Doc.89

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



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

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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:

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(d) Party's 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 party's 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 person's 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 attorney's 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 party's 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;

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(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

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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

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