Chavez v. Arancedo

Filing 44

ORDER granting 37 Defendant's Motion for Protective Order; denying 38 Plaintiff's Motion to Compel and for Sanctions. Signed by Magistrate Judge Edwin G. Torres on 7/17/2017. (js02)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-20003-Civ-TORRES
NARCISA PEREZ CHAVEZ,
Plaintiff,
v.
BERNARDA M. ARANCEDO,
Defendant.
______________________________________/
OMNIBUS ORDER ON DISCOVERY MOTIONS
This matter is before the Court on Defendant’s Motion for Protective Order
and Plaintiff’s Motion to Compel Defendant’s Deposition and for Sanctions. [D.E.
37-38]. Having reviewed the motions, responses, replies, relevant authority, and
record evidence submitted in support of or in opposition to the same, the Court’s
rulings on each motion follows.
I.

BACKGROUND

This action involves Plaintiff’s allegations that Defendant violated the Fair
Labor Standards Act (the “FLSA”) and the Florida Minimum Wage Act. Plaintiff
claims that she had an employee relationship with Defendant and that her earnings
fell below both the Federal and Florida minimum wage for the services she
performed for Defendant at Defendant’s personal residence. Defendant denies the
allegations and the matter is currently set for trial on October 9, 2018 with a
discovery deadline of June 28, 2018.
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II.

APPLICABLE LEGAL PRINCIPLES AND LAW

“Rule 26(c) allows the issuance of a protective order if ‘good cause’ is shown.
Good cause “generally signifies a sound basis or legitimate need to take judicial
action.” In re Alexander Grant & Co. Litig., 820 F.2d 352, 356 (11th Cir. 1987). The
Eleventh Circuit has identified four factors to consider in determining the existence
of good cause: “‘[1] the severity and the likelihood of the perceived harm; [2] the
precision with which the order is drawn; [3] the availability of a less onerous
alternative; and [4] the duration of the order.”’ Kleiner v. First National Bank of
Atlanta, 751 F.2d 1193, 1205 (11th Cir. 1985).
In addition to requiring good cause, this circuit has also required the district
court to balance the interests of those requesting the order.

See Farnsworth v.

Center for Disease Control, 758 F.2d 1545, 1547 (11th Cir. 1985) (“While Rule 26(c)
articulates a single standard for ruling on a protective order motion, that of ‘good
cause,’ the federal courts have superimposed a somewhat more demanding
balancing of interests approach under the Rule.”) (citations omitted). While a court
has broad discretion to fashion a protective order, a ‘“court must articulate its
reasons for granting a protective order sufficient for appellate review.”’ McCarthy v.
Barnett Bank of Polk Cty., 876 F.2d 89, 91 (11th Cir. 1989) (citations omitted); see
also Auto-Owners Ins. Co. v. Southeast Floating Docks, Inc., 231 F.R.D. 426, 429–30
(M.D. Fla. 2005) (“Rule 26(c) provides that upon a showing of good cause, a court
‘may make any order which justice requires to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense.’ The party
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seeking a protective order has the burden to demonstrate good cause, and must
make ‘a particular and specific demonstration of fact as distinguished from
stereotyped and conclusory statements’ supporting the need for a protective order.”)
(citations omitted).
III.
A.

ANALYSIS

Defendant’s Motion for a Protective Order

The gist of Defendant’s motion for a Protective Order is that Plaintiff
unilaterally set Defendant’s deposition for June 13, 2017 when Plaintiff understood
that Defendant would be unavailable to attend. Defendant asserts that Plaintiff
refused to set the date for Defendant’s deposition on June 15, 2017, or on another
date when Defendant indicated that she would be available in August or
September. As such, Defendant moves for a Protective Order on the basis that
Defendant did not simply refuse to appear for her deposition; rather Plaintiff
allegedly scheduled Defendant’s deposition when Plaintiff clearly knew that
Defendant would be unavailable to attend.
In response, Plaintiff argues that Defendant’s Motion lacks merit, in part,
because Defendant filed a motion for Protective Order at the eleventh hour to a
properly scheduled and noticed deposition. Plaintiff also contends that Defendant
failed to appear for the deposition and that the Court had not yet ruled on
Defendant’s motion for Protective Order. Because Defendant did not attend the
deposition scheduled on June 13, 2017, Plaintiff took a certificate of non-appearance
for Defendant’s failure to appear.

Defendant’s failure has allegedly resulted in
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wasted attorney preparation time, including unnecessary costs for a court reporter
and translator.
Furthermore, Plaintiff suggests that the dispute over Defendant’s deposition
date is evidence of Defendant’s continued bad faith litigation tactics so as to
effectively “burn out” necessary discovery and prejudice Plaintiff’s ability to
prosecute this case. Plaintiff believes that Defendant had no justification to waste
approximately 4-5 months of discovery and prejudice Plaintiff by Defendant
purposefully failing to appear for a deposition.

Because Defendant caused a

significant last-minute burden on Plaintiff’s calendar, Plaintiff requests that
Defendant pay attorney’s fees and costs for the failure to appear at the scheduled
deposition date. In order to resolve Defendant’s Motion, we turn our attention to
the email correspondence that sets forth the chain of events leading to the
scheduling of Defendant’s deposition for June 13, 2017. [D.E. 37-1, 37-2].
On April 4, 2017, Plaintiff sent a draft notice of taking the Defendant’s
deposition.

In that email, Plaintiff proposed dates to depose Defendant in the

month of April.

Defense counsel responded on April 5, 2017 and stated that

Defendant’s deposition would have to take place in May or June. Later that same
day, Plaintiff sent an email suggesting that she would be available on May 11, May
15, or May 18 to depose Defendant.
On May 3, 2017 – the date of the Rule 26(f) conference – Plaintiff’s counsel
sent another draft notice of taking the Defendant’s deposition and proposed either
June 5 or June 7 as a deposition date.
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Plaintiff demanded that Defendant’s

deposition take place no later than mid-June. Defense counsel informed Plaintiff on
May 5 that Defendant would be out of the country for the two dates in June that
Plaintiff proposed. Plaintiff responded on May 8 that Defendant should provide
alternative dates for Defendant’s depositions and reiterated that the deposition
should occur no later than mid-June. Later that afternoon, Defendant responded
that she would propose alternative dates for Defendant’s deposition. Approximately
five minutes later, Plaintiff stated that if she did not receive proposed dates by noon
on May 9 then Plaintiff would unilaterally set the date for Defendant’s deposition.
Defendant again responded on May 8 and explained that (1) Defendant was
travelling internationally and was unavailable to provide dates, (2) Defendant
would provide dates as soon as reasonably possible, (3) requested that Plaintiff’s
counsel not unilaterally set Defendant’s deposition, and (4) reminded Plaintiff that
trial was not until September/October 2018.
On May 10, Plaintiff emailed Defendant and attached Plaintiff’s notice of
taking Defendant’s deposition for June 8, 2017. Plaintiff indicated that if this date
did not work for Defendant, then Defendant should provide alternative dates by no
later than May 12 for the deposition to occur by mid-June. Defendant responded on
May 12 that she would propose dates for the deposition by the end of the day or on
May 13.

As promised, on May 13, Defendant explained to Plaintiff that the

Defendant would not be available on June 8 because Defendant would be travelling
out of the country. However, Defendant proposed June 15 as an available date for a
deposition and suggested that the deposition could also be scheduled at some time
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between August 25 and September 5, or after September 22. In the same email,
Defendant proposed scheduling Plaintiff’s deposition for June 13.
On May 15, Plaintiff indicated that she would not be available on June 15 to
depose the Defendant. Yet, Plaintiff re-noticed the Defendant’s deposition for June
13 because Defendant purportedly suggested that she would be available on that
date. Defendant responded later that afternoon and requested that Plaintiff confer
before unilaterally setting deposition dates. Defendant also clarified that everyone
would be available on June 15, but that only defense counsel would be available on
June 13, which is allegedly why Defendant proposed the latter date for Plaintiff’s
deposition. Plaintiff replied again on May 15 and asserted that she would not set a
date for Plaintiff’s deposition because Plaintiff was the first to ask for dates and
Defendant allegedly refused to provide dates for many weeks. The final emails
between the parties occurred on May 17 where the parties continued to disagree
about the date for Defendant’s deposition.
There is no doubt that the dispute between the parties in connection with the
scheduling of Defendant’s deposition could have been easily avoided. As the emails
indicate, there was an ongoing dispute on the scheduling of Defendant’s deposition.
The most relevant communication between the parties occurred when defense
counsel emailed Plaintiff on May 15 and explained that Defendant would not be
available on June 13 because Defendant would be travelling abroad.

Defense

counsel clarified that the proposal to take Plaintiff’s deposition on June 13 was only
because defense counsel would be available – not the Defendant.
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Defense counsel

further stated that everyone could be present for June 15, but reiterated that only
defense counsel could be present for June 13. Plaintiff’s response to that email
demonstrated that Plaintiff understood that June 13 was not an available date for
the Defendant’s deposition. Yet, Plaintiff refused to accommodate another date and
wrote to Defendant: “[s]hould you wish to provide me with dates for the depositions
to occur before June 14 for us to reset the Defendants [sic] depositions we can work
with you on re-setting. Absent same, we intend to proceed as noticed.” [D.E. 37-2].
After a thorough review of the communications between the parties and the
arguments presented, we find that Plaintiff had no legitimate reason to unilaterally
schedule Defendant’s deposition for June 13. Defendant’s email on May 15 was
clear that only defense counsel would be available on June 13, which is why
Defendant proposed June 13 to depose Plaintiff.

Instead of attempting to

accommodate Defendant, Plaintiff expressed frustration that Plaintiff might be
deposed before Defendant and unilaterally set June 13 for Defendant’s deposition.
Plaintiff appears to have taken issue with Defendant’s unavailability and the
possibility that Plaintiff might be deposed first because Plaintiff was allegedly the
first party to request dates. As such, Plaintiff unilaterally scheduled Defendant’s
deposition despite repeated emails from defense counsel that the Defendant would
be out of the country and unable to attend.
The facts presented are closely related to those in Karakis v. Foreva Jens Inc.,
2009 WL 113456, at *6 (S.D. Fla. Jan. 19, 2009). In Karakis, a deponent did not
appear for a unilaterally scheduled deposition. Before the deposition, the deponent
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indicated to Plaintiff’s counsel that he would be unavailable due to scheduling
conflicts and requested that the deposition be rescheduled at a mutually convenient
time. The Court found that the unilateral scheduling of depositions was a serious
concern and that the practice often leads to unnecessary motions and a waste of
everyone’s time:
The Court views with concern the unilateral scheduling of depositions
absent the inability of the parties, after a good faith effort, to agree on
mutually convenient dates. The unilateral setting of depositions
(especially coupled with an unwillingness by counsel to reschedule the
deposition date) leads to the filing of unnecessary motions, as
demonstrated in this case. Such motions are a waste of the parties’
time and money, as well as a waste of scare judicial resources.
Id. at *6.
The same reasoning applies here.

By failing to reach an appropriate

compromise on the scheduling of Defendant’s deposition, Defendant filed a motion
for Protective Order and Plaintiff filed a corresponding motion for sanctions – both
of which have resulted in waste of the parties’ time and the Court’s judicial
resources. Both motions could have been easily resolved between the parties. And
contrary to Plaintiff’s assertions, Defendant never refused to appear for a
deposition. Defendant merely offered June 15, 2017 as an available deposition date,
including any date between August 25 and September 5, 2015, or any date after
September 22, 2017. Plaintiff simply did not appreciate Defendant’s response and
unilaterally scheduled Defendant’s deposition for a date that Defendant would
obviously not appear. As a result, Plaintiff accumulated unnecessary costs for a
court reporter and translator when Plaintiff knew that Defendant would not attend.
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Plaintiff’s position is further weakened by the fact that Plaintiff suffered no
prejudice by Defendant’s unavailability because the discovery deadline does not
expire until nearly one year later – i.e. June 28, 2018. .
In any event, the parties are directed to strictly comply with both the Federal
and Local Rules in scheduling depositions and to accommodate the calendars of
opposing lawyers.

Because Defendant (1) attempted to accommodate Plaintiff’s

demands for a deposition date, (2) carefully explained to Plaintiff that June 13, 2017
was not an available date, and (3) Plaintiff went ahead and unilaterally noticed
Defendant’s deposition anyway, we find that there is good cause supporting
Defendant’s Motion for Protective Order.

As such, Defendant’s Motion is

GRANTED. In scheduling future depositions, neither party may unilaterally set
any depositions in this case without prior leave of court. A failure to adhere to this
requirement may result in sanctions.
B.

Plaintiff’s Motion to Compel Defendant’s Deposition and
Sanctions

In connection with the same facts set forth above, Plaintiff filed a Motion to
Compel Defendant’s deposition and sanctions on June 15, 2017.

[D.E. 38].

Specifically, Plaintiff requested that Defendant’s deposition be compelled to occur
no later than July 1, 2017 and that Plaintiff be awarded fees and costs associated
with the filing of the motion, all related, work, preparation for Defendant’s
deposition, any costs associated with the certificate of non-appearance, and the
costs of a translator.

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In response, Defendant argues that Plaintiff has not carried her burden of
proof nor met established legal criteria for either an order compelling Defendant’s
deposition or an award of sanctions since the scheduling conflict was completely
avoidable. Defendant contends that the emails between the parties could not have
been clearer in that only defense counsel would be available on June 13, 2017 – not
the Defendant. As such, Defendant alleges that Plaintiff has in bad faith continued
to threaten to unilaterally set the Defendant’s deposition on dates Plaintiff’s counsel
knows Defendant is unavailable, and Defendant is scheduled not to be in the United
States. Therefore, Defendant requests that the Court (1) deny Plaintiff’s Motion, (2)
find that Plaintiff has failed to meet the requirements set forth in Federal Rule of
Civil Procedure 37, (3) require Plaintiff’s counsel to reasonably accommodate
Defendant’s and Defendant’s counsel’s calendars and schedule Defendant’s
deposition to occur on a mutually agreeable date, and (4) deny any sanctions
against Defendant, including costs and fees incurred by Plaintiff’s counsel related to
Plaintiff’s Motion.
“Federal Rules of Civil Procedure 37(d) authorizes the imposition of
sanctions, including dismissal, for a complete failure to appear for a deposition after
being served with notice” and provides that “[n]o prior court order is required for
Rule 37(d) sanctions.”

United States v. One Lot of U.S. Currency Totalling

$506,537.00, 628 F. Supp. 1473, 1476 (S.D. Fla. 1986) (alterations in original). Rule
37(d)(3) also makes clear that the imposition of reasonable fees and costs are

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mandatory unless the failure to appear was substantially justified or other
circumstances make an award unjust:
Sanctions may include any of the orders listed in Rule 37(b)(2)(A)(i)(vi). Instead of or in addition to these sanctions, the court must require
the party failing to act, the attorney advising that party, or both to pay
the reasonable expenses, including attorney's fees, caused by the
failure, unless the failure was substantially justified or other
circumstances
make
an
award
of
expenses
unjust.
Fed. R. Civ. P. 37(d)(3).
Without rehashing all of the email communications set forth above, we find
that Defendant was substantially justified in not appearing for the deposition that
Plaintiff unilaterally set in this case. There was no confusion that Defendant was
out of the country on June 13, 2017, and that only defense counsel could be present
on that date.

Nonetheless, Plaintiff scheduled Defendant’s deposition out of

frustration and incurred unnecessary costs and fees. Plaintiff’s Motion lacks any
merit because there was absolutely no justification for unilaterally setting
Defendant’s deposition on a date that Defendant was obviously unavailable to
appear.

And Plaintiff’s conduct was also unwarranted because the discovery

deadline in this action does not end until June 28, 2018. As such, Plaintiff’s Motion
is DENIED and the parties are directed to work in a professional and cooperative
manner on a date mutually convenient for both parties. A failure to do so may
result in sanctions.

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IV.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that:
A. Defendant’s Motion for a Protective Order is GRANTED. [D.E. 37].
B. Plaintiff’s Motion to Compel Defendant’s Deposition and Sanctions is
DENIED. [D.E. 38].
DONE AND ORDERED in Chambers at Miami, Florida, this 17th day of
July, 2017.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge

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