defendants motion for summary judgment, incorporated memorandum of law in support of motion for...
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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 FOR SUMMARY JUDGMENT, INCORPORATED
MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
Pursuant to this Court’s Scheduling Order, Defendants Dismas Charities, Inc., Ana
Gispert, Derek Thomas and Lashanda Adams, incorrectly identified as Adams Leshota,
(collectively “Defendants”) by and through their undersigned counsel, pursuant to Federal Rule
of Civil Procedure 56 and Local Rule 7.5, file their Motion for Summary Judgment, Incorporated
Memorandum of Law in Support of their Motion for Summary Judgment against Traian
Bujduveanu (“Plaintiff”) as follows:
INTRODUCTION
Plaintiff, a former Federal Inmate, filed a lawsuit against his residential reentry center,
Dismas, and three of its employees, Gispert, Thomas, and Adams. The Complaint contains 50
paragraphs of unsupported allegations, four alleged federal theories of recovery, and six alleged
state law theories of recovery—all arising from his violation of a Bureau of Prison’s condition to
not drive an automobile or posses a cell phone, which caused him to be transferred from Dismas
back to a federal prison.
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SUMMARY OF ARGUMENT
Plaintiff was transferred to Dismas’ Dania facility as a transition point from federal
prison system back to into the community. Dismas, as a residential reentry center, assists
inmates in employment, counseling, and other matters to allow them to become productive,
contributing individuals in their families and communities upon release. Due to health issues,
Plaintiff, after approval from the Federal Bureau of Prisons, was transferred from Dismas’ Dania
facility to home confinement subject to the terms and conditions of his initial entry into the
facility as mandated by the Federal Bureau of Prisons.
These conditions included the Plaintiff’s agreement not to drive without the permission or
consent of Dismas and not to possess contraband, including cell phones. When the Plaintiff
drove to Dismas and was found to be in possession of a cell phone in the car, Dismas reported
Plaintiff’s violations to the Federal Bureau of Prisons. The Federal Bureau of Prisons then had
the United States Marshall’s Service return the Plaintiff to the Federal Detention Center-Miami,
where he subsequently served out the last 68 days of his federal prison sentence after the Bureau
of Prisons independently found Plaintiff guilty of the violations.
As an inmate still under sentence, the Federal Bureau of Prisons, not the Defendants,
made all decisions concerning his custodial placement. After his violations of rules while at
Dismas’ facility, the BOP decided to remove him from the program and he was returned by the
BOP (via the U.S. Marshall service) to a federal prison to serve out the remainder of his
sentence. Plaintiff, therefore, fails to state a cause of action and all Defendants must be awarded
summary judgment.
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STATEMENT OF UNDISPUTED FACTS
Defendants filed a separate Statement of Undisputed Facts and Affidavit of Ana Gispert,
which is incorporated as though fully set forth herein.
ARGUMENT AND CITATION TO AUTHORITY
1. The Plaintiff cannot maintain any cause of action against any Defendant.
As a condition of his halfway house release, the Plaintiff agreed to comply with certain
terms and conditions. The Plaintiff agreed he would not operate a car without the permission of
Dismas or the BOP. The Plaintiff violated the terms and conditions of his halfway house release
when he drove to Dismas on October 13, 2010, without permission. Dismas was required to
report this violation of the Plaintiff’s release to the Federal Bureau of Prisons.
The Federal Bureau of Prisons, not the Defendants, made the decision to return the
Plaintiff to prison to serve out the remainder of his sentence. Accordingly, the Defendants are
not liable for any alleged damages sustained by the Plaintiff. As halfway house is a privilege of
confinement, not a right, the Plaintiff, who was still serving his felony sentence, cannot maintain
a cause of action for loss of this privilege. Since the Plaintiff was still serving his prison
sentence, he cannot maintain a cause of action for false imprisonment as he was properly
imprisoned as part of his prison sentence which had not expired. Accordingly, the Defendants
must be awarded summary judgment.
The Plaintiff cannot maintain any Federal or State law wrong or violation committed
Gispert, Adams, or Leshota. Gispert is the Director of Dismas-Dania Beach. Gispert’s only
alleged wrongdoing was failing to provide a BP-9 form. However, this contradicts the
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attachments to the Complaint. The attachments to the Complaint, specifically, Exhibit E,
demonstrate that the requests for BP-9 forms were made to Case Manager Price and Unit
Counselor of the Federal Bureau of Prisons, not Gispert or Dismas. The Plaintiff has not alleged
and cannot allege or prove any factual allegations against Gispert to support a cause of action for
any alleged violations of the Plaintiff’s First, Fourth, Fifth, Eighth or Fourteenth Amendment
rights or any false arrest/imprisonment, assault and battery, malicious prosecution, abuse of
process or negligence. Accordingly, Gispert must be awarded summary judgment.
Adams allegedly claimed she knew nothing about the search of the vehicle, is accused of
not liking white people and of failing to provide a BP-9 form. The fact that Adams did not know
about the search of a vehicle or the location of a cell phone does not constitute tortious acts.
With regard to her alleged hatred of white people, the Plaintiff does not allege discriminatory
conduct against Plaintiff by any Defendant. Even if Lashanda Adams hates white people, which
is denied, her own beliefs do not constitute a tortious act. The attachments to the Complaint,
specifically, Exhibit E, demonstrate that the requests for BP-9 forms were made to Case Manager
Price and Unit Counselor of the Federal Bureau of Prisons, not Adams. The Plaintiff cannot
allege or prove any facts to support a cause of action for any alleged violations of the Plaintiff’s
First, Fourth, Fifth, Eighth or Fourteenth Amendment rights or any false arrest/imprisonment,
assault and battery, malicious prosecution, abuse of process or negligence. Accordingly, Adams
is entitled to summary judgment.
The Plaintiff alleges that Thomas filled out a report documenting the Plaintiff’s violations
of his conditional release from prison. In other words, Thomas was simply performing his job
responsibilities which does not constitute a tort. With regard to Thomas’s alleged hatred of white
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people, the Plaintiff does not allege discriminatory conduct by Thomas against the Plaintiff.
Even if Thomas hates white people, which is denied, his own beliefs do not constitute a tortious
act. The attachments to the Complaint, specifically, Exhibit E, demonstrate that the requests for
BP-9 forms were made to Case Manager Price and Unit Counselor of the Federal Bureau of
Prisons, not Thomas. The Plaintiff has no evidence to support his allegations against Thomas to
support a cause of action for any alleged violations of the Plaintiff’s First, Fourth, Fifth, Eighth
or Fourteenth Amendment rights or any false arrest/imprisonment, assault and battery, malicious
prosecution, abuse of process or negligence. Accordingly, Thomas must be awarded summary
judgment.
2. The Plaintiff cannot maintain any cause of action for any tortious conduct under Florida Common Law against the Defendants.
a. False Arrest and Imprisonment
The tort of false imprisonment or false arrest is defined as the unlawful restraint of person
against his will, the gist of which action is the unlawful detention of the plaintiff and the
deprivation of his liberty. A plaintiff must show that the detention was unreasonable and
unwarranted under the circumstances. In a false arrest action, the plaintiff must allege
imprisonment contrary to his will and the unlawfulness of the detention. A privilege exists as a
matter of law to engage in reckless or even outrageous conduct if there is sufficient evidence that
shows the defendant did not more than assert legal rights in a permissible way. Rivers v.
Dillards Department Store, 698 So. 2d 1328, 1331 (Fla. 1st DCA 1997); Willingham v. the City
of Orlando, 929 So. 2d 43, 47 (Fla. 5th DCA 2006). In the case at hand, the Plaintiff cannot
support all of the necessary allegations for either false imprisonment or false arrest.
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First, the Plaintiff was not arrested. Second, and more importantly, the Plaintiff could not
be arrested or imprisoned as he was already a prisoner serving his prison sentence at the time of
the incidents described in the Complaint. Certainly, someone already imprisoned and serving a
prison sentence, as in this case, whether it be at a prison or halfway house, cannot be falsely
imprisoned. Any alleged restraint or detention of the Plaintiff therefore, was not unlawful, as he
was already under the custody and supervision of the Federal Prison System at the time of the
events described in the Complaint. As all actions described in the Complaint were under color of
law by Dismas, the U.S. Marshall and the Federal Bureau of Prisons, no unlawful activity
occurred.
Third, the Defendants did not arrest or imprison the Plaintiff. The Plaintiff cannot make
these allegations because none of the Defendants had the authority to arrest and/or imprison him.
As the Complaint alleges in paragraph 38, the Plaintiff was arrested by the U.S. Marshall Service
and imprisoned by the Federal Bureau of Prisons. (Affidavit of Ana Gispert, p. 33) In other
words, the Plaintiff was not, and could not, be arrested or imprisoned by any Defendant because
the Defendants do not have the authority or power to arrest or imprison the Plaintiff.
Even if any of the Defendants could arrest or imprison the Plaintiff, which is denied, a
privilege exists as a matter of law to engage in reckless or even outrageous conduct if there is
sufficient evidence that shows that the Defendant did no more than assert legal rights in a
permissible way. Rivers, 698 So. 2d at 1331; (Complaint, p. 16-26, 35-42, Exhibit C to the
Complaint and Affidavit of Ana Gispert, p. 21-33) Even if the Plaintiff was violated (even if
violated recklessly or outrageously by any Defendant) and returned to complete his sentence at a
Federal Detention Center, the Defendants did nothing more than assert their legal rights in a
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permissible way, which would make their conduct privileged as a matter of law. The Defendants
were obligated to report the Plaintiff’s violation of his conditions imposed by the Federal Bureau
of Prisons (not the Defendants) to the Federal Bureau of Prisons. (Affidavit of Ana Gispert, p.
32) For these reasons, the Plaintiff has not and cannot set forth a cause of action against any
Defendant in this case for false arrest or false imprisonment. Accordingly, Defendants must be
awarded summary judgment.
b. Assault and Battery
An assault is an intentional and unlawful offer of corporal injury to another by force of
exertion of force directed toward another under such circumstances as to create a reasonable fear
of imminent peril and assaulted premised on an affirmative act. Battery consists of the
intentional infliction of harmful or offensive contact on the person of another. Sullivan v.
Atlantic Federal, 454 So. 2d 52 (Fla. 4th DCA 1984); Paul v. Holbrook, 696 So. 2d 1311 (Fla. 5th
DCA 1997). The Plaintiff was not assaulted or battered by any Defendant. Any actions taken
were under color of law so no unlawful offer of corporal injury occurred or could have occurred.
The complaint and record of this case are devoid of any properly supported facts or allegations of
assault or battery by any Defendant. Accordingly, Defendants are entitled to summary judgment
as the Plaintiff has not provided any facts to support allegations of assault and battery.
c. Malicious Prosecution.
To maintain a cause of action for malicious prosecution, the Plaintiff must prove 1) the
commencement of a judicial proceeding; 2) the legal causation by the Defendant against the
Plaintiff; 3) its bona fide termination in favor of the Plaintiff; 4) the absence of probable cause
for the prosecution; 5) malice and 6) damages. Hickman v. Barclay’s International Realty, Inc.,
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16 So.3d 154, 155 (Fla. 4th DCA 2009). The Plaintiff cannot prove any of the elements of
malicious prosecution.
The Plaintiff cannot support or sustain a cause of action for malicious prosecution for a
number of reasons. First, there was no commencement of judicial proceedings against the
Plaintiff by any Defendant. Second, and most importantly, there was no bona fide termination in
favor of the Plaintiff. The Plaintiff was found to have violated his release conditions and
returned to the Federal Bureau of Prisons for 81 days. (Complaint, p. 46, Affidavit of Ana
Gispert, p. 33-34). Third, probable cause existed as the Plaintiff admittedly drove a vehicle
without permission in violation of the terms of his halfway house/home confinement set forth by
the Federal Bureau of Prisons. (Exhibit C, to the Complaint, p. 15-21; Affidavit of Ana Gispert,
p. 21-36) Since the Plaintiff has not, and cannot establish the elements of malicious prosecution,
especially the key elements of the commencement of a judicial proceeding and termination of the
proceeding in favor of the Plaintiff, Defendants must be awarded summary judgment.
d. Abuse of process.
To maintain a cause of action for abuse of process, the Plaintiff must prove three
elements: 1) that the Defendant made an illegal or improper use of process; 2) that the
Defendant had ulterior motives or purposes in exercising such illegal, improper or perverted use
of process and 3) that, as a result of such action on the part of the Defendant, the Plaintiff
suffered damage. S & I Investments v. Payless Flea Market, 36 So. 3d 909, 917 (Fla. 4th DCA
2010). The usual case of abuse of process involves some form of extortion. Id. The Plaintiff
must prove that the process was used for an immediate purpose other than that for which it was
designed. Biondo v. Powers, 805 So. 2d 67, 69 (Fla. 4th DCA 2002).
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There is no evidence supporting these claims against any of the defendants. For example,
if any Defendant used the Disciplinary Report System, the Report was used for no other purpose
than that for which it was designed. (Complaint, Exhibit C, and p. 25, Affidavit of Ana Gispert,
p. 21-36) Even if any Defendant used any process for spite or ulterior purpose, this type of
alleged action does not and cannot constitute abuse of process. Under Florida law, there is no
abuse of process when the process is used to accomplish the result for which it was created,
regardless of the incidental or concurrent motive of spite or ulterior purpose. S & I Investment,
36 So. 3d at 917.
In this case, the Disciplinary Report was used for its proper purpose-specifically to
document an alleged violation by someone serving a sentence for a criminal act. Even if any
Defendant took action against the Plaintiff for any personal reason, since the alleged process was
used to accomplish the result for which is was created, the motive of any Defendant is irrelevant.
(Affidavit of Ana Gispert, p. 21-36) Accordingly, the Plaintiff cannot maintain a cause of action
for abuse of process and Defendants are entitled to final summary judgment.
e. Negligence and Gross Negligence
The elements required to maintain a cause of action for negligence are duty and a breach
of that duty which causes damages. Clay Electric Cooperative v. Johnson, 873 So. 2d 1182,
1185 (Fla. 2004). The Plaintiff cannot maintain a cause of action for negligence or gross
negligence because the Plaintiff cannot show any duty owed by the Defendants to the Plaintiff
that was breached. The Plaintiff has also alleged that he is entitled to punitive damages. Section
768.72, Florida Statutes, prevents the maintenance of a claim for punitive damages unless there
is a reasonable showing by evidence in the record, or proffered by the claimant which would
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provide a reasonable basis for recovery of such damages. In Simeon, Inc. v. Cox, 671 So. 2d 158,
160 (Fla. 1996), the Supreme Court held that a Complaint which is signed by the plaintiff under
oath is insufficient to fulfill the procedural requirements of Section 768.72, Florida Statutes.
Since the Plaintiff has not made the necessary proffer of evidence in the record, Defendants are
entitled to summary judgment.
Further, there was no negligence with regards to the Plaintiff’s medical condition. In
fact, the Plaintiff attached an Exhibit to his Motion for Summary Judgment, signed by both
Adams and Thomas recommending that the Plaintiff not work because of his medical condition.
The Plaintiff was permitted home confinement, until he violated the Federal Bureau of Prison’s
conditions of release by driving without permission. (Affidavit of Ana Gispert, p. 6) The motion
for summary judgment is also devoid of any proper facts supporting negligence by any
Defendant. Accordingly, Defendants must be awarded summary judgment.
3. The Complaint fails to allege any tortious conduct or violations of Federal Law or the Constitution.
As was stated by this Court the Court in its Order issued March 30, 2011 (Docket number
18) “the plaintiff’s claim of an unlawful search and seizure of his vehicle lacks merit. The
defendants are private parties, and therefore, their actions do not trigger the constitutional
implications of the Fourth Amendment.” This would be true for all constitutional amendments.
Accordingly, since Dismas is not the Federal government or a federal agency, Defendants’
alleged actions do not trigger any constitutional implications.
The Plaintiff cannot set forth a Bivens action. Bivens actions allow for damages and
remedies for constitutional violations committed by federal agents. Bivens v. Six Unknown
Named Agents, 403 U.S. 388 (U.S. 1971). The Plaintiff cannot maintain a cause of action under
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Federal Law against Dismas or its employees because the Defendants are not Federal Agents.
The Plaintiff even admits that Dismas is a private non-profit corporation known as a CCC
Contractor and is not part of the U.S. Federal Government. (Complaint, p. 36). Therefore, the
Defendants are entitled to summary judgment on all Federal Causes of action.
a. First Amendment
1. The Plaintiff cannot prove that any Defendant interfered with the Plaintiff’s
freedom of speech or expression. At best, the Plaintiff alleges that the Plaintiff did not receive a
BP-9 form. However, the exhibits to the Complaint, specifically, Exhibit E, demonstrate that the
requests for BP-9 forms were made to Case Manager Price and Unit Counselor of the Federal
Bureau of Prisons, not Dismas or its employees. The Plaintiff was also not permitted to attend
religious services outside of a 5 mile radius of his confinement as per Federal Bureau of Prison
guidelines. A copy of the guidelines for religious services is attached to as Exhibit 7 to the
affidavit of Ana Gispert, p. 20. Accordingly, the Plaintiff, who acknowledged receiving the
Rules and Guidelines, was not permitted to attend a church more than five miles outside the
radius of his confinement. The Plaintiff’s rights were not violated.
Accordingly, Defendants are entitled to summary judgment on any theory of recovery
under the First Amendment.
b. Fourth Amendment
The Plaintiff cannot prove any violations of his Fourth Amendment right to wrongful
search and seizure. Bivens v. Six Unknown Named Agents, 403 U.S. 388 (U.S. 1971). As was
stated by this Court the Court in its Order issued March 30, 2011 (Docket number 18) “the
plaintiff’s claim of an unlawful search and seizure of his vehicle lacks merit. The defendants are
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private parties, and therefore, their actions do not trigger the constitutional implications of the
Fourth Amendment.”
The Plaintiff, at all material times, was serving out a criminal sentence under the Federal
Bureau of Prisons. The Plaintiff admittedly appeared at Dismas property operating a vehicle
without authority to drive a vehicle. (Complaint, Exhibit C and p. 25). The Plaintiff
acknowledged that he received the Rules and Regulations which prohibited him from driving
without permission from Dismas or the BOP and prohibited him from possessing an authorized
cell phone. Plaintiff also consented to the search of his vehicle as a condition of his release to
Dismas. (Affidavit of Ana Gispert, p. 7-31)
Since the search of the vehicle and confiscation of contraband (unauthorized cell phone)
was permissible and a condition of his release, no wrongful search and seizure occurred. Since
the Plaintiff did not own the vehicle or cell phone, none of his property was searched or seized.
Plaintiff even signed a form acknowledging that contraband would be disposed of by Dismas.
(Exhibit 3, Affidavit of Ana Gispert, p. 14) Dismas has returned all non-contraband items to the
Plaintiff. However, the Plaintiff is not entitled to the return of contraband. (Affidavit of Ana
Gispert, p. 29-31) Accordingly, no violations of the Fourth Amendment occurred and the
Defendants are entitled to summary judgment.
c. Fifth and Fourteenth Amendments
The Fifth Amendment states that “no person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in
cases arising in the land or naval forces, or in the Militia, when in actual service in time of War
or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy
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of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process of law; nor shall private property be
taken for public use, without just compensation.” The Plaintiff cannot prove that he was
deprived of due process by the Defendants.
The Plaintiff, as is evidenced by the attachments to the Complaint, did receive proper
notice of his violation. Exhibit C, the Disciplinary Report, was even signed by the Plaintiff. The
Plaintiff even wrote a response to the Report. The Plaintiff clearly violated a rule (no driving
without permission of Dismas) that he was notified of and agreed to. The Plaintiff also agreed to
abide by the rules, regulations and disciplinary procedures as condition of his halfway house
release. (Affidavit of Ana Gispert, p. 7-15 and Exhibits 2, 3 & 4)
Plaintiff was transferred by the Bureau of Prisons into the custody of FDC Miami, where
a subsequent hearing was held by the Bureau of Prisons concerning his possession of a cell
phone and driving a vehicle without authorization. He was found guilty of these offenses at the
hearing and required to serve the remaining 68 day balance of his initial sentence at FDC Miami.
A copy of the Plaintiff’s United States Bureau of Prison Center Discipline Committee Report is
attached to the Affidavit of Ana Gispert, p. 34, Exhibit 11. Accordingly, due process was
afforded.
The Plaintiff was not subjected to “double jeopardy” by the Defendants. As is alleged in
the Complaint, the Plaintiff was allegedly punished once for his violations by the Federal Bureau
of Prisons, not Dismas. (Complaint, p. 25) The Plaintiff alleges he was punished a second time
for his violations by the Bureau of Prisons, not the Defendants. (Complaint, p. 43-45) If the
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Plaintiff was subjected to double jeopardy, which is denied, then his lawsuit should be against
the entity who punished him a second time, the Federal Bureau of Prisons, not the Defendants.
Plaintiff also appears to be alleging that his Due Process Rights were violated because he
was not provided with BP-9 Form. (Complaint, p. 53) However, the exhibits to the Complaint,
specifically, Exhibit E, demonstrate that the requests for BP-9 forms were made to Case Manager
Price and Unit Counselor of the Federal Bureau of Prisons, not Dismas or its employees.
Accordingly, the Defendants are entitled to summary judgment for any causes arising from
violations of any due process rights.
d. Eighth Amendment
The Plaintiff alleges that his Eighth Amendment Rights were violated because he was
subjected to cruel and unusual punishment. The Plaintiff fails to remember that he was serving a
prison sentence and was still under the control of the Federal Bureau of Prisons when the events
allegedly occurred. The Plaintiff fails to set forth any cruel or unusual punishment. The Plaintiff
was removed from Home Detention and assigned three weeks of extra light duty and Dismas.
The Plaintiff also lost his weekend pass from Dismas for three weeks and was not allowed
visitation for three weeks. This cannot constitute cruel or unusual punishment.
The Plaintiff also was send to the Federal Detention Center in Miami. This is not cruel or
unusual punishment. Certainly, someone who served time in a correctional institution and was
still serving his sentence cannot complain that being sent to a detention center was cruel or
unusual. Once again, the Defendants did not confine the Plaintiff. The Plaintiff was held by the
Federal Bureau of Prisons. Further, halfway house living is a privilege not a right. (Affidavit of
Ana Gispert, p. 7-14, Exhibits 2, 3 and 4) Plaintiff lost his privilege when he failed to comply
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with the terms and conditions he himself agreed to with the Federal Bureau of Prisons regarding
his halfway house release. Accordingly, the Defendants are entitled to final summary judgment.
4. The Plaintiff has failed to appear for depositions, Defendants’ designated facts should be taken as established for purposes of this Motion for Summary Judgment, as the Defendants’ claim and Plaintiff’s pleadings should be stricken.
Defendants filed a Motion to Strike Plaintiff’s Pleadings for failing to appear for
depositions. (Docket 78, which is incorporated as though fully set forth herein) Plaintiff’s failure
to appear has inhibited Defendants ability to defend the case and oppose Plaintiff’s Motion for
Summary Judgment.
Pursuant to this Court’s scheduling order, Plaintiff, through notice dated August 24,
2011, was set for his deposition on October 10, 2011. 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.
As per the Plaintiff’s request, the Plaintiff was reset for deposition on November 11,
2011, through a notice dated August 29, 2011. 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. Plaintiff
never provided any proof of any medical condition that would prevent him from appearing at a
deposition. Accordingly, the deposition was not cancelled. 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)
The Plaintiff was again reset for deposition on December 5, 2011, through a notice dated
November 22, 2011. On Sunday December 4, 2011 at 10:24 pm, the day before his deposition,
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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. 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. A certificate of non-appearance was issued.
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. 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)
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.
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
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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. (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).
Rule 37(b)(2)(A) includes the following sanction against the non-complying party: (2) Sanctions in the District Where the Action Is Pending.
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(A) For Not Obeying a Discovery Order. If a party or a party's officer, director, or managing agent--or a witness designated under Rule 30(b)(6) or 31(a)(4)--fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following: (i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment against the disobedient party; or (vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.
As is proven above, The Plaintiff’s failure to appear for depositions and comply with the
Rules of Civil Procedure merit striking his motion for summary judgment, directing that the
matters embraced in the order or other designated facts be taken as established for purposes of
the action, as the Defendants claim; prohibiting the disobedient party from supporting or
opposing designated claims or defenses, from introducing designated matters in evidence as well
as his pleadings and dismissing his complaint. Additionally, 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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CONCLUSION
For the reasons set forth above, the Defendants would move this Court for an Order
granting all Defendants Final Summary Judgment and any further relief the Court deems just and
proper.
Respectfully submitted,
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 16th 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
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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: [email protected]
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