VASCONCELO

v.

MIAMI AUTO MAX, INC.

) ) Civil Action No. 17-21765-Civ-Scola Miami Auto Max, Inc., d/b/a ) “Car Depot of Miami” and “Car ) Depot of Miramar,” and; ) Kennya Quesada, Defendants. ) Order Denying Motion for Relief from Judgment and Order Plaintiff Roberto Vasconcelo has asked the Court to relieve him of the final judgment entered in this case and to reconsider its order denying his motion for a new trial. (ECF No. 124.) Defendants Miami Auto Max, Inc., doing business as “Car Depot of Miami” and “Car Depot of Miramar,” and Kennya Quesada (collectively, “Car Depot”) oppose Vasconcelo’s motion, arguing it is untimely and fails on its merits as well. (Defs.’ Resp., ECF No. 125.) After careful consideration, the Court denies Vasconcelo’s motion (ECF No. 124).

1. Background

Vasconcelo initiated this case in May 2017, asserting a single claim for unpaid minimum wages under the Fair Labor Standards Act. Vasconcelo, a used-car salesman at the Car Depot, complained Car Depot forced him to “work ‘off-the-clock’ hours in order to ‘repay’ his employer for amounts supposedly paid for hours he worked.” (Pl.’s Mot. at 1.) After a two-day trial, a jury returned a verdict in his favor, finding Car Depot failed to pay Vasconcelo at least minimum wage for all the hours he worked. (Id.) Although the jury found in his favor, it awarded him only $97.20. (Id.) Subsequently, Vasconcelo moved for a new trial. (Id.) The Court denied the motion (ECF No. 103) and later entered a final judgment (ECF No. 112). Vasconcelo’s appeal of both the final judgment as well as the Court’s order denying a new trial are pending before the Eleventh Circuit.¹ During the trial in this case, Vasconcelo asked Quesada, Car Depot’s owner, about an unsigned document labeled “Sales Associate Pay Plan.” (Pl.’s Mot. at 2.) Under “Training,” this plan indicated that new employees would be “required to complete [their] first week . . . of training . . . without compensation.” (Ex. 1, ECF No. 124-1.) When asked about the unexecuted

Here, Vasconcelo seeks relief under Rule 60(b) based on what he describes as “subsequently discovered evidence” and Car Depot’s “false testimony at trial.” (Pl.’s Mot. at 4.) He thus seeks relief for reasons (2)—“newly discovered evidence”—and (3)— “fraud . . . , misrepresentation, or misconduct by an opposing party.” “The Rule is clear. In order for a Rule 60(b)(1) or 60(b)(2) or 60(b)(3) motion to be timely, it must be filed not more than one year after the entry of the judgment or order or date of the proceeding.” Johnson v. Buss, 05- CIV-23293, 2011 WL 2652157, at *2 (S.D. Fla. July 6, 2011) (Moreno, J.). Vasconcelo’s motion, then, with respect to the order denying his request for a new trial, is untimely. The Court’s final judgment, on the other hand, was entered exactly one year before the instant motion was filed. Nonetheless, “a motion is not timely pursuant to Rule 60 merely because it was filed less than one year after the entry of judgment.” Leon v. M.

I. Quality Lawn Maint., Inc., 10-20506-CIV, 2018

WL 6250529, at *4 (S.D. Fla. Nov. 29, 2018) (Simonton, C. Mag. J.). Rather, the Court must also determine whether Vasconcelo’s motion was “made within a reasonable time.” Fed. R. Civ. P. 60(c)(1). “A determination of what constitutes a reasonable time depends on the circumstances in an individual case, and in making the determination, courts should consider whether the parties have been prejudiced by the delay and whether a good reason has been presented for failing to take action sooner.” Rease v. AT&T Corp., 358 F. App’x 73, 75 (11th Cir. 2009) (citing BUC Int'l Corp. v. Int’l Yacht Council Ltd., 517 F. 3d 1271, 1275-76 (11th Cir. 2008)) (internal quotations omitted). In attempting to show that he acted “within a reasonable time,” Vasconcelo points to his filing of his Rule 60(b) motion “within weeks of obtaining the unlawful Pay Plan.” (Pl.’s Reply at 5.) As Vasconcelo explains, Car Depot produced the document in September 2019, in response to Vasconcelo’s discovery requests in a related state-court litigation. Missing from Vasconcelo’s presentation, however, is any justification for Vasconcelo’s not having sought such purportedly critical evidence sooner. Contrary to Vasconcelo’s position, Car Depot does not bear the burden, as an initial matter, of showing that the motion was not made within a reasonable time; rather, Vasconcelo himself must affirmatively show that it was. See Del Fuoco v. Wells, Case No. 8:03–CV– 161–T–23TGW, 2007 WL 42960, at *6 (M.D. Fla. Jan.4, 2007) (“The plaintiff has failed to provide any reason at all, much less a good reason, why the information contained in the documents was not presented sooner than it was.”) Because the Court can discern nothing in the record that would have prevented Vasconcelo from seeking this evidence during discovery in this case, the Court finds his motion untimely. See Johnson Waste Materials v. Marshall, 611 F. 2d 593, 598 (5th Cir. 1980)2 (distinguishing between evidence that is truly “newly discovered” rather than evidence that is “merely ‘newly produced’”).

Furthermore, the Court does not find this evidence material or that its introduction at trial “would probably produce a new result.” Toole, 235 F. 3d at 1316.

Vasconcelo does not contend this plan was ever applicable to him— indeed it was signed by a different employee, three months after he himself started working at Car Depot. (Defs.’ Resp. at 3.) And there is no dispute that Vasconcelo was compensated for his first week of employment. (Id. at 4.) Instead, Vasconcelo’s argument is that if he had had this other employee’s signed pay plan at trial, he would have been able to prove that Car Depot requires its sales personnel to work off the clock. (Pl.’s Mot. at 8.) Vasconcelo also maintains this pay plan “would have corroborated [his] testimony that he was charged . . . $19 for apparel that he was required to wear at work.” (Id.) Nothing in Vasconcelo’s presentation enables the Court to divine the crucial connection between, on the one hand, Vasconcelo’s claim that Car Depot required him to work off the clock “in order to ‘repay’ his employer for amounts supposedly paid for hours he worked” and, on the other, a document signed by another employee requiring that other employee to complete a five-day training without compensation. The jury already found in Vasconcelo’s favor—that Car Depot failed to pay him a minimum hourly wage for all the hours he worked. Vasconcelo fails to explain or demonstrate how this other employee’s signed pay plan would have resulted in a different trial result. B. Rule 60(b)(3) In accordance with “Rule 60(b)(3), a court may relieve a party from a final judgment upon a showing of fraud, misrepresentation, or misconduct by an opposing party.” Guthrie v. Wells Fargo Home Mortgage NA, 706 Fed. App’x 975, 977 (11th Cir. 2017) (citing Fed. R. Civ. P. 60(b)(3)). “To obtain relief under Rule 60(b)(3), the moving party must prove by clear and convincing evidence the adverse party obtained the verdict through fraud, misrepresentations, or other misconduct.” Id. Ultimately, “[t]he moving party must also demonstrate the alleged conduct prevented h[im] from fully presenting her case.” Id. The testimony Vasconcelo presents does not amount to clear and convincing evidence that Car Depot obtained the verdict in this case through fraud, misrepresentations, or other misconduct. Indeed, it is not even clear that the testimony he presents necessarily amounts to misrepresentations, as he claims it does, at all. Certainly, Quesada’s testimony could have just as easily been a reflection of her mistaken understanding of not only counsel’s questions but also of the underlying facts. This is borne out by Quesada’s deposition testimony where she stated she didn’t “think” the unpaidtraining pay plan ever went into place and that Car Depot’s sales manager, Jorge Sotomayor, would know more about the pay plan than she did. (Defs.’ Resp. at 5.) Vasconcelo characterizes Car Depot as having “testif[ied] untruthfully that such a Pay Plan had never been implemented.” (Pl.’s Mot. at 7.) The testimony Vasconcelo presents is far from so absolute and unequivocal.

4.

Conclusion Vasconcelo’s motion is untimely and fails on its merits. Based on the foregoing analysis, the Court denies his motion for relief from the Court’s final judgment and for reconsideration of the order denying Vasconcelo’s motion for a new trial (ECF No. 124).

Accordingly, the Court also denies Vasconcelo’s request for a hearing as well as his request for additional discovery related to the sales records he identifies in his motion (Pl.’s Mot. at 9). Done and ordered, at Miami, Florida, on March 24, 2020. [ee N. Scola, Jr. United States District Judge