Heller et al v. Logan Acquisitions Corporation

MOTION for leave to file to File a Reply Brief in Support of its Motion for Summary Judgment

M.D. Fla.February 5, 2019

TPA 512486759v1 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION LESLIE HELLER, MARQUIS GRIFFIN, AND LAKISHA MITCHELL, Plaintiffs, v. CASE NO. 8:17-cv-01715-EAK-TGW LOGAN ACQUISITIONS CORPORATION, d/b/a LIDO BEACH RESORT, f/k/a LIDO BEACH LLC, Defendant. / DEFENDANT’S MOTION FOR LEAVE TO FILE A REPLY BRIEF IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT Defendant Logan Acquisitions Corporation d/b/a Lido Beach Resort, f/k/a Lido Beach, LLC (“Defendant”), by and through undersigned counsel and pursuant to Local Rule 3.01(c), respectfully requests leave of Court to file a reply brief in support of its Motion for Summary Judgment [DE 89], and in support thereof states as follows: MEMORANDUM OF LAW On January 31, 2019, Plaintiffs filed their response in opposition to Defendant’s Motion for Summary Judgment. [DE 91]. In their response, Plaintiffs for the first time argue that they are proceeding under a mixed motive theory of liability. Furthermore, Plaintiffs’ response includes a declaration from an employee at Plaintiffs’ counsel’s law firm, attaching previously undisclosed evidence. [DE 92-2]. Case 8:17-cv-01715-WFJ-TGW Document 94 Filed 02/05/19 Page 1 of 4 PageID 5627 2 TPA 512486759v1 Finally, Plaintiff’s response mischaracterizes Defendant’s Motion for Summary Judgment as it relates to Plaintiff Mitchell’s retaliation claim. Accordingly, Defendant should be granted leave to address these issues in a reply brief. Local Rule 3.01(c) allows the Court to grant Defendant leave to file a reply brief. Pursuant to Local Rule 3.01(d), the requested reply brief, limited to the issues set forth above, will not exceed 10 pages. A reply brief is warranted in light of the new factual and legal issues presented in Plaintiffs’ response brief, and Defendant would be prejudiced by an inability to respond to those issues in a reply brief. Defendant requests leave to file the reply brief on or before February 11, 2019, so as not to unduly affect the February 15, 2019 hearing on Defendant’s Motion for Summary Judgment. Specifically, Plaintiffs argue that Defendant applied the incorrect legal analysis, and that this case should be evaluated under a mixed-motive analysis and not the single-motive analysis presented in Defendant’s motion. [DE 91. pp. 3-5]. However, Plaintiffs’ Amended Complaint shows that Plaintiffs alleged only that Defendant engaged in adverse employment actions against them because of their race, not as part of a mixed motive for the adverse actions. See DE 2, ¶¶ 36, 39, 42. Accordingly, Defendant requests the opportunity to address this new, and procedurally belated, theory of legal liability in a reply brief. Furthermore, in support of their response to Defendant’s Motion for Summary Judgment, Plaintiffs filed a declaration from Veneza Rivera, a legal assistant from Plaintiffs’ counsel’s law firm. [DE 92-2]. The declaration purports to contradict Case 8:17-cv-01715-WFJ-TGW Document 94 Filed 02/05/19 Page 2 of 4 PageID 5628 3 TPA 512486759v1 testimony from Defendant’s employee John Haviaras regarding a search he performed to identify employees with a criminal background. Defendant seeks leave to address this belated attempt to create new factual issues. Finally, Defendant requests the opportunity to clarify the record regarding the scope of its Motion for Summary Judgment, specifically as it relates to Plaintiff Mitchell’s retaliation claim, which Defendant addressed as “constructive discharge.” CONCLUSION For the foregoing reasons, Defendant respectfully requests that it be granted leave to file a 10-page reply brief in support of its Motion for Summary Judgment. RULE 3.01(G) CERTIFICATION Undersigned counsel certifies that she has attempted to confer with counsel for Plaintiffs’ regarding the relief sought herein. These attempts include emails to opposing counsel on February 4th and February 5th, as well as a telephone call to opposing counsel’s office. Undersigned counsel has not received any response regarding Plaintiffs’ position regarding the relief sought in the motion. Undersigned counsel will continue to attempt to confer with opposing counsel regarding the motion, and will supplement this motion with Plaintiffs’ position once it is known. Respectfully submitted, /s/Catherine H. Molloy Catherine H. Molloy Florida Bar No. 33500 Email: molloyk@gtlaw.com GREENBERG TRAURIG, P.A. 101 E. Kennedy Boulevard Suite 1900 Tampa, FL 33602 Case 8:17-cv-01715-WFJ-TGW Document 94 Filed 02/05/19 Page 3 of 4 PageID 5629 4 TPA 512486759v1 (813) 318-5700 – Phone (813) 318-5900 – Fax Attorney for Defendant CERTIFICATE OF SERVICE I HEREBY CERTIFY that on February 5, 2019 I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system. Kendra D. Presswood Shankman Leone, P.A. 707 North Franklin Street, 5th Floor Tampa, FL 33602 kpresswood@shankmanleone.com /s/Catherine H. Molloy Attorney Case 8:17-cv-01715-WFJ-TGW Document 94 Filed 02/05/19 Page 4 of 4 PageID 5630