FALCON FARMS, INC., Plaintiff, v. R.D.P. FLORAL, INC., Defendant.
CASE NO. 07-23077-CIV
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
FLORIDA, MIAMI DIVISION
2007 U.S. Dist. Ct. Motions 23077; 2008 U.S. Dist. Ct. Motions
LEXIS 25529
July 10, 2008
Motion for Sanctions
COUNSEL: [*1] GENOVESE JOBLOVE & BATTISTA, P.A., Counsel for Plaintiff, Miami,
Florida, Richard J. Sarafan, Florida Bar No. 296805, Jorge L. Martinez, Florida Bar
No. 735507.
TITLE: PLAINTIFF'S MOTION FOR SANCTIONS FOR DEFENDANT'S FAILURE TO APPEAR FOR
DEPOSITIONS
TEXT: Plaintiff, Falcon Farms, Inc. ("Falcon"), pursuant to the Federal Rules of Civil
Procedure, Rule 37(d), moves for sanctions against the Defendant, R.D.P. Floral, Inc.
("R.D.P."), for failing to appear for deposition and as grounds therefore states as
follows:
1. On June 17, 2008, the undersigned contacted R.D.P.'s Counsel, Steve Weisberg,
via telephone and requested dates for conducting the depositions of the following
R.D.P personnel: (1) Mr. Juan Pablo Ramirez; (2) Mr. Diego Ramirez; and (3) Mr. Paul
Serani (collectively, "Deponents"). n1 The undersigned notified Mr. Weisberg that
the depositions had to be scheduled prior to the July 11, 2008 discovery deadline
set by the Court.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n1 The Deponents are the only individuals identified in R.D.P.'s answers to Falcon's
First Set of Interrogatories as having knowledge of the facts alleged in the pleadings
in this case.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*2]
2. On June 18, 2008, the undersigned sent e-mail correspondence confirming the
aforementioned discussion with Mr. Weisberg and, once again, reiterated the importance of scheduling the subject depositions prior to the discovery deadline. A
copy of the e-mail correspondence sent by the undersigned to Mr. Weisberg on June
18, 2008 is attached hereto as Exhibit "A."
3. On June 24, 2008, the undersigned still had not received any response from Mr.
Weisberg and, as such, sent another e-mail correspondence requesting that he provide
dates for the Deponents' depositions and pointing out the impending discovery
deadline. The undersigned further informed Mr. Weisberg that he would be forced to
unilaterally schedule the depositions if Mr. Weisberg failed to provide a response
before the end of the day on June 25, 2008. A copy of the e-mail correspondence sent
by the undersigned to Mr. Weisberg on June 24, 2008 is attached hereto as Exhibit
"B."
4. On June 25, 2008, Mr. Weisberg sent correspondence to the undersigned indicating
that Mr. Juan Pablo Ramirez would appear for deposition on July 18, 2008 (seven days
after the discovery deadline). Mr. Weisberg also indicated that Mr. Diego Ramirez
[*3] was no longer associated with R.D.P. and that Mr. Paul Serani would have to
be deposed in Los Angeles, California where R.D.P. is headquartered. A copy of the
e-mail correspondence sent by Mr. Weisberg to the undersigned on June 25, 2008 is
attached hereto as Exhibit "C."
5. On said date, the undersigned promptly responded to Mr. Weisberg's e-mail, again
reminded him of the discovery deadline in this case, and informed him that Mr. Juan
Pablo Ramirez' deposition had to be scheduled within the time frame provided by the
Court. The undersigned further informed Mr. Weisberg that Mr. Serani was required
to appear in Miami for his deposition since he was an R.D.P. employee and R.D.P. had
filed a counterclaim in the instant case. In addition, the undersigned requested Mr.
Diego Ramirez's direct contact information. Mr. Weisberg did not provide a response
to the undersigned and did not provide any tentative deposition dates for the
Deponents. A copy of the e-mail correspondence sent to Mr. Weisberg by the undersigned
is attached hereto as Exhibit "D."
6. On June 26, 2008, Falcon served deposition notices as to the Deponents on R.D.P.
and scheduled the depositions for July 9, 2008 and July 10, 2008. Copies [*4] of
Falcon's deposition notices are attached hereto as Exhibit "E." The undersigned,
however, also indicated via correspondence attached to the notices that it would not
object to re-scheduling the depositions if the Court granted R.D.P. an extension as
to the discovery deadline. A copy of the letter from the undersigned to Mr. Weisberg
is attached hereto as Exhibit "F."
7. On July 7, 2008, the undersigned contacted Mr. Weisberg and was informed that
the Deponents would not attend the scheduled depositions. A copy of the e-mail
correspondence sent by Mr. Weisberg to the undersigned on July 7, 2008 is attached
hereto as Exhibit "G." On said date, Mr. Weisberg also contacted the undersigned via
telephone and did not provide a basis for R.D.P.'s inability to attend the depositions. Instead, Mr. Weisberg merely stated that his heavy case load and the
distance the Deponents would have to travel made it "impossible" for the depositions
to go forward on the scheduled dates.
8. Not surprisingly, on July 9, 2008 and July 10, 2008, the Deponents failed to
appear for their depositions. Certificates of Non-Appearance for the subject
depositions are attached hereto as Exhibit "H."
9. Federal Rule of Civil Procedure, Rule 37(d)(1)(A) [*5] , states that "[t]he
Court . . . may, on motion, order sanctions if: (i) a party or a party's officer,
director, or managing agent-or a person designated under Rule 30(b)(6) or 31(a)(4)
- fails, after being served with proper notice, to appear for that person's
deposition." Fed. R. Civ. P. 37(d). Rule 37(d)(2) further provides that "[a] failure
described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought
was objectionable, unless the party failing to act has a pending motion for a
protective order under Rule 26(c). Id.
10. Moreover, Rule 37(d)(3) provides that the court may impose the following
sanctions for a party's failure to permit discovery: (i) the court may order that
designated facts be taken as established for purposes of the action, as the prevailing
party claims; (ii) the court may prohibit the disobedient party from supporting or
opposing designated claims or defenses, or from introducing designated matters in
evidence; (iii) the court may strike pleadings in whole or in part; (iv) the court
may stay further proceedings until the order is obeyed; (v) the court may dismiss
the action or proceeding in whole or in part; and (vi) the court [*6]
a default judgment against the disobedient party. Id.
may render
11. Rule 37(d)(3) further provides that "[i]nstead of or in addition to [the
aforementioned] sanctions, the court must require the party failing to act, the
attorney advising that party, or both to pay the reasonable expenses, including
attorneys' fees caused by the failure, unless the failure was substantially justified
or other circumstances make an award of expenses unjust." Id.
12. In the instant case, Mr. Weisberg's busy schedule and R.D.P.'s failure to
arrange for the Deponents to travel to Miami, Florida do not serve as "substantial
justification" for failing to timely provide any valid dates for the depositions or
for failing to appear at the depositions on the scheduled dates.
13. To date, R.D.P. has not provided any valid basis for its failure to appear
at the subject depositions and, more importantly, it has not filed a motion for
protective order in this case as required by Rule 37(d). Thus, it is clear that R.D.P.
is attempting to delay this action and deny Falcon the right to conduct crucial
discovery in order to escape its inevitable liability. n2
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - n2 Notably, R.D.P. has previously delayed discovery in this action by failing to
provide adequate responses to Falcon's First Set of Interrogatories and Falcon's
First Request for Production. Indeed, Falcon was previously forced to file various
motions to compel in order to obtain intelligible responses to its discovery request.
Only after Falcon filed its motions to compel did R.D.P. properly amend its answers
and responses to Falcon's discovery.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*7]
14. R.D.P.'s flagrant delay tactics coupled with the fact that the dispositive
motions deadline and trial date in this matter are fast approaching warrants that
the Court impose Rule 37(d) monetary sanctions against R.D.P. and a sanction either
dismissing R.D.P.'s counterclaim against Falcon or entering a default against R.D.P.
in this cause. See Hashemi v. Campaigner Publ'ns, Inc., 737 F.2d 1538 (11th Cir. 1984)
(dismissing plaintiff's claims for failure to appear at scheduled depositions);
Bonaventure v. Butler, 593 F.2d 625 (5th Cir. 1979) (plaintiff's suit dismissed for
refusals to appear for scheduled depositions); see also Mishkin v. Jeannine Gurian
Trust Number One, No. 06-80489-CIV, 2008 WL 708733, at *3 (S.D. Fla. Mar. 14, 2008)
(entering defaults against defendant under Rule 37 for failure to attend their
depositions); Shawmut Boston Int'l Banking Corp. v. Duque-Pena, 767 F.2d 1504, 1507
(11th Cir. 1985) (upholding a default sanction entered under Rule 37 where a party
acted in bad faith to delay a collection action).
WHEREFORE, based on the foregoing, Plaintiff, Falcon Farms, Inc. respectfully
requests [*8] that the Court grant its motion for sanctions and award such further
relief as the Court deems just and proper.
Dated: July 10, 2008
Miami, Florida
Respectfully submitted,
GENOVESE JOBLOVE & BATTISTA, P.A.
Counsel for Plaintiff
Bank of America Tower, Suite 4400
100 Southeast Second Street
Miami, Florida 33131
Telephone: (305) 349-2300
Facsimile: (305) 349-2310
/s/ Jorge L. Martinez
Richard J. Sarafan, Florida Bar No. 296805
Jorge L. Martinez, Florida Bar No. 735507
CERTIFICATE OF SERVICE
I hereby certify that on July 10, 2008, the foregoing document was electronically
filed with the Clerk of the Court using CM/ECF. I also certify that the foregoing
document is being served this day on all counsel of record or pro se parties identified
on the attached Service List in the manner specified, either via transmission of
Notices of Electronic Filing generated by CM/ECF or in some other authorized manner
for those counsel or parties who are not authorized to receive electronically Notices
of Electronic Filing.
/s/ Jorge L. Martinez
Jorge L. Martinez
SERVICE LIST
Richard J. Sarafan, Florida Bar No. 296805
Email: [*9] rsarafan@gjb-law.com
Jorge L. Martinez, Florida Bar No. 735507
Email: jmartinez@gib-law.com
Genovese Joblove & Battista, P.A.
Bank of America Tower, Suite 4400
100 Southeast Second Street
Miami, Florida 33131
Telephone: (305) 349-2300
Facsimile: (305) 349-2310
Attorneys for Plaintiff
Michael P. Weisberg, Florida Bar No. 106375
Email: lawmpw@aol.com
Steven Weisberg, Florida Bar No. 12662
Email: stwe2@aol.com
1300 Coral Way, Suite 300
Miami, FL 33145
Telephone: (305) 854-0996
Attorneys for Defendant