23 Fla. L. Weekly Supp. 51a
Online Reference: FLWSUPP 2301DURAInsurance — Attorney’s fees — Discovery — Failure to comply — Sanctions — Dismissal — Medical provider’s noncompliance with order compelling more sufficient response to discovery request regarding provider’s attorney’s fees claim justifies dismissal of claim where more than one year has passed since entry of order compelling response and more than six months have passed since issuance of order denying fourth motion for extension of time to respond and notifying provider that it faced possible sanction of dismissal
NICHOLAS W. BELLETTO, D.C., P.A., a/a/o ALFONSO DURAN, Plaintiff, v. MERCURY INSURANCE COMPANY OF FLORIDA, Defendant. County Court, 2nd Judicial Circuit in and for Leon County. Case No. 12-SC-3102. April 20, 2015. Honorable Robert Wheeler, Judge. Counsel: George A. David, Coral Gables, for Plaintiff. Suzette M. Alfonso, Dutton Law Group, P.A., Pompano Beach, for Defendant.
ORDER GRANTING DEFENDANT’S MOTIONTO DISMISS PLAINTIFF’S CLAIM FOR ATTORNEYSFEES BASED ON PLAINTIFF’S WILLFUL FAILURETO COMPLY WITH COURT’S MARCH 31, 2014 ORDER
THIS MATTER came before the Court on Defendant’s Motion to Dismiss Plaintiff’s Claim for Attorneys Fees Based on Plaintiff’s Willful Failure to Comply with Court’s March 31, 2015 Order, and the Court, having heard argument of counsel, having reviewed the record and being otherwise duly advised in the premises, does hereby make the following findings of fact and conclusions of law:
1. Defendant filed a Notice of Confession of Judgment acknowledging Plaintiff’s entitlement to reasonable attorney’s fees and costs incurred.
2. Defendant served Plaintiff with its Attorney Fee Interrogatories and Request for Production on November 18, 2013.
3. Plaintiff failed to timely serve responses to Defendant’s Attorney Fee Interrogatories and Request for Production, thereby necessitating the Defendant to file a Motion to Compel Plaintiff to respond to same.
4. The Court entered its order granting Defendant’s Motion to Compel on January 14, 2014.
5. Subsequently, Plaintiff served its responses to discovery, which the Defendant asserted were insufficient.
6. Defendant filed its Motion to Compel Full and Complete Responses, and said motion was heard by the Court on February 19, 2014.
7. After hearing argument of counsel, the Court entered an Order requiring the Plaintiff to provide full and complete responses to many of the Defendant’s Interrogatories and Requests to Produce, and the written order was entered on March 31, 2014.
8. The Plaintiff filed a series three motions for extension of time to comply with the March 31, 2014 order.
10. On September 8, 2014, the Court denied Plaintiff’s third motion for extension.
11. That Order, which was prepared and entered by the Court, warned the Plaintiff that:
“If discovery was not provided, as ordered by the Court, Court will entertain a Motion to Continue or Motion to Dismiss at that time.”
12. On November 17, 2014, Defendant filed its Motion for Sanctions for Plaintiff’s Continued Failure to Comply with Court’s March 31, 2014 Order To Include Dismissal of Case.
13. As of April 17, 2015, Plaintiff has still not complied with the March 31, 2014 Order.
14. On April 17, 2015, the Defendant filed its Motion to Dismiss Plaintiff’s Claim for Attorneys Fee Based on Plaintiff’s Willful Failure to Comply with Court’s March 31, 2014 Order.
15. The hearing on Plaintiff Motion to determine the amount of fees and costs is set for May 20, 2015.
LEGAL ANALYSIS
Rule 1.380(b), Florida Rules of Civil Procedure, provides as follows:
(b) Failure to Comply with Order.
(1) If a deponent fails to be sworn or to answer a question after being directed to do so by the court, the failure may be considered a contempt of the court.
(2) If a party or an officer, director, or managing agent of a party or a person designated under rule 1.310(b)(6) or 1.320(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or rule 1.360, the court in which the action is pending may make any of the following orders:
(A) An order that the matters regarding which the questions were asked or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.
(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence.
(C) An order striking out pleadings or parts of them or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part of it, or rendering a judgment by default against the disobedient party.
(D) Instead of any of the foregoing orders or in addition to them, an order treating as a contempt of court the failure to obey any orders except an order to submit to an examination made pursuant to rule 1.360(a)(1)(B) or subdivision (a)(2) of this rule.
(E) When a party has failed to comply with an order under rule 1.360(a)(1)(B) requiring that party to produce another for examination, the orders listed in paragraphs (A), (B), and (C) of this subdivision, unless the party failing to comply shows the inability to produce the person for examination.
Instead of any of the foregoing orders or in addition to them, the court shall require the party failing to obey the order to pay the reasonable expenses caused by the failure, which may include attorneys’ fees, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
(Emphasis added.)
Accordingly, this Court has the authority to dismiss the action as a sanction for Plaintiff’s failure to comply with this Court’s order(s). Several cases, including several addressed by the Florida Supreme Court, support application of this form of sanctions when a party deliberately disregards its discovery obligations.
In Nationwide Mutual Fire Ins. Co v. Robinson, 915 So.2d 262 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D2753c], the trial court struck the insurer’s pleading opposing the plaintiffs’ claim for attorney fees as sanction for post-trial discovery violations, and also awarded attorney fees to insureds under offer of judgment statute. The insurer appealed. The District Court of Appeal, affirmed in part, reversed in part, and remanded.
The portion of the decision reversed, was the portion wherein the trial court struck the insurer’s pleading in opposition to the insureds’ claim for attorney fees. Review was granted, and the Supreme Court quashed the decision of the District Court of Appeal, and remanded.
The Supreme Court specifically directed the District Court of Appeal to reconsider the issue of striking the insurer’s pleading, this time limiting their analysis to the factors set forth in Mercer v. Raine, 443 So.2d 944 (Fla.1983).
After reconsideration, the District Court of Appeal concluded:
“[T]he trial court did not abuse its discretion in sanctioning Nationwide for discovery violations. The trial court found that Nationwide repeatedly refused to comply with discovery and willfully employed delaying tactics. It expressly ruled that there was ‘a deliberate and contumacious disregard by Nationwide of its discovery obligations.’ This finding by the trial court, which is supported by the record, justifies the sanction imposed. See Mercer, 443 So.2d at 946 (holding that a deliberate and contumacious disregard of the court’s authority will justify the striking of pleadings or entering a default for noncompliance with an order compelling discovery).”
Likewise, in Johnson v. Allstate Insurance Company, 410 So.2d 978 (Fla. 5th DCA 1982), the District Court of Appeal, held that where plaintiff did not respond to a court order requiring a better response to interrogatories, where, despite a motion for sanctions by defendant, the court gave plaintiff another opportunity and entered another order requiring a response within 30 days, or else the complaint would be dismissed, and where the plaintiff still did nothing, the trial court had the right to interpret that last failure to reply as willful and intentional, and the court did not abuse its discretion in dismissing the action.
The Court finds the facts in Johnson to be similar to those presented in the instant case, with the exception that it appears that the Plaintiff in this instance has been accorded more opportunities to comply, yet has refused to do so. As in Johnson, this Court has specifically warned the Plaintiff that if discovery was not provided, the Court would entertain a Motion to Dismiss. See September 8, 2014 Order.
Similarly, in Mercer, cited above, the trial court entered an order denying the defendant’s motion to dismiss and requiring the defendant to respond to all pending discovery within twenty days. Although the defendant filed his answer, he failed to comply with the order as to discovery, did not request an extension of time, or communicate with the court concerning any mitigating circumstances within the twenty days granted by the court.
Having not received responses to discovery pursuant to the order, plaintiffs filed a motion to strike affirmative defenses and followed that with a motion for sanctions.
The court granted plaintiffs’ motion for sanctions, struck the defendant’s answer, entered a default judgment against the defendant, and ordered the defendant to pay the plaintiff’s costs and fees occasioned by his refusal to comply with the court’s order.
The defendant contended that the trial court abused its discretion in entering the particular sanctions it did without affording the defendant an opportunity to cure the violation by compliance, and that in the absence of a finding by the court that the noncompliance was willful or that plaintiffs suffered any undue prejudice due to the defendant’s noncompliance.
The Florida Supreme Court explicitly disagreed with the defendant’s contentions. See Id. at 945. The Court noted that Florida Rule of Civil Procedure 1.380 clearly authorizes the sanctions imposed by the trial court for the defendant’s failure to comply with the court’s order, and that the purpose of the rules of civil procedure is to promote the orderly movement of litigation. Id. at 946. Though the Court admitted that the sanctions imposed were severe, the Court held:
“We cannot say that they are inappropriate, however, in light of the evidence. There was no showing that the defendant either attempted to comply with the discovery order or communicated any explanation or excuse to the court by the time the plaintiffs’ motion was heard. Cf., Herold v. Computer Components International, Inc., 252 So.2d 576, 581 (Fla. 4th DCA 1971). Nor is this a case where the record was devoid of any evidence reflecting willful disregard of an order of court, Crystal Lake Golf Course, Inc. v. Kalin, 252 So.2d 379 (Fla. 4th DCA 1971); Travelers Insurance Co. v. Rodriguez, 357 So.2d 464 (Fla. 2d DCA 1978), or where the sanction is in effect punishing the litigant too severely for an act or failure on the part of his counsel. Beasley v. Girten, 61 So.2d 179 (Fla.1952); Goldman v. Tabor, 239 So.2d 529 (Fla. 2d DCA 1970).”
(Emphasis added.) Id. at 946.
The Court added that:
“While we agree that the striking of pleadings or entering a default for noncompliance with an order compelling discovery is the most severe of all sanctions which should be employed only in extreme circumstances. Hart v. Weaver, 364 So.2d 524 (Fla. 2d DCA 1978). A deliberate and contumacious disregard of the court’s authority will justify application of this severest of sanctions, Swindle v. Reid, 242 So.2d 751 (Fla. 4th DCA 1970), as will bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness, Herold v. Computer Components International, Inc., 252 So.2d 576 (Fla. 4th DCA 1971).”
Id. at 946.
Mercer involved a delay of approximately 2½ months from the time the order compelling discovery was entered. Here, it has been over one (1) year since entry of the Court’s Order Compelling More Sufficient Responses. Moreover, here, it has been over six (6) months, since the Court entered its Order denying Plaintiff’s fourth motion for extension of time, and since the Court specifically notified the Plaintiff that it faced the possible sanction of dismissal.
The Plaintiff’s actions cannot be deemed anything but deliberate and contumacious in its disregard of the court’s authority. Plaintiff’s failure to comply with the Court’s orders has also unduly prejudiced the Defendant, as it still lacks the discovery responses that the Court determined Defendant was entitled to receive.
CONCLUSION
The Court finds that the Plaintiff’s noncompliance with the Court’s March 31, 2014 constitutes a deliberate and contumacious disregard of the court’s authority, which, in under the facts of this case justifies application of this severest of sanctions, to-wit, dismissal of the case. Notably, Plaintiff was well aware of possible imposition of this sanction on September 8, 2014, when the Court denied its last motion for extension of time. Despite such notice, the Plaintiff continued its noncompliance with the March 31, 2014 Order. Accordingly,
It is therefore
ORDERED AND ADJUDGED that the Defendant’s Motion to Dismiss Plaintiff’s Claim for Attorneys Fees Based on Plaintiff’s Willful Failure to Comply with Court’s March 31, 2015 Order Judgment is hereby granted. The case is dismissed, and Plaintiff shall not be entitled to seek award of its attorneys fees and costs from the Defendant. Further, the Court awards the Defendant its reasonable attorneys fees and costs relating to all its efforts to obtain fee discovery in this matter, and related to its Motion for Sanctions and Motion to Dismiss. The Court reserves jurisdiction to determine the amount of the Defendant’s aforesaid attorneys fees and costs.
