defendants motion for summary judgment, incorporated memorandum of law in support of motion for...

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.

Case 1:11-cv-20120-PAS Document 83 Entered on FLSD Docket 12/16/2011 of 21


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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



15

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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17

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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18

(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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19

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



20

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



21

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]


mailto:[email protected]�

defendants motion for summary judgment, incorporated memorandum of law in support of motion for...

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