Opinion
For Patricia Gonzalez, Lesha Rosario, Plaintiffs: Chelsea A. Lewis, LEAD ATTORNEY, Chris Kleppin, Glasser & Kleppin, P.A., Plantation, FL.
For Patricia Gonzalez, Counter Defendant: Chelsea A. Lewis, LEAD ATTORNEY, Chris Kleppin, Glasser & Kleppin, P.A., Plantation, FL.
For James Batmasian, individually doing business as Investments Limited, Marta Batmasian, individually doing business as Investments Limited, Defendants: Roderick Flynn Coleman, LEAD ATTORNEY, Coleman & Associates, Boca Raton, FL.
For Marta Batmasian, individually, James Batmasian, individually, Mark Buckstein, Counter Claimants: Roderick Flynn Coleman, LEAD ATTORNEY, Coleman & Associates, Boca Raton, FL.
ORDER DENYING DEFENDANTS' MOTION TO DISMISS ROSARIO'S CLAIM
DONALD M. MIDDLEBROOKS, UNITED STATES DISTRICT JUDGE.
THIS CAUSE comes before the Court on Defendants James and Marta Batmasian's (" Defendants" ) Motion to Dismiss Claim of Plaintiff Lesha Rosario (" Motion" ), filed on February 27, 2017. (DE 50).Plaintiff Lesha Rosario (" Rosario" ) filed a Response on March 14, 2017. (DE 82). Defendants seek to dismiss Rosario's claim as a sanction for failing to appear at her scheduled deposition and to provide alternative dates. Rosario responds that Defendants' Motion should be denied for failure to confer and because the Parties agreed to reschedule Rosario's deposition. For reasons stated below, Defendants' Motion is denied.
A. Rule 37(d)'s Conferral Requirement
The Court may deny a motion for failure to comply with the local rules, including failure to make good faith efforts to confer. See, e.g., Reese v. Herbert, 527 F.3d 1253, 1264 (11th Cir. 2008) (noting district court could have denied motion for failure to comply with the local rules, rather than addressing it on the merits). However, Local Rule 7.1 's conferral requirement does not apply to motions to " involuntarily dismiss an action." S.D. Fla. L.R. 7.1. In addition, by its plain language, Rule 37(d)(1)(B)'s requirement that a movant certify it has conferred in good faith applies only to a " motion for sanctions for failing to answer or respond," not for failing to attend a deposition. Fed. R. Civ. 37(d)(1)(B); Black Horse Lane Assoc., L .P. v. Dow Chem. Corp., 228 F.3d 275, 302 (3d Cir. 2000) (holding certification requirement does not apply to motion for sanctions for failing to attend a deposition), Therefore, I reject Rosario's argument that 1 should deny Defendants' Motion for failure to confer.
B. Failure to Appear at a Deposition
" Rule 37 empowers the district court to compel compliance with Federal discovery procedures through a broad choice of remedies and penalties, including dismissal with prejudice." Griffin v Aluminum Co. of Am., 564 F.2d 1171 1172 (5th Cir. 1977). Rule 37(d) provides that " [t]he court, . . . may, on motion, order sanctions if . . . a party . . . fails, after being served with proper notice, to appear for that person's deposition." Fed.R.Civ.P. 37(d)(1)(A)(i). Sanctions may be imposed even in the absence of a prior court order compelling a party to attend a deposition. Fed. R. Civ. P 37(d)(1)(A)(i). However, " failure to appear' for a deposition is strictly construed and Rule 37(d) sanctions apply only when a deponent 'literally fails to show up for a deposition session." ' R. W Int'l Corp. v. Welch Foods, Inc., 937 F.2d 11, 15 (1st Cir. 1991) (citing Salahuddin v. Harris, 782 F.2d 1127, 1131 (2d Cir. 1986); SEC v. Research Automation Corp., 521 F.2d 585, 588-89 (2d Cir. 1975)).
The Eleventh Circuit has recognized the case law of the former Fifth Circuit prior to 1981 as its governing body of precedent. Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981).
" Sanctions may include any of the orders listed in Rule 37(b)(2)(A)(i)-(vi)." Fed.R.Civ.P. 37(d)(3). The listed sanctions include " dismissing the action or proceeding in whole or in part." Fed.R.Civ.P. 37(b)(2)(A)(v). Nevertheless, " [d]ismissal of a complaint with prejudice is such a drastic remedy that a district court should apply it only in extreme circumstances." Griffin, 564 F.2d at 1172 (citations omitted) (finding district court abused its discretion by dismissing claim for deponent's single unexcused failure to appear for deposition and to respond to subsequent letter asking for an explanation); see also Wanderer v. Johnston, 910 F.2d 652, 655-56 (9th Cir. 1990) (citing Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976)) (" The (Supreme) Court in National Hockey League granted district courts considerable discretion to impose the extreme sanction of dismissal or default where there has been flagrant, bad faith disregard of discovery duties." ).
The emails provided by Defendants show that Rosario's counsel asked Defendants' counsel to reschedule Rosario's deposition, albeit the day before the deposition. (DE 50-1 at 1). In response, Defendants' counsel asked what date Rosario would be available, and Rosario's counsel said that he would provide a date. (DE 50-2 at 1). This exchange shows that the Parties agreed to reschedule Rosario's deposition, not that she failed to appear. See, e.g., McFadden v. Ballard Spahr, Andrews, & Ingersoll, LLP, 243 F.R.D. 1, 8 (D.D.C. 2007) (denying motion for sanctions for failure to appear at deposition when deponent notified counsel the day before that she could not attend).
Although Defendants argue that Rosario's counsel never provided an alternate date for her deposition, the email exchanges show that Defendants' counsel sent only one follow-up email asking for a date for Rosario's deposition (DE 50-3 at 2), to which Rosario's counsel responded, I have come up with a new schedule . . . . Please let me know if it is acceptable." (DE 50-3 at 1). Defendants provide no evidence of the Parties' communications after this date, including whether dates for Rosario's deposition were proposed, and Rosario states that the Parties agreed to allow for depositions outside the discovery period. Accordingly, it is possible that Rosario did provide alternate dates, and even if she did not, I find no evidence of the type of extreme circumstances" necessary to justify the sanction of dismissal. See, e.g., Amobi v. D. C. Dep't of Corr., 257 F.R.D. 8, 11 (D.D.C. 2009) (finding no evidence of bad faith where counsel informed movant of seheduling contlict before deposition, even though he failed to provide alternative dates).
Defendants also argue that Rosario attended mediation telephonicallye . The Court notes that Rosario requested leave of the Court to appear telephonically immediately before mediation, and therefore the Court did not have the opportunity to rule on Rosario's motion before mediation. (DE 38). I do not find that Rosario's last minute motion and telephonic appearance at mediation establish flagrant bad faith disregard of discovery duties." See Nat'l Hockey League, 427 U.S. at 643.
Instead of or in addition to the sanctions listed in Rule 37(b)(2)(A)(i)-(vi), " the court must require the party failing to act . . . to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust." Fed.R.Civ.P. 37(d)(3). Defendants do not request monetary sanctions in the alternative to dismissal of Rosario's claim. Furtherm ore, in light of the Parties' decision to reschedule the deposition, sanctioning Rosario for failing to appear would be unjust. Accordingly, it is hereby
ORDERED and ADJUDGED that Defendants' Motion (DE 50) is DENIED.
DONE AND ORDERED.