Celeski v. Tom Brown's Restaurant at Madison LLC

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

NORTHEASTERN DIVISION

JUSTIN CELESKI, et al., )

)

Plaintiffs, )

)

vs. ) Case No. 5:22-cv-01600-HNJ

)

TOM BROWN’S RESTAURANT )

AT MADISON LLC, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Defendants Tom Brown’s Restaurant at Madison LLC, Tom Eugene Brown, and

Ashley Walker Brown seek to re-open discovery after expiration of the Scheduling

Order’s discovery deadline. As discussed herein, Defendants have not demonstrated

good cause pursuant to Federal Rule of Civil Procedure 16 for extending the Scheduling

Order deadline. Accordingly, the court will deny Defendants’ request.

Plaintiffs Justin Celeski, Ashton Murdock, and Rachel Markum, all of whom

work or worked as servers or managers at Tom Brown’s Restaurant in Madison,

Alabama, filed this case on December 23, 2022, on behalf of all similarly situated servers

and bartenders, asserting claims against Defendants, the restaurant’s owners, for

violations of the Fair Labor Standards Act (FLSA), as well as supplemental state law

claims for breach of contract, unjust enrichment, and conversion. (Doc. 1). On March

23, 2023, Plaintiffs filed an Amended Complaint adding Ashlee Henthorne as a

Plaintiff, and adding a claim pursuant to 26 U.S.C. § 7434, a provision of the Internal

Revenue Code. (Doc. 10).

On May 23, 2023, the court entered a Scheduling Order (Doc. 26), and on June

13, 2023, and January 17, 2024, it revised the Scheduling Order. (Docs. 28, 41). The

operative Scheduling Order, entered January 17, 2024, set the following deadlines:

• Dispositive motions: August 29, 2024

• Class Certification motions: July 15, 2024, with responses due August 6,

2024

• Depositions of Plaintiff’s expert: by April 15, 2024

• Report from Defendants’ expert: by May 14, 2024, with expert

depositions by June 17, 2024

• Discovery completion: June 17, 2024

• Trial ready date: January 1, 2025

(Doc. 41).

On July 16, 2024, after obtaining an extension of the relevant deadlines, Plaintiffs

filed a motion to certify a class pursuant to Federal Rule of Civil Procedure 23(b). (Doc.

44). On July 19, 2024, Plaintiffs filed a motion for collective action certification and

court-facilitated notice under the FLSA. (Doc. 49).

On July 22, 2024, Defendants’ attorneys filed a motion to withdraw and to

extend all pending briefing and Scheduling Order deadlines. (Doc. 52). On that same

date, the court temporarily suspended all deadlines pending a ruling on the motion to

withdraw. (Doc. 53). On August 28, 2024, the court granted the motion to withdraw

and ordered Defendants to appear through new counsel within 30 days. (Doc. 56). On

September 27, 2024, new attorneys appeared on behalf of Defendants. (Docs. 58-60).

On September 30, 2024, the court ordered the parties to file a joint proposed amended

scheduling order and proposed briefing schedule for pending motions within seven

days. (Doc. 61).

The parties could not reach an agreement on the proposed orders. Rather, on

October 7, 2024, Plaintiffs filed a proposed amended scheduling order (Doc. 62), and

Defendants filed an opposed motion to modify the scheduling order, seeking to reopen

discovery to take Plaintiffs’ depositions, obtain Plaintiffs’ tax returns, and engage an

expert witness to defend against Plaintiffs’ claims under the Internal Revenue Code.

(Doc. 63). The court held a hearing on Defendants’ motion on October 23, 2024.

As Defendants seek to conduct discovery after the Scheduling Order deadline

expired, Federal Rule of Civil Procedure 16 governs their motion. Under Rule 16, a

“schedule may be modified only for good cause and with the judge’s consent.” Fed. R.

Civ. P. 16(b)(4); see also Smith v. Sch. Bd. Of Orange Cty., 487 F.3d 1361, 1366 (11th Cir.

2007) (citing Fed. R. Civ. P. 16(b); Sosa v. Airprint Systems, Inc., 133 F.3d 1417, 1419 (11th

Cir. 1998)) (“[W]here a party’s motion to amend is filed after the deadline for such

motions, as delineated in the court’s scheduling order, the party must show good cause

why leave to amend the complaint should be granted.”). The good cause inquiry

typically focuses upon the diligence of the party seeking the extension. See Sosa, 133

F.3d at 1418 (quoting Fed. R. Civ. P. 16 advisory committee’s note)) (“This good cause

standard precludes modification unless the schedule cannot ‘be met despite the

diligence of the party seeking the extension.’”); see also Johnson v. Mammoth Recreations,

Inc., 975 F.2d 604, 609 (9th Cir. 1992) (“If [a] party was not diligent, the [good cause]

inquiry should end.”).

Defendants bear the burden of demonstrating good cause under Rule 16 for

failing to complete discovery within the Scheduling Order deadline. See ConSeal Int’l Inc.

v. Neogen Corp., No. 19-CV-61242, 2020 WL 2494596, at *6 (S.D. Fla. May 14, 2020)

(citing Northstar Marine, Inc. v. Huffman, No. 13-0037-WS-C, 2014 WL 3720537, *3 (S.D.

Ala. July 28, 2014); TIC Park Ctr., 9 LLC v. Cabot, No. 16-24569-CIV, 2018 WL 4828435,

at *4 (S.D. Fla. Aug. 28, 2018)) (“The burden of establishing good cause [and] diligence

rests squarely on the party seeking relief from the scheduling order.”). However,

Defendants’ brief focuses upon their need for additional discovery, the relevance of the

information they seek to discover, and their desire to conserve resources in pursuit of

settlement, not upon whether they acted diligently to comply with the discovery

deadline before it expired.

The appearance of new counsel does not relieve Defendants of their burden to

demonstrate good cause. Defendants suggest their previous attorneys spent time

unsuccessfully pursuing insurance coverage for Plaintiffs’ claims, but that endeavor

would not have prevented those attorneys from also diligently pursuing discovery prior

to the expiration of the Scheduling Order deadline. Courts repeatedly hold that a

change in litigation strategy does not constitute good cause under Rule 16, as a litigant

is “bound by the actions of his freely-chosen counsel.” Quinn v. Deutsche Bank Nat. Tr.

Co., 625 F. App’x 937, 940 (11th Cir. 2015) (citing Barger v. City of Cartersville, Ga., 348

F.3d 1289, 1295 (11% Cir. 2003), overruled on other grounds by Slater v. United States Steel

Corp., 871 F.3d 1174, 1177 (11 Cir. 2017)); see also Delk v. UPS-Atlanta Hub, No. 1:18-

CV-5635-MHC-CCB, 2021 WL 2517786, at *4 (N.D. Ga. Mar. 5, 2021) (assertion that

a plaintiff moved for leave to amend complaint as soon as possible after obtaining new

attorneys did not constitute “the diligence that Plaintiff must show to establish good

cause under Rule 16”); Am. Builders ¢ Contractors Supply Co. v. Precision Roofing □

Consulting, LLC, No, 2:17CV97-WHA, 2018 WL 358508, at *2 (M.D. Ala. Jan. 10, 2018)

(rejecting motion seeking “to conduct formal discovery apparently as a change in

strategy, rather than as a request based on facts previously unavailable”); Fed. Trade

Comm'n v. Roca Labs, Inc., No. 8:15-CV-2231-T-35TBM, 2017 WL. 11002078, at *2 (M.D.

Pla. May 2, 2017) (“The only apparent bases for the filing of the Motions, that

Defendants have obtained new counsel and have embarked on new litigation strategies,

are not sufficient to establish good cause.”).

Because Defendants have failed to establish good cause under Rule 16 for

conducting discovery outside the Scheduling Order deadline, the court DENIES

Defendants’ motion to modify the Scheduling Order to reopen discovery. The court

will enter a separate order reestablishing briefing deadlines and unexpired Scheduling

Order deadlines.

DONE and ORDERED this 23" day of Octaber, 2024.

UNITED STATES MAGISTRATE JUDGE