Fox v. The Ritz-Carlton Hotel Co.
| Decision Date | 11 July 2022 |
| Docket Number | 17-CV-24284-COOKE |
| Parties | MICHAEL FOX, on behalf on himself and all others similarly situated, Plaintiff, v. THE RITZ-CARLTON HOTEL COMPANY, LLC, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
ORDER ON DEFENDANT'S MOTION TO EXCLUDE DECLARATIONS OF EDWARD COLEMAN IN SUPPORT OF PLAINTIFF'S MOTION FOR CLASS CERTIFICATION
THIS CAUSE came before the court on Defendant, The Ritz-Carlton Hotel Company, LLC's (“Defendant” or “Ritz-Carlton”), Motion to Exclude Declarations of Edward Coleman in Support of Plaintiff's Motion for Class Certification (the “Motion”) [ECF No. 94]. This matter is before the undersigned pursuant to an Endorsed Order of Referral by the Honorable Judge Marcia G. Cooke United States District Judge. [ECF No. 123]. See 18 U.S.C.§ 636(b)(1)(A).
THIS COURT has reviewed the Motion [ECF No. 94], the Response and Reply thereto [ECF Nos. 105, 188], the pertinent portions of the record, and all relevant authorities and is otherwise fully advised in the premises.
In the Motion, Ritz-Carlton argues that the Court should strike two declarations of Edward Coleman, the “First Coleman Declaration” [ECF Nos. 67-1, 69-1][1], filed in support of Plaintiff's Motion for Class Certification, and the “Third Coleman Declaration” [ECF No 85-5][2], filed with the Reply in Support of Plaintiff's Motion for Class Certification, because the Declarations are not based on personal knowledge and do not present proper expert opinion testimony. See Mot. at 11. Ritz-Carlton also argues that the Court should strike the Third Coleman Declaration as improper reply evidence. See id. at 14-15. Mr. Fox opposes the Motion and claims both Coleman Declarations properly summarize and describe Coleman's review of documentary evidence produced by Ritz-Carlton. See ECF No. 105 (the “Response to the Motion”).
For the reasons set forth below, this Court agrees the Coleman Declarations are improper and inadmissible and should therefore be stricken.
Plaintiff, Michael Fox, filed this consumer class action on behalf of himself and all others similarly situated against Ritz-Carlton alleging violations of Section 509.214 of the Florida Statutes, which requires every public food establishment[3] that includes an automatic gratuity or service charge in the price of the meal to provide notice of the automatic gratuity on both the food menu and on the face of the bill provided to the customer. Fla. Stat. § 509.214.
Counts One and Two of the Amended Complaint allege violations of the Florida Unfair and Deceptive Trade Practices Act (“FDUPTA”), and Counts Four and Five seek a declaratory judgment and injunctive relief under FDUPTA, respectively.[4] [ECF No. 18].
The background and facts relevant to the Motion now before the Court are discussed below.
According to the allegations in the Motion for Class Certification (which are consistent with the allegations in the Amended Complaint), from April 4 through April 7, 2017, Mr. Fox stayed at the Ritz-Carlton Key Biscayne in Miami, Florida. [ECF No. 67] at 2. During his stay, Mr. Fox ordered and paid for food and beverages from three separate public food service establishments located on the hotel property: Lightkeepers, Cantina Beach, and Key Pantry. Id.
On April 5, 2017, Mr. Fox dined at Lightkeepers. Id. Mr. Fox alleges he ordered from the Lightkeepers menu, which consisted of a single page. Id. According to Mr. Fox, at the bottom of the one-page menu, the following was written in italicized type that was smaller and less bold than the other items written on the menu: Id. at 2-3. He alleges that when he was done eating, he was presented with a check that included an 18% service charge. [ECF No. 67-3]. Under the total amount due on the check, there was a section labeled “PLEASE COMPLETE FOR ROOM CHARGES,” which included an empty line for “Additional Gratuity.” Id. Mr. Fox added a $9.00 gratuity (more than 20% of the total bill) and signed the check, charging the full amount to his room. Id.
Later that same day, Mr. Fox ordered food and drinks at Cantina Beach, the pool bar and restaurant at the hotel. [ECF No. 67] at 3. Mr. Fox alleges that the following statement appeared at the bottom of that menu, in type smaller than the other items on the menu: “A suggested 18% gratuity will be added to your check for your convenience.” Id. He alleges that when he was done eating, he was again presented with a check that included an 18% service charge. Id. Similar to the check he received at Lightkeepers, the check from Cantina Beach contained a section labeled “PLEASE COMPLETE FOR ROOM CHARGES,” which included an empty line for “Additional Gratuity.” [ECF No. 67-5]. Mr. Fox added an $18.00 gratuity (approximately 9% of the total bill) and signed the check, charging the full amount to his room. Id.
And, later that same day, Mr. Fox ordered snacks and bottled water from another establishment at the hotel known as the Key Pantry. [ECF No. 67 at 3]. Mr. Fox alleges that he reviewed the menu at Key Pantry, and it did not mention any automatic gratuity or service charge. Id. Here, Mr. Fox was presented with a check similar to the ones he signed earlier that day. [ECF No. 67-5]. This check also included an 18% service charge and contained a space for “Additional Gratuity.” Id. Having purchased only bottled water and snacks, Mr. Fox did not add any additional gratuity and charged the full amount of the check to his room. Id.
Mr. Fox filed the original complaint on November 28, 2017. [ECF No. 1]. After Ritz-Carlton filed a Motion to Dismiss, Fox filed the operative Amended Complaint on February 15, 2018. [ECF No. 18]. On January 22, 2019, District Judge James Lawrence King dismissed the case sua sponte for lack of subject-matter jurisdiction. [ECF No. 31]. Fox appealed the dismissal order. [ECF No. 32]. The United States Court of Appeals for the Eleventh Circuit reversed the dismissal of Counts One, Two, Four, and Five, affirmed the dismissal of Count Three, and remanded the case for further proceedings. See ECF No. 39 at 22. The case was reassigned to Judge Cooke after remand. [ECF No. 41].
Mr. Fox filed his Motion for Class Certification on October 1, 2021, along with a motion to file under seal certain documents and testimony in support of that Motion. [ECF Nos. 66, 67].
In support of the allegations in the Motion for Class Certification, Mr. Fox cites the declaration of his attorney, James A. Francis (the “Francis Declaration”), and the exhibits thereto.[5] Exhibit 1 to the Francis Declaration is the declaration of another one of Mr. Fox's attorneys, Edward Coleman [ECF No. 69-1] (the “First Coleman Declaration”). In the First Coleman Declaration, Coleman declares that he is an attorney duly licensed to practice in New York and New Jersey, is counsel of record for Mr. Fox, and has personal knowledge of the facts and circumstances of this matter. First Coleman Decl. at ¶¶ 1-2. He also declares that he has reviewed copies of menus and spreadsheets containing receipt information from Ritz-Carlton's restaurants in Florida. Id. at ¶¶ 3-5. The rest of the Declaration contains Coleman's inferences, observations, and opinions based on his review of the documents and data received in discovery from Ritz-Carlton. See id. at ¶¶ 6-34.
After reviewing Plaintiff's Motion for Class Certification and the First Coleman Declaration, Ritz-Carlton served a subpoena to depose Coleman in connection with his declaration. [ECF No. 104-1] at 104-05. Instead of deposing Coleman, the parties agreed he would execute the Second Coleman Declaration,[6] in which Coleman states, inter alia, that he has not been disclosed as an expert in this case nor any case, has “no specialized knowledge, training, or experience in analyzing restaurant menus or receipt data” or in “dating documents, including menus[,]” and has no prior experience reviewing Micros receipt data and Florida Ritz-Carlton menus. [ECF No. 94-1 (the “Second Coleman Declaration”)] at ¶¶ 10, 11, 13. He also clarifies that his statement in the First Coleman Declaration that “where Ritz has produced a menu for one date, and another menu on a subsequent date, it is a reasonable inference that there were no changes to the menu between those dates” is based on his inference that “the dates in the filenames of the menus can be used to determine the dates during which the menus were actually in continuous use at restaurants, and is not based on other information obtained from Ritz.” Id. at ¶ 9.
Mr. Fox filed the Third Coleman Declaration with his Reply in Support of Class Certification. See ECF No. 85-5 (the “Third Coleman Declaration”). The Court notes that Mr. Fox has not filed an unredacted version of the Third Coleman Declaration despite court approval to file under seal. See ECF 89. Even so, it is clear that the Third Coleman Declaration contains arguments in response to issues raised by Ritz-Carlton in its Response to the Motion for Class Certification. See ECF 85-5. Specifically Coleman responds to Ritz-Carlton's statement that it is impossible to tell from reviewing the receipt data whether a charge that appears to be an “Improper Table Size violation” is a genuine improper charge or rather an instance where a large party split the check. See Third Coleman Decl. at ¶¶ 6-24. The Third Coleman Declaration also raises the issue that most of the declarations attached to Defendant's...
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