United States District Court, S.D. Florida
HEATHER M. FEES, ET AL., Plaintiffs,
ROBERT ZARCO, ESQUIRE, ET AL., Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO
L. GARBER UNITED STATES MAGISTRATE JUDGE
CAUSE came before the Court upon Defendant's Motion For
Sanctions for Plaintiffs' Violation of the
Court's Order [D.E.78] and to Compel Plaintiffs'
Compliance and Discovery [DE # 92] (the
“Motion”). Plaintiffs failed to file any response
to the Motion and the time for doing so has
Instant Motion to Compel
28, 2017, the undersigned held a discovery conference in this
matter. During the hearing, Defendants argued that
Plaintiffs' initial disclosures [DE # 46, filed May 18,
2017] were insufficient and that Plaintiffs refused to
provide the documentation identified in the initial
disclosures. At the hearing, the undersigned made clear that
Plaintiffs have an obligation to provide complete information
to support to their claims.
the hearing, the undersigned issued an Order Following
Discovery Conference [DE # 78] wherein the Court required
Plaintiffs to produce: “a computation of all damages
identified in paragraph C on page 18 of Plaintiffs'
Supplemented Disclosures” and all documents to support
said computation to Defendants and “any documents
detailing the settlement proceeds received by Plaintiffs in
the settlement in the California litigation and the sale of
Plaintiffs' businesses to CPI.” The undersigned
ordered Plaintiffs to produce all of the documents on or
before 5:00 PM on July 12, 2017.
have filed the instant Motion because Plaintiffs have not
produced the documents the Court ordered produced in the
Order Following Discovery Conference [DE # 78]. Further,
Defendants identify 12 sets of pending and outstanding
discovery requests propounded by Defendants to which
Plaintiffs have not sufficiently responded. (Motion at
10-11). Significantly, Plaintiffs have chosen not to file any
response at all to the Motion now before the Court.
Plaintiff's Counsel's Repeated Non-Compliance with
Federal Rules of Civil Procedure, the Local Rules and Orders
instant Motion alleges Plaintiffs' repeated failure to
comply with Orders of the Court and the Rules of Civil
Procedure. A review of the docket reveals that
Plaintiffs' current failure to comply with the
Court's previous Orders and obligations under the Rules
of Civil Procedure is not new. Rather, it appears to be a
continuation of a pattern of disregard and non-compliance
with the Orders of the Court and with the Federal Rules of
originally filed this lawsuit against Defendants, her former
attorneys, on February 13, 2017. Plaintiffs attempted to
amend the complaint in April 2017 [See DE # 34]
without leave of Court or permission from Defendants.
Instead, United States District Court Judge K. Michael Moore
required Plaintiff to file a motion for leave to amend.
[See DE # 43]. Plaintiffs filed a motion for leave
to amend the complaint on April 21, 2017 and Judge Moore
granted the motion. [See DE # 43].
Moore required Plaintiffs to refile the amended complaint on
or before May 5, 2017, however. Plaintiffs failed to
timely file the amended complaint. [See DE #
48]. On May 9, 2017, Judge Moore gave Plaintiffs another
opportunity to file an amended complaint, warning that
“future non-compliance with this Court's orders and
with the Local Rules of this District may subject the
offending party to sanctions or dismissal.”
[See DE # 48]. Plaintiff's counsel eventually
complied with Judge Moore's Order, filing the Amended
Complaint on May 11, 2017. [See DE # 49]. Defendants
filed a motion to dismiss the amended complaint and that
motion is pending.
failure to timely comply with the Local Rules and the rulings
of this Court with respect to the filing of the amended
complaint is not an isolated event. On July 25, 2017,
Plaintiffs' counsel improperly filed a Notice of Subpoena
in the docket in violation of the Local Rules. [See
DE # 84]. Plaintiffs served the subpoena on the bank where
Defendants have their law firm trust account seeking all
trust account records for Defendants' law firm. The
Subpoena improperly contained the entire trust bank account
number in violation of Federal Rule of Civil Procedure 5.2(a)
and United States District Court for the Southern District of
Florida Local Rule 26.1(b).
undersigned issued a protective order quashing the subpoena
and also directed the Clerk of Court to remove the subpoena
from the docket. [See DE #s 88 & 89].
Remarkably, on August 1, 2017, Plaintiffs' counsel filed
an identical subpoena for a second time. [See DE #
91]. The second subpoena once again improperly contained the
full account number for Defendants' trust bank account.
Defendants' counsel filed an emergency motion [DE # 101]
for protective order with the Court asking the Court to
strike the subpoena and requesting sanctions. The undersigned
was forced to again issue an Order quashing the subpoena and
directing the Clerk of Court to remove the subpoena from the
docket. [See DE # 103]. The undersigned notes that
Plaintiffs' counsel appears to be demonstrating a pattern
and practice of being indifferent to the Orders of this Court
at best or a flagrant disregard of the Court's Orders and
the requirements of the Local Rules and Federal Rules of
Civil Procedure at worst.
Rule of Civil Procedure 37 governs the failure of a party to
cooperate in discovery and allows for an award of sanctions
for said failure. Rule 37(b) governs failures to comply with
a Court Order and Rule 37(c) governs failure to disclose,
supplement an earlier response, or to admit. Federal Rule of
Civil Procedure 37 empowers the Court to employ a wide range