Vargas v. Michaels Stores, Inc.

RESPONSE in Opposition re MOTION to Bifurcate Plaintiff's Punitive Damages Claim

M.D. Fla.September 15, 2017

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION Case No.: 8:16-cv-01949-VMC-JSS JESUS VARGAS, Plaintiff, v. MICHAELS STORES, INC., Defendant. ) ) ) ) ) ) ) ) ) ) PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR BIFURCATION OF PLAINTIFF’S PUNITIVE DAMAGES CLAIM Plaintiff, JESUS VARGAS (“Plaintiff”), by and through his undersigned counsel, hereby files his Response in Opposition to Defendant MICHAELS STORES, INC.’s (“Defendant”) Motion for Bifurcation of Plaintiff’s Punitive Damages Claim (“Motion”) [D.E. 68], and states as follows: In its Motion, Defendant claims that Plaintiff’s punitive damages claim should be bifurcated because Defendant’s relative wealth or Plaintiff’s proof of Defendant’s wealth may confuse or mislead the jury. Plaintiff opposes Defendant’s Motion for the following reasons: (1) Defendant’s Motion is untimely and (2) there is substantial overlap in the facts and evidence with regard to Plaintiff’s liability claim. MEMORANDUM OF LAW 1. Defendant’s Motion is Untimely. On September 10, 2016, the parties submitted a Case Management Report (“Report”) as required by this Court. [D.E. 13] In that Report, the parties agreed, inter alia, to a deadline of August 2, 2017 for “[a]ll other Motions including Motions in Limine.” On September 13, 2016, Case 8:16-cv-01949-VMC-JSS Document 70 Filed 09/15/17 Page 1 of 5 PageID 1512 Case No.: 8:16-cv-01949-VMC-JSS 2 the parties attended a Case Management Conference in which both parties confirmed the specific deadlines submitted to the Court. In reliance on those affirmations, this Court issued a Scheduling Order specifically stating that “all other Motions including Motions in Limine” must be filed by August 2, 2017. [D.E. 16] Defendant not only agreed to the Motions deadline but it acutely has been aware of the deadline for over a year. Significantly, Defendant has been aware of Plaintiff’s intent to pursue punitive damages since the inception of this case. Defendant also has been aware of Plaintiff’s intent to use Defendant’s profit & loss statements as it was the subject of a discovery dispute between the parties and because it was used during depositions in this case. Therefore, Defendant had knowledge of the use of the profit & loss statements months prior to the Motions deadline and should have timely filed its Motion. Defendant’s excuse offered during the recent Pretrial Conference; that it was waiting for the Court’s ruling on its Motion in Limine, is simply devoid of any logic. Moreover, in providing that excuse to this Court, Defendant seemingly admits that it was aware of the deadline, yet it chose to ignore it. Defendant’s counsel regularly practices before this Court and is therefore, familiar with the Court’s practices and procedures and strict adherence to deadlines. Defendant has timely filed all other motions in this case or it has filed motions for extensions of time when it could not meet a deadline.1 Defendant could have easily filed for a motion for extension of time; however, it did not. Accordingly, because Defendant’s Motion is untimely, Plaintiff requests that this Court deny the Defendant’s Motion. Soliday v. 7-Eleven, Inc., No. 2:09-cv-807-FtM-29SPC, 2011 U.S. Dist. LEXIS 63288, at *4-5 (M.D. Fla. June 13, 2011) citing W.R. Grace & Co. v. Waters, 638 So. 2d 502, 505 (Fla. 1994) (requiring that motions for bifurcation must be timely). 1 Plaintiff did not oppose any of Defendant’s Motions for Extensions of Time during the course of this case. Case 8:16-cv-01949-VMC-JSS Document 70 Filed 09/15/17 Page 2 of 5 PageID 1513 Case No.: 8:16-cv-01949-VMC-JSS 3 2. The Substantial Overlap in Facts and Evidence do not Warrant Bifurcation. Federal Rule of Civil Procedure 42(b) allows for discretionary bifurcation “in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy.” The decision to grant or deny a motion to separate issues of damages and liability under Rule 42(b) is a matter within the court's discretion. Griffin v. City of Opa-Locka, 261 F.3d 1295, 1301 (11th Cir. 2001)(emphasis added). Defendant argues that Plaintiff presents a weak case of liability and that bifurcation would “screen out evidence of the parties’ relative financial wealth.” [D.E. 68 at p. 3] As an initial matter, Defendant’s argument that Plaintiff’s liability case is “weak” is clearly biased and inconsequential as it relates to Plaintiff’s mixed-motive case that will be presented to the jury. Additionally, bifurcation in this case will not “screen out evidence of the parties’ relative financial wealth.” Id. First, Defendant is a major popular retailer with over 1300 stores nationwide and 9 locations within the Tampa area. Thus, relative financial wealth of Defendant is likely known or will be assumed by any potential juror in this case. Second, Plaintiff’s use of Defendant’s profit and loss statements for November 2014, December 2014 and January 2015, is limited only to the South Dale Mabry Store where Plaintiff worked and does not contain any information regarding other stores in the area or nationwide. Furthermore, the aforementioned statements are being offered for proof of Defendant’s discriminatory animus against Plaintiff when it placed him on a Performance Improvement Plan and terminated him. The profit and loss statements also show Defendant’s losses; therefore any jury member would be able to view the profits, as well as, the losses to the South Dale Mabry Store. Finally, the facts and evidence in this case extensively overlap in this case and the same facts and evidence used to prove Plaintiff’s liability claim will be used to prove Plaintiff’s Case 8:16-cv-01949-VMC-JSS Document 70 Filed 09/15/17 Page 3 of 5 PageID 1514 Case No.: 8:16-cv-01949-VMC-JSS 4 punitive damages claim. Therefore, bifurcation in this case would not increase judicial efficiency and will potentially burden a jury if Plaintiff is required to present the same evidence twice. Bifurcation in this case could potentially prejudice the Plaintiff in this regard. Dysart v. Palms of Pasadena Hosp., LP, 89 F. Supp. 3d 1311, 1322-23 (M.D. Fla. 2015) (denying defendant’s motion to bifurcate because a jury could decide that a defendant acted without regard to the plaintiff’s rights in preservation of its fiscal interests); In re Engle Cases, No. 3:09-cv- 10000-J-WGY-JBT, 2013 U.S. Dist. LEXIS 154456, at *14-15 (M.D. Fla. Oct. 28, 2013) (denying motion to bifurcate because it “would not further the goals of convenience, avoiding prejudice, and expediting and economizing the trial reflected in Rule 42.”) Wherefore, for the foregoing reasons, Plaintiff respectfully requests that this Court deny Defendant’s Motion to Bifurcate Plaintiff’s punitive damages claims. Dated: September 15, 2017. By:/s/Ria N. Chattergoon Ria N. Chattergoon, Esquire Fla. Bar No.: 015099 ria@saenzanderson.com SAENZ & ANDERSON, PLLC 20900 N.E. 30th Avenue, Ste. 800 Aventura, Florida 33180 Telephone: (305) 503-5131 Facsimile: (888) 270-5549 CERTIFICATE OF SERVICE I hereby certify that on September 15, 2017, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by Case 8:16-cv-01949-VMC-JSS Document 70 Filed 09/15/17 Page 4 of 5 PageID 1515 Case No.: 8:16-cv-01949-VMC-JSS 5 CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing. By /s/ Ria N. Chattergoon SERVICE LIST Case No.: 8:16-cv-01949-VMC-JSS R. Martin Saenz, Esq. Florida Bar No. 0640166 E-mail: msaenz@saenzanderson.com Ria N. Chattergoon, Esq. Florida Bar No. 015099 E-mail: ria@saenzanderson.com SAENZ & ANDERSON, PLLC 20900 N.E. 30th Avenue, Suite 800 Aventura, FL 33180 Telephone: (305) 503-5131 Facsimile: (888) 270-5549 Counsel for Plaintiff Richard C. McCrea, Jr. Florida Bar No. 351539 Email: mccrear@gtlaw.com Catherine H. Molloy Florida Bar No. 33500 Email: molloyk@gtlaw.com GREENBERG TRAURIG, P.A. 101 E. Kennedy Boulevard, Suite 1900 Tampa, FL 33602 Telephone:(813)318-5700 Facsimile: (813) 318-590 Counsel for Defendant Case 8:16-cv-01949-VMC-JSS Document 70 Filed 09/15/17 Page 5 of 5 PageID 1516