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Wagner v. Disney Destination LLC

United States District Court, M.D. Florida, Orlando Division

March 27, 2018

JAMES WAGNER, Plaintiff,
v.
DISNEY DESTINATION LLC, Defendant.

          REPORT AND RECOMMENDATION

          DANIEL C. IRICK UNITES STATES MAGISTRATE JUDGE

         This cause comes before the Court for consideration without oral argument on the following motion:

MOTION: DEFENDANT'S RENEWED MOTION TO DISMISS FOR FAILURE TO ATTEND DEPOSITION AND TO PROVIDE RESPONSES TO DISCOVERY REQUESTS AND MOTION FOR ATTORNEYS' FEES (Doc. 58)
FILED: March 9, 2018
THEREON it is RECOMMENDED that the motion be GRANTED in part and DENIED in part.

         Plaintiff, through counsel, instituted this case in November 2016, and filed the operative complaint in December 2016. Docs. 1; 9. Defendant filed its answer to the operative complaint in February 2017, Doc. 18, and the Court entered a Case Management Scheduling Order shortly thereafter, setting the discovery deadline for October 27, 2017, Doc. 20.

         In May 2017, Plaintiff filed a Motion to Stay, in which he stated that he became “incapacitated” during the pendency of this case and was unsure when he will be able to continue prosecuting the case. Doc. 25 at ¶¶ 1-2. Thus, Plaintiff requested that the case be stayed four months, and certified that Defendant did not oppose this request. Id. at ¶ 5.

         In light of the Motion to Stay, the Court entered an Amended Case Management and Scheduling Order, continuing all remaining deadlines by four months, which, in turn, set the discovery deadline for February 27, 2018. Doc. 26.

         In August 2017, Plaintiff's counsel filed a Motion to Withdraw as Counsel, seeking to withdraw due to irreconcilable differences. Doc. 27 at ¶ 3.

         The undersigned scheduled a hearing on the Motion to Withdraw as Counsel for August 30, 2017, and directed Plaintiff to appear at the hearing in person. Doc. 33. Plaintiff's and Defendant's counsel appeared at the hearing, but Plaintiff failed to appear. Doc. 34. The undersigned ultimately entered an order denying without prejudice the Motion to Withdraw as Counsel. Doc. 35.

         On January 3, 2018, Defendant served Plaintiff with a notice of deposition setting his deposition for January 19, 2018, Doc. 52-4, but neither Plaintiff nor his counsel appeared at the deposition, Doc. 52-5.

         On January 29, 2018, Plaintiff's counsel filed a Second Motion to Withdraw as Counsel, seeking to withdraw as Plaintiff's counsel due to irreconcilable differences and an inability to communicate with Plaintiff. Doc. 49 at ¶¶ 3-4.

         On February 5, 2018, Defendant filed a Motion to Dismiss for Failure to Attend Deposition or in the Alternative to Compel Plaintiff's Deposition and Responses to Discovery Requests and Motion for Attorney Fees (Motion to Dismiss), arguing that Plaintiff has failed provide complete responses to Defendant's written discovery, and failed to appear at his January 19, 2018 deposition. Doc. 52. Thus, Defendant requested that the case either be dismissed, or that Plaintiff be ordered to comply with his discovery responsibilities. Id.

         The undersigned scheduled a hearing on the Second Motion to Withdraw as Counsel and the Motion to Dismiss (collectively, the Motions) for February 13, 2018, and directed Plaintiff to appear at the hearing in person. Docs. 50; 53. Plaintiff's and ...


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