Taylor et al v. C& L Towing and Transport, L.L.C. et al

Filing 75

ORDER granting in part and denying in part 55 Motion to Compel appearance at deposition; denying 71 Motion for Leave to File Reply. Signed by Magistrate Judge Thomas B. Smith on 2/19/2019. (Smith, Thomas)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
KEITH E. TAYLOR and TERRENCE
MCGLOTHLIN, on behalf of themselves
and others similarly situated,
Plaintiffs,
v.

Case No: 6:17-cv-1929-Orl-40TBS

C&L TOWING AND TRANSPORT, L.L.C.
and CARL CHASE,
Defendants.
ORDER
This case comes before the Court without a hearing on Defendants’ Emergency
Motion for Sanctions and to Strike Pleadings of Michael Jenkins or in the Alternative,
Compel Deposition (Doc. 55).
In January 2019, Defendants coordinated and noticed the depositions of certain
Plaintiffs, including Mr. Jenkins, to occur on January 25, 2019 (Doc. 55, ¶¶ 13-14). On the
day before Mr. Jenkins’ scheduled deposition, his lawyer, Jay P. Lechner told
Defendants’ lawyer Ethan B. Babb, that Mr. Jenkins was not likely to appear (Doc. 57, ¶
3). Sure enough, the next day, Mr. Jenkins did not show up for his deposition (Doc. 55, ¶
19). Five days later, Defendants filed the pending “emergency” motion for sanctions and
to compel deposition (Doc. 55). The Court has already admonished Defendants’ lawyer
for designating this matter an emergency (Doc. 56).
Plaintiffs’ response to the sanctions motion contains assertions the Court felt
necessitated a response by Mr. Babb (Doc. 57). At the Court’s Order, he has filed his
response which precipitated a motion by Plaintiffs to file a reply to the response (Docs.

58, 64, 71).
Mr. Jenkins also failed to answer the Court’s standard interrogatories in this Fair
Labor Standards Act case. On February 4, 2019, the Court entered an Order directing Mr.
Jenkins to file his answers to the Court’s interrogatories within seven days (Doc. 61 at 6).
The Order warned Mr. Jenkins that the failure to comply would result in the imposition of
sanctions which could include dismissal of his claims without further notice (Id.). Mr.
Jenkins did not comply with this Order. Mr. Jenkins’s failure to obey the Order is not the
subject of this motion and will be dealt with separately by the Court.
Plaintiffs’ lawyers filed a motion for leave to withdraw from representing Mr.
Jenkins because he has been “unresponsive and fails or refuses to engage in
communications with the undersigned’s law firm, thereby making it impossible to
represent him in this matter.” (Doc. 72, ¶ 1). That motion was granted (Doc. 74).
Now, the Court is satisfied that it does not need a reply from Plaintiffs to Mr. Babb’s
response. Therefore, and because Mr. Jenkins’ lawyers have withdrawn, the motion for
leave to file a reply (Doc. 71) is DENIED.
It appears Mr. Jenkins simply stopped communicating with his lawyers which
resulted in his failure to know about or appear for his deposition, and his failure to answer
the Court’s interrogatories. The client’s failure to stay in touch with and respond to the
lawyer is no excuse for not complying with the Federal Rules of Civil Procedure or the
Court’s Orders.
As a sanction for failing to appear for his deposition, Defendants are asking the
Court to dismiss Mr. Jenkins’ claim with prejudice (Doc. 55 at 5). However, Defendants
have not adequately briefed the applicable law concerning dismissal under these
circumstances and the Court is not otherwise persuaded that dismissal with prejudice is

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the appropriate remedy so that relief will be DENIED.
In the alternative, Defendants are asking the Court to compel Mr. Jenkins to
appear for his deposition (Id.). The motion to compel is GRANTED. Defendants may
reschedule Mr. Jenkins’ deposition and if he fails once again to appear, he risks the
imposition of sanctions including possible dismissal of his claims.
When a court grants a motion to compel, or if the discovery is provided after the
motion is filed, the moving party is entitled to recover its reasonable expenses in making
the motion, including attorney’s fees, unless “(i) the movant filed the motion before
attempting in good faith to obtain the disclosure or discovery without court action; (ii) the
opposing party’s nondisclosure, response, or objection was substantially justified; or (iii)
other circumstances make an award of expenses unjust.” FED. R. CIV. P. 37(a)(5)(A).
None of the exceptions apply.
Defendants seek an award of $812.50 for 3 hours of attorney time at $250.00 per
hour plus $62.50 in deposition costs (Id.). The Court will not award fees for the one hour
Mr. Babb says he spent getting ready for the deposition because Mr. Babb had already
been warned that Mr. Jenkins might not appear, and this was one of many similar
depositions of Plaintiffs so little or no preparation to depose Mr. Jenkins should have
been required. Or, if preparation was necessary, Defendants should still reap the benefits
at the to-be-taken deposition of Mr. Jenkins.
The Court will award Defendants 2.0 hours of time at $250.00 per hour to attend
the deposition and prepare the motion for sanctions and to compel. It will also award the
court reporter’s fee of $62.50 making a total of $562.50 now taxed for Defendants and
against Mr. Jenkins.

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DONE and ORDERED in Orlando, Florida on February 19, 2019.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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