Fish v. Ely's Tire, Inc. et al
| Kenneth Fish |
| Elias Dammous and Ely's Tire, Inc. |
| 0:2019cv61068 |
| April 26, 2019 |
| US District Court for the Southern District of Florida |
| Patrick M Hunt |
| K Michael Moore |
| Labor: Fair Standards |
| 29 U.S.C. § 0206 |
| Plaintiff |
Docket Report
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Filing 24
PAPERLESS ORDER OF REFERRAL TO MEDIATION. Trial having been set in this matter for the two week trial period beginning January 6, 2020, at 9:00 a.m. pursuant to Rule 16 of the Federal Rule of Civil Procedure and Rule 16.2 of the Local Rules of the United States District Court for the Southern District of Florida, it is hereby ORDERED AND ADJUDGED as follows: 1. All parties are required to participate in mediation. The mediation shall be completed no later than eighty (80) days before the scheduled trial date. 2. Plaintiff's counsel, or another attorney agreed upon by all counsel of record and any unrepresented parties, shall be responsible for scheduling the mediation conference. The parties are encouraged to avail themselves of the services of any mediator on the List of Certified Mediators, maintained in the office of the Clerk of this Court, but may select any other mediator. The parties shall agree upon a mediator and file a Notice of Mediator Selection within fifteen (15) days from the date of this Order. If there is no agreement, lead counsel shall file a request for the Clerk of Court to appoint a mediator in writing within fifteen (15) days from the date of this Order, and the Clerk shall designate a mediator from the List of Certified Mediators. Designation shall be made on a blind rotation basis. 3. A place, date, and time for mediation convenient to the mediator, counsel of record, and unrepresented parties shall be established. If the parties cannot agree to a place, date, and time for the mediation, they may motion the Court for an order dictating the place, date, and time. 4. The physical presence of counsel and each party or representatives of each party with full authority to enter in a full and complete compromise and settlement is mandatory. If insurance is involved, an adjuster with authority up to the policy limits or the most recent demand, whichever is lower, shall attend. 5. All discussions, representations and statements made at the mediation conference shall be confidential and privileged. 6. At least ten (10) days prior to the mediation date, all parties shall present to the mediator a brief written summary of the case identifying issues to be resolved. Copies of those summaries shall be served on all other parties. 7. The Court may impose sanctions against parties and/or counsel who do not comply with the attendance or settlement authority requirements herein, or who otherwise violate the terms of this Order. The mediator shall report non-attendance and may recommend imposition of sanctions by the Court for non-attendance. 8. The mediator shall be compensated in accordance with the standing order of the Court entered pursuant to Rule 16.2.B.6, or on such basis as may be agreed to in writing by the parties and the mediator selected by the parties. The cost of mediation shall be shared equally by the parties unless otherwise ordered by the Court. All payments shall be remitted to the mediator within 30 days of the date of the bill. Notice to the mediator of cancellation or settlement prior to the scheduled mediation conference must be given at least two (2) full business days in advance. Failure to do so will result in imposition of a fee for one hour. 9. If a full or partial settlement is reached in this case, counsel shall promptly notify the Court of the settlement in accordance with Local Rule 16.2.F, by filing a notice of settlement signed by the counsel of record within ten (10) days of the mediation conference. Thereafter, the parties shall forthwith submit an appropriate pleading concluding the case. 10. Within five (5) days following the mediation conference, the mediator shall file a Mediation Report indicating whether all required parties were present. The report shall also indicate whether the case settled (in full or in part), was continued with the consent of the parties, or whether the mediator declared an impasse. 11. If mediation is not conducted, the case may be stricken from the trial calendar, and other sanctions may be imposed. Signed by Chief Judge K. Michael Moore on 7/1/2019. (ah03)
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Filing 23
PAPERLESS ORDER SCHEDULING TRIAL IN FORT LAUDERDALE. This case is now set for trial commencing the two week trial period of January 6, 2020, at 9 a.m. in the United States District Courthouse, 299 East Broward Boulevard, Fort Lauderdale, Florida. The assigned courtroom will be announced at the calendar call. All parties are directed to report to the calendar call on January 3, 2020, at 2 p.m., at which time all matters relating to the scheduled trial date may be brought to the attention of the Court. A final pretrial conference as provided for by Rule 16, Fed. R. Civ. P., and Rule 16.1(C), S.D. Fla. L.R., is scheduled for December 19, 2020, at 11 a.m. The calendar call and the final pretrial conference will take place in Courtroom 13-1 (thirteenth floor), United States District Courthouse, 400 North Miami Avenue, Miami, Florida. A bilateral pretrial stipulation and all other pretrial preparations shall be completed NO LATER THAN FIVE DAYS PRIOR TO THE PRETRIAL CONFERENCE. All motions to amend the pleadings or to join additional parties must be filed by the later of forty-five (45) days after the date of entry of this Order, or forty-five (45) days after the first responsive pleading by the last responding defendant. Any and all pretrial motions, including motions for summary judgment, Daubert motions, and motions in limine must be filed no later than eighty (80) days prior to the trial date. Responses to summary judgment motions must be filed no later than fourteen (14) days after service of the motion, and replies in support of the motion must be filed no later than seven (7) days after service of the response, with both deadlines computed as specified in Rule 6, Fed. R. Civ. P. Each party is limited to one Daubert motion. If all evidentiary issues cannot be addressed in a 20-page memorandum, the parties must file for leave to exceed the page limit. Each party is also limited to one motion in limine (other than Daubert motions). If all evidentiary issues cannot be addressed in a 20-page memorandum, the parties must file for leave to exceed the page limit. Rule 26(a)(2) expert disclosures shall be completed one hundred thirty (130) days prior to the date of trial. All discovery, including expert discovery, shall be completed one hundred (100) days prior to the date of trial. The failure to engage in discovery pending settlement negotiations shall not be grounds for continuance of the trial date. All exhibits must be pre-marked, and a typewritten exhibit list setting forth the number and description of each exhibit must be submitted at the time of trial. Plaintiff's exhibits shall be marked numerically with the letter "P" as a prefix. Defendant's exhibits shall be marked numerically with the letter "D" as a prefix. For a jury trial, counsel shall prepare and submit proposed jury instructions to the Court. The Parties shall submit their proposed jury instructions and verdict form jointly, although they do not need to agree on each proposed instruction. Where the parties do not agree on a proposed instruction, that instruction shall be set forth in bold type. Instructions proposed only by a plaintiff should be underlined. Instructions proposed only by a defendant should be italicized. Every instruction must be supported by citation to authority. The parties should use the Eleventh Circuit Pattern Jury Instructions for Civil Cases as a guide, including the directions to counsel contained therein. The parties shall jointly file their proposed jury instructions via CM/ECF, and shall also submit their proposed jury instructions to the Court via e-mail at moore@flsd.uscourts.gov in WordPerfect or Word format. For a non-jury trial, the parties shall prepare and submit to the Court proposed findings of fact and conclusions of law fully supported by the evidence, which counsel expects the trial to develop, and fully supported by citations to law. The proposed jury instructions or the proposed findings of fact and conclusions of law shall be submitted to the Court no later than five (5) business days prior to the scheduled trial date. Pursuant to Administrative Order 2016-70 of the Southern District of Florida and consistent with the Court of Appeals for the Eleventh Circuits Local Rules and Internal Operating Procedures, within three days of the conclusion of a trial or other proceeding, parties must file via CM/ECF electronic versions of documentary exhibits admitted into evidence, including photographs of non-documentary physical exhibits. The Parties are directed to comply with each of the requirements set forth in Administrative Order 2016-70 unless directed otherwise by the Court. THE FILING BY COUNSEL OF A NOTICE OF UNAVAILABILITY BY MOTION OR OTHERWISE IS NOT PROVIDED FOR UNDER THE LOCAL RULES AND SHALL NOT BE PRESUMED TO ALTER OR MODIFY THE COURT'S SCHEDULING ORDER. Signed by Chief Judge K. Michael Moore on 7/1/2019. (ah03)
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| Filing 22 Joint SCHEDULING REPORT - Rule 16.1 by Kenneth Fish (Richards, Jordan) |
| Filing 21 ANSWER and Affirmative Defenses to Amended Complaint by Elias Dammous, Ely's Tire, Inc.. (Marban, Edilberto) |
| Filing 20 Minute Order for proceedings held before Magistrate Judge Patrick M. Hunt: Settlement Conference held on 6/18/2019. The parties have reached an impasse. (Digital 10:51:58) (tw) |
| Filing 19 RESPONSE to #16 Statement of Claim by Elias Dammous, Ely's Tire, Inc.. (Marban, Edilberto) |
| Filing 18 First AMENDED COMPLAINT against Elias Dammous, Ely's Tire, Inc. filed in response to Order Granting Motion for Leave, filed by Kenneth Fish.(Richards, Jordan) |
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Filing 17
PAPERLESS ORDER. THIS CAUSE came before the Court upon Plaintiff's Unopposed Motion for Leave to File First Amended Complaint #14 . Federal Rule of Civil Procedure 15(a)(1) permits a party to amend its pleading as a matter of course within 21 days after service of a responsive pleading. Defendants served an Answer on on May 29, 2019. As such, Plaintiff may amend the Complaint as a matter of course. Accordingly, upon consideration of the motion, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that Plaintiff's Motion for Leave to File First Amended Complaint #14 is GRANTED. Plaintiff is instructed to file its Amended Complaint on the docket on or before June 18, 2019. Signed by Chief Judge K. Michael Moore on 6/14/2019. (ah03)
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| Filing 16 Statement of: Claim Amended by Kenneth Fish (Scott, Melissa) |
| Filing 15 NOTICE of Attorney Appearance by Melissa Jane Scott on behalf of Kenneth Fish (Scott, Melissa) |
| Filing 14 Unopposed MOTION for Leave to File First Amended Complaint FOR DAMAGES AND DEMAND FOR JURY TRIAL by Kenneth Fish. (Attachments: #1 Exhibit A - Proposed First Amended Complaint, #2 Text of Proposed Order)(Richards, Jordan) |
| Filing 13 SUMMONS (Affidavit) Returned Executed on #1 Complaint, with a 21 day response/answer filing deadline pursuant to Fed. R. Civ. P. 12 by Kenneth Fish. Elias Dammous served on 5/21/2019, answer due 6/11/2019. (Richards, Jordan) |
| Filing 12 SUMMONS (Affidavit) Returned Executed on #1 Complaint, with a 21 day response/answer filing deadline pursuant to Fed. R. Civ. P. 12 by Kenneth Fish. Ely's Tire, Inc. served on 5/8/2019, answer due 5/29/2019. (Richards, Jordan) |
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Filing 11
PAPERLESS ORDER. THIS CAUSE came before the Court upon Defendants' Motion for Extension of Time to File Response to Statement of Claim and Confidential Settlement Statement. #10 . UPON CONSIDERATION of the Motion, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that Defendants' Motion #10 is GRANTED. Defendants shall respond to the Statement of Claim and submit a Confidential Settlement Statement on or before 12:00 p.m. on June 17, 2019. Signed by Chief Judge K. Michael Moore on 6/10/2019. (ah03)
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| Filing 10 Unopposed MOTION for Extension of Time to File Response/Reply/Answer to Statement of Claim, Unopposed MOTION for Extension of Time to Submit Confidential Settlement Statement ( Responses due by 6/21/2019) by Elias Dammous, Ely's Tire, Inc.. (Attachments: #1 Text of Proposed Order)(Marban, Edilberto) |
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Filing 9
ORDER SCHEDULING SETTLEMENT CONFERENCE. Settlement Conference set for 6/18/2019 at 10:30 a.m. in the Fort Lauderdale Division before Magistrate Judge Patrick M. Hunt. Signed by Magistrate Judge Patrick M. Hunt on 5/30/2019. See attached document for full details. (hhr)
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| Filing 8 NOTICE of Compliance by Kenneth Fish re 4 Pretrial Order,,,,,,,,,,,,,,,,,,,,, (Richards, Jordan) |
| Filing 7 ANSWER and Affirmative Defenses to Complaint by Elias Dammous, Ely's Tire, Inc.. Attorney Edilberto O. Marban added to party Elias Dammous(pty:dft), Attorney Edilberto O. Marban added to party Ely's Tire, Inc.(pty:dft). (Marban, Edilberto) |
| Filing 6 Statement of: Claim by Kenneth Fish (Attachments: #1 Exhibit A - Computation of Damages)(Richards, Jordan) |
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Filing 5
PAPERLESS ORDER REFERRING PRETRIAL DISCOVERY MATTERS TO MAGISTRATE JUDGE PATRICK M. HUNT. PURSUANT to 28 U.S.C. 636 and the Magistrate Rules of the Local Rules of the Southern District of Florida, the above-captioned Cause is referred to United States Magistrate Judge Patrick M. Hunt to take all necessary and proper action as required by law with respect to any and all pretrial discovery matters. Any motion affecting deadlines set by the Court's Scheduling Order is excluded from this referral, unless specifically referred by separate Order. It is FURTHER ORDERED that the parties shall comply with Magistrate Judge Hunt's discovery procedures. Signed by Chief Judge K. Michael Moore on 4/29/2019. (ah03)
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Filing 4
PAPERLESS NOTICE OF COURT PRACTICE IN FAIR LABOR STANDARDS ACT CASES AND REFERRAL TO MAGISTRATE JUDGE FOR SETTLEMENT CONFERENCE. This is a Fair Labor Standards Act case in which Plaintiff seeks unpaid wages. In order to assist the Court in the management of the case, and in an effort to foster its early and cost effective resolution, the Parties are hereby ordered that: 1. Plaintiff shall file a Statement of Claim (the Statement) setting forth the amount of alleged unpaid wages, the calculation of such wages, and the nature of the wages (e.g., overtime or regular) within twenty (20) days from the date of this Notice. Plaintiff shall promptly serve a copy of this Notice, the Statement, and copies of all documents supporting Plaintiff's claims (e.g., time sheets, pay stubs, etc.), on Defendant's counsel when counsel for Defendant first appears in the case or at the time of filing if Defendant's counsel has already appeared. The Statement shall include all attorneys fees and costs incurred to date. With respect to attorney's fees, provide the hourly rate sought and the number of hours expended by each person billing time. 2. Defendant shall file a Response within fifteen (15) days of receiving service of Plaintiff's statement. This Response shall set forth in detail Defendants defenses to Plaintiff's claims. Defendant shall serve copies of all documents in support thereof on Plaintiff. 3. Referral to Magistrate for Settlement Conference. Pursuant to Rule 1 of the Magistrate Rules of the Southern District of Florida, the Parties shall conduct a Settlement Conference before Magistrate Judge Patrick M. Hunt within twenty (20) days after the date that Defendant's Response is due. Plaintiff's counsel must confer with defense counsel and contact the Chambers of Magistrate Judge Patrick M. Hunt on, or before, the date that Defendant's Response is due to schedule a date for the Settlement Conference. The Settlement Conference date may not be extended without prior approval from Magistrate Judge Hunt. Absent an extension from Magistrate Judge Hunt, the Parties shall complete their Settlement Conference within fifty-five (55) days of this Notice. If the Parties reach an agreement during the Settlement Conference the Parties shall file the agreement with the undersigned within five (5) days of the Settlement Conference. If the Parties wish to file the settlement agreement as a sealed document, they must file a Motion to Seal that provides compelling reasons for the Court to allow them to do so. See Brown v. Advantage Eng'g, Inc., 960 F.2d 1013, 1016 (11th Cir. 1992) ("If a settlement agreement is filed with the court for approval or interpretation, then the parties must demonstrate extraordinary circumstances in order to deny the public access to the agreement."); see also Hanson v. Wells Fargo Bank, N.A., No. 08-80182-CIV, 2009 WL 1490582, at *1 (S.D. Fla. May 26, 2009) ("'[A] business's general interest in keeping its legal proceedings private does not overcome the presumption of openness' in FLSA cases.") (citing Stalnaker v. Novar Corp., 293 F. Supp. 2d 1260, 1264 (M.D. Ala. 2003)). The undersigned will review the agreement and determine whether it is a fair and reasonable resolution of a bona fide dispute over FLSA issues. See Lynn's Food Stores, Inc. v. United States, 679 F.2d 1350 (11th Cir. 1982). If the Court approves the settlement, the Court will enter a final order of dismissal with prejudice. If no settlement is reached, the Parties shall file a Joint Scheduling Report within fourteen (14) days after the Settlement Conference. 4. Except as provided under Local Rule 16.2.E for public-sector entities, the appearance of counsel and each party, or representatives of each party with full authority to enter into a full and complete compromise and settlement, is mandatory. Appearance shall be in person; telephonic appearance is prohibited. If insurance is involved, an adjuster with authority up to the policy limits or the most recent demand, whichever is lower, shall attend. 5. All discussions, representations and statements made at the settlement conference shall be confidential and privileged. Nothing disclosed in the settlement conference can be used for any purpose except settlement. 6. Settlement. If this case is settled, counsel must inform the Court within three (3) days by calling Chambers. 7. Pursuant to Administrative Order 2016-70 of the Southern District of Florida and consistent with the Court of Appeals for the Eleventh Circuits Local Rules and Internal Operating Procedures, within three days of the conclusion of a trial or other proceeding, parties must file via CM/ECF electronic versions of documentary exhibits admitted into evidence, including photographs of non-documentary physical exhibits. The Parties are directed to comply with each of the requirements set forth in Administrative Order 2016-70 unless directed otherwise by the Court. 8. Non-compliance with Order. Non-compliance with any provision of this Order, the Federal Rules of Civil Procedure, and/or the Local Rules of Court, may subject the offending party to sanctions or dismissal. It is the duty of all counsel to take all actions necessary to comply with this Order to ensure an expeditious resolution of this matter. Signed by Chief Judge K. Michael Moore on 4/29/2019. (ah03)
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| Filing 3 Summons Issued as to Elias Dammous, Ely's Tire, Inc. (vmz) |
| Filing 2 Clerks Notice of Judge Assignment to Chief Judge K. Michael Moore. Pursuant to 28 USC 636(c), the parties are hereby notified that the U.S. Magistrate Judge Patrick M. Hunt is available to handle any or all proceedings in this case. If agreed, parties should complete and file the Consent form found on our website. It is not necessary to file a document indicating lack of consent. (vmz) |
| Filing 1 COMPLAINT against Elias Dammous, Ely's Tire, Inc.. Filing fees $ 400.00 receipt number 113C-11593961, filed by Kenneth Fish. (Attachments: #1 Civil Cover Sheet, #2 Summon(s) Proposed Summons - Ely's Tire, Inc., #3 Summon(s) Proposed Summons - Elias Dammous)(Richards, Jordan) |
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