Torres v. Rock & River Food Inc., Civil Action No. 15–22882–Civ–Scola

Citation244 F.Supp.3d 1320
Decision Date27 April 2016
Docket NumberCivil Action No. 15–22882–Civ–Scola
Parties Daniel Valderrabano TORRES and all others similarly situated, Plaintiffs v. ROCK & RIVER FOOD INC. d/b/a Marumi Sushi, and Teruhiko Iwasaki, Defendants
CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida

244 F.Supp.3d 1320

Daniel Valderrabano TORRES and all others similarly situated, Plaintiffs
v.
ROCK & RIVER FOOD INC. d/b/a Marumi Sushi, and Teruhiko Iwasaki, Defendants

Civil Action No. 15–22882–Civ–Scola

United States District Court, S.D. Florida.

Signed April 27, 2016
Filed April 28, 2016


244 F.Supp.3d 1324

Allyson Morgado, Corona Law Firm, P.A., Joshua Howard Sheskin, Federal Disability Advocates, Julia M. Garrett, Ogletree Deakins, Miami, FL, K. David Kelly, Stephen Michael Fox, Jr., Jamie H. Zidell, Rivkah Fay Jaff, J.H. Zidell, P.A., Miami Beach, FL, for Plaintiffs.

Chris Kleppin, Glasser & Kleppin, P.A., Plantation, FL, for Defendants.

Order On Cross Motions for Summary Judgment

Robert N. Scola, Jr., United States District Judge

This matter is before the Court on the Defendants' Motion for Summary Judgment and Involuntary Dismissal (ECF No. 27) and the Plaintiff's Motion for Partial Summary Judgment (ECF No. 28). For the following reasons, the Defendants' motion is denied and the Plaintiff's motion is granted.

1. Background.

Marumi Sushi is a single–location, Japanese–themed restaurant in Plantation, Florida with annual revenues exceeding $500,000. The restaurant is owned and operated by Terukiko Iwasaki and Tetsu Hayakaw, who are also the restaurant's chefs. From August 2012 until June 2015, Daniel Valderrabano Torres worked as a sushi chef at Marumi Sushi. In this position, Torres did not interact with customers, process credit card transactions, or purchase supplies for the restaurant. Torres's central responsibility was to prepare sushi. The restaurant ordered the sushi ingredients from several different vendors, including True World Foods Miami, LLC ("True World"). True World's invoices show that the ingredients traveled across state lines. In addition to Torres, the restaurant had fourteen staff members. One of the staff members was Karla Yasmin Santiago, a sushi assistant, who also handled the sushi ingredients.

On August 3, 2015, Torres sued the restaurant and Iwasaki for violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. sections 201 – 16. Torres alleges that the Defendants failed to pay him overtime. On February 11, 2016, the Defendants moved for involuntary dismissal and summary judgment, and Torres moved for partial summary judgment on the issues of FLSA coverage and Iwasaki's role as Torres's employer. The motions are ripe for the Court's review.

2. Involuntary Dismissal

Under Federal Rule of Civil Procedure 41(b), "[i]f the plaintiff fails to prosecute

244 F.Supp.3d 1325

or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it." A court has the discretion to sanction any party who fails to follow court rules, "[b]ut that discretion is not unlimited, and the ‘[d]ismissal of a case with prejudice is considered a sanction of last resort, applicable only in extreme circumstances.’ " Zocaras v. Castro, 465 F.3d 479, 483 (11th Cir. 2006) (quoting Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985) ). "[D]ismissal with prejudice is plainly improper unless and until the district court finds a clear record of delay or willful conduct and that lesser sanctions are inadequate to correct such conduct." Betty K Agencies, Ltd. v. M/V M ONADA , 432 F.3d 1333, 1339 (11th Cir. 2005). "[F]indings satisfying both prongs of [that] standard are essential before dismissal...." Id.; see also Idearc Media Corp. v. Kimsey & Associates, P.A., 2009 WL 928556, at *4–5 (M.D. Fla. Mar. 31, 2009) (declining to dismiss where there was insufficient evidence that the plaintiff had fabricated evidence or acted willfully, explaining that, typically, "fraud ... between the parties [is] not a subject for dismissal"). "Mere negligence or confusion is not sufficient to justify a finding of delay or willful misconduct." Zocaras, 465 F.3d at 483. "Nor, typically, is mere delay." Aquilar v. United Floor Crew, Inc. , 2015 WL 2415421, at *7 (S.D. Fla. May 21, 2015) (Bloom, J.).

In this case, the Defendants argue that dismissal is necessary on a myriad of grounds, including the Plaintiff exceeded page limits, filed his motion for summary judgment before filing a statement of material facts, spelled his middle name with one "r" instead of two during his deposition, gave responses during his deposition which conflicted with answers to interrogatories and the complaint, failed to answer deposition questions regarding damages, was a "serial plaintiff" because he filed a FLSA suit several years ago, failed to provide a presuit demand, does not pay income taxes, and never provided proper initial disclosures. None of these grounds provide the extreme relief that the Defendants seek.

First, many of the Defendants' arguments misstate the law. The FLSA does not require a presuit demand, see Sahyers v. Prugh, Hol l iday & Karatinos, P.L. , 560 F.3d 1241, 1246 (11th Cir. 2009), multiple courts have rejected the Defendants' income tax argument, see Solano v. A. Navas Party Prod., Inc. , 728 F.Supp.2d 1334, 1339–40 (S.D. Fla. 2010) (Altonaga, J.), and there is no case granting involuntary dismissal because a plaintiff had filed one previous suit or mistakenly misspelled his name, see Zocaras, 465 F.3d at 483 (distinguishing defrauding the court with a mere "slip up"). Furthermore, while the Court does not condone or approve of the Plaintiff's alleged discovery errors, the Defendants' lack of diligence asking the Court to enforce discovery obligations is at least partially responsible for the current situation. The Court's initial order explicitly informed the parties that any discovery motions would be handled on an expedited briefing schedule in order to prevent any delay to the pretrial schedule. The Defendants knew of many of the Plaintiff's alleged violations months ago, yet the Defendants did not notify the Court promptly within the discovery period in order to allow the Court to consider other remedies. Moreover, much less drastic sanctions are available; for example, attacking the alleged inconsistencies between the deposition answers and interrogatories through cross–examination. See

244 F.Supp.3d 1326

Idearc Media Corp. v. Kimsey & Assocs., P.A. , 2009 WL 928556, at *5 (M.D. Fla. Mar. 31, 2009) ("In the case of a discrepancy between a party's discovery responses and evidence attained by the opposing party, lacking a ‘clear showing of egregious conduct[,] allegations of inconsistency, non-disclosure, even falseness, can be brought to the jury's attention through cross-examination or impeachment.’ ") (quotation omitted). Accordingly, the Defendants' motion for involuntary dismissal is denied.

3. Striking An Affidavit Under Rule 37(c)(1)

In support of his motion for partial summary judgment, the Plaintiff attached the declaration of a True World employee, Gilberto Conrado, the source of the products sold to the Defendants, and invoices for the all orders made by the Defendants between 2011 and 2014. The Defendants argue that the Court should strike this information because Conrado was not listed as a witness in the Plaintiff's Rule 26 disclosures and the "Defendants had no chance to depose him ... or otherwise engage in discovery concerning him." (ECF No. 33 at 5).

Under Federal Rule of Civil procedure 37(c)(1), when "a party fails to provide information or identify a witness as required by [Rule] 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." "The burden of establishing that a failure to disclose was substantially justified or harmless rests on the nondisclosing party." Leathers v. Pfizer, Inc., 233 F.R.D. 687, 697 (N.D. Ga. 2006).

In this case, it was the Defendants and not the Plaintiff who controlled the information about True World. In fact, it appears that the Plaintiff requested documents from the defendants regarding the Defendants' suppliers, including "[a]ny and all contracts, invoices, statements, or documents of any kind reflecting the purchase or acquisition of any and all goods, materials, supplies, merchandise, [and[ equipment ...," as well as "all invoices, statements, or billings of any kind received from the vendors for the purchase or acquisition of goods or materials...." (ECF No. 42 at 6 n.4). The Defendants objected and refused to provide the information. (Id. ). On January 9, 2016, in response to an interrogatory, the Defendants provided a list of its vendors including True World, and stated that their contact at True World was named "Miho." (Id. at 2–3 n.1–2). The Plaintiff served True World with a subpoena and the company chose Conrado as its representative. It is clear that the Plaintiff could not have included Conrado in his initial disclosures, because he did not yet have the information.

Moreover, the Court fails to see how the Defendants could be surprised or prejudiced by the use of the True World records. This was information within the Defendants' control and they were aware that the Plaintiff sought this information long before the Plaintiff's motion for summary...

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