Bonet v. Now Courier, Inc., Case No. 14-23217-CIV-WILLIAMS
| Decision Date | 24 August 2016 |
| Docket Number | Case No. 14-23217-CIV-WILLIAMS |
| Citation | 203 F.Supp.3d 1195 |
| Parties | Edgardo G. BONET, Plaintiff, v. NOW COURIER, INC., and Alexander Mola, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
Elizabeth Olivia Hueber, Mager & Paruas, Hollywood, FL, Allyson Morgado, Joshua Howard Sheskin, Rivkah Fay Jaff, J.H. Zidell P.A., Julia M. Garrett, Julia M. Garrett, P.A., Stephen Michael Fox, Jr., Jamie H. Zidell, Miami, FL, Steven C. Fraser, Steven C. Fraser, P.A., Hallandale Beach, FL, for Plaintiff.
Mark A. Douglas, Mark A. Douglas, P.A., Ft. Lauderdale, FL, for Defendants.
THIS MATTER is before the Court following a jury trial held on August 1 through August 3, 2016. At the conclusion of Plaintiff Edgardo Bonet's case, Defendants Alexander Mola and Now Courier, Inc. moved ore tenus for a directed verdict under Federal Rule of Civil Procedure 50. Defendants also made an ore tenus request for dismissal under Federal Rule of Civil Procedure 41 based on Plaintiff's misconduct throughout this litigation. For the reasons stated on the record at trial on August 3, 2016 and discussed further below, the Court granted Defendants' motions. This order follows.
The central facts and procedural history of this case are well known by the Parties and have been comprehensively set out in numerous prior orders by the Court. (See, e.g., DE 20, DE 75, DE 101). Plaintiff initiated this case on August 31, 2014 against Defendants Now Courier, Inc. and Alexander Mola alleging violations of the Fair Labor Standards Act ("FLSA") under both the minimum wage and overtime provisions of the statute. (DE 1). Defendants were served on September 11, 2014 (DE 7), and filed an answer (DE 8) on September 30, 2014. In their answer, Defendants denied Plaintiff's allegations and stated that Plaintiff was an independent contractor and not an employee, making him ineligible for relief under the FLSA. The following day, Plaintiff moved to strike Defendants' answer (DE 9) because it was filed pro se on behalf of a corporate defendant (Now Courier) as well as an individual defendant (Alexander Mola). In response, the Court entered an order (DE 10) instructing the corporate defendant to retain counsel and file an answer to the complaint by October 31, 2014.
On October 31, 2014, Defendants, now represented by counsel, filed a motion to dismiss for failure to state a claim, which the Court granted. (DE 12, DE 20). Plaintiff then filed an amended complaint (DE 22) on December 19, 2014 and Defendants again moved to dismiss. (DE 25). The Court converted the second motion to dismiss into a motion for summary judgment (DE 34), and Plaintiff cross-moved for partial summary judgment (DE 56).1 On June 1, 2016, the Court issued an order (DE 75) which granted summary judgment on the issue of enterprise coverage, but held that, despite a number of strong indications that Plaintiff was an independent contractor, "[a] review of each of the[ ] [relevant] factors and the record as a whole reveals that issues of material fact remain regarding whether Plaintiff was an independent contractor or an employee."
On July 25, 2016—again, a week before trial was set to begin—Plaintiff filed a notice informing the Court that he no longer intended to pursue any of his minimum wage claims and wished to proceed only on his overtime claims. (DE 99). On Monday, August 1, 2016, a jury was selected and trial began on the remaining overtime claim. In light of the Court's grant of summary judgment on the question of enterprise coverage and Plaintiff's decision on the eve of trial to proceed only on his overtime claims, Plaintiff's recovery was contingent upon proving at trial that he was (1) a covered employee under the Act, (2) engaged in commerce or in the production of goods for commerce, (3) who has worked more than forty hours in a workweek, and (4) has not been paid the overtime wages due to him under the Act. 29 U.S.C. § 207.
During trial on August 2 and August 3, 2016 Defendants made two ore tenus motions for dismissal under Rule 41 and Rule 50 of the Federal Rules of Civil Procedure, which the Court granted on August 3, 2016 for the reasons set out below.
Federal Rule of Civil Procedure 41(b) provides that "[i]f the plaintiff fails to prosecute or to comply with the[ ] [federal] rules or a court order, a defendant may move to dismiss the action or any claim against it." Under this rule, "[t]he district court ... has inherent authority to sanction parties for ‘violations of procedural rules or court orders,’ up to and including dismissals with prejudice."
Perry v. Zinn Petroleum Companies, LLC, 495 Fed.Appx. 981, 983 (11th Cir.2012) (citing Donaldson v. Clark, 819 F.2d 1551, 1557 n. 6 (11th Cir.1987) ; Betty K Agencies, Ltd. v. M/V M ONADA , 432 F.3d 1333, 1337 (11th Cir.2005) ). Though Courts have cautioned that dismissal of an action as a sanction under Rule 41 is a "sanction of last resort, applicable only in extreme circumstances," such a remedy is warranted when there is "both a clear record of willful conduct and a finding that lesser sanctions are inadequate." Zocaras v. Castro, 465 F.3d 479, 483 (11th Cir.2006) ().
Throughout the course of this litigation, Plaintiff's conduct has been an impediment to the judicial process. As the Court noted on various occasions—both in its orders and on the record—Plaintiff has consistently refused to answer the questions of opposing counsel at depositions, produce relevant documents during discovery, adhere to judicial rulings during trial, and otherwise respect and abide by the rules and orders of this Court. This conduct continued despite warnings, despite the imposition of lesser sanctions, and despite direct court orders addressing this behavior.
In the Court's June 1, 2016 order on the Parties' cross motions for summary judgement (DE 75), the Court included a number or troubling excerpts from Plaintiff's deposition testimony. (See, e.g., DE 75 at 6-7, 12-14, 16-19). As those excerpts demonstrate, Plaintiff repeatedly refused to respond to defense counsel's questions, giving answers such as "No, I don't remember"; "I don't know"; "that's an absurd question"; "don't you have the [bank] statements"; ; "don't ask me anymore about this"; "oh god"; "I tell you, go make the calculations"; and "that's none of your business."2 (See, e.g., Bonet Depo DE 58-1 at 22:16, 21; 23:8, 13, 16; 24:23; 27:6; 27:24; 34:7; 41:12-13, 18-19; 49:8-14; 67:13; 69:25; 75:9; 79:14-86:24; 90:3; 114:2; 120:24; 121:4; see also Trial Transcript ("Tr.") (Aug. 3, 2016)).3 The order concluded by noting that "[t]he Court has serious concerns about Plaintiff's candor, his refusal to provide an explanation (or supporting documentation) regarding his damages calculation, and his inconsistent testimony regarding his substantial and unexplained income." (DE 75 at 24). The order also explicitly stated that (DE 75 at 24).
In the June 1, 2016 summary judgment order (DE 75), the Court also noted its concern regarding Plaintiff's refusal to produce certain documents in discovery despite numerous orders directing him to do so. Specifically, Plaintiff failed to timely produce his bank records for 2011-2014, to produce "travel notebooks" that he had purportedly kept of his work travel during the time period covered by his FLSA claim, and to produce the supporting documentation and receipts underlying the calculations in his 2011-2014 tax returns.
Defendants' first request for production of documents is dated June 17, 2015. In that document, Defendants requested, among other things, "[a]ll bank statements for plaintiff" from 2011-2014. On August 27, 2015, the Parties noticed a discovery hearing before Magistrate Judge Andrea M. Simonton for September 2, 2015. (DE 44, DE 45). In Defendants' notice, counsel indicated that Plaintiff had refused to turn over the requested bank statements, "claiming that the account is closed and defendant should subpoena these accounts from Wells Fargo." (DE 44 at 1). Defendants further informed the Court that "[d]espite a request, no account number has ever being [sic ] produced." Id.
At the September 2, 2015 discovery hearing, Plaintiff confirmed that he had not turned over his bank records as requested by Defendants nor had he provided defense counsel with the account number. (See DE 55 at 1-2). Judge Simonton ordered Plaintiff to produce the Wells Fargo bank records for the years 2012-2014 on or before September 16, 2015. (Id. at 2, 3). On September 18, 2015, Defendants filed a second motion to extend the time to complete discovery, indicating that Plaintiff had failed to comply with Judge Simonton's order regarding the 2011-2014 bank records. (DE 49 ¶ 4). The Court granted the extension and set a status conference for September 24, 2015. At that hearing, Plaintiff again conceded that he had not complied with Judge Simonton's order and offered no justification for his failure to do so. Following the hearing, the Court set yet another deadline—September 28, 2016—for Plaintiff to comply with his discovery obligations and the Court's orders by turning over his bank records. (DE 54). As a...
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