UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Miami Division

Case No. 20-22721-CIV-FAM

MARIO HERNANDEZ,

Plaintiff,

v.

CHARLOTTE BURROWS, CHAIR

OF THE EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION,

Defendant.

/

JOINT EMERGENCY MOTION FOR CONTINUANCE OF TRIAL

Pursuant to Rule 7.6 of the Local Rules of the Southern District of Florida and Rule 

6(b)(1)(B) of the Federal Rules of Civil Procedure, and this Honorable Court’s Order of 

Continuance and Order Revising Pretrial Deadlines [DE 30], Plaintiff, MARIO HERNANDEZ 

and Defendant CHARLOTTE BURROWS, respectfully jointly file this Motion for a Continuance 

of Trial and state in support thereof:

I. EMERGENCY MOTION CERTIFICATION PER SO.DIST.FLA.L.R. 7.1(D)(1)

1. The Motion herein is deemed an Emergency Motion pursuant to Rule 7.1(d)(2).

2. An emergency ruling is required herein by February 23, 2022, which is the date 

Plaintiff must its Witness and Exhibit List pursuant to this Honorable Court’s Order of 

Continuance and Order Revising Pretrial Deadlines [DE 30]. Likewise, Defendant must file its 

Witness and Exhibit List by Friday, February 25, 2022. 

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II. SUMMARY OF RELIEF REQUESTED AND BACKGROUND

3. The Parties respectfully request a continuance of all pending pretrial deadlines, 

starting with Plaintiff’s deadline to file its Witness and Exhibit List, as well a continuance of trial

to this Court’s August / September 2022 trail calendar.

4. The Parties engaged in a conference on Tuesday, February 22, 2022, to discuss the 

future handling of the case in light of the fact that both Parties had emergency personnel issues.

5. Specifically, Plaintiff’s counsel Ralph Azoy had to take FMLA leave, beginning on 

February 11, 2022, due his wife being diagnosed with a serious and unexpected medical condition. 

6. As it relates to Defendant, the AUSA assigned to this instant case, Suzette Smikle, 

took an unannounced and indefinite emergency leave beginning February 17, 2022. AUSA Smikle

is not expected to return in time for trial. Accordingly, this case had to be reassigned to a new 

AUSA. AUSA John Leinicke was assigned to this case this week. AUSA Leinicke has no prior 

familiarity with this case.

7. After the Parties engaged in a lengthy conference on Tuesday, February 22, 2022, 

and after meticulously discussing the current outlook and future handling of this case, the Parties 

mutually agreed to continuance of trial for the trial calendar commencing in August and/or 

September, 2022.

8. The Parties reasoning for requesting this continuance is twofold. First, Plaintiff’s 

counsel’s firm is short staffed as a result of Mr. Azoy’s unexpected FMLA leave. As such, 

Plaintiff’s counsel is experiencing a hardship as it has numerous cases scheduled for trial in March 

through May of this year. 

9. Second, AUSA Leinicke is new to this case, which has been in litigation since 2020, 

and requires some time to be educated on the facts and procedural posture of this case before trial. 

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In addition, AUSA Leinicke is expecting his firstborn in late June / early July 2022 and as result 

will be on paternity leave from approximately July 1, 2022 through August 1, 2022, and October 

1, 2022 through January 1, 2023.

10. As a result of the unexpected emergencies identified above, the parties have not 

been able to exchange witness or exhibit lists or otherwise prepare a pretrial stipulation. 

I. MEMORANDUM OF LAW

A trial court has broad discretion in ruling on requests for continuances. Dempsey v. Mac 

Towing, Inc., 876 F.2d 1538, 1541 (11th Cir.1989) (finding the decision to grant a continuance on 

the day of trial to permit further discovery on damages not an abuse of discretion). The Court must 

exercise its discretion in light of the circumstances presented by focusing upon the reasons offered 

for the continuance. United States v. Garmany, 762 F.2d 929, 936 (11th Cir. 1985); S.D. Fla. L.R. 

7.6 (noting a court may grant a continuance for exceptional circumstances). 

When determining whether to grant a continuance, courts should consider: (1) the moving 

party’s diligence in its efforts to ready its case prior to the deadline; (2) the likelihood that the need 

for a continuance will be remedied if the continuance is granted; (3) the extent to which granting 

the continuance would inconvenience the court and the opposing party; and (4) the extent to which 

the moving party might suffer harm as a result of the district court’s denial. Rink v. Cheminova, 

Inc., 400 F.3d 1286, 1296 (11th Cir. 2005).

A. A Continuance of Trial and Pretrial Deadlines for the Parties to File Witness and 

Exhibit List is Necessary as Result of the Sudden and Unexpected Personnel Issues

In this case, good cause exists to continue trial and extend pre-trial deadlines for both 

parties. Specifically, Plaintiff’s counsel firm is short staffed as a result of Mr. Azoy’s unexpected 

FMLA leave. As such, the office of Plaintiff’s counsel is experiencing hardship as it has numerous 

cases scheduled for trial in March through May of this year. Additionally, AUSA Leinicke was

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not assigned to this case until Tuesday, February 23, 2022 and requires time to get acquainted with 

this instant case. Furthermore, because Mr. Leinicke is expecting his firstborn in June/July 2022, 

a June or July trial date may lead to the likely scenario where the Parties will need file another 

motion for continuance of trial as a result of Mr. Leinicke being on paternity leave. 

In light of the foregoing, the Parties diligently scheduled a conference call to discuss last 

week’s unexpected and sudden personnel issues. Pursuant to the conference call the Parties 

determined that a continuance of pending pretrial deadlines and trial will remedy the need for this 

continuance. Considering that the Parties mutually agreed to the continuance, neither Party will be 

prejudiced or inconvenienced should this motion be granted. 

Accordingly, the Parties respectfully request a continuance of all pending pretrial 

deadlines, starting with Plaintiff’s deadline to file its Witness and Exhibit List, as well a 

continuance of trial to commence on the court’s August / September 2022 trail calendar. This 

request for a continuation of the pretrial deadlines and trial is based on good cause.

WHEREFORE, Plaintiff MARIO HERNANDEZ and Defendant CHARLOTTE 

BURROWS, respectfully requests that this Honorable Court enter an order (a) granting this motion 

to continue trial and pending pretrial deadlines, starting with Plaintiff’s deadline to file a witness 

and exhibit list, and (b) granting any other relief this Court deems necessary and proper.

EMRGENCY CERTIFICATION

After reviewing the facts and researching applicable legal principles, I certify that this 

motion in fact presents a true emergency (as opposed to a matter that may need only expedited 

treatment) and requires an immediate ruling because the Court would not be able to provide 

meaningful relief to a critical, non-routine issue after the expiration of seven days. I understand 

that an unwarranted certification may lead to sanctions.

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Respectfully submitted on the 23rd day of February, 2022.

JUAN ANTONIO GONZALEZ

UNITED STATES ATTORNEY

By: /s/ John S. Leinicke

JOHN S. LEINICKE

ASSISTANT UNITED STATES ATTORNEY

Fla. Bar. 64927

99 N.E. 4th Street, 3rd Floor

Miami, Florida 33132

Tel: (305) 961-9212

Fax: (305) 530-7679

Email: john.leinicke@usdoj.gov

COUNSEL FOR DEFENDANT

AZOY SOCORRO LLP

By: /s/ David M. Fraguio

Ralph Azoy, Esq.

Florida Bar No. 0011675

David M. Fraguio, Esq.

Florida Bar No. 1016475

2020 Ponce de Leon Boulevard

Suite 1008

Coral Gables, FL 33134 

Tel: (305) 340-7542 

Fax: (305) 418-7438

Ralph@azoysocorro.com

David@azoysocorro.com

COUNSEL FOR PLAINTIFF 

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