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Filing # 29451205 E-Filed 07/09/2015 01:25:32 PM
IN THE CIRCUIT COURT OF THE 20TH
JUDICIAL CIRCUIT IN AND FOR
COLLIER COUNTY, FLORIDA
CIVIL DIVISION
CASE NO. 11-2014-CA-002827-0001-XX
ANNE MANGANO and JOSEPH
MANGANO, her husband,
Plaintiffs,
v.
GARDEN FRESH RESTAURANT CORP.
d/b/a SWEET TOMATOES,
Defendant.
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL AND.
AMENDED CROSS-MOTION FOR SANCTIONS AGAINST PLAINTIFF
Defendant, Garden Fresh Restaurant Corp. d/b/a Sweet Tomatoes ("Defendant"), by and
through undersigned counsel and in accordance with the applicable Florida Rules of Civil
Procedure and Florida Law, hereby responds to Plaintiff's Motion to Compel discovery from
Defendant and cross moves for sanctions against Plaintiff and in further support thereof
Defendant states as follows:
1. This is an alleged fall down claim which was originally removed to Federal Court
and which may be removed to Federal Court in the near future.
2. With the filing of the Complaint in State Court, Plaintiffs served Request for
Production of Documents and Interrogatories. After that, the case was removed to Federal
Court, thus holding all discovery in abeyance. After Plaintiff brought a motion to remand, the
case was remanded on May 11, 2015. Thereafter Defendant filed a Motion for Extension of
Time to Respond to said discovery from Plaintiffs. See Exhibit "A". Said Motion was never set
for hearing or ruled upon by the Court but a hearing is currently being scheduled.
FILED: COLLIER COUNTY, DWIGHT E. BROCK, CLERK, 07/10/2015 04:41:21 PMCASE NO. 11-2014-CA-002827-0001-XX
3. While said Motion was pending, Plaintiffs filed the attached Motion to Compel
against Defendant. See Exhibit "B".
4, Plaintiffs have thereafter sought a hearing on their Motion to Compel but not on
Defendant's above referenced Motion for Extension of Time. See Exhibit "C" hereto including
Plaintiff's letter dated July 6, 2015 received by the undersigned on July 8, 2015 with Order to
Magistrate.
5. Defendant's Motion for Extension of Time which is attached hereto was never
heard or ruled upon by this Court and no Order has been entered thereon. Thus, it is improper
for Plaintiff to file an unwarranted Motion to Compel or seek sanctions against Defendant in
light of said Motion, which was again previously disclosed in writing to Plaintiffs counsel.
Defendant also advised Plaintiffs that Defendant's discovery responses and answers would be
provided during the week of July 13, 2015. In short, Defendant's Motion must be heard and
ruled upon. Attached as Exhibit "D" is Defendant's June 19, 2015 correspondence to Plaintiff's
counsel requesting that a simple call or email be sent prior to filing Motions. No such call or
email was ever made by Plaintiff's counsel prior to filing Plaintiff's Motion to Compel and
despite the reference in Plaintiff's Motion to Compel claiming that such an attempt was made.
WHEREFORE, Defendant respectfully requests that this Motion be granted; that an order
be entered granting this Motion; that said Order include relief against Plaintiffs; and for such
further and other relief as the Court deems just and proper.CASE NO. 11-2014-CA-002827-0001-XX
Respectfully submitted,
\\)
Michael Alexajder'G rcia
Fla. Bar No. 0161055
Email: mgarcia@fowler-white.com
FOWLER WHITE BURNETT, P.A.
Espirito Santo Plaza, Fourteenth Floor
1395 Brickell Avenue
Miami, Florida 33131
Telephone: (305) 789-9200
Facsimile: (305) 789-9201
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via email
this \ day of July, 2015 to Adam Trop, Esquire, Trop Lavi Group, P.A., adamtrop@aol.com.
4828-0599-S813, v. 1Filing # 27641240 E-Filed 05/22/2015 03:02:23 PM
IN THE CIRCUIT COURT OF THE 20th
JUDICIAL CIRCUIT IN AND FOR
COLLIER COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO, 11-2014-CA-002827-0001-XX
ANNE MANGANO and JOSEPH
MANGANO, her husband,
Plaintiffs,
Vv.
GARDEN FRESH RESTAURANT CORP.
d/b/a SWEET TOMATOES,
Defendant.
DEFENDANT'S MOTION FOR EXTENSION OF TIME TO RESPOND TO
DISCOVERY SERVED WITH THE COMPLAINT
COMES NOW, Defendant, GARDEN FRESH RESTAURANT CORP. d/b/a SWEET
TOMATOES (“Garden Fresh” and/or “Defendant”), by and through undersigned counsel and in
accordance with the applicable Florida Rules of Civil Procedure, hereby moves for an extension of
time to respond to the discovery served with the Complaint, including request for production and
interrogatories, and states:
1, Plaintiff served discovery with the filing of the Complaint, including request for
production and interrogatories, This matter was then removed to the United States District Court for
the Middle District of Florida.
2. On or about May 11, 2015, an Order was entered remanding this matter back to this
Court. Undersigned counsel does not have the complete file and requires additional time to
investigate the allegations in Plaintiff's Complaint and to confer with the client.3. Due to a number of pressing commitments in various litigation matters and an
upcoming trial, including that this case was just recently remanded to this Court, counsel for
Defendant has been unable to meet and confer with the client or investigate the allegations raised in
the Complaint.
4. Accordingly, Defendant respectfully requests a brief extension of time to respond to
the discovery requests.
5. Undersigned counsel will contact Plaintiff's counsel in an effort to obtain counsel's
agreement to an extension of time. However, no agreement on this issue has yet been reached.
6. This request is not sought to injure, prejudice or delay this cause.
WHEREFORE, for the foregoing reasons, Defendant respectfully requests that the
Court enter an Order granting Defendant a reasonable extension of time to respond to Plaintiff's
discovery requests and for such further and other relief as the Court deems just and proper.
1 HEREBY CERTIFY that a true and correct copy of the foregoing was sent via email this
22"4 day of May, 2015 to Adam Trop, Esq., Trop Law Group, P.A., 3860 West Commercial Bivd.,
Fort Lauderdale, FL 33309, adamtrop@aol.com and cindy@troplawgroup.com.
Respectfully submitted,
/s/ Michael Alexander Garcia
Michael Alexander Garcia
Fla. Bar No. 0161055
Email: mgarcia@fowler-white.com
FOWLER WHITE BURNETT, P.A.
Espirito Santo Plaza, Fourteenth Floor
1395 Brickell Avenue
Miami, Florida 33131
Telephone: (305) 789-9200
Facsimile: (305) 789-9201
Attorney for Defendant
GARDEN FRESH RESTAURANT CORP.
4825-0325-3796, v. 1ac Rn RE A A LY
From: eservice@myflcourtaccess.com
Sent: Friday, May 22, 2015 3:03 PM
Subject: SERVICE OF COURT DOCUMENT - CASE NUMBER 112014CA0028270001XX
Attachments: Motion For Extension Of Time.pdf
Notice of Service of Court Documents
Filing Information
Filing #: 27641240
Filing Time: 05/22/2015 03:02:23 PM ET
Filer: Michael A. Garcia 305-789-9200
Court: Twentieth Judicial Circuit in and for Collier County, Florida
Case #: 112014CA0028270001XX
Court Case #: 112014CA0028270001XX
Case Style: MANGANO, ANNE VS GARDEN FRESH RESTAURANT CORP D
Documents
Title File
Motion For Extension Of Time Motion for Extension.pdf
E-service recipients selected for service:
IName [Email Address
[Adam Trop ladanitrop@aol.com
cindy@troplawgroup.com
Michael A. Garcia Dfowler-white.com
Imjimenez@fowler-white.com
E-service recipients deselected for service:
Name Email Address
o Matching EntriesThis is an automatic email message generated by the Florida Courts E-Filing Portal. This
email address does not receive email.
Thank you,
The Florida Courts E-Filing Portal
request_id#:27641240;Audit#:95239449;UCN#:112014CA0028270001XX;Filing # 29274755 E-Filed 07/06/2015 11:45:10 AM
IN THE CIRCUIT COURT OF THE 20TH
JUDICIAL CIRCUIT IN AND FOR COLLIER
COUNTY, FLORIDA
ANNE MANGANO and JOSEPH CASE NO. 1402827CA
MANGANO, her husband,
Plaintiff(s),
vs.
GARDEN FRESH RESTAURANT CORP.
d/b/a SWEET TOMATOES,
Defendant(s). /
PLAINTIFF'S MOTION TO COMPEL DISCOVERY
AND FOR SANCTIONS
COMES NOW the Plaintiffs, Anne and Joseph Mangano, by and through the undersigned
counsel, who hereby move this Court for the entry of an order compelling Defendant to comply with
the outstanding discovery requests and awarding attorneys fees and costs for a willful refusal to
respond to discovery, and as grounds therefore, state:
1 This is a negligence action arising out of a slip and fall incident at the Sweet Tomatoes
restaurant in Naples.
2. Plaintiff served Defendant with Interrogatories and a Request for Production along with the
Complaint on February 4, 2015.
3. Defendant then removed this matter to federal court in the United States District Court for
the Middle District of Florida.
4. On May 11, 2015, the Honorable John E. Steele entered an Order remanding this matter back
to this Court.
5. On or about May 22, 2015, Defendant, without contacting the undersigned, filed a Motion
for Extension of Time to Respond to Discovery, citing “a number of pressing
committements” and requesting a “brief extensiton of time”.Plaintiffs’ counsel contacted defense counsel by letter on June 26, 2015 and inquired when
responses to discovery would be forthcoming. Exhibit A.
Defense counsel responded by advising that Defendant would not be responding to Plaintiffs’
five month old discovery requests until after Plaintiffs responded to Defendant’s discovery,
which as of the date of this motion is not even due. Specifically, defense counsel asserted:
“as far as we know, in every trial in the United States, the Plaintiff goes first.
If 1 am wrong and your (sic) know of a jurisdiction where the plaintiff goes
second please let me know and I will rephrase what I am writing herein. In
other words, we await (sic) to receive Plaintiffs Responses to our Request
for Production and Answers to Interrogatories and all available documents
and at that time the defense will serve you with its Answers and Responses.”
See Exhibit B.
Defendant is willfully and overtly taking a position that is completely contrary to Florida law.
The issue is so elementary that Defendant’s argument cannot be said to “substantially
justified” pursuant to Rule 1.380 (a)(4), Fla.R.Civ.Proc,
Undersigned counsel is mindful that busy calendars and professional courtesy often justify
reasonable delays in responding to written discovery. But in this case, Defendant’s conduct
evinces a lack of regard for well established law.
Pursuant to Rule 1.380(a)(4), la.R. Civ.Proc., if granted, the Court “shall” require the party
whose conduct necessitated this motion (or its counsel) to pay reasonable expenses, including
reasonable attorneys’ fees.
Undersigned counsel certifies that a good faith effort was made to obtain the discovery
without court action.
WHEREFORE, the Plaintiff, requests that this Court enter an order compelling the Defendant
to respond to said discovery awarding attorney’s fees and costs.
1 HEREBY CERTIFY that a true and correct copy of the foregoing has been electronically
filed this \Q
day of , 2015 with the Clerk of Court by using the Florida CourtseFiling Portal system and that a copy of this document will be E-served to all parties through the
portal.
TROP LAW GROUP, P.A.
3860 West Commercial Blvd.
Fort Lauderdale, FL 33309
Phone: (954) 981-7150
Fax: (954) 981-7350
Email: adamtrop@aol.com
cindy@troplawgroup.com
‘Adam Trpp. Esq.
Florida Bar # 8517520928
df
TROP LA
Bae, G O U P
Adam Trop
Board Certified Civil Trial Lawyer
July 6, 2015
Honorable James R. Shenko
Collier County Courthouse
3315 Tamiami Trail East
Naples, FL 34112
RE: Mangano, Anne v. Sweet Tomatoes
Case Number: 1402827CA
Dear Judge Shenko:
Enclosed please find our proposed Order of Referral to Magistrate, relative to the above
referenced matter. We have filed a Motion to Compel Discovery and for Sanctions and would
respectfully request that it be heard by the assigned Magistrate.
If the proposed Order meets with the Court's approval, we respectfully request that your Honor
execute the enclosed Order so that we may set this matter for hearing.
Should the Court have any questions or instructions regarding the foregoing, please have your
judicial assistant contact me.
cc: Michael Alexander Garcia, Esq.
TAI23583
3860 West Commercial Boulevard * Fort Lauderdale, FL 33309 @ 954.981.7150 & 954.981.7350 & www.troplawgroup.comIN THE CIRCUIT COURT OF THE 20TH
JUDICIAL CIRCUIT IN AND FOR COLLIER
COUNTY, FLORIDA
ANNE MANGANO and JOSEPH CASE NO. 1402827CA
MANGANO, her husband,
Plaintiff(s),
vs.
GARDEN FRESH RESTAURANT CORP.
d/b/a SWEET TOMATOES,
Defendant(s). ,
E T TRATE
THIS CAUSE came on before the court upon the court’s own motion and the Court, being duly
advised in the premises, it is:
ORDERED that this case is referred to General Magistrate MARIA DENTE for further proceedings,
pursuant to Rule 1.490(a), Rule 1.490(c)(2), Florida Rules of Civil Procedure or Rule 5.095(a), Florida Probate
Rules, and current Administrative Orders of the Court. This referral is subject to the consent of all parties,
pursuant to Rule 1.490(c) or 1.490(c)(2) of the Florida Rules of Civil Procedure or Rule 5.095(c), Florida
Probate Rules. The Magistrate shall hold such hearings as deemed necessary and shall file, as soon as
practicable, a Recommended Order of the General Magistrate.
E x RDER_OF THE MAGISTRATE. AILURE s
IMMENDED ORDER OF THE IN_A iY BASIS Y
SANCTIONS BEING IMPOSED BY THE CIR« E.
THIS CASE IS REFERRED TO THE MAGiomAT on the following issues:
fx] All Discovery Motions {] Motion for Contempt
[] Motion for Protective Order {x} Motion for Sanctions
{J Motion to Transfer Venue {] Motion to Add/Substitute Parties
{] Motion to Withdraw [] Motion to Intervene
{1 Motions Directed to Pleadings {] Orders to Show Cause
(1 Motion to Amend U1 Summary Judgment
{) Pretrial Conference {1 Motion for Attorney’s Fees/Costs
{] Status/Case Management Conference [ ] Trial/Final Judgment
{x] Motion to Compel U1 Motion to Dismiss
[] Motion to Strike [] OTHER:
AND ANY OTHER MATTER RELATED THERETO.IT IS FURTHER ORDERED that the above matter(s) and responses are referred to Magistrate
MARIA DENTE for further proceedings, pursuant to the applicable Florida Rules of Procedure and current
administrative orders of the court. A time and place shall be assigned for the proceedings as soon as
reasonably possible after this referral is made and notice shall be given to each of the parties either by the
Magistrate or one or more of the parties.
A REFERRAL TO A MAGISTRATE REQUIRES THE CONSENT OF ALL PARTIES. YOU
ARE ENTITLED TO HAVE THIS MATTER HEARD BY A JUDGE. IF YOU DO NOT WANT TO
HAVE THIS MATTER HEARD BY THE MAGISTRATE, YOU MUST FILE A WRITTEN
OBJECTION TO THE REFERRAL WITH THE CLERK OF COURT PRIOR TO
COMMENCEMENT OF THE HEARING. A COPY OF THE WRITTEN OBJECTION SHALL ALSO
BE PROVIDED TO THE CIRCUIT JUDGE ASSIGNED TO THE CASE. FAILURE TO FILE A
WRITTEN OBJECTION IS DEEMED TO BE CONSENT TO THE REFERRAL. IF AN OBJECTION
IS FILED, THE PARTY OR THE PARTY’S COUNSEL IS ADVISED THAT TO AVOID THE
POSSIBLE IMPOSITION OF SANCTIONS, TO FILE SAID OBJECTION BOTH IN WRITING AND
IN A TIMELY MANNER, WHICH WILL PROMOTE PROFESSIONAL COURTESY AND AVOID
UNNECESSARY INCONVENIENCE TO THE COURT AND THE OPPOSING PARTY.
The General Magistrate is authorized to administer oaths and conduct hearings, as may be deemed
necessary, which may include the taking of evidence. As soon as practicable, the General Magistrate shall file
a Report and Recommendation, that contains findings of fact, conclusions of law, and the recommendation as
to a ruling by the Court, and shall submit, as may be appropriate, a Recommended Order of General
Magistrate.
Review of the Report and Recommendation made by the General Magistrate shall be by
exceptions filed within 10 days after it is served, as provided in Rule 1.490(h), Florida Rules of Civil
Procedure. Any party may file cross-exceptions within 5 days from the service of the exceptions. If no
exceptions are timely filed, the Court shall take appropriate action on the report. If exceptions are timely
filed, the Court shall resolve the exceptions at a hearing on reasonable notice.
Any party filing exceptions will be required to provide the Court with a record sufficient to
support the exceptions, or the exceptions may be denied. A record sufficient to support exceptions may
require a written transcript of the relevant proceedings. The record shall include the court file, designated
portions of the transcript of proceedings before the General Magistrate, and all depositions and evidence
presented to the General Magistrate. The designated transcript portions must be delivered to the Court and
all other parties at least 48 hours before the hearing. If the party filing exceptions prepares less than a full
transcript of the proceeding before the General Magistrate, that party must promptly file a notice
designating the portions of the transcript that will be transcribed, and the other parties must be given
reasonable time after service of the notice to arrange for the preparation and designation of other portions
of the transcript for the Court to consider at the hearing.
Though civil proceedings before a Judge are not electronically recorded by the Court, parties are
advised that civil proceedings before a Magistrate will be electronically recorded by the Court. However
any party may elect to provide a live Court Reporter at that party’s own expense. Ifa live Court Reporter
is provided by either party, requests for transcripts must be submitted to that Court Reporter. If no live
Court Reporter is provided by a party, a party may request an electronic certified copy of the proceeding on
CD, at that party’s expense, and may then have the recording transcribed, at that party’s expense.
Providing the Court with a copy of the CD, instead of a certified written transcript, is insufficient for
review of exceptions by the Court. Media request forms, procedures, and fees, and a list of approved
Transcriptionists are available on the Court’s website, www.ca.cjis20.org , or by calling the Court’s
Electronic Court Reporting Department at 239-252-8800.
After conclusion of the proceedings, if exceptions to the Magistrate’s Report are filed, A COPY OF
SAME SHALL BE CONTEMPORANEOUSLY SUBMITTED TO THE MAGISTRATE.DONE AND ORDERED in Collier County, Florida this day of 5201_.
James R. Shenko
Circuit Court Judge
CC: — Service List Attached or list all parties including email address or mailing address (pro se) address
Copies Furnished to:
Adam Trop, Esq. , Attorney for Plaintiff
adamtrop@aol.com; cindy@troplaweroup.com
Michael Garcia, Esq. , Attorney for Defendant
mearcia@fowler-white.com; mjimenez@fowler-white.comFowler White Burnett'y
June 19, 2015
VIA FACSIMILE AND FIRST CLASS MAIL
Adam Trop, Esquire
Trop Law Group, P.A.
3860 West Commercial Blvd.
Fort Lauderdale, FL 33309
Our File No. 89268
Dear Mr. Trop:
Sincerely,
Re: — Anne and Joseph Mangano v. Garden Fresh Restaurant Corp.
Espirito Santo Plaza
Fourteenth Floor
1395 Brickell Avenue
Miami, Florida 33131
www. fowler-white.com
Michael Alexander Garcia
(305) 789-9238 direct
(305) 789-9201 fax
mgarcia@fowler-white.com
I saw that you filed a Motion for Default which included an argument that discovery is
outstanding. While we have already filed our Answer in Circuit Court prior to this case most
likely being removed again to federal Court, we have a pending Motion for Extension of Time to
Respond to Plaintiff's Discovery, I thus ask that you please withdraw your Motion for Default
because the same is inappropriate for the aforesaid and other reasons. Additionally, in the future
if you do have any issues with discovery or the pleadings, instead of filing a Motion simply try to
communicate with me as local counsel or contact national counsel prior to filing such a Motion
and it can make things much easier for everyone. We will extend the same courtesy as we have
een doing in these proceedings. Many thanks for your anticipated cooperation.
FOWLER WHITE BURNETT, P.A.
/
Michael Alexander Garcia
4829-9219-9717, v. 1
i
:
3
a
Miami ¢ Fort Lauderdale * West Palm Beach
Preview
Filing # 29451205 E-Filed 07/09/2015 01:25:32 PM IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA CIVIL DIVISION CASE NO. 11-2014-CA-002827-0001-XX ANNE MANGANO and JOSEPH MANGANO, her husband, Plaintiffs, v. GARDEN FRESH RESTAURANT CORP. d/b/a SWEET TOMATOES, Defendant. DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL AND. AMENDED CROSS-MOTION FOR SANCTIONS AGAINST PLAINTIFF Defendant, Garden Fresh Restaurant Corp. d/b/a Sweet Tomatoes ("Defendant"), by and through undersigned counsel and in accordance with the applicable Florida Rules of Civil Procedure and Florida Law, hereby responds to Plaintiff's Motion to Compel discovery from Defendant and cross moves for sanctions against Plaintiff and in further support thereof Defendant states as follows: 1. This is an alleged fall down claim which was originally removed to Federal Court and which may be removed to Federal Court in the near future. 2. With the filing of the Complaint in State Court, Plaintiffs served Request for Production of Documents and Interrogatories. After that, the case was removed to Federal Court, thus holding all discovery in abeyance. After Plaintiff brought a motion to remand, the case was remanded on May 11, 2015. Thereafter Defendant filed a Motion for Extension of Time to Respond to said discovery from Plaintiffs. See Exhibit "A". Said Motion was never set for hearing or ruled upon by the Court but a hearing is currently being scheduled. FILED: COLLIER COUNTY, DWIGHT E. BROCK, CLERK, 07/10/2015 04:41:21 PMCASE NO. 11-2014-CA-002827-0001-XX 3. While said Motion was pending, Plaintiffs filed the attached Motion to Compel against Defendant. See Exhibit "B". 4, Plaintiffs have thereafter sought a hearing on their Motion to Compel but not on Defendant's above referenced Motion for Extension of Time. See Exhibit "C" hereto including Plaintiff's letter dated July 6, 2015 received by the undersigned on July 8, 2015 with Order to Magistrate. 5. Defendant's Motion for Extension of Time which is attached hereto was never heard or ruled upon by this Court and no Order has been entered thereon. Thus, it is improper for Plaintiff to file an unwarranted Motion to Compel or seek sanctions against Defendant in light of said Motion, which was again previously disclosed in writing to Plaintiffs counsel. Defendant also advised Plaintiffs that Defendant's discovery responses and answers would be provided during the week of July 13, 2015. In short, Defendant's Motion must be heard and ruled upon. Attached as Exhibit "D" is Defendant's June 19, 2015 correspondence to Plaintiff's counsel requesting that a simple call or email be sent prior to filing Motions. No such call or email was ever made by Plaintiff's counsel prior to filing Plaintiff's Motion to Compel and despite the reference in Plaintiff's Motion to Compel claiming that such an attempt was made. WHEREFORE, Defendant respectfully requests that this Motion be granted; that an order be entered granting this Motion; that said Order include relief against Plaintiffs; and for such further and other relief as the Court deems just and proper.CASE NO. 11-2014-CA-002827-0001-XX Respectfully submitted, \\) Michael Alexajder'G rcia Fla. Bar No. 0161055 Email: mgarcia@fowler-white.com FOWLER WHITE BURNETT, P.A. Espirito Santo Plaza, Fourteenth Floor 1395 Brickell Avenue Miami, Florida 33131 Telephone: (305) 789-9200 Facsimile: (305) 789-9201 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via email this \ day of July, 2015 to Adam Trop, Esquire, Trop Lavi Group, P.A., adamtrop@aol.com. 4828-0599-S813, v. 1Filing # 27641240 E-Filed 05/22/2015 03:02:23 PM IN THE CIRCUIT COURT OF THE 20th JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO, 11-2014-CA-002827-0001-XX ANNE MANGANO and JOSEPH MANGANO, her husband, Plaintiffs, Vv. GARDEN FRESH RESTAURANT CORP. d/b/a SWEET TOMATOES, Defendant. DEFENDANT'S MOTION FOR EXTENSION OF TIME TO RESPOND TO DISCOVERY SERVED WITH THE COMPLAINT COMES NOW, Defendant, GARDEN FRESH RESTAURANT CORP. d/b/a SWEET TOMATOES (“Garden Fresh” and/or “Defendant”), by and through undersigned counsel and in accordance with the applicable Florida Rules of Civil Procedure, hereby moves for an extension of time to respond to the discovery served with the Complaint, including request for production and interrogatories, and states: 1, Plaintiff served discovery with the filing of the Complaint, including request for production and interrogatories, This matter was then removed to the United States District Court for the Middle District of Florida. 2. On or about May 11, 2015, an Order was entered remanding this matter back to this Court. Undersigned counsel does not have the complete file and requires additional time to investigate the allegations in Plaintiff's Complaint and to confer with the client.3. Due to a number of pressing commitments in various litigation matters and an upcoming trial, including that this case was just recently remanded to this Court, counsel for Defendant has been unable to meet and confer with the client or investigate the allegations raised in the Complaint. 4. Accordingly, Defendant respectfully requests a brief extension of time to respond to the discovery requests. 5. Undersigned counsel will contact Plaintiff's counsel in an effort to obtain counsel's agreement to an extension of time. However, no agreement on this issue has yet been reached. 6. This request is not sought to injure, prejudice or delay this cause. WHEREFORE, for the foregoing reasons, Defendant respectfully requests that the Court enter an Order granting Defendant a reasonable extension of time to respond to Plaintiff's discovery requests and for such further and other relief as the Court deems just and proper. 1 HEREBY CERTIFY that a true and correct copy of the foregoing was sent via email this 22"4 day of May, 2015 to Adam Trop, Esq., Trop Law Group, P.A., 3860 West Commercial Bivd., Fort Lauderdale, FL 33309, adamtrop@aol.com and cindy@troplawgroup.com. Respectfully submitted, /s/ Michael Alexander Garcia Michael Alexander Garcia Fla. Bar No. 0161055 Email: mgarcia@fowler-white.com FOWLER WHITE BURNETT, P.A. Espirito Santo Plaza, Fourteenth Floor 1395 Brickell Avenue Miami, Florida 33131 Telephone: (305) 789-9200 Facsimile: (305) 789-9201 Attorney for Defendant GARDEN FRESH RESTAURANT CORP. 4825-0325-3796, v. 1ac Rn RE A A LY From: eservice@myflcourtaccess.com Sent: Friday, May 22, 2015 3:03 PM Subject: SERVICE OF COURT DOCUMENT - CASE NUMBER 112014CA0028270001XX Attachments: Motion For Extension Of Time.pdf Notice of Service of Court Documents Filing Information Filing #: 27641240 Filing Time: 05/22/2015 03:02:23 PM ET Filer: Michael A. Garcia 305-789-9200 Court: Twentieth Judicial Circuit in and for Collier County, Florida Case #: 112014CA0028270001XX Court Case #: 112014CA0028270001XX Case Style: MANGANO, ANNE VS GARDEN FRESH RESTAURANT CORP D Documents Title File Motion For Extension Of Time Motion for Extension.pdf E-service recipients selected for service: IName [Email Address [Adam Trop ladanitrop@aol.com cindy@troplawgroup.com Michael A. Garcia Dfowler-white.com Imjimenez@fowler-white.com E-service recipients deselected for service: Name Email Address o Matching EntriesThis is an automatic email message generated by the Florida Courts E-Filing Portal. This email address does not receive email. Thank you, The Florida Courts E-Filing Portal request_id#:27641240;Audit#:95239449;UCN#:112014CA0028270001XX;Filing # 29274755 E-Filed 07/06/2015 11:45:10 AM IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA ANNE MANGANO and JOSEPH CASE NO. 1402827CA MANGANO, her husband, Plaintiff(s), vs. GARDEN FRESH RESTAURANT CORP. d/b/a SWEET TOMATOES, Defendant(s). / PLAINTIFF'S MOTION TO COMPEL DISCOVERY AND FOR SANCTIONS COMES NOW the Plaintiffs, Anne and Joseph Mangano, by and through the undersigned counsel, who hereby move this Court for the entry of an order compelling Defendant to comply with the outstanding discovery requests and awarding attorneys fees and costs for a willful refusal to respond to discovery, and as grounds therefore, state: 1 This is a negligence action arising out of a slip and fall incident at the Sweet Tomatoes restaurant in Naples. 2. Plaintiff served Defendant with Interrogatories and a Request for Production along with the Complaint on February 4, 2015. 3. Defendant then removed this matter to federal court in the United States District Court for the Middle District of Florida. 4. On May 11, 2015, the Honorable John E. Steele entered an Order remanding this matter back to this Court. 5. On or about May 22, 2015, Defendant, without contacting the undersigned, filed a Motion for Extension of Time to Respond to Discovery, citing “a number of pressing committements” and requesting a “brief extensiton of time”.Plaintiffs’ counsel contacted defense counsel by letter on June 26, 2015 and inquired when responses to discovery would be forthcoming. Exhibit A. Defense counsel responded by advising that Defendant would not be responding to Plaintiffs’ five month old discovery requests until after Plaintiffs responded to Defendant’s discovery, which as of the date of this motion is not even due. Specifically, defense counsel asserted: “as far as we know, in every trial in the United States, the Plaintiff goes first. If 1 am wrong and your (sic) know of a jurisdiction where the plaintiff goes second please let me know and I will rephrase what I am writing herein. In other words, we await (sic) to receive Plaintiffs Responses to our Request for Production and Answers to Interrogatories and all available documents and at that time the defense will serve you with its Answers and Responses.” See Exhibit B. Defendant is willfully and overtly taking a position that is completely contrary to Florida law. The issue is so elementary that Defendant’s argument cannot be said to “substantially justified” pursuant to Rule 1.380 (a)(4), Fla.R.Civ.Proc, Undersigned counsel is mindful that busy calendars and professional courtesy often justify reasonable delays in responding to written discovery. But in this case, Defendant’s conduct evinces a lack of regard for well established law. Pursuant to Rule 1.380(a)(4), la.R. Civ.Proc., if granted, the Court “shall” require the party whose conduct necessitated this motion (or its counsel) to pay reasonable expenses, including reasonable attorneys’ fees. Undersigned counsel certifies that a good faith effort was made to obtain the discovery without court action. WHEREFORE, the Plaintiff, requests that this Court enter an order compelling the Defendant to respond to said discovery awarding attorney’s fees and costs. 1 HEREBY CERTIFY that a true and correct copy of the foregoing has been electronically filed this \Q day of , 2015 with the Clerk of Court by using the Florida CourtseFiling Portal system and that a copy of this document will be E-served to all parties through the portal. TROP LAW GROUP, P.A. 3860 West Commercial Blvd. Fort Lauderdale, FL 33309 Phone: (954) 981-7150 Fax: (954) 981-7350 Email: adamtrop@aol.com cindy@troplawgroup.com ‘Adam Trpp. Esq. Florida Bar # 8517520928 df TROP LA Bae, G O U P Adam Trop Board Certified Civil Trial Lawyer July 6, 2015 Honorable James R. Shenko Collier County Courthouse 3315 Tamiami Trail East Naples, FL 34112 RE: Mangano, Anne v. Sweet Tomatoes Case Number: 1402827CA Dear Judge Shenko: Enclosed please find our proposed Order of Referral to Magistrate, relative to the above referenced matter. We have filed a Motion to Compel Discovery and for Sanctions and would respectfully request that it be heard by the assigned Magistrate. If the proposed Order meets with the Court's approval, we respectfully request that your Honor execute the enclosed Order so that we may set this matter for hearing. Should the Court have any questions or instructions regarding the foregoing, please have your judicial assistant contact me. cc: Michael Alexander Garcia, Esq. TAI23583 3860 West Commercial Boulevard * Fort Lauderdale, FL 33309 @ 954.981.7150 & 954.981.7350 & www.troplawgroup.comIN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA ANNE MANGANO and JOSEPH CASE NO. 1402827CA MANGANO, her husband, Plaintiff(s), vs. GARDEN FRESH RESTAURANT CORP. d/b/a SWEET TOMATOES, Defendant(s). , E T TRATE THIS CAUSE came on before the court upon the court’s own motion and the Court, being duly advised in the premises, it is: ORDERED that this case is referred to General Magistrate MARIA DENTE for further proceedings, pursuant to Rule 1.490(a), Rule 1.490(c)(2), Florida Rules of Civil Procedure or Rule 5.095(a), Florida Probate Rules, and current Administrative Orders of the Court. This referral is subject to the consent of all parties, pursuant to Rule 1.490(c) or 1.490(c)(2) of the Florida Rules of Civil Procedure or Rule 5.095(c), Florida Probate Rules. The Magistrate shall hold such hearings as deemed necessary and shall file, as soon as practicable, a Recommended Order of the General Magistrate. E x RDER_OF THE MAGISTRATE. AILURE s IMMENDED ORDER OF THE IN_A iY BASIS Y SANCTIONS BEING IMPOSED BY THE CIR« E. THIS CASE IS REFERRED TO THE MAGiomAT on the following issues: fx] All Discovery Motions {] Motion for Contempt [] Motion for Protective Order {x} Motion for Sanctions {J Motion to Transfer Venue {] Motion to Add/Substitute Parties {] Motion to Withdraw [] Motion to Intervene {1 Motions Directed to Pleadings {] Orders to Show Cause (1 Motion to Amend U1 Summary Judgment {) Pretrial Conference {1 Motion for Attorney’s Fees/Costs {] Status/Case Management Conference [ ] Trial/Final Judgment {x] Motion to Compel U1 Motion to Dismiss [] Motion to Strike [] OTHER: AND ANY OTHER MATTER RELATED THERETO.IT IS FURTHER ORDERED that the above matter(s) and responses are referred to Magistrate MARIA DENTE for further proceedings, pursuant to the applicable Florida Rules of Procedure and current administrative orders of the court. A time and place shall be assigned for the proceedings as soon as reasonably possible after this referral is made and notice shall be given to each of the parties either by the Magistrate or one or more of the parties. A REFERRAL TO A MAGISTRATE REQUIRES THE CONSENT OF ALL PARTIES. YOU ARE ENTITLED TO HAVE THIS MATTER HEARD BY A JUDGE. IF YOU DO NOT WANT TO HAVE THIS MATTER HEARD BY THE MAGISTRATE, YOU MUST FILE A WRITTEN OBJECTION TO THE REFERRAL WITH THE CLERK OF COURT PRIOR TO COMMENCEMENT OF THE HEARING. A COPY OF THE WRITTEN OBJECTION SHALL ALSO BE PROVIDED TO THE CIRCUIT JUDGE ASSIGNED TO THE CASE. FAILURE TO FILE A WRITTEN OBJECTION IS DEEMED TO BE CONSENT TO THE REFERRAL. IF AN OBJECTION IS FILED, THE PARTY OR THE PARTY’S COUNSEL IS ADVISED THAT TO AVOID THE POSSIBLE IMPOSITION OF SANCTIONS, TO FILE SAID OBJECTION BOTH IN WRITING AND IN A TIMELY MANNER, WHICH WILL PROMOTE PROFESSIONAL COURTESY AND AVOID UNNECESSARY INCONVENIENCE TO THE COURT AND THE OPPOSING PARTY. The General Magistrate is authorized to administer oaths and conduct hearings, as may be deemed necessary, which may include the taking of evidence. As soon as practicable, the General Magistrate shall file a Report and Recommendation, that contains findings of fact, conclusions of law, and the recommendation as to a ruling by the Court, and shall submit, as may be appropriate, a Recommended Order of General Magistrate. Review of the Report and Recommendation made by the General Magistrate shall be by exceptions filed within 10 days after it is served, as provided in Rule 1.490(h), Florida Rules of Civil Procedure. Any party may file cross-exceptions within 5 days from the service of the exceptions. If no exceptions are timely filed, the Court shall take appropriate action on the report. If exceptions are timely filed, the Court shall resolve the exceptions at a hearing on reasonable notice. Any party filing exceptions will be required to provide the Court with a record sufficient to support the exceptions, or the exceptions may be denied. A record sufficient to support exceptions may require a written transcript of the relevant proceedings. The record shall include the court file, designated portions of the transcript of proceedings before the General Magistrate, and all depositions and evidence presented to the General Magistrate. The designated transcript portions must be delivered to the Court and all other parties at least 48 hours before the hearing. If the party filing exceptions prepares less than a full transcript of the proceeding before the General Magistrate, that party must promptly file a notice designating the portions of the transcript that will be transcribed, and the other parties must be given reasonable time after service of the notice to arrange for the preparation and designation of other portions of the transcript for the Court to consider at the hearing. Though civil proceedings before a Judge are not electronically recorded by the Court, parties are advised that civil proceedings before a Magistrate will be electronically recorded by the Court. However any party may elect to provide a live Court Reporter at that party’s own expense. Ifa live Court Reporter is provided by either party, requests for transcripts must be submitted to that Court Reporter. If no live Court Reporter is provided by a party, a party may request an electronic certified copy of the proceeding on CD, at that party’s expense, and may then have the recording transcribed, at that party’s expense. Providing the Court with a copy of the CD, instead of a certified written transcript, is insufficient for review of exceptions by the Court. Media request forms, procedures, and fees, and a list of approved Transcriptionists are available on the Court’s website, www.ca.cjis20.org , or by calling the Court’s Electronic Court Reporting Department at 239-252-8800. After conclusion of the proceedings, if exceptions to the Magistrate’s Report are filed, A COPY OF SAME SHALL BE CONTEMPORANEOUSLY SUBMITTED TO THE MAGISTRATE.DONE AND ORDERED in Collier County, Florida this day of 5201_. James R. Shenko Circuit Court Judge CC: — Service List Attached or list all parties including email address or mailing address (pro se) address Copies Furnished to: Adam Trop, Esq. , Attorney for Plaintiff adamtrop@aol.com; cindy@troplaweroup.com Michael Garcia, Esq. , Attorney for Defendant mearcia@fowler-white.com; mjimenez@fowler-white.comFowler White Burnett'y June 19, 2015 VIA FACSIMILE AND FIRST CLASS MAIL Adam Trop, Esquire Trop Law Group, P.A. 3860 West Commercial Blvd. Fort Lauderdale, FL 33309 Our File No. 89268 Dear Mr. Trop: Sincerely, Re: — Anne and Joseph Mangano v. Garden Fresh Restaurant Corp. Espirito Santo Plaza Fourteenth Floor 1395 Brickell Avenue Miami, Florida 33131 www. fowler-white.com Michael Alexander Garcia (305) 789-9238 direct (305) 789-9201 fax mgarcia@fowler-white.com I saw that you filed a Motion for Default which included an argument that discovery is outstanding. While we have already filed our Answer in Circuit Court prior to this case most likely being removed again to federal Court, we have a pending Motion for Extension of Time to Respond to Plaintiff's Discovery, I thus ask that you please withdraw your Motion for Default because the same is inappropriate for the aforesaid and other reasons. Additionally, in the future if you do have any issues with discovery or the pleadings, instead of filing a Motion simply try to communicate with me as local counsel or contact national counsel prior to filing such a Motion and it can make things much easier for everyone. We will extend the same courtesy as we have een doing in these proceedings. Many thanks for your anticipated cooperation. FOWLER WHITE BURNETT, P.A. / Michael Alexander Garcia 4829-9219-9717, v. 1 i : 3 a Miami ¢ Fort Lauderdale * West Palm Beach