United States District Court, S.D. Florida
BLOOM, UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court upon Defendant The Fresh
Market, Inc.'s ("Defendant" or "Fresh
Market") Motion for Dismissal of the Action; for
Sanctions; or to Compel Plaintiffs Deposition and for
Reasonable Costs and Attorneys' Fees, ECF No. 
("Sanctions Motion") and Plaintiff Inderia Shields
Amended Motion to Continue and to Remove Case, ECF No. 
("Transfer Motion"). The Court has reviewed the
Motions, the supporting and opposing briefs and is otherwise
fully advised. For the reasons that follow, the Sanctions
Motion is granted in part and denied in part and the Transfer
Motion is denied.
initiated the above-styled lawsuit in the Circuit Court of
the Seventeenth Judicial Circuit in and for Broward County,
Florida. ECF No. [1-2]. In the Complaint, Plaintiff alleges
that she sustained injuries after she slipped and fell while
at the Fresh Market store located at 12171 W. Sunrise Blvd.,
Plantation, Florida. Id. at 2. Plaintiff asserts a
single claim of negligence against the Defendant.
Id. At the time of the filing of the Complaint,
Plaintiff was represented by counsel, Michael W. Wallace,
Esq., of the Law Offices of Robert J. Fenstersheib &
Associates, P.A. Defendant subsequently removed this case to
this Court based on diversity jurisdiction pursuant to 28
U.S.C. § 1332. ECF No. .
26, 2019, Defendant propounded written discovery upon
Plaintiff. Defendant asserts that Plaintiff failed to respond
to its discovery requests, and on August 8, 2019, Defendant
filed a motion to compel Plaintiffs responses. See
ECF No. . In the Motion to Compel, Defendant sought to
compel Plaintiffs discovery responses, to deem its requests
for admissions admitted, and for its attorneys' fees and
costs associated with the time and preparation of drafting
and filing the motion. See generally id.
August 8, 2019, Plaintiffs counsel filed a Motion for Leave
to Withdraw as Counsel of Record, citing "irreconcilable
differences" as the basis for his motion. See
ECF No. . The Court subsequently granted the motion. ECF
No. . On August 12, 2019, Plaintiff filed a notice of
record indicating that she would proceed in the lawsuit
pro se. ECF No. .
August 21, 2019, Plaintiff sat for her deposition, which had
been coordinated prior to her counsel's withdraw. While
the parties dispute the reason for its ultimate termination,
both parties agree that Plaintiffs deposition was ultimately
terminated by the Plaintiff. ECF No. , at 1; ECF No.
, at 3.
August 23, 2019, the Defendant filed the Sanctions Motion,
requesting that the instant action be dismissed or,
alternatively, to compel the Plaintiffs deposition and for
reasonable attorneys' fees and costs. ECF No. . On
September 9, 2019, Plaintiff filed the Transfer Motion,
requesting that the action be transferred to the Middle
District of Florida, citing her relocation to Jacksonville,
Florida and financial difficulties as a basis for the motion.
ECF No. , II. DISCUSSION
Sanctions Motion, Defendant argues that the instant action
should be dismissed for the Plaintiffs continued failure to
respond to the pending discovery requests and for her
unilateral termination of her deposition. See
generally ECF No. . Specifically, Defendant contends
that Plaintiff has not produced a single document responsive
to Defendant's Request for Production, served a single
answer responsive to Defendant's Interrogatories, or
provided a single response to Defendant's Requests for
Admissions. Id. at 3. Therefore, Defendant argues
that Plaintiff s refusal to participate in discovery and her
refusal to continue and attend her own deposition warrant the
dismissal of this action. Id. Alternatively,
Defendant seeks to compel the Plaintiffs deposition and for
reasonable attorneys' fees and costs for defense
counsel's appearance at her deposition. Id. at
2-3. On September 9, 2019, the Plaintiff filed a "Good
Faith Motion, " which after a review is clearly a
response to the Defendant's Sanctions Motion. ECF No.
. In the Response, Plaintiff argues that defense counsel
was "very disrespectful" during the deposition,
which led to her experiencing an "anxiety attack"
and forced her departure from the office. Id. at 1.
As for Plaintiff s failure to produce any written discovery,
Plaintiff seems to argue that such discovery is in the
possession of her prior counsel. Id. Plaintiff also
argues that she should not be liable for attorneys' fees
and that she has "no intention of dismissing the
Eleventh Circuit has "articulated a two-part analysis
for determining when an action should be dismissed as a
sanction: There must be both (1) a clear record of willful
conduct and (2) a finding that lesser sanctions are
inadequate. Zocaras v. Castro, 465 F.3d 479, 483
(11th Cir. 2006) (citing Betty K Agencies, Ltd. v.
M/VMONADA, 432 F.3d 1333, 1339 (11th Cir. 2005)
("dismissal with prejudice is plainly improper unless
and until the district court finds a clear record of delay or
willful conduct and that lesser sanctions are inadequate to
correct such conduct”)); see also Boazman v. Econ.
Lab., Inc., 537 F.2d 210, 212 (5th Cir. 1976)
(“[D]ismissal with prejudice is such a severe sanction
that it is to be used only in extreme circumstances, where
there is a clear record of delay or contumacious conduct, and
where lesser sanctions would not serve the best interests of
justice.”) (quotations omitted). When considering
alternative sanctions, the Eleventh Circuit has counseled
that “[d]ismissal of a case with prejudice is
considered a sanction of last resort, applicable only in
extreme circumstances.” Zocaras, 465 F.3d at
483; see also Boazman, 537 F.2d at 212 (explaining
“that lesser sanctions would suffice in all but the
most flagrant circumstances”).
the Court agrees with the Defendant that Plaintiff’s
continued failure to participate in discovery is
unacceptable, it does not agree that dismissal is appropriate
at this time. Dismissal of an action is the most
severe of sanctions and should only be implemented when
lesser sanctions will not suffice. Here, Plaintiff has failed
to provide any written discovery and has failed to agree to
continue her terminated deposition. After a review of the
record, the Court finds that there are less onerous
sanctions, which will better serve the interests of justice
in this action, rather than the dismissal of this action.
the written discovery, on September 12, 2019, the Court
granted in part and denied in part the Defendant’s
Motion to Compel. ECF No. . In that order, the Court
specifically held that Plaintiff shall provide responses to
Defendant’s First Request for Admissions,
Defendant’s First Request for Production of Documents
and Materials to Plaintiff and verified answers to
Defendant’s First Set of Interrogatories to Plaintiff,
no later than September 25, 2019. Id. The Court also
held that the Plaintiff’s failure to furnish the
requested discovery was not substantially justified and the
Defendant is entitled to recover attorney’s fees from
the Plaintiff in seeking compliance pursuant to Rule 37(d)(3)
of the Federal Rules of Civil Procedure. Id.
Therefore, the Court has already addressed the issue
concerning the written discovery. As for Plaintiff’s
termination of her deposition, the Court finds that the
Plaintiff should be compelled to sit and continue her
deposition, and that this lesser sanction will suffice in
remedying Plaintiff’s noncompliance.
date, Plaintiff has failed to engage in discovery; therefore,
Defendant cannot prepare a defense, nor meaningfully consider
settlement options. The Court further notes that the
Plaintiff, even without her prior counsel, has access to her
own personal medical records and files, and thus is not
inhibited from producing responsive documents to the
Defendant. The Court cautions Plaintiff that continued
failure to participate in discovery or her failure to comply
with this Order, will result in the dismissal of the instant
action. Accordingly, the Court will grant the
Defendant’s Sanctions Motion to the extent that it
seeks to compel Plaintiff’s deposition. Because the
Court finds that Plaintiff’s termination and her
refusal to continue her deposition was not substantially
justified, the Defendant is entitled to recover reasonable
attorney’s fees and costs associated with his
attendance at ...