United States District Court, M.D. Florida, Orlando Division
VISTA CLINICAL DIAGNOSTICS, LLC and DAVIAN SANTANA, Plaintiffs,
PETAR MARKOVIC and JAVIER DEL HOYO, Defendants.
B. SMITH UNITED STATES MAGISTRATE JUDGE
case comes before the Court without a hearing on
Plaintiffs' Verified Motion to Compel Defendant, Javier
Del Hoyo's Attendance at Deposition and Request for
Sanctions (Doc. 59). Defendants have not file a response to
the motion and the time within to do so has expired. When a
party fails to respond, that is an indication that the motion
is unopposed. Foster v. The Coca-Cola Co., No.
6:14-cv-2102-Orl-40TBS, 2015 WL 3486008, at *1 (M.D. Fla.
June 2, 2015); Jones v. Bank of Am., N.A., 564
Fed.Appx. 432, 434 (11th Cir. 2014) (citing Kramer v.
Gwinnett Cty., Ga., 306 F.Supp.2d 1219, 1221 (N.D.Ga.
2004); Daisy, Inc. v. Polio Operations, Inc., No.
2:14-cv-564-FtM-38CM, 2015 WL 2342951, at *1 (M.D. Fla. May
14, 2015) (when defendant did not respond court could
consider motion to compel unopposed); Brown v. Platinum
Wrench Auto Repair, Inc., No. 8:10-cv-2168-T-33TGW, 2012
WL 333803, at *1 (M.D. Fla. Feb. 1, 2012) (after party failed
to respond, court treated motion for summary judgment as
unopposed). The Court proceeds on the basis that this motion
January 16, 2018, Plaintiffs noticed the deposition of
Defendant Javier Del Hoyo to be taken on February 9, 2018 in
the Bronx, New York where he resides (Id., at 1).
The deposition was coordinated and agreed to in advance with
Defendant's attorney (Id.). On February 7, 2018,
Defendants filed their Notice of Stipulation to Judgment in
which they unilaterally consented to all of the relief except
attorney's fees and costs that is sought in Counts I and
II of Plaintiffs' complaint (Doc. 52, ¶¶ 7-10).
Defendants stated that they were taking this action because
they had “come to the conclusion that it is not in the
best interest of any of the parties to continue to contest
this matter.” (Id., ¶ 6).
minutes after filing the stipulation, Defendants filed their
Emergency Motion for Protective Order, in which they argued
that in view of the stipulation, there was no longer any need
for their depositions and that the only purpose Plaintiffs
could have in taking their depositions was to harass them and
explore possible new causes of action (Doc. 53, ¶¶
3, 7-8). The Court denied Defendants' motion for
protective order because it did not comply with Local Rule
3.01(g) and because it did not present a true emergency (Doc.
55). After receiving the Court's Order, Defendants
re-filed their motion for protective order with counsel's
certificate that Plaintiffs opposed the motion (Doc. 56).
Counsel for Plaintiffs responded that the alleged Local Rule
3.01(g) conference was insufficient because it consisted of a
30 second telephone conversation while Plaintiffs'
counsel was taking a different deposition in New York (Doc.
57, ¶ 2). Plaintiffs also asserted that there was no
settlement (Id., ¶ 4). On February 8, 2018, the
Court denied the motion for protective order (Doc. 58).
39 minutes before Mr. Del Hoyo's deposition was scheduled
to begin, his attorney, Mr. Dillon, phoned Plaintiffs'
counsel and stated
… that he “had been advised” that Mr. Del
Hoyo had the flu and would not be appearing at all for
deposition. Mr. Dillon also added that Mr. Del Hoyo has a son
with cancer. When questioned further as to whether Mr. Dillon
had actually spoken to Mr. Del Hoyo, Mr. Dillon advised Ms.
Crider that this information had been related to him by
Howard A. Ross. For this Court's information, Mr. Howard
Ross is a fact witness in this case, who admitted (under oath
on February 7, 2018) to have been practicing law without a
license in the State of New York since his suspension from
the New York Bar in 2013.
(Doc. 59 at 2-3).
counsel appeared for Mr. Del Hoyo's deposition at which
time Mr. Dillon reiterated that his client would not be
appearing because he had the flu (Id., at 3).
However, Mr. Dillon was unable to produce any medical
evidence of his client's condition, or explain why his
client was unable to give more than 39 minutes notice of his
illness (Id.). At 2:42 p.m. on February 9, 2018,
Plaintiffs hired a private investigator to observe Mr. Del
Hoyo's movements (Doc. 60, ¶ 3). The investigator
arrived at Mr. Del Hoyo's residence at 4:06 p.m. where he
observed and photographed Mr. Del Hoyo smoking a cigarette
and walking in a normal manner (Id., ¶ 6).
upon this record the Court finds that Mr. Del Hoyo is a party
to this action. His deposition was properly scheduled and
noticed to occur on February 9, 2018 in the Bronx, New York,
where he resides, and nothing prevented Mr. Del Hoyo from
appearing for his deposition. The Court also finds that the
information communicated to Plaintiffs' counsel, that Mr.
Del Hoyo was too ill to be deposed, was a lie. Accordingly,
Plaintiffs' motion to compel and for sanctions is
GRANTED. Pursuant to Fed.R.Civ.P. 37:
(1) Mr. Del Hoyo shall appear and sit for his deposition
within the next 30 days at a date, time, and location
selected by counsel for Plaintiffs; and
(2) all costs of the attempted deposition on February 9,
2018, including Plaintiffs' reasonable attorney's
fees, court reporter fees, videographer fees, rental for the
space in which to take the deposition, transportation and
lodging costs for Plaintiff's counsel to attempt to
depose Mr. Del Hoyo on February 9, 2018 are taxed against Mr.
Del Hoyo. Plaintiffs shall file their application for fees
and costs within 14 days from the rendition of this Order
unless the Court is sooner advised that the parties have
resolved this matter between themselves. Mr. Del Hoyo will
have 14 days to respond to Plaintiffs' application for
fees and costs.