See, e.g., United States v. International Business Machines Corp., 79 F.R.D. 412, 414 (S.D.N.Y. 1978) (citing 8 C. Wright A. Miller, Federal Practice and Procedure, § 2035). Courts have found "substantial justification" for nonattendance on the basis of the deponent's serious illness, Hyde Drath v. Baker, 24 F.3d 1162, 1171-72 (9th Cir. 1994), and inconvenience and expense of traveling, Speidel v. Bryan, 164 F.R.D. 241, 244 (D.Or. 1996). On the other hand, the courts have rejected such excuses as withdrawal of local counsel, Lew v. Kona Hospital, 754 F.2d 1420, 1426-27 (9th Cir. 1985), deponent's discharge of counsel, East Boston Ecumenical Community v. Mastrorillo, 133 F.R.D. 2, 3-4 (D.Mass. 1990), military duty with no leave time available, Turner v. Anderson, 376 So.2d 899, 901 (Fla.Ct.App. 1979), and inadvertence, T.B.I. Industrial Corp. v. Emery Worldwide, 900 F. Supp. 687, 694 (S.D.N.Y. 1995).In re Air Crash Disaster at Detroit Metropolitan Airport on Aug. 16, 1987, 130 F.R.D. 627, 630 (E.D.Mich. 1989); see also East Boston Ecumenical Community v. Mastrorillo, 133 F.R.D 2, 3-4 (D.Mass. 1990) ("[A] party cannot unilaterally decide that he or she is not going to attend a duly-noticed deposition without at least applying for a protective order before the time set for the deposition.")
More significantly, the trial court's imposition of the ultimate sanction—the striking of Prater's pleadings and entry of final judgment in favor of Defendants—was not commensurate with the violation at issue. Turner v. Anderson, 376 So.2d 899 (Fla. 2d DCA 1979) (holding that “the severity of the sanction must be commensurate with the violation.”) See also Mercer v. Raine, 443 So.2d 944 (Fla.1983) (finding “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.
While it is within the discretion of the trial court to impose sanctions, those sanctions must be commensurate with the violation. See Turner v. Anderson, 376 So.2d 899 (Fla. 2d DCA 1979). Thus, for the reasons stated, the trial court abused its discretion in striking the Thomases' pleadings and affidavit. We, therefore, reverse the resulting summary judgment.
etion for a trial court to impose the sanction of dismissal upon a party who does not have the present ability to comply with the court's discovery orders. See Arviv, 528 So.2d at 140 (finding that the trial court abused its discretion in dismissing the plaintiff's case where the plaintiff had no present means with which to comply with the discovery order); Garcia Fleet Corp. v. Martinez, 483 So.2d 502, 503 (Fla. 3d DCA 1986) (holding that the trial court abused its discretion by entering a dismissal where the plaintiffs were at sea when the trial court granted its discovery order and were therefore unavailable to be re-noticed for their depositions); Robinson v. Allstate Ins. Co., 417 So.2d 778, 778 (Fla. 3d DCA 1982) (holding that dismissal of the plaintiff's complaint was too drastic a remedy where plaintiff "had difficulty getting to the United States from Jamaica, the deposition was set after the cut-off date for completing discovery, and it was only eleven days prior to trial"); Turner v. Anderson, 376 So.2d 899, 901 (Fla. 2d DCA 1979) (holding that dismissal is not warranted where the plaintiff was unable to attend court-ordered depositions because the military would not grant him leave time to comply with the court's orders). Consequently, because the record supports that Bonilla did not have the present ability to comply with the court's discovery orders as they came due, the trial court abused its discretion in dismissing Bonilla's initial lawsuit against Apollo.See Arviv; Garcia Fleet Corp.; Robinson; Turner. Surely, a lesser, more appropriate sanction could have been fashioned by the trial court.
Accordingly, we turn to the question of whether the severity of the sanctions imposed is commensurate with the discovery violation. See, e.g., Beauchamp v. Collins, 500 So.2d 294 (Fla. 3d DCA 1986), review denied, 511 So.2d 297 (Fla. 1987); Turner v. Anderson, 376 So.2d 899 (Fla. 2d DCA 1979). In light of the trial court's findings, we are unable to perceive any abuse of discretion in the order granting a new trial on the amount of punitive damages.
There are also many cases in which appellate courts have reversed trial courts for imposing the ultimate sanction of dismissal with prejudice when that penalty was not commensurate with the offense. Beasley; Lifeguard Corp. v. U.S. Home Corp., 429 So.2d 94 (Fla. 2d DCA 1983); Tri Star Invs., Inc. v. Miele, 407 So.2d 292 (Fla. 2d DCA 1981); Turner v. Anderson, 376 So.2d 899 (Fla. 2d DCA 1979); Ramos v. Sanchez, 375 So.2d 51 (Fla. 2d DCA 1979); In re Ulm's Estate, 345 So.2d 1099 (Fla. 2d DCA 1977); Clay; Livingston v. State, Dep't of Corrections, 481 So.2d 2 (Fla. 1st DCA 1985); Stresscon Int'l, Inc. v. Ralph Merritt Dev. Corp., 368 So.2d 384 (Fla. 3d DCA), cert. denied, 378 So.2d 347 (Fla. 1979). Especially in this era of "time standards," I fully empathize with the trial court's frustration when a lawyer allows a case to languish.
The severity of the sanction must be commensurate with the violation. Summit Chase Condominium Ass'n v. Protean Investors, 421 So.2d at 564; Turner v. Anderson, 376 So.2d 899 (Fla. 2d DCA 1979). In the instant case, we do not find evidence of a deliberate and willful disregard for the trial court's authority.
Santuoso v. McGrath Associates, Inc., 385 So.2d 112 (Fla. 3d DCA 1980). The severity of the sanction must be commensurate with the violation, Turner v. Anderson, 376 So.2d 899 (Fla. 2d DCA 1979), and dismissal of an action should be imposed upon a party only in extreme situations for flagrant or aggravated cases of disobedience. Travelers Insurance Company v. Rodriguez, 357 So.2d 464 (Fla. 2d DCA 1978). As the dissent notes, plaintiff's counsel did offer to supplement the reports furnished by providing, at a later time, any information not included therein.
While it is within the discretion of the trial court to impose sanctions, those sanctions must be commensurate with the violation. See Turner v. Anderson, 376 So.2d 899 (Fla. 2d DCA 1979). Here, Rule 1.380(a)(4) specifically limits the award of costs to those "reasonable expenses incurred in obtaining the order."
On the merits of this appeal, we agree the trial court abused its discretion in imposing the ultimate sanction of dismissal in the absence of a record foundation showing that the appellant's failure to appear at the deposition was either willful or in bad faith. See Walker v. Senn, 340 So.2d 975 (Fla. 1st DCA 1976); Turner v. Anderson, 376 So.2d 899 (Fla.2d DCA 1979); Santuoso v. McGrath Associates, Inc., 385 So.2d 112 (Fla.3d DCA 1980); Stowe v. Shults, 379 So.2d 682 (Fla.2d DCA 1980); Alexander v. Alterman Transport Lines, Inc., 387 So.2d 422 (Fla. 1st DCA 1980); Ferrante v. Waters, 383 So.2d 749 (Fla. 4th DCA 1980). Reversed and remanded with directions that the cause be reinstated.