Massey & Duffy filed this Motion for Sanctions in Court

Massey & Duffy filed this MOTION FOR SANCTIONS in Court:

Plaintiffs, Christopher Howard and Jeffrey Greenstone, move for sanctions for Defendant, Second Chance Jai Alia, LLC’s, refusal to provide a full response to Question #2 of Plaintiffs’ Second Set of Interrogatories as follows:

PROCEDURAL BACKGROUND

  1. Plaintiffs brought this claim against Defendant claiming that its tip pool was invalid because it included employees that invalidate the tip pool.
  2. Plaintiffs previously filed a Motion to Compel regarding the details of Defendant’s tip pool. This Court Granted that Motion (Doc. 35). In so granting the motion, the Court specifically cited Defendant’s refusal to answer Questions 1 and 2 to Plaintiff’s Second Set of Interrogatories and included those questions verbatim in the Order (Doc. 34, Page 2).
  3. Defendant moved for reconsideration of the Court’s Order and its Motion for Reconsideration was denied (Doc. 39).
  4. The Court’s Orders required Defendant to provide full and accurate responses to Plaintiffs’ Second Set of Interrogatories, Questions #1 and 2 (among other discovery) by December 1, 2015 (Doc. 39). Failing that, Defendant is subject to additional sanctions. Id.
  5. Plaintiff’s Second Set of Interrogatories, Question #1, asked the Defendant to list employees that received tips as part of their employment. Defendant answered Question #1 and provided a list of employees names and contact information. See Exhibit A.
  6. Plaintiff’s Second Set of Interrogatories, Question #2, asked Defendant to state the position worked by the employees listed in response to Question #1. It also asked for each of those employee’s job duties. See Exhibit A.
  7. In response to Question #2, Defendant failed to provide specifics regarding what positions certain employees worked and their particular job duties. Instead, Defendant designated 31 of its employees as “CAGE” and stated that a person with that designation “would be” one or more of the following: chip runners, cashiers/tellers, and podium persons.
  8. It is impossible for Plaintiffs to tell what the position(s) worked by each of the 31 persons designated as “CAGE” were and their job duties. For example, which of those whom performed the teller duties are likely key witnesses. Likewise, it is impossible to tell which of these CAGE employees are “Vault Persons” – other tipped employees of the Defendant.

ARGUMENT

In response to Question #1, Defendant listed all of its employees that received tips. Defendant labeled those persons participating in the tip pool as “CAGE” or “DEALER” on attached Exhibit 1. Those persons listed as “CAGE” included 31 different employees. Other employees were labeled “BAR” and “DELI” but, according to Defendant, they were tipped but not part of the tip pool.
Interrogatory Number 2 asked “For each employee identified in Interrogatory No. 1, state the position(s) worked by each such employee and their job duties.” (e.s.). Defendant’s answer is as follows:
See attached Exhibit 1. A “Dealer” Simply means a poker dealer. An employee categorized as “BAR” would be cocktail waitresses and bartenders. Their job duties are as their name implies. An employee categorized as “DELI” would be cooks/cashiers that work in the deli that provides food service to customers. Their job duties are as their name implies. An employee categorized as “CAGE” would be chip runners, cashiers/tellers, and podium persons. Cashiers/tellers sell chips and cash out chips to customers. They also sell poker tournament seats/tickets and cash out winnings for the tournaments. Chip runners sell chips on the floor to poker players and cash out winnings for the tournaments. Chip runners sell chips on the floor to poker players and collect seat cards. Podium persons seat players, sell chips and take out seat reservations. They also track “high hands” for jackpots that are periodically paid out.

(e.s.). See Exhibit A. There’s no reference, either in the sworn answer to Question #2 or in Exhibit 1, to any “Vault Person(s).”

  1. Defendant will not state which “CAGE” employees held the teller position and had those job duties.

Defendant’s answer to Question #2 states that “An employee categorized as ‘CAGE’ would be chip runners, cashiers/tellers, and podium persons.” However, it is impossible to tell which of the 31 persons with the “CAGE” designation held the position of chip runner, cashier, teller, and/or podium person. It is also, therefore, impossible to tell what job duties were worked by each such employee. Possibly all 31 persons identified as CAGE all performed the job duties of chip runners, cashiers/tellers and podium persons (or even other job duties); however, the interrogatory answer is intentionally unclear. Moreover, Plaintiffs have uncovered the identity of one of Defendant’s employees (Melissa Defilippo) as only a teller via her LinkedIn profile – not also a chip runner or podium person. See Exhibit C.
This is not an unimportant issue because Defendant has identified these 31 persons as part of its tip pool and therefore their job duties are critical to the pool’s validity. As stated by the U.S. Department of Labor in Fact Sheet #15: a valid tip pool may not include employees who do not customarily and regularly receive tips. The only information Defendant gave regarding the jobs each of these 31 persons did was label them as “CAGE”. Beyond “CAGE”, it is impossible to tell what each of these employees really did for Defendant.
In this case, as it was the last time Defendant was before this Court regarding this same issue, which of the CAGE people are tellers (as opposed to chip runners) is particularly important because those persons would be improperly included in the tip pool. See Exhibit B, Page 7 (this Court’s Order Denying Summary Judgment, citing Wajcman v. Investment Corp. of Palm Beach, No. 07-80912-Civ, 2009 WL 465071, at *3 (S.D.Fla. Feb. 23, 2009) (order regarding motions in limine) (analysis must focus on the tellers’ actual customer interaction; not the amount of customer interaction experienced by the occupation as a whole)). However, Defendants have disguised which of its “CAGE” employees were tellers by lumping all the chip runners, tellers, cashiers and podium persons into a 31 person category and labeling them all as “CAGE”.
2. Defendant will not state which “CAGE” employees were “Vault Persons” and had those duties.

Exhibit 1 to Defendant’s answers as to the job duties of CAGE persons provides: “Please see Vault/Cage Sheet for job duties and descriptions of CAGE”:

This unverified “Vault/Cage” sheet located at the end of the Interrogatory answers claims in bold that vault persons “get tipped” and lists the days of the week they work. However, although Exhibit 1 lists all persons who receive any kind of tips, not a single person listed on Exhibit 1 has the designation of Vault Person. Defendant’s answer to Question #2 does not mention a Vault Person either – it only references “chip runners, cashiers/tellers, and podium persons.”
The Vault/Cage sheet also claims that a vault person has “more
responsibility” than chip runners, tellers or podium persons. However, the sheet fails to identify these extra responsibilities. Question #2 specifically asks for the job duties of each employee. A tip pool cannot legally include persons with management responsibility.
Moreover, the job descriptions provided by the Defendant indicate the inclusion of some employees who do not customarily and regularly receive tips. For example, it describes the “day vault person” whose job duties are described as person that opens the vault, sets up podium, does count, does deposits, and balances things and does other activities not associated with customer interaction. See Page 1 of the “Vault/Cage” sheet. Whomever these day vault persons are important to Plaintiff’s case, but Defendant has concealed their identities amongst the 31 persons labeled “CAGE”.
Interestingly, one of the “vault supervisors” identified in the prior case against Defendant is now designated on Exhibit 1 solely as “CAGE”. See Exhibit B, Footnote 14 (referring to Kathleen Danielson as a vault supervisor); however, it is impossible to tell Ms. Danielson’s position(s) worked and her job duties although this is exactly the information asked by Question #2. It is also impossible to tell who the “vault personnel” are because they are all lumped into the same “CAGE” category – the same problem encountered above with the tellers.
Defendant has concealed the positions worked by each of the “CAGE” people and their job duties, contrary to the clear language of Question #2 and in violation of the Court’s Orders to fully answer that interrogatory. This decision was apparently strategic and designed to prevent the Plaintiff from identifying persons such as tellers and/or vault personnel whom may be performing duties that make them improper tip pool participants. Therefore, Defendant failed to fully answer Question #2.
WHEREFORE, Plaintiffs respectfully request additional sanctions against Defendant, including attorneys’ fees, costs, an Order to Show Cause, striking of the pleadings, and/or an Order again requiring a full and accurate answer to Question #2.

GOOD FAITH CONFERENCE

Plaintiffs’ counsel conferred in good faith with Defendant’ counsel both in person on December 1, 2015 and multiple times via electronic email prior to filing this Motion, however no resolution could be reached.

Motion to Dismiss Overcome | Plaintiff’s Response to Defendant’s Motion to Dismiss

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION TO DISMISS

Plaintiff responds to Defendant’s Motion to Dismiss dated October 4, 2012 as follows:

I. The Written Agreement

Footnote 1 of Plaintiff’s Complaint makes it clear that “Plaintiff is not in possession of a signed copy of this contract, however it was signed by all parties and is believed to be in the possession of the Defendant.” Thus, the allegation that a signed copy of the agreement is in the sole and exclusive possession of one or more of the defendants precludes dismissal. Sachse v. Tampa Music Co., 262 So.2d 17, 19 (Fla. 2d DCA 1972).

Moreover, according to Trawick’s Florida Practice and Procedure, 2003 Edition, Section 6-15 (Exhibits), Footnote 3, “A signed copy [of the document] is not required” to be attached under Rule 1.130. Similarly, the “attached or incorporated document does not have to be complete and may be supplemented by allegations in the pleading.” Id. at 6-15.

Finally, even if permanently lost by all parties and even if Plaintiff’s testimony could not supplement the fact that it was signed, a lost contract will not preclude a breach of contract action on the same. See, e.g., Edwards v. Rives, 35 Fla. 89, 17 So. 416 (1895)(allowing reestablishment of a lost contract for the sale of land and a specific performance claim to proceed simultaneously); Griffin v. Fries, 23 Fla. 173, 2 So. 266, 267-68 (1887)(allowing a claim for reestablishment to proceed with a claim for relief under such document in the same cause of action); Young v. Charnack, 295 So.2d 665, 667 (Fla. 3d DCA 1974)(action to reestablish and enforce lost mortgage and note). Defendant’s argument that Count I should be dismissed because a signed copy of the agreement is not attached is without merit.

II. Statute of Frauds

Defendant’s next argument is that the statute of frauds precludes Count II, the alleged breach of an oral contract. However, the statute of frauds is an affirmative defense, and cannot be asserted as a grounds for a motion to dismiss. Fletcher v. Williams, 153 So.2d 759 (Fla. 1st DCA 1963) (the statue of frauds affirmative defense may not be asserted as grounds for a motion to dismiss a complaint, even though the availability of the defense as a bar to the action may appear on the face of the complaint).

Additionally, because the contract could have been completed within a year the statute of frauds does not apply. Only if a contract could not possibly be performed within one year would it fall within the statute. See Hesston Corp. v. Roche, 599 So.2d 148 (Fla. 5th DCA 1992). Also, the statute of frauds only applies to executory contracts, not to agreements that have been fully performed. Full performance takes the agreement beyond the operation of section 725.01. See Moneyhun v. Vital Indus., Inc., 611 So.2d 1316, 1319 (Fla. 1st DCA 1993).

Finally, as identified in the attached Exhibit B, the initial term of the agreement was for February 3rd, 2004 until December 31st, 2004. See Paragraph 1(b). Thereafter, the “Agreement will be automatically renewed for additional periods of one-year each….”. Id. Thus, the initial termoftheagreementwaslessthanoneyearandthenitrenewsayearatatime. Becausethe contract renewed each year, it is not barred by the statute of frauds. As stated by the court in Rubenstein v. Primedica Healthcare, Inc., 755 So.2d 746, 748 (Fla. 4th DCA 2000):

In Rothman v. Gold Master Corp., 287 So.2d 735 (Fla. 3d DCA 1974), appellant appealed from an order granting defendant’s motion to dismiss his complaint with prejudice. In his complaint, appellant alleged that he entered into an oral contract of employment with the defendant to commence on July 1, 1965 and terminate on June 30, 1966. Further, he alleged that the oral contract was renewable each year by virtue of mutual acts and performances, that the parties annually renewed the contract and that on July 1, 1971 the contract was renewed with the understanding that appellant would relocate himself and his family to Florida. In November 1971, prior to the end of the term of the contract, appellant was dismissed from his employment without cause.

In reversing, the Third District held that where an agreement expires by its terms and without more, the parties continue to perform as before, an implication arises that they have mutually assented to a new contract containing the same provisions as the old. See id. at 736. Further, the court held that if a pleading informs the defendant of the nature of the cause against him, the pleading is sufficient. See id. at 737 (citing Weich v. Cook, 250 So.2d 281 (Fla. 1st DCA 1971)). Thus, the oral renewal of a one-year oral contract took the contract out of the statute of frauds. See id.

As in Rothman, we hold in this case that appellant sufficiently stated a cause of action for breach of an oral agreement. This does not, however, preclude appellee from raising his affirmative defense of statute of frauds at a later stage in these proceedings.

(e.s.). Similarly, simply because the agreement between Plaintiff and Defendant renewed each year does not mean the matter is barred by the statute of frauds even if that affirmative defense is ultimately pled (which Plaintiff contends would be wholly without merit).

III. Unjust Enrichment has been adequately pled.

Defendant claims that Plaintiff did not adequately plead two elements of unjust enrichment, however it fails to take into account that Plaintiff reincorporated paragraphs 1-7 of the Complaint into that count. adequately pled.

Thus, all elements of unjust enrichment have clearly been

/s/ Michael Massey Michael Massey Fla. Bar No. 153680