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 MOTION TO STRIKE PLAINTIFF’S 

REPLY TO DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFF’S 

OBJECTION TO AND APPEAL OF THE MAGISTRATE JUDGE’S DISCOVERY 

ORDER DATED SEPTEMBER 6, 2023, OR IN THE ALTERNATIVE, 

MOTION FOR LEAVE TO FILE A SUR-REPLY 

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 Motion to Strike Plaintiff’s Reply to Defendants’ Response 

in Opposition to Plaintiff’s Objection to and Appeal of the Magistrate Judge’s Order dated 

September 6, 2023 (ECF No. 222), or in the alternative, Motion for Leave to File a Sur-Reply. 

Defendants state the following in support thereof: 

1. On September 6, 2023, Magistrate Judge Alicia M. Otazo-Reyes conducted a 

hearing on discovery issues raised by Defendants and Plaintiff, Octavio Collado (“Collado”). 

[ECF No. 204]. On the same day as the hearing, Magistrate Judge Otazo-Reyes entered her 

Case 1:22-cv-23074-BB Document 223 Entered on FLSD Docket 10/13/2023 Page 1 of 8
CASE NO.: 1:22-CV-23074-BLOOM/OTAZO-REYES 

2 

detailed written Order (“the Order”) explaining her rulings on each of the disputes raised by 

Defendants and Plaintiff. [ECF No. 203]. 

2. The Order granted, in part, Kiki’s motion to compel individual discovery. 

Specifically, the Order directed Plaintiff and the Opt-in Plaintiffs to provide individual answers to 

two substantive interrogatories. Additionally, the Order sustained Defendants’ objections 

pertaining to Plaintiff’s request for WhatsApp chats involving the personal cell phones of nonparty supervisors and/or managers. 

3. On February 20, 2023, Plaintiff filed his Objection to and Appeal of Order (the 

“Appeal”) pursuant to 28 U.S.C. § 636(b)(1)(A) and S.D. Fla. Local Magistrate Judge Rule 4. 

[ECF No. 213].

4. Defendants filed their Response in Opposition on October 4, 2023. [ECF No. 

2019]. Defendants provided the Court with legal authority permitting Judge Otazo-Reyes to make 

the rulings that she did, which establishes that the Order was not clearly erroneous or contrary to 

law. Id. 

5. Pursuant to S.D. Fla. L. Mag. R. 4(a)(1) and Fed. R. Civ. P. 72, Defendants’ 

Response must be the last filing relating to the Appeal because the forgoing rules only allow an 

objection and a response. Neither S.D. Fla. L. Mag. R. 4(a)(1) or Fed. R. Civ. P. 72 allow for a 

reply to be filed after the filing of a response. 

6. Despite the clear language in S.D. Fla. L. Mag. R. 4(a)(1) and Fed. R. Civ. P. 72, 

Plaintiff improperly filed a Reply to Defendants’ Response on October 11, 2023. [ECF No. 222]. 

Plaintiff’s filing of a Reply is in clear violation of the local and federal rules and is prejudicial to 

Defendants. As a result, Plaintiff’s Reply must be stricken. 

Case 1:22-cv-23074-BB Document 223 Entered on FLSD Docket 10/13/2023 Page 2 of 8
CASE NO.: 1:22-CV-23074-BLOOM/OTAZO-REYES 

3 

7. Alternatively, Defendants request leave to file a Sur-Reply to address issues that 

were raised for the first time in Plaintiff’s Reply. 

MEMORANDUM OF LAW 

A. Plaintiff’s Reply to Defendants’ Response in Opposition to Plaintiff’s 

Objection to and Appeal of the Magistrate Judge’s Order was Improperly 

Filed and Must be Stricken. 

Section 636(b)(1)(A) of the United States Code permits a district court judge to designate 

a magistrate judge to hear and determine any pretrial matters. See 28 U.S.C. § 636(b)(1)(A). 

Federal Rule of Civil Procedure 72 explains that when a magistrate judge rules on a non-dispositive 

motion, “a party may serve and file objection to the order within 14 days after being served with a 

copy” of the order. Fed. R. Civ. P. 72. Similarly, S.D. Fla. L. Mag. R. 4(a)(1) states a party may 

appeal a non-dispositive magistrate judge’s order within 14 days of the order being entered and 

provides “[a]ny party may respond to another party’s objections within fourteen (14) days after 

being served with a copy thereof[.]” Critically, neither S.D. Fla. L. Mag. R. 4(a)(1) or Fed. R. Civ. 

P. 72 permit the plaintiff to file a reply. See IQRIS Techs. LLC v. Point Blank Enters., No. 21-cv61976-BLOOM/Reinhart, 2023 U.S. Dist. LEXIS 2282, *fn. 1 (S.D. Fla. Jan. 5, 2023) (Bloom, J.) 

(“[n]either the Local Rules nor the Federal Rules of Civil Procedure permit the filing of a Reply 

when appealing a magistrate judge’s order on non-dispositive matters”).1 

Here, Plaintiff filed the Appeal pursuant to S.D. Fla. L. Mag. R. 4(a)(1). [ECF No. 203]. 

Defendants then filed a Response to the Appeal in accordance with S.D. Fla. L. Mag. R. 4(a)(1), 

which opposed the arguments raised by Plaintiff. [ECF No. 201]. Plaintiff then violated the 

federal and local rules and elected to file an unpermitted Reply to Defendants’ Response in 

1

 The Court specifically noted that a reply is not permitted when appealing a magistrate judge’s 

order on non-dispositive matters but in that instance the court reviewed the reply where a motion 

to strike was not filed. 

Case 1:22-cv-23074-BB Document 223 Entered on FLSD Docket 10/13/2023 Page 3 of 8
CASE NO.: 1:22-CV-23074-BLOOM/OTAZO-REYES 

4 

Opposition to Plaintiff’s Objection to and Appeal of the Magistrate Judge’s Order. [ECF No. 222]. 

Plaintiff’s violation of the federal and local rules permitted him to make arguments that were not 

initially raised in the Appeal and misrepresents the Order and events during the hearing. As these 

arguments were (1) raised through an improper filing and (2) outside the scope of the Appeal, 

Plaintiff’s Reply should be stricken and should not be considered by this Court. As discussed in 

more detail below, if the Reply is not stricken Defendants will be prejudiced. 

B. Defendants Should be Permitted to File a Sur-Reply if Plaintiff’s Reply is Not 

Stricken. 

If Plaintiff’s Reply is not stricken, Defendants should be permitted to file a sur-reply to 

address new arguments raised and misrepresentations made by Plaintiff in the Reply. Even in 

instances where a reply is permitted, courts recognize the inherent unfairness and prejudice to a 

non-moving party who has no opportunity to respond to arguments raised for the first time in a 

reply. See, e.g., Reliance Ins. Co. of Ill. v. Richfield Hosp. Servs., 92 F. Supp. 2d 1329, 1332 (N.D. 

Ga. 2000) (courts “should not consider arguments raised for the first time in a reply brief.”) 

(emphasis added); see also S.D. Fla. L. R. 7.1(c) (reply memorandum “shall be strictly limited to 

rebuttal of matters raised in the memorandum in opposition”). 

As reflected by the above legal authority addressing replies when they are permitted, 

courts allow the filing of a sur-reply when a party raises new issues in the reply. See Stone v. 

Dewey, No. 1:10-cv-00159-MP-GRJ, 2011 U.S. Dist. LEXIS 76249, at *14 (N.D. Fla. July 14, 

2011) (citing First Specialty Ins. Co. v. 633 Partners, Ltd., 300 Fed. App’x 777, 788 (11th Cir. 

2008) (“The Eleventh Circuit recognizes the appropriateness of sur-replies where new theories or 

arguments are presented in a reply memorandum”); Hammet v. Am. Bankers Ins. Co., 203 F.R.D. 

690, 695 n.1 (S.D. Fla. 2001) (“Because Plaintiff presented new arguments . . . in her Reply the 

Court will grant Defendant’s Motion for Leave to File a Sur-Reply . . ..”). 

Case 1:22-cv-23074-BB Document 223 Entered on FLSD Docket 10/13/2023 Page 4 of 8
CASE NO.: 1:22-CV-23074-BLOOM/OTAZO-REYES 

5 

Here, Plaintiff was not entitled to file a Reply, which makes the new arguments and 

misrepresentations more prejudicial. If the Court considers Plaintiff’s improperly filed Reply, it 

should permit Defendants to file a sur-reply to address the new arguments and misrepresentations 

raised in the Reply. For example, Plaintiff argues for the first time or misrepresents the following 

in his Reply: 

1. Plaintiff misrepresents the applicable standard for the appeal of a non-dispositive 

magistrate order. All of Plaintiff’s arguments focus on what he wants the Court to 

do based on cases he cites. However, he fails to refute that Judge Otazo-Reyes’ 

rulings were not contrary to law or clearly erroneous, which is the correct standard, 

based on the cases Defendants cite that support her rulings. 

2. Plaintiff misrepresents that “the Magistrate Judge considered the Defendants’ 

argument about [sic] at oral argument, determined the argument was not persuasive, 

and did not find any objections were waived.” Plaintiff’s misrepresentation is 

clearly demonstrated by looking at the order, which does not address Defendants’ 

waiver argument and that is because no such ruling was made during the hearing. 

3. Plaintiff misrepresents that “Defendants offer no reason why individualized 

discovery is necessary in the case of bar or why representative discovery would not 

appropriately serve their needs.” [ECF No. 222]. Amazingly, a couple of 

paragraphs later Plaintiff confirms his prior misrepresentation by stating 

“Defendants’ arguments about the need for individualized discovery in this 

case . . ..” Id. Defendants did provide reasons why individualized discovery is 

necessary pertaining to damages, Magistrate Judge Otazo-Reyes found them 

sufficient, and Plaintiff did not establish in his appeal that her rulings are clearly 

erroneous or contrary to law. 

4. Plaintiff misrepresents that Defendants are trying to “coerce as many class members 

as possible to withdraw from the case” and that the discovery is intended to 

“bombard plaintiff’s counsel with thousands of hours of additional work.” Id. 

Plaintiff’s misrepresentations disregard the fact that they only must respond to two 

substantive interrogatories, and Kiki reduced the number of interrogatories it served 

Case 1:22-cv-23074-BB Document 223 Entered on FLSD Docket 10/13/2023 Page 5 of 8
CASE NO.: 1:22-CV-23074-BLOOM/OTAZO-REYES 

6 

from 25 to 5 substantive interrogatories. Id. Moreover, Plaintiff’s counsel’s alleged 

inability to handle the rigors of a collective action does not support a finding that 

Magistrate Judge Otazo-Reyes’ rulings are clearly erroneous or contrary to law. 

5. Plaintiff raises for the first time that Magistrate Judge Otazo-Reyes “fail[ed] to 

recognize the Defendants authority to compel its managerial and supervisory 

personnel to provide access to the WhatsApp chats that were used to coordinate 

official business of the Defendants as it related to scheduling, shifts, and meetings.” 

Id. Further, all but one of the cases cited in the Reply to support this claim were 

not cited in the appeal.2 Thus, Defendants have not had an opportunity to respond 

to this claim and the cases cited. 

6. Plaintiff raises for the first time that “Defendants provided no documentation or 

information [to] allow the Court to analyze the burden and/or cost of requiring its 

managerial and/or supervisory personnel to produce the WhatsApp Chats[.]” Id. 

Thus, Defendants have not had an opportunity to respond to this claim. 

7. Plaintiff raises for the first time that “Defendants did not respond by disclaiming 

that their managers and supervisors did not disseminate work-related information 

by WhatsApp[.]” Id. Thus, Defendants have not had an opportunity to respond to 

this claim. 

Therefore, Defendants should be permitted to file a sur-reply to fully brief these issues if 

Plaintiff’s Reply is not stricken.

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) striking Plaintiff’s Reply Supporting his Objections to and Appeal of Order [ECF No. 

222], or in the alternative, (2) permitting Defendants with leave to file a sur-reply, and (3) granting 

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

2

 The one case that was cited in the appeal, Bank of Mongolia v. M & P Glob. Fin. Services, Inc., 

258 F.R.D. 514, 519 (S.D. Fla. 2009), was cited for a different proposition. 

Case 1:22-cv-23074-BB Document 223 Entered on FLSD Docket 10/13/2023 Page 6 of 8
CASE NO.: 1:22-CV-23074-BLOOM/OTAZO-REYES 

7 

CERTIFICATION 

Counsel for the movant has conferred with all parties or non-parties who may be affected 

by the relief sought in this motion in a good faith effort to resolve the issues raised herein and was 

unable to resolve the issue. 

Dated: October 13, 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. 

Florida Bar No. 1011944 Counsel for RJ River, LLC

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 

October 13, 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. 

Case 1:22-cv-23074-BB Document 223 Entered on FLSD Docket 10/13/2023 Page 7 of 8
CASE NO.: 1:22-CV-23074-BLOOM/OTAZO-REYES 

8 

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 

Attorney 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 

Attorneys for RJ River, LLC

Case 1:22-cv-23074-BB Document 223 Entered on FLSD Docket 10/13/2023 Page 8 of 8