Skypoint Advisors, LLC. v. 3 Amigos Productions LLC. et al

Filing 301

Order setting forth matters discussed at the March 29, 2022 final pretrial conference; denying without prejudice 294 Defendants' Request for Judicial Notice; denying 295 Plaintiff's Motion for Out-of-State Non-Party Witnesses to Testify by Telephone or Video Conference; granting 300 Plaintiff's Motion for Leave to File Notice of an Additional Composite Exhibit. See Order for details. Signed by Judge John E. Steele on 3/29/2022. (AFC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SKYPOINT ADVISORS, LLC.,
Plaintiff/Counter
Defendant,
v.

Case No:

2:18-cv-356-JES-MRM

3 AMIGOS PRODUCTIONS LLC.,
BLACKBURNSTEELE LLC., ISSA
ZAROUI, and MARK C CRAWFORD,
Defendants/
Counterclaimants.
3 AMIGOS PRODUCTIONS LLC.,
BLACKBURNSTEELE LLC., ISSA
ZAROUI, and MARK C CRAWFORD,
Third-Party
Plaintiffs,
v.
DENIS DRENI,
Third-Party
Defendant.
OPINION AND ORDER
This matter comes before the Court on the parties’ Joint PreTrial Statement (Doc. #274).

Also before the Court are the

following requests: (1) Defendants’ Request for Judicial Notice
(Doc. #294); (2) Plaintiff’s Motion for Out-of-State Non-Party
Witnesses to Testify by Telephone or Video Conference (Doc. #295);

and

(3)

Plaintiff’s

Motion

for

Leave

to

File

Notice

of

an

Additional Composite Exhibit (Doc. #300).
I.
The Court held a final pretrial conference with the parties
on March 29, 2022.
1.

The following shall govern the case:

The operative pleadings are as follows:
a.

Plaintiff’s Third Amended Complaint (Doc. #93);

b.

Defendants’
Defenses,

First
and

Amended

Answer,

Counterclaims

and

Affirmative
Third-Party

Complaint (Doc. #152);
c.

Plaintiff’s Answer and Affirmative Defenses (Doc.
#186);

d.

Third-Party

Defendant’s

Answer

and

Affirmative

Defenses (Doc. #187).
2.

The

following

exhibits,

to

which

there

were

no

objections, are admitted into evidence as of the date of
this Order and may be used at trial without further
formal admission:
a.

Plaintiff’s Exhibits A, B, K, M, and AG;

b.

Defendants’ Exhibits 3, 4, 29, 38, 39, 43, 45, 66,
67, 71, 109, and 117; and

c.

Defendants’

Exhibit

1

Plaintiff’s

objection

is
that

admitted
Exhibit

subject

published to the jury during the trial.

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1

not

to
be

The Court

takes under advisement Defendants’ request to show
the entirety of Exhibit 1 to the jury during trial,
pending the evidence presented at trial.
3.

Plaintiff’s

motion

to

add

an

additional

exhibit to its exhibit list (Doc. #300) is GRANTED.

composite
The Court

expresses no opinion on the admissibility of the exhibit.
Trial remains as scheduled for April 4, 2022 at 9:00

4.
a.m.

II.
Defendants request that the Court take judicial notice of
three documents in two prior cases involving third-party defendant
and

managing

member

of

Skypoint

Skypoint opposed the motion.

Denis

Dreni.

(Doc. #298.)

(Doc.

#294.)

The Court heard

argument on the motion during the final pretrial conference.

For

the reasons set forth, the motion is DENIED.
“The court may judicially notice a fact that is not subject
to reasonable dispute because it: (1) is generally known within
the

trial

court’s

territorial

jurisdiction;

or

(2)

can

be

accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.”

Fed. R. Evid. 201(b).

includes

its

‘public

records

within

files

relating

particular case before it or other related cases.’”

“This
to

the

Armstrong v.

U.S. Bank Nat’l Ass’n, No. 8:21-CV-2648-CEH-SPF, 2022 WL 451506,
at *1 (M.D. Fla. Jan. 26, 2022) (quoting Cash Inn of Dade, Inc. v.

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Metro.

Dade

Cty.,

938

F.2d

1239,

1243

(11th

Cir.

1991)).

Additionally, the Court may take judicial notice of a document
filed in another court, not for the truth of the matters asserted
in the other litigation, but rather to establish the fact of such
litigation and related filings.

Id. (citing United States v.

Jones, 29 F.3d 1549, 1553 (11th Cir. 1994)).

“The party requesting

judicial notice bears the burden of persuading the court” that it
may

take

judicial

notice.

United

States

v.

Stinson,

No.

614CV1534ORL22TBS, 2016 WL 8488240, at *9 (M.D. Fla. Aug. 26, 2016)
(quotation omitted).
Defendants assert that the Court should take judicial notice
of: (1) Defendant’s Answer and Affirmative Defenses, Dreni v.
PrinterOn America Corp., Case. No. 1:18-cv-12017 (S.D.N.Y Feb. 18,
2019), ECF No. 11; (2) Opinion and Order Denying Motion for
Reconsideration, Dreni v. PrinterOn America Corp., Case. No. 1:18cv-12017 (S.D.N.Y Sept. 3, 2021), ECF No. 97; and (3) a loan
modification agreement between Dreni and Well Fargo from a Florida
state court case with signature dates in spring/summer of 2019,
Wells Fargo v. Dreni, Case. No. 2018-CA-3263 (Fla. Collier Cty.
July 16, 2019).

(Doc. #294, pp. 3-148.)

However, in the motion,

Defendants only supply the documents and fail to make any argument
demonstrating that judicial notice is warranted.
At the final pretrial conference, counsel for Defendants
argued that the documents were essential to establishing a timeline

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related to Skypoint’s fraud allegations.

Skypoint and Dreni

argued that the documents are irrelevant or unduly prejudicial.
Based on the arguments of counsel, the Court is not convinced that
these documents are being offered for an admissible purpose.
Defendants have failed to carry their burden of demonstrating that
the Court must take judicial notice of the documents.

The request

is DENIED without prejudice to renewing the request in light of
the evidence presented at trial.
III.
Skypoint seeks permission to present the testimony of three
witnesses – William Kaufman, Marco Balsamo, and Lulzim Vulashi –
via remote video at trial. (Doc. #295.) Defendants oppose the
request. (Doc. #299.)

The Court heard argument on the motion

during the final pretrial conference. For the reasons set forth,
the motion is DENIED.
“At trial, the witnesses’ testimony must be taken in open
court.”

Fed.

R.

Civ.

P.

43(a);

see

also

id.

at

advisory

committee’s note to 1996 amendment (“The importance of presenting
live testimony in court cannot be forgotten.”).
good

cause

safeguards,

in
the

compelling
court

may

circumstances
permit

and

testimony

However, “[f]or
with

in

appropriate

open

contemporaneous transmission from a different location.”

court

by

Id.

“The most persuasive showings of good cause and compelling
circumstances are likely to arise when a witness is unable to

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attend trial for unexpected reasons, such as accident or illness,
but remains able to testify from a different place.”
advisory committee’s note to 1996 amendment.

Id. at

Remote testimony

“cannot be justified merely by showing that it is inconvenient for
Id.

the witness to attend the trial.”
reasonably

foresee

the

circumstances

“A party who could
offered

to

justify

transmission of testimony will have special difficulty in showing
good cause and the compelling nature of the circumstances.”

Id.

A party seeking remote testimony should give notice “as soon as
the reasons are known.”

Id.

Skypoint asserts that good cause in compelling circumstances
exists

because

jurisdiction.”

the

three

witnesses

(Doc. #295, ¶ 11.)

“reside

outside

of

the

Kaufman resides in Dallas,

Texas; Balsamo resides in New York, New York; and Vulashi resides
in Florence, Italy.

(Id. ¶ 2-4.)

Skypoint also states that

Kaufman is expected to be shooting a movie during dates that
conflict with trial and that Balsamo “will be out of the country,
in Italy, for a soccer tournament.”

(Id. ¶ 12.)

The Court does not find good cause in compelling circumstances
to permit Kaufman, Balsamo, and Vulashi to testify remotely.

The

only excuse made for the three witnesses is the inconvenience of
travel, 1 which does not satisfy Rule 43.

E.g., Ballesteros v.

During the final pretrial conference, counsel for Dreni
argued that the witnesses were also essential to Defendants’ case;
1

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Wal-Mart Stores E., LP, No. 2:19-CV-881-SPC-NPM, 2021 WL 2917553,
at *1 (M.D. Fla. July 12, 2021) (travel and work obligations do
not satisfy rule); Novello v. Progressive Express Ins. Co., No.
8:19-CV-1618-KKM-JSS, 2021 WL 1751351, at *2 (M.D. Fla. May 4,
2021) (inconvenience of traveling 1,071 miles does not establish
good cause and compelling circumstances).
Additionally, this matter has been set for the April 2022
trial term since November 2021 and a date certain was set February
14, 2022, yet Skypoint waited until two weeks before trial to
request remote testimony. 2
and

Skypoint’s

knowledge

Given the location of the witnesses
of

the

witnesses,

the

circumstances

surrounding Skypoint’s request were reasonably foreseeable.

E.g.,

however, Defendants do not list Kaufman, Balsamo, or Vulashi as
potential witnesses. (Doc. #274, § 5.)
Counsel also argued
concern for COVID-19 travel. But, the record indicates (at least)
Kaufman and Balsamo have no issues traveling.

The Court originally set trial for a date certain of March
28, 2022. (Doc. #282.) In a joint motion for a trial date “no
sooner than April 4, 2022,” counsel represented to the Court:
2

The
undersigned
attorneys
told
numerous
witnesses in this case to plan on appearing
for trial on April 4, 2022.
There are
witnesses traveling from Albania, Italy, New
York, California, Texas, and possibly Bulgaria
and have planned accordingly.
A change in
trial would require a change in travel plans
which is not easily done and may not be able
to be done in some instances.

(Doc. #283, ¶¶ 3-4 (emphasis added).) The Court granted the motion
based on this representation that witnesses’ travel plans were
already made and could not be easily changed.
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Powers v. Target Corp., Case No. 19-cv-60922-BLOOM/Valle, 2020 WL
8970607, at *2 (S.D. Fla. Mar. 9, 2020) (concluding that plaintiff
failed

to

establish

good

cause

under

Rule

43(a)

where

the

“explanations submitted to the Court reflect[ed] the entirely
foreseeable inconvenience” to the witness of “having to interrupt
his busy schedule to attend trial in person” and explaining that
the “inconvenience” of paying for a witness's travel and lodging
expenses

does

not

constitute

the

“type

of

‘good

cause’

or

‘compelling circumstances’ that would warrant granting Plaintiff's
Motion”); Lamonica v. Safe Hurricane Shutters, Inc., No. 07-61295CIV, 2011 WL 917726, at *1 (S.D. Fla. Feb. 18, 2011) (concluding
that the alleged financial and logistical burdens of attending
trial

did

not

constitute

“good

cause”

or

“compelling

circumstances” under Rule 43, even where the plaintiffs lived
outside of the country and would have to travel internationally).
Accordingly, Skypoint’s request to allow Kaufman, Balsamo, and
Vulashi to testify remotely is DENIED.
Alternatively, Skypoint requests that the Court “consider
allowing

the

parties

time

to

conduct

video

depositions

perpetuate testimony for [Kaufman, Balsamo, and Vulashi].”

to

(Doc.

#295, ¶ 14.) At the final pretrial conference, counsel for Skypoint
represented that no party has deposed Kaufman, Balsamo, or Vulashi.
Skypoint, therefore, must show good cause to modify the May 21,
2021 discovery deadline in the Case Management and Scheduling

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Order.

(Doc. #213.)

Fed. R. Civ. P. 16; Spencer v. United States,

No. 617CV887ORL41TBS, 2019 WL 2287962, at *1 (M.D. Fla. May 29,
2019) (“Case law in this district recognizes that the rules make
no

distinction

depositions”).

between

trial

depositions

and

discovery

Skypoint has not shown good cause or that the

prior deadline could not be met despite diligence.

Skypoint’s

alternative request is DENIED.
Accordingly, it is hereby
ORDERED:
1.

Trial shall be governed as outlined in § I.

2.

Defendants’ Request for Judicial Notice (Doc. #294) is
DENIED without prejudice.

3.

Plaintiff’s Motion for Out-of-State Non-Party Witnesses
to Testify by Telephone or Video Conference (Doc. #295)
is DENIED.

4.

Plaintiff’s

Motion

for

Leave

to

File

Notice

of

an

Additional Composite Exhibit (Doc. #300) is GRANTED.
DONE and ORDERED at Fort Myers, Florida, this
of March, 2022.

Copies:
Counsel of Record

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29th

day