UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 1:22-CV-23074-BLOOM/OTAZO-REYES

OCTAVIO COLLADO

For himself and all others

similarly situated,

Plaintiff, 

v. 

450 NORTH RIVER DRIVE, LLC,

D/B/A KIKI ON THE RIVER,

RJ RIVER, LLC, AND 

ROMAN JONES,

Defendants.

_______________________________________/

DEFENDANTS 450 NORTH RIVER DRIVE, LLC, D/B/A KIKI ON THE RIVER,

ROMAN JONES, AND RJ RIVER, LLC, JOINT RESPONSE IN OPPOSITION 

TO PLAINTIFF’S OBJECTION TO AND APPEAL OF THE MAGISTRATE

JUDGE’S DISCOVERY ORDER DATED APRIL 6, 2023

Defendants, 450 North River Drive, LLC, d/b/a Kiki on the River (“Kiki”), Roman Jones 

(“Jones”), and RJ RIVER, LLC (“RJ”) (collectively “Defendants”), by and through their

undersigned counsel, hereby file their Response in opposition to Plaintiff’s Objection to and 

Appeal of Order. Defendants state the following in support thereof: 

1. On April 5, 2023, Magistrate Judge Otazo-Reyes conducted a discovery hearing on 

discovery matters raised by Plaintiff, Octavio Collado (“Collado”). [ECF No. 119]. The hearing 

lasted approximately one-hour. Id. At the hearing, Judge Otazo-Reyes heard the arguments of 

counsel, and she made rulings within her broad discretion to oversee discovery on each of the 

issues presented. On April 6, 2023, Judge Otazo-Reyes entered her detailed written Order (“the 

Order”) explaining her rulings on each of the disputes raised by Plaintiff. [ECF No. 121].

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2. No rulings in the Order are clearly erroneous or contrary to the law. As Defendants 

explain in more detail below, there is legal authority supporting each of Judge Otazo-Reyes’ 

rulings. Accordingly, the rulings cannot be clearly erroneous or contrary to law. 

3. Moreover, Plaintiff cannot establish that any of the rulings are clearly erroneous or 

contrary to law because the cases he cites are not binding authority from the Eleventh Circuit Court 

of Appeal requiring specific discovery rulings. Instead, Plaintiff relies on district court orders that 

are distinguishable in many instances and dicta from one Eleventh Circuit case. Thus, Plaintiff’s 

objections and appeal are meritless and must be denied

MEMORANDUM OF LAW

To alter a magistrate judge’s order on discovery the “appealing parties . . . bear the heavy 

burden of showing that the orders are ‘clearly erroneous or contrary to law.’” Doe v. Lynn Univ., 

Inc., No. 9:16-CV-80850-ROSENBERG/BRANNON, 2017 U.S. Dist. LEXIS 7528, *2-3 (S.D. 

Fla. Jan. 19, 2017) (emphasis added) (quoting 28 U.S.C. § 636(b)(1)(A). Additionally, “[i]t is 

extremely difficult to justify alteration of the magistrate judge’s non-dispositive action . . . 

because clear error is a highly deferential standard of review.” Id. (emphasis added) (internal 

quotation marks omitted) (citing Holton v. City Thomasville School Dist., 425 F. 3d 1325, 1350 

(11th Cir. 2005) and 12 Wright, Miller and Marcus, Federal Practice and Procedure Civ. 2d §

309). 

Generally, an order is considered clearly erroneous when “although there is evidence to 

support it, the reviewing court on the entire evidence is left with the definite and firm conviction 

that a mistake has been committed.” Doe, 2017 U.S. Dist. LEXIS 7528, *3-4 (quoting Holton, 

425 F. 3d at 1350) (emphasis added). An order may be deemed contrary to law only “where it 

fails to apply or misapplies relevant statutes, case law or rules of procedure.” Doe, 2017 U.S. Dist. 

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LEXIS 7528, *4. Here, Plaintiff has not identified any issues with Judge Otazo-Reyes’ Order that 

are clearly erroneous or contrary to law. 

Timing of Defendants’ Amendments and the Order’s Alleged Omissions:

Plaintiff’s “preliminary” concerns with the Order regarding the timing of Defendants’

amendments to their discovery responses and alleged omissions of issues argued at the hearing are 

not subject to appeal. Plaintiff’s concerns regarding the timing of Defendants’ amended discovery 

answers and the order’s alleged omissions are not matters that are clearly erroneous or contrary to 

any law. Moreover, Plaintiff failed to identify the issues he claims were omitted from the order. 

In light of the forgoing, Plaintiff must raise his alleged concerns pertaining to the timing of 

Defendants’ amended answers and purported omissions from the order directly with Judge OtazoReyes.

1

Ruling No. 2:

Judge Otazo-Reyes was well within her discretion to allow Defendants to identify their 

counsel as the point of contact for Jones and their employed managerial employees. See Nathaniel

v. Am. Airlines, No. 2007/0033, 2008 (U.S. Dist. LEXIS 95336, *5-12 (D.V.I. Nov. 20, 2008) 

(holding “the Magistrate's Order denying Plaintiff's Motion to Compel Defendant to produce the 

home addresses and telephone numbers of its employees who were involved in the decision to 

remove Plaintiff from Flight 1290 is not clearly erroneous or contrary to law.”) (emphasis 

added). The ruling limiting the PII that Defendants must provide for current managerial employees 

is supported by case law as reflected in Nathaniel because it would be unethical for Plaintiff’s 

1 Defendants also note that Judge Otazo-Reyes advised Plaintiff that her rulings were 

without prejudice. Therefore, Plaintiff may resubmit issues to the Court if there are any changes

in the facts of the case that could lead to potentially different outcomes on the issues discussed in 

the Order. 

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counsel to contact individuals who are managerial and still employed by Defendants. Id. Further, 

the claims alleged relate directly to Plaintiff’s employment and potentially the conduct of the 

identified individuals in their capacity as managerial employees. Notably, Plaintiff has alleged 

that Defendants, and their managerial employees, improperly retained or distributed tips in 

violation of the FLSA. [ECF No. 122 at ¶¶ 34, 54, 63, 74]. Accordingly, statements and 

information provided by current managerial employees may be binding on the company and 

impact the defenses to the case. Id. As a result, it was not clearly erroneous or contrary to law for 

Judge Otazo-Reyes to require Plaintiff to communicate with Defendants’ counsel instead of 

providing the addresses and telephone numbers of managerial employees and/or Jones. 

Similarly, Plaintiff is not entitled to Jones’ PII including his date of birth and social security 

number. See Bacchus v. Benson, No. 4:07cv186, 2007 U.S. Dist. LEXIS 106145, at *3-5 (N.D. 

Fla. Nov. 29, 2007). Individual’s personal information such as date of birth and social security 

number need not be provided through written discovery because such information leaves the 

individual suspectable to identity theft. Id. In Bacchus, the court explained the defendant did not 

make any showing that the plaintiff’s social security number was needed to do a background check, 

and with the increased risk of identity theft, personal identifiable information such as a social 

security number is not just background information. Id. Similarly, here, Plaintiff has no need to 

obtain Jones’ PII and has not made any showing that Jones’ social security number is needed to 

do a background check. Id. These requests are made for no reason other than to harass Jones. 

Further, Judge Otazo-Reyes’ Order was not clearly erroneous or contrary to law because courts 

have denied the same or similar requests related to social security numbers and dates of birth.

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Ruling No. 3:

In interrogatory number 7 directed to Kiki, Plaintiff asked Kiki to identify the following: 

(1) the number of individuals employed as captains, servers, and bussers from the prior five (5) 

years and (2) the percentage of tips distributed to each captain, server, or busser during that time. 

In response, Kiki directed Plaintiff to the payroll records that it produced, which contain 

all the data that Plaintiff is seeking in its original format.2 Kiki is permitted to direct Plaintiff to 

records that is produced pursuant to Fed. R. Civ. P. 33(d) which states:

If the answer to an interrogatory may be determined by examining, auditing, 

compiling, abstracting, or summarizing a party's business records (including 

electronically stored information), and if the burden of deriving or ascertaining the 

answer will be substantially the same for either party, the responding party may 

answer by:

(1) specifying the records that must be reviewed, in sufficient detail to enable the 

interrogating party to locate and identify them as readily as the responding party 

could; and

(2) giving the interrogating party a reasonable opportunity to examine and audit the 

records and to make copies, compilations, abstracts, or summaries

Specifically, the payroll records that Kiki has produced covering three years and will 

continue to produce for the fourth and fifth year identify every captain, server, and by position. 

Further, the records provide the total amount of tips distributed to all employees, as well as each 

individual employee, and each category of employee (i.e., captain, servers, and bussers). With 

these records, Plaintiff will be able to discern all the information he seeks, and the burden of 

deriving or ascertaining the information Plaintiff seeks will be substantially the same for either 

2 Kiki limited its response to a three (3) year period, but Judge Otazo-Reyes has expanded that 

time to five (5) years. Also, Kiki redacted the records it provided, but Otazo-Reyes has also 

resolved this issue as she is requesting the parties submit a confidentiality order. Kiki will be able 

to produce the unredacted records for a five (5) year period once the terms of the confidentiality 

order are agreed upon. 

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party. Significantly, any calculations Defendants have performed were at the direction of their 

counsel and they are privileged and/or attorney work product. 

Accordingly, it is not clearly erroneous or contrary to law to require Plaintiff to perform 

the work to obtain the information that he seeks when such information is readily available for the 

three years of records already in his possession and will be available for the fourth and fifth year. 

Ruling No. 4: 

Plaintiff’s suggestion that the FLSA employer issue turns on having authority in relation 

to banking, contracts, leases, and/or agreements is untrue and a distortion of the FLSA’s employer 

analysis. Pursuant to the FLSA, an employer “includes any person acting directly or indirectly in 

the interest of an employer in relation to an employee . . . .” 29 U.S.C. § 203(d) (emphasis added). 

“As defined, an employer is not only a company for whom the employee directly works but also 

'any person who (1) acts on behalf of that employer and (2) asserts control over conditions of 

the employee's employment.” Cabreja v. SC Maint., Inc., 8:19-cv-296-T-33CPT, 2019 U.S. Dist. 

LEXIS 112783, at *3 (M.D. Fla. June 19, 2019) (emphasis added) . “Whether an individual falls 

within [the definition of employer] 'does not depend on technical or isolated factors but rather on 

the circumstances of the whole activity.” Otero v. Medicomp, Inc., No. 6:16-cv-599-Orl-28GJK, 

2013 U.S. Dist. LEXIS 155569, at *2 (M.D. Fla. Oct. 30, 2013). The Eleventh Circuit Court of 

Appeals has explained that the factors that the court considers when determining if an individual 

is an employer are the following:

Whether the alleged employer (1) had the power to hire and fire the employees, (2) 

supervised and controlled employee work schedules or conditions of employment, 

(3) determined the rate and method of payment, and (4) maintained employment 

records.

Villarreal v. Woodham, 113 F.3d 202, 205 (11th Cir. 1997).

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None of the factors contemplated by the Eleventh Circuit expressly relate to an 

individual being a signatory on any bank accounts, leases, agreements, or contracts. 

Further, those factors do not provide Plaintiff with the ability to conduct a fishing 

expedition to ascertain whether Jones or anyone else has authority in relation to banking, 

contracts, leases, and/or agreements on behalf of Kiki or RJ. Instead, the focus is limited 

primarily to the individual’s day-to-day operational control over hiring and firing 

employees, supervising and controlling employees work schedules or conditions of 

employment, determining rate and method of payment, and maintaining employment 

records. See Villarreal, 113 F.3d at 205 (11th Cir. 1997). Therefore, it is not clearly 

erroneous or contrary to law to sustain the objections to interrogatory 6, 11, and 13 or 

limiting the response to interrogatory 10. 

Ruling on Interrogatory No. 2 to Mr. Jones:

Finally, Plaintiff is not entitled to Jones’ criminal history, assuming such a history exists, 

because it has no relation Plaintiff’s claims. Plaintiff has alleged that his purported employers 

improperly retained and/or distributed tips that he was given by customers. These allegations do 

not have any relation to Jones’ criminal history, and such information is not proportional to the 

needs of the case. Further, Plaintiff has proffered no evidence to show a good faith belief that 

Jones has a legally sufficient criminal history that should be subject to discovery. Therefore, 

Plaintiff has not, and cannot, show that the ruling limiting his ability to request information about 

Jones’ criminal history is clearly erroneous or contrary to law. 

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CONCLUSION

For the foregoing reasons, Defendants, 450 North River Drive, LLC, d/b/a Kiki on the 

River, RJ River LLC, and Roman Jones, respectfully requests that this Honorable Court enter an 

order: (1) denying Plaintiff’s Objection to and Appeal of Order [ECF No. 124] and (2) granting 

such other and further relief as this Court deems just and proper. 

Dated: May 1, 2023

Respectfully submitted,

JACKSON LEWIS P.C. Levine & Partners, P.A.

One Biscayne Tower, Suite 3500 3350 Mary Street

Two South Biscayne Boulevard Miami, Florida 33133

Miami, Florida 33131 Telephone: (305) 372-1352

Telephone: (305) 577-7600

/s/ Reynaldo Velazquez /s/ Allan Reiss________________

Reynaldo Velazquez, Esq. Allan Reiss, Esq

Florida Bar No.: 069779 Florida Bar No. 858500

Email: rey.velazquez@jacksonlewis.com Email: asr@levinelawfirm.com

Roman Sarangoulis, Esq. Counsel for RJ River, LLC

Florida Bar No. 1011944

Email: roman.sarangoulis@jacksonlewis.com

Counsel for 450 North River Drive, LLC, 

d/b/a Kiki on the River and Roman Jones

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document is being served on 

May 1, 2023, on all counsel of record on the Service List below via transmission of Notices of 

Electronic Filing generated by CM/ECF

s/ Roman Sarangoulis

Roman Sarangoulis, Esq.

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SERVICE LIST

Brian Pollock, Esq.

Florida Bar No. 174742

Email: brian@fairlawattorney.com

FAIRLAW FIRM

135 San Lorenzo Ave.

Coral Gables, Florida 33146

Telephone: (305) 230-4884

Attorneys for Plaintiff

Reynaldo Velazquez, Esq.

Florida Bar No.: 069779

Email: rey.velazquez@jacksonlewis.com

Roman Sarangoulis, Esq.

Florida Bar No. 1011944

Email: roman.sarangoulis@jacksonlewis.com

JACKSON LEWIS P.C.

One Biscayne Tower

2 South Biscayne Boulevard, Suite 3500

Miami, Florida 33131

Telephone: 305-577-7600

Facsimile: 305-373-4466

Counsel for 450 North River Drive, LLC, Kiki on 

the River and Roman Jones

Allan Reiss, Esq.

Florida Bar No. 858500

Email: Asr@Levinelawfirm.com

Levine & Partners, P.A.

3350 Mary Street

Miami, Florida 33133

Telephone: (305) 372-1352

Facsimile: (305) 372-1352

Attorneys for RJ River, LLC

4880-9883-9136, v. 1

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