Lucero et al v. Medical Center Pharmacy Inc., et al

Filing 71

OPINION & ORDER re: 64 LETTER MOTION for Conference in advance of anticipated motion for leave to file amended pleading, addressed to Magistrate Judge Ona T. Wang from David O'Brien dated February 28, 2024. filed by Yoshio Luc ero, Leandro Sahad, Jose Rodriguez, 60 LETTER MOTION for Conference in advance of anticipated motion to compel production addressed to Magistrate Judge Ona T. Wang from David O'Brien dated February 23, 2024. filed by Yoshio L ucero, Leandro Sahad, Jose Rodriguez, 56 FIRST LETTER MOTION for Extension of Time to Complete Discovery addressed to Magistrate Judge Ona T. Wang from David Graff on behalf of all Defendants dated December 21, 2023. filed by Tot al Care Pharmacy BX, Inc., Medical Center Pharmacy, Inc., Specialty Care Pharmacy, Inc., Egidio Sementilli, Total Care Pharmacy IV, Inc., Total Care Pharmacy, Inc., Lide Sementilli, 67 LETTER MOTION for Conference in advance of a proposed motion for conditional certification of a collective action under the FLSA addressed to Magistrate Judge Ona T. Wang from David O'Brien dated March 22, 2024. filed by Yoshio Lucero, Leandro Sahad, Jose Rodriguez, 52 FIRST LETTER MOTION for Local Rule 37.2 Conference addressed to Magistrate Judge Ona T. Wang from David Graff on behalf of all Defendants dated November 25, 2023. filed by Total Care Pharmacy BX, Inc., Medical Center Pharmacy, Inc., Special ty Care Pharmacy, Inc., Egidio Sementilli, Total Care Pharmacy IV, Inc., Total Care Pharmacy, Inc., Lide Sementilli, 50 LETTER MOTION for Conference regarding a motion to compel responses to discovery requests addressed to Magis trate Judge Ona T. Wang from David O'Brien dated November 24, 2023. filed by Yoshio Lucero, Leandro Sahad, Jose Rodriguez. The Court will hold an in-person Status Conference in this matter on Tuesday, June 5, at 2:00 p.m. in Courtroom 20D, 500 Pearl Street, New York, NY 10007. Plaintiffs' motion is GRANTED because they have shown good cause for amendment. The Court rules on the particular motions to compel by request number: a. Document requests 5, 6, and 7 (se e ECF 50-3 at 5-6) are DENIED as not relevant. b. Integratory 6 is GRANTED. Defendants shall provide a more fulsome response by Friday, May 17, 2024. c. Interrogatories 7, 8, and 9 are DENIED as duplicative of document requests 10 and 11 and are a lso premature. and that information should have been covered in document request 1. Accordingly, Plaintiffs' motion to compel further responses to interrogatories 7-12 is DENIED. The Court rules as follows: a. Document request 3 is DEN IED as not proportional to the needs of this case. b. Document requests 7 and 15 are DENIED. c. Document request 11 is DENIED. d. Request 16 is DENIED as not proportional. The parties can explore this issue, if at all, through depositions. e. Defendants' motion to compel further responses to interrogatories 1 - 6 in their First Set of Interrogatories dated June 7, 2023, are DENIED. f. Defendants' motion to compel further responses to interrogatory 1 and its subparts in th eir Second Set of Interrogatories dated July 26, 2023 is DENIED as moot. Accordingly, the motion to compel is DENIED as moot. Plaintiffs' latest pre-motion letter, filed March 22, 2024 (ECF 67), seeks to file a motion for conditional c ertification of a collective action and an order from the Court approving circulation of the notice of pendency of this collective action to putative class members pursuant to the FLSA, 29 U.S.C. § 216(b). Defendants have not filed a letter i n response. (See ECF 68; ECF 70). Plaintiffs' request is DENIED without prejudice as premature. The Clerk of Court is respectfully directed to close ECF Nos. 50, 52, 56, 60, 64, and 67. ( Amended Pleadings due by 5/17/2024., Brief due by 5/14/2024., Fact Discovery due by 5/31/2024.), ( Status Conference set for 6/5/2024 at 02:00 PM in Courtroom 20D, 500 Pearl Street, New York, NY 10007 before Judge Ronnie Abrams.) (Signed by Magistrate Judge Ona T. Wang on 5/10/2024) (ate)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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YOSHIO LUCERO, et al.,
:
:
Plaintiffs,
:
:
-against:
:
MEDICAL CENTER PHARMACY INC., et al.,
:
:
Defendants.

22-CV-8917 (RA) (OTW)
OPINION & ORDER

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ONA T. WANG, United States Magistrate Judge:
The Court has reviewed the parties’ several letters. See ECF Nos. 50, 51, 52, 54, 55, 56,
57, 58, 60, 61, 62, 64, 66, 65, 67, 68, 69, and 70. The letters make numerous motions, which are
addressed below.
The Court will hold an in-person Status Conference in this matter on Tuesday, June 5, at
2:00 p.m. in Courtroom 20D, 500 Pearl Street, New York, NY 10007. The parties are directed to
file a brief proposed agenda by Friday, May 31, 2024, setting out any remaining discovery
disputes. The parties are directed to meet and confer in good faith before this conference to
resolve any remaining discovery disputes without Court intervention. The parties’ future
submissions need to reflect more fulsome meet and confers, more care, and more attention to
detail than the last 18 letter requests have reflected. The parties are cautioned that the Court
will apportion costs under Fed. R. Civ. P. 37(a)(5) for future such motions.
1. Plaintiffs’ Motion to Amend the Complaint (See ECF Nos. 64 and 65)
Plaintiffs move to amend the complaint to add as defendants Egidio Sementilli, Lide
Sementilli, and Felicia Sementilli as Executors of the Estate of Tonino Sementilli, after learning
through Lide Sementilli’s deposition testimony that the Estate is the owner of the corporate
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defendants. (ECF 64 at 2; ECF 64-2 at 5 1). Lide and Edigio Sementilli are already named
defendants in their individual capacities. Plaintiffs attached to their motion the proposed
amended complaint with a redline showing proposed changes. (ECF 64-2). Plaintiffs’ motion is
GRANTED because they have shown good cause for amendment. Plaintiffs shall file their
amended complaint no later than Friday, May 17, 2024.
2. Cross Motions to Compel (See ECF 50, 52, 54, and 55)
i.

Plaintiffs’ Motion (ECF 50)

Plaintiffs moved to compel production of documents and further responses to
interrogatories. (ECF 50). Plaintiffs seek to compel documents responsive to requests 5, 6, 7, 10,
and 11.2 Id. at 1; ECF 50-3 at 5–8. Plaintiffs also move to compel further responses to
interrogatories 6–12. ECF 50 at 1; ECF 50-4 at 4–7. The Court rules on the particular motions to
compel by request number:
a. Document requests 5, 6, and 7 (see ECF 50-3 at 5–6) are DENIED as not relevant.
b. Integratory 6 is GRANTED. Defendants shall provide a more fulsome response by Friday,
May 17, 2024.
c. Interrogatories 7, 8, and 9 are DENIED as duplicative of document requests 10 and 11
and are also premature. Interrogatories 10, 11, and 12, which seek information about
overtime hours and cash payments, are only relevant to individual Plaintiffs at this time,

Plaintiffs filed the proposed amended complaint at ECF 64-2. (“On February 8, 2024, Defendant Lide Sementilli
testified at his deposition that the Estate of Tonino Sementilli owns the Sementilli Pharmacies, and that Egidio,
Felicia, and Lide Sementilli are the sole Executors to that Estate.”). Id. at 5.

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Although Defendants generally opposed Plaintiffs’ motion, in its entirety, their brief two-page letter fails to
mention any opposition to document requests 10 and 11. (See ECF 54).

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and that information should have been covered in document request 1. Accordingly,
Plaintiffs’ motion to compel further responses to interrogatories 7–12 is DENIED.
ii.

Defendants’ Motion (ECF 52)

Defendants also moved to compel production of documents and responses to their
interrogatories. (ECF 52). Defendants seek to compel documents responsive to requests 3, 7,
11, 15, and 16. Id. at 2–3. Defendants also move to compel further responses to interrogatories
1 – 6 in their First Set of Interrogatories dated June 7, 2023, and further responses to
interrogatory 1 and its subparts in their Second Set of Interrogatories dated July 26, 2023. Id. at
1, 3. The Court rules as follows:
a. Document request 3 is DENIED as not proportional to the needs of this case.
b. Document requests 7 and 15 are DENIED. The crux of this dispute is that Plaintiffs
produced a 90-minute audio recording of a meeting “convened so that numerous
employees could voice their concerns with Defendant Edigio Sementilli’s management”
(ECF 55 at n.3), and identified this recording as the only document responsive to Plaintiff
Lucero’s promotion and “subsequent demotion.” Id. at 3. Defendants’ objection appears
to be that they do not have the time or inclination to listen to this audio recording. This
is not a good faith basis to move to compel production of more documents that, by
Plaintiffs’ admission, do not exist.
c. Document request 11 is DENIED. Defendants assert that they have no information
regarding cash payments because they were made by the deceased Tonino Sementilli.
(ECF 52 at 3). But, at the same time, Defendants assert that they need Plaintiffs’ tax
returns to show that they were underreporting their income. Id. If more payroll
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information is produced or adduced, for example at deposition, Defendants may seek
this information if they are not able reach agreement on this issue.
d. Request 16 is DENIED as not proportional. The parties can explore this issue, if at all,
through depositions.
e. Defendants’ motion to compel further responses to interrogatories 1 – 6 in their First
Set of Interrogatories dated June 7, 2023, are DENIED. The parties can explore these
topics, if at all, by deposition.
f. Defendants’ motion to compel further responses to interrogatory 1 and its subparts in
their Second Set of Interrogatories dated July 26, 2023 is DENIED as moot. Plaintiffs
refer to a July 11, 2023 spreadsheet titled “Sementilli wage theft damages
spreadsheet.xlsx (ECF 52-6 at 6), which was produced in advance of a July 19, 2023 PreSettlement Conference with the Court. (ECF 37). If Plaintiffs wish to change the
designation of this document produced in aid of settlement only, Plaintiffs are directed
to affirmatively inform Defendants and/or reproduce the document in the context of
discovery.
3. Plaintiffs’ Second Motion to Compel (See ECF Nos. 60 and 62)
Plaintiffs filed a second motion to compel, styled as a letter-motion seeking a
conference in advance of the anticipated motion, without waiting for the Court to rule on the
first motion, and, according to Defendants, without engaging in any meet and confer process
before running to the Court for further intervention. (See ECF Nos. 60 and 62). This, as
Defendants point out, is reason alone to deny the motion. The second motion seeks to compel
“production of documents sufficient to determine ownership of the corporate defendants.”
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(ECF 60 at 1). Plaintiffs appear to have obtained this information through Lide Sementilli’s
deposition and then failed to withdraw the motion. Accordingly, the motion to compel is
DENIED as moot.
4. Motion for an Extension of Fact Discovery (ECF 56)
The parties’ deadline to complete fact discovery is EXTENDED nunc pro tunc to Friday,
May 31, 2024. The Court is unlikely to grant a further extension of fact discovery without a
showing of good cause.
5. Conditional Certification of a Collective Action Under FLSA (ECF 67)
Plaintiffs’ latest pre-motion letter, filed March 22, 2024 (ECF 67), seeks to file a motion
for conditional certification of a collective action and an order from the Court approving
circulation of the notice of pendency of this collective action to putative class members
pursuant to the FLSA, 29 U.S.C. § 216(b). Defendants have not filed a letter in response. (See
ECF 68; ECF 70). Plaintiffs’ request is DENIED without prejudice as premature. On May 8, 2024,
Plaintiffs filed a letter threatening to file a motion for conditional collective certification “absent
objection from the Court,” by close of business today. The Court’s role is not to “object” to
actions taken by litigants, no matter how objectional they may be. Plaintiffs are directed to
meet and confer with Defendants, in good faith, and to file a proposed briefing schedule on the
motion, by noon on Monday, May 13, 2024. If Plaintiffs are unable to reach agreement with
Defendants on a proposed briefing schedule, they may file a proposed schedule on their own,
clearly identifying their attempts to meet and confer with defense counsel. The earliest
Plaintiffs’ opening briefs may be filed is Tuesday, May 14, 2024. Parties should be mindful of
the Court’s local rules and individual practices with regard to non-dispositive motions.
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The Clerk of Court is respectfully directed to close ECF Nos. 50, 52, 56, 60, 64, and 67.
SO ORDERED.

/s/ Ona T. Wang
Ona T. Wang
United States Magistrate Judge

Dated: May 10, 2024
New York, New York

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