Adelman et al v. Boy Scouts of America et al

Filing 307

MOTION for Leave to File Defendants' Motion to Dismiss Based on Spoliation of Evidence by Boy Scouts of America, The South Florida Council Inc., Boy Scouts of America. (Attachments: # 1 Exhibit 1, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H)(Franz, Kevin)

THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Miami Division
Howard Adelman and Judith Sclawy,
as Co-Personal Representatives of
The Estate of Michael Sclawy-Adelman,
CASE NO. 1:10-cv-22236-ASG
Plaintiffs,
District Ct. Judge: Alan S. Gold
vs.
Boy Scouts of America, et al.

Magistrate Judge: Jonathan Goodman

Defendants.
________________________/
DEFENDANTS’ MOTION FOR LEAVE TO FILE
16-PAGE MOTION TO DISMISS DUE TO SPOLIATION OF EVIDENCE
COMES NOW, Defendants, Boy Scouts of America (“BSA”), South Florida Council, (“SFC”),
Howard Crompton, individually, Andrew Schmidt, individually and Plantation United Methodist Church
(“PUMC”) by and through their undersigned counsel, and pursuant to Federal Rule of Civil Procedure
72(a) and Judge Goodman’s Discovery Procedures [D.E. 190], hereby seek leave to file a 16-page Motion
to Dismiss Based on Spoliation of Evidence. The Defendants state more fully as follows:
1. This is a wrongful death action stemming from an incident that occurred on May 9, 2009, when
Michael Sclawy-Adelman died while taking part in a hike in the Big Cypress National Park of the
Florida Everglades.
2. Howard Adelman and Judith Sclawy, Michael’s parents, refused to allow an autopsy to be done on
Michael following his death due to religious reasons.
3. As a result, Dr. Manfred Borges, the medical examiner, could not determine cause of death with
certainty.
4. Defendants intend to file a “Motion to Dismiss Based on Spoliation of Evidence” (“Motion to
Dismiss”). See Motion to Dismiss attached hereto with exhibits as Exhibit “1.” Exhibits to the
Motion to Dismiss are attached as A-H.
5. Defendants assert that Plaintiffs spoliated evidence and seek dismissal of Plaintiffs’ cause of
action as a sanction. In the alternative, Defendants seek an Order striking all Plaintiffs’ expert
witnesses who would be called to testify as to cause of death. In the alternative, Defendants seek
an Order invoking an adverse inference (i.e. that Michael’s death was caused by a cardiac event or
a central nervous system failure, wholly unrelated to heat stroke).
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6. This Motion for Leave is filed in an abundance of caution, as Defendants are unsure whether leave
is necessary to file a 16-page Motion on this issue.
7. The Motion to Dismiss seeks a dispositive ruling, which cannot be entered by a Magistrate Judge.
See F.R.C.P. 72(a); see also 28 U.S.C. § 636(b)(1). However, as Judge Goodman has written,
Magistrate Judges have authority to rule on a spoliation Motion if the sanction “actually imposed”
(non-dispositive) is different from the sanction “requested” (dispositive).

See Point Blank

Solutions, Inc. v. Toyobo America, Inc., Slip Copy 2011 WL 1456029 at *2-4 (S.D.Fla.)
(emphasis in original).
8. The Motion to Dismiss requests dismissal, but alternatively requests non-dispositive sanctions.
Thus, it is unknown at this time whether Judge Gold or Judge Goodman will rule on the Motion to
Dismiss.
9. Local Rule of the United States District Court for the Southern District of Florida, 7.1(c)(2), limits
motions to 20 pages or less absent permission from the Court.

F.R.C.P 7.1(c)(2).

While

undersigned is not aware of any page-limit restrictions specifically instituted by Judge Gold,
Magistrate Judge Goodman’s Discovery Procedures [D.E. 190] clearly indicate a 5-page limit. In
fact, several Motions have been stricken in this case due to violation of said Procedures.
10. Defendants reiterate that the Motion seeks dismissal as a sanction, which can only be ordered by
Judge Gold. Under the Federal Rules (as the Motion is less than 20 pages and seeks dismissal as a
dispositive ruling) Defendants do not believe leave must be granted in this circumstance.
However, Defendants recognize the jurisdictional authority of Judge Goodman under a similar
spoliation Motion, and respectfully request leave to file the 16-page Motion in an abundance of
caution pursuant to his Discovery Procedures. See [D.E. 190]; see also Point Blank Solutions
2011 WL 1456029 at *1-2 (ruling and Opinion by Judge Goodman on Plaintiffs’ Motion to
Determine Spoliation of Evidence and Appropriate Sanctions).
11. The factual circumstances and issue raised in Defendants’ Motion to Dismiss– whether a lawsuit
should be dismissed as a sanction for refusal to permit an autopsy amounting to spoliation of
evidence – is one of first impression in this Circuit. A great deal of case law (both state and
federal) on spoliation and autopsies is required to adequately present Defendants’ argument.
12. Moreover, the heart of this case turns on what caused Michael Sclawy-Adelman’s death.
Plaintiffs’ theory is that it was a result of heat stroke. Defendants’ theory is that it was a result of
either a cardiac event or a central nervous system failure such as a spontaneous intracerebral
hemorrhage. A plethora of discovery was taken concerning his cause of death and circumstances
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surrounding the decision to block an autopsy. This is such a crucial issue, that the Motion cannot
be effectively written under 5 pages.
13. In fact, deposition testimony is so critical to understanding the spoliation issue, that the testimony
and records of the following individuals must be included in the Motion: Plaintiff, Howard
Adelman, Plaintiff, Judith Sclawy, Deputy Chief Medical Examiner, Dr. Manfred Borges, Chief
Medical Examiner, Dr. Mark Coburn, Director of the Toxicology Laboratory, Dr. William Hearn,
Chief Ranger Ed Clark and Detective in the major crimes unit of Collier County Sheriff’s Office,
Kevin O’Neill.
14. Good cause exists for seeking this relief. Based on the complexity of this issue, 11 pages of
testimony and 5 pages of case law and argument is necessary to properly present the argument and
protect the interests of the Defendants.

WHEREFORE, DEFENDANTS, respectfully request that this Honorable Court grant leave to file the
16-page Motion to Dismiss Based on Spoliation of Evidence.

By:____s/Kevin D. Franz_____
William. S. Reese Esq.
Florida Bar No. 187183
[e-mail]
Kevin D. Franz, Esq.
Florida Bar No. 015243
[e-mail]
LANE, REESE, SUMMERS, ENNIS &
PERDOMO, P.A.
2600 Douglas Road
Douglas Centre, Suite 304
Coral Gables, FL 33134
Phone: [phone];
Fax: [phone]
Attorneys for Defendants, Boy Scouts of
America and The South Florida Council, Inc.

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CERTIFICATION OF GOOD FAITH
Pursuant to Local Rule 7.1(a)(3) and Judge Goodman’s internal procedures, counsel for the
movant has conferred with counsel for the Plaintiffs telephonically in a good faith effort to resolve the
issues raised in the motion. Plaintiffs’ counsel does not agree to the requested relief.

CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true copy of the foregoing was sent October 7, 2011 to: Robert D.
Peltz, Esq, Ira H. Leesfield, Esq., LEESFIELD & PARTNERS, P.A., 2350 South Dixie Highway, Miami,
FL, 33133; Eric Kleinman, Esq., Kleinman & Arrizabalaga, P.A., 150 SE 2nd Avenue, Suite 1105, Miami,
FL 33131; Greg Gaebe, Esq., Devang Desai, Esq., Gaebe, Mullen Antonelli, Esco & DiMatteo, 420 S.
Dixie Highway, Third Floor, Coral Gables, FL, 33146; Ubaldo J. Perez, Jr., Esq., LAW OFFICES OF
UBALDO J. PEREZ, JR., P.A., 8181 NW 154th Street, Suite 210, Miami Lakes, FL 33016.
By:____s/Kevin D. Franz__________
William. S. Reese Esq.
Florida Bar No. 187183
[e-mail]
Kevin D. Franz, Esq.
Florida Bar No. 015243
[e-mail]
LANE, REESE, SUMMERS, ENNIS &
PERDOMO, P.A.
2600 Douglas Road
Douglas Centre, Suite 304
Coral Gables, FL 33134
Phone: [phone]
Fax:
[phone]
Attorneys for Defendants, Boy Scouts of
America and The South Florida Council, Inc.

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