Defendants motion to dismiss action for failure to appear at deposition

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Defendants motion to dismiss action for failure to appear at deposition

  1. 1. Case 1:11-cv-20120-PAS Document 78 Entered on FLSD Docket 12/06/2011 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 MOTION TO DISMISS ACTION FOR FAILURE TO APPEAR AT DEPOSITIONS 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 Motion to Dismiss Action 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, and state as follows: 1. Plaintiff, a former Federal Inmate, filed a lawsuit against the defendants which is a residential reentry center and its employees. The Defendants have filed a motion to dismiss the lawsuit which has been briefed and pending ruling. 2. As the motion is pending, pursuant to this Court’s scheduling order, Plaintiff, through notice dated August 24, 2011, was set for his deposition on October 10, 2011. (See Composite Exhibit 1 to this Motion)
  2. 2. Case 1:11-cv-20120-PAS Document 78 Entered on FLSD Docket 12/06/2011 Page 2 of 6 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON 3. The deposition was cancelled at the request of the Plaintiff. The Plaintiff claimed that he was not available on October 10, 2011, and stated he would be available for deposition after October 25, 2011. 4. As per the Plaintiff’s requested, the Plaintiff was reset for deposition on November 11, 2011, through a notice dated August 29, 2011. (See Composite Exhibit 1 to this Motion) 5. On November 9, 2011 via email, the Plaintiff claimed he had a medical issue that prevented him from appearing and promised to provide a medical note. The Plaintiff again requested that his deposition be reset for a later date. 6. Plaintiff never provided any proof of any medical condition that would prevent him from appearing at a deposition. Accordingly, the deposition was not cancelled. 7. The Plaintiff failed to appear for his deposition on November 9, 2011, and a certificate of non-appearance was issued. (See Composite Exhibit 1 to this Motion) 8. The Plaintiff was again reset for deposition on December 5, 2011, through a notice dated November 22, 2011. (See Composite Exhibit 1 to this Motion) 9. On Sunday December 4, 2011 at 10:24 pm, the day before his deposition, Plaintiff sent defendant’s counsel an email stating he would not be appearing for his deposition because the Plaintiff was allegedly sick. Further, the Plaintiff wanted to the Court to “answer” all pending motions prior to his deposition. 10. As the Plaintiff filed a motion for summary judgment, failed (again) to provide any proof that he was “sick” and with a trial date pending next year, defendants’ counsel informed the Plaintiff that the December 5, 2011, deposition would not be cancelled. 2
  3. 3. Case 1:11-cv-20120-PAS Document 78 Entered on FLSD Docket 12/06/2011 Page 3 of 6 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON 11. Despite the fact that the Plaintiff claims he has medical issues that prevent him from appearing for depositions, the Plaintiff was able to appear for mediation on November 1, 2011, just eleven days before the November 11, 2011 deposition setting. 12. 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. 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) 13. The Plaintiff failed to appear for his deposition on December 5, 2011, and a certificate of non-appearance was issued. (See Composite Exhibit 1 to this Motion) 14. 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)(Docket 77) and willingness to argue his motion on December 15, 2011. 15. 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: (d) Partys Failure to Attend Its Own Deposition, Serve Answers to Interrogatories, or Respond to a Request for Inspection. (1) In General. 3
  4. 4. Case 1:11-cv-20120-PAS Document 78 Entered on FLSD Docket 12/06/2011 Page 4 of 6 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON (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; or (ii) a party, after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answers, objections, or written response. (B) Certification. A motion for sanctions for failing to answer or respond must include a certification that the movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without court action. (2) Unacceptable Excuse for Failing to Act. A failure described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c). (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). 16. As is proven above, The Plaintiff’s failure to appear for depositions and comply with the Rules of Civil Procedure merit striking his pleadings and dismissing his complaint. 4
  5. 5. Case 1:11-cv-20120-PAS Document 78 Entered on FLSD Docket 12/06/2011 Page 5 of 6 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON WHEREFORE, Defendants respectfully request that Defendants’ Motion be granted. CERTIFICATION OF GOOD FAITH PURSUANT TO FRCP 37 Defense counsel certifies that movants have conferred with and attempted to confer with the Plaintiff, the party failing to act, in an effort to obtain the Plaintiff’s deposition without court action. This is demonstrated by the fact that the Plaintiff’s deposition was reset from October 10, 2011 at the Plaintiff’s request to November 11, 2011. The Plaintiff failed to appear for his deposition on November 11, 2011. The Plaintiff was provided with another opportunity to appear for his deposition. The deposition was again reset for December 5, 2011 after the Plaintiff failed to appear on November 11, 2011. Defendants’ counsel also emailed Plaintiff concerning the deposition and advised the Plaintiff that if he failed to appear for his deposition on December 5, 2011, that a Motion to Strike Plaintiff’s Pleadings would be filed. 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 78 Entered on FLSD Docket 12/06/2011 Page 6 of 6 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 6th 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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