Goussen v. Mendez Fuel Holdings LLC et al

Filing 57

ORDER ON MOTIONS IN LIMINE. Signed by Judge Marcia G. Cooke on 11/7/2018. See attached document for full details. (smz)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 18-20012-Civ-COOKE/GOODMAN
JAIRO B. GOUSSEN and all others
similarly situated under 29 U.S.C. 216(b),
Plaintiffs,
vs.
MENDEZ FUEL HOLDINGS LLC and
MICHAEL MENDEZ,
Defendants.
_____________________________________________/
ORDER ON MOTIONS IN LIMINE
THIS MATTER is before me upon the Parties’ Joint Summary of Motions in Limine
(“Joint Summary”) (ECF No. 40). Plaintiff brought this action under the Fair Labor Standards
Act (“FLSA”), alleging that Defendants failed to pay him overtime wages during his
employment at Defendants’ gas station deli from March 2014 to December 2017. See Compl.,
ECF No. 1, at ¶ 14. In the Joint Summary, the Parties have presented five motions in limine.1 I
have reviewed the Joint Summary, the record, and the relevant legal authorities. For the
reasons stated herein, it is ORDERED and ADJUDGED that the Parties’ respective motions
are GRANTED in part and DENIED in part.
I. LEGAL STANDARDS
“A motion in limine presents a trial court with pretrial issues regarding admissibility of
evidence that a party is likely to present at trial.” Soto v. Geico Indem. Co., 2014 WL 3644247, at
*1 (M.D. Fla. July 21, 2014). “[A] trial court should only exclude evidence in limine where the
evidence is clearly inadmissible for any purpose.” Id. Under the Federal Rules of Evidence,
“[r]elevant evidence is admissible” unless it is prohibited by the United States Constitution, a
federal statute, the Rules themselves, or other rules prescribed by the Supreme Court. Fed. R.
Evid. 402. “Evidence is relevant,” in turn, if “it has any tendency to make a fact more or less
probable than it would be without the evidence,” and “the fact is of consequence in
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The Parties have amicably resolved certain other evidentiary issues that I do not address here. See Stip.
as to Mot. in Lim. Topics, ECF No. 39, at p. 1.

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determining the action.” Fed. R. Evid. 401. Finally, “[t]he court may exclude relevant evidence
if its probative value is substantially outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Fed. R. Evid. 403.
II. DISCUSSION
A. Plaintiff ’s Motion in Limine Regarding His Taxes
During his employment with Defendants, Plaintiff was paid partly in cash. See Pl.’s
Stmt. of Material Facts, ECF No. 32, at ¶ 4 (“Plaintiff got $650 a week with $400 direct
deposit and $250 in cash.”). In his sole motion in limine, Plaintiff asks the Court to preclude at
trial “[a]ny reference to Plaintiff ’s payment or non-payment of federal income taxes and
reporting of cash payments on said taxes.” Joint Summ., ECF No. 40, at p. 2.
Most of the cases Plaintiff cites in support of his motion are inapposite. Berlinger v. Wells
Fargo, N.A., for example, did not involve the use at trial of evidence relating to a party’s failure
to pay federal taxes. See 2014 WL 6686276, at *2 (M.D. Fla. Nov. 26, 2014) (third party
defendant not required to disclose her personal assets to her ex-husband and children in
deposition). Meanwhile, Solano v. A Navas Party Prod., Inc., and Martinez-Pinillos v. Air Flow
Filters, Inc., were both concerned with whether “an employee who fails to pay federal income
taxes is barred by in pari delicto from suing under the FLSA.” Solano, 728 F. Supp. 2d 1334,
1339–40 (S.D. Fla. 2010); see also Martinez-Pinillos, 738 F. Supp. 2d 1268, 1276 n.8 (S.D. Fla.
2010). These cases do not establish that evidence of Plaintiff ’s failure to pay federal taxes is
“clearly inadmissible for any purpose.” Soto, 2014 WL 3644247, at *1. To the contrary, “some
courts have allowed defendants to inquire about a plaintiff ’s failure to pay income taxes to
attack the plaintiff ’s credibility under Federal Rule of Evidence 608(b).” Torres v. Rock & River
Food Inc., 2016 WL 8716674, at *2 (S.D. Fla. May 11, 2016) (collecting cases).
The strongest support for Plaintiff ’s motion lies instead in the fact that Defendants do
not oppose it. See Joint Summ., ECF No. 40, at p. 4. Defendants state that they have “[n]o
objection” to Plaintiff ’s request, so long as “the same ruling is extended to Defendants,” who
evidently have concerns about their own “payment or non-payment of federal income taxes.”
Id. at pp. 4, 10; see also infra Part II(B). Plaintiff, however, argues that proof of Defendants’
failure to pay taxes should come in at trial. Joint Summ., ECF No. 40, at p. 11. Plaintiff claims
that such evidence is relevant to show their “volume of business,” which will “create[] an
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inference of [the] hours Plaintiff worked.” Id.
The Court is not convinced that evidence of Defendants’ “payment or non-payment” of
their taxes is probative of how many hours Plaintiff worked. To the extent that Plaintiff seeks
to paint a picture of Defendants’ general “financial condition,” id., the Court will determine
the admissibility of such evidence when it is offered at trial. With respect to any deficiencies in
the Parties’ respective tax returns, however, the danger is too great that such “collateral
disputes” could distract from the actual issues in this case. Torres, 2016 WL 8716674, at *3.
“Permitting questioning on the Plaintiff ’s income taxes could quickly devolve into issues of the
Plaintiff ’s obligation to pay taxes versus the Defendants’, who was the most at fault, as well as
why the Plaintiff failed to pay taxes, which would raise the issue of the Plaintiff ’s immigration
status.” Id. Accordingly, the Court will grant Plaintiff ’s motion in limine regarding his taxes,
and apply the same ruling to Defendants’ motion. See infra Part II(B).
B. Defendants’ Motion in Limine Regarding Their Taxes and Finances
As noted, Defendants move to exclude “[a]ny reference to whether Defendants did or
did not withhold Plaintiff ’s cash payments for tax purposes or deduct the cash payments for
withholding on their tax returns.” Joint Summ., ECF No. 40, at p. 10. Defendants further
move to exclude “any evidence and testimony relating to [their] wealth, net worth, assets, or
the location of the business/the individual Defendant[’]s home location.” Id. at pp. 11–12. For
the reasons already stated, see supra Part II(A), evidence of the Parties’ compliance or
noncompliance with their tax obligations will be excluded from trial. The Court will address
the admissibility of any evidence regarding Defendants’ general finances, as well as their home
and business locations, if and when it is offered at trial.
C. Defendants’ Motion in Limine Regarding Prior FLSA Lawsuits Against Them
Defendants “move to preclude all references at trial to any previous FLSA lawsuits filed
against [them].” Joint Summ., ECF No. 40, at p. 4. The Court agrees with Defendants that
“raising . . . prior employee lawsuit[s] would effectively create a ‘mini-trial’ about the merits of
the previous case[s] and other ‘collateral issues’ that may not relate to the present case.” Bui v.
Minority Mobile Sys., Inc., 2016 WL 6518804, at *1 (S.D. Fla. Jan. 28, 2016) (quoting Anderson v.
WBMG-42, 253 F.3d 561, 567 (11th Cir. 2001)). Moreover, “Plaintiff can demonstrate
Defendants’ potential willfulness in violating the FLSA through witness testimonies or other
evidence of Defendants’ past actions and practices without mention of previous lawsuits.” Bui,
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2016 WL 6518804, at *1. Accordingly, Defendants’ motion to exclude evidence of previous
FLSA suits against them is granted.
The Court notes, however, that “while the[] witnesses may not reference any previous
lawsuits brought against Defendants, they may, to the extent admissible, testify as to their
experiences working for Defendants.” Id. at *2; see also infra Part II(E).
D. Defendants’ Motion in Limine Regarding Prior FLSA Settlement Agreements
Defendants additionally “move to preclude all references or testimony at trial to any
previous settlement agreements in FLSA lawsuits filed against Defendants.” Joint Summ.,
ECF No. 40, at p. 8. For the same reasons the Court grants Defendants’ motion regarding the
existence of other FLSA suits, see supra Part II(C), the Court also grants Defendants’ motion
regarding the settlement of such suits.
E. Defendants’ Motion in Limine Regarding Witnesses Tello and Larios
Finally, Defendants “move to preclude any testimony from witnesses who were not
listed by Plaintiff in either a witness list or initial disclosures, nor deposed in this case, prior to
the close of fact discovery on June 22, 2018.” Joint Summ., ECF No. 40, at p. 6. Defendants
refer “specifically” to two such witnesses: Jose Tello and Jose Larios.2 Id. Defendants concede,
however, that “Plaintiff did mention Tello and Larios as witnesses to his alleged employment
in his response to Interrogatory No. 4.” Id. Plaintiff also filed affidavits signed by Tello and
Larios on June 22, 2018—the last day of discovery—in support of Plaintiff ’s Motion for
Partial Summary Judgment. See ECF Nos. 32-7, 32-8. Four days later, both witnesses were
“included on Plaintiff ’s Amended Initial Disclosures.” Joint Summ., ECF No. 40, at p. 7.
Additionally, Plaintiff points out that “Defendants themselves failed to ever provide any form
of initial disclosures” until approximately three months after the close of discovery, so that if
Defendants’ requested ruling were applied to themselves “none of Defendants’ witnesses
should be allowed” to testify at trial. Id. at pp. 7–8 (emphasis added).
“A trial court considering a motion to exclude a witness not listed on the initial
disclosures should look to three factors: ‘(1) the importance of the testimony; (2) the reason for
the [party’s] failure to disclose the witness earlier; and (3) the prejudice to the opposing party if

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Defendants have not pointed to any other witnesses who fall into the category they seek to exclude.
The Court does not decide here whether any other such witnesses who might emerge would be
permitted to testify at trial.

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the witness [is] allowed to testify.’” Roberta L. Marcus, Inc. v. New Cingular Wireless PCS, LLC,
2013 WL 4777170, at *1 (S.D. Fla. Sept. 5, 2013) (quoting Bearint ex rel. Bearint v. Dorell Juvenile
Grp., Inc., 389 F.3d 1339, 1353 (11th Cir. 2004)).
Here, “the importance of the testimony” of Tello and Larios is that both witnesses
directly support Plaintiff ’s claim, stating that Plaintiff was not a manager at Defendants’ gas
station deli (and thus was not exempt from the FLSA’s overtime-pay requirement), and that
Plaintiff “regularly worked overtime.” Larios Aff., ECF No. 32-7, at ¶¶ 8–9; see also Tello Aff.,
ECF No. 32-8, at ¶¶ 6–7. Larios also claims that he himself “worked around 20 overtime hours
per week” for Defendants and “was never paid for [his] overtime hours.”3 Larios Aff., ECF No.
32-7, at ¶ 3. The “importance” factor therefore appears to weigh in favor of the witnesses’
exclusion from trial. Marcus, 2013 WL 4777170, at *1–2 (noting, however, that this factor
“seems to cut both ways,” as the exclusion of an important witness is also a “harsher sanction”
for the party offering the witness). As to the second factor, Plaintiff has not ventured any
explanation at all for his failure to include these witnesses in his initial disclosures—an
omission that is all the more striking given that Plaintiff ’s counsel has represented Tello and
Larios in their own FLSA suits against Defendants. See Joint Summ., ECF No. 40, at p. 6.
In the end, however, the Court’s decision is guided by the third factor—namely, the lack
of prejudice to Defendants. As noted, Defendants concede that “Plaintiff did mention Tello
and Larios as witnesses” in his response to an interrogatory during discovery. Joint Summ.,
ECF No. 40, at p. 6. Plaintiff also filed affidavits signed by Tello and Larios on June 22, 2018,
the discovery deadline. See ECF Nos. 32-7, 32-8. And Plaintiff amended his initial disclosures
to include Tello and Larios on June 26, 2018—only four days after the deadline, and more than
four months before the date of this Order. Joint Summ., ECF No. 40, at p. 7. Finally, and
critically, “Defendants themselves failed to ever provide any form of initial disclosures” to
Plaintiff until several months after the discovery deadline. Id. To the extent that Defendants
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Defendants suggest that Larios, who brought his own FLSA suit against them, has “breached the
terms of the settlement agreement” in his case by signing an affidavit in support of Plaintiff ’s claim.
Joint Summ., ECF No. 40, at p. 9. However, Defendants have failed to establish that Larios violated the
confidentiality and non-disparagement clauses of his settlement agreement merely by stating that he
“was never paid for [his] overtime hours.” Larios Aff., ECF No. 32-7, at ¶ 3. Moreover, “[c]ourts within
this circuit routinely reject such confidentiality and non-disparagement clauses contained in FLSA
settlement agreements because they thwart Congress’s intent to ensure widespread compliance with the
FLSA.” Ramnaraine v. Super Transportation of Fla., LLC, 2016 WL 1376358, at *3 (M.D. Fla. Mar. 28,
2016) (internal quotation marks and citations omitted). This issue has not been adequately briefed by
the Parties, and the Court does not decide it here.

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wish to present any of their own witnesses at trial, the equities do not weigh in favor of
excluding Plaintiff ’s witnesses based on similar conduct. Therefore, Defendants’ motion to
exclude the testimony of Tello and Larios is denied.
III. CONCLUSION
For the reasons stated above, the motions contained in the Parties’ Joint Summary of
Motions in Limine (ECF No. 40) are GRANTED in part and DENIED in part, as follows:
A.
B.

Defendants’ motion in limine regarding their taxes is granted, and the Court will
determine the admissibility of any evidence regarding Defendants’ finances
when such evidence is offered at trial;

C.

Defendants’ motion in limine regarding prior FLSA suits against them is granted;

D.

Defendants’ motion in limine regarding the settlement of such prior FLSA suits
is granted; and

E.

2018.

Plaintiff ’s motion in limine regarding his taxes is granted;

Defendants’ motion in limine regarding witnesses Jose Tello and Jose Larios is
denied.

DONE and ORDERED in chambers at Miami, Florida, this 7th day of November

Copies furnished to:
Jonathan Goodman, U.S. Magistrate Judge
Counsel of record

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