Sigurdsson v. DiCarlantonio
Filing
75
ORDER denying as moot 42 Motion to Compel; granting in part and denying in part 46 motion to dismiss; denying 53 Motion for Sanctions. Signed by Magistrate Judge Thomas B. Smith on 11/7/2013. (SMW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
PETUR M. SIGURDSSON,
Plaintiff,
v.
Case No: 6:12-cv-920-Orl-TBS
ERNESTO DICARLANTONIO,
Defendant.
ORDER1
Pending before the Court are three discovery-related motions: Defendant’s Motion
to Compel for Deposition (Doc. 42); Defendant’s Motion to Dismiss (Doc. 46); and
Defendant’s Motion for Sanctions (Doc. 53). The Court will GRANT Defendant’s Motion
to Dismiss (Doc. 46) only to the extent that it seeks to recover expenses due to Plaintiff’s
absence from his properly noticed deposition and otherwise DENY the motions.
Background
Plaintiff Petur Sigurdsson brought this suit against Defendant Ernesto
DiCarlantonio alleging that, for the 2010 and 2011 tax years, Defendant fraudulently filed
on behalf of Lighthouse Properties of America, Inc. (“Lighthouse”) forms 1099-MISC with
the Internal Revenue Service representing commission payments from Lighthouse to
Plaintiff that were never actually made. (Doc. 1, ¶¶ 10, 11, 16, 17). Defendant has
admitted that Lighthouse never paid Plaintiff the commissions, but only because Plaintiff
On October 3, 2012, the parties consented to the exercise of jurisdiction by a
magistrate judge in this case. (Doc. 29). Accordingly, the case was referred to the
undersigned by an Order of Reference on October 9, 2013. (Doc. 30).
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had outstanding debts to Defendant. (Doc. 28, ¶ 22; Doc. 73 p. 5). For most of this case,
both parties proceeded pro se; however, Defendant has recently obtained counsel.
Discussion
The three motions before the Court concern two discovery-related disputes.
Defendant’s Motions to Compel for Deposition (Doc. 42) and to Dismiss (Doc. 46) arise
from Plaintiff’s failure to attend his properly noticed deposition on August 30. Defendant’s
Motion for Sanctions (Doc. 53) concerns an affidavit Plaintiff included with his Motion for
Summary Judgment dated August 7, 2013. (Doc. 39).
A. Plaintiff’s Failure to Attend his Deposition
Some time on or before August 19, 2013, Plaintiff and Defendant agreed that
Defendant would take Plaintiff’s deposition on August 30. On August 19, Defendant
mailed to Plaintiff a Notice of Taking Deposition, which, in accordance with the parties’
agreement, set Plaintiff’s deposition for 10:00 AM on August 30. (Doc. 42, p. 4–5). On
August 24, Plaintiff sent to Defendant a “Reply to Defendant’s Notice of Taking
Deposition” indicating that “Plaintiff will not be available Friday, August 30th, 2013, at
10:00 AM” and requesting 30 days’ notice2 if Defendant wished to reschedule the
deposition. (Doc. 42, p. 6). Defendant received this letter on August 26; the next day, he
filed his Motion to Compel Deposition (Doc. 42), asking the Court to order Plaintiff to
show up on the 30th.3 On August 30, Defendant and a court reporter showed up for
Plaintiff’s deposition, but Plaintiff did not appear. (Doc. 46, p. 8).
On September 4, Defendant filed a “Motion to Dismiss,” requesting that the Court
sanction Plaintiff for failing to appear for his deposition, including a monetary sanction to
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In his response to Plaintiff’s Motion to Compel, Defendant withdrew this request. (Doc. 44, p. 1).
Defendant also requested that the Court order Plaintiff to “cooperate and attend mediation.” (Doc.
42, p. 2).
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compensate Defendant for expenses stemming from the missed deposition and dismissal
of Plaintiff’s case. (Doc. 46).4 On September 6, Defendant filed a memorandum in
support of this motion. (Doc. 49). Shortly thereafter, the parties agreed to reschedule
Plaintiff’s Deposition for September 10 at 10:30. (Doc. 51, p. 1). Plaintiff appeared for
the rescheduled deposition.
A court may impose sanctions if “a party . . . fails, after being served with proper
notice, to appear for [his] deposition.” Fed. R. Civ. P. 37(d)(1)(A)(ii). This rule “makes it
explicit that a party properly served has an absolute duty . . . to present himself for the
taking of his deposition.” Penthouse Int’l v. Playboy Enterprises, Inc., 663 F.2d 371, 390
(2d Cir. 1981). The Court may sanction a party who fails to appear for his own deposition
without offering a good excuse for his absence. Griffin v. Aluminum Co. of America, 564
F.2d 1171, 1172 (5th Cir. 1977) (per curiam).
The Court’s enjoys broad discretion in crafting an appropriate sanction for
violations of the discovery rules. United States v. Certain Real Property Located at Route
1, Bryant, Ala., 126 F.3d 1314, 1317 (11th Cir. 1997). Permissible sanctions include
striking pleadings, staying proceedings, or even dismissing an action. Id.; See FED. R.
CIV. P. 37(b)(2)(A), (d)(3). The Court may also require the party who failed to appear to
pay the other party “reasonable expenses . . . 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). “The burden of establishing substantial justification is on the
party being sanctioned.” Telluride Mgmt. Solutions, Inc. v. Telluride Inv. Group, 55 F.3d
463, 466 (9th Cir. 1995), abrogated on other grounds by Cunningham v. Hamilton
County, 427 U.S. 198 (1999).
On the same day, Defendant moved to extend the discovery deadline. (Doc. 45). The Court
denied this motion without prejudice because Defendant failed to comply with Local Rule 3.01(g).
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Plaintiff has failed to offer substantial justification for his failure to attend his
deposition. In his papers opposing Defendants’ motions, Plaintiff explains that he
cancelled the deposition because of unspecified “prior obligations.” (Doc. 44, p. 1; Doc.
51, p. 1). At the hearing, Plaintiff explained that after he agreed to be deposed on August
30, he found out that there was a “suspected problem with a closing.”5 (Doc. 73, p. 28).
These reasons are far too vague to constitute “substantial justification” for missing one’s
deposition. The Court therefore finds that Plaintiff’s failure to attend his deposition was
not substantially justified, and also finds that no other circumstances render an award of
expenses under Rule 37(d)(3) unjust. Accordingly, Defendant’s motion (Doc. 46) will be
GRANTED to the extent that it seeks recovery of expenses. Within 14 days, Defendant
shall file with the Court a statement itemizing his expenses caused by Plaintiff’s failure to
attend his August 30 deposition, along with evidence of those expenses. After Defendant
files this statement, Plaintiff shall have 14 days to dispute any of the claimed expenses.
More severe sanctions are unwarranted. Plaintiff’s failure to appear for his
deposition does not warrant dismissal. The Eleventh Circuit has emphasized that
dismissal for discovery violations is appropriate “only ‘where a party’s conduct amounts to
flagrant disregard and willful disobedience of discovery orders.’” Certain Real Property
Located at Route 1, 126 F.3d at 1317 (quoting Buchanan v. Bowman, 820 F.2d 359, 361
(11th Cir. 1987)). District courts may dismiss cases only as a “last resort” when
“noncompliance with discovery orders is due to willful or bad faith disregard for those
orders.” Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1556 (11th Cir. 1986).
Aside from the Case Management and Scheduling Order—which is entered in every civil
case in this district—the Court has not entered any discovery orders that Plaintiff might
Plaintiff also explained that, if he knew the deposition would not have taken all day, he would have
shown up on the 30th.
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have violated. And, considering that Defendant was able to reschedule and take
Plaintiff’s deposition less than two weeks after it was originally scheduled (and without
any court order compelling the deposition), there is no basis for a finding of “willful,” “bad
faith,” or “flagrant” disregard of the discovery rules, much less the Court’s order. Finally,
the sanctions the Court has ordered will redress the harm Defendant suffered from
Plaintiff’s violation. To the extent Defendant’s Motion to Dismiss seeks sanctions beyond
those the Court has awarded, the motion is DENIED.
Defendant’s motions are also DENIED as MOOT to the extent they request an
order compelling Plaintiff to appear for a deposition or to cooperate with mediation.
Plaintiff has been deposed, and the parties mediated the case before Mr. Anthony Diaz
on September 12 as scheduled. (Doc. 57). Finally, the Court will not award Mr.
DiCarlantonio expenses incurred in making his motion, because it finds Mr. DiCarlantonio
failed to attempt in good faith to obtain the discovery or disclosure before filing his
motions with this court. FED. R. CIV. P. 37(b)(5)(A)(i). On this note, the Court reminds the
parties of their obligation to confer with each other in good faith before filing discovery
and sanctions motions. Local Rule 3.01(g) provides:
Before filing any motion in a civil case, except a motion for
injunctive relief, for judgment on the pleadings, for summary
judgment, to dismiss or to permit maintenance of a class
action, to dismiss for failure to state a claim upon which relief
can be granted, or to involuntarily dismiss an action, the
moving party shall confer with counsel for the opposing party
in a good faith effort to resolve the issues raised by the
motion, and shall file with the motion a statement (1) certifying
that the moving counsel has conferred with opposing counsel
and (2) stating whether counsel agree on the resolution of the
motion. A certification to the effect that opposing counsel was
unavailable for a conference before filing a motion is
insufficient to satisfy the parties’ obligation to confer. The
moving party retains the duty to contact opposing counsel
expeditiously after filing and to supplement the motion
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promptly with a statement certifying whether or to what extent
the parties have resolved the issue(s) presented in the motion.
If the interested parties agree to all or part of the relief sought
in any motion, the caption of the motion shall include the word
“unopposed,” “agreed,” or “stipulated” or otherwise succinctly
inform the reader that, as to all or part of the requested relief,
no opposition exists.
Although the rule refers to “counsel,” the Court has interpreted it to apply to pro se
litigants. The rule is designed to prevent the filing of motions to resolve procedural
disputes that can usually be settled with a telephone conversation. Defendant’s Motion to
Compel, which was filed three days before Plaintiff’s scheduled deposition and became
moot almost as soon as it was ripe, is the sort of motion the drafters of the local rules had
in mind. In the future, the parties should make a good-faith effort to resolve process
disputes before seeking judicial intervention.
B. Plaintiff’s Summary Judgment Affidavit
Defendant’s Motion for Sanctions (Doc. 53) seeks sanctions pursuant to Rule
11(b) against Plaintiff for filing a “false or misleading” affidavit in support of his Motion for
Summary Judgment (Doc. 39). The affidavit in question reads, in full:
I, Petur Sigurdsson, first being duly sworn and under penalty
of perjury say:
1. In 2010 I sold, as a real estate salesperson, two properties,
1508 Lark Nest Ct., and 1884 Peterson Pl.
2. When closing on these two properties, I had a contract with
Ernesto Di Carlantonio, Broker of Light House Properties,
stating that I would receive 100% of the commissions I
earned through the sale of homes.
3. Ernesto Di Carlantonio, Broker of Light House Properties,
refused to pay my commission as per our contract.
4. In 2011, I sued Mr. Di Carlantonio's Brokerage, Light
House Properties, for my unpaid commission.
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5. In 2011 and again in 2012, Mr. Di Carlantonio filed with the
Internal Revenue Service a 1099-misc. stating that he paid
me the commission for which I was suing him.
6. In December 2011 and June 2013 I received final
judgments against Mr. Di Carlantonio's brokerage, proving
that he did not, and still has not, paid me my commission.
(Doc. 39, pp. 3–4).
Defendant argues that Paragraphs 4 and 6 are misleading because they imply that
he owned Lighthouse Properties. (Doc. 54, p. 3). He also contends that Paragraphs 5
and 6 are false or misleading because Plaintiff received his commission from Lighthouse
Properties, not Defendant and because Plaintiff sued Lighthouse Properties, not
Defendant, for the unpaid commissions. (Id.)6
By presenting any paper to the court, a party “certifies . . . to the best of the
person’s knowledge, information, and belief” that the paper is not being presented for an
improper purpose and that the factual contentions in the paper have evidentiary support
or are anticipated to have evidentiary support after a reasonable opportunity for further
investigation. FED. R. CIV. P. 11(b)(1), (3). If a party violates Rule 11(b), a court may
impose sanctions on that party, which “must be limited to what suffices to deter repetition
of the conduct or comparable conduct by others similarly situated.” FED. R. CIV. P.
11(c)(4).
“While the primary goal of Rule 11 is the deterrence of baseless filings, pursuit of
that goal must be tempered by a concern for avoiding a proliferation of satellite litigation.”
Consolidated Doors, Inc. v. Mid-America Door Co., 120 F. Supp. 2d 759, 768 (E.D. Wis.
2000) (citing Cooter & Gell v. Hartmax Corp., 496 U.S. 384, 393 (1990)). That concern is
Defendant’s motion also seeks dismissal of the case “as a frivolous suit with no merit.” (Doc. 53,
p. 3). The Court does not view the case as frivolous, so it will deny this request.
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particularly acute here, where the parties are already embroiled in state-court disputes
between Plaintiff and Lighthouse Properties.
It is far from clear that Plaintiff’s affidavit contains a sanctionably false statement.
It is true that Plaintiff’s affidavit could be read to imply that Defendant owns Lighthouse
Properties (he doesn’t) and is personally liable for the debt (undecided). But, the three
offending paragraphs are also susceptible to a reading that is almost entirely true.
Defendant objects to Plaintiff’s use of “[Defendant]’s brokerage” to refer to Lighthouse
Properties as somehow implying that Defendant owns the brokerage. The possessive
form, however, is often used to convey relationships other than ownership. The Court
reads Plaintiff’s use of “[Defendant]’s brokerage” in his affidavit to convey a relationship of
affiliation (the brokerage that Defendant is affiliated with), rather than ownership (the
brokerage that Defendant owns).
Nor does the court read the affidavit as implying that Defendant is personally liable
for the unpaid commissions. When Plaintiff asserts that Defendant “still has not[] paid me
my commission,” the Court interprets this as a statement that Defendant has not paid the
commission in his capacity as an officer of Lighthouse Properties and from the funds of
Lighthouse Properties. It does not understand Plaintiff to imply that Defendant is
personally liable for any debt of Lighthouse Properties to Plaintiff, and if Plaintiff intended
any such implication, the Court rejects it.
Sanctions are therefore inappropriate, given that the statements do not necessarily
contain or imply any statement of fact that is false or lacking evidentiary support. Even if
Plaintiff’s affidavit was intended to mislead the Court, it still would not warrant sanctions.
Whether Plaintiff may personally sue Defendant for the unpaid commissions is not
material to this litigation. And, because the Court has not been misled, Defendant has
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suffered no prejudice. Cf. Televideo Systems, Inc. v. Mayer, 139 F.R.D. 42, 49 (S.D.N.Y.
1991). Defendant’s Motion for Sanctions (Doc. 53) is DENIED.
I.
Conclusion
Upon consideration of the Plaintiff’s motions and memoranda in support,
Defendant’s responses in opposition, and the arguments made at hearing on October 1:
1. Defendant’s Motion to Dismiss (Doc. 46) is GRANTED to the extent that it
seeks recovery of Defendant’s expenses caused by Plaintiff’s failure to
attend his deposition. To the extent this Motion seeks and additional or
different relief it is DENIED.
2. Within 14 days from the date of this Order, Defendant shall file with the
Court a statement itemizing his expenses caused by Plaintiff’s failure to
attend his August 30 deposition, along with evidence of those expenses.
These expenses may include court reporter costs and any fees for the
notice of non-appearance. Defendant may not, however, list expenses
incurred in preparing any of the pending motions. Plaintiff shall then have
14 days to file with this Court a statement disputing any of the expenses
Plaintiff has claimed.
3. Defendant’s Motion to Compel (Doc. 42) is DENIED as MOOT.
4. Defendant’s Motion for Sanctions (Doc. 53) is DENIED.
DONE and ORDERED in Orlando, Florida on November 7, 2013.
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Copies furnished to:
Counsel of Record
Unrepresented Parties
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