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Fees v. Zarco

United States District Court, S.D. Florida

August 16, 2017

HEATHER M. FEES, ET AL., Plaintiffs,



         THIS CAUSE came before the Court upon Defendant's Motion For Sanctions[1] 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 passed.[2]

         I. The Instant Motion to Compel

         On June 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.

         Following 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.

         Defendants 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.

         II. Plaintiff's Counsel's Repeated Non-Compliance with Federal Rules of Civil Procedure, the Local Rules and Orders of Court

         The 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 Civil Procedure.

         Plaintiffs 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].

         Judge 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.

         Plaintiffs' 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).

         The 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.

         III. Analysis

         Federal 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 ...

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