Ortiz et al v. N.H. Inc. et al
ORDER denying 61 Plaintiffs' MOTION to Term Defendants' 60 MOTION for Determination and Award of Reasonable Attorney's Fees and Costs; granting Plaintiffs' 63 Motion for Extension of Time to File a Response to Defendants 039; 60 MOTION for Determination and Award of Reasonable Attorney's Fees and Costs. Plaintiffs' Response is now due within fourteen (14) days from the date of this Order. Signed by Magistrate Judge Edwin G. Torres on 11/13/2017. (js02)
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),
N.H. INC. a/k/a MERIDIAN FOOD
MARKET, MONEY GRAM,
ORDER ON PLAINTIFFS’ MOTION TO STAY
This matter is before the Court on Katherine Mitchell Cruz Ortiz’s and
Joiselyn C. Robleto’s (“Plaintiffs”) motion to stay against N.H. Inc. (“N.H. Inc.”) a/k/a
Meridian Food Market, Money Gram, and Mohammed Hossain’s (“Defendants”)
[D.E. 61]. Specifically, Plaintiffs seek a stay of any determination of attorneys’ fees
and costs until they re-file their claims against Defendants. Defendants responded
to Plaintiffs’ motion on November 3, 2017 [D.E. 62] to which Plaintiffs replied on
November 13, 2017.
Therefore, Plaintiffs’ motion is now ripe for
After careful consideration of the motion, response, reply, relevant
authorities, and for the reasons discussed below, Plaintiffs’ motion is DENIED.
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 sought unpaid wages from February 20, 2012 through January 9, 2017
and Plaintiff Robleto sought unpaid wages from June 1, 2012 through January 9,
2017. [D.E. 1]. Plaintiffs resigned their employment positions on January 9, 2017
and filed this action against Defendants on January 13, 2017. Plaintiffs alleged 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
On September 27, 2017, the Court permitted Plaintiffs to dismiss their claims
against Defendants without prejudice. [D.E. 58]. In doing so, the Court held that if
Plaintiffs decided to re-file this action at a later date, Plaintiffs would pay all taxable
costs and attorneys’ fees that Defendants incurred in defending this action.
Plaintiffs were also ordered to preserve all documents that Defendants previously
requested in discovery, including cell phone records and tax returns for the relevant
time period that Plaintiffs alleged they were owed unpaid wages. If Plaintiffs failed
to preserve the documents requested, their claims would be limited to the time period
that Plaintiffs could sue for unpaid wages in any subsequent action.
The sole issue presented is whether Defendants’ motion for reasonable
attorney’s fees and costs should be stayed until Plaintiffs re-file their claims. On
September 27, 2017, we dismissed Plaintiffs’ claims without prejudice and held that
“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 argue that they have not yet re-filed their claims and that Defendants’
motion for fees and costs is premature and vexatious. As such, Plaintiffs request
that Defendants’ motion be stayed until Plaintiffs re-file this case at a later date.1
Defendants oppose Plaintiffs’ motion on the basis that there is no need to wait
any longer for a determination of fees and costs. Defendants contend that Plaintiffs’
request is designed to delay a calculation of fees and costs so that Plaintiffs can refile
their case under a claim of ignorance with respect to the sum that Plaintiffs are
required to pay before opening a new case.
Defendants also argue that a
determination of fees and costs is appropriate now, rather than later, because
Plaintiffs should have time to plan for how much they need to pay to re-file their
claims rather than learning the amount for the first time at a later time. Moreover,
Defendants suggest that Plaintiffs may not choose to hire the same law firm if they
If the Court denies Plaintiffs’ motion, Plaintiffs request an enlargement of
time to respond to Defendants’ motion, on the merits, for a determination of
attorneys’ fees and costs. [D.E. 63].
refile their claims and that it is important for any new attorney to know about the
monetary exposure of this case before a decision is made to re-file.
Defendants’ arguments are well taken.
In situations where courts have
voluntarily dismissed a plaintiff’s claims and awarded fees and costs, courts have
determined those amounts before a plaintiff re-files. See, e.g., Paul v. Georgia S.,
2010 WL 4639239, at *2 (M.D. Ga. Nov. 4, 2010) (“The Court believes an attorney’s
fees and costs assessment is appropriate here. In the event Plaintiffs ever refile any
action against Defendant upon these or substantially similar facts in any court,
Plaintiffs will be required to pay the costs and attorney’s fees Defendant incurred in
defending this action.”) (emphasis added); Tesma v. Maddox-Joines, Inc., 254 F.R.D.
699, 702 (S.D. Fla. 2008) (“By noon on Tuesday, January 6, 2008, Defendant shall file
with the Clerk of this Court a Memorandum together with supporting Affidavits and
Exhibits consistent with Local Rule 7.3 of the United States District Court for the
Southern District of Florida establishing the fees and costs incurred in the defense of
this action”) (emphasis in original); Jones v. Smartvideo Techs., Inc., 2007 WL
1655855, at *4 (N.D. Ga. June 4, 2007) (“If Plaintiff wishes to refile, he should
reimburse Defendants the costs and fees they incurred in preparing for Plaintiff's
deposition. So that the amount to be paid as a condition of refiling may be known,
Defendants shall file within five (5) days an affidavit describing the costs and fees
incurred for this Court's approval.”).
The reason why courts generally determine fees and costs before a plaintiff
refiles is so that both parties, including their respective attorneys, are well aware of
the prerequisites required before pursuing a new action.
The same reasoning
applies here. Plaintiffs should, at the very least, be aware of the fees and costs that
they must pay to Defendants in the event they decide to file their claims again.
Accordingly, Plaintiffs’ motion to stay a determination of fees and costs until
Plaintiffs re-file is DENIED.
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that
Plaintiffs’ motion to stay a determination of Defendants’ attorneys’ fees and costs is
DENIED. [D.E. 61]. Plaintiffs shall file their response to Defendants’ motion for a
determination of fees and costs [D.E. 60] within fourteen (14) days from the date of
DONE AND ORDERED in Chambers at Miami, Florida, this 13th day of
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge
We recognize that Plaintiffs interpret the prior Order [D.E. 57] to mean that
no determination of fees or costs would be necessary before they refiled their claims.
However, the prior Order only stated that Plaintiffs would not have to pay costs and
fees until they refiled their claims. The prior Order never indicated that a
determination of fees and costs would be determined in a re-filed action.
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