Ortiz et al v. N.H. Inc. et al

Filing 76

ORDER granting 72 Defendants' Motion for Reconsideration. Signed by Magistrate Judge Edwin G. Torres on 1/19/2018. (js02)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-Civ-20169-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.
___________________________________________/
ORDER ON DEFENDANTS’ MOTION FOR RECONSIDERATION
This matter is before the Court on N.H. Inc.’s (“N.H. Inc.”) a/k/a Meridian
Food Market, Money Gram, and Mohammed Hossain’s (“Defendants”) motion for
reconsideration against Katherine Mitchell Cruz Ortiz and Joiselyn C. Robleto
(“Plaintiffs”). [D.E. 72]. Plaintiffs responded on December 26, 2017 [D.E. 73] to
which Defendants replied on December 28, 2017. [D.E. 74]. Therefore, Defendants’
motion is now ripe for disposition.

After careful consideration of the motion,

response, reply, relevant authority, and for the reasons discussed below,
Defendants’ motion is GRANTED.

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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 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 and
that all of the time spent working over forty hours during any particular week was
uncompensated.
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.
II. APPLICABLE PRINCIPLES AND LAW
“Courts have distilled three major grounds justifying reconsideration: (1) an
intervening change in controlling law; (2) the availability of new evidence; and (3)

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the need to correct clear error or manifest injustice.” Instituto de Prevision Militar
v. Lehman Bros., Inc., 485 F. Supp. 2d 1340, 1342 (S.D. Fla. 2007) (quoting Cover v.
Wal-Mart Stores, Inc., 148 F.R.D. 294, 295 (M.D. Fla. 1993) (internal quotation
marks omitted)); see also Smith v. Ocwen Financial, 488 Fed.Appx. 426, 428 (11th
Cir. 2012) (citing Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (“The only
grounds for granting a motion for reconsideration are newly-discovered evidence or
manifest errors of law or fact.”)). Newly raised arguments that should have been
raised in the first instance are not appropriate on a motion for reconsideration. See
Gougler v. Sirius Prods., Inc., 370 F. Supp. 2d 1185, 1189 (S.D. Ala. 2005).
A motion for reconsideration should also not be used as a vehicle to reiterate
arguments previously made because “[i]t is an improper use of the motion to
reconsider to ask the Court to rethink what the Court already thought through—
rightly or wrongly.” Z.K. Marine, Inc. v. M/V Archigetis, 808 F. Supp. 1561, 1563
(S.D. Fla. 1992) (quoting Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99
F.R.D. 99, 101 (E.D. Va. 1983) (internal formatting omitted)). If a motion merely
submits previously rejected arguments, those motions are generally denied. See
Sierra Equity Grp., Inc. v. White Oak Equity Partners, LLC, 687 F. Supp. 2d 1322,
1324 (S.D. Fla. 2009) (quoting Rueter v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,
440 F. Supp. 2d 1256, 1268 (N.D. Ala. 2006) (noting that “motions to reconsider are
not

a

platform

to

relitigate

arguments

previously

considered

and

rejected”)). “[However], [a] motion to reconsider would be appropriate where, for
example, the Court has patently misunderstood a party, or has made a decision

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outside the adversarial issues presented to the Court by the parties, or has made an
error not of reasoning but of apprehension.” Z.K. Marine, 808 F. Supp. at
1563 (internal formatting and citation omitted).
Generally

speaking,

motions

for

reconsideration

are

considered

an

“extraordinary remedy” and subject to a district court’s substantial discretion.
See Tristar Lodging, Inc. v. Arch Specialty Ins. Co., 434 F. Supp. 2d 1286, 1301
(M.D. Fla. 2006) (quoting Sussman v. Salem, Saxon & Nielsen, P.A., 153 F.R.D. 689,
694 (M.D. Fla. 1994)); Burger King Corp. v. Ashland Equities, Inc., 181 F. Supp. 2d
1366, 1369-70 (S.D. Fla. 2002) (citing Am. Home Assur. Co. v. Glenn Estess &
Assocs., Inc., 763 F.2d 1237, 1238-39 (11th Cir. 1985)) (“District court decisions on
motions for reconsideration are reviewed for abuse of discretion, thus affording the
courts with substantial discretion in their rulings.”).
III. ANALYSIS
On December 5, 2017, we granted in part and denied in part Defendants’
motion for an award of attorney’s fees and costs. [D.E. 71]. Specifically, we held
that if Plaintiffs re-file their claims against Defendants in a subsequent action,
Plaintiffs shall pay Defendants $16,867.50 (51.9 hours at a $325 hourly rate) in
attorneys’ fees before that action may proceed. As for Defendants’ request for costs
in the amount of $1,074.70 [D.E. 60-2], we denied Defendants’ motion because it
failed to comply with Local Rule 7.3(c).
Defendants argue that the denial of their costs on procedural grounds was a
mistake because Local Rule 7.3 contemplates two alternative bases for seeking

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costs: (1) one arising from an order that would otherwise be non-appealable; and (2)
the other arising from a final judgment or appealable order. Defendants suggest
that the Court’s Order allowing Plaintiffs to voluntarily dismiss their claims under
Rule 41 was neither a final judgment nor an appealable order. See Versa Prod., Inc.
v. Home Depot, USA, Inc., 387 F.3d 1325, 1327 (11th Cir. 2004) (“A dismissal
without prejudice, which is not appealable, is distinguished from a dismissal with
prejudice, which is appealable.”). Therefore, Defendants argue that they complied
with the plain language of Local Rule 7.3 and that their motion for costs should
have been considered on the merits because the requirement to file a bill of costs
applies only to final judgments or other appealable orders.
Defendants’ argument is well taken. Local Rule 7.3(c) requires parties to file
a bill of costs concerning non-taxable expenses and costs arising from entry of a
final judgment or another appealable order:
A bill of costs pursuant to 28 U.S.C. § 1920 shall be filed and served
within thirty (30) days of entry of final judgment or other appealable
order that gives rise to a right to tax costs under the circumstances
listed in 28 U.S.C. § 1920. Prior to filing the bill of costs, the moving
party shall confer with affected parties under the procedure outlined in
S.D.Fla.L.R.7.1(a)(3) in a good faith effort to resolve the items of costs
being sought. An application for a bill of costs must be submitted on
form (or in form substantially similar to) AO 133 of the Administrative
Office of the United States Courts and shall be limited to the costs
permitted by 28 U.S.C. § 1920. Expenses and costs that the party
believes are recoverable although not identified in § 1920 shall be
moved for as provided in paragraph 7.3(a) above. The bill of costs shall
attach copies of any documentation showing the amount of costs and
shall be supported by a memorandum not exceeding ten (10) pages.
The prospects or pendency of supplemental review or appellate
proceedings shall not toll or otherwise extend the time for filing a bill
of costs with the Court.

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S.D. Fla. L.R. 7.3(c).
Given the plain language of the Local Rule, Defendants were not obligated to
file a bill of costs because the Order granting a voluntarily dismissal was not a final
judgment or appealable Order. See Versa Prod., Inc., 387 F.3d at 1327 (“Ordinarily
a plaintiff cannot appeal an order granting a voluntary dismissal without prejudice
under Rule 41(a)(2). A voluntary dismissal without prejudice ‘does not qualify as an
involuntary adverse judgment so far as the plaintiff is concerned.’”) (quoting
LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 603 (5th Cir. 1976)).

Because the

procedural denial of Defendants’ motion for costs was an oversight, we turn to the
merits of whether Defendants are entitled to additional costs that were not
considered in the Court’s prior Order. [D.E. 71].
In Defendants’ motion for costs, Defendants explain that they incurred
$1,074.70 in various expenses. These expenses relate to deposition costs, including
costs related to (1) a court reporter, (2) a deposition transcript, and (3) a translator’s
appearance fee. Plaintiffs’ main argument in opposition is that the deposition costs
were unnecessary because Plaintiffs notified Defendants in advance that they would
not be in attendance at the deposition (despite a Court Order granting Defendants’
motion to compel). As such, Plaintiffs conclude that Defendants’ motion lacks any
merit and that it should be denied in its entirety.
Yet, Defendants’ position is more persuasive. Defendants only incurred costs
preparing for Plaintiffs’ depositions because there was no Court Order excusing
either party from responding to written discovery or appearing at Plaintiffs’

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depositions. While Plaintiffs’ motion to voluntarily dismiss their claims was still
pending at the time of their depositions, Defendants only incurred costs because
they attempted to comply with the Court’s Orders. Accordingly, Plaintiffs have
presented no convincing reason to deny Defendants’ request for $1,074.70 in costs
and therefore Defendants’ motion for reconsideration is GRANTED.
IV. CONCLUSION
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that
Defendants’ motion for reconsideration [D.E. 72] is GRANTED. The Court’s Order
granting in part and denying in part Defendants’ motion for a determination of fees
and costs [D.E. 60] is amended to incorporate Defendants’ motion for costs.

If

Plaintiffs re-file their claims against Defendants, Plaintiffs shall pay Defendants
$16,867.50 (51.9 hours at a $325 hourly rate) in attorneys’ fees – and $1,074.70 in
costs – before a subsequent action may proceed.
DONE AND ORDERED in Chambers at Miami, Florida, this 19th day of
January, 2018.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge

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