Ortiz et al v. N.H. Inc. et al
Filing
57
ORDER granting in part and denying in part 34 Plaintiff's Motion to voluntarily dismiss her claims; granting in part and denying in part 42 Plaintiff's Motion to voluntarily dismiss her claims. Signed by Magistrate Judge Edwin G. Torres on 9/27/2017. (js02)
Case 1:17-cv-20169-EGT Document 57 Entered on FLSD Docket 09/27/2017 Page 1 of 15
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-20169-Civ-TORRES
KATHERINE MITCHELL CRUZ ORTIZ,
JOISELYN C ROBLETO, and all others
Similarly situated under 29 U.S.C. 216(b),
Plaintiffs,
v.
N.H. INC. a/k/a MERIDIAN FOOD
MARKET, MONEY GRAM,
MOHAMMED HOSSAIN,
Defendants.
___________________________________________/
OMNIBUS ORDER ON PLAINTIFFS’ MOTIONS
TO DISMISS THEIR CLAIMS WITHOUT PREJUDICE
This matter is before the Court on Katherine Mitchell Cruz Ortiz’s (“Plaintiff
Ortiz”) and Joiselyn C. Robleto (“Plaintiff Robleto”) (collectively, “Plaintiffs”) motions
to voluntarily dismiss their claims without prejudice against N.H. Inc. (“N.H. Inc.”)
a/k/a Meridian Food Market, Money Gram, and Mohammed Hossain (“Defendants”).
[D.E. 34, 42]. Defendants responded to Plaintiffs’ motions on August 8, 2017 [D.E.
35] and August 24, 2017 [D.E. 45] to which Plaintiffs timely replied. [D.E. 37, 50].
Therefore, Plaintiffs’ motions are now ripe for disposition.
After careful
consideration of the motions, responses, replies, relevant authorities, and for the
reasons discussed below, Plaintiffs’ motions are GRANTED in part and DENIED
in part.
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I.
BACKGROUND
Plaintiffs filed this action pursuant to the Fair Labor Standards Act (“FLSA”)
for unpaid overtime wages during their employment as cash checking clerks.
Plaintiff Ortiz seeks unpaid wages from February 20, 2012 through January 9, 2017
and Plaintiff Robleto seeks unpaid wages from June 1, 2012 through January 9,
2017. [D.E. 1]. Plaintiffs simultaneously resigned their employment positions on
January 9, 2017 and filed this action against Defendants on January 13, 2017.
Plaintiffs allege in their statement of claims that they worked sixty-five hours per
week week and that all of the time spent working over forty hours during any
particular week was uncompensated.
On August 7, 2017, Plaintiff Ortiz filed a motion to voluntarily dismiss her
claims without prejudice.
[D.E. 34].
The reason for her motion is because
Defendants have filed criminal charges against Plaintiff Ortiz and a dismissal is
allegedly required to protect her Fifth Amendment rights. Plaintiff Ortiz suggests
that she will be greatly prejudiced if her motion is denied because the criminal
proceedings are related and could force her to violate her constitutional rights.1 For
example, Plaintiff Ortiz does not want to respond to written discovery requests or
participate in depositions because her responses may delve into issues intertwined
with the criminal proceedings that might prejudice her in both actions. Therefore,
Plaintiff Ortiz argues that at the time she initiated this lawsuit, she did not
know that criminal charges had been brought against her and that she only became
aware of these alleged offenses at a later date.
2
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Plaintiff Ortiz requests that we voluntarily dismiss her claims against all
Defendants without prejudice and that each party bears their own fees and costs.2
On August 22, 2017, Plaintiff Robleto filed a substantially similar motion to
voluntarily dismiss her claims against Defendants without prejudice. [D.E. 42].
Plaintiff Robleto presents the same arguments as Plaintiff Ortiz in that the
continuation of this civil case will hinder the related criminal case. Therefore, to
alleviate any potential prejudice, Plaintiff Robleto requests that her claims be
dismissed without prejudice and that each party bear their own fees and costs.
Defendants take issue with Plaintiffs’ motions because Defendants have
incurred significant attorney’s fees and costs in defending this action. Defendants
argue that Plaintiffs took Defendants’ depositions before moving to dismiss this case
and that this wasted Defendants’ time and legal expenses. Defendants also contend
that they have incurred costs opposing several of Plaintiffs’ motions and that the
resources spent on this case necessitate that Plaintiff’s claims be dismissed with
prejudice.
With respect to Plaintiff Ortiz, Defendants are skeptical that she is being
forced to choose between waiving her Fifth Amendment privileges in a criminal case
and pursuing this civil action. Defendants suggest that Plaintiff Ortiz’s true motive
is to alleviate herself from (1) discovery obligations, (2) failures to timely object to
Defendants’ discovery requests, and (3) the consequences of bearing Defendants’ fees
Plaintiff Ortiz notes that should the Court determine that Plaintiff can only
dismiss her claims with prejudice, Plaintiff would reluctantly agree to do so.
3
2
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and costs. Moreover, Defendants argue that Plaintiff Ortiz’s motion must be denied
because a voluntary dismissal without prejudice would be inequitable. Defendants
believe that Plaintiff Ortiz would be allowed to re-file her claim in the future without
having to (1) reimburse Defendants for their attorney’s fees or costs, (2) comply with
discovery obligations, or (3) bear the consequences of failing to timely respond to
discovery. As such, Defendants suggest that Plaintiff Ortiz’s motion is merely an
attempt to “shop” around for a more favorable time to bring her claims so that she
receives a second chance at litigating this case.
As for Plaintiff Robleto, Defendants argue that she has unjustifiably refused to
respond to Defendants’ written discovery requests which, in turn, forced Defendants
to draft and file a motion to compel. After the Court granted Defendants’ motion to
compel and ordered Plaintiff Robleto to appear for her deposition, Defendants
contend that she refused to do so. Instead, Defendants point out that Plaintiff
Robleto filed a motion for protective order at the eleventh hour to evade the Court’s
orders. The motion for protective order was allegedly filed so late that Defendants
were not even aware of it until the morning of the deposition.
As a result,
Defendants argue that they incurred attorney’s fees and costs in preparing for the
deposition, including costs for a court reporter and interpreter.
Defendants suggest that Plaintiff Robleto’s attempt to voluntarily dismiss her
claims is fallacious because she has neither been arrested nor charged with a crime.
Defendants also argue that there is no legal impediment to Plaintiff Robleto’s
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assertion of a Fifth Amendment privilege to discovery requests and in answering
questions at a deposition. Thus, Plaintiff Robleto’s motion would purportedly allow
her to escape all of the expenses that Defendants have incurred and allow her to
simply re-file her action at a later date when it is more convenient to do so. In sum,
Defendants believe that Plaintiff Robleto’s motion cannot be granted because she has
made this action expensive by (1) filing unnecessary motions, (2) stonewalling
discovery, and (3) disobeying Court orders.
Furthermore, Defendants are concerned about the voluntary dismissal of
Plaintiff Robleto’s claims because cell phone companies only preserve records of an
account holder’s calls and text messages for limited periods of time. If Plaintiff
Robleto’s cell phone records show that she was at an entirely different location at the
same time that she alleges she was working “off the clock,” Defendants suggest that
the evidence would be critical to a defense of her claims. As such, Defendants
suggest that dismissal of Plaintiff Robleto’s case without prejudice might result in
the inability to ever obtain the necessary information to defend this action, including
the risk of losing key documents that were previously requested.
II.
ANALYSIS
Rule 41 governs the ability of plaintiffs to dismiss cases without prejudice. In
circumstances where a defendant has not yet filed an answer or a motion for
summary judgment (whichever occurs first), Rule 41 permits plaintiffs to dismiss
cases without prejudice and without leave of court. However, “[o]nce an answer or a
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summary judgment motion has been filed, Rule 41(a)(2) permits a plaintiff to dismiss
voluntarily an action only ‘upon order of the court and upon such terms and
conditions as the court deems proper.”’ Pontenberg v. Boston Sci. Corp., 252 F.3d
1253, 1255 (11th Cir. 2001) (quoting FED. R. CIV. P. 41(a)(2)). Because Defendants
in this case filed an answer long ago [D.E. 9], Plaintiffs may only voluntarily dismiss
this action with court approval. Rule 41 provides, in relevant part, the process in
which plaintiffs may voluntarily dismiss a case:
Except as provided in Rule 41(a)(1), an action may be dismissed at the
plaintiff's request only by court order, on terms that the court considers
proper. If a defendant has pleaded a counterclaim before being served
with the plaintiff's motion to dismiss, the action may be dismissed over
the defendant's objection only if the counterclaim can remain pending
for independent adjudication. Unless the order states otherwise, a
dismissal under this paragraph (2) is without prejudice.
FED. R. CIV. P. 41(a)(2).
When plaintiffs seek court approval for voluntarily dismissing a case, district
courts enjoy broad discretion because the purpose of Rule 41 “is primarily to prevent
voluntary dismissals which unfairly affect the other side, and to permit the
imposition of curative conditions.” Alamance Industries, Inc. v. Filene’s, 291 F.2d
142, 146 (1st Cir. 1961). Hence, district courts should bear in mind the interests of
the defendant because it is the defendant’s interests that must be protected. See
LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 604 (5th Cir. 1976).
“[I]n most cases, a voluntary dismissal should be granted unless the defendant
will suffer clear legal prejudice, other than the mere prospect of a subsequent lawsuit,
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as a result.” McCants v. Ford Motor Co., Inc., 781 F.2d 855, 856-57 (11th Cir. 1986)
(emphasis in original) (citing LeCompte, 528 F.2d at 604); see also Arias v. Cameron,
776
F.3d
1262,
1268
(11th
Cir.
2015)
(“Generally
speaking,
a
motion
for voluntary dismissal should be granted unless the defendant will suffer clear legal
prejudice other than the mere prospect of a second lawsuit.”) (citations omitted).
“The crucial question to be determined is, [w]ould the defendant lose any substantial
right by the dismissal.” Durham v. Florida East Coast Ry. Co., 385 F.2d 366, 368
(5th Cir. 1967). And in answering that question, district courts must “weigh the
relevant equities and do justice between the parties in each case, imposing such costs
and
attaching
such
conditions
to
appropriate.” McCants, 781 F.2d at 857.
the
dismissal
as
are
deemed
However, “it is no bar to a voluntary
dismissal that the plaintiff may obtain some tactical advantage over the defendant in
future litigation.” Id. (citing Durham, 385 F.2d at 368).
The Eleventh Circuit’s decision in Pontenberg v. Boston Sci. Corp., 252 F.3d
1253, 1256 (11th Cir. 2001) is instructive on whether to grant Plaintiffs’ motions. In
Pontenberg, the plaintiff sought to dismiss her cause of action against the defendant
without prejudice and the defendant objected.
The defendant claimed that a
dismissal without prejudice was inappropriate after the discovery period had
expired3 because it had invested considerable resources, financial and otherwise, in
defending the case, including the preparation of a pending summary judgment
Discovery in this case is currently scheduled to close on November 1, 2017.
[D.E. 10].
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3
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motion. The district court found that the defendant had failed to identify clear legal
prejudice and granted the plaintiff’s motion.
However, the district court also
ordered that costs should be assessed against the plaintiff pursuant to Rule 41(d) if
the plaintiff later re-filed her action against the defendant. See FED. R. CIV. P. 41(d)
(“If a plaintiff who previously dismissed an action in any court files an action based
on or including the same claim against the same defendant, the court: (1) may order
the plaintiff to pay all or part of the costs of that previous action”).
On appeal, the Eleventh Circuit held that the district court did not abuse its
discretion in dismissing the lawsuit without prejudice because any practical
prejudice suffered was cured by the court’s condition that the plaintiff pay the
defendant’s costs upon re-filing the lawsuit. The Eleventh Circuit also found that
“[n]either the fact that the litigation ha[d] proceeded to the summary judgment stage
nor the fact that the plaintiff’s attorney ha[d] been negligent in prosecuting the case,
along or together, conclusively or per se establishe[d] plain legal prejudice requiring
the denial of a motion to dismiss.”
Id. (citing Durham, 385 F.2d at 366).
The
Eleventh Circuit has similarly upheld dismissals without prejudice which contained
conditions prohibiting plaintiffs from re-filing their lawsuits unless they paid the
attorney’s fees reasonably incurred by the defendants in defending the dismissed
lawsuit. See Versa Products, Inc. v. Home Depot, USA, Inc., 387 F.3d 1325, 1328-29
(11th Cir. 2004); Roberts Enterprises, Inc. v. Olympia Sales, Inc., 2006 WL 1736761
(11th Cir. June 23, 2006); see also Geary v. WMC Mortg. Corp., Civ. Action 2006 WL
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2532668, *2 (N.D. Ga. 2006) (granting plaintiff's Rule 41(a)(2) “motion only upon the
condition” that plaintiff reimburse defendants’ attorney’s fees reasonably incurred in
defending the lawsuit in the event plaintiff subsequently re-filed her claims against
defendants).
The first question that we must answer is whether Defendants will suffer clear
legal prejudice if we grant Plaintiffs’ motions. In determining whether Defendants
will suffer clear legal prejudice, “‘the Court should consider such factors as the
defendant’s effort and expense of preparation for trial, excessive delay and lack of
diligence . . . in prosecuting the action, insufficient explanation for . . . a dismissal,
and
whether
a
motion
for
summary
judgment
has
been
filed
by
the
defendant.’” Peterson v. Comenity Capital Bank, 2016 WL 3675457, at *1 (M.D. Fla.
May 3, 2016) (quoting Pezold Air Charters v. Phx. Corp., 192 F.R.D. 721, 728 (M.D.
Fla. 2000)).
The first factor weighs in favor of Defendants because they have incurred
considerable fees and expenses in defending this case, including the drafting of
several motions and responses after Plaintiffs failed to comply with the Court’s prior
discovery orders.
4
Yet, we cannot find that Defendants have suffered “clear legal
prejudice” because all of the remaining factors weigh in favor of Plaintiff.
See
Brown v. ITPE Health & Welfare Fund, 2006 WL 2711511, at *3 (M.D. Ala. Sept. 21,
While the first factor appears to favor Defendants, we note that they have not
provided the Court with specific evidence of the amount of time or resources
expended to date. And Defendants have also not necessarily demonstrated that the
work performed in this case would not be of benefit in a subsequent action.
4
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2006) (“The court finds that the arguments of Defendant, which are predicated upon
its time and expenses incurred and Plaintiff's timing in moving for dismissal, do not
constitute clear legal prejudice in light of . . . binding precedent”); Berry v. General
Star National Ins. Co., 190 F.R.D. 697 (M.D. Ala. 2000) (“[M]erely because some
limited discovery has been done in this case does not mean that the Defendant will
suffer plain prejudice, especially when arguments and evidence sought to be
presented by the Defendant in this case can be used by the Defendant if the case is
again filed by the Plaintiff.”).
For example, unlike Pontenberg which had a pending motion for summary
judgment, this case remains in the discovery stage.5 And while Defendants may
believe that Plaintiffs have stonewalled discovery, there is no evidence that Plaintiffs
have failed to diligently prosecute this action, or that they have acted in bad faith.
Moreover, the reason proffered for voluntarily dismissing this case is credible due to
Plaintiffs’ concern over violating their constitutional rights. Although we denied
Plaintiffs’ motion to stay – on the basis that Plaintiffs have the option of invoking the
Fifth Amendment as protection against violating any constitutional rights – that
does not mean that the reasons proffered for wanting to dismiss this action are
Clear legal prejudice is not even necessarily established at the summary
judgment stage unless there is evidence that a plaintiff is acting in bad faith, such as
seeking dismissal solely to avoid an expected adverse ruling. See id. (“[T]he record
indicates that Pontenberg’s voluntary dismissal was not sought solely to avoid an
expected adverse ruling on Boston Scientific's summary judgment motion, but had
been contemplated by Pontenberg even before the summary judgment motion had
been filed.”).
10
5
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insufficient.
Accordingly, we find that Defendants will not suffer clear legal
prejudice to warrant a denial of Plaintiffs’ motions.
Because Defendants will not suffer clear legal prejudice, the next question is
what conditions should be imposed for granting Plaintiffs’ motions to voluntarily
dismiss this action.
See Pontenberg, 252 F.3d at 1258 (finding that Rule 41
expressly “allows the court to prevent prejudice to the defendant in such cases by
attaching conditions to the dismissal.”). Defendants propose several conditions: (1)
that Plaintiffs be required to reimburse Defendants for their reasonable fees and
costs, (2) that Plaintiffs’ voluntary dismissals may be referred to at any trial as a
basis for impeachment, (3) that Plaintiffs be required to appear for deposition
without subpoena on dates and times solely determined by Defendants, (4) that
Plaintiffs be required to provide all documents as requested in Defendants’ request
for production, (5) that Plaintiffs be required to disclose the identity of her cell phone
service provider during the relevant time period and provide their account and cell
numbers in a sworn statement so that a Rule 45 subpoena can be immediately
issued, (6) that Plaintiff Ortiz be required to produce her entire tax returns and the
identity of the banks in which she was either the owner of beneficiary of a bank
account, and (7) that any failure to abide by Plaintiffs to abide by the conditions set
forth above result in Defendants’ ability to obtain entry of final judgment in their
favor.
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Defendants’ proposed conditions go too far.
“In ruling on motions for
voluntary dismissals, the district court should impose only those conditions which
will alleviate the harm caused to the defendant.” LeCompte, 528 F.2d at 604–05
(emphasis added). We find that Plaintiffs’ dismissal without prejudice must be
contingent upon the payment of all taxable costs that Defendants incurred in
defending this action should Plaintiffs later re-file this lawsuit. See Potenberg, 252
F.3d at 1259; Versa Products, Inc., 387 F.3d at 1328.
We also agree with
Defendants that if Plaintiffs refile this action, they must also pay for all reasonable
attorneys’ fees incurred by Defendants in defending this case, including any fees
Defendants recently incurred in attempting to depose Plaintiffs and all
motions/responses that Defendants prepared in opposing Plaintiffs’ attempt to
dismiss this case. See Brown, 2006 WL 2711511, at *3.
By including these two conditions, we accomplish two objectives: (1)
Defendants will be adequately compensated for all reasonable expenses incurred
before dismissal and (2) Plaintiffs will be deterred from engaging in any vexatious
litigation. See Piderit Corp. v. Hartford Cas. Ins. Co., 2014 WL 11910626, at *2
(S.D. Fla. Apr. 9, 2014) (“[T]he purpose of awarding costs under Rule 41(a)(2) is
twofold: to fully compensate the defendant for reasonable expenses incurred before
dismissal and to deter vexatious litigation.”) (quoting Bishop v. W. Am. Ins. Co., 95
F.R.D. 494, 495 (N.D. Ga. 1982)); see also Young v. Roy’s Rest., 2006 WL 2598962
(M.D. Fla. Sept. 11, 2006).
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While taxable costs and attorney’s fees are perhaps the two most common
conditions that courts impose under Rule 41, “[t]he trial judge is not limited to
conditions of payment of costs, expenses[,] and fees.” LeCompte, 528 F.2d at 603.
Rather, “[t]he dismissal may be conditioned upon the imposition of other terms
designed to reduce inconvenience to the defendant.” Id. (citing Eaddy v. Little, 234
F. Supp. 377 (E.D.S.C. 1964) (dismissal conditioned on plaintiff's production of
certain
documents); Goldlawr,
Inc.
v.
Shubert,
32
F.R.D.
467
(S.D.N.Y.
1963) (dismissal without prejudice conditioned on plaintiff covenanting not to sue
defendants, where a dismissal with prejudice might have adversely affected
plaintiff's related litigation); Stevenson v. United States, 197 F. Supp. 355 (M.D.
Tenn. 1961) (dismissal conditioned upon the production of documents, certain
witnesses at trial, and costs of witnesses)).
“Other conditions could include making available to defendant at second suit
certain records, producing certain witnesses at trial, and paying one-half cost of
defendant bringing in other witnesses.” Bechuck v. Home Depot U.S.A., Inc., 814
F.3d 287, 298 (5th Cir. 2016) (quotation marks and citation omitted).6 As such, the
only remaining condition that we will impose is the complete preservation of all
documents requested in Defendants’ prior requests for production, including cell
See also 9 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE
PROCEDURE § 2366 (3d ed. 2008) (explaining that in addition to requiring the
payment of costs, a court can condition voluntary dismissal on “the plaintiff[’s]
produc[ing] documents or agree[ing] to allow any discovery in the dismissed action to
be used in the subsequent action or otherwise reduce the inconvenience to the
defendant caused by the dismissed case”).
6
AND
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phone records and tax returns, for the relevant time period that Plaintiffs allege they
are owed unpaid wages. A failure to preserve these records shall limit the time
period that Plaintiffs may pursue their claims for unpaid wages. Stated differently,
if Plaintiffs only preserve the documents previously requested between 2014 to 2017,
then Plaintiffs’ claim for unpaid wages shall also be limited to the same time frame.
This condition alleviates any prejudice that Defendants may suffer in the event that
Plaintiffs re-file their claims and the documents that Defendants previously
requested are unavailable because of a loss of data.
Accordingly, the foregoing
conditions offer enough protection to Defendants, and, at the same time, allow
Plaintiffs to renew this action should they decide to do so in the future.
III.
CONCLUSION
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that
Plaintiffs’ motions to voluntarily dismiss their causes of action is GRANTED in
part and DENIED in part. Plaintiffs are permitted to voluntarily dismiss their
claims against Defendants without prejudice.
However, if Plaintiffs re-file this
action at a later date, Plaintiffs shall pay all taxable costs and attorneys’ fees that
Defendants incurred in defending this action.
Plaintiffs shall also preserve all
documents that Defendants previously requested, including cell phone records and
tax returns for the relevant time period that Plaintiffs allege they are owed unpaid
wages. Because these documents may be essential for any future defense of this
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action, a failure to preserve the documents previously requested shall limit the time
period that Plaintiffs may sue for unpaid wages.
The action is now CLOSED and the case is DISMISSED without prejudice
subject to the conditions set forth herein.
DONE AND ORDERED in Chambers at Miami, Florida, this 27th day of
September, 2017.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge
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