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  • 1. Case 1:11-cv-20120-PAS Document 59 Entered on FLSD Docket 09/28/2011 Page 1 of 10 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 DISMAS CHARTIES, INC., ANA GISPERT, DEREK THOMAS AND ADAMS LESHOTA’S BRIEF IN RESPONSE TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO SECOND REQUEST FOR PRODUCTION AND INTERROGATORIES Defendants Dismas Charities, Inc., Ana Gispert, Derek Thomas and Lashanda Adams, incorrectly identified as Adams Leshota (collectively “Defendants”) by and through their undersigned counsel, file their Brief in Response to Plaintiff Traian Bujduveanu’s (“Plaintiff”) Motion to Compel Responses to Second Request for Production and Interrogatories and state as follows: PROCEDURAL POSTURE AND STATEMENT OF THE CASE 1. Plaintiff, a former Federal Inmate, has filed a vague and confusing lawsuit against his Community Correction Center/Half Way House, Dismas, and three of its employees, Gispert, Thomas and Lashanda Adams. The Complaint contains 50 paragraphs of “factual allegations” filed by a laundry list of four alleged Federal Theories of Recovery and six alleged state law theories of recovery. However, the Plaintiff cannot maintain any State or Federal cause of action against any defendant. The Defendants have filed a motion to dismiss the lawsuit which has
  • 2. Case 1:11-cv-20120-PAS Document 59 Entered on FLSD Docket 09/28/2011 Page 2 of 10 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON been briefed and pending ruling since June 5, 2011. Defendants believe that the disposition of that Motion will bring and end to this lawsuit and the need for discovery and ruling on the Plaintiffs’ discovery motions. 2. Plaintiff pled guilty to charges of conspiring to illegally export military and dual use aircraft parts to Iran. Plaintiff was sentenced to 35 months for his crimes. Towards the end of his sentence, Plaintiff was transferred to Dismas, a “half way house,” on July 28, 2010 until his release date of January 31, 2011. (Complaint, p. 14) Dismas is a private non-profit corporation known as a CCC Contractor. (Complaint, p. 36) 3. Due to health issues, the Plaintiff was staying at his home subject to terms and conditions of his halfway house release, which he agreed to in writing. His consent form is attached to Defendants’ Responses to Plaintiff’s Second Request for Production allegedly filed by the Plaintiff in support of his Motion. These conditions included the Plaintiff’s agreement not to drive with the permission or consent of Dismas and not to possess contraband, including cell phones. 4. When the Plaintiff drove himself to Dismas, without the permission of Dismas and was found to be in possession of a cell phone in the car, Dismas was required to report Plaintiff’s breaches of his release to the Federal Bureau of Prisons. The Federal Bureau of Prisons then had the United States Marshall’s Service return the Plaintiff to the Federal Detention Center-Miami to serve out the last 68 days of his federal prison sentence. 5. Since the Federal Bureau of Prisons, not the Defendants, returned the Plaintiff to prison to serve out the remainder of his sentence, then the Defendants cannot be liable for any alleged damages sustained by the Plaintiff. As halfway house is a privilege, not a right, the 2
  • 3. Case 1:11-cv-20120-PAS Document 59 Entered on FLSD Docket 09/28/2011 Page 3 of 10 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON Plaintiff, who was still serving his felony sentence, cannot maintain a cause of action for loss of his halfway house privileges. Further, since the Plaintiff was a felon serving out a prison sentence at the time all of the alleged events occurred he cannot be falsely imprisoned as one cannot falsely imprison an inmate still serving his sentence, whether it be in prison or a halfway house. Lastly, since the Defendants are not the Federal Government or its agency, they cannot be sued for any constitutional violations. 6. The Plaintiff has harassed and continues to harass Dismas and its employees Gispert, Thomas and Adams by filing a lawsuit in Federal Court seeking over $3,000,000 in damages. The Plaintiff has continued his harassment by sending each Defendant two sets of interrogatories and two sets of request for production. The harassing nature of the discovery is reflected in the discovery itself, which seeks personal information from each Defendant (home address and social security number and donations to charity) when they are being sued in their professional capacity and irrelevant financial, legal and corporate information about Dismas and all of its employees nationwide. 7. While the Plaintiff’s Complaint is vague, confusing and fails to set forth any proper causes of action, the Plaintiff is claiming damages from Dismas, Adams, Thomas and Gispert for some event that allegedly occurred at Dismas. In other words, the sole basis of the lawsuit is issues between the Plaintiffs and Defendants only. 8. However, the Plaintiff, based upon his discovery and comments via email to defense counsel, appears to have some vendetta in which he seeks to expose alleged corruption at Dismas nationwide and corruption with the halfway house system in general. As these matters are not at issue, any discovery towards these issues must not be permitted as it is not relevant or 3
  • 4. Case 1:11-cv-20120-PAS Document 59 Entered on FLSD Docket 09/28/2011 Page 4 of 10 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON reasonably calculated to lead to discovery of admissible evidence. Any issues regarding the halfway house system would be the responsibility of the appropriate Federal agency, not the Plaintiff. 9. For the reasons set forth below, the Plaintiff’s Motions to Compel must be denied. ARGUMENT AND CITIATION TO AUTHORITY 1. The Defendants have properly responded to the Requests for Production. Plaintiff has filed a Motion to Compel Responses to Plaintiff’s Second Requests for Production against the Defendants. (Docket number 58). As the Defendants have agreed to produce the requested documents at their counsel’s office as they are kept in the course of business, the Defendants have complied with Federal Rule of Civil Procedure 34 (2)(E). The rule states: (E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information: (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; The document inspection cannot occur at Dismas’ offices because as a condition of the Plaintiff’s supervised release from prison, he is not allowed contact or to be around convicted felons. As convicted felons live at Dismas, the Plaintiff should not return to Dismas. Further, since Dismas is represented by counsel and does not want direct contact with the Plaintiff on their premises, the inspection of documents should occur at Dismas’ counsel’s office, which is actually closer to the Plaintiff’s home than Dismas’ offices. However, Defendants have produced the documents requested upon receipt of copying charges paid by the Plaintiff. 4
  • 5. Case 1:11-cv-20120-PAS Document 59 Entered on FLSD Docket 09/28/2011 Page 5 of 10 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON Plaintiff claims Dismas has not produced videotape surveillance from the dates relevant to this lawsuit. As Defendants stated in their response, the video, whether it be digital or on tape, does not exist. Defendants cannot be compelled to produce something that does not exist. While Plaintiff claims the Federal Bureau of Prisons requires records to be maintained for thirty years, he offers not legal or regulatory support for this contention. Even assuming it is true, Dismas is not the Federal Bureau of Prisons. Lastly, the Plaintiff’s Second Request for Production has twelve requests. Of the twelve, Defendant’s objected to three (Requests 8, 9 and 10). Requests 8 and 9 requested documents supporting defendants’ defenses to the lawsuit. As Defendants have not answered because they filed a Motion to Dismas, the response is none. Despite the objections, Defendants responded and referred the Plaintiff to the documents produced. Request 10 confusing requests documents relied upon in responding the request for production. Despite the confusing nature of the request seeking documents relied upon in responding to a request for production (the response would be the documents themselves), Dismas again responded and referred the Plaintiff to documents it agreed to produce in response to Plaintiff’s First Request for Production. Defendants have produced the documents. Dismas produced the documents requested by the Plaintiff, as is evidenced by the documents attached to the response to the Second Request for Production. Dismas has also provided the Plaintiff with the documents responsive to Plaintiff’s First Requests for Production once it received payment for copying costs by the Plaintiff. Accordingly, the Motion to Compel is moot as Defendants have complied with the Requests and produced all responsive documents. 5
  • 6. Case 1:11-cv-20120-PAS Document 59 Entered on FLSD Docket 09/28/2011 Page 6 of 10 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON 2. The Defendants have properly responded to Plaintiff’s First and Second Interrogatories. The Defendants have properly responded and objected to Plaintiff’s First Set of Interrogatories. With regards to the individual Defendants Thomas, Gispert and Adams, objections were made to three questions. While objections were posed, the Defendants still responded to the questions. (See responses to questions 1, 2 and 3) However, the individual Defendants, who work in the correctional field with convicted felons and are being sued in their professional capacity, should not be required to provide their home address, date of birth, social security number and marital status. This information is not only confidential for security purposes but not relevant. Dismas also properly responded and objected to Plaintiff’s First Set of Interrogatories. Dismas objected to seven of the twelve questions. However, Dismas followed its objections with responses to five of the questions, specifically questions 2, 5, 10 and 12. As Dismas has responded to the questions after preserving its rights to object, there is nothing to compel. In response to question one, Dismas has objected to providing the names and addresses of its officer, directors, partners and persons with a financial interest. This information is not relevant as Dismas, a corporation, can only be sued in its individual capacity. Dismas should not be compelled to provide home addresses for its officers and directors so that they could then be subjected to harassment by the Plaintiff. The request for parties with any interest in Dismas is not only vague, but appears to be intended to find inadmissible and irrelevant financial information about Dismas. The Plaintiff was directed to Dismas’ website so that he could find any additional 6
  • 7. Case 1:11-cv-20120-PAS Document 59 Entered on FLSD Docket 09/28/2011 Page 7 of 10 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON information about Dismas, which is a Kentucky corporation that runs halfway houses throughout the country. Question 9 seeks salary information about Dismas’ CEO and Executive Vice President. This information is clearly not relevant or calculated to lead to discovery of admissible evidence. This is yet another example of Plaintiff using the judicial process not to find out information that may be relevant to his case, but to harass Dismas and find out irrelevant financial information. The Plaintiff is clearly not entitled to financial information, Question 10 again demonstrates Plaintiff’s abuse of discovery to find out irrelevant and personal information from Dismas. This question seeks information about political contributions made by Dismas and all of its employees. Whether Dismas or any of its employees donated to a political party, re-election campaign or political action committee or participated in a political event is clearly not relevant to any issue in the Plaintiff’s vague and confusing lawsuit. For example, if a Dismas employee in Kentucky contributed to the Democratic or Republican Party and attended a political event for someone running for the local assembly, how could that possibly be relevant to any issue in this lawsuit involving a Florida Plaintiff?? Again, the Plaintiff is going on a fishing expedition, through discovery, to harass Dismas so that he could improperly find out information about Dismas, the corporate structure, finances and personal information about its employees. The Defendants have clearly properly responded to Plaintiff’s Second Set of Interrogatories. Each Defendant was asked the same three questions. Each Defendant answered the questions without objection. Accordingly, there is nothing to compel. 7
  • 8. Case 1:11-cv-20120-PAS Document 59 Entered on FLSD Docket 09/28/2011 Page 8 of 10 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON Accordingly, Plaintiff’s Motion must be denied as Defendants have timely and properly responded to all discovery requests. For the reasons discussed above, the Plaintiff should be sanctioned for filing a Motion and forcing Dismas to have to respond to the Motion. WHEREFORE, Defendants Dismas Charities, Inc., Ana Gispert, Derek Thomas and Lashanda Adams, incorrectly identified as Adams Leshota respectfully request that Plaintiff’s Motion be denied and that the Court grant any further relief it deems appropriate, including sanctions against the Plaintiff. 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 8
  • 9. Case 1:11-cv-20120-PAS Document 59 Entered on FLSD Docket 09/28/2011 Page 9 of 10 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 28th day of September, 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 9
  • 10. Case 1:11-cv-20120-PAS Document 59 Entered on FLSD Docket 09/28/2011 Page 10 of 10 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON 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 10