Velasquez v. Salsa and Beer Restaurant, Inc. et al

Filing 76

ORDER granting 59 Motion to Compel; denying without prejudice 61 Motion To conclusively determine that Defendants Salsa and Beer Restaurant, Inc. and Salsa and Beer, Inc. constitute a single enterprise pursuant to 29 U.S.C. § 203(r)(1); g ranting 63 Motion for Extension of Time to file a motion for class certification; denying without 65 Motion to Certify Class; granting 69 Motion for Equitable Tolling. Counsel should read the order in its entirety for critical deadlines and information. Signed by Chief Judge James C. Dever III on 3/5/2018. (Briggeman, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:16-CV-655 -D

MOISES VELASQUEZ, on behalf of
himself and all others similarly situated ,
Plaintiff,

v.

)
)
)
)
)
)
)

ORDER

SALSAS AND BEER RESTAURANT, INC., )
SALSA AND BEER, INC., NOE PATINO, )
PATRICIA PATINO, DIONISIO PATINO, )
and ISMAEL PATINO,
)
)
Defendants.

)

On July 31, 2017, Moises Velasquez ("Velasquez" or "plaintiff') moved to compel
defendants Salsas and Beer Restaurant, Inc., Salsa and Beer, Inc., Noe Patino, Patricia Patino,
Dionisio Patino, and Ismael Patino to: (1) produce Salsa and Beer, Inc.'s Rule 30(b)(6) designee
for a deposition; (2) respond to plaintiff's interrogatory number 13 and request for production
number 17, relating to the production of gross sales and annual dollar volumes; (3) produce
defendant Noe Patino's discovery responses; and (4) produce defendant Patricia Patino's verification
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concerning her discovery responses. See [D.E. 59]. Velasquez also requested sanctions and filed
a memorandum in support ofhis motion to compel. See [D.E. 60]. On August 16,2017, defendants
responded in opposition. See [D.E. 67]. As explained below, the court grants the motion to compel.
Unless otherwise limited by court order, the Federal Rules of Civil Procedure allow parties
to:
obtain discovery regarding any nonprivileged matter that is relevant to any party's
claim or defense and proportional to the needs of the case, considering the

importance ofthe issues at stake in the action, the amount in controversy, the parties'
relative access to relevant information, the parties' resources, the importance of the
discovery in resolving the issues, and whether the burden or expense ofthe proposed
discovery outweighs its likely benefit. Information within this scope of discovery
need not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1). Moreover, each party has a duty to supplement its disclosures or
responses. See Fed. R. Civ. P. 26(e). A party who has not received proper discovery responses
may seek relief under Federal Rule of Civil Procedure 37.
The court has reviewed the record and grants the motion to compel. The requested
information is central to Velasquez's claims. NotlaterthanApril6, 2018, Salsa and Beer, Inc. shall
produce a Rule 30(b)(6) designee and that person's deposition shall be completed by April30,
2018. Not later than April 6, 2018, defendants shall respond in full to plaintiff's interrogatory
number 13 and request for production number 17, relating to the production of gross sales and
annual dollar volume. Not later than April30, 2018, defendant N oe Patino shall respond in full to
Velasquez's discovery requests. NotlaterthanApril6, 2018, defendant Patricia Patino shall verify
her discovery responses.
The court also grants Velasquez's motion for sanctions. See Fed. R. Civ. P. 37(a)(5).
Defendants are liable to Velasquez for the reasonable expenses incurred in making the motion,
including attorney's fees. Velasquez shall submit documentation supporting his expenses request
no later than Apri16, 2018.
Each defendant is warned that the failure to comply with this order may result in additional
sanctions, up to and including striking the non-complying defendant's answer.

See,~'

Nat'l

Hockey League v. Metro. Hockey Club. Inc., 427 U.S. 639, 643 (1976) (per curiam); Hathcock v.
Navistar Int'l Transp. Cotp., 53 F.3d 36, 40-41 (4th Cir. 1995); Mut. Fed. Sav. & Loan Ass'n v.
Richards & Assocs .. Inc., 872 F.2d 88, 92-94 (4th Cir. 1989).
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Defendants' failure to provide the requested discovery affects several other pending
motions. Thus, the court denies without prejudice Velasquez's motion to determine that Salsas and
Beer Restaurant, Inc. and Salsa and Beer, Inc. are a single enterprise under 29 U.S.C. § 203(r)(1 ),
grants Velasquez's motion to extend the deadline to file a motion for class certification until June
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4, 2018, and denies without prejudice Velasquez's motion to certify the class. The court also grants
Velasquez's motion for equitable tolling. Velasquez actively pursued his judicial remedies by filing
a defective pleading during the statutory period; therefore, equitable tolling is appropriate. See,~'

Irwin v. Dep'tofVeteransAffairs, 498 U.S. 89,96 (1990); Chao v. Va. Dep'tofTransp., 291 F.3d
276, 283 (4th Cir. 2002).
In sum, the court GRANTS plaintiff's motion to compel [D.E. 59], DENIES .without
prejudice plaintiff's motion to determine that defendant Salsas and Beer Restaurant, Inc. and Salsa
and Beer, Inc. constitute a single enterprise under 29 U.S.C. § 203(r)(1) [D.E. 61], GRANTS
plaintiff's motion for an extension oftime to file a motion for class certification [D.E. 63], DENIES
without prejudice plaintiff's motion to certify the class [D.E. 65], and GRANTS plaintiff's motion
for equitable tolling [D.E. 69].
SO ORDERED. This_s__dayofMarch2018.

Chief United States District Judge

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