Alburquerque v. The De Moya Group, Inc.
Filing
134
ORDER denying 58 Motion for Sanctions; Adopting 131 Report and Recommendations on 58 Motion for Sanctions. Signed by Judge K. Michael Moore on 3/26/2024. See attached document for full details. (sdu)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 1:22-cv-22343-KMM
JORGE MONTEAGUDO
ALBURQUERQUE,
Plaintiff,
v.
THE DE MOYA GROUP, INC.,
Defendant.
___________________________________ /
ORDER
THIS CAUSE came before the Court upon Defendant The De Moya Group, Inc.’s Motion
for Sanctions. (“Mot.”) (ECF No. 58). Therein, Defendant moves for sanctions against Plaintiff
and his counsel for filing and maintaining the instant action despite knowing that the claims were
without merit. See generally id. The Court referred the matter to the Honorable Lauren F. Louis,
United States Magistrate Judge, to “take all necessary and proper action as required by law with
respect to the Motion for Sanctions.” (ECF No. 59). On May 9, 2023, and September 12, 2023,
Magistrate Judge Louis held evidentiary hearings on the Motion for Sanctions. (ECF Nos. 80,
110). On February 2, 2024, Magistrate Judge Louis entered a Report and Recommendation,
recommending that the Motion for Sanctions be denied. (“R&R”) (ECF No. 131). On February
17, 2024, Defendant filed Objections to the R&R. (“Objs.”) (ECF No. 132). Plaintiff then filed a
Response to the Objections. (“Resp.”) (ECF No. 133). The matter is now ripe for review. As set
forth below, the Report and Recommendation is ADOPTED.
I.
BACKGROUND1
Though Magistrate Judge Louis thoroughly parsed through the Motion and extracted the
allegations therein, the Court nevertheless provides a brief summary.
On July 26, 2022, Plaintiff brought this civil rights action against Defendant, his employer,
alleging claims of discrimination based on race and national origin, under both Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the Florida Civil Rights Act
(“FCRA”), Florida Statutes §§ 760.01–760.11, and two claims for retaliation under those same
statutes. See generally (ECF No. 1). On August 29, 2022, Plaintiff amended his Complaint to
assert just one claim for retaliatory termination for complaining of discrimination under Title VII
and the FCRA. See generally (Am. Compl.) (ECF No. 13). Therein, Plaintiff alleged that his
employment was terminated in retaliation for reporting complaints of discrimination to Defendant.
R&R at 2. Plaintiff, who is a Hispanic Cuban male, stated that he was subjected to discriminatory
comments about Cubans and that he was physically assaulted by someone at a jobsite. Id. at 2–3.
Plaintiff was terminated shortly after filing a police report and complaining to a superintendent
about the disparate treatment he was facing. Id. at 3.
On March 20, 2023, Defendant moved for summary judgment. (ECF No. 45). On May
16, 2023, the Court granted the Motion for Summary Judgment for Defendant. (ECF No. 87). The
Court found that Plaintiff had adduced evidence of an adverse employment action, Defendant had
advanced evidence of a legitimate non-retaliatory reason for Plaintiff’s termination, and Plaintiff
had not met his burden of identifying evidence establishing Defendant’s reasons for terminating
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The Court provides the relevant background based on the factual recitation in the R&R.
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Plaintiff were pretextual.
R&R at 4; see generally (ECF No. 87).
Plaintiff moved for
reconsideration, which the Court denied. (ECF No. 100).
II.
LEGAL STANDARD
The Court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
The Court “must consider de novo any objection to the magistrate judge’s recommendation.” Fed.
R. Civ. P. 72(b)(3). A de novo review is required if a party files “a proper, specific objection” to
a finding contained in the report. Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006).
“It is critical that the objection be sufficiently specific and not a general objection to the report” to
warrant de novo review. Id.
However, a party’s objections are improper if they expand upon and reframe arguments
already made and considered by the magistrate judge, or simply disagree with the magistrate
judge’s conclusions. See Melillo v. United States, No. 17-CV-80489, 2018 WL 4258355, at *1
(S.D. Fla. Sept. 6, 2018); see also Marlite, Inc. v. Eckenrod, No. 10-23641-CIV, 2012 WL
3614212, at *2 (S.D. Fla. Aug. 21, 2012) (“It is improper for an objecting party to . . . submit [ ]
papers to a district court which are nothing more than a rehashing of the same arguments and
positions taken in the original papers submitted to the Magistrate Judge. Clearly, parties are not
to be afforded a ‘second bite at the apple’ when they file objections to a R & R.”) (quoting
Camardo v. Gen. Motors Hourly-Rate Emps. Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y.
1992)). When the objecting party has not properly objected to the magistrate judge’s findings,
“the court need only satisfy itself that there is no clear error on the face of the record in order to
accept the recommendation.”
See Keaton v. United States, No. 14-21230-CIV, 2015 WL
12780912, at *1 (S.D. Fla. May 4, 2015); see also Lopez v. Berryhill, No. 17-CV-24263, 2019 WL
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2254704, at *2 (S.D. Fla. Feb. 26, 2019) (stating that a district judge “evaluate[s] portions of the
R & R not objected to under a clearly erroneous standard of review” (citing Davis v. Apfel, 93 F.
Supp. 2d 1313, 1317 (M.D. Fla. 2000))).
III.
DISCUSSION
As an initial matter, Magistrate Judge Louis finds that: (1) Defendant may not seek
sanctions based on the filing of the Complaint because the Complaint is no longer operative; (2)
there was some evidentiary support for Plaintiff’s retaliation claim; (3) there was some evidentiary
support to establish Plaintiff’s termination was in temporal proximity of his complaint to
Christopher De Moya, Defendant’s owner; and (4) Plaintiff failed to show that the instant Motion
for Sanctions itself warrants Rule 11 sanctions against Defendant’s counsel. R&R at 9–19. The
Court reviews each of Defendant’s Objections in turn.
A. Defendant’s Hearsay Objection Is Overruled
Defendant’s first objection is that the R&R relies on inadmissible hearsay evidence to
corroborate Plaintiff’s testimony regarding the plausibility of Plaintiff’s retaliation claims and to
determine witness credibility. Objs. at 4–6. Specifically, Defendant argues that the following
evidence is inadmissible hearsay: (1) witness statements contained in the police report filed by
Plaintiff; (2) the Miami-Dade Commission of Human Rights (“MDCHR”) investigator’s
handwritten notes; (3) Plaintiff’s counsel’s testimony from the September 12 evidentiary hearing
recounting Plaintiff’s statements made to the MDCHR investigator regarding Noel Leon; and (4)
Plaintiff’s “self-serving” affidavit. Objs. at 4. In response, Plaintiff argues that this is Defendant’s
first time arguing that the disputed evidence is inadmissible hearsay; Defendant agreed to the
submission of the exhibits at the evidentiary hearings and only now contends that the exhibits and
testimony should not have been considered by Magistrate Judge Louis. Resp. at 3.
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Plaintiff correctly notes that Defendant did not make this hearsay objection to Magistrate
Judge Louis at the evidentiary hearing. Thus, the Court may decline to consider the objection on
this basis alone. See Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009) (holding that a
district court has discretion to decline to consider a party’s argument when that argument was not
first presented to the magistrate judge); Paterson-Leitch Co. v. Massachusetts Mun. Wholesale
Elec. Co., 840 F.2d 985, 991 (1st Cir. 1988) (“[T]he argument upon which [appellant] belatedly
places such stock could have been, but inexplicably was not, presented to the magistrate in the first
instance. The appellant is not entitled to yet another nibble at this particular apple.”). Indeed, “it
would be fundamentally unfair to permit a litigant to set its case in motion before the magistrate,
wait to see which way the wind was blowing, and—having received an unfavorable
recommendation—shift gears before the district judge.” Williams, 557 F.3d at 1291–92 (cleaned
up).
Accordingly, Defendant’s objection regarding the R&R’s consideration of hearsay
evidence is overruled.
B. Defendant’s Lack of Legal Basis Objection Is Overruled
Defendant’s next objection is that the R&R fails to address the lack of a legal basis for
Plaintiff’s claims in view of Eleventh Circuit authority governing Title VII claims. Specifically,
Defendant claims that (1) the recommendation against the imposition of sanctions does not take
into account Defendant’s argument that there is no legal basis to support that Plaintiff engaged in
a protected activity; (2) the R&R incorrectly focuses on temporal proximity, which is not enough
to establish a causal connection between the alleged protected activity and Plaintiff’s termination;
and (3) the R&R improperly declines to consider Plaintiff’s initial Complaint. Objs. at 6–10. In
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response, Plaintiff argues that Defendant’s contentions are plainly false and unsupported by the
record. Resp. at 5–6.
Defendant’s objections merely reframe arguments already made and considered by
Magistrate Judge Louis, or simply disagree with the R&R. Indeed, Magistrate Judge Louis
addressed both the legal and factual issues in the R&R. Regarding protected activity, the R&R
explains that to “the extent Defendant asserts lack of legal basis, it does so on the ground that no
case has found retaliation on facts as thin as those presented here.” R&R at 10. The R&R then
rejects Defendant’s legal argument by finding that there was evidence (albeit weak evidence) to
support Plaintiff’s retaliation claims at the time the Amended Complaint was filed. Id. at 10–11.
Next, the R&R explains that approximately one month passed between Plaintiff purportedly
complaining of discrimination and Plaintiff’s termination; this close temporal proximity is
evidence to support a causal connection between Plaintiff’s protected activity and his termination.
Id. at 15–16. Thus, it is not true that there was absolutely no legal or factual basis to support a
causal connection—Defendant simply disagrees with the conclusions set forth in the R&R.
Finally, Magistrate Judge Louis correctly declines to consider the initial Complaint because it is
no longer operative; once the Amended Complaint was filed, the race and national origin
discrimination claims were abandoned and cannot be the basis for sanctions now. Id. at 8–9 (citing
Geico Gen. Ins. v. Hampel, No. 11-61620-CIV, 2012 WL 204284, at *2–3 (S.D. Fla. Jan. 6, 2012),
report and recommendation adopted, No. 11-61620-CIV, 2012 WL 204176 (S.D. Fla. Jan. 24,
2012). The Court finds that Defendant’s arguments are not proper objections to Magistrate Judge
Louis’s R&R, nor do they remedy the deficiencies identified in the R&R. See Melillo, 2018 WL
4258355, at *1.
Accordingly, Defendant’s remaining objections are overruled.
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IV.
CONCLUSION
UPON CONSIDERATION of the Motion for Sanctions (ECF No. 58), the pertinent
portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED
AND ADJUDGED that the R&R (ECF No. 131) is ADOPTED. It is FURTHER ORDERED that
the Motion for Sanctions (ECF No. 58) is DENIED and Plaintiff’s request for Rule 11 sanctions
against Defendant is DENIED.
DONE AND ORDERED in Chambers at Miami, Florida, this _____
26th day of March, 2024.
K. MICHAEL MOORE
UNITED STATES DISTRICT JUDGE
c: counsel of record
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