Corbacho Daudinot v. Puig Valdes et al

Filing 80

REPLY to Response to Motion re 74 Second MOTION for Sanctions under Rule 37 filed by Yasiel Puig Valdes, Maritza Valdes Gonzalez. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C)(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’ REPLY MEMORANDUM IN
SUPPORT OF THEIR RULE 37 MOTION FOR DISMISSAL
Defendants, Yasiel Puig Valdes and Maritza Valdes Gonzalez, submit this reply
memorandum in support of their Rule 37 Motion for Dismissal (“Rule 37 Motion”) (ECF
No. 74).
Introduction
Nearly two years ago now, plaintiff filed this action accusing defendants of
conspiring with the Cuban government to torture plaintiff.

For nearly two years,

defendants have had to live with this incendiary, reputation-damaging allegation hanging
over their heads. For nearly a year, defendants have been trying to depose plaintiff,
expose his scurrilous allegations for the shake down that they are and finally put this
matter behind them. And for nearly a year now, plaintiff has made a mockery of the rules
of civil procedure by failing to appear on three different occasions for his properly noticed
deposition (this last time, on a date of his own choosing).

Nothing in Plaintiff’s Response in Opposition to the Rule 37 Motion (ECF No. 76)
justifies or excuses plaintiff’s conduct. The fact is that this lawsuit never should have
been filed in the first place. It certainly should not be allowed to linger any longer.
The Undisputed Facts
The following facts are not in dispute:
•

At the June 24, 2014 hearing on Defendants’ Motion to Dismiss the Second

Amended Complaint, the Court advised plaintiff’s counsel as follows:
Ms. Bravo, you have chosen – you and your client have
chosen – to bring this lawsuit at this time in this court, and now
you have an obligation, along with your client, to prosecute it
according to the schedule and rules of this court … So, I am
not inclined to be forgiving of deadlines because the choice to
avail yourself of the court is yours.
(Transcript, excerpts attached as Exhibit A, at 16:7-16.)
•

At that same hearing, undersigned counsel expressly advised the Court and

plaintiff’s counsel that, “I intend … the moment we walk out of the courtroom [to] clear a
deposition date for the plaintiff in Miami.” (Ex. A at 15:21-22.)
•

As promised, on June 25, 2014, undersigned counsel noticed plaintiff’s

deposition. The deposition was set for August 7, 2014, but defendants’ counsel sent an
accompanying email to plaintiff’s counsel stating that defendants’ were willing to work
with plaintiff on dates. (ECF No. 52, Ex. A at 1.) Plaintiff’s counsel never responded.
•

Plaintiff failed to appear for this deposition on August 7. Plaintiff never filed

a motion for protective order as required under Fed. R. Civ. P. 26(c)(1)(B). Nor did plaintiff
even bother to provide any notice that he would not be appearing.

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•

On August 12, 2014, defendants again noticed plaintiff’s deposition, this

time for September 12, 2014. Again, defendants’ counsel sent an accompanying email
to plaintiff’s counsel stating that defendants’ were willing to work with plaintiff on dates.
(ECF No. 52, Ex. B at 1.) Plaintiff’s counsel never responded.
•

Plaintiff failed to appear for his deposition on September 12, 2014. Again,

plaintiff never filed a motion for protective order as required. Nor did plaintiff bother to
provide any notice that he would not be appearing.
•

In September of 2014, defendants’ counsel tried repeatedly to obtain a date

certain for plaintiff’s deposition. (See ECF No. 52, Exs. C, D and E.) Plaintiff never
provided such a date and, so, defendants filed their first Rule 37 Motion for Sanctions
(ECF No. 52).
•

On November 11, 2014, the Court denied defendants first Motion for Rule

37 Sanctions, but required plaintiff to make himself available for deposition prior to the
January 14, 2015 mediation in this case. (ECF No. 60.)
•

On January 7, 2015, still not having made himself available for deposition,

plaintiff filed a motion to stay this action. (ECF No. 63.) The case did not settle at
mediation and, on January 30, 2015, the Court, noting that the Case had been pending
for nearly two years, denied the motion to stay and admonished the parties to proceed
with discovery. (Transcript, excerpts attached as Exhibit B, at 9-10.)
•

On March 3, 2015, defendants noticed plaintiffs’ deposition for March 17,

2015. Plaintiffs’ counsel responded that she would not be available on that date and
requested that the deposition be rescheduled for April 21, 2015. (ECF No. 74, Ex. C.)

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Despite the impending Court-imposed pretrial deadlines, defendants accommodated
plaintiff’s counsel and re-noticed plaintiff’s deposition for April 21, as requested.
•

Plaintiff did not appear for his deposition on April 21, nor did he file the

required motion for protective order. Instead, at 4:00 pm on April 20, plaintiff’s counsel
called to tell defendants’ counsel for the first time that the deposition would not be going
forward.
Discussion
Plaintiff’s real argument in support of his complete failure to engage in discovery
appears to be that the rules of civil procedure (and the Court’s express admonition that
the parties go forward with the court-ordered schedule) do not apply if the plaintiff is
having settlement discussions with defendants. (See ECF No. 76 at 4-5.) Plaintiff, of
course, cites no authority in support of this proposition. The fact is there is no such
authority. To the contrary, the law is clear that court deadlines cannot be unilaterally
ignored by a party. See S.D. Fla. L.R. 26.1(a) and (f).
To be clear, defendants never agreed to a stay of discovery pending settlement
discussion. Nor, for that matter, did anybody ever approach defendants about such a
stay (had anybody done so, defendants, tired as they are about having this case hang
over them and cognizant of the Court’s admonition to move this case forward, would not
have agreed).
Plaintiff next argues that defendants’ Rule 37 Motion should be denied because
defendants failed to comply with the “meet and confer” requirements of Fed. R. Civ. P.
37(d), and S.D. Fla. L.R. 7.1(a)(3) (ECF No. 76 at 5-7). That is simply false. As detailed
above, (see pp. 2 - 4), defendants have spent the better part of the last year conferring

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with plaintiff’s counsel, trying to schedule plaintiff’s deposition for a “mutually convenient”
date.
Realizing perhaps that he has no valid justification for his complete failure to
engage in discovery, plaintiff devotes the last several pages of his response to arguing
that the Court ought not enter a sanction that involves the dismissal of plaintiff’s two year
old case. (ECF No. 76 at 7-10.) In support of this argument, Plaintiff relies on two cases
that are plainly inapposite. Samadi v. Bank of America, N.A., 476 Fed. Appx. 819 (11th
Cir. 2012) involved a pro se plaintiff who refused to attend his deposition unless he
received certain materials from defendant in anticipation of his deposition. Taylor v.
Taylor B.C., 133 Fed. Appx. 707 (11th Cir. 2005), involved another pro se plaintiff who did
in fact show up for his deposition but repeatedly lodged inappropriate objections.
Plaintiff’s reliance on these cases is mystifying for two reasons. First, in both those cases
the court actually sanctioned plaintiffs, despite the deference normally given to pro se
litigants. See Samadi at 821. Second, in stark contrast to plaintiff here, the pro se litigants
in the cases relied on by plaintiff either appeared for their deposition or advised
defendants in advance that plaintiff would not be appearing unless certain conditions were
met. That did not happen here and, as a result, defendants have repeatedly incurred
significant attorney’s fees preparing for depositions that never occurred.
Equally bafflingly is plaintiff’s reliance on Carlucci v. Piper Aircraft Corp., Inc., 775
F.2d. 1440, (11th Cir. 1985) and Kelly v. Old Dominion Freight Line, Inc., 376 Fed. Appx.
909 (11th Cir. 2010), for the proposition that plaintiff’s conduct here has not evinced the
type of bad faith that is necessary to warrant dismissal pursuant to Rule 37. (ECF No. 76
at 9-10.) Without belaboring the point, the conduct addressed in those cases is the exact
conduct plaintiff has engaged in here, including, ignoring court rulings, imposing plaintiff’s
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own time constraints, making conflicting representations to the court, failing to timely
respond to requests for production, failing to respond to the opposing party’s requests to
schedule plaintiff’s deposition and failing to appear for plaintiff’s scheduled deposition.
See Carlucci at 1447-48 and Kelly at 914-915.
In sum, plaintiff’s actions here are precisely the type of bad faith conduct that
warrants a dismissal of his case. He filed an action he was not ready to prosecute and
then, for nearly a year, has strung along the Court and defendants with false promises
about his imminent availability for deposition.
By way of example, on September 16, 2014, plaintiff’s counsel wrote to
defendants’ counsel: “The Chapman case goes to trial in mid-November. I will be unable
to do the depo at that time. Let’s agree to something in December, then?” (ECF No. 52,
Exhibit E.) At the November 5 hearing on defendants’ first Motion for Rule 37 Sanctions,
plaintiff’s counsel told the Court, “[W]e’re hoping this week he is going to be released and
we can go ahead and get the Visa for him to come to the United States in order to proceed
with the deposition.” (Transcript, excerpts attached as Exhibit C, at 2:23-25.) When the
Court asked how long it would take for plaintiff to get his visa and come to the United
States, plaintiff’s counsel responded, “Before mediation—the date scheduled for
mediation is January 14th. We are hoping to have him for deposition before that time.”
(Id. at 3:1-6.) Then, on March 5, 2015, plaintiff’s counsel wrote to defendants’ counsel,
“Our client should be in Miami by the end of the month.” (ECF No. 74, Exhibit C.) Finally,
on March 6, 2015, plaintiff’s counsel wrote, “Please reschedule the deposition to April 21,
and the services of an interpreter will be necessary.” (ECF No. 74, Exhibit C.)
Enough is enough. As the Court explained to plaintiff’s counsel nearly four months
ago, “When you filed this case, and made the legal strategic decision to file this case at
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the time you did, you knew your client was being held.” (Exhibit B at 3:21-24.) The Court
has shown enough patience already, “I have also given more time to the case because I
knew of the difficulties you had discussed. But I also advised you that we were not going
to just keep rolling it over.” (Ex. B at 4:1-4.) It is time to bring this two year old case to
an end.
Conclusion
For the foregoing reasons, and the reasons set forth in defendants’ Rule 37 Motion
(ECF No. 74), defendants move for an order dismissing this action as a sanction for
plaintiff’s complete failure to abide by the rules of civil procedure concerning discovery.
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
(ECF No. 52).
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 May 18, 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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