21 Fla. L. Weekly Supp. 264a
Online Reference: FLWSUPP 2103TURNInsurance — Discovery — Depositions — Failure to attend — Sanctions — Where medical provider has shown willful disregard for multiple court orders compelling attendance at depositions, and provider’s counsel repeatedly informed court that he would not comply with orders, complaint is dismissed with prejudice and attorney’s fees are awarded
NICHOLAS BELLETO DC PA, Assignee of Angela Turner, Plaintiff, vs. MGA INSURANCE COMPANY INC, Defendant. County Court, 2nd Judicial Circuit in and for Leon County. Case No. 2012 SC 2608. October 29, 2013. Nina Ashenafi Richardson, Judge. Counsel: George A. David, Coral Gables, for Plaintiff. James S. Gentry, Orlando, for Defendant.
NOTE: REMANDED for reconsideration by new judge. 23 Fla. L. Weekly Supp. 297a; FLWSUPP 2304TURN
ORDER DISMISSING COMPLAINT WITH PREJUDICE
THIS CAUSE came before the Court on October 29, 2013 on Defendant’s Motion to Dismiss and/or For Contempt of Court and/or Sanctions Against the Plaintiff. The court moved into evidence Plaintiff’s Exhibit #1 and #2, and Defendant’s Exhibit #1 and #2. A court reporter was present transcribing the hearing. The Court, having heard testimony on the motion, and being fully advised of the facts of the case, finds as follows:
1. On March 19, 2013, the court allowed nearly three hours of argument regarding Plaintiff’s Motion for Protective Order regarding the unilaterally set depositions of Kiarah Turner, Angela Turner, Dorothy Wilson, Parlee Sharpe and George Wilson which were scheduled on March 20, 2013.
2. At the above noted hearing, counsel for the Plaintiff informed the Court that it would not be available for the depositions as scheduled, but when asked to present documents to the Court that would show that the Plaintiff would not be available counsel for the Plaintiff was unable to show conflict with the depositions of Kiarah Turner, Angela Turner and Dorothy Wilson.
3. As there was no conflict with the Plaintiff’s calendar, Plaintiff’s Motion for Protective Order as to Kiarah Turner, Angela Turner and Dorothy Wilson’s deposition was denied. The court advised counsel for Plaintiff he may appear by telephone for the depositions.
4. Counsel for the Defendant traveled from Orlando, Florida for the properly scheduled depositions. The Defendant secured service of process on the witnesses Turner, Turner and Wilson. Affidavits of service were filed by Defendant.
5. Displeased with the Court’s Order, Plaintiff’s counsel filed a Petition for Writ of Certiorari seeking interlocutory review of this Court’s order.
6. None of the above noted witnesses appeared at the depositions on March 20, 2013. Certificates of Non-Appearance were filed by the Defendant.
7. The Court finds that Counsel for Plaintiff’s Writ of Certiori was not filed meritoriously as it was withdrawn immediately after the March 20th, 2013 deposition date passed. Counsel for Plaintiff’s actions appear to have been to avoid submitting his witnesses to the March 20, 2013 deposition.
8. Orders to Show Cause following the witnesses failure to appear at the March 20, 2013 deposition were filed to determine why the witnesses failed to appear at a properly noticed and subpoena’d deposition (March 20, 2013).
9. An Order to Show Cause hearing was set on August 1, 2013 on each of the Defendant’s Motions to Show Cause.
10. The Defendant served a “Subpoena for Court Hearing” for each of the witnesses to appear at the August 1, 2013 hearing. Each witness was served with the subpoena allowing nearly a months notice prior to the scheduled hearing. Defendant filed the subpoenas and affidavits of service with the court.
11. Despite being served and having ample notice of the August 1, 2013 hearing, each witness failed to appear at the hearing.
12. The court reserved ruling on the Plaintiff’s witnesses failure to submit to the order of a subpoena to appear for the August 1, 2013 Order to Show Cause hearing. Counsel for Plaintiff represented to court that he would submit his witnesses to a re-set deposition to make up for their failure to appear at the March 20, 2013 deposition and the August 1, 2013 Order to Show Cause hearing. The Court took counsel for the Plaintiff at his word.
13. The parties coordinated mutually agreeable dates for a second round of depositions. October 4th, 2013 was represented to the court as an agreeable date for counsel for the Plaintiff and his witnesses. Defendant filed notices of deposition with the Court on August 6, 2013, nearly two months prior to the actual deposition date of October 4, 2013.
14. The Defendant again properly served subpoenas for deposition on the witnesses for the October 4, 2013 depositions. Defendant filed affidavits of service for each of the witnesses with the court.
15. On October 1, 2013, at 3:04 p.m., the Plaintiff filed a 47 page Emergency Motion for Protective Order seeking to cancel the Defendant’s October 4, 2013 depositions.
16. This was the second time that Plaintiff made a last minute filing to cancel the depositions involving the same witnesses. The court heard over eight (8) hours of argument on various motions filed by the Plaintiff. The court made itself available to the parties for hearings, and allowed the attorneys to appear by telephone for their convenience.
17. Nevertheless, over Defense counsel’s objection to the late filed motion, and despite the limited time of the court and Defense counsel to review the 47 page motion filed on October 1, 2013, the court special set a hearing on October 3, 2013, the day before the deposition. More than two hours of argument on the Plaintiff’s Emergency Motion for Protective Order was heard.
18. On October 3, 2013 this Court denied the Plaintiff’s Motion for Protective Order and ordered the depositions the following day to proceed.
19. At the hearing, counsel for the Plaintiff asked this Court to stay the proceedings, the court denied the Plaintiff’s request. Nor did Plaintiff file any motion to stay the October 4th depositions with a higher court, or file a Writ of Certiori. Counsel is familiar with such Writs, as he filed one previously in this case, but then withdrew it after the first deposition date passed.
20. Counsel for Plaintiff represented to the court at the recorded emergency hearing of October 3rd that he would file a Writ of Certiori in ten (10) days. Counsel went on to add that if he did not file a Writ by then, his actions would then be sanctionable. Counsel for Plaintiff did not file a Writ by October 14 2013.
21. Counsel for the Plaintiff instructed the Court that neither himself nor his clients would appear for the depositions the following day. Plaintiff’s counsel stated in open court, multiple times, that it did not intend to comply with the Court’s Orders and that he would substitute his own legal analysis for that of the Court.
22. Plaintiff’s counsel was undeterred by the Court’s warning that there be consequences for his willfulness in not complying including a possible dismissal of the case, and counsel being held in contempt if he failed to comply a second time with a lawful Order of the Court.
23. Instead of holding Plaintiff’s counsel in direct civil contempt, over the objection of Defense counsel, the court instructed him to think better of his decision and appear at the deposition the following day, along with his witnesses.
24. On October 4, 2013 the Defendant’s counsel appeared for the deposition as scheduled and as Ordered by this Court.
25. At the deposition, all the subpoena’d witnesses failed to appear and counsel for Defense expended over fours hours at the deposition site. Defendant filed certificates of non-appearance with the court.
26. Plaintiff’s counsel willfully and deliberately disregarded this Court’s Orders, and disregarded the time and effort required of Defense counsel to schedule such depositions for a second time.
27. Nor did counsel for Plaintiff attempt to comply with the discovery order or timely file a Writ of Certiori.
28. Florida Rule Civil Procedure 1.380(b)(1) states that failure to comply with a Court Order may be considered contempt.
29. Florida Rule of Civil Procedure 1.380 clearly authorizes sanctions for failure to comply with a court’s order, as the purpose of the rules of civil procedure is to promote the orderly movement of litigation. Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983)
30. In Mercer, the court required responses to discovery within twenty days and when the party so ordered failed to do so, the court entered a default and ordered the non-compliant party to pay costs and fees associated with the court’s order. Id.
31. The Supreme Court of Florida found that it was within the trial courts discretion to grant even severe sanctions so long as it was “reasonable” from the vantage of the trial court. Id. The court found an entry of default to be reasonable in Mercer as there was no showing that the defendant either attempted to comply with the discovery order or communicated any explanation or excuse to the court. Id.
32. Likewise in the case at bar, the Plaintiff has shown a willful disregard to comply with this Court’s Order by failing to have witnesses appear at deposition despite the extraordinary efforts of the Defendant and the multiple orders entered by this Court compelling the same.
33. The Plaintiff defiantly informed the court multiple times that he was not going to comply with the courts order. Counsel for Plaintiff advised the court.
34. A deliberate and contumacious disregard of the court’s authority will justify application of this severest of sanctions, as will bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness. Id. citing Swindle v. Reid, 242 So.2d 751 (Fla. 4th DCA 1970), and Herold v. Computer Components International, Inc., 252 So.2d 576 (Fla. 4th DCA 1971).
35. The court grants Defendant’s motion on its finding that counsel for Plaintiff conducted himself in a willful, deliberate and contumacious disregard of discovery orders issued by this court on multiple occasions. This court finds that when Plaintiff’s counsel was given a second chance and warned by the court that there may be possible consequences for his conduct, counsel, for a second time conducted himself in bad faith, in willful disregard and gross indifference to an Order of the court and the efforts of counsel for Defendant in scheduling a second round of depositions.
After consideration, it is hereby,
ORDERED AND ADJUDGED that this court hereby dismisses Plaintiff’s Complaint with prejudice, awards attorney’s fees, including fees associated with Defense having to bring the Defendant’s Motion to Dismiss and/or For Contempt of Court and/or Sanctions Against the Plaintiff, and attending the hearing in Tallahassee, Florida on October 29, 2013, as well as all costs incurred by Defendant as a result of Plaintiff and his clients not appearing for the depositions scheduled in March, 2013 and October, 2013. Counsel for Defense is to prepare an itemized affidavit and file the affidavit with the court within the next thirty (30) days. This court retains jurisdiction for enforcement of attorney’s fee and sanctions in this case.
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