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Case 1:11-cv-20120-PAS Document 78 Entered on FLSD Docket 12/06/2011 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 11-20120-CIV-SEITZ/SIMONTON

TRAIAN BUJDUVEANU,

Plaintiff,

vs.

DISMAS CHARITIES, INC., ANA GISPERT,
DEREK THOMAS and ADAMS LESHOTA

Defendants.
_________________________________________/

DEFENDANTS MOTION TO DISMISS ACTION FOR
FAILURE TO APPEAR AT DEPOSITIONS

Defendants Dismas Charities, Inc., Ana Gispert, Derek Thomas and Lashanda Adams,

incorrectly identified as Adams Leshota (collectively “Defendants”) by and through their

undersigned counsel, file their Motion to Dismiss Action pursuant to Federal Rule of Civil

Procedure 37(d) and 37(b)(2)(v) due to Plaintiff’s refusal to attend his own deposition on two

separate occasions, and state as follows:

1. Plaintiff, a former Federal Inmate, filed a lawsuit against the defendants which is

a residential reentry center and its employees. The Defendants have filed a motion to dismiss the

lawsuit which has been briefed and pending ruling.

2. As the motion is pending, pursuant to this Court’s scheduling order, Plaintiff,

through notice dated August 24, 2011, was set for his deposition on October 10, 2011. (See

Composite Exhibit 1 to this Motion)



3. The deposition was cancelled at the request of the Plaintiff. The Plaintiff claimed

that he was not available on October 10, 2011, and stated he would be available for deposition

after October 25, 2011.

4. As per the Plaintiff’s requested, the Plaintiff was reset for deposition on

November 11, 2011, through a notice dated August 29, 2011. (See Composite Exhibit 1 to this

Motion)

5. On November 9, 2011 via email, the Plaintiff claimed he had a medical issue that

prevented him from appearing and promised to provide a medical note. The Plaintiff again

requested that his deposition be reset for a later date.

6. Plaintiff never provided any proof of any medical condition that would prevent

him from appearing at a deposition. Accordingly, the deposition was not cancelled.

7. The Plaintiff failed to appear for his deposition on November 9, 2011, and a

certificate of non-appearance was issued. (See Composite Exhibit 1 to this Motion)

8. The Plaintiff was again reset for deposition on December 5, 2011, through a

notice dated November 22, 2011. (See Composite Exhibit 1 to this Motion)

9. On Sunday December 4, 2011 at 10:24 pm, the day before his deposition, Plaintiff

sent defendant’s counsel an email stating he would not be appearing for his deposition because

the Plaintiff was allegedly sick. Further, the Plaintiff wanted to the Court to “answer” all

pending motions prior to his deposition.

10. As the Plaintiff filed a motion for summary judgment, failed (again) to provide

any proof that he was “sick” and with a trial date pending next year, defendants’ counsel

informed the Plaintiff that the December 5, 2011, deposition would not be cancelled.

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11. Despite the fact that the Plaintiff claims he has medical issues that prevent him

from appearing for depositions, the Plaintiff was able to appear for mediation on November 1,

2011, just eleven days before the November 11, 2011 deposition setting.

12. The Plaintiff was also well enough to prepare and file a Motion for Summary

Judgment, Notice of Declaration, Statement of Facts (Docket 72-75) and Notice of Hearing for

Summary Judgment for December 15, 2011, ten days after his deposition. Even though the

December 15, 2011, hearing notice (unilaterally set by the Plaintiff himself) was stricken by the

Court, the Plaintiff, by his own hearing notice, would have been well enough to argue a motion

for summary judgment on December 15, 2011. (Docket 71)

13. The Plaintiff failed to appear for his deposition on December 5, 2011, and a

certificate of non-appearance was issued. (See Composite Exhibit 1 to this Motion)

14. The Plaintiff is clearly able to appear for deposition as is evidenced by his

attendance at mediation on November 1, 2011, preparation of filing of a motion for summary

judgment (Docket 72), filing of a revised statement of facts on December 2, 2011 (three days

before his deposition)(Docket 77) and willingness to argue his motion on December 15, 2011.

15. Rule 37(d) deals with sanctions used when a party fails to cooperate in discovery

and “allows the court to strike out pleadings and render default judgment against the disobedient

party.” Buchanan v. Bowman, 820 F.2d 359, 361 (11th Cir.1987). Specifically, the rule provides,

in relevant part:

(d) Party's Failure to Attend Its Own Deposition, Serve Answers to
Interrogatories, or Respond to a Request for Inspection.

(1) In General.

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(A) Motion; Grounds for Sanctions. The court where the action is pending may, on
motion, order sanctions if:

(i) a party or a party's officer, director, or managing agent--or a person designated
under Rule 30(b)(6) or 31(a)(4)--fails, after being served with proper notice, to appear
for that person's deposition; or

(ii) a party, after being properly served with interrogatories under Rule 33 or a request
for inspection under Rule 34, fails to serve its answers, objections, or written
response.

(B) Certification. A motion for sanctions for failing to answer or respond must
include a certification that the movant has in good faith conferred or attempted to
confer with the party failing to act in an effort to obtain the answer or response
without court action.

(2) Unacceptable Excuse for Failing to Act. A failure described in Rule 37(d)(1)(A)
is not excused on the ground that the discovery sought was objectionable, unless the
party failing to act has a pending motion for a protective order under Rule 26(c).

(3) Types of Sanctions. Sanctions may include any of the orders listed in Rule
37(b)(2)(A)(i)-(vi). Instead of or in addition to these sanctions, the court must require
the party failing to act, the attorney advising that party, or both to pay the reasonable
expenses, including attorney's fees, caused by the failure, unless the failure was
substantially justified or other circumstances make an award of expenses unjust.

The referenced subdivision further provides that, where appropriate, a court is authorized to

strike pleadings, stay proceedings, dismiss the action or any part thereof, or render a judgment by

default against a disobedient party. See Fed.R.Civ.P. 37(b)(2)(A)(iii)-(vi).

16. As is proven above, The Plaintiff’s failure to appear for depositions and comply

with the Rules of Civil Procedure merit striking his pleadings and dismissing his complaint.

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WHEREFORE, Defendants respectfully request that Defendants’ Motion be granted.

CERTIFICATION OF GOOD FAITH PURSUANT TO FRCP 37

Defense counsel certifies that movants have conferred with and attempted to confer with

the Plaintiff, the party failing to act, in an effort to obtain the Plaintiff’s deposition without court

action. This is demonstrated by the fact that the Plaintiff’s deposition was reset from October 10,

2011 at the Plaintiff’s request to November 11, 2011. The Plaintiff failed to appear for his

deposition on November 11, 2011. The Plaintiff was provided with another opportunity to

appear for his deposition. The deposition was again reset for December 5, 2011 after the

Plaintiff failed to appear on November 11, 2011. Defendants’ counsel also emailed Plaintiff

concerning the deposition and advised the Plaintiff that if he failed to appear for his deposition

on December 5, 2011, that a Motion to Strike Plaintiff’s Pleadings would be filed.

EISINGER, BROWN, LEWIS, FRANKEL,
& CHAIET, P.A.
Attorneys for Defendants
4000 Hollywood Boulevard
Suite 265-South
Hollywood, FL 33021
(954) 894-8000
(954) 894-8015 Fax

BY: /S/ David S. Chaiet____________
DAVID S. CHAIET, ESQUIRE
FBN: 963798

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 6th day of December, 2011, I electronically filed the
foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing
document is being served this day on all counsel of record or pro se parties identified on the
attached Service List in the manner specified, either via transmission of Notices of Electronic
Filing generated by CM/ECF or in some other authorized manner for those counsel or parties
who are authorized to receive electronically Notices of Electronic Filing.

__/s/ David S. Chaiet_______________
DAVID S. CHAIET, ESQUIRE
Florida Bar No. 963798

SERVICE LIST

Traian Bujduveanu v. Dismas Charities, Inc., et al.
Case No..: 11-20120-CIV-SEITZ/SIMONTON
United States District Court, Southern District of Florida

Traian Bujduveanu
Pro Se Plaintiff
5601 W. Broward Blvd.
Plantation, FL 33317

Tel: (954) 316-3828
Email: orionav@msn.com

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