long
after discovering Plaintiff’s omission on April 27, 2017 and the Court’s pre-trial
conference on May 9, 2017 to file their Motion. In any event, the Court has the
discretion to bypass the Local Rules and consider a motion even if it is filed
untimely. See, e.g., Buja v. Novation Capital, LLC, 2016 WL 9026498, at *2 (S.D.
Fla. Dec. 27, 2016) (“Plaintiff did technically comply with the Local Rule, and it does
not appear to the Court that he has acted in bad faith. Additionally, Local Rule
26.1(g)(1) provides the Court with discretion when a discovery motion is filed
untimely.”).

In the interests of justice and the lack of bad faith on behalf of

Defendants, the Court finds that the Motion is not barred by Local Rule 26.1(g)(1).
Therefore, we turn our attention to the merits of Defendants’ Motion.
Plaintiff’s position, as it relates to the merits of the untimely disclosure of
Ortiz and Medina, is unpersuasive and the decision in Ross v. Corp. of Mercer Univ.,
506 F. Supp. 2d 1325, 1343 (M.D. Ga. 2007) supports that conclusion. In Ross, the
plaintiff requested that the court allow the deposition transcripts of several
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witnesses to be admitted into evidence despite having failed to identify the
witnesses in her initial disclosures and having failed to supplement them at an
appropriate time.

The plaintiff argued that, although the witnesses were not

disclosed under Rule 26(a)(1), there was no prejudice “due to the fact that the same
attorneys who represent Mercer in the present case acted as counsel in [the case in
which the depositions were taken] and, during the depositions in question, they
were able to cross examine these witnesses.” Id. at 1344. Despite the defendant’s
knowledge of, and participation in the depositions in question, the court held the
plaintiff’s non-disclosure was not harmless because the defendant “did not review
the undisclosed duplicate materials . . . due to their nondisclosure and thus did not
have “the chance to refute the alleged facts set forth therein.” Id.
Furthermore, the decision in Godwin v. Wellstar Health Sys., Inc., 2015 WL
7313399, at *2 (N.D. Ga. Nov. 19, 2015) is equally instructive. In Godwin, the court
granted the plaintiff’s motion in limine to exclude witnesses whom the defendant
failed to disclose in a timely manner and omitted in response to an interrogatory.
The defendant argued in opposition to the motion that the non-disclosure was
harmless because: (1) the witnesses were repeatedly referenced in documents
produced by both parties for use at trial, (2) the witnesses were referenced at
depositions, including by plaintiff’s counsel, and (3) the documents and deposition
testimony showed that the plaintiff knew that the witnesses had relevant
information about the case. See id.

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In granting the plaintiff’s motion in limine, the court held that “[t]he rules
requiring disclosure—which require identification and information about them—
exist to avoid forcing parties into guessing games, and so the parties have the
opportunity to conduct meaningful discovery, including by deposing potential
witnesses.” Id. (citing Nance v. Ricoh Electronics, Inc., 2008 WL 926662, at *3 (N.D.
Ga. Apr. 4, 2008) (finding that a plaintiff’s non-compliance with Rule 26(a) was not
harmless because defendant did not have the opportunity to depose the witnesses);
Ross v. Corp. of Mercer Univ., 506 F. Supp. 2d 1325, 1344 (M.D. Ga. 2007) (holding
that party’s failure to identify witnesses during discovery not harmless because
opposing party “has not had the chance to refute the alleged facts” attested to by
those witnesses)).
The same reasoning applies here. “A party’s identification of a person as
knowledgeable about the facts in a case has unique import, allowing the parties to
focus on those an opposing party and their counsel specifically identify in initial
disclosures and interrogatories.”

Godwin, 2015 WL 7313399, at *2 (emphasis

added). Plaintiff’s failure to timely disclose Ortiz and Medina as trial witnesses is
highly prejudicial to Defendants, especially because these individuals were
disclosed for the first time after the discovery cutoff in this action. Plaintiff also
failed to supplement his interrogatory response, as required by both the Federal
and Local Rules, to notify Defendants of their relevance to the issues presented. In
other words, Plaintiff failed in several ways and presents no persuasive argument
as to how this untimely disclosure is harmless or substantially justified. Plaintiff’s
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omission, if left unresolved, requires Defendants to proceed to trial without the
benefit of any discovery into Ortiz and Medina – including their depositions – to
inquire into their knowledge of the facts in this case and Plaintiff’s alleged
employment with Defendants.
Because it is well established that the mere awareness of individuals in other
actions without any additional specification is insufficient to prevent “procedural
and legal prejudice,” and Plaintiff’s argument has been routinely rejected before in
the cases highlighted above, we hold that the omission of Ortiz and Medina was not
substantially justified or harmless within the meaning of Rule 37. Godwin, 2015
WL 7313399, at *2 (“Failure to identify people with facts about a case results in
procedural and legal prejudice.

This prejudice is made particularly apparent by

Defendant’s failure to update its response to Plaintiff's Interrogatory No. 5, which
required identification of and specification about those knowledgeable about the
facts in the case.”). As such, Defendants’ Motion to exclude Ortiz and Medina as
trial witnesses is GRANTED.
B.

The Exclusion of Discovery Items in the Ortiz Action

Next, Defendants argue that Plaintiff intends to introduce at trial
Defendants’ responses to discovery requests from the Ortiz Action. Beginning with
their discovery responses to Plaintiff’s requests for admission, Defendants argue
that Federal Rule of Civil Procedure 36(b) states that an admission under the rule
is not admissible for any other purpose and cannot be used against a party in any

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other proceeding.

As such, Defendants believe that discovery responses to the

requests for admission in the Ortiz Action are plainly inadmissible.
Defendants further argue that the remaining items that Plaintiff seeks to
introduce should also be excluded. In the Ortiz Action, the plaintiff served written
discovery on Defendants on February 8, 2017 and the responses were due after the
close of discovery in this case on March 1, 2017. By seeking to introduce discovery
obtained in the Ortiz Action after the close of discovery in this case, Defendants
argue that Plaintiff is improperly seeking to circumvent the Court’s Scheduling
Order and discovery deadline.
Furthermore, Defendants contend that there is no basis for revising the
Scheduling Order to extend the discovery deadline – which is purportedly what
Plaintiff is indirectly requesting the Court to do.

Plaintiff allegedly had every

opportunity to conduct discovery and to respond accordingly. Defendant suggests
that Plaintiff never sought an extension to the discovery deadline.

And

unbeknownst to Defendants at the time it was responding to discovery, Plaintiff
purportedly intended to use the discovery responses in this case all along. As such,
Plaintiff allegedly continued developing his case after discovery in this action
closed, while Defendants were purportedly left in the dark as to his plan.
At worst, Defendants label Plaintiff’s approach as deceptive by knowingly
continuing to conduct discovery in the Ortiz Action for the use in this case without
providing notice to Defendants or requesting leave to extend the discovery deadline
in this case. And at best, Defendants believe Plaintiff’s approach was attributable
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to a severe lack of diligence and disregard of the Court’s Scheduling Order. Either
way, Defendants request that the Court exclude the Ortiz materials not merely to
penalize Plaintiff, but also to deter those who might be tempted to engage in similar
conduct in the absence of such a deterrent.
Defendants’ arguments are well taken. Plaintiff offers no persuasive reason
as to why any of the materials responded to in the Ortiz Action should be allowed in
for a substantive purpose in this case, especially when those items were irrefutably
disclosed after the discovery cutoff in this action. Plaintiff merely argues that the
exclusion of these discovery responses should be denied because Defendants’ Motion
is untimely.3
Plaintiff’s position fundamentally undermines the Court’s Scheduling Order
which can only be modified for good cause “and with the judge’s consent.” FED. R.
CIV. P. 16(b)(4). The Scheduling Order made it clear that March 1, 2017 was the
operative date by which all the parties were required to complete discovery. If the
Court allowed the items from the Ortiz Action to be used for a substantive purpose
at trial, it would be highly prejudicial to Defendants and run afoul of the Scheduling
Order without any persuasive justification presented – let alone any good cause.
The Court declines to embark down a path of allowing Plaintiff additional time to
attain discovery items at the detriment of the Defendant. Accordingly, Defendants’

The Court will not rehash the same arguments presented in connection with
the potential untimeliness of Defendants’ Motion. Because the Court exercised its
discretion in bypassing the Local Rules with respect to Ortiz and Medina, the Court
will also do the same for the remaining items in dispute and opine on the merits of
Defendants’ Motion as it relates to the items from the Ortiz Action.
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Motion to exclude the discovery of materials in the Ortiz Action is GRANTED
because “[t]o find otherwise would encourage litigants to routinely disregard
discovery deadlines, and instead seek documents . . . outside of the discovery period
by merely asserting that the documents are necessary for trial preparation.”
Abrams v. Ciba Specialty Chemicals Corp., 265 F.R.D. 585, 589 (S.D. Ala. 2010).
III.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that
Defendants’ Motion to Exclude Witnesses and Exhibits is GRANTED.4 [D.E. 71].
DONE AND ORDERED in Chambers at Miami, Florida, this 13th day of
July, 2017.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge

If the Court granted Defendants’ Motion, Plaintiff requested that he be able
to use Ortiz, Medina, or any of the discovery from the Ortiz Action for the sole
purpose of impeachment. Plaintiff is correct that “Rule 26(a)(3) exempts evidence
used solely for impeachment because pretrial disclosure would significantly
diminish its impeachment value.” Bearint ex rel. Bearint v. Dorell Juvenile Grp.,
Inc., 389 F.3d 1339, 1353 (11th Cir. 2004) (emphasis added) (citing Denty v. CSX
Transp., Inc., 168 F.R.D. 549, 549 (E.D.N.C. 1996)); see also Cooley v. Great S. Wood
Preserving, 138 F. App’x 149, 161 (11th Cir. 2005) (“[O]nly evidence used solely for
impeachment is exempt from the Federal Rules’ disclosure requirement”) (citation
omitted). However, at this stage it cannot be known whether this testimony or
evidence is admissible impeachment. Plaintiff’s request is thus deferred until trial
when a predicate for Plaintiff’s request may be viable.
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