United States District Court, S.D. Florida
ORDER DENYING PLAINTIFF'S MOTION FOR
RECONSIDERATION [DE 1981 AND REQUIRING PLAINTIFF TO
PERSONALLY APPEAR FOR HIS DEPOSITION IN THIS DISTRICT ON JUNE
WILLIAM MATTHEWMAN UNITED STATES MAGISTRATE JUDGE.
CAUSE is before the Court upon Plaintiff, Dietmar
Dude's ("Plaintiff) Motion for Reconsideration
("Motion") [DE 198]. This matter was referred to
the undersigned by United States District Judge Kenneth A.
Marra. See DE 21. Defendants, Congress Plaza LLC,
Congress 1010 LLC, David Goldstein P.A., David M. Goldstein,
Barry Roderman and Suzanne Farese, filed a Response [DEs 201,
202], and Defendant S&J Property Holdings, LLC, filed a
separate Response [DE 200]. The Court held an expedited
hearing on the Motion on May 17, 2018. The Motion is now ripe
February 6, 2018, Plaintiff filed a Motion to Reschedule
Deposition and for Protective Order [DE 145]. On February 12,
2018, the parties filed a Notice stating that they had agreed
to the date of June 5, 2018 at 10:00 a.m., for Plaintiff s
deposition. See DE 153. After conducting a hearing
on the remaining issues in the motion on February 15, 2018,
the Court issued an Order Denying in Part Plaintiffs Motion
to Reschedule Deposition and for Protective Order [DE 158].
The Court discussed the relevant case law and employed the
requisite balancing test. [DE 158 at pp. 2-3]. The Court then
denied the motion to extent that Plaintiff sought to appear
at his deposition remotely from Germany. Id. at p.
4. The Order specifically required that Plaintiff attend his
deposition in person in this District, and specifically in
Palm Beach County, on June 5, 2018. Id. Plaintiff
now moves this Court to reconsider its prior Order.
order to prevail on a motion for reconsideration, the moving
party "must demonstrate why the court should reconsider
its prior decision and set forth facts or law of a strongly
convincing nature to induce the court to reverse its prior
decision. A motion for reconsideration should raise new
issues, not merely address issues litigated previously."
Instituto de Prevision Militar v. Lehman Bros., 485
F.Supp.2d 1340, 1343 (S.D. Fla. 2007) (quoting Socialist
Workers Party v. Leahy, 957 F.Supp. 1262, 1263 (S.D.
Fla. 1997)). The three grounds warranting reconsideration
that courts have articulated are: (1) an intervening change
in controlling law; (2) the availability of new evidence; or
(3) the need to correct clear error or manifest injustice.
is moving for reconsideration on the basis of the
availability of new evidence. This newly asserted evidence
consists of a memorandum dated October 14, 2009 [DE 198-1]
and a doctor's note dated April 9, 2018 [DE 198-3].
Plaintiffs counsel argued at the May 17, 2018 hearing that
the 2009 memorandum establishes that Plaintiff was just an
investor, that he has no real knowledge of the facts of this
case, and that his brother Harald Dude is the person with
personal knowledge. The Court finds that the 2009 memorandum
is not particularly relevant and that it does not affect the
Court's prior analysis. Plaintiff voluntarily brought the
lawsuit in this district, Plaintiff does business in this
district, Plaintiff is seeking to foreclose on several
parcels of land located in this district, Plaintiff is
personally suing two members of the Florida Bar for fraud,
deceit, and conspiracy. Plaintiff has filed this lawsuit in
his personal capacity. The Court finds it incredulous that
Plaintiff would assert such causes of action when he now
asserts he has no knowledge of the facts of this case.
Further, Plaintiff is seeking approximately $1.3 million in
damages, the cost of traveling from Germany to South Florida
is not burdensome relative to the size of Plaintiff s claim,
and Defendants would be unfairly prejudiced under the unique
facts of this case if they were unable to test the
credibility and the substantive responses of Plaintiff at his
in-person deposition in this District.
Court similarly finds that the doctor's note does not
affect its prior analysis. First, the Court notes that
Plaintiff waited approximately 11 weeks after the Order
Denying in Part Plaintiffs Motion to Reschedule Deposition
and for Protective Order [DE 158] was entered and
approximately 30 days after he received the doctor's note
to file the Motion for Reconsideration. This is dilatory.
the Court finds that the doctor's note is insufficient.
Plaintiff is not hospitalized. Plaintiff has no upcoming
hospitalizations or surgeries. Plaintiffs medical issue is
entirely speculative and uncorroborated. "[A] party
seeking to prevent or delay a deposition on medical grounds
must make a 'specific and documented factual showing that
the deposition will be dangerous to the deponent's
health.' " Campos v. Webb Cnty. Tex., 288
F.R.D. 134, 136 (S.D. Tex. 2012) (quoting Schorr v.
Briarwood Estates Ltd. P'ship, 178 F.R.D. 488, 491
(N.D.Ohio 1998)). "As such, conclusory or speculative
statements by a treating physician about the harm which will
be suffered without a protective order are simply
insufficient." Id. "Due to the high burden
parties must meet in substantiating alleged
'extraordinary circumstances, ' courts will rarely
grant a protective order that completely prohibits a
deposition." Campos, 288 F.R.D. at 137.
the note is extremely vague and conclusory, is not
accompanied by an affidavit or declaration, and did not
attach any actual medical records. Additionally, the note
does not suggest that Plaintiff has been hospitalized or has
any impending surgeries. Thus, Plaintiff has failed to show
exceptional circumstances sufficient to warrant the issuance
of a protective order shielding him from attending his
deposition in this District. See Arnold v. Wausau
Underwriters Ins. Co., No. 13-60299-CIV, 2013 WL
5488520, at *3 (S.D. Fla. Sept. 30, 2013) (finding that,
because the statements in the doctor's correspondence
were vague, conclusory, and non-specific, they were
insufficient to support the award of a protective order).
has filed suit in this District and has lodged serious
allegations against numerous defendants, as is his right.
However, Plaintiff cannot evade his in-person deposition in
this District. Defendants desire to completely and fairly
test Plaintiffs allegations and credibility, as is their
right. Plaintiff brought his suit here, and the facts of the
case dictate that Plaintiff shall be personally deposed in
this District-on June 5, 2018, as previously ordered.
on the foregoing, and as stated in open court, it is hereby
ORDERED as follows:
1. Plaintiffs Motion for Reconsideration [DE 198] is
2. Plaintiffs deposition shall take place on June 5, 2018 at
10:00 a.m., in Palm Beach County, Florida. Plaintiff is
ordered to attend that deposition in person in this ...