Corbacho Daudinot v. Puig Valdes et al

Filing 74

Second MOTION for Sanctions under Rule 37 by Yasiel Puig Valdes, Maritza Valdes Gonzalez. (Attachments: #1 Exhibit Exhibit A, #2 Exhibit Exhibit B, #3 Exhibit Exhibit C, #4 Exhibit Exhibit D)(Andrews, Averil)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION

MIGUEL ANGEL CORBACHO
DAUDINOT
Plaintiff,
CASE NO.: 1:13-cv-22589-KMW
v.
YASIEL PUIG VALDES and
MARITZA VALDES GONZALEZ,
Defendants.
___________________________/
DEFENDANTS’ RULE 37 MOTION FOR DISMISSAL PURSUANT TO
RULE 37 AND MEMORANDUM OF LAW IN SUPPORT THEREOF
Defendants, Yasiel Puig Valdes and Maritza Valdes Gonzalez, pursuant to Fed.
R. Civ. P. 37(d), move for a dismissal with prejudice of this action as a sanction against
plaintiff, Miguel Angel Corbacho Daudinot, for again failing to appear for a properly
noticed deposition (which was set for a date of his own counsel’s choosing). The grounds
for this motion are set forth in the following memorandum of law.
Memorandum of Law
It’s been 21 months since this case was filed and plaintiff has not produced any
evidence to support his incredible accusation that Yasiel Puig, a Major League Baseball
player, and his mother conspired with the Cuban government to torture plaintiff in violation
of the Torture Victims Protection Act (“TVPA”). Plaintiff has been given ample opportunity
to present such evidence. He simply hasn’t done so and, in the process, he’s made a
mockery of the federal rules of civil procedure and prejudiced defendants’ ability to rid
themselves of plaintiffs’ defamatory allegations.

Procedural Background
On October 9, 2014 (15 months after the filing of plaintiff’s initial complaint),
defendants filed a Rule 37 Motion for Sanctions based on plaintiff’s failure to appear for
his duly noticed depositions on August 7, 2014 and September 12, 2014 or to provide a
date certain in December for plaintiff’s deposition. (ECF No. 52.) As noted then, plaintiff
not only failed twice to appear for his deposition without any notice or explanation, plaintiff
did not even seek a protective order as required by the Local Rules. On November 11,
2014, the Court denied defendants’ motion but required plaintiff to make himself available
for deposition prior to the January 14, 2015 mediation in this matter. (ECF No. 60.) The
Court also ordered that, “prior to his deposition, Plaintiff shall apprise Defendants that he
has obtained a visa and shall notify Defendants when he arrives in the United States.”
(Id.)
Despite the Court’s clear instructions, defendants did not hear a word from plaintiff
until January 7, 2015, when he filed his Motion for Stay of Proceedings Pending Travel
Visa of Plaintiff from Cuba to the United States. (ECF No. 63.) In the motion, plaintiff’s
counsel requested that the Court “stay the proceedings for a period of three (3) months
so that [plaintiff] may finalize his visa process and is allowed to attend the deposition…,”
despite admitting that plaintiff was incarcerated [in Cuba], and that it was “by no means
certain when…release will be granted” (ECF No. 63 at 5.) The Court denied plaintiff’s
motion to stay and pointedly advised the parties to proceed with discovery according to
the Court’s scheduling order. (ECF No. 71.)
On March 3, 2015, mindful of the Court’s warning and the fast-approaching
discovery deadlines, defendants noticed plaintiff’s deposition for March 17, 2015 and

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served their first request for production to plaintiff. (Defendants’ Third Notice of Taking
Plaintiff’s Deposition is attached as Exhibit A and Defendants’ First Request for
Production is attached as Exhibit B). On March 5 and 6, plaintiff’s counsel notified
defendants’ counsel that plaintiff would not be available for deposition on March 17 and
requested that the deposition be rescheduled for April 21, 2015.

(See Exhibit C.)

Defendants accommodated plaintiff’s counsel’s request and rescheduled plaintiff’s
deposition for April 21, 2015. (Defendants’ Fourth Notice of Taking Plaintiff’s Deposition
is attached as Exhibit D.)
Defendants’ counsel prepared accordingly for plaintiff’s deposition only to receive
a phone call from plaintiff’s counsel at 4:00 pm on the eve of plaintiff’s deposition advising
defendants for the first time that plaintiff was still in Cuba and would not be appearing for
his deposition – a deposition, it bears reiterating, that was re-scheduled for a date of
plaintiff’s choosing.
Not only did plaintiff fail to appear (for a third time) at his properly noticed
deposition, he also completely ignored defendants’ first request for production (the
response to which was due on April 6). To date, plaintiff has not responded to defendants’
request for production nor has he produced a single document in response thereto.
Plaintiff’s continued disregard of the rules of civil procedure has prejudiced
defendants’ ability to timely prepare their defense and bring closure to this case. By way
of example, the deadline for defendants’ disclosure of expert witnesses and reports is
April 30, 2015. Without plaintiff’s deposition testimony, defendants cannot reasonably be
expected to engage an expert and produce a meaningful report. More broadly, without

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plaintiff’s deposition testimony, defendants are unable to determine what other discovery
they ought to be pursuing in defense of this case.
Applicable Law
Rule 37(d)(1)(A) of the Federal Rules of Civil Procedure provides that: “The court
where an action is pending may, on motion, order sanctions if: (i) a party…fails, after
being served with proper notice, to appear for that person’s deposition; or (ii) a party after
being properly served with …a request for inspection under Rule 34, fails to serve its
answers, objections, or written response.”
Rule 37(d)(3) sets forth the sanctions that may be awarded for a party’s failure to
appear at its deposition. Those sanctions include the striking of the party’s pleadings,
dismissal of the action and the awarding of attorneys’ fees. “Rule 37 sanctions are
intended to prevent unfair prejudice to the litigants and insure the integrity of the discovery
process.” Gratton v. Great American Communications, 178 F.3d 1373, 1374 (11th Cir.
1999). 1
A court's authority to impose sanctions for refusal to comply with discovery orders
is broad. S.E.C. v. Utsick, 373 Fed. Appx. 924, 926-7 (11th Cir. 2010). “[T]he district
court retains the discretion to dismiss a complaint where the party's conduct amounts to
flagrant disregard and willful disobedience of the court's discovery orders.” Kelly v. Old
Dominion Freight Line, Inc., 376 Fed. Appx. 909, 913 (11th Cir. 2010) (upholding dismissal
with prejudice as a sanction where the plaintiff committed numerous discovery violations).

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Alternatively, the Court should dismiss this action pursuant to Rule 41(b), Fed. R. Civ. P., which
authorizes “[a] district court …, on defendant's motion, to dismiss an action for failure to prosecute
or to obey a court order or federal rule.” Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir.1985).
Here, because there is a clear record of delay or willful contempt, the dismissal of plaintiff’s action
should be with prejudice. McKelvey v. AT&T Techs., Inc., 789 F.2d 1518, 1520-21 (11th
Cir.1986); Kelly v. Old Dominion Freight Line, Inc., 376 Fed. Appx. 909, 913-14 (11th Cir. 2010).
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See Allstate Ins. Co. v. Palterovich, 04-21402-CIV, 2008 WL 2741119 (S.D. Fla. 2008)
(finding that plaintiff’s repeated failure to attend his properly noticed depositions
warranted the imposition of sanctions in the form of a default judgment); Gratton, 178
F.3d at 1375 (granting dismissal with prejudice where the “case, almost from the very
beginning, has been attended by the plaintiff’s unwillingness or inability to comply with
the civil rules, ordinary and expected litigations procedures, and the orders of this court.”).
Conclusion
For the foregoing reasons, defendants move for an order dismissing this action as
a sanction for plaintiff’s repeated failure to appear at his duly noticed depositions (and
plaintiff’s failure to respond to defendants’ first request for production of documents).
Additionally, defendants request that they be awarded their reasonable expenses,
including attorney’s fees, in pursuing both this motion and their first motion for sanctions.
Kelly, 376 Fed. Appx. at 915.
Respectfully submitted,
SANTINI LAW
1001 Brickell Bay Drive
Suite 2650
Miami, Florida 33131
Tel: [phone]
Fax: [phone]

By: /s/ Sean R. Santini
Sean R. Santini
Florida Bar No. 832898
[e-mail]
Averil Andrews
Florida Bar No. 0105700
[e-mail]

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CERTIFICATE OF SERVICE
I hereby certify that on April 21, 2015, I electronically filed the foregoing document
with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is
being served this day on all counsel of record or pro se parties identified on the attached
Service List in the manner specified, either via transmission of Notices of Electronic Filing
generated by CM/ECF or in some other authorized manner for those counsel or parties
who are not authorized to receive electronically Notices of Electronic Filing.

By: /s/ Averil Andrews
Averil Andrews

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SERVICE LIST

Kenia Bravo, Esq.
[e-mail]
Law Offices of Avelino J. Gonzalez, P.A.
6780 Coral Way
Miami, FL 33155
Avelino Jose Gonzalez, Esq.
[e-mail]
Law Offices of Avelino J. Gonzalez, P.A.
6780 Coral Way
Miami, FL 33155

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