Celebrity Cruises, Inc. v. Fernandes

• Decision Date: 05 November 2014
• Docket Number: Nos. 3D14–85,3D13–2612.,s. 3D14–85
• Parties: CELEBRITY CRUISES, INC., Appellant, v. Vicente J. FERNANDES, Appellee.
• Court: Florida District Court of Appeals

149 So.3d 744

CELEBRITY CRUISES, INC., Appellant

v.Vicente J. FERNANDES, Appellee.

Nos. 3D14–85

3D13–2612.

District Court of Appeal of Florida, Third District.

Nov. 5, 2014.

Holland & Knight, Rodolfo Sorondo, Jr. and Christopher Bellows, Miami, for appellant.

Meister Law and Tonya J. Meister ; Colson Hicks Eidson Colson Matthews Martinez Gonzalez Kalbac & Kane, Maureen E. Lefebvre and Ervin A. Gonzalez, Coral Gables, for appellee.

Before WELLS, EMAS and LOGUE, JJ.

Opinion

WELLS, Judge.

Celebrity Cruises, Inc., the defendant in this negligence action brought by an injured seaman, appeals from a default final judgment entered after its pleadings were stricken as a discovery sanction. Because the sanction order was entered without prior notice or opportunity to be heard, we reverse the judgment predicated on it and remand for further proceedings consistent with this opinion.

This action was filed on July 6, 2011, by Vicente J. Fernandes a seaman allegedly injured during a fight with another crewmember while aboard a Celebrity cruise ship. Early on and in response to interrogatories propounded with the initial complaint, Celebrity disclosed that the altercation had been witnessed by a number of crewmembers.

On October 14, only three months after this action was filed, Fernandes's counsel notified the court and opposing counsel that she would be unavailable for approximately 10 weeks, or through December 30, 2011, due to a planned leave. Despite the fact that counsel was unavailable to move this case forward and that no depositions had been taken or discovery conducted, on December 5, Fernandes's counsel notified the court that this case was at issue and ready for trial. Two days later, on December 7, 2011, an order was issued setting this matter for trial for the one-week trial period commencing March 19, 2012. That order, among other things, required the parties (1) within 60 days of Monday of the week of March 19—that is, by January 19—to exchange the names and addresses of all expert witnesses and to complete all medical evaluations and examinations; (2) within 45 days of Monday of the week of March 19—that is, by February 4—to exchange written witness and exhibit lists and to make all exhibits available to opposing counsel for copying and examination; and, (3) within 15 days of Monday of the week of March 19—that is, by March 4—to have completed all discovery and pre-trial motions and to have attended mediation.

Needless to say, none of this was going to nor actually did happen.

On December 28, Celebrity propounded its first set of interrogatories and request for production on Fernandes. On January 17, 2012, Celebrity filed an unopposed motion to continue the trial representing that Fernandes had not yet been deposed nor had he undergone a compulsory medical examination. Celebrity also advised the court below that virtually no discovery had taken place and that the action was “not ready to be tried.” Shortly thereafter, Fernandes requested an extension of time to respond to Celebrity's discovery requests. The trial was continued to September 2012.

On February 22, 2012, counsel for Fernandes notified the court and opposing counsel that she would be unavailable to advance this litigation for one week at the end of March and for another week at the end of June 2012. On May 18, Celebrity filed its privilege log. It simultaneously noticed the filing of its responses to Fernandes's request for production, request for admissions, and interrogatories.

On June 7, Fernandes moved to compel Celebrity to provide dates for the depositions of the crewmember who allegedly assaulted Fernandes and the crewmembers who investigated the incident; Fernandes also sought to compel a date on which he might inspect the vessel on which the fight occurred. An agreed order on this motion was entered requiring Celebrity within 7 days to provide Fernandes with dates for the requested depositions which were to take place within 60 days. That same day, July 11, 2012, the trial was continued again, this time to the three week trial period beginning February 4, 2013. Less than a week later, Fernandes's counsel notified the court that she already had a trial set for that week and would be unavailable for trial of this matter at that time.

On August 20, 2012, Celebrity notified Fernandes's counsel that the vessel on which Fernandes allegedly was injured had been on “the west coast consistently throughout the year,” but that it would be in Ft. Lauderdale on December 19, 2012 and January 18, 2013 and could be inspected locally on those days. Fernandes's counsel advised Celebrity that she would inspect the vessel on December 19 in Ft. Lauderdale.

Two days later, Celebrity notified Fernandes's counsel that its corporate representative would be available for deposition on either November 13 or 15, 2012. While Fernandes was willing to take this deposition at the beginning of October, she refused to wait until mid-November and moved to compel not only a more timely date for the deposition of Celebrity's corporate representative but also compliance with the July 11 order to provide dates for the depositions of the crewmember who allegedly injured Fernandes and the crewmembers who investigated the incident in which he was injured. The motion to compel a more timely date for the corporate representative's deposition was, in effect, denied, with the deposition being ordered for November 15, one of the dates proposed by Celebrity. With regard to the other depositions, Celebrity was ordered to provide a date for the deposition of investigator Ira Warder and shipboard investigator or investigators within 7 days.

That same day, September 27, 2012, Celebrity moved to compel Fernandes, a resident of India, to appear in Miami for his deposition and a compulsory medical examination. Shortly thereafter, Fernandes moved to compel the depositions of 11 crewmembers who allegedly had knowledge of the incident in which Fernandes claimed he was injured. On September 27, Fernandes was ordered to appear within 45 days to be deposed and examined and to appear in Miami for trial. In a separate order dated October 18, 2012, Celebrity was ordered to provide, within 30 days, the “schedule, ship assignment and deposition availability [for the crewmembers who had been identified by Celebrity as witnessing the fight],” along with their contact information. Celebrity also was ordered to provide, within 30 days, contact information for those crewmembers no longer employed by it. Finally the court ordered Fernandes's deposition to be taken first before the deposition of any of these crewmembers.

On October 29, Celebrity advised Fernandes's counsel that one of the ship's investigators, Anton Kogan, was currently aboard a Celebrity ship in Europe but that the ship would be in port in Miami in December and that Celebrity was “aiming for Dec 3 in Miami” for his deposition, if not in person then via telephone. In response, Fernandes's counsel agreed to take Kogan's deposition on December 3, if she were available and if not during the second week in December. Counsel for Fernandes further advised that she would be taking Ira Warder's deposition on November 28. Upon receipt of this information, Celebrity advised that December 3 was not an option for Kogan but agreed to Fernandes's counsel's suggestion of the following week and offered either December 7, 8, or 10, for Kogan's deposition. But because Celebrity's counsel was set for trial during the week of December 7, Celebrity notified Fernandes's counsel that it was not available for depositions during that week after all. Celebrity also inquired about Fernandes's availability for deposition which was to take place before that of any crewmember and by mid-November. While stating that she was “happy to work with [counsel for Celebrity] on the dates for the deposition of Anton Kogan, the ship board investigator, to accommodate [his] trial,” Fernandes's counsel advised that if a date for this deposition was not provided within a week, she would “seek court intervention.” As for Fernandes's availability, she further advised Celebrity that she would “let [it] know.”

When Celebrity was not able to provide deposition dates to counsel for Fernandes as demanded, Fernandes filed a motion to sanction Celebrity for its failures to comply with the July 11 and September 27 court orders to provide dates for crewmember and investigator depositions. This motion was never heard because the parties jointly moved on December 17 to continue the scheduled trial. In that joint motion, the parties represented that it would be best if the trial were continued (1) because only the deposition of investigator, Ira Warder, had been taken; (2) because the deposition of Celebrity's corporate representative had commenced but had not yet been completed because of scheduling conflicts¹ ; (3) because the parties were working with each other to schedule a deposition of the ship's other investigator, Anton Kogan, which had not been taken because he “recently [had] been off contract and unavailable”² ; and (4) because Fernandes—who was to be deposed before the crewmembers—“ha[d] encountered difficulty securing a travel visa, frustrating efforts to coordinate his deposition.” The trial was reset for the three week trial period commencing May 6, 2013.

In February 2013, Fernandes moved to compel better answers to Celebrity's interrogatories and to compel the deposition of Tony Faso, the individual identified by Celebrity as having decided Fernandes's entitlement to maintenance and cure. Celebrity agreed to an order providing for better answers to some of its interrogatories. In a separate order dated February 20, 2013, Tony Faso was ordered to appear for deposition within 30 days with Fernandes to be deposed “via skype or videoconferencing following Faso's deposition.” Celebrity was not, however, obligated to take Fernandes's deposition within 30 days if it decided to go to India to depose him.

Two...