Case 1:11-cv-20120-PAS Document 89 Entered on FLSD Docket 12/27/2011 Page 1 of 6                        IN THE UNITED STAT...
Case 1:11-cv-20120-PAS Document 89 Entered on FLSD Docket 12/27/2011 Page 2 of 6                                          ...
Case 1:11-cv-20120-PAS Document 89 Entered on FLSD Docket 12/27/2011 Page 3 of 6                                          ...
Case 1:11-cv-20120-PAS Document 89 Entered on FLSD Docket 12/27/2011 Page 4 of 6                                          ...
Case 1:11-cv-20120-PAS Document 89 Entered on FLSD Docket 12/27/2011 Page 5 of 6                                          ...
Case 1:11-cv-20120-PAS Document 89 Entered on FLSD Docket 12/27/2011 Page 6 of 6                                          ...
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Defendants reply brief in support of defendants’ motion to dismiss action for failure to appear at depositions

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Defendants reply brief in support of defendants’ motion to dismiss action for failure to appear at depositions

  1. 1. Case 1:11-cv-20120-PAS Document 89 Entered on FLSD Docket 12/27/2011 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA CASE NO.: 11-20120-CIV-SEITZ/SIMONTON TRAIAN BUJDUVEANU, Plaintiff, vs. DISMAS CHARITIES, INC., ANA GISPERT, DEREK THOMAS and ADAMS LESHOTA Defendants. _________________________________________/ DEFENDANTS REPLY BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS ACTION FOR FAILURE TO APPEAR AT DEPOSITIONS Defendants Dismas Charities, Inc., Ana Gispert, Derek Thomas and Lashanda Adams, (collectively “Defendants”) by and through their undersigned counsel, file their Reply Brief in Support of their Motion to Dismiss pursuant to Federal Rule of Civil Procedure 37(d) and 37(b)(2)(v) due to Plaintiff’s refusal to attend his own deposition on two separate occasions. In his response, Plaintiff offers no excuse for ignoring his deposition on two separate occasions and instead argues that the Defendants are at fault for not seeking alternatives. His logic is that the Defendants should have accommodated what he asserts are dire medical conditions. The conditions, now at least disclosed by the response, suggest Plaintiff has scheduled himself for a hernia surgery in January 2012, and that he otherwise suffers from cirrhosis of the liver. There is no evidence presented to the court that these conditions interfered with his ability to attend the depositions. Noticeably, there is no medical statement from any 862733:1:LOUISVILLE
  2. 2. Case 1:11-cv-20120-PAS Document 89 Entered on FLSD Docket 12/27/2011 Page 2 of 6 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON healthcare provider stating that Plaintiff is unable to be deposed. Plaintiff’s suggestions or alternatives to an in-person deposition should, therefore, be disregarded. While the depositions do not affect the pending motion to dismiss or motion for summary judgment, the refusal of Plaintiff to be deposed is symptomatic of how Plaintiff’s views this lawsuit as only empowering him with rights. The Plaintiff was set for deposition on three occasions, October 10, 2011, November 11, 2011 and December 5, 2011. The Plaintiff failed to appear for his depositions on November 11, 2011 and December 5, 2011 without cause or justified reason. The October 10, 2011 deposition was reset until November 11, 2011 at the request of the Plaintiff. Plaintiff concedes that he failed to appear for his depositions. (Docket 86, paragraph 2) Plaintiff contends that he could not appear for a deposition because of medical reasons. Despite the misrepresentations in the Plaintiff’s Response Brief (Docket 86, p. 5), Defense counsel requested medical proof (i.e. a letter from a doctor) explaining why the Plaintiff could not appear for his deposition on November 9, 2011. (Exhibit 1 to this Reply Brief) Plaintiff never provided any proof of any medical condition that would prevent him from appearing at a deposition on November 11, 2011 or December 5, 2011. To date, the Plaintiff has not provided any medical proof or a letter from a doctor explaining why he could not appear for a deposition. Plaintiff’s response brief is devoid of such a letter or any medical proof as to why the Plaintiff was unable to appear for his deposition. The exhibits to the Response Brief reference a hernia, hepatitis C and cirrhosis. However, the Plaintiff’s “medical conditions” (hernia, hepatitis C and cirrhosis) did not prevent the Plaintiff from appearing for mediation on November 1, 2011, just eleven days before 2
  3. 3. Case 1:11-cv-20120-PAS Document 89 Entered on FLSD Docket 12/27/2011 Page 3 of 6 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON the November 11, 2011 deposition setting. The Plaintiff was also well enough to prepare and file a Motion for Summary Judgment, Notice of Declaration, Statement of Facts (Docket 72-75) and Notice of Hearing for Summary Judgment for December 15, 2011, ten days after his deposition. Since the time of his December 5, 2011 non appearance, the Plaintiff has been well enough to file two amended Statements of Undisputed Facts in support of his Motion for Summary Judgment, pursuant to Court Orders striking his prior filed Statements of Undisputed Facts. (Docket 77 and 85). Even though the December 15, 2011, hearing notice (unilaterally set by the Plaintiff himself) was stricken by the Court, the Plaintiff, by his own hearing notice, would have been well enough to argue a motion for summary judgment on December 15, 2011. (Docket 71) The Plaintiff is clearly able to appear for deposition as is evidenced by his attendance at mediation on November 1, 2011, preparation of filing of a motion for summary judgment (Docket 72), filing of a revised statement of facts on December 2, 2011 (three days before his deposition) and again on December 20, 2011(Docket 77 and 85) and willingness to argue his motion on December 15, 2011. Most telling is a December 4, 2011 email to defense counsel in which the Plaintiff states “I believe the logic (sic) thing here will be to schedule the deposition after the Court will answer all pending motions . . .” (Docket 86, p. 14 and Exhibit 1 to this Brief), which lacks any notion that a medical condition bars this from occurring. Since Plaintiff’s failure to appear for his deposition was both willful and in bad faith, his pleadings must be stricken. Rule 37(d) deals with sanctions used when a party fails to cooperate in discovery and “allows the court to strike out pleadings and render default judgment against the disobedient party.” Buchanan v. Bowman, 820 F.2d 359, 361 (11th Cir.1987). Specifically, the rule provides, in relevant part: 3
  4. 4. Case 1:11-cv-20120-PAS Document 89 Entered on FLSD Docket 12/27/2011 Page 4 of 6 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON (d) Partys Failure to Attend Its Own Deposition, Serve Answers to Interrogatories, or Respond to a Request for Inspection. (1) In General. (A) Motion; Grounds for Sanctions. The court where the action is pending may, on motion, order sanctions if: (i) a party or a partys officer, director, or managing agent--or a person designated under Rule 30(b)(6) or 31(a)(4)--fails, after being served with proper notice, to appear for that persons deposition ********* (3) Types of Sanctions. Sanctions may include any of the orders listed in Rule 37(b)(2)(A)(i)-(vi). Instead of or in addition to these sanctions, the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorneys fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust. The referenced subdivision further provides that, where appropriate, a court is authorized to strike pleadings, stay proceedings, dismiss the action or any part thereof, or render a judgment by default against a disobedient party. See Fed.R.Civ.P. 37(b)(2)(A)(iii)-(vi). Rule 37(b)(2)(A) includes the following sanction against the non-complying party: (2) Sanctions in the District Where the Action Is Pending. (A) For Not Obeying a Discovery Order. If a party or a partys officer, director, or managing agent--or a witness designated under Rule 30(b)(6) or 31(a)(4)--fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following: (i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; 4
  5. 5. Case 1:11-cv-20120-PAS Document 89 Entered on FLSD Docket 12/27/2011 Page 5 of 6 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON (v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment against the disobedient party; or (vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination. As is shown above, Plaintiff’s failure to appear for depositions and comply with this Court’s scheduling order merits dismissal of his complaint. Plaintiff’s argument in response should not change this conclusion. Plaintiff contends that pursuant to Rule 30 of the Federal Rules of Civil Procedure that accommodations should have been made because he could not appear because he could not physically attend the depositions. The burden on requesting accommodations, assuming solely for arguments sake that they were needed (which is denied), was upon the Plaintiff, not the Defendants. At no time did the Plaintiff request any accommodations or file a motion for protective order. The Plaintiff simply claimed that he had medical issues that prevented him from being able to appear at all, yet he supplied no such proof even upon request of defense counsel. Again, the Plaintiff’s claims that he could not appear are contradicted by his own actions, as is discussed above. WHEREFORE, Defendants respectfully request that Defendants’ Motion be granted. EISINGER, BROWN, LEWIS, FRANKEL, & CHAIET, P.A. Attorneys for Defendants 4000 Hollywood Boulevard Suite 265-South Hollywood, FL 33021 (954) 894-8000 (954) 894-8015 Fax BY: /S/ David S. Chaiet____________ DAVID S. CHAIET, ESQUIRE FBN: 963798 5
  6. 6. Case 1:11-cv-20120-PAS Document 89 Entered on FLSD Docket 12/27/2011 Page 6 of 6 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 27th day of December, 2011, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are authorized to receive electronically Notices of Electronic Filing. __/s/ David S. Chaiet_______________ DAVID S. CHAIET, ESQUIRE Florida Bar No. 963798 SERVICE LIST Traian Bujduveanu v. Dismas Charities, Inc., et al. Case No..: 11-20120-CIV-SEITZ/SIMONTON United States District Court, Southern District of Florida Traian Bujduveanu Pro Se Plaintiff 5601 W. Broward Blvd. Plantation, FL 33317 Tel: (954) 316-3828 Email: orionav@msn.com 6

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