The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
NATHAN S STRUVE and NICOLE
M STRUVE, husband and wife,
Plaintiffs,
v. Case No.: 2:24-cv-281-JLB-KCD
ERIK JAMES BROWN and
PROGRESSIVE NORTHERN INS.
CO.,
Defendants.
/
ORDER
This is a maritime case stemming from a collision between Plaintiffs and
Defendant Erik James Brown. Plaintiffs move to compel the deposition of
Brown or impose “other sanctions including incarceration for contempt.” (Doc.
53.)1 No response was filed, and the time to do so has expired.
Brown’s deposition was scheduled for last month, but he failed to appear.
(Docs. 53-1, 54-1 at 2.) And Brown, claiming he has been stranded on his boat
for “the last 50 days,” has suggested he will not appear for a deposition unless
he is paid. (Doc. 53-8.) Because Brown has also shared that he has no assets,
1 Unless otherwise indicated, all internal quotation marks, citations, and alterations have
been omitted in this and other citations.
Plaintiffs say fining him won’t work, so they ask for “incarceration for
contempt” to encourage compliance. (Doc. 53 at 6.)
“[T]he purpose of discovery is to provide a mechanism for making
relevant information available to the litigants.” Lozano v. Maryland Cas. Co.,
850 F.2d 1470, 1473 (11th Cir. 1988). “Mutual knowledge of all the relevant
facts gathered by both parties is essential to proper litigation. To that end,
either party may compel the other to disgorge whatever facts he has in his
possession.” Hickman v. Taylor, 329 U.S. 495, 507 (1947). This broad discovery
helps “make a trial less a game of blind man’s bluff and more a fair contest
with the basic issues and facts disclosed to the fullest practicable extent.”
United States v. Procter & Gamble Co., 356 U.S. 677, 682 (1958).
Consistent with this broad approach to discovery, the Federal Rules of
Civil Procedure allow parties to depose witnesses, including an opposing party.
See Fed. R. Civ. P. 30(a). Depositions can be extremely important to the
discovery of relevant facts and the acquisition of key admissions from parties
or witnesses. In some cases, depositions are “indispensable.” Mill-Run Tours,
Inc. v. Khashoggi, 124 F.R.D. 547, 549 (S.D.N.Y. 1989). Indeed, Plaintiffs say
that Brown’s deposition is necessary “for Plaintiffs to be able to carry their
burden on proof on ownership of the vessel at the time of the allision, and the
failure to carry any insurance which would be responsive to Plaintiffs’ claims
for personal injuries arising out of the negligence of the owner of the vessel.”
(Doc. 53 at 4.)
Rule 37(d)(1)(A)(i) authorizes the Court to sanction a party when he
“fails, after being served with proper notice, to appear for [his] deposition.”
“Federal Rule of Civil Procedure 37 provides different remedies for discovery
violations depending on whether those violations occur due to a party’s failure
to respond to discovery requests, in the context of an order granting or denying
a discovery motion, or when a party disobeys a discovery order.” Maletta v.
Woodle, No. 2:20-CV-1004-JES-KCD, 2022 WL 3213426, at *2 (M.D. Fla. Aug.
9, 2022). “Ultimately, Rule 37 sanctions are intended to prevent unfair
prejudice to the litigants and ensure the integrity of the discovery process.” Id.
Rule 37 provides district courts “broad discretion to fashion appropriate
sanctions” for discovery violations and non-compliance Malautea v. Suzuki
Motor Co., 987 F.2d 1536, 1542 (11th Cir. 1993).
To start, Plaintiffs’ motion includes no memorandum of law as required
by Local Rule 3.01(a) and could be denied on that basis alone. Plaintiffs
ultimately ask the Court to find that the imposition of fine will not suffice, and
instead impose a contempt finding with incarceration. But Plaintiffs provide
no authority for imposing such an extreme sanction, especially when there has
been no history of failure to comply with court orders. Rule 37(b)(2)(A) says
that the court “may” issue a contempt sanction. In its discretion, the Court
finds that such drastic relief is unwarranted in these circumstances as there is
no pattern of discovery abuse. See, e.g., Chudasama v. Mazda Motor Corp., 123
F.3d 1353, 1371 (11th Cir. 1997).
Brown has presented no argument that he should be excused from
providing testimony, so the Court will order that he appear for a properly
noticed deposition. The Court acknowledges Plaintiffs’ predicament here. But
Plaintiffs have the Federal Rules at their disposal, which allow for different
methods of recording deposition testimony. See Fed. R. Civ. P. 30(b)(3)(A)
(providing that a properly noticed deposition “may be recorded by audio,
audiovisual, or stenographic means”). And the Rules allow for other methods
of obtaining the discovery that Plaintiffs seek, including requests for
admission. See Fed. R. Civ. P. 36.
Plaintiffs must confer with Brown about a date and time for his
deposition. If Brown fails to cooperate, Plaintiffs may unilaterally set the
deposition. Brown should note that if it becomes clear that he does not
intend to comply with the Court’s Order to attend the deposition, the
Court will consider more severe sanctions.
Accordingly, it is ORDERED:
1. Plaintiffs’ Motion for Order Compelling Defendant Erik James
Brown to Appear for His Deposition or be Subject to Other Sanctions Including
Incarceration for Contempt (Doc. 53) is GRANTED IN PART to the extent
that the Court compels Brown to sit for a deposition.2 The motion is DENIED
as much as it seeks any greater or different relief.
2. Plaintiffs are directed to provide a copy of this Order to Brown and
confer with him about a date for his deposition.
ENTERED in Fort Myers, Florida on October 15, 2024.
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* Kale C. Dudek
United States Magistrate Judge
Copies: All Parties of Record
2 Ifa motion to compel “is granted... the court must... require the party or deponent whose
conduct necessitated the motion ... to pay the movant’s reasonable expenses incurred in
making the motion, including attorney’s fees.” Fed. R. Civ. P. 37(a)(5). Plaintiffs do not ask
for expenses. Nor have they provided any documentation to issue such an award. So the Court
cannot order expenses at this time. See, e.g., CMR Constr. & Roofing, LLC v. ASI Preferred
Ins., No. 2:19-CV-442-FTM-29-MRM, 2020 WL 9172016, at *3 (M.D. Fla. May 1, 2020).