13 Fla. L. Weekly Supp. 984a
Insurance — Personal injury protection — Contempt — Where it appears from plaintiff’s willful, wanton and contumacious disregard of discovery order and order to show cause, plaintiff’s failure to attend compulsory medical examination and deposition, and evidence suggesting that plaintiff has left his address and failed to renew his Florida driver’s license that plaintiff no longer desires to continue legal action, case is dismissed without prejudice
OLIN NEZIFORT, Plaintiff, vs. ALLSTATE INSURANCE COMPANY, Defendant. Circuit Court, 15th Judicial Circuit in and for Palm Beach County, Civil Division. Case No. 502004CA006806XXXXMB. April 6, 2006. Jeffrey A. Winikoff, Judge. Counsel: Olin Nezifort, pro se. Gregory P. Hengber, Hengber, Goldstein, & Ray, P.A., Fort Lauderdale, for Defendant.
ORDER ON THIS COURT’S ORDER FOR RULE TO SHOWCAUSE WHY PLAINTIFF SHOULD NOT BE HELD INCONTEMPT OF COURT FOR HIS WILLFUL, WANTON AND CONTUMACIOUS DISREGARD OF PRIOR COURT ORDER Sand for HIS FAILURE TO ATTEND HIS COMPULSORY MEDI-CAL EXAMINATION and for HIS FAILURE TO ATTEND HIS CONTINUATION DEPOSITION (Properly Noticed and Served)
THIS CAUSE having come on to be heard upon this Court’s Order for Rule to Show Cause, Why Plaintiff Should Not be Held in Contempt of Court for His Willful, Wanton and Contumacious Disregard of Prior Court Orders and for His Failure to Attend His Compulsory Medical Examination and for His Failure to Attend His Continuation Deposition, (properly noticed and served), and the Court being fully advised, in the premises thereof, it is thereupon,
ORDERED AND ADJUDGED as follows:
1. On July 8, 2004, Plaintiff commenced this action for damages resulting from an October 5, 2002 motor vehicle accident.
2. On or about May 26, 2005, this Court entered an Order granting Plaintiff’s counsel’s Motion to Withdraw as Counsel, and directed Plaintiff to either retain new counsel or notify the Clerk of the Court that he would represent himself.
3. Plaintiff has failed to either retain new counsel or inform the Clerk of the Court that he would represent himself. Thus, Plaintiff is proceeding pro se.
4. On April 4, 2005, Defendant filed a Motion to Compel Better Answers to Defendant’s Interrogatories and Supplemental Responses to Request for Production and for Sanctions. On April 7, 2005, this Court granted Defendant’s Motion to Compel and directed Plaintiff to provide Defendant with better answers to Defendant’s Interrogatories and Supplemental Responses to Request for Production within fourteen (14) days. However, Plaintiff failed to provide the discovery as directed in this Court’s April 7, 2005 order.
5. On June 30, 2005, Defendant filed a Second Motion to Compel Better Answers to Defendant’s Interrogatories and Supplemental Responses to Request for Production and for Sanctions. Plaintiff failed to respond to this Second Motion to Compel.
6. On June 30, 2005, Defendant filed its Motion to Compel Plaintiff’s Appearance at a Continuation of his Deposition and for Sanctions. Plaintiff failed to respond to this Motion to Compel.
7. On June 30, 2005, Defendant filed its Motion to Compel Plaintiff to Submit to an Independent Medical Examination and for Sanctions. Plaintiff failed to respond to this Motion to Compel.
8. On February 22, 2006, a hearing was held on Defendant’s Second Motion to Compel Better Answers to Defendant’s Interrogatories and Supplemental Responses to Request for Production and for Sanctions; Defendant’s Motion to Compel Plaintiff’s Appearance to a Continuation of his Deposition and Motion for Sanctions; Defendant’s Motion to Compel Plaintiff to Submit to an Independent Medical Exam and Motion for Sanctions; and for Defendant’s Motion to Address Collateral Source Setoff Post Verdict. Plaintiff failed to appear at this hearing.
9. At this February 22, 2006 hearing, thisCourt issued an Order for Rule to Show Cause, ordering Plaintiff to appear on March 26, 2006 to show cause why he should not be held incontempt of Court for his willful, wanton and contumacious disregard of prior Court Orders and for his failure to attend his Compulsory Medical Examination and for his failure to attend his Continuation Deposition (properly noticed and served).
10. In its Order for Rule to Show Cause, this Court stated that if Plaintiff, OLIN NEZIFORT, failed to appear at this Rule to Show Cause hearing, thisCourt would sanction Plaintiff and such sanction could include, but not be limited to, monetary sanctions and dismissal of this lawsuit.
11. On March 23, 2006, Defendant appeared at the hearing on the Order for Rule to Show Cause. Plaintiff failed to appear.
12. At said hearing, Defendant informed this Court that many attempts were made to serve Plaintiff with the Order for Rule to Show Cause which included: mailing a copy of the Order via Certified Mail; retaining the services of a process server to attempt to personally serve the Order for Rule Show Cause on Plaintiff at all known addresses of Plaintiff; and conducting a skip trace on Plaintiff.
13. Defendant further informed thiscourt that the process server failed to locate Plaintiff, and that Plaintiff either moved or was evicted from his known addresses. Further, a skip trace of Plaintiff revealed that Plaintiff failed to renew his Florida driver’s license in February, 2006. These efforts were documented in a Notice of Filing of the process server’s sworn affidavit and the results of a “skip trace” performed by Defendant.
14. Based on the foregoing, it appears that Plaintiff has no desire to continue this legal action and Plaintiff is in willful, wanton and contumacious disregard of this Court’s Order on Rule to Show Cause, as well as this Court’s Order of April 7, 2005.
Therefore, it is
ORDERED AND ADJUDGED that:
The above-referenced case is hereby DISMISSED WITHOUT PREJUDICE.
* * *
