*1 would have faced from the casino Down- leave file its brief under seal is GRANT- Thus, Casino. stream conclude that ED. found, jurors could not
reasonable have upon
based the existence that southern faith, that KPG
strategy, good failed use
commercially reasonable efforts to obtain a
final, binding management contract gaming zone.
southeast JOSENDIS, similarly Luis Carlos 5) remaining The issues individuals, situated Plaintiff- HV asserts two additional issues in its Appellant, first, appeal: the event this court concludes HV was entitled to summary WALL WALL TO RESIDENCE RE-
judgment, it should “remand for the calcu- PAIRS, INC., corporation, a Florida HV, damages lation of and interest” due to and, Defendant-Appellee. 60; second, Aplt. atBr. that in the event the case is remanded to the district No. 09-12266. proceedings, court for further this court Appeals, United States Court reassign should case a different Eleventh Circuit. judge. district court Because we have that the concluded district court properly Nov. summary granted judgment in favor of National, KPG and Penn it is unnecessary
for us to address remaining these issues.
B. Appeal No. 11-3173 11-3173,
In Appeal No. argues HV
if the district grant court’s
judgment in favor KPG and Penn Na- remanded,
tional is reversed and the casé
the district court’s awarding order attor-
neys’ expenses fees and to KPG and Penn
National must also be reversed. This ar-
gument moot, clearly now given our
affirmance of grant the district court’s
summary judgment in favor of KPG and
Penn National.
Ill judgment court, of the district
the district court’s awarding order attor-
neys’ fees and expenses to KPG and Penn
National, are AFFIRMED. Appellant HV
Properties of Kansas LLC’s motion for *5 Costales,
Gary Costales, A. Gary A. P.A., FL, Miami, Plaintiff-Appellant. for Glasser, Chris Kleppin, & Klep- Boreth P.A., Plantation, FL, pin, for Defendant Appellee. COX,
Before TJOFLAT and Circuit KORMAN,* Judges, and Judge. District TJOFLAT, Judge: Circuit This is a Fair Labor Act Standards case. Luis Carlos Josendis sued his former em- ployer, Wall Wall Repairs, Residence Inc.,1 unpaid for overtime wages and back pursuant to the Fair Labor Standards Act (the “FLSA”),2 of 1938 its implementing regulations, and Florida law. toWall Wall moved complaint to dismiss the pursuant 12(b)(6) Federal Rule Civil Procedure for failure to state a claim for relief. Be- cause Wall to Wall attached an affidavit * Korman, co-owners, Honorable Edward R. United States 1. Josendis also sued Wall Wall’s Judge Jorge Acosta District the Eastern District New and Eloísa Lim. York, sitting by designation. seq. 2. See 29 U.S.C. 201 et 37(a)(5)(B) abusing to Rule pursuant facts to undisputed and a statement discovery process.5 motion, court converted the district summary judgment to a motion motion discovery, At close of this limited 12(d) gave the par- to Rule pursuant granted summary judg- court Wall Wall present opportunity to “a reasonable ties claim dis- ment on Josendis’s FLSA pertinent preju- state law claim without [was] all the material missed his appeals ruling. now avail himself of dice. did not motion.”3 Josendis fact He contends that material issues of until after the date opportunity and, summary judgment alter- precluded completion for the district court set natively, district court not discovery, Wall to Wall when he served did, discovery it limited his would requests. battery discovery Wall evidence that have have uncovered would discovery and objected to this material of fact. created issues protective court for a order moved the district court’s sanctions appeals also 26(c).4 granted The court Jo- under Rule attorney. against order his limited engage sendis leave to to Wall’s presented opinion organized This as follows. the issues FLSA, I motion, attorney ger- Part the facts sanctioned describes matters, states, 12(d) (D) inquiry forbidding into certain 3. Federal Rule of Civil Procedure *6 part: scope pertinent limiting in or the or dis- disclosure matters; If, 12(b)(6) covery Rule or to certain a motion under 12(c), (E) pleadings pre- are designating persons may matters outside the the who be court, conducted; and excluded the the sented to not discovery present the while is must be treated as one for motion (F) requiring deposition that a be sealed parties All judgment under Rule 56. must order; only opened on court given opportunity pres- a reasonable be (G) requiring that a trade or other secret pertinent the ent all the material that is research, development, com- confidential or motion. not be revealed or be mercial information 12(d). Fed.R.Civ.P. specified only way; a revealed (H) parties 26(c) requiring that the simultaneous- states: Federal Rule of Civil Procedure specified ly information file documents or (1) any party person In General. A or from envelopes, opened to be as the in sealed discovery sought may move for a whom is protective ac- court directs. order in the court where the 26(c). pending an alternative on tion is Fed.R.Civ.P. —or relating deposition, to a matters 37(a)(5)(B) deposition Rule of Civil Procedure court the district where the 5.Federal for a will be taken. The motion must include states: good the movant has in certification that the is If the Motion Is Denied. If motion attempted confer with faith conferred or denied, protective may the court issue parties an other affected effort resolve 26(c) under Rule order authorized dispute action. The court the without court must, opportunity giving after an cause, may, good pro- an order for issue movant, heard, require attorney fil- the annoyance, party person tect a or from motion, ing pay party or or both embarrassment, oppression, or undue bur- deponent opposed the rea- who motion its including expense, one or more of den or opposing expenses sonable incurred in following: motion, attorney’s including But the fees. (A) forbidding discovery; the disclosure or payment this if the must not order court terms, (B) specifying including time and substantially justified or other motion was discovery; place, disclosure expenses make an award circumstances (C) discovery prescribing a method other unjust. seeking party than one selected 37(a)(5)(B). Fed.R.Civ.P. discovery; claim, contemplates employee may FLSA and the that a covered mane to Josendis’s directly against employer Part II file suit an the district court. proceedings to pay statutory wage, may fails him the discovery the district addresses the limited against any person make derivative claim after time court afforded (1) who acts on behalf of that closed, employer reviews the court’s asserts control over conditions of order, sanctions and concludes that neither employee’s employment. See Patel v. an decision constituted abuse discretion. (11th Wargo, F.2d 637-38 Cir. rejects Part III deals with and 1986) (citing Agnew, Donovan 712 F.2d challenges summary judgment. to the (1st Cir.1983) 1509, 1511 (explaining that Part IV concludes. person if derivatively is liable inti- is I. mately day-to-day involved in the opera- employer of an directly tions that would be A. FLSA)). liable under the “employ- The FLSA mandates that an In order to be eligible for FLSA over is “engaged ee[]” who interstate com- however, time, employee must first paid wage merce” must be an overtime demonstrate he is “covered” by the regular one and one-half times his rate for possible FLSA. types There are two forty all hours he works excess of hours coverage. See, e.g., FLSA Ares v. Manuel 207(a).6 § per week. 29 U.S.C. If a cov- Farms, Inc., Diaz ered employee paid statutory .2003) (citing Cir 29 U.S.C. wage, employee the FLSA creates 207(a)(1)). § First, an employee may private against cause action his em- claim coverage” “individual if he regularly ployer recovery unpaid for the overtime “directly partieipat[es] the actual 216(b).7 wages pay. and back Id. persons things movement of in inter *7 statute, by subject As defined state commerce.” Thorne v. All Restora- here, exceptions certain not at issue an (11th Servs., Inc., 1264, tion 448 F.3d 1266 employee “any is employed by individual Cir.2006) 776.23(d)(2) (citing § 29 C.F.R. 203(e)(1). § an employer.” Id. statu- (2005); (2005)); § 29 C.F.R. 776.24 see tory “employer” definition of is similarly 207(a)(1) § 29 (mandating also U.S.C. broad; it encompasses employer both the “employees time-and-a-half for ... en- for whom employee directly works as in gaged [interstate] commerce or in the “any person acting well as or directly indi- production goods of com- [interstate] rectly merce”). in the interests of an employer Second, in subject an employee is 203(d). an employee.” § relation to enterprise Id. if coverage he is “employed accordingly We have held the FLSA in an enterprise engaged in or commerce provision 6. The relevant regular states: limes the rate at which he em- is ployed. Except provided as otherwise in this sec- tion, 207(a)(1). employer employ any § no shall of his 29 U.S.C. employees engaged who in workweek is 216(b) production goods provides part, commerce or in the of 7. Section in relevant commerce, employed isor in an enter- "Any employer provisions who violates the prise engaged pro- in commerce or § [29 207] U.S.C. shall be em- liable commerce, goods duction for work- ployee employees or affected in the amount longer forty week than hours unless such unpaid compensation ... their overtime ... employee compensation receives for his em- equal liqui- an additional amount as ployment in spec- excess of the hours above 216(b). damages." § dated 29 U.S.C. ified at a rate not less than one and one-half
1299
commerce,”
statutory terms are un
ambiguous or the
goods for
production
207(a)(1),
commerce
Inc.
§
where
Chevron U.S.A.
v. Natural
defined.
29 U.S.C.
commerce,
“trade,
transportation,
Council,
837, 843-45,
means
Res.
467 U.S.
Def.
transmission,
among
or communication
2778, 2781-83,
gaged in construction FLSA’s and pret the individual functioning intimately related to the or coverage provisions light follow- and channels of existing instrumentalities ing operative facts and also to decide or facilities for the interstate commerce 776.23(c) § deserving whether is of Chev- goods for such commerce.” production Now, having ron deference. laid the stat- 776.23(c). § regulatory The relevant Id. utory regulatory groundwork for and this text reads: appeal, we turn to those facts. employed
All in con- employees who are B. nection with construction work which is Wall, intimately formerly closely corpo- related to func- Wall to a Florida existing in the tioning engaged instrumentalities ration home restoration business,10 repair employed channels of interstate commerce facil- 8, 2006, production goods February ities for such from November until within scope excepting commerce are two months 2007 when 2008— Closely intimately a separate [FLSA]. related Josendis worked for construc- enterprise. Jorge construction work includes the mainte- tion Eloísa Acosta and nance, reconstruction, codefendants, repair, Lim, redesign- managed both toWall ing, improvement, replacement, enlarge- employees directly and were ment, in all facility. or extension a covered involved of Wall to Wall’s business subject If project during period. the construction to activities [FLSA], employees partici- all who Wall, working for Wall While Josen- covered, pate integrated effort are assigned dis to various construction including only those who are en- in and projects around southern Florida. gaged in work at the site construction His plumbing tiling; duties included mechanics, laborers, handymen, such as door, window, floor, and kitchen installa- watchmen, truckdrivers, guards, time- tion; granite and stucco and work. He checkers, keepers, surveyors, inspectors, forty worked than more hours a week and workers, men, repair payroll but earned approximately per day. Wall $120 office, clerical, bookkeeping, also audit- not, however, pay Wall did Josendis the ing, promotional, drafting, engineering, overtime rate mandated 29 U.S.C. employees. custodial and room stock 207(a) § employees. for covered (footnote omitted).9 776.23(c), Id. Under C. then, any employee part qual- who takes *9 work, ifying employed construction for working Josendis ceased Wall to work, 2008, by employer engaged 11, an February got such Wall on he after ostensibly would to enforce a dispute wages entitled the into over back he claimed wage provisions FLSA’s and collect to FLSA Wall to Wall still owed him. On 776.23(c) (6th Cir.1986). however, approximates language language, 9. Section That 203(s)(4) § once that was found 29 U.S.C. longer part a is no of FLSA. subjected employees engaged and that in con- enterprise to struction reconstruction cov- corpo- longer 10. Wall to Wall is no an active See, erage. Ferguson e.g., Neighborhood ration under Florida law. Cleveland, Inc., 549, Hous. Servs. of 2008, compensation overtime under the FLSA 25, brought this lawsuit July he Wall, Acosta, coverage enterprise via individual and cov- and Lim to against Wall affidavit, Wall”),11 seeking erage. back As Acosta stated his (collectively to “Wall (1) overtime, engaged had not in interstate liquidated dam- unpaid wages, interest, to attorney’s employee, as a Wall commerce Wall ages, prejudgment $249,719 reported in fees, expenses of income litigation under I, 448.08, § tax that Wall to and Fla. Stat. federal return evidenced FLSA in Count gross receipts had not II.12 Wall satisfied in Count $500,000 years of threshold of 3, September responded to Wall Wall to employed which Wall had Josen- Wall 2008, the com- a motion dismiss with dismiss, dis.14 In its motion to Wall to relief, state a claim for plaint for failure to court treat Wall asked the district 12(b)(6), a statement see Fed.R.Civ.P. summary judgment, motion as a motion facts, provided undisputed an affidavit 12(d), to the extent see Fed.R.Civ.P. Acosta, copy verified Wall beyond court looked the four corners of tax Wall to 2006 federal return.13 Wall’s reach the complaint merits complaint that the should be argued motion. its allegations coupled because dismissed — facts, September On Josendis filed a undisputed with the statement (the Complaint affidavit, tax return— Verified Amended and the federal “VAC”).15 presented the district ineligible was VAC showed that (2002), L.Ed.2d 271 122 S.Ct. supra note 1. See illegal an which held that alien fired viola- jurisdiction Act, had over 12. The district court Relations tion of National Labor § pursuant 217. The I U.S.C. Count seq., § U.S.C. 151 et was not entitled an jurisdiction pursuant over Count II court had equitable pay period for the award back to 28 U.S.C. 1367. unlawfully during deprived which was he work, rights implicitly his overruled our himself and oth- Josendis sued on behalf of South, Quality Inn in Patel v. decision similarly employees Wall to er situated (11th Cir.1988), explicitly F.2d 700 employees. complaint His con- former illegal the FLSA held that alien covered however, pre- allegations, tained no class wages unpaid and over- could recover back sought sumably never for that reason he class actually performed. We time work generally Fed.R.Civ.P. 23 certification. See granted properly hold that the district court actions). (pertaining to class We therefore summary judgment for Wall to Wall on Josen- presenting only case consider Josendis's as dis’s claims to individual and cov- his individual claims. erage, and we do not address this alter- thus only and Lim were deriva- 13. Because Acosta theory. native liable, tively Wall to Wall’s motion asked the against claim them court to dismiss the FLSA operative pleading VAC in this 15.The is the 15(a)(1)(B) (permit- well. appeal. See Fed.R.Civ.P. ting right party pleading as of to amend his an alternative 14. Wall to Wall also raised twepty-one days responsive mo- within support theory in of its motion dismiss. In brought tion in accordance Fed.R.Civ.P. affidavit, explained that Josendis his Acosta 12(b)). the VAC a verified Because illegal Wall Wall was an alien and that signature, pleading bearing Josendis’s Josen- immediately after Acosta learned fired him swore, penalty perjury, dis that the under immigration status. Wall to Wall about his allegations therein were factual contained *10 alien, suggested illegal an Josendis knowledge true and correct to best his bring was not entitled to a FLSA claim. exceptions perti- not and belief. With minor here, however, the VAC did not indicate regard, Wall Wall that nent In that claimed allegations based on which of the factual were Supreme decision in Court’s Hoffman NLRB, personal knowledge, which were Compounds, U.S. Josendis’s Plastic Inc. v. allegations natively, summary judgment court with additional factual for on the original complaint. partic in In grounds found his same September asserted (1) ular, stated that VAC ineligible motion: Josendis for was over- replace at least fifteen kitchen performed compensation time under the FLSA via Wall, minimum at a ments for Wall enterprise coverage. individual and Jo- (2) 2007; $8,000 average apiece, value opposition sendis filed a memorandum he, employ like all of to Wall’s other Wall 24, to the motion on In October ees, multiple jobs and multi worked on memorandum, he stated he could not job ple employed by sites while Wall adequately motion, against defend if Wall; (3) regular in addition to its summary treated as a judg- motion for work, remodeling Wall to Wall had also ment, without complete additional time to twenty thirty been hired to renovate discovery he thought would neces- apartments at the Miami Jewish Home sary to coverage. establish FLSA (the Hospital Aged for the “Miami Despite the memorandum’s statement (4) Home”); to Wall earned approxi that additional time was needed for discov- mately $56,000 jobs many for one of the it ery, nothing Josendis did to obtain this 2007; completed management necessary information while Wall to Wall’s employees provided Wall Wall with fact, motion pending. nothing hap- was In of approximately company-owned use ten pened January the case until transportation job vehicles as to and from when the district court entered order sites. stating it treating that was toWall Wall’s alleged VAC also had Acosta motion as a motion for judgment regularly asked Wall to Wall’s clients to pursuant to Federal Rule of Civil Proce- make out payable directly checks to him or 12(d) granting dure Josendis “addi- Lim instead Wall in exchange of Wall to discovery.” tional time for The order re- tax, for not charging those clients sales quired him to “propound [all] inferring that Wall to Wall’s 2006 federal requests seeking necessary information tax return underreported gross against defend the instant Motion for Sum- year sales and that Wall to Wall’s mary Judgment” by February 3, noon 2008 returns would un- likewise gave 2009. The court Wall to fifteen derreport gross receipts. Extrapolat- days to respond discovery requests to such ing employees from the number of working to, ten days additional if nec- Wall, jobs toWall the number of com- essary, supplement his memorandum in pleted by Wall, expenses Wall to sus- opposition to the motion. tained in completing Wall Wall those jobs, and knowledge of Wall to When the clock struck noon on Febru- average prices specific Wall’s jobs, ary Josendis had taking not noticed the “belie[f|” alleged VAC that Josendis’s any depositions served Wall Wall that Wall to gross Wall had sales in excess any interrogatories or requests for $500,000 in both 2007 and 2008. production admissions or of documents. 3, 2008, Nonetheless, On approximately October toWall Wall moved two hours af- the district court to dismiss court-imposed passed, the VAC for ter the deadline had or, failure to a claim state for relief alter- Josendis faxed to defense counsel three based on otherwise hearsay conjecture. admissible evidence or sible testimony, and which based on inadmis- *11 summarize, that, a Josendis claimed be- discovery requests and To of extensive sets hospital a Miami Home was a to sub- cause the or that he intended serve “notice” aged, for care of the it to all of institution the was the Miami Home obtain poena on in interstate com- relating enterprise to its involved financial records deal- the coverage, of purposes merce FLSA to Wall. ings with Wall 203(s)(l)(B), § that evidence and of U.S.C. discovery requests, sent The first set of to at the Miami Wall Wall’s work Home requested 2:09 the approximately p.m., accordingly help him would demonstrate twenty-three of different cate- production subject he to coverage that was documents, covering the entire gories of 776.23(c).16 § by virtue of C.F.R. The operations. Josen- field Wall to Wall’s financial Miami Home’s records could also forty- requests, set of faxed dis’s second helped have Josendis establish that Wall later, minutes sought thirteen differ- four $500,000 gross to Wall had at least sales admissions, pertained most of which ent in 2007. vehicles, equipment, to Wall’s em- job history, opposed and work at the Mia- Wall to Wall Josendis’s motion ployees, First, grounds. on two the in- requests, requests, mi Home. His third set sent cluding subpoena p.m., interroga- 3:43 included nine the Josendis intended to around Home, to Miami tories to Wall to Wall’s custom- have issued were un- pertaining Second, ers, timely.17 accounting practices. argued it the re- employees, quests unnecessarily were voluminous in- 4, 2009, February day, The next Josen- sought as sofar Josendis information that pro dis moved district court nunc tunc challenge not necessary was the basis of period by four discovery to extend the motion for judg- Wall’s hours, i.e., he had permit the ment —that Josendis could not establish or, February 3, the afternoon of launched coverage. FLSA limited alternatively, for leave to conduct granted part discovery pertaining only to court denied Wall Wall’s part pro the Miami Home. Josendis’s nunc tunc motion and work sought discovery request work for leave to done at denied sub- § poena Miami Home’s records. To the Miami Home based on 29 C.F.R. 776.23. claiming specific, In addition to that Josendis's re- 16. To be more Josendis reasoned (1) untimely, qualified hospi- quests a Wall to Wall also the Miami Home ar- that, was, litigation aged according- gued parties tal because or home for give prior ly, enterprise pursuant a each other notice before serv- covered to U.S.C. must 203(s)(l)(B); (2) by ing subpoena party, § a virtue of work at the on third his was, Home, therefore, given "employed it intent Miami should have notice his subpoena work on the Miami Home three connection construction serve days closely intimately deadline related to func- full before the noon on Febru- [was] 45(b)(1) (man- ary tioning existing” enterprise, 2009. See Fed.R.Civ.P. covered [an] that, 776.23(c); (3) dating subpoena § if a "commands the 29 C.F.R. covered enter- documents, prise equivalent production electronically of an "in- is functional information, strumentalitfy] tangible things or the channel[] of interstate stored trial, premises production inspection facilit[y] before then be- [a] commerce id.; commerce,” served, goods it a notice must be fore served on [interstate] 776.23(c) party”). consequently, demanded that each Wall Wall further contended event, January scope” the court’s he be treated as "within the of the coverage protections, did authorize Josendis to sub- id. 2009 order FLSA’s individual parties proposed syllogism poena third and that We address the merits of this III.C, ground. subpoena improper part infra. *12 discovery the court found Josendis’s discovery extent scattershot nature of Josendis’s motion, to requests germane demands, Wall to Wall’s that against concluded sanctions propound it him leave to such re- gave Costales, attorney, Gary Josendis’s A. court, however, tailored quests. The cer- stated, were called for. the court As “[i]t the requests tain to issues before the drafting is obvious the of [Josendis’s] coverage court: individual discovery requests instant was done with- the coverage. The court denied motion as out any effort to constrain within them the requests, to the remainder Josendis’s discovery bounds set for at this time: re- describing requests those “overbroad to sponding summary to Wall’s judg- [Wall they meaning did not irrelevant” — ment motion].” The court subsequently or pertain to Josendis’s Wall to Wall’s pay ordered Costales to Wall Wall to $330 involvement in interstate commerce or to See Fed.R.Civ.P. attorney’s fees. amount Wall to gross the Wall’s re- 37(a)(5).20 26(e)(3), ceipts as “redundant.”18 —or Wall to Wall thereafter with complied The district court then construed Wall the court’s instructions and completed, to opposition discovery to to the Wall’s de- of its ability, best the ordered discov- made February mands Josendis after the ery.21 5, 2009, On March 26(c) reviewing after for pro- deadline as a motion a Rule discovery Wall Wall provided, to Jo- respect tective order with to “overbroad sendis filed a supplement opposition or requests and irrelevant” “redundant” his granted the court disallowed.19 The court the motion summary judgment. for and, protective order based on the The supplement incorporated all, granted (D) matters, 18. forbidding In the court Josendis's inquiry motion into certain limiting for additional time to serve Wall to scope Wall with or or disclosure dis- twenty-three requests production covery five of for certain matters[.] scope and limited the of two additional re- 26(c)(3), 20. concerning protec- Fed.R.Civ.P. quests pertaining to certain documents to out- orders, permits tive expenses a court to award approved of-state transactions. The court six any party prevails obtaining pro- who a requests of thirteen admission "disal- pursuant 37(a)(5), tective order to Rule con- remaining requests lowed” the for admission turn, cerning compel. motions to In Fed. purposes as "overbroad and irrelevant for 37(a)(5)(B) (C), concerning R.Civ.P. mo- responding motion judg- [the compel tions are denied are finally approved ment].” The court three of granted part part, respective- and denied in interrogatories nine and limited an additional ly, any protec- authorizes court who orders seeking interrogatory out-of-state addresses. response compel tive order in to a motion to requests. It denied all of Josendis’s other “apportion expenses” the reasonable asso- protective ciated obtaining order. states, 26(c) pertinent part: 19. Rule party In A General. ... from whom Wall, however, pro- was unable to discovery sought may protec- is for a move vide Josendis with of its financial docu- tive order in court where action ments from save for the pending---- may, good The court summary pre- 2006 tax return and a financial cause, protect issue order party ... pared by preparation separate Acosta in for a embarrassment, annoyance, from oppres- previously against FLSA lawsuit filed Wall to sion, or expense, undue burden or includ- point Wall. At some after the initiation of ing following: one or suit, more Josendis's Wall to Wall had evicted been (A) forbidding discovery; disclosure paying from its office for not rent. Once the property premises, owner reentered the (C) prescribing method placed other to Wall’s business records were on the party seeking than one selected street. Neither nor Lim Acosta rescued those discovery; records, they [and] lost forever.
1305 might and to Wall Miami Home that Wall argued motion and response to the earlier material all of Miami Homes’ issue of be asked remodel genuine a that there was liability: that he “be- theories of FLSA said apartments. under both Whitten fact 2008, coverage. As enterprise in Wall to individual lieved” that 2007 and Wall argued theory, thirty- at “repaired the former or worked on least vehicles and (31) of Wall to Wall’s his use Dulanto apartments.” [of those] one (“GPS”) units Positioning Satellite Global in a of belief his made similar statement is- material presented them installed that he had affidavit. Whitten also said coverage. fact individual regarding sue of secretary a Wall to order- witnessed Wall theory, argued the latter As to the internet —from source she ing over to whether issues of fact remained as as “outside the being described State (1) employ- two or more to Wall had Wall parts the GPS units installed Florida” — working or otherwise handling, selling, ees of the vehicles. Whit- company’s in each in or that had moved goods or materials on knowledge, though, lacked of where ten (2) produced for commerce and had been manufactured, actually parts were $500,000 more than grossed to Wall Wall stored, shipped. 2007, He also 2008. year
per day after his filing March On 776.23(c) § preclud- argued 29 C.F.R. an Josendis filed affidavit supplement, regulatory summary judgment his ed what said about the augmenting Whitten coverage.22 claim of affidavit, In Josendis stat- GPS units. his argu- support these Josendis found company “regularly that he drove vans ed allegations ments the factual by were owned [Wall believed [he] provid- VAC,23 Wall Wall during employ- time of [his] Wall] Troy ed, Allen Whitten the affidavits 2007, that vans in 2006 and those ment” Dulanto, and the inferences and Wilard units, that he equipped with GPS this evi- reasonably body from drawn every day. unit used a GPS affidavits, In Whitten dence. their summary granted The district court they had witnessed stated that Dulanto Acosta, Lim, I of the to Wall to on Count pay judgment Wall to Wall customers v. Wall on March 2009. Josendis with Acosta VAC cooperating or individuals Inc., 606 Repairs, Residence Lim, em- to Wall for work done Wall to Wall (S.D.Fla.2009). that, The court F.Supp.2d a conver- added ployees. Whitten many the VAC’s Acosta, him that refused consider with Acosta told sation they $13,000 allegations did to factual because to make to Wall stood 56(e)’s personal knowl- comport at the with Rule $14,000 remodeled per apartment requirements of Fed. reorganized as it conforms to the 56 was In Fed.R.Civ.P. 56(e). citation to district court’s States Four Parcels and altered. The R.Civ.P. United 56(e) now is Fed.R.Civ.P. Prop., Fed.R.Civ.P. 1444 n. 35 Real 56(c)(4). do not changes to the rules Cir.1991) (explaining long so Rule as way. clarity, analysis in For affect our satisfied, 56(c)(4) 56(e) Rule —is —now appeared refer as it we will to Fed.R.Civ.P. allegations complaint are treated verified motion court ruled on the when the district judgment stage). summary as evidence summary judgment. fails, large infra, explain the VAC As we 56(e)’s comply personal Rule part, judgment stage, a verified 23. At the therefore, knowledge requirement and to the may as pleading like the VAC also serve failure, a court of the is not evidence extent providing of the thereby affidavit — factual summary judgment. may consider long allegations contained therein — so aged was a or home for the requirement;24 hospital two edge 203(s)(l)(B) prefaced “facts” were with the described U.S.C. sworn law; believed,” and the as a matter of rest were insufficient phrase “[i]t *14 776.23(c) they that section was not entitled Chev- qualified Josendis’s statement it an un- knowledge “to the ron deference because concerned [his] were true best (emphasis ambiguous of the FLSA. Id. at Id. at 1379-80 add- section and belief.” ed). the allegations, Having foregoing all 1381-82. reached discarding After these court a holdings, judg- left to claim of the entered final support that was Josendis’s his and ment in coverage individual were Whitten’s favor Wall Wall.25 regarding affidavit statements use of appeals Josendis now the district court’s and GPS Wall to Wall’s vehicles units. ruling. As indicated in the introduction to held that statements The court those opinion, this that materi- submits a law to insufficient as matter of establish al precluded summary judg- issues of fact coverage they because did not individual ment, that and court would have yield that permissible a inference agreed him the discovery had it afforded he engaged interstate commerce when requested. He also appeals court’s used vehicles or GPS units. Id. at ruling against sanctions Costales.26 We 1383-84. turn the discovery first to and sanctions nothing issues, The district court also found to the the summary then merits of the VAC the affidavit Josendis at- judgment disposition. supplemented opposition
tached to his ques- Wall to motion that called into Wall’s II. tion, controverted, much less Acosta’s affi- A. davit that statement Wall Wall had not $500,000 grossed over in sales in district court has broad dis 2008. Id. at 1380-81. Because cretion Federal under Rule of Civil Proce genuine there no was issue material fact compel deny dure 26 discovery; we prerequisite as to enterprise that cov- discovery therefore review the court’s rul erage, the court held judg- that ings for an abuse of that discretion. Sand theory. ment was also on that warranted Fla., erlin v. Seminole Tribe 243 F.3d 1381,1383. Id. at (11th Cir.2001). 1282, 1285 “Discretion The district court then addressed means a ‘range the district court has choice, regulatory discarded Josendis’s claim of that will not decision coverage. Specifically, long stays disturbed as as it within that court range by any held reliance on Josendis’s and is influenced mistake ” § C.F.R. 776.23 misplaced Betty Agencies, was for two rea- of law.’ K Ltd. v. M/V (11th Monada, proof sons: Miami Home F.3d Cir. states, 56(e) 24. pertinent part, having Rule reasoned dismissed federal supporting opposing “[a] affidavit gave must be subject claim which rise to its matter personal knowledge, made on set out facts jurisdiction, dismissal of the law claim state evidence, that would be admissible appropriate was exercise its discre- competent testify show that the affiant is 1367(c)(3). § tion. 28 U.S.C. 56(e)(1) the matters stated.” Fed.R.Civ.P. (2009) (amended 2010). jurisdiction ap- 26.We have over Josendis’s peal pursuant to 28 U.S.C. 1291. separate 25. The district court issued order dismissing Count II VAC. The of the court when, as 2005) premise especially That true Elite Ins. Co. v. Guideone (quoting Church, here, from Inc., reprieve who seeks a Presbyterian party Old Cutler Cir.2005)). yet discovery. taken any the court has not Accord- F.3d complaint filed on original was “the of discretion stan- under abuse ingly, 25, 2008; July deadline dard, leave district will undisturbed and, between, 3, 2009; February Josen- unless that the dis- ruling we find court’s or re- propounded interrogatories dis no judg- made clear error court has trict no legal quests depositions scheduled ment, applied wrong stan- or has Guideone, known obtain that he had to have dard.” *15 be, Moreover, by complaint, the terms of his discovery rulings will not be would such, claims. [they] “unless that relevant to his As because overturned it is shown permit had no to duty harm to the the district court appel- in substantial resulted deny any discovery, v. its decision to Josen- Iraola & S.A Kim- lant’s case.” CIA subpoena request untimely dis’s noticed Corp., F.3d berly-Clark id.-, (11th Cir.2003) not See v. Bell was an abuse discretion. (quoting Carmical Textron, Co., Inc., also v. Disney 117 F.3d 493 see Corwin Walt World Helicopter (citation (11th Cir.2007) (indi- (11th Cir.1997) and internal 475 F.3d quo- omitted)). an cating that a district court commits mark tation only clear- abuse of where it has discretion First, the district court did not facts). ly contrary acted to the law or the denying by discretion Josendis’s abuse its Second, did its dis the court not abuse subpoena to the Miami Home for request part mo denying out of its cretion in arising the financial records deal discovery time to begin to The court tion additional ings Wall Wall. ordered to discovery granting protective submitted Wall Wall a requests all that re covering discovery 2009. order the denied February noon on The before words, the court was grant quests to other court therefore had discretion —in of its protective range order within the broad discretion response Wall to Wall declaring discovery requests that that the denied were requests to were overbroad, irrelevant, either or otherwise at or before that deadline. See submitted 26(b) or (reserving previously redundant. The court had the dis Fed.R.Civ.P. that only to authority parties broad to control the dered the conduct trict courts to to discovery). though discovery necessary the enable Josendis And court scope summary judg authority post respond to to Wall’s grant the to hoc ex had discovery, good ment motion. ordered discovery tension of the deadline so; then, court cause, intentionally by limited obligation it was under no do motion; those fact, that a to the issues raised we have often held district coverage litigants enterprise to the issues—individual court’s decision hold orders not under FLSA—defined the contours scheduling terms of its clear discovery. Fed.R.Civ.P. E.g., permissible an Bearint ex See of discretion. abuse 12(d) Inc., give district courts to Grp., (requiring v. rel. Bearint Dorell Juvenile (11th Cir.2004) 1339, 1348-49 opportunity pres (up parties “a reasonable pertinent all material that is an of discretion stan ent holding under abuse added)). Any discov excluding (emphasis motion” a district court’s decision dard directly tied to ery requests that were not report after the dead expert disclosed coverage accord individual and for its sub line the court established mission). scope ordered ingly of the exceeded and, by hourly employees
discovery cabined court’s dis who worked for [Wall cretion, subject denial and the were for the period relevant Wall] protective See issuance of order. Fed. time.... 26(b)-(c); Washington see also R.Civ.P. All income reporting docu- Corp., Tobacco
Brown & Williamson ments submitted to the [Wall Wall] (11th Cir.1992) 1566, 1570-71 (finding F.2d Internal Revenue all regarding Service no discretion when the abuse of district employees who held same position discovery requests court denied position(s) similar as Plaintiff who certification). irrelevant to class worked for for the [Wall Wall] rele- below, As more detail explain vant period time.... correctly court determined the denied sheets, cards, 6. All time time time rec- discovery requests were either outside the ords, attendance records and documents scope order or otherwise all hours worked least, very
flawed. At the
the court’s deci-
employees of [Wall Wall]
for the rele-
“range
sion was within its
of choice” allot-
vant
period
time.
*16
ted
the abuse of
under
discretion standard.
7. Any and all documents
to
relating
Agencies,
See Betty K
1. pay period 9. For each on commencing The court disallowed the following time, period the relevant all pay- of requests production in Plaintiffs First checks, stubs, reports, pay pay computer Request for Production to Defendants as reports printouts or or other documents “irrelevant,” 2-3, “overbroad” Order at evidencing paid the amount to all em- Josendis v. Wall to Wall Residence Re ployees [Wall of to for the Wall] relevant Inc., pairs, 0:08-cv-61175-WJZ, No. period time. (S.D. 5, 2009): WL 290241 Fla. Feb.
1. all Any and documents that support, 10. All pursuant documents maintained evidence, prove or to the allega- relate to ... 29 C.F.R. (requiring 516.2 [ tions made [VAC]. employers to preserve “maintain and payroll or other Any pertaining 2. and all records” to documents that support, FLSA) evidence, employees by to covered relat- prove any ] relate of [Wall ing employees. to all to affirmative defenses. Wall’s] 3. All reporting income docu- 11. All evidencing documents the re- by ments submitted to to the [Wall Wall] porting earnings of all employees regarding Internal Revenue Service to parties, [Wall Wall] to all third years Plaintiff [three calendar prior include, which shall shall but not be filing original to the of Josendis’s com- to, carriers, limited insurance worker’s (the plaint July “relevant carriers, compensation insurance agents time”)]. period of representatives, federal, state and/or 4. All reporting income taxing docu- and local authorities and the by ments submitted to Unemployment [Wall Wall] to the Florida Compensation Internal Revenue regarding Service all Fund. to for the Wall] of the remu- formed rele- any part [Wall extent
12. To the period. time vant to compensation paid neration and/or not re- employees was Wall’s] to [Wall paychecks, their respective
flected in pertaining All bank records to 23. evidencing the period documents for the relevant produce Wall] all [Wall time.27 amount, purpose date nature
all such payments.
Record,
A at 3-5.
vol.
no.
Exhibit
requests
argues
these
pertaining
[sic]
All
documents
(1)
categories:
into
grouped
could be
three
employees
VAC].
named in ...
[the
reported
documents
which Wall to Wall
(2)
government;
its income
the federal
pertaining
[Wall
15. All documents
pertaining
earnings
documents
kitchen remodel-
work
Wall’s]
concerning
documents
employees; and
...
ing projects mentioned
present
jobs.
past
He
Wall Wall’s
[VAC],
suggests
each of these
also
document
potentially
could
led to the
categories
have
to vehi-
pertaining
16. All documents
evidence,
namely
of admissible
Wall]
or leased
[Wall
cles owned
circumstantial evidence
Wall Wall
or relat-
Wall’s]
construction
[Wall
$500,000
gross
more
sales
ed businesses.
years
employed
of the three
which it
Presumably,
reasons
Josendis.
*17
any
that,
re-
that
pertaining
21. All
to
if he
have established
documents
could
a
expenditures
exceeded
per-
or construction work
to Wall’s
had
cer-
modeling
by
any hospital
granted outright
court
Josen-
to
or home
[Wall Wall]
27.
district
2-3,
motion,
aged.
tunc
at
pro
dis's nunc
Order
for the
Record,
33,
1,
Repairs,
v. Wall to Wall Residence
vol.
at 4-5.
Josendis
no.
Exhibit A
Inc.,
0:08-cv-61175-WJZ,
WL
agree
granted
No.
2009
properly
We
the court
5, 2009),
(S.D.Fla.
as to the
regard
requests,
Feb.
to these
Josendis’s motion
following requests
production:
which were neither overbroad nor irrelevant
coverage.
to FLSA
reflecting
8. All
of the
records
approved
pro-
The court also
two additional
including,
gross
[Wall Wall]
income of
to
2,
requests,
at
duction
Order
Josendis Wall
to,
records,
tax
bank
but not limited
IRS
Inc.,
Repairs,
No.
Wall Residence
0:08-cv-
to
statements,
of
balance sheets
records
61175-WJZ,
(S.D.Fla.
WL
Feb.
audit(s).
any financial
5, 2009),
they
narrowly
but ordered that
pertain only
projects
to
to out-of-state
read
pertaining
to
[Wall
14. All documents
to
vendors, respectively.
Those two re-
Home
work
the Miami Jewish
Wall’s]
quests were:
to,
including,
Hospital,
but not limited
Copies
permits pulled
sought
or
19.
of all
bills, contracts,
invoices, permits, vendor
by
on
of
[Wall to
behalf
customers
Wall]
change
or-
receipts, vendor invoices
to
[Wall Wall].
of
ders.
receipts,
All
or other
20.
invoices
docu-
pertaining
any
purchased
supplies
ments
pertaining
17.
to unem-
All documents
[Wall Wall].
ployment compensation premiums or other
33,
Record,
1,
vol. no.
Exhibit A at 5.
reported
paid
to the
amounts
to the State
in this
Because one of
issues
case
IRS.
engaged
whether Wall to Wall
in construction
pertaining
worker's
18. All documents
lines, 29
work that crossed state
U.S.C.
compensation insurance.
203(b), (s)(l)(A)(i),
abuse
see no
of dis-
placed
court
on
pertaining
any re-
cretion in the limitations the
22.
All documents
requests.
modeling
performed
work
these
or construction
then
laws
sum,
argued
scope
he could have
lations
state
outside
tain
statutory
wage
must have met the
the federal
statute
issue
Wall to
here.
16,
And
enterprise coverage.
remaining requests 13,
threshold
And the
—
possibility
overbroad;
he
seeing as
raised
all
and 23—are
each re-
intentionally underreported
Acosta
quest
spectrum
solicits a broad
of docu-
Wall’s income
Wall to
glance,
ments
at first
would include
we overrule the district court
asks that
great number
materials unrelated
grant
the court to
him additional
and order
or the
interstate commerce
measure
discovery.28
any
year.
sales in
fiscal
Wall Wall’s
accurately
the district court
Because
sense, it
In that
does not matter that
requests, howev-
characterized the denied
have
might
Josendis believes
obtained
instance,
er, we cannot do as he asks. For
circumstantial evidence of Wall to Wall’s
every
request
seeks
document
from
gross receipts
the documents he re-
allegations
that relates
made
quested. The district court’s denial was
VAC,
fairly
was
construed as over-
not unreasonable based on
limitations
irrelevant,
Request
certainly
broad.
discovery
it
Federal
placed
under
Rule
as Wall Wall never once raised the
12(d)
Civil
Procedure
inherent
possibility
asserting an affirmative de- power
to control
under Rule 26.
Requests
fense to Josendis’s claims.
B
will
upset
We
district court’s discov-
through
through
6 and 9
also
were
where,
ruling
now,
ery
its decision was
they
arguably
were aimed at
irrelevant —
within
realm reasonable choices al-
subsidiary questions
many
of how
hours
Corwin,
1249;
lotted to it.
475 F.3d at
See
employees
and his
worked
fellow
Betty Agencies,
K
13H
$500,000
were
excess
2005-2008,
receipts
[Wall
any
during
time
At
4.
no
we see
again
Yet
statutory threshold.
more than
[sic]
or leased
lease
to Wall]
characterizations
court’s
error
its con-
vehicles
or other
vans
ten
through 5 all
Requests
requests.
these
work.
struction
provid-
to Wall
the vehicles Wall
deal
2005-2008, [Wall
any
during
time
At
5.
use in travel-
for their
employees
its
ed to
other vehicle
one
leased
least
to Wall]
job
But
connec-
from sites.
ing to and
work.
for its construction
Wall’s decision
Wall to
tion between
was, at
receipts
and its gross
lease vehicles
at least
remodeled
to Wall]
[Wall
12.
then,
court,
best,
made
tenuous.30
during 2008.
kitchens
...
fifteen
denying Josendis’s
choice
permissible
at least
remodeled
to Wall]
[Wall
18.
through
5.
requests
motion as to
during 2007.29
kitchens
...
fifteen
abuse its discre
the court
Neither did
1-2.
1,
33,
C at
Record,
no.
Exhibit
vol.
13,
12 and
deeming requests
both
tion
number of kitchen
to the
requests
pertained
these
court denied
The district
per
employees
Wall to
Or-
renovations
Wall
“irrelevant.”
“overbroad”
as either
ir
employment,
during Josendis’s
formed
to Wall Resi-
v. Wall
der at
Josendis
cover
of FLSA
question
to the
relevant
Inc., No. 0: 08-cv-61175-
Repairs,
dence
not whether
(S.D.Fla.
issue was
Wall
age. The
Feb.
WJZ,
2009 WL
work,
remodeling
however,
actually performed
claims,
Wall
2009).
again
Josendis
grossed
had
Wall to Wall
but whether
compelled
to Wall been
year as a
$500,000
per
in sales
or more
could have
foregoing facts
admit
reason,
For
that work.
result of
gross
Wall’s
eventually proved Wall
position is as fol-
Presumably, Josendis’s
requests
30.
denied
way
to the
By
of contrast
29.
not have remained
Wall to Wall
admissions,
lows:
could
granted Josendis's
the court
earnings,
outspent
long it
if
following
in business
as to the
additional time
motion for
much
establish how
could
Wall to Wall
if
requests, Order
vehicles, Josen-
spent on its
Inc.,
Wall had
Wall to
No. 0:08-cv-61175-
Repairs,
Residence
had,
at the
Wall to
(S.D.Fla.
assume that
WJZ,
dis could
Feb.
WL 290241
least,
during the
amount
very
earned that
2009),
point and relevant
were
of which
all
period.
time
coverage:
relevant
question of
to the
problems with that reason-
two
There
performed work for
Wall]
[Wall
First,
only
earnings
spending
are
ing.
Hospital at
Home and
some
Jewish
Miami
*19
correlated;
enterprise can out-
an
loosely
during
point
2005-2008.
enter-
earnings
year if that
in one
spend its
performed work for
Wall]
to
[Wall
7.
year,
it
previous
and
surplus
prise
Hospital located
Jewish Home and
Miami
against projected future
also borrow
point
could
dur-
at some
NE 2nd Avenue
at 5200
present
earnings
up
a loss
to make
for
ing 2005-2008.
Second,
concretely, Wall to
and
year.
more
work on behalf
performed
8. Plaintiff
failed,
be inferred
actually
it can
so
Jewish Home
at the Miami
Wall]
[Wall to
than it
actually spent more
Wall to Wall
Hospital.
and
were
Accordingly, even if Josendis
than fif-
earned.
more
employed
Wall]
to
[Wall
9.
requested, he
get the information
able to
(15) employees in 2007.
teen
any
to establish with
still be unable
would
than
employed more
Wall]
to
[Wall
10.
is,
speculation—
beyond mere
certainty
independent
contractors
fifteen
—that
any
expenditures
Wall's
bore
to
that Wall
2007.
result, the
earnings. As a
relationship to its
paid
than
more
to
Wall]
[Wall
11.
abuse its discretion
did
court
($50,000)
district
its work
fifty-thousand dollars
opportunity to
denied Josendis
when it
Jewish Home.
at Miami
evidence.
circumstantial
1,
33,
such
Record,
obtain
C at 2.
no.
Exhibit
vol.
requests
years
13 was
three
time that
preceding
decision on
and
court’s
acceptable
Complaint
exercise
its discretion.
Plaintiffs
was filed.
Corwin,
1249;
at
K
Betty
See
name,
8.State
address and tele-
1337.
Agencies, 432 F.3d at
of all
phone number
Certified Public
firms, accounts,
Accounting
accounting
3.
services, bookkeeping
pay-
services and
Finally,
district court did not
provided
roll services who
services to
denying
its discretion in
abuse
Josendis’s
to
during
period
the relevant
[Wall Wall]
applied
to
follow
compel
motion
as
to the
of time and include the name of each
interrogatories:
ing
bookkeeper
individual accountant or
who
names
busi-
2. Please list the
of all
performed such services if the Certified
per-
for which
[Wall Wall]
nesses
firm,
Accounting
Public
accounting firm
work,
any
or provided
formed
services
bookkeeping
partner-
firm is or
awas
to,
any time
at
between 2005-2008.
ship,
corporation
professional associa-
tion.31
[Wall Wall]
5. Has
ever leased or
Record,
1,
33,
5,
vol.
at
no.
Exhibit B
8-11.
vehicles,
purchased any
or has some
(or
party
third
either individual Defen-
The court denied Josendis’s motion to
dant)
purchased any
leased or
vehicle
compel
interrogatories
as to each
these
Wall],
so,
for the use of
If
[Wall
overbroad,
they
because
either
were
irrele-
make,
please
year
state the
model
and
vant, or
“redundant
other
re-
vehicle,
and the dates owned or
quests already allowed.” The court was
leased.
interrogatories
correct
the denied
provide
6. Please
the last known
not specifically
tailored to
issues
names,
phone
and
addresses
numbers
raised
judg-
Wall to Wall’s
for all
the individuals
referenced
1, 2,
Interrogatories
5,
ment motion.
complaint
alleged
Plaintiffs
to be
example,
were overbroad and irrele-
employees
current
former
[Wall
prior
vant based on our
discussion.
Inter-
Wall].
rogatories
and were also redundant
names,
7. Provide the
last known ad-
based
the district court’s decision to
of all
telephone
compel
dresses
numbers
respond
Wall Wall
limited
employees
interrogatory
requested
[Wall Wall] who worked
fashion to
during
at
[Wall Wall]
time
that Wall to
provide
the addresses of
granted
district
court
nunc
31.
3, 4,
pro
interrogatories
tunc motion as to
job
9. Please state the name
title
9.
Order
Josendis Wall to Wall Resi-
person(s) affirming
interrogato-
these
Inc.,
0:08-cv-61175-WJZ,
Repairs,
dence
No.
ries.
(S.D.Fla.
5, 2009).
WL
Record,
Feb.
6-7,
vol.
Exhibit
no.
B
They
read
follows:
permitted
The court also
*20
Josendis to re-
1,
quest,
interrogatory
that Wall to Wall
type
3. Please list the
of businesses for
provide "all addresses of all construction or
work,
performed any
[Wall Wall]
which
to
remodeling jobs performed by
to,
to
[Wall Wall]
provided
any
or
services
time between
2005-2008,”
scope
from
but limited the
of
2005-2008.
request
to
any
"all addresses for construction
4. For
address or business listed in
3,
remodeling jobs outside
response
Interrogatories
through
the State of Flori-
to
1
before,
please
Id.
performed
state
da.”
As
find no abuse of
whether Plaintiff
any
any
supra
work for
such
resi-
discretion in the
limitation. See
business or
court’s
dences,
so,
and if which ones.
note 27.
court
findings
of the trial
jobs
remodeling
mination
construction
all of its
record.” Car-
fully supported
and to
are
period,
relevant
time
during the
F.2d
Corp., 775
4,
requested
Piper
v.
which
lucci
3 and
interrogatories
Aircraft
(11th Cir.1985) (internal
1440,
quota-
whom
clients for
list the
to Wall
that Wall
omitted). A district court
per-
marks
tion
to Wall
Wall
and/or
misap-
it
only
2005 and 2008.
discretion
when
work
any
between
abuses
formed
on find-
the law or bases its decision
plies
7,
again
Interrogatories 6 and
clearly
that are
erroneous.
ings of fact
to
information
other Wall
about
sought
Head,
n. 69
v.
206 F.3d
Mincey
the same
employed
employees
Wall
Cir.2000).
(11th
Therefore, we will not
Josendis,
irrelevant for the
were
as
time
imposition of sanctions under
reverse the
just-discussed re-
that the
reasons
same
“left with a definite
37 unless we are
Rule
Also, interrogato-
irrelevant.
quests
firm conviction that the court below
accounting
8, concerning
to Wall’s
ry
in the
judgment
a clear error of
committed
on the
redundant based
practices,
upon weighing
it reached
a
conclusion
compel Wall
prior decision to
court’s
Dorey,
v.
Dorey
factors.”
relevant
reflecting a
produce “[a]ll
records
(internal
(5th Cir.1980)
1128, 1135-36
F.2d
gross
[Wall
summary of
income
omitted) (quoting Wilson
marks
quotation
to, IRS tax
including, but not limited
Wall]
Am., Inc.,
561 F.2d
Volkswagen
v.
statements,
records,
sheets
balance
bank
(4th Cir.1977)).33
audit(s).”32
records
financial
then,
nothing
Ultimately,
we find
may
sanctions
A district court
award
the district court
to indicate
record
37(a)(5)(B)
if,
only
consid-
upon
Rule
under
in denying Josendis’s
its discretion
abused
26(c)
protective
a Rule
motion for a
ering
the above
applied
As
compel.
motion
37(a)
motion to
against
set
Rule
order
the court’s
interrogatories,
requests
(1)
discovery, the
denies
compel
court
within
denying the motion was
order
it
not “sub-
compel
because was
motion
law,
we will
and the
of reason
bounds
justified,”
pro-
issues the
stantially
Corwin, 475 F.3d at
it.
disturb
See
37(a)(5)(B).
Fed.R.Civ.P.
order.34
tective
1249;
Agencies,
K
court
award
B.
opposing
expenses
“reasonable
incurred
attorney’s
including
compel,
motion” to
of review for
standard
“[T]he
may issue
Id. Those sanctions
considering
appeal
an
fees.
court
appellate
an
discovery, that
party seeking
against
Rule
Civil
[Federal
sanctions under
Rule
attorney, or both.
Id.
party’s
to a
limited
sharply
37 is
Procedure]
37(a)(5)(C) similarly
a court
permits
and a deter-
of discretion
for abuse
search
denying
attorney’s
payment of
fees after
supra
31.
See
note
32.
moving
compel
party
to com-
if the
motion
Prichard,
City
In Bonner
33.
justified”
“substantially
pel discovery was
banc),
Cir.1981) (en
this
making
requests
if "other circum-
all deci-
adopted
binding precedent
court
unjust.”
expenses
stances make
award
down
handed
the former Fifth Circuit
sions of
Thus,
"substantially
compel
if motion
to October
prior
Fed.
issue.
justified,”
sanctions cannot
*21
37(a)(5)(B).
R.Civ.P.
37(a)(5)(B)
of Civil Procedure
Federal Rule
"must not order”
that a district court
states
“apportion
expenses”
the reasonable
in- versy,
against
imposition
counsels
opposing
curred in
a motion to
if
compel
sanctions
this case.
in part
grants
court denies
in part
record, however,
The
fully sup
a party’s
compel.
motion to
ports the district court’s holding that the
discovery requests
denied
were not “sub
rules,
In
the context
these two
stantially justified.” As we previously ex
a motion
compel
“substantially justi
plained, the court did not err in deeming
long
genuine
fied” so
as “there is a
dis
requests overbroad,
irrelevant,
those
pute, or if reasonable people could differ as
redundant. Neither do we believe that the
appropriateness
to [the
of the contested
district court’s finding that
peo
reasonable
Underwood,
Pierce v.
action].”
487 U.S.
ple could not differ as to
appropriate
2541, 2550,
108 S.Ct.
101 L.Ed.2d
requests
ness of the denied
“clearly
(1988) (alteration
(citations
in original)
erroneous,” Mincey,
vidual case. priateness of the court’s granting order summary judgment to Wall to Wall. Here, the district court awarded $330, the amount of attorney’s fees in III. curred in opposing Wall Wall Josen We review a district grant court’s post-deadline dis’s discovery demands, in of summary judgment de apply novo and the form of against sanctions Costales. the same legal standards as the district only The court did so after finding that court, “construing the facts drawing “obviousfly]” Costales had drafted his dis all reasonable inferences therefrom in the covery requests any “without effort light most non-moving favorable constrain them within the bounds set for party.” Centurion Cargo, Air Inc. v. discovery” by the court. Based on its im Co., United Parcel Serv. pression work, of Costales’s the district (11th Cir.2005). affirm We a district court then determined that the requests grant court’s of summary judgment when were “not substantially justified” light the pleadings, depositions, answers to in of the imposed. limitations Costales now terrogatories, file, and admissions on to argues that the court abused its discretion gether affidavits, with the any, if show that in imposing sanctions because the discov genuine there is no issue as to materi ery requests should not have been denied al fact and that the moving party is enti or, alternatively, good faith, were made in tled to judgment as a matter of law. Fed. as the court’s order did spe 56(c) (2009)(amended 2010). R.Civ.P. cifically indicate how far into the evidence it would allow Josendis to reach in oppos party moving judg ing summary judgment. Costales also ar ment “bears the initial responsibility of gues that his service aas member of the informing the district court of the basis bar, federal during which time he only Catrett, its motion.” Celotex Corp. v. once been prior sanctioned 317, 323, to this contro- 2548, 2553, U.S. 106 S.Ct.
1315 (1986). wages and overtime if moving par unpaid back FLSA Once the L.Ed.2d 265 showing, the burden required against were entitled to recover ty makes party to rebut non-moving face, question shifts to must to Wall. we or by producing affidavits showing then, 2006 tax is whether Wall to Wall’s be evidence relevant admissible other return35 combined with the factual state- 324, 106 Id. at S.Ct. yond pleadings. the affi- contained ments VAC 2553; Disney also Corwin v. Walt at see exe- the district court —those davits before Cir.2007) (11th 1239, Co., F.3d 1249 475 Acosta, Josendis, Whitten, and cuted at inadmissible evidence (explaining (1) at trial be admissible Dulanto —would at generally not be considered may trial (2) an sufficiently probative of essen- must judgment). All affidavits genuine of his case to raise a tial element and must personal knowledge based material fact.36 issue of admissible facts that would be set forth below, has failed explained As Evidence, Rules Ma the Federal under showing a to survive to make sufficient Deboer, 193 1322-23 cuba v. F.3d short, not summary judgment. In he has (11th Cir.1999), non-moving party and the coming his burden of forward satisfied satisfy its if the rebuttal cannot burden beyond admissible mere evidence colorable, not merely or is evidence “is to rebut evi- speculation Wall Wall’s fact, probative” disputed of a significantly on the essential of individ- dence elements Inc., Liberty 477 U.S. Lobby, v. Anderson enterprise coverage. ual and 249-50, 2505, 2511, 91 106 S.Ct. (citation omitted). L.Ed.2d non-moving fails under party
When the
A.
showing
to “make
sufficient
this rubric
subject
An employee is
to individ
case,
an essential
of its
establish”
element
coverage
directly
regularly
ual
if he is
Celo
summary judgment
appropriate.
in”
commerce.
“engaged
interstate
2552;
tex,
at
see
477 U.S.
S.Ct.
Servs., Inc.,
All
Thorne v.
Restoration
Regents
v. Bd.
also Johnson
(11th Cir.2006).
1264, 1266
As
F.3d
Ga.,
F.3d
Univ. of
in
explains,
sporadic
Thome
indirect
Cir.2001) (“[T]he plain
of Rule
language
volvement in commerce is insufficient:
entry
summary judg-
mandates the
56[ ]
make
against party
...
who fails to
ment
employee
“engaged
an
to be
[F]or
showing
sufficient to establish the exis-
FLSA,
under the
he must be
commerce”
par-
of an element essential to
tence
directly participating
in the actual
case,
ty’s
party
which that
will bear
and on
persons
things
inter-
movement
trial.”(third
proof
altera-
the burden
(i)
working for an
state commerce
original)).
tion in
commerce,
instrumentality of interstate
in-
transportation or communication
e.g.,
to be no
this
appears
dispute
There
(ii)
dustry employees,
by regularly
employee
an
case that Josendis was
Wall,
interstate
using
Acosta
instrumentalities of
employer,
Wall to
or that
work,
regular
derivatively
e.g.,
liable for
his
and Lim would be
commerce
congressional
di-
dispute
that Wall
reaches
consistent with
35.
Josendis does
rection,"
coverage
admissible
narrowly construing
Wall’s 2006 tax return would be
while
Pound,
at trial.
Tony
exemptions.
&
Alamo
Susan
Labor,
290, 296,
Sec’y
105 S.Ct.
U.S.
must,
question,
deciding
as al-
In
this
1953, 1959,
(1985).
judgment, he needed
admissi
any object
actual
movement
inter-
directly
ble
that he worked
previously,
state
As noted
commerce.
Jo-
commerce,
instrumentality
an
of interstate
that
sendis never claimed
he used
toWall
(2) regularly
or
used the instrumentalities
job
Wall’s vehicles to travel to a
site out-
Corwin,
See
interstate commerce.
Instead,
side Florida.
Josendis claimed
was not working
F.3d at 1249. Josendis
only that
purchased
Wall to Wall had
instrumentality
directly for an
of interstate
had,
leased
vehicles that
some point,
would
commerce. Josendis
therefore have
moved
interstate
commerce
evidence,
had to
come forward
be
equipped those vehicles with
units
GPS
yond
speculation,
part
mere
as a
that
parts
took
ordered over the internet
duties,
repeatedly
his work
traveled
from
point
other states.37 While the
job
and from Wall to Wall
sites outside of origin
may
of these vehicles
be relevant
item moving
Florida or used an
in inter
enterprise
under a theory
coverage,
Celotex,
state commerce. See
477 U.S. at
origin
their
irrelevant
the issue of
324, 106
at 2553. Josendis
S.Ct.
did not
individual coverage namely, whether Jo-
—
directly
make a
that he
showing
engaged
directly participated
sendis himself
part
interstate commerce as a
of his
of persons
actual movement
things
and, thus,
responsibilities
cannot survive
interstate
commerce. See id. at 1266.
summary
on this
judgment
record. See Furthermore, although parts for the GPS
(“The
Thorne,
Supreme
wares,
merchan-
products,
C.
dise,
subjects
articles or
of commerce of
or
Finally, we also concur in the district
character,
any
ingredient
or
or
part
rejection
court’s
regulatory
thereof,
goods
but does
include
not
after
argument.
claim enter-
Josendis seeks to
delivery
physical
into
actual
pos-
their
prise
coverage based on 29 C.F.R..
the ultimate consumer
session of
thereof
776.23(c),
purports
§
bring
“with-
producer, manufacturer,
other than a
or
employees
in the
of the
all
scope”
FLSA
added)).
processor
(emphasis
thereof."
work,
engaged
including
in construction
Congress failed
define the term “materi-
work,
repair
is
maintenance
FLSA,
attempted
als” in the
so
do so
we
“closely
intimately
or
related” to covered
panel
Polycarpe.
Polycarpe
con-
enterprise.
Josendis claims that this cov-
the term “materials” in the
cluded
to him
of his
erage
is available
virtue
means “tools
other articles nec-
FLSA
or
Home,
at
remodeling work
the Miami
doing
something.”
essary
making
“enterprise
is
en-
which he contends
an
(noting
at 1223-24
that the
F.3d
best
gaged
production
in commerce
definition of materials is the one that does
goods
29 U.S.C.
for commerce” under
repeal” any
statutory
of the
“impliedly
203(s)(l)(B),
§
which defines a covered en-
“goods”).
panel
As that
not-
definition of
operation
terprise
“engaged
as one
ed,
the distinction between whether
primarily
an institution
hospital, [or]
object
good,
is a
where the ultimate-con-
...
engaged
aged
in the care of ...
material,
exception
or a
applies,
sumer
institu-
premises
on the
of such
who reside
exception,
there is no
is
crucial
where
must,
(“We
un-
tion.”
asserts that we
at 1222
must be
one. See id.
able
Inc.
Re-
der
v. Natural
‘goods’ from ‘materials’ to
Chevron U.S.A.
distinguish
Inc.,
467 U.S.
ex-
sources
Council
know whether
ultimate-consumer
Defense
848-45,
2778, 2781-83,
agency
S.Ct.
81 the
generally to
carry-
make rules
(1984),
ing
law,
L.Ed.2d 694
defer to the DOL’s
the force of
and that the agency
regulatory language
and find
interpretation claiming deference
pro-
was
coverage applicable here.
mulgated in the exercise of that authori-
ty”).
apply
deference,
We do not
Chevron
disagreed
The district court
with Josen-
however, when a statutory command of
apply
dis and refused to
Chevron defer-
Congress
unambiguous
is
regulation
First,
ence for two reasons.
the court
“arbitrary, capricious,
is
or manifestly con-
found insufficient evidence in the record to
trary
Chevron,
to the statute.”
467 U.S.
determine whether the Miami Home
awas
842-44,
S.Ct.
2781-82. Where
facility for interstate
pursuant
commerce
the statutory
clear,
language is
agency
203(s)(l)(B)
is,
§
whether
—that
regulations have no effect. Carcieri v.
Miami Home was a hospital or institution
Salazar,
555 U.S.
129 S.Ct.
engaged
aged
the care of
individuals
1063-64,
ity opinion I. coverage” on 29 “enterprise based 776.23(c). agree I also with the C.F.R. I a discussion of the overtime begin with failed to majority opinion that Josendis namely, whether Wall to wage provision, that, with sufficient evidence come forward $500,000. of at least gross sales Wall duties, participated of his he part any produce of its to Wall failed object in interstate com- movement years for the 2006 to financial records job sites to Wall merce or travelled Wall tax return and a for the 2006 “save of Florida. outside summary by Acosta prepared financial FLSA lawsuit preparation separate for a problems with re- I have some serious Id. against filed Wall Wall.” previously is cov- the issue whether Josendis spect to stated in Jorge n. 21. Acosta provisions of 29 at 1304 to the pursuant ered Wall, employee Wall to Wall or an enterprise by independent con- Wall to covered] Therefore, enterprise con- By Id. virtue of independent tractor.” contractor. also an sisting does not include of the Miami Home definition, "employed Josendis was not this Josendis; the activities conducted enterprise, and thus he the Miami Home’s in” Home, but employee of the Miami was not an coverage on that claim cannot either an characterized as rather should be ground either. through independent contractor brokered omitted). Nevertheless, of the defendants’ motion for sum- tion marks support mary judgment that no tax returns were majority opinion suggests up that it was (or, apparently, prepared for Josendis to “have moved the district court ¶ 2008). Moreover, Acosta Decl. 4. in an to consider the destruction of toWall response request, to a document unsworn corporate Wall’s records as a bad faith act (in alleged majority the words of the spoliation,” finding and that “[a]bsent that, some opinion) point “[a]t after spoliation, against we cannot hold July initiation Josendis’s suit [on to Wall the loss of its financial records.” 2008], toWall Wall had been evicted from Id. office for not paying rent. Once the owner property premises, spoliation reentered the The doctrine of permits the toWall Wall’s business records were trier of fact to draw an if inference placed on the street. Neither Acosta nor faith, records destroyed were in bad it was records, they Lim rescued those impede opposing done so to party from (em- Maj. lost forever.” atOp. 1304 n.21 obtaining support evidence that would added). Nevertheless, phasis majority position. specifically, latter’s More it pro- opinion finds that “complied Wall Wall vides a denying basis for a motion for with the court’s [ordering instructions summary judgment where there is suffi- production of these and com- documents] probative jury cient evidence for a to find pleted, ability, to the of its best the or- spoliation an act of and to draw the infer- discovery.” Moreover, dered Id. at 1304. Thus, ence derived from such an act. majority goes suggest on to the—in Amtrak, Bashir face of Wall to Wall’s admission that its Cir.1997) curiam), (per agreed with the business records “were lost forever”—that district court that “there probative was no might “Josendis have obtained a corporate this appellees case to indicate ledger indicating that toWall Wall made purposely lost or destroyed the relevant $500,000 2006, 2007, at least or 2008.” portion of the Consequently, [evidence].” Id. at 1318 n. 40. we concluded that the district court had explanation While Wall to Wall’s for its not erred in rejecting the adverse infer- produce failure to its financial records is granting ence and motion for imaginative fire, more than blaming it on a *29 judgment. contrast, By Id. in Kroniseh I accept. find it difficult to Nor am I States, (2d v. United willing to fault Josendis for not producing Cir.1998), a case in which this inference Wall, by documents that Wall to its own turned on veracity the of the defendants’ admission, preserve failed to and allowed explanation for the destruction of relevant its dispose landlord to of as garbage. documents, “the presumed district court importantly, jury More could conclude purposes considering of the motion for destroyed the documents were either summary judgment that defendants had an produced or not they because would have obligation preserve to the files and that shown that in Wall Wall fact had at intentional,” the destruction was and this $500,000 gross Indeed, least in sales. the approach was characterized by as “sound” majority opinion alludes to the doctrine of the Second Circuit. A factual finding of spoliation, pursuant to which “an adverse spoliation necessary only where the dis- party’s inference is drawn from a failure to judge trict preserve impose particular seeks to only evidence when the absence beyond of that predicated submitting evidence is on sanction bad the issue (internal faith.” Id. at n. quota- jury. because of the destruction completed been
Nevertheless, present pur- accept, I that, necessary with- the most relevant evidence majority’s suggestion poses, district faith finding of bad to establish his case and be- out a for Josendis considering from precluded judge, we are improperly court con- cause the district produce failure to to Wall’s Wall Thus, whether discovery. scope stricted an inference supports financial records judge example, the district denied cite one summary judgment. preclude that would request to discover of the “[a]ll records, however, is of those The absence submitted reporting income documents principal The consequence. without to the Internal Revenue Wall] [Wall concerning admissible evidence source the Plaintiff for regarding [three Service compa- sales was the gross to Wall’s years prior filing calendar to the Josen- Because those records. ny’s own financial July original complaint dis’s on exist, the evidence longer no apparently time’) (the Maj. period Op. ‘relevant ].” ma- court and the the district upon which (second and third alterations at 1308 that Wall Wall opinion conclude jority original). majority finds no abuse of summary judgment is on ought prevail ruling in this because the re- discretion alleged principal of the the declaration “arguably irrelevant” in a case quest was Acosta, that to Wall did wrongdoer, the issue is the amount of the $500,000 gross sales at least not have engaged in gross sales that Wall to Wall This to this lawsuit. years relevant Never- during years. those Id. consideration, inability of along with the theless, nitty- I in a get decline to involved records, relevant to obtain the gritty discussion of various application impact significant has because, end, would rulings relating summary judg- principles documents, have obtained these never ment. Acosta had allowed them since previously held We have trashed. principles [gov- the basic applying [i]n aspect to the second brings This me the factor of summary judgment,] erning regarding propriety relevant rule seriously ... be proof access to must in a case granting summary judgment ruling on a defendant’s considered Wright, Mil- such as this. As Professors particu- summary judgment, motion ler, observe, party oppos- Kane “[t]he must larly plaintiffs proof ... where not have a ing summary judgment does largely within mainly come from sources to a duty present opposition and from control of the defendants in ... circumstances wrongdoers. motion under Rule 56 alleged mouths of the as to the credi- ... when there is issue Co., Inc. v. Farm Bureau Mut. Cas. Ala. *30 evidentiary materi- bility of the movant’s Co., 602, Fidelity Ins. 606 F.2d Am. Life Arthur R. Wright, al.” 10A Alan Charles (5th Cir.1979) Fed- (quoting 6 Moore’s 609 Kane, Mary Kay Federal Prac- Miller & (1976 56.17(60) P at 56-1065 Practice eral (3d 2727, 480, 485 and Procedure tice ed.)).1 judg- “[s]ummary Consequently, ed.1998). by As described one commenta- ordinarily granted not ... be ment should tor, of when the burden will question the Id. completed.” has been before summary judg- case, party opposing shift to the discovery has not present In the Cir.1981) (en 1206, (11th 1209 binding precedent the 661 F.2d adopted as 1. We have banc). before Fifth Circuit decided decisions of the Prichard, 1, City v. October 1981. Bonner 1324 type by on the depends proof advisory
ment
used
R.Civ.P. 56
committee’s note to
(“Where
moving party:
1963 amendment
an issue as to a
material fact cannot be resolved without
proof
support
Thus if the
of the mo-
observation of the demeanor of witnesses
largely documentary
tion is
and has a
in order to evaluate their credibility, sum-
high degree
credibility
the opponent
mary judgment
appropriate.”).
is not
produce convincing proof
must
attacking
the documents in order to sustain his
A corollary of
principle
long-
this
is the
moving party’s proof
burden....
If the
recognized prerogative of
jury
to dis
convincing,
is less
cases where he believe the
testimony
party
and con
testimony
relies on
own
his
has exclu-
clude that
opposite
testimony
his
is
transaction,
knowledge
sive
of the
Judge
true.
Learned Hand’s oft-quoted
providing
may
burden of
never
observation, which has been
by
echoed
opponent.
shift to the
Supreme Court, NLRB v.
Mfg.
Walton
Co.,
404, 408,
Bauman,
853,
369 U.S.
John A.
A
82
Rationale
S.Ct.
7
Sum-
curiam);
467,
(per
L.Ed.2d 829
mary Judgment,
Wright
Ind.
33
L.J.
483-84
v.
West,
(1958) (alteration
277, 296, 112
2482, 120
505 U.S.
original)
S.Ct.
(quoted in
(1992),
Kane,
486). L.Ed.2d 225
Wright,
particularly
is
supra,
apposite
Miller &
Indeed,
Specifically,
here.
Judge
we have
Hand
held that
observed
“[c]ases in
that demeanor
underlying
may
which the
“evidence
satisfy
issue is one of moti-
tribunal,
vation, intent,
only
subjective
or some
the witness’
other
testimo-
ny
true,
is not
particularly
fact are
but that the
inappropriate
truth is the
for sum-
opposite
mary judgment,
story;
of his
one,
as are those
for the denial
in which the
who has a
deny,
issues turn
motive to
credibility
may
on the
uttered
affi-
hesitation, discomfort,
with such
Co.,
ants.” Ala.
arrogance
Farm Bureau Mut. Cas.
defiance,
added)
give
as “a thorough going exposition
Cir.1995)
why
a
(quoting
Single-
Atkins v.
should,
judgment
not,
952,
(11th
should
tary, 965 F.2d
961 n. 7
Cir.
granted”);
Co.,
be
1992));
Shahid v.
West,
Power
296,
see also
1325 affidavits, may be the IRS. These which are alone fraud jury’s the disbelief at that personal knowledge, a conviction on and which by justify itself to based insufficient Wall, in favor of case or a controverted to es- verdict are not Wall a criminal case; 2007, in a civil some party period for a of time opposite the tablish required to may evidence employees (including corroborative to Wall Whit- v. ten) the verdict. support only worked the Miami Jewish Waffenschmidt (5th Cir.1985); 711, 763 F.2d MacKay, (“MJH”). told Hospital Acosta Whitten Marchand, F.2d v. United States repair him to all the MJH “wanted Cir.1977). (2d Indeed, notwith- 985-86 Moreover, facility. apartments” the signifi- the standing his observation about Whitten, Jorge based on what Acosta told evidence, Judge Hand of demeanor cance paid to Wall Residences was be- “Wall in favor of the that a verdict observed dol- tween thirteen fourteen [thousand its disbelief plaintiff solely on the basis of ($13,000-$14,000) unit.” Acosta per lars] to would not be sufficient the defendant checks, pick which up asked Whitten the Dyer, judgment a his favor. justify usually envelope. in a Acosta closed Nevertheless, foregoing F.2d at 269. open him to envelope instructed independent if evi- inapplicable caveat is verify that amount written on that the truth supports inference dence significantly, check was correct. More party a is of the facts to which opposite “noticed the checks were Whitten v. See States witness testified. United Jorge made out Acosta.” Cir.1997) (2d Spencer, 129 F.3d the only This was not instance that (“The if inde- Dyer inapplicable rule in noticed of made out to Whitten checks pendent supports govern- evidence Acosta and his affi- Jorge wife. Whitten’s case.”); see States ment’s also United attested to fact that “Acosta davit also (2d Bisen, n. 6 Cir. 262 & checks also instructed customers to write 1992). (for name work done [Whitten’s] view, jury could my In reasonable Wall). would cash the [Whitten] worthy Jorge conclude that Acosta is give then to Acosta.” check and the cash that the of his testi- opposite belief at least or three times This occurred “two fact, is, Passing true. over the mony Finally, monthly.” “Acosta would also alluded, fact, already I’ve to which company directly checks to [Whitten] write its rec- concededly Wall to Wall allowed then or two thousand dollars and for one trashed the commence- ords to be after [at would cash the checks [Whitten] come of this lawsuit and failed to ment cashing give store] and the cash check much affidavit forward with so sworn check was cashing Acosta.” The store regarding the circumstances explaining Although identified affidavit. records, produce failure those of Wilard Dulanto was not as affidavit with came forward substantial detailed, he nevertheless confirmed Specifically, the affida- his claim. support at the MJH from 2007 to 2008 and work Josendis, Troy as well as those vit of he a check expressly given stated had been Dulanto, see R and Wilard Allan Whitten $11,000 envelope, in a closed concluding ample provide basis out to was made Acosta. saw been, like must have that Wall Wall (which amended contents of the verified many enterprises such construction page are aliens), complaint, which set out illegal an on-and- employ often also entirely con- majority opinion, are also that Acosta operation and off-the-books these affidavits. The to de- two in a blatant scheme sistent engaged *32 1326 three, earnings signifi- the in words of the of Wall to Wall to be the
combination of (3) understated, cantly that that opinion, the “establishes Acosta majority $56,000 liar opposite earned for was a and that the of his potentially Wall to Wall $120,000 2007; testimony was These job approximately one in true. inferences be- 2007; $5,000 compelling also in come even more because of for kitchen remodels project produce at an unknown to Wall’s inability for an unknown Wall its own $434,000 at date; for work the financial this is so and about records. And whether two-year period jury a in the preposterous Miami over or not believed Home Maj. claim, Op. assuming willing Never- 2007 and 2008.” Acosta tes- that, theless, majority oath, tify concludes be- to it under that his former land- did cause and Whitten not lord carried the documents to the “Josendis street (after in evi- ground complaint) admissible Josendis filed his from projections their they concretely establishing disappeared dence true which forever. per sales gross
measure of Wall’s Wall
year, they explain they nor came did how II. to their that Wall to had earned Wall belief I now first prong turn to the of 29 $500,000 years, one of in the relevant 203(s)(l)(A), that, requires U.S.C. which accept their the mat- cannot word on in gross addition to sales of at least may ter.” the majority opinion Id. While $500,000, enterprise goods use or ma- suggestion be in affida- correct its that the that terials had once moved interstate vits are not on evidence based “admissible relying commerce. Specifically, on Flores establishing concretely the true measure of Nuvoc, Inc., F.Supp.2d 1349 gross per year,” Wall to Wall’s sales (S.D.Fla.2008), to Wall Wall invoked reason for is that this Wall to Wall failed doctrine, “coming to rest” according to required retain financial records. which, enterprise acquired “[w]here the Moreover, there is also goods from within the state materi- Acosta submitted false declaration this employees als used and has no role case, alleging that he fired Josendis after causing goods or materials to move in learning illegal that Josendis was an alien. employees interstate commerce to for their ¶ Acosta 6. A Decl. letter he wrote to business, use in coverage is Josendis, however, clearly indicates that triggered.” Flores, (quoting Br. at 26 such a did termination not occur 1354). F.Supp.2d at problem alleged reasons Wall R to Walk argument explicitly rejected this is that we Indeed, Aff., Ex. A. when Polycarpe it in v. E Landscaping & S pressed argument, at oral to Wall’s Serv., Inc., Cir.2010) F.3d grabbed preserver counsel onto the life curiam), (per six decided cases con- that a panel generously member for appeal, including solidated one in which by conceding tossed the very him defendant, Wall to Wall was a Vallecillo v. least, this was an issue of fact. Inc., Repairs, Wall to Wall Residence circumstances, (S.D.Fla.2009).
Under jury F.Supp.2d these would In the perfectly justified a verdict returning describing course the district court hold- (1) Vallecillo, finding favor of based ing we observed that “[b]e- generated Wall to one of substantial cause uncontested facts was [the] revenues, that Acosta and wife were all bought his Defendants materials from retailers, engaged both in a scheme to defraud the local court [errone- district IRS, which included ously] conduct that caused concluded that there was no com- *33 materials, using pur- for the Poly- would not be in the FLSA.” as defined merce “doing something,” pose making Acosta at 1227 n. 10. The F.3d carpe, 616 moved in commerce. case, interstate presumably previously in this which declaration circumstances, Vallecillo, I would re- says these filed in Under the one he mirrors to granting the order Wall Wall’s “purchased verse no than that Wall to Wall more summary ad- judgment motion for without (pri- from retailers supplies local tools and dressing the issue. Florida. Depot) in South marily Home anything bought never or sold We have ¶ 2. This lines.” Acosta Decl.
across state
III.
than
adequate
no more
here
declaration is
I
recognize
I
result for which
justify
to
it
Vallecillo
reach the
argued
require
have
would
us to
premise.
to Wall on this
judgment for Wall
alien,
Josendis,
illegal
is
issue whether
10.
at 1227 n.
Polycarpe, 616 F.3d
See
protection
the FLSA.
I
entitled to
in the
majority
agree
position expressed
not reach the
does
While
claim,
by
it concludes
letter brief submitted
the Solicitor
of this
because
merits
$500,000
Labor,
Department
States
satisfy
failed
United
that Josendis
pro-
requested,
that “undocumented
wage
the FLSA’s overtime
element of
vision,
for a
are entitled
recover minimum
I
not address the issue
workers
would
opened
wages
pay
its
and overtime
for hours worked
Wall to Wall
different reason.
FLSA,”
at
as
expression
here with an
under the
DOL Letter
appeal
brief on
of the
re
adopt
panel
the Brief
another
Eleventh Circuit
“desire
submitted
unpublished
Re-
in an
cently
opinion,
Residence
held
Gal-dames
v. Wall Wall
Vallecillo
10-11984,
Inc.,
Inv. Corp.,
N & D
Nos.
pairs,
Case No. 08-22271-CIV-
v.
(11th
10-14523,
Br. at
IV. MICKLE,* Circuit Judges, and District the district judgment court Judge. reversed, case should be should for trial. remanded PER CURIAM:
CERTIFICATION FROM THE UNIT- ED COURT STATES OF APPEALS FOR THE ELEVENTH TO CIRCUIT THE COURT SUPREME OF FLORIDA PURSUANT FLORIDA TO CONSTITU- V, 3(b)(6). TION ARTICLE THE TO SUPREME COURT OF INTERVEST CONSTRUCTION OF FLORIDA AND ITS HONORABLE JAX, INC., corporation, a Florida ICI JUSTICES: Homes, Inc., corporation, a Florida This questions case involves unanswered Defendants-Appel- Plaintiffs-Counter Florida law are central this lants, appeal. questions Because these de- are terminative of the cause this case controlling there are no precedents from FIDELITY GENERAL INSURANCE Florida, Supreme respect- Court COMPANY, Defendant-Counter fully certify questions these for resolution. Claimant-Appellee. I. No. 10-12613. controversy
This exists in- between the United of Appeals, States Court sureds, Jax, Intervest Construction of Inc.
Eleventh Circuit. Homes, “ICI”), and ICI Inc. (collectively insurer, and their General Fidelity Insur-
Nov. ance over Company, Fi- General whether delity its obligations breached under a Dees, Gillam, IV, Robert M. Braxton W. general commercial liability poli- insurance Milam, Howard, Nicandri, Gillam, Dees & (the cy, number BAG0002112-00 “General PA, Jacksonville, FL, for Plaintiffs-Appel- Fidelity Policy”), that ICI had with Gener- lants. Fidelity al at the time of the accident. dispute The coverage per- arose out aof Schulman, Louis Dutton Law Group, injury sonal against lawsuit filed ICI PA, Rawls, Butler, Ronald Pappas, Steven injured homeowner. Weihmuller, Katz, LLP, Craig, Tampa, In ICI contracted with Custom FL, for Defendant-Appellee. Cutting, Inc. Custom Cutting pro- work, including vide trim installation of attic stairs a residence that was in ICI process building. The contract be- Cutting tween Custom and ICI contained * Miclde, Florida, Stephan by designation. Honorable P. sitting Senior United Judge States District Northern District