Cuomo v. Phoenix Emergency Medicine of Broward, LLC

MOTION to Compel Plaintiff's Deposition and for Sanctions

S.D. Fla.March 11, 2019

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA FORT LAUDERDALE DIVISION Case No.: 17-61754-CIV-Dimitrouleas/Snow DOMENICK A. CUOMO, Plaintiff, v. PHOENIX EMERGENCY MEDICINE OF BROWARD, LLC, Defendant. ___________________________________/ DEFENDANT’S MOTION TO COMPEL PLAINTIFF’S DEPOSITION AND FOR SANCTIONS Defendant, Phoenix Emergency Medicine of Broward, LLC (“PEMB”), hereby moves to compel Plaintiff’s, Domenick A. Cuomo (“Plaintiff”), deposition and for sanctions against Plaintiff pursuant to Federal Rules of Civil Procedure 30(d)(2) and 37 due to his failure to appear for deposition twice and for engaging in bad faith discovery tactics. After having agreed to extend the discovery deadline through March 8, 2019 so that the parties could exchange pertinent documents and take each other’s deposition, after Plaintiff failed to appear for his first scheduled deposition, and after having received PEMB’s documents and taken PEMB’s corporate representative’s deposition on March 6, 2019, Plaintiff waited until three hours before his duly noticed deposition, on the discovery cutoff date, to notify PEMB that he will not be appearing for his deposition. Unfortunately, instead of cooperating with PEMB to exchange discovery, Plaintiff has resorted to “gotcha” tactics in order to effectively deny PEMB basic discovery on Plaintiff’s own claim, which has, in turn, prejudiced PEMB in not being able to adequately Case 0:17-cv-61754-WPD Document 19 Entered on FLSD Docket 03/11/2019 Page 1 of 9 2 prepare a defense in this action. This behavior is violative of the Federal Rules of Civil Procedure, lacks professionalism, and should not be allowed by this Court. Therefore, PEMB respectfully requests that this Court enter an order compelling Plaintiff to appear for his deposition and sanctioning him to pay fees and costs incurred for his failure to appear at his second noticed deposition, fees and costs incurred in the filing of this Motion, and fees and costs incurred in the taking of his deposition, as compelled by this Court. In support hereof, PEMB states as follows: Factual Background 1. Plaintiff brought this action against PEMB alleging that PEMB violated the Telephone Consumer Protection Act (“TCPA”). [ECF No. 1]. On November 6, 2017, PEMB filed its Answer and Affirmative Defenses to Plaintiff’s Complaint. [ECF No. 7]. 2. On December 7, 2017, the Court entered its Order Setting Trial Date & Discovery Deadlines, Referring Case to Meditation & Referring Discovery Motions to United States Magistrate Judge (“Scheduling Order’). [ECF No. 10]. The Scheduling Order had a discovery cutoff date of February 6, 2019.1 3. On January 23, 2019, Plaintiff unilaterally set the deposition of PEMB’s corporate representative to take place in Colorado on February 6, 2019. See Notice of Taking Deposition Pursuant to Fed. R. Civ. P. 30(b)(6) attached as Exhibit A. PEMB advised Plaintiff that it would look for the appropriate person who could testify to the areas of inquiry on the Notice and advise as to availability and location for deposition. 1 The Scheduling Order states that the discovery cutoff date is February 6, 2018, but this is a typographical error, given that the deadline to amend pleadings is November 8, 2018 and substantive pretrial motions are due by March 8, 2019. The discovery deadline should be February 6, 2019. Case 0:17-cv-61754-WPD Document 19 Entered on FLSD Docket 03/11/2019 Page 2 of 9 3 4. On January 31, 2019, PEMB asked Plaintiff if he would agree to a short extension of time in order to mutually coordinate the depositions of PEMB’s corporate representative and Plaintiff, which would otherwise need to be scheduled for February 5, 2019, prior to the discovery cutoff date. See correspondence from PEMB’s counsel to Plaintiff’s counsel dated January 31, 2019 attached as Exhibit B. 5. On the same day, PEMB advised Plaintiff that it was not available for deposition on February 6, 2019. See Exhibit B. 6. After receiving no response from Plaintiff regarding his availability for deposition, PEMB noticed Plaintiff for deposition on February 5, 2019 in Miami. See correspondence from PEMB’s counsel to Plaintiff’s counsel attaching the Notice of Taking Plaintiff’s Deposition Duces Tecum attached as Exhibit C. 7. On February 5, 2019, Plaintiff failed to appear for deposition. See Certificate of Non-Appearance dated February 5, 2019 attached as Exhibit D. 8. Plaintiff then proposed that a short extension of time would be necessary to exchange key documents and to take the parties’ depositions. The parties anticipated that an early settlement may be possible following the exchange of key documents and agreed that depositions should follow in the event that an early settlement was not possible. Specifically, PEMB and Plaintiff agreed to exchange documents by February 15, 2019 and February 20, 2019, respectively, and to be deposed by February 28, 2019 and March 7, 2019, respectively. Accordingly, on February 6, 2019, the parties jointly moved to extend the discovery deadline to March 8, 2019 in order to complete outstanding depositions and discovery and attempt an early settlement, if possible. [ECF Nos. 16 and 17]. On February 7, 2019, the Court entered an Order Case 0:17-cv-61754-WPD Document 19 Entered on FLSD Docket 03/11/2019 Page 3 of 9 4 Granting Amended Joint Motion for Extension of Discovery Deadline. [ECF No. 18]. See correspondence between counsel for the parties dated February 6, 2019 attached as Exhibit E. 9. The parties exchanged documents and discussed settlement. By March 4, 2019, it was apparent that the parties would not be able to reach an early settlement. Although the originally agreed upon date of February 28, 2019 by when PEMB’s deposition was to take place had passed while the parties were still attempting to negotiate a settlement, per the parties’ understanding and general agreement that depositions were to occur after document production if a settlement were not reached, Defendant diligently looked for a deponent it could offer who had the most knowledge of the areas of inquiry in Plaintiff’s 30(b)(6) deposition notice. PEMB advised Plaintiff that it had no one with direct knowledge of PEMB’s calling practices but would work to find the best deponent, and informed Plaintiff that it would be setting Plaintiff’s deposition for March 8, 2019. See correspondence between counsel for the parties dated March 4, 2019 and March 5, 2019 attached as Exhibit F. PEMB found a deponent and made its corporate representative available for deposition in short order. Id. 10. On March 5, 2019, Plaintiff Noticed PEMB’s corporate representative for deposition on March 6, 2019. See Plaintiff’s Notice of Taking Deposition Pursuant to Fed. R. Civ. P. 30(b)(6) dated March 5, 2019 attached as Exhibit G. On the same day, PEMB re-noticed Plaintiff for deposition to occur on March 8, 2019, as it had previously informed Plaintiff it would do. See Re-Notice of Taking Plaintiff’s Deposition Duces Tecum dated March 5, 2019 and attached as Exhibit H. 11. On March 6, 2019, Plaintiff took the telephonic deposition of Plaintiff’s corporate representative. Case 0:17-cv-61754-WPD Document 19 Entered on FLSD Docket 03/11/2019 Page 4 of 9 5 12. On March 8, 2019, just three hours before the duly noticed deposition of Plaintiff, Plaintiff informed PEMB that he was not appearing for his deposition and was “unwilling to deviate from the agreement on discovery which required his deposition to be held no later than March 7th and to be held in Fort Lauderdale…. [And] [t]he deposition notice violates the local rule requiring 5 days advance notice prior to taking the deposition.” See correspondence between parties’ counsel dated March 8, 2019 attached as Exhibit I. This, of course, was despite the fact that Plaintiff had already deviated from the parties’ agreement in order to take PEMB’s corporate representative’s deposition on March 6, 2019, which out-of-state deposition was noticed less than 14 days prior to it taking place, as provided for by Local Rule 26.1(h). Plaintiff had not informed PEMB of his intentions at any point prior to his deposition—not when PEMB informed Plaintiff on March 5, 2019 (prior to PEMB’s corporate representative’s deposition) that it would notice his deposition for March 8, 2019, and not at PEMB’s corporate representative’s deposition on March 6, 2019. Plaintiff also did not object to the Re-Notice of Taking Plaintiff’s Deposition Duces Tecum, did not file a motion for protective order, or much less obtain a protective order from the Court. 13. Plaintiff failed to appear for his deposition on March 8, 2019. See Certificate of Non-Appearance dated March 8, 2019, attached as Exhibit J. 14. Plaintiff’s last-minute, ill-reasoned pretext for failing to appear for deposition, in violation of the spirit of the parties’ agreement, the Federal Rules of Civil Procedure, and this Court’s rules, was a strategic ploy that used the parties’ agreement to, on the one hand, obtain discovery from PEMB, while, on the other hand, foreclose PEMB from obtaining discovery on Plaintiff’s own claim. Simply put, Plaintiff has acted in bad faith and this behavior should not be tolerated by this Court. Case 0:17-cv-61754-WPD Document 19 Entered on FLSD Docket 03/11/2019 Page 5 of 9 6 Argument Plaintiff should be compelled to appear for deposition in Miami, and should be appropriately sanctioned, because he failed to appear for his duly noticed deposition and did not seek a protective order prior to his failing to appear. Federal Rule of Civil Procedure 37(d)(1)(A) states in pertinent part: The 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….(Emphasis added). Rule 37(d)(2) continues: 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). (Emphasis added). Moreover, to the extent that Plaintiff may argue that PEMB’s Re-Notice of Taking Plaintiff’s Deposition was somehow improper or objectionable (which argument Plaintiff would be making with unclean hands and has waived through his own actions with respect to PEMB’s deposition), Plaintiff was required to seek a protective order rather than simply not appearing. “If counsel for [the party] did not want to produce him for his deposition the proper course of action would be to file a motion for protective order with the Court, as provided in Rule 37(d)(2).” Miller v. Dyadic Int’l, Inc., 2008 WL 2116590, at *2 (S.D. Fla. May 20, 2008). Similarly, although Plaintiff’s deposition was properly noticed in Miami (within the Southern District of Florida, to which Plaintiff availed himself)2, to the extent Plaintiff disagreed 2 The general rule is that the depositions of a plaintiff must occur in the district where the action is pending. See Wright & Miller, Fed. Prac. & Proc., §2112 (3d. Ed.) (“Ordinarily, plaintiff will be required to make himself or herself available for examination in the district in which suit was brought”); Tarzia v. Am. Sec. Ins. Co., 282 F.R.D. 669, 671 (M.D. Fla. 2012) (having chosen to be a plaintiff in the Middle District of Florida, plaintiff was required to submit to deposition in the District even though she resided in Kentucky); Levick v. Steiner Transocean, Ltd., 228 Case 0:17-cv-61754-WPD Document 19 Entered on FLSD Docket 03/11/2019 Page 6 of 9 7 as to the place of his deposition (of which he had prior notice), it was incumbent upon Plaintiff to seek a protective order prior to the deposition. See Id. at *1.; Loosley v. Stone, 15 F.R.D. 373, 375 (S.D. Ill. 1954) (a motion for a protective order changing the place of a deposition must be seasonably made and a party or witness who fails to attend at the time and place stated in the notice may not subsequently move to change the place of the examination); In re: Steffen, 433 B.R. 879, 883 (Bankr. M.D. Fla. July 14, 2010) (“A failure to appear for deposition is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for protective order”); Degenhart, M.D. v. Arthur State Bank, 2011 WL 3651312, *1, n. 3 (S.D. Ga. Aug. 8, 2011) (recognizing that absent a protective order or an order staying a deposition, the party, including its officers or Rule 30(b)(6) deponents, are required to appear for deposition). Any such objection has been waived due to Plaintiff’s failure to seek a protective order. See Berman v. Kafka, 2011 WL 4356156, *1 (M.D. Fla. Sept. 19, 2011) (a failure to move for a protective order before the discovery due date waives any objections that might be available and precludes objection later); Falcon Farms, Inc. v. R.D.P. Floral, Inc., 2008 WL 2950152, *4 (S.D. Fla. July 31, 2008) (by failing to move for a protective order, defendant waived the argument that because plaintiff noticed the deponent by name and not as corporate representative, the court could not order them to appear in Florida for deposition). Therefore, Plaintiff must now produce himself for deposition in Miami, regardless of any previous objections he could have raised. F.R.D. 671, 672 (S.D. Fla. 2005) (“The general rule is that a plaintiff who brings suit in a particular forum may not avoid appearing for examination in that forum”); Herstgaard v. Cherryden, LLC, 2009 WL 2191862, *2 (N.D. Fla. July 22, 2009) (“the general rule is that a plaintiff must make herself available for deposition in the district where the action is pending”). Case 0:17-cv-61754-WPD Document 19 Entered on FLSD Docket 03/11/2019 Page 7 of 9 8 Conclusion For the reasons set forth herein, this Court should enter an order in the form attached as Exhibit K: (1) compelling Plaintiff to appear for deposition in Miami within ten (10) days for willfully failing to appear for his duly noticed deposition and failure to properly obtain a protective order; and (2) sanctioning Plaintiff for his bad faith behavior and abuse of the discovery rules, including requiring that he pay PEMB’s fees and costs associated with his March 8, 2019 deposition at which he failed to appear, the filing of this Motion, and Plaintiff’s forthcoming deposition that the Court should compel. Certificate of Good Faith Conference On March 8, 2019, following Plaintiff’s failure to appear at deposition, counsel for PEMB conferred with counsel for Plaintiff regarding the issues raised in this Motion via email. Respectfully submitted, this 11th day of March, 2019. GREENBERG TRAURIG, P.A. 333 S.E. 2nd Avenue, 44th Floor Miami, Florida 33131 Telephone: 305-579-0500 Facsimile: 305-579-0717 and 401 East Las Olas Boulevard, Suite 2000 Fort Lauderdale, Florida 33301 Telephone: (954) 765-0050 Facsimile: (954) 765-1477 /s/ Evelyn A. Cobos PAUL RANIS Florida Bar No. 64408 EVELYN A. COBOS Florida Bar No. 92310 Primary email: ranisp@gtlaw.com cobose@tgtlaw.com Secondary email: rosr@gtlaw.com abrahamd@gtlaw.com Service Email: flservice@gtlaw.com Case 0:17-cv-61754-WPD Document 19 Entered on FLSD Docket 03/11/2019 Page 8 of 9 9 CERTIFICATE OF SERVICE I HEREBY certify that on this 11th day of March, 2019, I electronically filed the foregoing document with the Court using CM/ECF. I also certify that the foregoing document is being served on this day on all counsel of record or pro se parties identified on the attached Service List, 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/ Evelyn A. Cobos EVELYN A. COBOS SERVICE LIST Donald A. Yarbrough, Esq. Attorney for Plaintiff 2000 E Oakland Park Blvd., Suite 105 Post Office Box 11842 Fort Lauderdale, Florida 33339 Telephone: (954) 537-2000 Facsimile: (954) 566-2235 don@donyarbrough.com ACTIVE 42148832v2 Case 0:17-cv-61754-WPD Document 19 Entered on FLSD Docket 03/11/2019 Page 9 of 9