Woliner v. Summers et al, No. 9:2018cv80305 - Document 108 (S.D. Fla. 2018)
Court Description: ORDER granting in part 77 defendants Summers, St. Laurent, and Gee's Motion for Sanctions and 89 Motion to Compel the Completion of Plaintiff's Deposition and for Sanctions; denying 100 Plaintiff's Cross-Motion to Terminate or Limit scope of deposition. Signed by Magistrate Judge William Matthewman on 11/13/2018. See attached document for full details. (kza)
Download PDF
<![CDATA[
Woliner v. Summers et al Doc. 108 U N ITED STA TES D ISTRICT C OU RT SO U THERN D ISTRICT OF FLOR ID A CA SE N O .I8-CV-8O3OS-D IM ITRO ULEA SN A TTH EW M A N KEN N ETH W O LW ER,M D , FILED by Plaintiff, .C. N2k 13 2218 M ARTHA SOFRON SK Y ,K RISTEN SUM M ER S,LO UISE W ILH ITE ST.LAU REN T, and LU CY GEE. s'rEvEs M.LARIMORE CLERK tls Dls'ccm s.D.o! rFkJi.-w.8B. D efendants. O R D ER G M N TIN G DE FEND A N TS SU M M ER S.ST .LAU R EN T.A N D G EE'S M O TION FO R SANCTIONS IDE 771AND M O TION TO COM PEL THE COM PLETIO N OF PLAINTIFF'S DEPO SITION AND FOR SANCTIONS IDE 891 TH IS CA U SE is before the Courtupon Defendants,Kristen Sum m ers,Louise W ilhite St.Laurent,and Lucy Gee's (tr efendants'') Motion for Sanctions (DE 77) and M otion to Compelthe Completion ofPlaintiff'sDeposition and for Sanctions(DE 891.Thismatterwas referred to the undersigned by United StatesDistrictJudge W illiam P.Dim itrouleas.SeeDE 78. PlaintiffKermeth W oliner,MD,(tsplaintiff')hasfiled aResponseto the Motion forSanctions IDE 851,andtotheM otiontoCompcltheCompletionofPlaintiff'sDepositionandforSanctions gDE 991.DefendantsfiledRepliestotheM otions.(DE 88;DE 1021.Themattersarenow ripefor review . 1. BA C K G R O U N D & PR O CED U R AL H ISTO R Y A . The Pendinz Law suit Pro se Plaintiff,a form erFlorida licensed doctor who had his m edicallicense revoked by the 1 Dockets.Justia.com Florida M edicalBoard,filed a lengthy Com plaint in the Circuit Courtof the Fifteenth Judicial Circuit in and for Palm B each County,Florida against D efendants M artha Sofronsky, K risten Sum mers,Louise W ilhite St.Laurent,and Lucy Gee.SeeDE 1-2,pg.13.DefendantsSllmm ers, St.Laurent,and Gee w ere em ployees ofthe Florida D epartm ent ofH ea1th,D ivision ofM edical Quality Assurance gDE 1-2,pgs.13-14,! 3).DefendantSofronsky isthe motherofa young woman ($(S.S.'')who wasapatientofPlaintiffgDE 1-2,pg.27,!25,261.DefendantSofronsky filed a com plaint against Plaintiff with the Florida Department of Health, asserting that Plaintiffstreatmentofherdaughtercaused herdeath (DE 1-2,pg.30,!341,resultingintheloss ofPlaintiff'smedicallicense.PlaintiffbringsCount1(lllegallnterception,Disclosure,and Use ofOralCommunications)againsta1lfourDefendants,Count11(Violation ofCivilRights)and CountlIl(Conspiracy to Violate CivilRights)againstDefendantsSummers,St.Laurent,and Gee,and CotmtIV (IntentionalInfliction ofEmotionalDistress)againstDefendantsSofronsky, Summ ers,and St.Laurent.Plaintiffalso allegesthatM rs.Sofronsky illegally recorded a session atPlaintiffsmedicaloftice,and Plaintiffand hisstaff,including Plaintiffswife,Gina Ricciardi, were allrecorded withouttheirknowledge orconsent.(DE 1-2,! 321.Plaintiffsttesthatthe D OH D efendants used this recording atPlaintiff's adm inistrative trial,in violation of Fla.Stat. jj934.03and934.06 (DE 1!'s58,611. B . The Saga ofPlaintifpsPending D eposition A s is their right,D efendants have repeatedly attem pted to take Plaintiff s deposition in this law suit.This efforthas been ongoing since July 20l8,and yet,m any m onths later,Plaintiff's deposition has still not been com pleted. A lthough parties in federal civil litigation routinely subm itto deposition w ithoutthe necessity ofcourtintervention,such has notbeen the case here. In fact,Plaintiffhasrepeatedly setup roadblocksin an effortto delay and stym ie hisdeposition, asdiscussed below . The Scheduled A ugust6.2018 D eposition ofPlaintiff First,on July 13, 2018,D efendants coordinated w ith Plaintiff to set his deposition for August6,2018.(DE 77,pg.1,!11.Thereafter,on July 16,2018,DefendantsissuedtheirNotice ofTakingDepositionofPlaintiff,which scheduledPlaintiffsdepositionforAugust6,2018.(DE 32,pg.1;DE 77,pg.1,! 11.However,on August1,2018,PlaintifffiledaçlverifiedM otion to Disqualify''counselforDefendants Summers,St.Laurent,and Gee (DE 311,along with his M otion forProtective O rderto Stay orReschedule Plaintiff'sD eposition untilthe CourtRules on Plaintiff'sM otion to Disqualify gDE 321.Based upon these tilingsofPlaintiff,the Courtwas forced to tem porarily stay the deposition of Plaintiff,pending an evidentiary hearing and nzling cm PlaintiffsM otion to Disqualify Counsel.(DE 351.Afterholding an evidentiary hearing on PlaintiffsM otiontoDisqualifyCounselgDE 311onAugust17,2018,theCourtfoundPlaintiffs M otion to D isqualify to be m eritless and entered an Order D enying Plaintiff's M otion to Disqualify Counsel(DE 541.See Wolinerv.Sofronsky,No.18-CV-80305,2018 W L 4039311 (S.D.Fla.Aug.23,2018).TheCourtalso entered an OrderDenying the Balance ofPlaintiff's M otion to Stay Deposition asM oot.(DE 56JThe Court'swritten OrderatDE 56 specifically requiredPlaintifftosubmittoadepositiononorbeforeM onday,September10,2018.(DE 561. 2. The Scheduled (and Court-ordered)August31s2018 Deposition ofPlaintiff Second,in com pliance w ith the Court's Order atD E 56 requiring Plaintiff to subm it to his deposition on or before Septem ber 10, 2018,D efendants rescheduled Plaintiffs deposition forAugust31,2018,attheoffice ofdefensecounselforthe DOH Defendants.gDE 59,pg.2). 3 However,when Plaintiffappeared forhisdeposition,hiswife,GinaRicciardi,am aterialwitness in thislawsuit,wasalso present.(DE 59,pg.31.Defendants'counselobjectedto Ms.Ricciardi being present during the deposition,because she w as listed in Plaintiff s interrogatories as a materialwitnessin thiscase.gDE 59-1,pg.3,lines12-151.PlaintiffinsistedthatM s.Ricciardi attend the deposition with Plaintiff.(DE 59,pg.3,! 7).Plaintiffrefused to submitto the depositionwithouthiswifepresent(DE 59-1,pg.3,lines15-161,and therebyforcedDefendants to file a M otion to Com pel and for Protective O rder so that D efendants could take Plaintiff s depositionwithouthiswife'sattendance.gDE 591.Accordingly,theAugust31,2018deposition ofPlaintiffdid notproceed and more discovery litigationwasbroughtto theCourt. In a 22-page Response with 74 pagesofattachments (DE 621,Plaintiffasserted,inter alia, that D efendants' actions have caused him Cd...severe em otional stress m anifested by physical sym ptom s:chronic fatigue,increased appetite and w eight gain,recurrent m outh sores, periodic palpitations, repeated vomiting (including bright red blood), frequent diarrhea (including dark stools),abdominalpain,insomnia,complete loss oflibido,adult-onsetacne, initability,anxiety,andrecuningbadthoughts''(DE 62,pg.3,! 31,and,therefore,heneedsto bring hiswife,M s.Ricciardi,ttwith him to stressfulevents''(DE 62,pg.3,! 4),such ashis deposition. Plaintiff argued that he is proceeding pro se and that, diw ithout M s. Ricciardi, Plaintiff would be left with absolutely no support in the troup de loup set by the D efendants (citation omittedl.''gDE 62,pg.18,! 361.TheCourtonce again expedited thematterand after considering the parties' positions, ordered Plaintiff to subm it to his deposition on or before Septem ber 30,20l8,and precluded his wife,M s.Ricciardi,a m aterialw itness in this litigation, from beingpresentduringthedeposition.(DE 641.Wolinerv.Sofronsky,No.18-CV-80305,2018 4 W L 4404066(S.D.Fla.Sept.13,2018). 3. TheCourt-orderedSeptember2k.2018DepositionofPlaintiff In a furtherongoing effortto avoid his deposition,Plaintiff filed an objection to the undersigned's Order requiring him to attend his deposition on or before Septem ber 30, 2018 withoutthe presence ofhiswife gDE 651togetherwith a M otion to Stay Discovery gDE 661. H owever,in a Septem ber 19,2018 Order,the H onorable U nited States D istrictJudge W illiam P. DimitrouleasdeniedPlaintiffsobjection andmotionto stayandspecifically ordered Plaintiffto appear for his deposition on Septem ber 24, 2018 at the offices of counsel for D efendants Stzmmers,St.Laurent,and Gee.(DE 691.However,Plaintifffailedto attendthatcourt-ordered Septem ber 24,2018 deposition.lnstead,on Septem ber 20,2018,in a further effortto delay his deposition,Plaintiff filed a Notice of Appealto the Eleventh Circuit gDE 70j from Judge D im itrouleas'O rder atD E 69.Plaintiffdid notfile a m otion to stay atthattim e.Instead,he did not attend the deposition scheduled for Septem ber 24, 2018. Then, on Septem ber 24, 2018, Plaintifffiled a M otion for Protective O rder,asking the Courtto stay his deposition pending his appealto the Eleventh Circuit.(DE 73,pg.1).On September 27,2018,Judge Dimitrouleas entered his O rder D enying Plaintiff's M otion for Protective Order,and required D efendants to provide the Courtw ith a date for Plaintiff's rescheduled deposition by October 1,2018 at 5:00 p.m.gDE 76,pg.11.lnthatOrder,Plaintiffwasspeciticallycautioned thatfailuretoappearathis deposition tswillresultin sanctions.''(DE 76,pg.11.Pursuantto thatOrder,Defendantsfiled a N otice of Com pliance advising the Court that Plaintifps deposition was now scheduled for October 19,2018,at 10:00 a.m .at the oftice of counselfor D efendants Sum m ers, St.Laurent, 5 and G ee. gDE 801.1 4. TheScheduled (and Court-ordered)October 19.2018Deposition ofPlaintiff Plaintiff did appear for his deposition on October 19,2018,and he did sitforthe deposition from approxim ately 10:00 a.m .untilapproxim ately 3:00 p.m .w ith necessary breaks and a lunch break.(DE 891.However,whenPlaintiffbecameirritated and angry atthequestionsputtohim by D efendants' counsel,Plaintiff abruptly tenninated the deposition and leftdefense counsel's office. (DE 89-1,pgs.12-131.Thus,Plaintiffsdepositionhasstillnotbeen completed.2 C. TheSeptem ber27.2018 M otion forSanctionsIDE 771.Response.and Replv M otion Defendantstiled theirM otion forSanctionson September27,2018 gDE 771,requesting that the Court im pose sanctions against Plaintiff pursuant to Federal Rule of CivilProcedure 37(b)and (d)forrepeatedly delaying hisdeposition and forfailingto follow theCourt'sorder requiringPlaintiffto submitto a deposition on September24,2018 (DE 641.Defendantsassert thatthey have been trying to take Plaintiff's deposition for tw o m onths;thatPlaintiff provided difficult dates for his deposition after norm al business hours and on w eekends; and that he refusedtositforhisdepositionwithouthiswifepresent.(DE 77,pg.41. Defendants assert that they have incurred significant costs due to Plaintiff's behavior, including the costs ofretaining a courtreporter,drafting the M otion at issue gDE 77),and respondingtoPlaintifpsuntimelyfiled secondM otionforProtectiveOrdergDE 731.Defendants alsoclaim thattheywillincurcostsinreschedulingPlaintiffsdeposition.gDE 77,pg.4J. 1On October11,2012,theUnited StatesCourtofAppealsforthe EleventhCircuitissued, sua sponte,an Order dismissing Plaintifpsappeal.(DE 831. 2 O n November 9, 2018,Judge D imitrouleas extended the discovery cut-off date from N ovem ber 14,20l8 to December14,2018.(DE 105q. 6 2. Response PlaintifffiledaResponsetoDefendants'M otionforSanctionsonOctober15,2018.(DE 851.Plaintiffstatesthathe received the Court's Orderovernzling hisobjections and denying Plaintiff'sM otionto Stay (DE 691onSeptember19,2018,alsoYom Kippur.(DE 85,pgs.3-41. Because Plaintiff celebrates Y om K ippur, he view ed the Court's Order the follow ing day, September20,2018,andtimely filed hisnoticeofappeal.(DE 70q.Plaintiffclaimsthatheboth telephoned and em ailed defense counselon Saturday,Septem ber 22,2018,and notitied them that a M otion to Stay Pending Appealhad been tiled w ith the Eleventh Circuit and thathe w ould not be appearing atthe deposition scheduled for M onday,September 24,2018.(DE 85,pg.4). Plaintiffalso asserts thathe did nottdsim ply failto show up at D efendants'offices,but instead filedaMotionforProtectiveOrder(DE 73qafterconferringbytelephonewithDefendants.''(DE 85,pg.41. Plaintiffarguesthatthe Courtspecifically declined imposing sanctionson Plaintiffin its OrderDenying M otion forProtectiveOrder(DE 761and stated,çsplaintiffiscautioned thatthe failuretoappearathisdeposition willresultin sanctions.''(DE 85,pg.4j.Plaintiffalso argues thatbecause the deposition w as scheduled atthe office of defense counsel,Defendants did not incurany travelcosts.Id Next,Plaintiffclaims thathis objections to the Court's Order Granting Defendant's Motion to Compeland forProtective Order gDE 591 were substantially justified and thathe believeshisappealto the Eleventh Circuitwillbemeritorious.3 (D E 85,pg 51.Plaintiffstates . that,as apro se plaintiff,he isnotthum bing his nose to the courtbutrather attem pting to com ply w ith the FederalRulesof CivilProcedure to the bestof his abilities.1d.Plaintiffalso assertsthat 3See f.n.l,supra. 7 specialcircumstancesinthiscasewouldmakeanawardofexpensesunjust.1d.Plaintiffpointsto Defendants'ksfalse sense ofurgency''in scheduling his deposition before the deposition ofM s. Ricciardi; the expedited brieting schedules set by the Court, which did not toll for Jew ish holidays' ,pro se litigants' access to CM /ECF;and fiD efendants'failure to m itigate dam ages.''1d. Plaintiff argues that he dutifully filed his appeal w ithin one day of reading the Court's Order overruling his objections and notifed the Defendants' counsel within two days that his deposition w as to be cancelled.Plaintiffm aintains thatD efendants could have avoided dam ages by cancelling the courtreporter on Friday before the M onday deposition.Plaintiff also requests thattheCourtaward him reasonableexpensesincurred in defending Defendants'M otion.(DE 85,pg.61. Defendants filed their Reply on October 19,2018.gDE 88).Defendants firstrefute Plaintiffs claim that the Court's Order Denying M otion for Protective Order (DE 761 Sûspecifically denied im posing sanctions on Plaintiff.''D efendants assertthatthatlanguage is not intheCourt'sOrder.(DE 88,pg.2).Defendantsalsopointoutthat,although Plaintiffdid email defense counsel to inform them he w as not attending the deposition scheduled for M onday, Septem ber 24,2018,Plaintiff w as required by Court Order to attend.1d. D efendants add that their counsel explained to Plaintiff in an em ail that his appeal did not autom atically stay the deposition and he was still required to attend under the Court's O rder at D E 69,and that they would notcancelthe deposition.Id D efendants state thatPlaintiff never responded to the em ail, butinstead called defense counselthirty m inutes before the deposition w as scheduled to begin to conferregarding his forthcom ing M otion forProtective Order.1d. 8 Defendants argue that they were in no position to disregard the Court's Order and unilaterally cancelthedeposition.1d.Defendantsalso rejectPlaintiffsargumentthatheisapro sePlaintiffand thereforehaslimitedknowledgeoftheFederalRulesandCM /ECF.gDE 88,pg. 3j.They argue thatPlaintifffailed to attend aproperly noticed deposition in directviolation of thisCourt'sOrder,andthereforesanctionsaresubstantiallyjustifiedinthiscase.1d. D . The O ctober 26. 2018 M otion to Com pel the C om pletion of Plaintifps D eposition IDE 891and forSanctions.Response.and Replv 1. M otion D efendants filed theirM otion to Com pelthe Com pletion of Plaintiff's D eposition and for Sanctions(DE 89)on October26,2018.IntheirM otion,DefendantsstatethatPlaintiffabruptly tenninated the deposition after becom ing initated and angry at the questions posed by defense counsel.(DE 89,pg.2).Defendants ask thatthe Courtorder thatPlaintiff's deposition be continued so thatD efendants m ay continue their exam ination of Plaintiff,and ask the Cotu'tto require Plaintiff to respond to questions regarding the circum stances in w hich Plaintiff believes therecording wasdestroyed.gDE 89,pg.21.Finally,Defendantsrequestsanctions,pursuantto FederalRule ofProcedure 30(d)(2),forPlaintiff'sunnecessary termination ofhis deposition. gDE 89,pg.3).Specitically,Defendantsseek costsin colmection with the second deposition of Plaintiff, including the court reporter's fee and the costs of a second deposition transcript; attom eys' fees in com zection w ith preparing and taking a second deposition of Plaintiff, ' and attomey'sfeesinpreparingtheinstantM otionandanyreplies.(DE 89,pg.5J. Response Plaintifffiled hisResponseon November1l,2018.(DE 991.ln hisResponse,Plaintiff 9 filed a Slcounter-M otion to Term inate or Lim it the Scope of Deposition under FederalRule of Civil Procedure 30(d)(3).'' Plaintiff claims that Defendants' cotmsel,Mr.James W illiams, continually Cdharassed Plaintiff by repeatedly dem anding confidential inform ation,'' and lsrepeatedly badgered Plaintiffby repeatedly dem anding answers to the sam e questions over and overagain.''gDE 99,pg.2).Plaintiffclaimsthatheprotested againstthetûbadgering,harassing, and oppressive nature ofM r.W illiam s'questions''and repeatedly stated thathe was idalready suffering from em otional stress because of Defendants' actions of destroying exculpatory evidence resulting in the revocation ofhis m edicallicense''and that stress w as tdexacerbated by hisisolation from hiswifedlzringthedeposition.''gDE 99,pg.2,! 8).Plaintiffalso statesthathe Ssterminated the deposition after lodging six additional objections that M r. W illiams was continuing to badgerthePlaintiff.''(DE 99,pg.3,! 91.Plaintiffarguesthatsanctionsare not appropriate here because he reasonably term inated the deposition due to defense counsel's harassing behavior.(DE 99,pg.51.Plaintiffalso asks the Courtto issue an Ordertûbarring Defendants from propounding further harassing, and irrelevant, questions designed only to com prom ise Plaintiff s privacy,risking further identity theft,and that in any future deposition, bothpartiesmustconductthemselveswithprofessionalism andcivility(citationomittedl.'v#. 3. Replv Defendants tiled their Reply on November 7, 2018. (DE 1021.Defendants rejected Plaintiff's claim s of stress and argued that the circum stances of the recording are relevant and specifically relatetohisclaimsofemotionaldistress.(DE 102,pg.21.Defendantsalso addthat theirtrialpreparation willbeprejudiced ifthey areunableto finish theirquestioningregarding the recording and Plaintiff's claim s for dam ages.Id.Further,D efendants assertthata review of 10 the transcript portions dem onstrate that defense counsel's questioning w as not badgering, harassing,or oppressive.1d.Instead,Defendants claim that the repeated questions w ere due to the factthatPlaintiff was evasive or failed to directly answerthe question posed.1d. Further, D efendants point out that Plaintiff s personal inform ation is required to conduct a thorough background check,and thatpersonalinfonnation wouldnotbeputontherecord.(DE 102,pg. They also maintain that their Ssprimary focus in the continuation of the deposition...is to question Plaintiff regarding the circum stances surrounding the alleged destnzction of the recording and hisclaim sfordam ages.''Id. II. DISCU SSIO N A ND A NA LY SIS A . LegalStandard UnderFederalRuleofCivilProcedure37andtheinherentjurisdictionoftheCourt,ifaparty fails to com ply with a discovery order, then the Court m ay im pose the follow ing sanctions: directing thatthe m attersem braced in the orderor other designated facts be taken as established for purposes ofthe action,as the prevailing party claim s;prohibiting the disobedientparty from supporting oropposing designated claim s or defenses,or from introducing designated m atters in evidence' ,striking pleadings in w hole or in part;staying further proceedings until the order is obeyed;dismissing theaction orproceeding in whole orin part;rendering adefaultjudgment against the disobedient party; or treating as contem pt of court the failure to obey any order except an order subm it to physical or m ental exam ination. Fed. R . Civ. P. 37(b)(2)(A)(i)-(vii).The Courtmust also order the disobedient party to pay the reasonable expenses,including attorney's fees,caused by the failure,unless the failure w as substantively justitiedorothercircllmstancesmakeanaward ofexpensesunjust.Fed.R.Civ.P.37(b)(2)(C). Additionally,pursuantto FederalRule ofCivilProcedure 37(a)(5)(A),ifa discovery m otion isgranted,the Courtmustûirequiretheparty ...whose conductnecessitated the motion, the party or attorney advising that conduct, or both to pay the m ovant's reasonable expenses incurredinmakingthemotion,includingattorney'sfees.'' Fed.R.Civ.P.37(a)(5)(A). Further,underFederalRuleofCivilProcedlzre37(d),acourtmayordersanctionsif (i) a party or a party's officer,director,ormanaging agent- or a person designated underRule30(b)(6)or31(a)(4)- fails,afterbeing served with propernotice,to appearforthatperson'sdeposition. Fed.R.Civ.P.37(d)(1)(A)(i). Thecourtmayimposeany ofthesame sanctionslisted inRule 37(b)(2)(A)(i)-(vi).Stlnsteadoforin additiontothesesanctions,thecourtmustrequiretheparty failing to act,the attorney advising thatparty,orboth to pay the reasonable expenses,including attorney's fees,caused by the failure,unless the failure was substantially justified or other circumstancesmakeanawardofexpensesunjust.''Fed.R.Civ.P.37(d)(3). A Court m ay also issue sanctions against a party, pursuant to Federal Rule of Civil Procedure30(d)(2),forunreasonably tenninating a fairdeposition.Rule 30(d)(2)states:Cçltlhe court m ay im pose an appropriate sanction- including the reasonable expenses and attorney's fees incurred by any pal-ty- on a person w ho im pedes,delays,or frustrated the fair exam ination ofthedeponent.''Fed.R.Civ.P.30(d)(2). B. Plaintiff W oliner has E ngaged in D ilatory C onduct, M isconduct, and Im proper ConductR egarding his D eposition Plaintiff W oliner has repeatedly and frivolously delayed his deposition. H e violated the Court's Order thathe attend his deposition on Septem ber 24,2018. lt is now m id-N ovem ber, 2018, and Plaintiff s deposition has yet to be com pleted,even though it was first noticed in 12 m id-luly,2018 for an August6,2018 deposition.Finally,after multiple futile attemptsto take Plaintiff's deposition,Plaintiffsatfor hisdeposition on Friday,O ctober 19,2018. The Courthas carefullyreviewedtheportionsofthetranscriptofthedepositionfiledbybothparties.(DE 89-1, DE 99,pgs.16-431.Atthatdeposition,Plaintiffdemonstrated egregiousbehaviorthatmeritsthe aw ard ofsanctions againstPlaintiffand in favorofDefendants. First, Plaintiff has repeatedly refused to provide his social security num ber and driver's license num ber w hen asked forthatinform ation by D efendants during his deposition and in his interrogatories. See DE 99, pgs. 20-23; D E 99, pgs. 11-13. The Court's review of pages 15 through 18 ofthe deposition transcript(DE 99,pgs.20-231show Plaintiffsrefusalto provide this relevantinform ation,even w hen defense counseladvised Plaintiff thathe could provide that basic inform ation off the record,so that it did notappear in the deposition transcript.Plaintiff claim s that defense counsel çscontinually harassed'' him by Sçrepeatedly dem anding this information.Plaintiff's objections are frivolous.The request of this personal information is routine in litigation,and Plaintiffw as inform ed that the inform ation w ould either rem ain offthe record or w ould be redacted.ln fact,a Florida Suprem e Court-approved standard interrogatory requesting aparty filllistallformernames,and when you wereknownbythosenames.Stateall addresses where you have lived for the past 10 years,the dates you lived at each address,your SocialSecurity num ber,and yourdate ofbirth,''is one ofthe tirstintenogatories on the Standard lnterrogatories Form ofthe Florida Rules of Court,V olum e 1.Plaintiff's stubborn and frivolous refusalto provide basic infonnation such ashissocialsecurity num berexhibitshow he isplaying gam es w ith opposing counsel and this Court. Plaintiff's conduct urm ecessarily frustrated the deposition and caused itto be lengthened and delayed. 13 N ext,Plaintiff s claim that he attended his deposition foroverfive hours on Friday,O d ober l9, 2018 is inacctlrate.The deposition began at 10:03 a.m .on Friday, O ctober 19, 2018, and ended abruptly w hen Plaintiff im properly term inated it at 3:05 p.m .A lthough that is indeed a fiveholzrtime period,Plaintiffw asprovided two breaks and a halfhourbreak forlunch. Thus, his deposition testim ony w as well under five hours and m uch of that tim e w as w asted by Plaintiffsrefusalto answerbasic and relevantquestionsin adirectand forthrightm anner. Plaintiffalso complainsthatdefense counselfirepeatedly badgered Plaintiff'by çsrepeatedly demanding answersto the same questions overand overagain.''gDE 99,pg.2,! 71.Upon careful review of the portions of the deposition transcript provided by both D efendants and Plaintiff, it is clear that this is sim ply not true. This is yet another false allegation m ade by Plaintiff.Plaintiff refused to provide clear and com plete answ ers as to the circum stances under which the recording w as allegedly destroyed,and acted in an evasive and unreasonable m anner. Finally,Plaintiffadmitsthatheterminatedthedeposition early,at3:05p.m.(DE 99,pg.3,! 9).TheterminationofthedepositionbyPlaintiffwasunjustitiedanddoneinbadfaith.Itisclear thatPlaintiff,from the outsetofthe deposition,attem pted to play gam es w ith defense counselin an effort to frustrate the prom pt com pletion of the deposition.4 vjus behavior w ill not be tolerated by the Court. Plaintiffhas continuously ignored CourtOrders,m ade frivolous argtlm ents,m ade inaccurate or false statem ents, and avoided attending his ow n deposition, even though he is the party prosecuting the claim s in this case. For whatever reasons, Plaintiff has m ade the discovery process in this case unnecessarily com plicated and difficult.The Courthas had to repeatedly rule 4 As a further exam ple of Plaintiff's frivolous behavior, Plai ntiffclaimed during hisOctober19,2012dejosition thathewas4ttrying to stay coherent''butwashaving ahard tim e doing so becausehewastûisolated from hlswife'' andtheallegedresultantstresswasmakingitdifficultforhim toççremembereverythingrightnow.''(DE 99,pg.3l). 14 on m otionscaused by Plaintiffsadvancem entoffrivolous,irrelevant,orunsupported positions. Plaintiffhas acted vexatiously and in bad faith by failing to answ er sim ple and routine questions, has acted in an unreasonable m anner,has im properly insisted on the presence of his w ife athis deposition,and has com plained frequently at sm allinconveniences.He has delayed subm itting for and com pleting his deposition for alm ost five m onths and has continuously delayed the discovery process.This is nothow the discovery process is supposed to proceed. C . The lm position ofSanctionsA gainstPlaintiffis A ppropriate Therefore,pursuanttoFederalRuleofCivilProcedure37(b)(2)(C),sincePlaintiffdid notf'ully comply with thisCourt'sdiscovery orders,and pttrsuantto Rule 37(d)(1)(A)(i),since Plaintiff failed to appear for his Court-ordered deposition on Septem ber 24, 2018, and due to his m isconduct during the discovery process, Plaintiff shall be required to pay D efendants' reasonable expenses in retaining a court reporter for the scheduled Septem ber 24, 2018 deposition,and shallbe required to pay D efendants'attorneys' fees forresearching and drafting theM otion forSanctions gDE 771,reviewing and researching Plaintiff'sResponse,researching and drafting D efendants'Reply,asw ellasthe tim e spentin review ing and com plying w ith Court Orders to take Plaintiffs deposition.Plaintiff s failure to attend the C ourt-ordered Septem ber 24,2018deposition wasnotsubstantiallyjustified and there areno circumstanceswhich make such an award unjust.SeeDudev.Cong.Plaza,LLC,No.17-80522-C1V,2018 W L 3432714 (S.D.Fla.July 16,2018)(Sanctionsofattorneys'feesand costsimposed againstPlaintifffor failuretoattenddeposition,failuretoattendmediation,andfailuretocomplywithCourtOrdersl; Dude v.Cong.Plaza,LLC,No.17-80522-C1V,2018 W L 3848431(S.D.Fla.Aug.l3,2018) (Awarding attorneys'feesand costsagainstPlaintiffin theamountof$39,622.00 in attorneys' 15 fees and $2,090.83 in costs due to Plaintiff s failure to attend deposition,failure to attend mediation,andfailuretocomplywithCourtOrders). Further, the Court w ill also require Plaintiff to pay D efendants' reasonable costs in colm ection w ith the second deposition, including the court reporter's fee at the continued deposition of Plaintiff and the cost of the second deposition transcript,and attorneys' fees in researching and drafting D efendants'M otion to Com pelthe Com pletion ofPlaintiff's D eposition and for Sanctions (DE 891,Plaintiff'sResponse and Cross-M otion,and itsReply gDE 102J, pursuanttoFederalRuleofCivilProcedure30(d)(2). Plaintiffs Cross-Motion forProtective OrderunderRule 30(d)(3)(A) is frivolousand withoutm erit.Itis DEN IED .ltis frankly hard to believe thatafter allofPlaintiff sim properand dilatory conduct,he deem ed itproperto seek sanctions againstD efendants.Plaintiff did notfile his frivolous Cross-M otion for Protective O rder until after Defendants tiled their M otion to Compelthe Completion of Plaintiff's Deposition and for Sanctions (DE 891.Additionally, Plaintiff scross-m otion w as im properly contained w ithin hisResponse. The Court also recom m ends that additional sanctions relating to Plaintiff s pending M otion to am end his com plaint be considered by the District Judge, as discussed below .The undersigned also reservesjurisdiction to impose or recommend additionalsanctions against Plaintiff,including dism issalofhis law suit,the striking ofhis pleadings,and any othersanctions authorized by law.See Fountain v.United States,725 F.App'x 891(11th Cir.2018)(Prose Plaintiffslawsuitdismissed forfailuretocomply with discovery);fambertv.WorldwideAf/c/g. Techs.Corp.,708F.App'x 559(11thCir.2017)(ProsePlaintiff'slawsuitdismissed assanction for Plaintifps refusal to com ply with discovery order and for attem pting to deceive m agistrate 16 judgel;Dudev.Cong.Plaza,LLC,No.17-80522-C1V,2018 W L 4203888 (S.D.Fla.July 20, 2018), report and recommendation adopted sub nom .D ude v. Cong. Plaza. LLC, N o. 17-CV-80522,2018W L 4203886(S.D.Fla.Aug.29,2018)(Plaintiffslawsuitdismisseddueto Plaintiff sfailure to attend hisdeposition,failure to attend m ediation,and failure to com ply w ith courtorders). 111. C O N CLU SIO N In lightofthe foregoing,itisO RD ERE D and A D JU DG E D thatD efendants'M otion for Sanctions (DE 771and M otion to Compelthe Completion ofPlaintiffs Deposition and for Sanctions(DE 89)areGRANTED IN PART asfollows: Defendants'M otion forSanctionsgDE 77)isGRANTED to theextentthatPlaintiff shallbe required to pay D efendants'reasonable expenses in retaining a courtreporter forthe scheduled Septem ber24,2018 deposition,and D efendants'attorneys'fees for researchinganddraftingtheM otion forSanctions(DE 771,reviewingandresearching Plaintiff s R esponse,researching and drafting D efendants'Reply,as w ellasthe tim e spent in review ing and com plying w ith CourtO rders to take Plaintiff s deposition, subsequentto the Septem ber24,2018 CourtOrder. 2. D efendants' M otion to Com pel the Com pletion of Plaintiff s D eposition and for Sanctions gDE 891 is GRANTED to the extentthatPlaintiffshallbe required to subm itto a furtherdeposition and shallberequired to pay D efendants'reasonable costs in connection w ith the second deposition,including the courtreporter'sfee and the cost of the second deposition transcript, and attorneys' fees in researching and drafting D efendants' M otion to Com pel the Com pletion of Plaintifps Deposition and for 17 Sanctions (DE 891,PlaintiffsResponse and Cross-Motion,and Defendants'Reply (DE 1021. ln orderto assist the Courtin determ ining a reasonable aw ard of attorneys'fees and costs pm suant to this Order,D efendants shall tsle an appropriate affidavit with the Court on or before D ecem ber 4, 2018,docum enting all attom eys' fees and costs incurred as a resultofretaining a courtreporterforthe scheduled Septem ber24,2018 deposition' ,researchinganddraftingtheM otion forSanctions(DE 771, .reviewingand researching Plaintiff s Response; researching and drafting D efendants' Reply; review ing and com plying w ith CourtOrders to take Plaintiff's deposition;reasonable costs in connection w ith the second deposition,including the courtreporter's fee and the cost of the second deposition transcript; and in researching and drafting Defendants' M otion to Com pel the Com pletion of Plaintiff s D eposition and for Sanctions (DE 891,PlaintiffsResponse and Cross-M otion,and Defendants'Reply gDE 1021.The affidavitshould includethe nmotmtofattorneys'feessought,holzrs expended,servicesrendered,and hourly rate sought. Plaintiff shall have untilon or before Decem ber 28,2018 to file a response or objections to the hourly rate claimed by defense counseland the numberofholzrs incurred by D efendants'counsel. 5. Thereafter,Defendants shallhave untilon orbefore January 5,2019 to tile any reply to Plaintiff's response.The Courtw ill then determ ine the am ountof attorneys' fees and costs,which shallbe paid by Plaintiffto Defendants. 6. The Courtalso reservesjurisdiction to impose or recommend f'urther sanctions, 18 includingthestriking ofPlaintifpspleadings,dismissalofhislawsuitwith prejudice, and all appropriate further sanctions. 5 Plaintiff is O R D ER ED to attend the continuation of his deposition on or before D ecem ber 14, 2018, at a date and tim e noticed by the D OH D efendants'counseland attheiroffice.The CourtordersPlaintiff to provide his social security num ber and driver's license num ber to Defendants' counsel in either a redacted or off-the-record procedure as reasonably offered by D efendants'counsel.Plaintiffis also O RD ER ED to fully and com pletely,and w ithout evasiveness,directly answ er defense counsel's relevant and proper questions.Since Plaintiffunnecessarily delayed the conclusion ofhis October 19,2018 deposition and wastedtheparties'time,Defendantsshallhavean additionalfourhours(exclusiveof breaks)totakePlaintiffsdeposition.Any furtherviolationsbyPlaintiffshallresultin m ore serioussanctions. DCNEANDORDEREDinChambersatWestPalmBeach,PalmBeachCotmty,Florida, this/J Jyofxovember,2018. W ILLIA M M A TT W AN U N ITED STA TES G G ISTR ATE JUD G E 5Currently underconsiderationby Judge Dim itrouleasisPlaintiff'sM otion forLeaveto Am end hisinitialVerified Complaint(DE 42),in which Plaintiffseeksto add approximately 18 moreDefendantsand approximately four additionalcausesofaction.In lightofPlaintiff'sm isconduct,as noted in thisOrderand priorOrdersofthe Court, theundersigned is,in conjunctionwiththisOrder,issuing aReportandRecommendationwhichrecommendsthat Judge DimitrouleasconsiderPlaintiff'sm isconductin determ ining whetherPlaintiffshould be perm itted to amend hisComplaint. 19
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
