27 Fla. L. Weekly Supp. 558a
Online Reference: FLWSUPP 2706JOHNInsurance — Discovery — Failure to comply with discovery and court orders — Sanctions — Striking of pleadings and entry of default judgment against insurer
THE COHEN CHIROPRACTIC GROUP, P.A. (a/a/o Johnson, Hondray), Plaintiff, v. WINDHAVEN INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 50-2017-SC-006733-XXXX-MB, Division RE. August 5, 2019. Ashley Zuckerman, Judge. Counsel: Robert B. Goldman, Florida Advocates, Dania Beach, for Plaintiff. Iftikhar Memon, for Defendant.
SUPPLEMENTAL ORDER STRIKING DEFENDANT’SPLEADINGS AND GRANTING DEFAULT JUDGMENT
THIS CAUSE having come before the Court at the August 5, 2019 mandatory Case Management Conference, and Plaintiff being present and Defendant having failed to appear, the Court makes the following findings of fact and conclusions of law:
1. Plaintiff filed this lawsuit on June 5, 2017, propounding its First Set of Interrogatories and First Request to Produce on August 11, 2017 (the “discovery demand”).
2. When Defendant failed to respond to the discovery demand, Plaintiff filed its first Motion to Compel on November 7, 2017.
3. As of June 20, 2018, when Defendant had still not responded to the discovery demand, Plaintiff filed its Ex-Parte Motion to Compel Defendant’s Discovery Responses, certifying compliance with Rule 1.380(a)(2), Fla.R.Civ.P., and Plaintiff’s unsuccessful efforts to obtain the discovery responses without the need for Court action.
4. On July 3, 2018, the Court entered an Order Granting Plaintiff’s Ex-Parte Motion to Compel Defendant’s Discovery Responses, requiring that Defendant comply with the discovery demand within ten (10) days from the entry of the Order (the “Discovery Order”).
5. As of August 7, 2018, when Defendant had failed to comply with the Discovery Order, still not having complied with the discovery demand, Plaintiff filed its Motion to Enforce the Discovery Order and Request for an Award of Sanctions.
6. The June 21, 2019 Case Management Order directed the parties to appear before the Court on August 5, 2019 for a Mandatory Case Management Conference, and to prepare for “any and all outstanding issues to be heard, including but not limited to: non-compliance with any of the Court’s Orders, any pending motions, sanctions, discovery and the scheduling of additional hearings or for trial.” The Case Management Order further provides that “failure to attend the Case Management Conference may result in the imposition of sanctions, including but not limited to . . . striking of pleading or any other action deemed appropriate.”
7. Defendant failed to comply with the Case Management Order, failing to appear at the Case Management Conference.
8. Based upon Defendant’s repeated failure to cooperate with regard to providing discovery, responding to motions to compel and complying with Court Orders, the Court finds as follows:
a. Defendant’s lack of compliance with the Rules of Civil Procedure with regard to providing discovery, responding to motions to compel discovery and complying with Court Orders was a continued pattern and thus not simply an act of negligence.
b. Defendant’s failure to provide discovery has prejudiced the Plaintiff, through undue delay and the incurrence of unnecessary expense.
c. This Court sets Case Management Conferences as a way to monitor the cases and continue to expedite the judicial process; this Court is tasked with doing so. Failing to appear at a mandatory Case Management Conference, which the parties were duly noticed of, aborts this effort.
d. As a result of failing to appear for the Case Management Conference, counsel for Windhaven failed to offer any reasonable justification for Windhaven’s lack of cooperation with regard to providing discovery, responding to motions to compel discovery and complying with Court Orders.
e. Defendant’s failure to respond to the discovery demand that was served over two years ago, failure to respond to motions to compel discovery and failure to comply with court orders has created problems of judicial administration. This matter has remained pending for over two years.
9. After having considered each of the above enumerated factors, this Court concludes that a sanction less severe than a default/striking of Defendant’s pleadings is not a viable alternative. Accordingly, Defendant’s pleadings are hereby stricken and Plaintiff is directed to submit a proposed Final Judgment, together with supporting paperwork, within thirty (30) days from August 5, 2019.
