Davis v. Mina

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

MICHAEL DAVIS,

Plaintiff,

v. Case No: 6:23-cv-72-RBD-EJK

JOHN W. MINA, MICHAEL

FULLER, TODD MAHONEY, and

RANDOLF HERSCHELMAN,

Defendants.

ORDER

This cause comes before the Court on Defendants’ Motion for Sanctions (Doc.

54) (the “Motion”), filed November 6, 2023. Therein, Defendants request dismissal of

this lawsuit as a sanction pursuant to Federal Rule of Civil Procedure 37, for Plaintiff’s

failure to appear at his scheduled deposition on two separate occasions. (Doc. 54 at 4.)

Plaintiff did not file a response in opposition to the Motion. The Motion is now ripe

for review. For the reasons stated below, the Motion is due to be denied.

I. BACKGROUND

On January 31, 2023, Michael Davis (“Plaintiff”) initiated this action against

Orange County Sheriff John W. Mina and Deputies Michael Fuller, Todd Mahoney,

and Randolf Herschelman, in their individual capacities (“Defendants”), asserting

claims for violations of his civil rights under 42 U.S.C. § 1983 and state law battery

under Florida Statute § 768.28(9)(a). (Doc. 1 at ¶¶ 24, 36, 41.) The Court entered a

Case Management and Scheduling Order (“CMSO”), which set forth certain

requirements and deadlines before a jury trial scheduled for the May 6, 2024 trial term.

See (Doc. 33.) According to the CMSO, November 3, 2023, was the deadline to

complete discovery. (Id. at 3.) The CMSO makes clear that the Court “will strictly

enforce the deadlines set in this CMSO. Such deadlines are effective unless modified

by written Order.” (Id.) Plaintiff’s Unopposed Time-Sensitive Motion to Extend the

Expert Disclosure and Discovery Deadline (Doc. 41) was denied on August 23, 2023.

(Doc. 42.)

On October 17, 2023, Plaintiff did not show up for his deposition scheduled to

occur that day. (Doc. 54 at 2.) On the day of the deposition, Plaintiff informed his

attorney, after the deposition was scheduled to begin, that “he did not have

transportation from Brevard County.” (Id.) Defendants chose to reschedule the

deposition to occur on November 2, 2023. (Id.) On November 2, 2023, Plaintiff, again,

failed to appear for his scheduled deposition. (Id.) The next day, Plaintiff’s attorney

informed defense counsel he had since become aware that Plaintiff failed to appear for

the deposition because he was in jail.1 (Id.) Defendants now seek sanctions against

Plaintiff in the form of dismissal of this action due to Plaintiff’s failure to attend these

two depositions. (Id. at 4.)

1 According to Brevard County, Florida public records, Plaintiff was arrested on

October 30, 2023, in Cocoa Beach, Florida. See Arrest Aff., Florida v. Davis, No. 05-

2023-CF-052472 (Fla. Cir. Ct. Oct. 30, 2023). On November 4, 2023, Plaintiff was

released on a $5,000.00 surety bond. Id.

II. STANDARD

A court may, on motion, order sanctions if a party, “after being served with

proper notice,” fails to appear for his deposition. Fed. R. Civ. 37(d)(1)(A)(i). “A

deposition is properly noticed when the party seeking to depose a person by oral

questions, provides such person with a reasonable written notice stating, ‘the time and

place of the deposition and, if known, the deponent’s name and address.’” Pinkston v.

Univ. of S. Fla. Bd. of Trustees, No. 8:18-cv-2651-T-33SPF, 2019 WL 4254471 at *4

(M.D. Fla. Sept. 9, 2019) (citing Fed. R. Civ. P. 30(b)(1)). The party seeking sanctions

under Rule 37 bears the burden of establishing that an opposing party failed to comply

with Rule 26 or a discovery order. See DeepGulf Inc. v. Moszkowski, 333 F.R.D. 249, 253

(N.D. Fla. 2019). The “drastic sanctions of dismissal or default are warranted only on

a clear record of delay or willful contempt.” Cent . Fla. Council Boy Scouts of Am., Inc. v.

Rasmussen, No. 6:07-cv-1901-Orl-19GJK, 2009 WL 2781540 at *5 (M.D. Fla. Aug. 28,

2009). Discovery violations that result from negligence, misunderstanding, or the

party's inability to comply with an order or rule warrants a less severe sanction. See

Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536, 1542 (11th Cir. 1993); Rodriguez v.

Am. K-9 Detention Services, LLC, No. 6-15-cv-23-Orl-37KRS, 2016 WL 1475080 at *5

(M.D. Fla. Apr. 15, 2016).

A district court's power to impose dismissal or default judgment against a non-

compliant party, therefore, should be used only as a last resort. Malautea, 987 F.2d at

1542. (“[T]he severe sanction of a dismissal or default judgment is appropriate only as

a last resort, when less drastic sanctions would not ensure compliance[.]”). This is due

to the strong policy in favor of courts adjudicating cases on their merits. Perez v. Wells

Fargo N.A., 774 F.3d 1329, 1342 (11th Cir. 2014) (noting the “strong preference that

cases be heard on the merits”).

III. DISCUSSION

Although the Court considers the Motion to be unopposed because Plaintiff

never filed a response,2 Defendants, as the moving party, bear the initial burden of

showing that Plaintiff was served with proper notice to attend the October 17 and

November 2 depositions. See Federal Rule of Civil Procedure 37(d)(1)(A)(i). Since

Defendants failed to include the notices of deposition as exhibits with the Motion, the

Court cannot analyze whether Defendants properly served Plaintiff with the notices of

deposition. See Torres v. Nike, No. 6-20-cv-350-CEM-LRH, 2021 WL 8894349 at *1

(M.D. Fla. Nov. 17, 2021) (finding proper notice requirement was met when plaintiff

did not respond in opposition to the motion and defendant had attached to the motion

as exhibits: 1) the notice of deposition stating the time and place of the deposition,

which included a certificate of service stating plaintiff’s counsel was served with the

notice; and 2) the transcript of the canceled deposition, which established counsel for

plaintiff reminded plaintiff about the deposition on at least two prior occasions.)

Furthermore, the Local Rules require written notice of a deposition by oral

examination to be provided to the deponent fourteen days before the deposition. See

2 See Local Rule 3.01(c).

Local Rule 3.04. Defendants do not address when they provided notice of the two

missed depositions to Plaintiff. Thus, the Court finds that Defendants have not

satisfied the “proper notice” requirement of Rule 37(d)(1)(A)(i), which is necessary

before the Court can determine whether a party’s failure to attend a deposition

warrants sanctions and what kind of sanctions should be imposed.

Additionally, upon review of the Motion and the record, it is unclear why

defense counsel sought to depose Plaintiff for the first time on October 17, 2023. Both

parties have known since March 27, 2023, that the discovery deadline was November

3, 2023. (See Doc. 33.) In denying Plaintiff’s Unopposed Time-Sensitive Motion to

Extend the Expert Disclosure and Discovery Deadline (Doc. 41), Judge Dalton

similarly noted Plaintiff’s counsel’s absence of an explanation as to why the parties

scheduled initial fact depositions to take place in October. See Doc. 42 at 3 (“Plaintiff

offers no explanation as to why these fact depositions were not scheduled long before

October (just before the overall discovery deadline) . . . .”). The Defendants argue that

they “are now forced [sic] with the prospect of filing a dispositive motion on the

defense of qualified immunity without the benefit of Plaintiff’s deposition[,]” yet

Defendants do not explain why they waited until the last minute to depose Plaintiff.

(Doc. 54 at 4.)

The Court acknowledges that Defendants likely did not anticipate that Plaintiff

would be unable to attend his rescheduled deposition because he was in jail.

Nevertheless, this serves as a cautionary tale—Defendants’ decisions to wait until the

eleventh hour to schedule Plaintiff’s deposition, to abstain from seeking court

intervention after Plaintiffs first failure to appear, and to file a motion for sanctions

that is not properly supported does not demonstrate the diligence required for the relief

that they seek. See Doc. 33 at 10 (“The parties must be diligent in their discovery efforts

and — subject to compliance with the Good Faith Conference and Certification

Requirements — must promptly raise any discovery dispute with the Court.”)

(emphasis added). Therefore, the Motion is due to be denied.

IV. CONCLUSION

Accordingly, the Motion (Doc. 54) is DENIED.

DONE and ORDERED in Orlando, Florida on December 21, 2023.

gM KIDD

UNITED STATES MAGISTRATE JUDGE