Opinion
CASE NO. 02-23260-CIV-GRAHAM/GARBER
October 8, 2003
REPORT AND RECOMMENDATION
THIS CAUSE is before the Court on Defendant's Motion to Dismiss the Complaint with Prejudice as Sanction (D.E. #26). On August 27, 2003, the Court held a hearing regarding this matter. For the reasons set forth below, it is recommended that the Court: (1) GRANT Defendant's Motion to Dismiss the Complaint with Prejudice as Sanction; (2) dismiss this action with prejudice; and (3) sanction plaintiff and his counsel, Jorge A. Rodriguez, jointly and severally in the amount of $1,117.50.
BACKGROUND
Defendant detailed most of these facts in its Motion to Dismiss the Complaint with Prejudice as a Sanction. Except as noted in this Report and Recommendation, plaintiff did not dispute these facts in his belated, written Response to that Motion or at the August 27, 2003, hearing regarding this matter.
On November 6, 2002, plaintiff commenced this negligence action. In his Complaint, plaintiff alleges that in April of 2002, one of defendant's vehicles struck him while he was working at a gate at Miami International Airport. Plaintiff's counsel is Jorge A. Rodriguez.
By Order dated December 4, 2002, Judge Graham scheduled this matter for a January 22, 2003, status conference. Despite the fact that Plaintiff's counsel, Mr. Rodriguez, had almost seven weeks notice of the status conference, he failed to appear at the status conference and failed to provide the Court or opposing counsel notice that he would not appear. Instead, during the time scheduled for the status conference, Mr. Rodriguez's secretary advised the Court by telephone that Mr. Rodriguez would not appear because he was in a deposition.
On January 8, 2003, defendants served on plaintiff interrogatories and requests for production. Despite the fact that plaintiff was required to serve on defendant answers or objections to those interrogatories by approximately February 7, 2003, see Fed.R.Civ.P. 33(b)(3) 34(b), plaintiff did not provide any responses or documents by that date. Additionally, plaintiff never requested from the Court an enlargement of time to respond to the interrogatories and requests for production, and prior to the due date plaintiff did not request from defendant an enlargement of time to respond. Instead, on February 25, 2003, approximately eighteen days after plaintiff's responses were due, plaintiff requested from defendant an enlargement of time to respond. Defendant agreed to plaintiff's belated request for an enlargement of time to respond until March 11, 2003.
Plaintiff, however, failed to file any responses or objections by March 11, 2003. On March 12, 2003, defendant wrote to Mr. Rodriguez via facsimile, asking Mr. Rodriguez whether he would respond to the discovery. Mr. Rodriguez never responded to that facsimile.
On January 31, 2003, February 10, 2003, and February 14, 2003, defendant contacted Mr. Rodriguez to attempt to discuss the scheduling of Plaintiff's deposition. Mr. Rodriguez never responded to defendant's counsel and did not cooperate in the scheduling of plaintiff's deposition.
In compliance with this Court's discovery motions procedure, see D.E. #8, at 2, defendant contacted the undersigned's Chambers; and on March 14, 2003, by written Notice of Hearing, defendant scheduled a March 21, 2003, hearing regarding Plaintiff's failure to respond to defendant's requests for interrogatories and requests for production, and Plaintiff's failure to cooperate with defendant's attempts to schedule Plaintiff's deposition.
On March 18, 2003, Le. three days prior to the scheduled hearing regarding Plaintiff's non-compliance with his discovery obligations and his agreement with defendant to provide discovery, Mr. Rodriguez wrote to defendant's counsel and stated: "I am receipt [stet] of your notice of hearing dated March 21 on defendant's motion to compel discovery and motion to compel deposition. Please submit an agreed order to respond to discovery in twenty (20) days." Twenty days from the date plaintiff wrote that letter would have been April 7, 2003, i.e., two months after Plaintiff's responses to the discovery were due.
At 9:27 a.m. on the next morning, March 19, 2003, defendant's counsel provided Mr. Rodriguez with a proposed agreed order requiring plaintiff to respond to defendant's discovery and to produce plaintiff for deposition by April 7, 2003. Defendant's counsel wrote that if Mr. Rodriguez did not respond by 3:00 p.m. on March 19, 2003, then she would submit the proposed agreed order to the Court. Mr. Rodriguez did not respond to defendant's counsel, and she therefore submitted the proposed agreed order to the Court.
On March 20, 2003, the Court signed the Agreed Order, which provided: "Plaintiff shall have up to and including April 7, 2003 to serve his answers to [defendant's] First Set of Interrogatories and First Request for Production of Documents. Plaintiff also shall have up to and including April 7, 2003 to appear for deposition."
On March 20, 2003, defendant requested by facsimile that Mr. Rodriguez provide an available date before April 7, 2003, for Plaintiff's deposition. Mr. Rodriguez never responded to that request. Therefore, on March 24, 2003, defendant served on plaintiff a notice of taking deposition which scheduled Plaintiff's deposition for April 2, 2003. On March 31, 2003, Mr. Rodriguez advised defendant's counsel by telephone that he would not comply with the March 20, 2003, Order by producing plaintiff for deposition by April 7, 2003, but instead would not produce plaintiff for deposition until May 7, 2003.
Not only did Plaintiff's refusal to appear for deposition violate his agreement and the Court's March 20, 2003, Order, but as a matter of courtesy Mr. Rodriguez should have immediately contacted defendant with his concerns, instead of waiting to do so until seven days after he received notice of the deposition and only two days before the deposition was scheduled.
On March 25, 2003, plaintiff filed his Motion to Modify the March 20, 2003, Agreed Order. Plaintiff's filing of that Motion was in violation of Judge Graham's Order regarding this Court's discovery motions procedure, which provided: "No written discovery motions, including motions to compel and motions for protective order, shall be filed unless the parties are unable to resolve their disputes at the motion calendar, or unless requested by Magistrate Judge Garber. It is the intent of this procedure to minimize the necessity of motions." D.E. #8, at 2.
Although the basis of the Motion to Modify Agreed Order was not completely clear, it initially appeared that plaintiff contended that he had agreed to an Order requiring him to respond to discovery and to appear for deposition within twenty days of whenever the Court entered the Order, but that he had not agreed to entry of an Order requiring him to take those actions within twenty days of the date he had agreed to entry of the Order. In other words, plaintiff would have wanted the Court's March 20, 2003, Order to require him to comply with his discovery obligations by April 9, 2003 ( i.e., twenty days from March 20, 2003), instead of requiring him to comply with those obligations by April 7, 2003 ( i.e., twenty days from March 18, 2003).
However, it became apparent that plaintiff and his counsel, in a display of gamesmanship, did not want only an additional two-day extension until April 9, 2003, in which to comply with Plaintiff's discovery obligations. Instead, they wanted an extension of twenty days from whenever the Court signed an amended Order requiring plaintiff to provide responses to defendant's discovery requests. Plaintiff did not contact defendant at any time to request that defendant agree to an additional two-day extension, and he did not request from this Court a two-day extension. Additionally, Mr. Rodriguez told defendant's counsel that plaintiff would not appear for deposition until May 7, 2003, well beyond April 11, 2003. Thus, plaintiff took his disagreement with the Court's March 20, 2003, Agreed Order as another opportunity to further delay compliance with his discovery obligations; and by filing his Motion he wasted defendant's and defendant's counsel's time and resources, as well as judicial resources, and took advantage of defendant's counsel's courtesy (which defendant's counsel had demonstrated by agreeing to a belatedly-requested enlargement of time, when plaintiff was already six weeks late in providing discovery and provided no reason for the delay).
As discussed supra, those discovery responses had been due on approximately February 7, 2003.
In his Motion to Modify Agreed Order, Mr. Rodriguez also contended that he had been "unable to respond to defendant's correspondence prior to March 19, 2003 at 3:00 P.M. due to a conference in Broward County on said date." However, Mr. Rodriguez did not provide any reason why he had been unable to contact defendant or the Court regarding his concern anytime before March 25, 2003, when he filed his Motion to Modify Agreed Order. In fact, as discussed supra, plaintiff did not contact defendant at any time to request that defendant agree to an additional two day extension; instead, plaintiff filed with the Court his Motion to Modify Agreed Order.
On March 27, 2003, Judge Graham scheduled mediation for August 6, 2003. See D.E. #17.
The Court then scheduled Plaintiff's Motion to Modify Agreed Order for the April 11, 2003, discovery motions calendar. On April 10, 2003, one day before the scheduled hearing (and twenty-one days after the Court signed the March 20, 2003 Order, i.e., one day after the date to which the Court originally assumed plaintiff wanted an enlargement of time), plaintiff filed responses to defendant's interrogatories and requests for production. Plaintiff's responses on that date, however, appear to have been merely an attempt to prevent defendant's counsel from obtaining an order compelling discovery at the April 11, 2003, hearing. Defendant's counsel did not have time to review those responses prior to the April 11 hearing, and those responses reveal Plaintiff's complete failure to meet his discovery obligations or to comply with the Court's March 20 Order compelling discovery. Plaintiff did not provide any documents to defendant, and despite the fact that plaintiff was now more than two months late in providing discovery, plaintiff merely responded to defendant's requests for production of plaintiff's income tax returns and proof of plaintiff's income by stating, "Discovery is continuing. Will supplement." Response to Request for Production, ¶¶ 19-20.
As discussed infra, plaintiff did not supplement those responses until July 31, 2003, after being Ordered to do so several times. Additionally, as of August 27, 2003, defendant still had not provided all income tax returns.
Although defendant's counsel did not have time to thoroughly look over Plaintiff's responses before the April 11, 2003, discovery motions calendar hearing, at that hearing defendant's counsel represented that plaintiff still had not appeared for deposition, and he therefore requested an order requiring plaintiff to appear. Plaintiff did not, either at that hearing or before it, provide any reason that constituted excusable neglect for his failure to provide discovery either on a timely basis or at any time during the three months prior to the hearing.
At the April 11, 2003, hearing and in a written Order which the Court signed on that date, the Court granted defendant's ore tenus motion to compel depositions and required plaintiff to appear for deposition on or before May 10, 2003. Because plaintiff had produced discovery on April 10, 2003, the Court denied as moot Plaintiff's Motion to Modify Agreed Order.
The parties agreed to schedule Plaintiff's deposition for May 7, 2003. On May 7, however, plaintiff walked out of his deposition after one and one-half hours, claiming that he had to go to work. Prior to that date, plaintiff and Mr. Rodriguez did not provide defendant with any notice that plaintiff had a conflict with that date. Thus, despite the Court's Order requiring plaintiff to appear for deposition by April 7, 2003, and the Court's subsequent Order requiring plaintiff to appear for deposition by May 10, 2003, because of plaintiff's failure to comply with the Court's Orders and failure to comply with his discovery obligations, defendant was only able to depose him for one and one-half hours before May 10, 2003.
On May 21, 2003, defendant re-noticed Plaintiff's deposition for May 27, 2003. Plaintiff and his counsel did not inform defendant that plaintiff had a conflict with that deposition or that he would not appear at that deposition. Plaintiff, however, failed to appear for deposition on May 27, 2003.
On May 28, 2003, defendant again re-noticed Plaintiff's deposition, this time for June 2, 2003. More than five months after defendant first requested that plaintiff appear for deposition, and more than eight weeks and three weeks after the Court's two Orders required plaintiff to appear for deposition, plaintiff finally appeared for deposition on June 2, 2003. However, because plaintiff had not yet provided adequate, truthful responses to defendant's requests for written discovery (thus violating both the Federal Rules of Civil Procedure and this Court's Orders), defendant could not obtain the discovery such a deposition is intended to provide ( e.g., defendant's counsel could not ask plaintiff about his tax returns or medical records).
At his June 2 deposition, plaintiff testified that he did not appear at the scheduled May 27 deposition because "there was an accident in [his] gate where [he] worked in the airport, and it was under investigation." Plaintiff Dep., at 4. When asked for additional details about the accident, plaintiff testified, "It's very complicated. It's going to take hours to explain you [stet] what happens." Id. Plaintiff and his counsel did not provide that explanation, or any other explanation for the failure to appear, to the Court or to defendant's counsel prior to June 2, 2003, let alone prior to or at the time of the scheduled May 27, 2003, deposition.
Also at the June 2, 2003, deposition, defendant stated that he had in his possession tax documents and other documents demonstrating his income during the five years preceding that deposition. Id at 58-60. These were precisely the documents which defendant had requested in its written requests for production, and to which plaintiff had belatedly responded, "Discovery is continuing. Will supplement." Response to Request for Production, ¶¶ 19-20. Of course, plaintiff had an obligation to provide these documents at an earlier date, and violated both the Federal Rules of Civil Procedure and this Court's Orders and Local Rules regarding discovery obligations, see Tire Kingdom, Inc. v. Morgan Tire Auto, Inc., 253 F.3d 1332, 1335 (11th Cir. 2001) ("We likewise conclude that the time limit set out in local rule 7.3 is an `order of the court' that governs this case."), by failing to provide them.
Defendant also testified that he would have to ask his wife if the couple were in possession of Plaintiff's medical bills. Plaintiff's Dep., at 60. However, both the Federal Rules of Civil Procedure and this Court's Order to provide discovery obligated plaintiff to search for those medical bills in response to defendant's requests for production, because in those requests defendant asked for, in part, "Copies of any and all medical records and/or medical bills . . . for any injuries/care/treatment incurred as a result of the subject incident." Defendant's First Request for Production of Documents to Plaintiff, Nos. 1, 21, 22. In Plaintiff's belated responses to those requests for production, he stated, "None in Plaintiff's possession."
At his deposition, plaintiff also testified that at his house he had copies of his worker's compensation documents. Plaintiff's Dep., at 83. That fact directly contradicted Plaintiff's belated response to defendant's request for production, in which he represented that those documents were not in his possession. Response to Request for Production, No. 7. Plaintiff's failure to provide those documents constituted a violation of this Court's Order directing him to provide defendant with all responsive documents.
At the conclusion of plaintiff's deposition, he represented to defendant's counsel that he would ask his wife about his medical bills and that that night, he would fax to Mr. Rodriguez copies of his worker's compensation documents so that Mr. Rodriguez could forward them to defendant's counsel. Plaintiff's Dep., at 83-84 ("I have them in the house. There's no problem. I can fax them to him tonight or tomorrow some time. That's no problem. . . . If he needs the papers tomorrow morning, I can fax it tonight. It's no problem."). On the record, defendant's counsel reserved the right to re-depose plaintiff regarding any documents plaintiff subsequently provided to defendant. Id. at 84.
Despite Plaintiff's representations during his deposition, plaintiff failed to produce any of the requested documents to Mr. Rodriguez or to defendant. On June 9, 2003, Le. seven days after plaintiff's deposition, defendant's counsel requested available dates for plaintiff's wife's deposition, and provided written notice to Mr. Rodriguez that plaintiff had not provided the documents that, during the June 2, 2003, deposition, he had promised to provide. Predictably, Mr. Rodriguez never responded to defendant's counsel's request.
Defendant's counsel contacted the undersigned's Chambers and scheduled for June 18, 2003, a hearing regarding Plaintiff's wife's deposition. On June 17, 2003 — once again only one day before a scheduled hearing regarding Plaintiff's noncompliance and/or failure to cooperate in discovery — Mr. Rodriguez contacted defendant's counsel and agreed to produce Plaintiff's wife for deposition by July 7, 2003, and to provide supplemental responses to defendant's requests for production. Based on that representation, defendant prepared a proposed agreed order regarding the scheduling of that deposition and the production of additional, responsive documents. Defendant's counsel presented that proposed order to the Court at the June 18 hearing. Mr. Rodriguez failed to attend the June 18 hearing, despite the fact that he had not received permission from the Court not to appear, and therefore violated the Court's Order scheduling the hearing. On June 18, the Court signed an Agreed Order, which provided in pertinent part: "Plaintiff shall have up to and including July 7, 2003 to serve his supplemental responses to [defendant's] First Request for Production of Documents. Plaintiff's wife will appear for deposition by July 7, 2003." D.E. #22, at 1.
Once again, plaintiff and his counsel failed to comply with any part of the Court's June 18, 2003, Order, failed to move for an enlargement of time to comply, and failed to provide on a timely basis any reason for not complying. Plaintiff's counsel did not produce Plaintiff's wife for deposition before July 7, 2003, did not provide to defendant any documents, did not inform defendant or the Court that plaintiff would not comply with the June 18 Order, and did not offer any reason for the failure to comply.
As of July 11, 2003, plaintiff still had not complied with the June 18, 2003, Order (or the Court's previous Orders), and defendant was therefore forced to filed its Motion to Enforce June 18, 2003 Order and for Sanctions (D.E. #23).
On that same date, defendant filed its Motion to Modify the Court's Scheduling Order (D.E. #24), because Plaintiff's failure to comply with his discovery obligations and this Court's Orders had rendered defendant unable to prepare for trial and meet the Court's pre-trial deadlines. On July 14, 2003 (D.E. #25), Judge Graham denied that Motion, and concluded that "the complained of misconduct may be more appropriately addressed in the context of a motion for sanctions."
On July 16, 2003, the deadline to exchange expert witness information passed. Of course, defendant would have been unable to supply any meaningful information to prospective expert witnesses and therefore would have been unable to select appropriate expert witnesses because plaintiff still had not supplied the discovery that originally was due in February.
On July 18, 2003, defendant filed its Motion to Dismiss the Complaint with Prejudice as a Sanction (D.E. #26). In addition to the facts listed above, defendant noted in its Motion that plaintiff still has not answered or objected to defendant's second interrogatory, in which defendant requested "the names of all American Airlines employees who were present at Gate E-Il on the day of the alleged incident." Additionally, defendant noted that on February 10, 2003, it had sent Mr. Rodriguez Social Security Administration and Internal Revenue Service Authorizations for plaintiff to sign. Plaintiff and Mr. Rodriguez did not provide those authorizations to defendant.
In Plaintiff's belatedly-filed Response to Defendant's Motion to Dismiss the Complaint with Prejudice as a Sanction, plaintiff asserted that he forwarded the signed authorizations to defendant on April 10, 2003, D.E. #33, at 2 ¶ 5, and in Plaintiff's belatedly-filed Response to Defendant's Motion to Enforce June 18, 2003 Order and for Sanctions, plaintiff contended that he signed those authorizations on March 20, 2003, D.E. #30, at 1 ¶ 5. Plaintiff also provided the Court with signed copies of those authorizations, which ostensibly reflect that plaintiff signed them on March 20, 2003.
Based on Mr. Rodriguez's and Plaintiff's mis-statements and conduct designed to evade discovery obligations, many of which are outlined in this Order, the Court does not believe Mr. Rodriguez's statement that he or plaintiff forwarded the signed authorizations to defendant at any time. Even in the absence of those facts, Mr. Rodriguez's representation would strain credulity in light of the fact that when production of those documents were at issue both before and during Plaintiff's June 2, 2003, deposition, neither plaintiff nor Mr. Rodriguez stated to defendant or the Court that plaintiff had already provided signed authorizations that would have enabled defendant to obtain those documents. And of course, even if plaintiff had provided those documents, that fact would not negate the fact that plaintiff and Mr. Rodriguez, in violation of numerous Court Orders, the Federal Rules of Civil Procedure, and this Court's Local Rules, failed to provide defendant with the relevant IRS and social security documents, and provided conflicting answers regarding whether those documents were in Plaintiff's possession. Also, Plaintiff's last-minute attempts to introduce new explanations for his misconduct cast doubt on his credibility. See, e.g., Immuno Vital, Inc. v. Telemundo Group, Inc., 203 F.R.D. 561, 569-70 (S.D. Fla. 2001) (J. Moore) ("Furthermore, Defendants' proffered justification for their failure to produce these documents has fluctuated over the course of this litigation, thus casting doubt on the credibility of the reasons offered."). Additionally, even the fact that plaintiff belatedly filed the Responses in which he made these claims regarding the signed authorizations raises questions regarding Plaintiff's and his counsel's credibility. Effectively, in untimely-filed Responses plaintiff is asking this Court to believe that he timely provided the signed authorizations.
Plaintiff's response to defendant's Motion to Enforce June 18, 2003 Order and for Sanctions was due on July 24, 2003, and plaintiff s response to defendant's Motion to Dismiss the Complaint with Prejudice as a Sanction was due on August 1, 2003. See Local Rule 7.1.C; Tire Kingdom, Inc. v. Morgan Tire Auto, Inc., 253 F.3d 1332, 1335 (11 th Cir. 2001) ("We likewise conclude that the time limit set out in local rule 7.3 is an `order of the court' that governs this case,"). Even when faced with a motion requesting dismissal of the Complaint and two motions detailing Plaintiff's and Mr. Rodriguez's numerous violations of Court Rules and Orders, and even in light of a Local Rule allowing the Court to grant such motions by default in the absence of a response, Local Rule 7.1.C ("Failure to do so may be deemed sufficient cause for granting the motion by default."), plaintiff and Mr. Rodriguez chose not to file a timely response in which they could explain or contradict any of the facts contained in that response; and perhaps more egregiously, they did not make any attempt to correct the discovery deficiencies outlined in those motions or to request from either the Court or defendant a further extension of time within which to do so. Instead, as is Plaintiff's and Mr. Rodriguez's habit, they waited until well beyond the eleventh hour to take any action, and even when they did take action they merely made yet another half-hearted, inadequate attempt to belatedly comply with Court Rules and Orders.
On July 10, 2003, defendant served that Motion on plaintiff by facsimile.
On July 18, 2003, defendant served that Motion on plaintiff by facsimile.
On July 30, 2003, because plaintiff had not complied with its discovery obligations and numerous Court orders regarding discovery, defendant was forced to file an Agreed Motion to Modify Order Scheduling Mediation (D.E. #27). Because of the outstanding discovery, defendant contended that the mediation conference scheduled for August 6, 2003 — which the Court had ordered the parties to participate in more than four months earlier — "would be premature and not fruitful." On July 31, 2003, the Court granted that Motion, and required the parties to mediate on or before October 10, 2003.
As of August 4, 2003, plaintiff had not responded to defendant's Motion to Enforce June 18, 2003 Order and for Sanctions or defendant's Motion to Dismiss the Complaint with Prejudice as a Sanction, and had not disputed any of the factual representations defendant made in those motions. On that date, the Court entered an Order (D.E. #29) regarding defendant's Motion to Enforce June 18, 2003 Order and for Sanctions, in which the Court: (1) required Plaintiff's wife to appear for deposition on or before August 11, 2003; (2) required plaintiff to produce "the requested documents on or before August 11, 2003"; and (3) imposed financial sanctions against plaintiff, with the amount to be determined in a future Order after defendant submitted its counsel's time sheets and hourly rates. The Court explicitly held: "Failure to comply with this Order may result in dismissal of this cause." The Court did not, however, enter an Order regarding defendant's Motion to Dismiss the Complaint with Prejudice as a Sanction, despite the fact that it had authority to grant the Motion by default pursuant to Local Rule 7.1.C.
On August 5, 2003, the day after the Court signed the Order regarding defendant's Motion to Enforce June 18, 2003 Order and for Sanctions, plaintiff filed its belated one and one-half page Response to that Motion, which, as discussed supra, had been due ten days earlier, on July 24, 2003. Plaintiff provided no reason for the delay in responding and did not seek authorization to file the belated Response. In that Response, plaintiff made for the first time the following claims: (1) Plaintiff's wife was seven months pregnant, which "has caused a considerable delay in obtaining the documents requested by the defendant due to numerous medical appointments for Plaintiff's spouse as well as problems with transportation"; (2) plaintiff was now submitting his supplemental responses to the interrogatories and requests for production; (3) plaintiff "signed social security and IRS authorizations on March 20, 2003, contrary to defendant's inaccurate allegations"; (4) plaintiff "has agreed to re-scheduled the mediation conference . . . due to said delays in obtaining the requested discovery"; and (5) "[de]fendant has not been prejudiced by [p]laintiff s delays in responding to discovery due to matters outside the control of the [p]laintiff." D.E. #30, at 1-2. Plaintiff did not elaborate on, or present evidence to support, his assertions that the delays were "outside [his] control" or that defendant had suffered no prejudice as a result of plaintiff's repeated delays and misconduct; plaintiff did not submit any evidence regarding his wife's alleged medical appointments and transportation problems, or elaborate on how those problems, even assuming they existed, could have caused all of the instances of non-compliance and lack of communication with both opposing counsel and the Court; and plaintiff did not explain why he had not previously brought these issues to the Court's or opposing counsel's attention. In addition to the fact that Plaintiff's excuses are absurd in light of the overwhelming record of misconduct, Plaintiff's failure to address the above-listed issues casts additional doubt on the credibility of his explanations.
On August 18, 2003, defendant filed its Motion to Compel Plaintiff to Appear for a Rule 35, Fed.R.Civ.P. Physical Examination (D.E. #32).
On August 19, 2003, eighteen days after it was due, plaintiff filed his two-page Response to defendant's Motion to Dismiss the Complaint with Prejudice as a Sanction. Once again, plaintiff provided no reason for the delay in responding and did not seek authorization to file the belated Response. Plaintiff repeated several assertions that he had raised in his belated August 5, 2003, Response to defendant's Motion to Enforce June 18, 2003 Order and for Sanctions, and he made new arguments that he had never previously raised, without explaining why he had failed to previously raise them. Plaintiff contended that: (1) his wife was seven months pregnant, which had "caused an unintentional delay in obtaining the documents requested by the defendant due to numerous medical appointments for plaintiff's spouse as well as problems with transportation"; (2) Plaintiff's wife appeared for deposition on August 4, 2003, and plaintiff provided the requested documents on July 31, 2003; (3) plaintiff forwarded signed IRS and social security authorizations to defendant on April 10, 2003; (4) "plaintiff has attended two (2) depositions which have previously scheduled [stet] by the defendant"; (5) "[p]laintiff has agreed to re-set the mediation conference for at least sixty (60) days; (6) "[p]laintiff will agree to continue the trial date on January 23, 2003 until all the discovery is completed"; (7) "[defendant] has not been prejudiced by [p]laintiff s unintentional delays in responding to discovery due to matters outside the control of the plaintiff."
On August 6, 2003, defendant served on Mr. Rodriguez by facsimile its Reply in Support of Motion to Enforce June 18, 2003 Order and for Sanctions, in which it wrote: "[Plaintiff] never did respond to [defendant's] motion to dismiss the complaint with prejudice as sanction [Plaintiff's] untimely and inadequate response to the July 10 motion to compel compliance underscores just why dismissal is the only appropriate sanction. Even when faced with two motions for sanctions, [plaintiff] simply is incapable of responding in accordance with the deadline to do so in Local Rule 7.1.C," D.E. #31, at 2.
Despite receiving that Reply and the Court's August 4, 2003, Order regarding defendant's Motion to Enforce June 18, 2003 Order and for Sanctions, plaintiff incredibly, but predictably, waited an additional thirteen days to file his belated two-page Response to defendant's Motion to Dismiss the Complaint with Prejudice as a Sanction.
Once again, the facts that (1) plaintiff raised these assertions and made these representations for the first time at this late date, and only in (a belated) response to a request for dismissal as a sanction, and (2) plaintiff did not even attempt to explain why he had not previously raised these assertions and made these representations, casts doubt on their credibility.
Plaintiff has demonstrated neither that the delays were "unintentional" nor that they were "outside the control of the plaintiff," and the record belies those assertions.
With regards to Plaintiff's contention that the fact that his wife was seven months pregnant (as of August 19, 2003) caused the delay in obtaining documents, for several reasons the Court does not believe that this caused all of the delays: (1) this would mean that Plaintiff's wife was not yet pregnant when defendant first served the discovery requests on plaintiff, and was only two weeks pregnant when Plaintiff's responses were due; (2) plaintiff and his counsel failed to raise this excuse with the Court or opposing counsel at any time prior to August, 2003, and even agreed to produce the documents on several occasions; (3) even if this had caused delay in producing documents, it does not excuse Plaintiff's and his counsel's other egregious conduct regarding failures to appear at depositions and hearings, walking out of depositions, failing to obey Court Orders and Rules, failing to request extensions of time or to provide any response to the Court or opposing counsel regarding numerous matters, etc.; (4) plaintiff failed to explain how his wife's pregnancy and the alleged transportation problems precluded him from obtaining the documents, particularly when he testified at deposition that some of the documents were in his house and he could obtain them that same day; (5) plaintiff provided no evidence to support his assertion.
With regards to Plaintiff's assertion that he "has attended two . . . depositions which have previously scheduled [stet] by the defendant": (1) defendant was forced to schedule the second deposition because plaintiff walked out of the first deposition after one and one-half hours; (2) defendant failed to show up for one scheduled deposition; (3) plaintiff disobeyed several Court Orders regarding scheduling of his deposition; and (4) plaintiff should have cooperated in the scheduling of his deposition without the necessity of even one Court Order.
Plaintiff's assertions that he "agreed to re-set the mediation conference for at least sixty (60) days" does not dictate against dismissal as a sanction. The mediation conference had to be continued only because of Plaintiff's repeated failures to provide discovery and to obey Court Orders and Rules. Additionally, because the Court had ordered that mediation take place on August 6, 2003, it was up to the Court, not plaintiff, to decide whether to continue the mediation conference.
Plaintiff's assertions that he "will agree to continue the trial date on January 23, 2003 until all the discovery is completed" does not dictate against dismissal as a sanction. First, the trial is scheduled for November of 2003, not January of 2004. Additionally, the Court refused to grant a continuance, and even if it had granted a continuance, a continuance would have been necessary only because of Plaintiff's misconduct.
On August 21, 2003, i.e. four days before the discovery deadline, the undersigned scheduled for August 27, 2003, a hearing regarding defendant's Motion to Dismiss the Complaint with Prejudice as a Sanction. Also on August 21, 2003, defendant filed a Motion (D.E. #35) in which it requested, because of plaintiff's non-compliance with discovery, an extension of the discovery deadline and the pre-trial motion filing deadline. On August 29, 2003, the Court granted defendant's request for extensions of the discovery deadline and pre-trial motion filing deadline. The Court extended those deadlines to September 24, 2003, and October 8, 2003, respectively.
On August 26, 2003, the Court granted defendant's Motion to Compel Plaintiff to Appear for a Rule 35, Fed.R.Civ.P. Physical Examination, and required plaintiff to appear at a September 22, 2003, medical examination.
On August 27, 2003, the Court held a hearing regarding defendant's Motion to Dismiss the Complaint with Prejudice as a Sanction. At that hearing, Mr. Rodriguez offered several excuses for some, but not all, of plaintiff's and his dilatory conduct and violations of Court Orders and Rules. For example, he asserted that there was a two-week delay in taking Plaintiff's deposition because there was an accident at the airport, where plaintiff worked, which required plaintiff to be at the airport. As a preliminary matter, plaintiff has presented no evidence to support his assertion regarding this accident, and the Court does not accept Plaintiff's undocumented representation regarding it. Perhaps more importantly, even accepting as true this account, Mr. Rodriguez and plaintiff attempted to use the "two-week delay" to explain both Plaintiff's need to walk out of the May 7, 2003, deposition, and Plaintiff's failure to appear at the May 27, 2003, deposition. Of course, those dates are more than two weeks apart, and therefore a two-week delay cannot explain them both. Additionally, plaintiff failed to provide any explanation for Plaintiff's failure to previously file any type of motion for enlargement of time or notice explaining that an alleged accident at the airport would keep him from complying with Court Orders; for Plaintiff's failure to inform defendant that plaintiff would be unable to attend the May 27 deposition; or for plaintiff's failure to inform defendant in advance that plaintiff would have to leave the May 7 deposition after one and one-half hours. Further, plaintiff offered absolutely no reason, let alone a reason that constitutes excusable neglect, for his failure to abide by previous Court Orders which required him to appear for deposition by April 7, 2003. At the hearing, Mr. Rodriguez also represented that he "pleaded" with plaintiff not to walk out of the May 7 deposition.
Somewhat inexplicably, Mr. Rodriguez attempted to justify plaintiff s misconduct by stating that every time defendant needs more time to comply with a Court Order or Rule, a continuance is granted. Of course, Plaintiff's misconduct has caused defendant to request those extensions of time. Additionally, the fact that defendant requested extensions of time only highlights the fact that plaintiff never requested extensions of time, but instead simply failed to comply with Orders, Rules, and promises, without even providing a reason for not doing so.
At the hearing, Mr. Rodriguez again contended that Plaintiff's wife's pregnancy caused the delays and non-compliance, again without explaining specifically how or providing any evidence to support his assertions. The Court addressed this assertion supra.
Mr. Rodriguez also stated that defendant could be ready for trial in January. As discussed supra, however, the trial is scheduled for November.
At the hearing, the Court asked Mr. Rodriguez when he and plaintiff had complied with their responsibilities to respond to defendant's requests for production and interrogatories. Mr. Rodriguez stated that plaintiff had been in "partial compliance" thirty to forty-five days after service. That is not true. Plaintiff's first provided incomplete responses on April 10, 2003, approximately ninety-two days after defendant served the interrogatories and requests for production, and approximately sixty-two days after Plaintiff's responses were due. More importantly, and as outlined above, plaintiff only provided those responses after he completely failed to respond to defendant's requests, then promised to comply and failed to do so, then agreed to entry of an Order compelling compliance, then disputed the terms of that Order. Additionally, Plaintiff's compliance on that date was minimal. Plaintiff continued his pattern of failing to comply with discovery obligations, Orders, and Rules until July 31, 2003, when he produced more of the requested documents.
However, even after plaintiff produced documents on July 31, 2003, and as of the August 27, 2003, hearing, plaintiff still had not fully complied with this Court's Orders and his discovery obligations. For example, plaintiff had not produced his medical records or employment records. At the hearing, Mr. Rodriguez stated that plaintiff had no obligation to produce those records. As a preliminary matter, this was the first time that Mr. Rodriguez argued that plaintiff had no obligation to produce those records, despite the fact that his responses were originally due in February, 2003. By failing to timely raise that objection or request an extension within which to raise it, plaintiff waived the objection. Fed.R.Civ.P. 33(b)(4) 34(b). In fact, when plaintiff finally filed his belated responses to these discovery requests, he did not raise any objections to those requests, but instead merely stated that the documents were not in his possession. Plaintiff's June 2, 2003, deposition testimony revealed that he had not even searched his house for some of the documents or asked his wife if they possessed some of the documents, which plaintiff still did not know whether he and his wife possessed. Additionally, on several occasions plaintiff agreed to produce those documents, such as when he agreed to entry of the June 18, 2003, Order. In fact, plaintiff never objected to or appealed from any of the Orders in which the undersigned directed him to produce those records (except to the extent he objected to the timing of production in response to the March 20, 2003, Order), and he never expressed even an informal objection to defendant regarding those records. Instead, plaintiff at various times failed to respond to the requests to produce, agreed to produce the documents, requested from defendant additional time to produce the documents, and consented to the entry of Orders requiring him to produce the documents. In the end, however, plaintiff did not produce them, and Mr. Rodriguez attempted to explain his non-compliance by stating that he had no obligation to produce the documents.
Of course, plaintiff had the obligation to search for those records by February of 2003, when his responses were originally due, and he stated in his April, 2003 interrogatory responses that he was not in possession of such records. As his June 2, 2003, deposition reveals, however, he had not even asked his wife if the records were in his house. Additionally, there is no indication that after the June 2, 2003, deposition, plaintiff even complied with his promise to search for those records, as he did not produce any of the documents to defendant until July 31, 2003.
Thus, contrary to Mr. Rodriguez's statement that plaintiff was in "partial compliance" with the requests for production and interrogatories thirty to forty-five days after service, he was in only partial compliance with those requests, as well as the numerous agreements and Court Orders regarding those requests, almost eight months after their service.
At the hearing, defendant also represented, and plaintiff did not dispute, that plaintiff still had not produced certain years' tax returns that he was required to produce. Even if the Court accepted as true (which, as discussed supra, it does not) Plaintiff's representation that plaintiff submitted signed IRS and social security authorizations to defendant in April of 2003, the Court's Orders required plaintiff to produce the documents identified in the requests for production, i.e., the tax returns and other financial records. Plaintiff offered no reasonable explanation for failing to do so after so many months and so many Orders requiring him to do so.
Additionally, defendant stated that in early July, 2003, defendant had asked Mr. Rodriguez for an independent medical examination of plaintiff, but that Mr. Rodriguez had responded that plaintiff would not be available until September 22, 2003, i.e., exactly four weeks after the discovery deadline and two weeks after the pre-trial motion filing deadline. As discussed supra, the Court has extended the time to conduct the independent medical examination and file pre-trial motions. However, the fact that the Court extended those deadlines because of Plaintiff's and his counsel's misconduct and the prejudice it would cause defendant does not render that misconduct reasonable or negate all of the prejudice to defendant.
Mr. Rodriguez disputed this representation, but for all of the reasons outlined in this Order regarding both Plaintiff's and Mr. Rodriguez's dilatory tactics, failure to comply with discovery, and even their lack of credibility, as well as based on the Court's ability to view Mr. Rodriguez's and defendant's counsel's demeanor at the hearing, the Court accepts as true defendant's counsel's representation of these facts.
DISCUSSION
Defendant moves for dismissal as a sanction, pursuant to Federal Rules of Civil Procedure 37(b)(2)(C) and 41(b). The Court may dismiss an action pursuant to Rule 41(b) "where there is a clear record of delay or willful contempt and a finding that lesser sanctions would not suffice." Kilgo v. Ricks, 983 F.2d 189, 192 (11th Cir. 1993) (internal quotation marks and citations omitted). The Court may dismiss an action pursuant to Rule 37(b)(2)(C) if it finds that: (1) the offending party exhibited a willful or bad faith failure to obey a discovery order; (2) the moving party was prejudiced by that violation; and (3) a lesser sanction would fail to punish the violation adequately and would not ensure future compliance with Court orders. E.g., Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536, 1542 (11th Cir. 1993); Inmuno Vital, Inc. v. Telemundo Group, Inc., 203 F.R.D. 561, 571 (S.D. Fla. 2001) (J. Moore) (entering default judgment based on defendants' discovery abuses and violations of court orders).
"If a party . . . fails to obey an order to provide or permit discovery, . . . the court . . . may make such orders in regard to the failure as are just, and among others the following: . . . (C) An order . . . dismissing the action or proceeding. . . ." Fed.R.Civ.P. 37(b)(2).
"For failure of the plaintiff . . . to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant." Fed.R.Civ.P.41(b).
The facts outlined in this Order exhibit a clear pattern of repeated, willfull disobedience of Court Orders requiring plaintiff to produce discovery and to appear for deposition. Plaintiff and his counsel have not provided any reasonable, credible explanation for their repeated (and continuing) non-compliance. Additionally, plaintiff bears at least some personal responsibility for the non-compliance. Plaintiff walked out of his May 7, 2003, deposition and failed to appear for his May 27, 2003, deposition. At the June 2, 2003, deposition, plaintiff revealed that in his house he had some of the documents that he had failed to produce, and that he had not yet asked his wife whether the couple possessed other documents that he had failed to produce. At that deposition, plaintiff promised to produce some of those documents that evening, but he did not produce them and failed to respond to defendant's subsequent requests, as well as Court Orders, requiring him to do so.
As discussed supra, at the August 27, 2003, hearing, Mr. Rodriguez stated that he pleaded with plaintiff not to leave that deposition.
Defendant has been prejudiced by Plaintiff's repeated disobedience of Court Orders and Rules. Trial is scheduled to commence in November, and defendant still does not have some of the documents that it requested in January and which it needs to prepare for trial. With regards to those documents that plaintiff did produce, defendant was unable to question many witnesses, including plaintiff, regarding them. These repeated violations have "seriously impacted [defendant's] ability to prepare effectively for trial . . .," and have "permeated so many areas of trial preparation." Inmuno Vital Inc. v. Telemundo Group, Inc., 203 F.R.D. 561, 573-74 (S.D. Fla. 2001).
Finally, lesser sanctions would not adequately punish plaintiff or ensure future compliance with Court Orders. The Court imposed financial sanctions in its August 4, 2003, Order, and warned plaintiff: "Failure to comply with this Order may result in dismissal of this Cause." D.E. #29, at 1. Additionally, in its Motion to Dismiss the Complaint With Prejudice as a Sanction, defendant put plaintiff on notice that dismissal was a possibility. See Immuno Vital, Inc., 203 F.R.D. at 572 ("Defendants were certainly on notice of the possibility of this sanction"). Even in the face of those warnings and the previous sanctions Order, however, plaintiff did not timely respond to the Motion to Dismiss, and as of the date of the hearing regarding this matter, plaintiff still had not complied with the Court's discovery Orders. Those facts, coupled with Plaintiff's repeated non-compliance, demonstrate that no additional, lesser sanctions would compel Plaintiff's compliance with future Orders or adequately punish plaintiff.
RECOMMENDATION
For the foregoing reasons, it is recommended that the Court GRANT Defendant's Motion to Dismiss the Complaint with Prejudice as Sanction (D.E. #26), and dismiss this action with prejudice pursuant to Federal Rules of Civil Procedure 37(b)(2)(C) and 41(b), as well as the Court's inherent authority.
It is also recommended that the Court sanction plaintiff and his counsel, Jorge A. Rodriguez, jointly and severally in the amount of $1,117.50, in accordance with the Court's August 4, 2003, Order, and Emmet J. Schwartzman, Esq.'s, uncontroverted Affidavit (D.E. #38). The Court finds that both the hourly rates that Mr. Schwartzman seeks and the hours that he expended are reasonable.
The parties have ten (10) days from service of this Report and Recommendation to file written objections, if any, with the Honorable Donald L. Graham, United States District Judge. See 28 U.S.C. § 636. Failure to file timely objections may bar the parties from attacking on appeal the factual findings contained herein. See LoConte v. Dugger, 847 F.2d 745, 750 (11th Cir. 1988).
RESPECTFULLY SUBMITTED at the United States Courthouse, Miami, Florida this 8th day of October, 2003.