22 Fla. L. Weekly Supp. 466a
Online Reference: FLWSUPP 2204LICOInsurance — Discovery — Depositions — Failure to appear — Sanctions — Where corporate representative for medical provider failed to appear for two prior depositions, provider sought protective order from latest scheduled deposition on grounds that representative was out of town, but failed to comply with order to fax travel documents to court to verify that representative was on pre-planned trip, and representative failed to appear for deposition, provider’s pleadings are stricken and case is dismissed
T.S. MEDICAL HEALTH, INC. A/A/O CARLOS LICOR, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 13-01256-CC-26 (3). October 15, 2014. Michaelle Gonzalez-Paulson, Judge.
ORDER OF DISMISSAL PURSUANT TOSEPTEMBER 4, 2014 ORDER
THIS CAUSE came upon to be heard on Renewed Motion to Strike Pleadings, and the Court, noting agreement of counsel, and being otherwise fully advised in the premises, it is hereby
ORDERED AND ADJUDGED as follows:
1. Pursuant to the Court’s order dated September 4, 2014, Plaintiff’s Corporate Representative, Ronald Alfaro, was to appear for deposition within thirty (30) days of said order.
2. Plaintiff’s Corporate Representative, Ronald Alfaro, was set to be deposed on October 6, 2014. Said deposition was mutually coordinated by the parties.
3. Plaintiff attempted to obtain a Protective Order from the October 6, 2014 deposition, and Extension of Time as to the Court’s September 4, 2014 order. Plaintiff’s Motion and attached affidavit alleged that Ronald Alfaro was out of town. An emergency motion was heard on October 3, 2014, and the Court ordered that by 5:30 p.m., on October 3, 2014, Plaintiff must fax to the Court and Defendant any and all travel documents related to Mr. Alfaro’s trip, in order to verify whether it was pre-planned. No documents were faxed to the Court or Defendant, in violation of the Court’s October 3, 2014 order, and the October 6, 2014 deposition proceeded as coordinated by the parties.
4. On October 6, 2014, Plaintiff’s Corporate Representative, Ronald Alfaro, failed to appear for his mutually coordinated deposition. Thirty (30) days have elapsed since the September 4, 2014 order was issued. As such, the Plaintiff is in violation of the Court’s September 4, 2014 order.
5. In making this ruling, the Court has reviewed and considered the six (6) factors set forth by the Supreme Court in Kozel v. Ostendorf, 629 So.2d 817 (FLA. 1993) which are:
1) whether attorney’s disobedience was willful, deliberate, or contumacious;
2) whether attorney was previously sanctioned;
3) whether client was personally involved in act of disobedience;
4) whether delay prejudiced opposing party;
5) whether attorney offered reasonable justification for noncompliance; and
6) whether delay created significant problems of judicial administration.
6. In reviewing this matter, five (5) of the six (6) Kozel factors appear in the record. First, Plaintiff and its counsel have now violated three (3) court orders on the issue of Plaintiff’s Corporate Representative deposition. Second, Plaintiff’s Corporate Representative has not appeared for deposition on at least three (3) separate coordinated depositions, two (2) of which were compelled by the Court. Third, the delay in prosecuting this case has prejudiced the Defendant in preparing for trial and causing it to incur unnecessary attorney’s fees and costs. Fourth, Plaintiff and its counsel have offered no justification for their non-compliance with numerous court orders. Fifth, the failure of Plaintiff to comply with the Court’s orders compelling deposition of the Plaintiff’s Corporate Representative, Ronald Alfaro, has created a significant problem to the judicial administration as the case cannot be tried with Plaintiff’s blatant violation of pertinent orders compelling deposition.
7. In light of the fact that the Plaintiff has failed to comply with three (3) prior orders related to the deposition of its Corporate Representative, and specifically the September 4, 2014 order, the Court finds that the Plaintiff’s conduct is a willful, deliberate, and contumacious disregard for the authority of this Court, and warrants the ultimate sanction of dismissal.
8. Therefore, Plaintiff’s pleadings are hereby STRICKEN and Plaintiff’s case is dismissed without prejudice.
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