Vista Clinical Diagnostics, LLC et al v. Markovic et al

Filing 62

ORDER granting 59 Motion to Compel Defendant's attendance at deposition. Signed by Magistrate Judge Thomas B. Smith on 2/26/2018. (Smith, Thomas)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
VISTA CLINICAL DIAGNOSTICS, LLC
and DAVIAN SANTANA,
Plaintiffs,
v.

Case No: 6:17-cv-1491-Orl-41TBS

PETAR MARKOVIC and JAVIER DEL
HOYO,
Defendants.
ORDER
This case comes before the Court without a hearing on Plaintiffs’ Verified Motion to
Compel Defendant, Javier Del Hoyo’s Attendance at Deposition and Request for
Sanctions (Doc. 59). Defendants have not file a response to the motion and the time
within to do so has expired. When a party fails to respond, that is an indication that the
motion is unopposed. Foster v. The Coca-Cola Co., No. 6:14-cv-2102-Orl-40TBS, 2015
WL 3486008, at *1 (M.D. Fla. June 2, 2015); Jones v. Bank of Am., N.A., 564 Fed. Appx.
432, 434 (11th Cir. 2014) 1 (citing Kramer v. Gwinnett Cty., Ga., 306 F.Supp.2d 1219,
1221 (N.D. Ga. 2004); Daisy, Inc. v. Polio Operations, Inc., No. 2:14-cv-564-FtM-38CM,
2015 WL 2342951, at *1 (M.D. Fla. May 14, 2015) (when defendant did not respond court
could consider motion to compel unopposed); Brown v. Platinum Wrench Auto Repair,
Inc., No. 8:10-cv-2168-T-33TGW, 2012 WL 333803, at *1 (M.D. Fla. Feb. 1, 2012) (after

1 “Unpublished opinions are not considered binding precedent, but may be cited as persuasive
authority.” CTA11 Rule 36-2.

party failed to respond, court treated motion for summary judgment as unopposed). The
Court proceeds on the basis that this motion is unopposed.
On January 16, 2018, Plaintiffs noticed the deposition of Defendant Javier Del
Hoyo to be taken on February 9, 2018 in the Bronx, New York where he resides (Id., at 1).
The deposition was coordinated and agreed to in advance with Defendant’s attorney (Id.).
On February 7, 2018, Defendants filed their Notice of Stipulation to Judgment in which
they unilaterally consented to all of the relief except attorney’s fees and costs that is
sought in Counts I and II of Plaintiffs’ complaint (Doc. 52, ¶¶ 7-10). Defendants stated that
they were taking this action because they had “come to the conclusion that it is not in the
best interest of any of the parties to continue to contest this matter.” (Id., ¶ 6).
Two minutes after filing the stipulation, Defendants filed their Emergency Motion
for Protective Order, in which they argued that in view of the stipulation, there was no
longer any need for their depositions and that the only purpose Plaintiffs could have in
taking their depositions was to harass them and explore possible new causes of action
(Doc. 53, ¶¶ 3, 7-8). The Court denied Defendants’ motion for protective order because it
did not comply with Local Rule 3.01(g) and because it did not present a true emergency
(Doc. 55). After receiving the Court’s Order, Defendants re-filed their motion for protective
order with counsel’s certificate that Plaintiffs opposed the motion (Doc. 56). Counsel for
Plaintiffs responded that the alleged Local Rule 3.01(g) conference was insufficient
because it consisted of a 30 second telephone conversation while Plaintiffs’ counsel was
taking a different deposition in New York (Doc. 57, ¶ 2). Plaintiffs also asserted that there
was no settlement (Id., ¶ 4). On February 8, 2018, the Court denied the motion for
protective order (Doc. 58).

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Approximately 39 minutes before Mr. Del Hoyo’s deposition was scheduled to
begin, his attorney, Mr. Dillon, phoned Plaintiffs’ counsel and stated
… that he “had been advised” that Mr. Del Hoyo had the flu and
would not be appearing at all for deposition. Mr. Dillon also
added that Mr. Del Hoyo has a son with cancer. When
questioned further as to whether Mr. Dillon had actually
spoken to Mr. Del Hoyo, Mr. Dillon advised Ms. Crider that this
information had been related to him by Howard A. Ross. For
this Court’s information, Mr. Howard Ross is a fact witness in
this case, who admitted (under oath on February 7, 2018) to
have been practicing law without a license in the State of New
York since his suspension from the New York Bar in 2013.
(Doc. 59 at 2-3).
All counsel appeared for Mr. Del Hoyo’s deposition at which time Mr. Dillon
reiterated that his client would not be appearing because he had the flu (Id., at 3).
However, Mr. Dillon was unable to produce any medical evidence of his client’s condition,
or explain why his client was unable to give more than 39 minutes notice of his illness
(Id.). At 2:42 p.m. on February 9, 2018, Plaintiffs hired a private investigator to observe
Mr. Del Hoyo’s movements (Doc. 60, ¶ 3). The investigator arrived at Mr. Del Hoyo’s
residence at 4:06 p.m. where he observed and photographed Mr. Del Hoyo smoking a
cigarette and walking in a normal manner (Id., ¶ 6).
Based upon this record the Court finds that Mr. Del Hoyo is a party to this action.
His deposition was properly scheduled and noticed to occur on February 9, 2018 in the
Bronx, New York, where he resides, and nothing prevented Mr. Del Hoyo from appearing
for his deposition. The Court also finds that the information communicated to Plaintiffs’
counsel, that Mr. Del Hoyo was too ill to be deposed, was a lie. Accordingly, Plaintiffs’
motion to compel and for sanctions is GRANTED. Pursuant to FED. R. CIV. P. 37:

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(1) Mr. Del Hoyo shall appear and sit for his deposition within the next 30 days at a
date, time, and location selected by counsel for Plaintiffs; and
(2) all costs of the attempted deposition on February 9, 2018, including Plaintiffs’
reasonable attorney’s fees, court reporter fees, videographer fees, rental for the space in
which to take the deposition, transportation and lodging costs for Plaintiff’s counsel to
attempt to depose Mr. Del Hoyo on February 9, 2018 are taxed against Mr. Del Hoyo.
Plaintiffs shall file their application for fees and costs within 14 days from the rendition of
this Order unless the Court is sooner advised that the parties have resolved this matter
between themselves. Mr. Del Hoyo will have 14 days to respond to Plaintiffs’ application
for fees and costs.
DONE and ORDERED in Orlando, Florida on February 26, 2018.

Copies furnished to Counsel of Record

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