Preview
Filing # 142210997 E-Filed 01/19/2022 09:22:40 AM
IN THE COUNTY COURT OF THE
ELEVENTH JUDICIAL CIRCUIT, IN AND
FOR MIAMI-DADE COUNTY, FLORIDA
THE RIGHT SPINAL CLINIC, INC.
A/A/O LOIDA HERNANDEZ,
Plaintiff, Case No.: 2021-009772-CC-21
Division: HI01
v.
GEICO GENERAL INSURANCE COMPANY,
Defendant.
_______________________________________/
DEFENDANT’S RESPONSE AND OBJECTION TO PLAINTIFF’S MOTION TO
COMPEL FRCP 1.310(b)(6) DEPOSITION DUCES TECUM PURSUANT TO THE
ATTACHED NOTICE OF DEPOSITION DUCES TECUM AND DEPOSITION OF THE
PRE-LITIGATION ADJUSTER
Defendant, GEICO General Insurance Company (“GEICO”), pursuant to the Florida Rules
of Civil Procedure and the local rules of this jurisdiction, responds and objects to Plaintiff’s Motion
to Compel FRCP 1.310(B)(6) Deposition Duces Tecum Pursuant to the Attached Notice of
Deposition Duces Tecum and Deposition of the Pre-Litigation Adjuster as follows:
SUMMARY
Plaintiff’s motion to compel is due to be denied and GEICO objects to the proposed
deposition. Discovery, including depositions, is improper in this action as GEICO has moved to
stay this action and sought a protective order due to a pending federal action with priority over this
lawsuit. GEICO has filed a motion to stay and a motion for protective order specifically addressed
to prevent irreparable harm to GEICO, as discussed herein.
BACKGROUND
1. On April 7, 2020, GEICO filed the Federal Action against the Plaintiff, along with
twenty-three related defendants. The Right Spinal Clinic, Inc. – Plaintiff in this case – was served
on April 17, 2020. GEICO filed an Amended Complaint in the Federal Action on August 14, 2020
SGR/36049300.1
where The Right Spinal Clinic, Inc. is still one of twenty-two related defendants defending the
Federal Action. The Federal Action remains pending before the Honorable Charlene E. Honeywell
in the U.S. District Court for the Middle District of Florida, Tampa Division.
2. Subsequently, Plaintiff served its Complaint on GEICO on September 24, 2021,
broadly seeking PIP benefits for medical services allegedly provided by Plaintiff, after filing it on
September 7, 2021.
3. Plaintiff filed various discovery requests on September 18, 2021, before GEICO
was served with the Complaint, and supplemental discovery on November 11, 2021 (collectively,
the “Discovery Requests”).
4. On January 19, 2022, GEICO filed its Motion and Supporting Memorandum to
Stay Proceedings (“Motion to Stay”) and Motion for Protective Order and Supporting
Memorandum of Law (“Motion for Protective Order”), as it previously advised Plaintiff it would
do. GEICO’s Motion to Stay and Motion for Protective Order seek a stay of these proceedings
including any and all discovery. GEICO’s Motions are based upon the principle of priority, which
requires that the latter court to assume jurisdiction is precluded from prosecuting a lawsuit,
requiring the action be stayed – including all discovery – while the prior action remains pending.
5. Out of an abundance of caution, GEICO filed its response and objection to the
Discovery Requests on January 18, 2022.
6. Plaintiff filed its Motion to Compel FRCP 1.310(B)(6) Deposition Duces Tecum
Pursuant to the Attached Notice of Deposition Duces Tecum and Deposition of the Pre-Litigation
Adjuster (the “Motion to Compel”) on January 11, 2022. The Motion to Compel also listed a
proposed deposition notice that requested many documents in addition to those listed in the
Discovery Requests (the “Proposed Deposition Notice”).
7. Out of an abundance of caution, GEICO files this response and objection to the
SGR/36049300.1
Discovery Requests, the Motion to Compel, and the Proposed Deposition Notice, before the entry
of any Order compelling the deposition or discovery responses.
8. Moreover, GEICO files this response and objection to the Motion to Compel and
Proposed Deposition Notice out of an abundance of caution because allowing Plaintiff to proceed
with discovery and related depositions will expose GEICO to the irreparable harm that the
“principle of priority” exists to avoid. Based on the pending Motion to Stay and Motion for
Protective Order, GEICO objects to each of Plaintiff’s production requests and areas of inquiry in
the Proposed Deposition Notice and the Motion to Compel, and reserves the right to file responses
and conduct depositions should the Court deny GEICO’s Motion to Stay and Motion for Protective
Order and allow discovery to proceed in this matter.
9. GEICO further objects to the requested videotaped deposition. Due to the COVID-
19 pandemic, for the safety of its employees and others GEICO has directed that its employees are
not to enter its building and are not to attend in person meetings unless required to do so by a court.
Likewise, GEICO’s counsel’s office is also closed and travel restricted except as required by court
order. In order to allow discovery to progress in cases, witnesses have been appearing remotely,
typically from their homes. Rule 1.310(b)(4), Fla.R.Civ.P., does not contemplate video
depositions be taken remotely or by non-professional operators. Accordingly, if this action is not
stayed in its entirety, GEICO objects to Plaintiff’s attempt to schedule a videotaped deposition
until such time as the COVID-19 pandemic subsides to the point of making in-person deposition
appearances no longer a health risk to witnesses and counsel.
ARGUMENT
Plaintiff’s Motion to Compel is due to be denied filed because GEICO’s pending Motion
to Stay and Motion for Protective Order object to the discovery filed by Plaintiff in this action, and
Plaintiff’s motion fail to account for GEICO’s pending motions (and any appeal, if pursued by one
SGR/36049300.1
of the parties).
Moreover, GEICO objects to the purported Proposed Deposition Notice and Motion to
Compel for the reasons stated herein and within the Motion to Stay and the Motion for Protective
Order.
As stated in the Motion to Stay and the Motion for Protective Order, the underlying Federal
Action was served before this action was served by Plaintiff. Plaintiff is actively defending the
Federal Action. Allowing Plaintiff to proceed with discovery will expose GEICO to the irreparable
harm that the “principle of priority” exists to avoid. The principle of priority exists to protect a
party from subjection to duplicative proceedings and inconsistent rulings. Due to the importance
of these protections, the District Courts of Appeal have held that failure to stay the second action
causes irreparable harm constituting an abuse of discretion warranting certiorari review and
reversal. OPKO Health, Inc. v. Lipsius, 279 So.3d 787, 791-92 (Fla. 3d DCA 2019), rev. denied,
2020 WL 789085, (Fla. Feb. 18, 2020); Benihana of Tokyo, Inc. v. Benihana, Inc., 129 So. 3d
1153, 1155 (Fla. 3d DCA 2014) (noting that material injury would occur is the case was permitted
to move forward with “pretrial discovery, motions, and trial” before the first-filed lawsuit.)
(emphasis added); see also New Plan Realty Trust v. Towers Apartments, Inc., 350 So.2d 99 (Fla.
1st DCA 1977) (finding that trial court abused its discretion in excepting discovery proceedings
from a stay of the cause pending in a previously filed suit in New York. “The whole purpose of
the stay is to avoid duplicate proceedings…, and we find no reasonable basis for allowing duplicate
discovery proceedings.”).
Under the principle of priority, the first court to assume jurisdiction (by service of process)
takes precedence. Thus, any later served action must give way and be stayed. GEICO renews its
arguments before this honorable Court to issue a protective order staying all discovery in this
action at least until GEICO’s Motion to Stay is decided by this Court (and any appeal, if pursued
SGR/36049300.1
by one of the parties) and deny Plaintiff’s Motion to Compel.
GEICO files this response out of an abundance of caution contending that GEICO’s Motion
to Stay and Motion for Protective Order should be heard before any discovery is conducted in this
action. Further, Plaintiff’s Motion to Compel should be denied as Plaintiff’s motion fails to
account for the objections to all discovery, including depositions, made in GEICO’s pending
Motion to Stay and Motion for Protective Order.
WHEREFORE, Defendant, GEICO respectfully requests that the Court deny Plaintiff’s
Motion to Compel FRCP 1.310(B)(6) Deposition Duces Tecum Pursuant to the Attached Notice
of Deposition Duces Tecum and Deposition of the Pre-Litigation Adjuster, or alternatively to strike
Plaintiff’s Motion to Compel, and for any other appropriate relief.
Dated: January 19, 2022.
Respectfully submitted,
SMITH, GAMBRELL & RUSSELL, LLP
/s/ E. K. Cottrell
Edward K. Cottrell (FBN 13579)
ecottrell@sgrlaw.com
Drew Krieger (FBN 117800)
dkrieger@sgrlaw.com
50 N. Laura Street, Suite 2600
Jacksonville, Florida 32202
Telephone: (904) 598-6100
Facsimile: (904) 598-6300
Primary Service Email: PIPeservice@sgrlaw.com
And
LAW OFFICE OF HAYDEE DE LA ROSA-
TOLGYESI
2600 Douglas Road, Suite 700
Coral Gables, Florida 33134
Telephone: (786) 483-1830
Facsimile: (305) 373-3661
Primary Service Email: miamipipgeico@geico.com
Attorneys for Defendant
SGR/36049300.1
CERTIFICATE OF SERVICE
I HEREBY CERTIFY a true and correct copy of the foregoing has been filed through the
Florida Court’s E-filing Portal this 19th day of January, 2022, which will send a copy of the filed
document to:
Kelly M Arias, Esq.
THE EVOLUTION LAW GROUP, P.A.
2700 Glades Circle, Suite 145
Weston, Florida 33327
Telephone: (954) 840-6665
Facsimile (954) 840-6997
Service Email: serviceelg@theevolutionlawgroup.com; george@bgelegal.com
Attorney for Plaintiff
/s/ E. K. Cottrell
Attorney
SGR/36049300.1
Preview
Filing # 142210997 E-Filed 01/19/2022 09:22:40 AM IN THE COUNTY COURT OF THE ELEVENTH JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE COUNTY, FLORIDA THE RIGHT SPINAL CLINIC, INC. A/A/O LOIDA HERNANDEZ, Plaintiff, Case No.: 2021-009772-CC-21 Division: HI01 v. GEICO GENERAL INSURANCE COMPANY, Defendant. _______________________________________/ DEFENDANT’S RESPONSE AND OBJECTION TO PLAINTIFF’S MOTION TO COMPEL FRCP 1.310(b)(6) DEPOSITION DUCES TECUM PURSUANT TO THE ATTACHED NOTICE OF DEPOSITION DUCES TECUM AND DEPOSITION OF THE PRE-LITIGATION ADJUSTER Defendant, GEICO General Insurance Company (“GEICO”), pursuant to the Florida Rules of Civil Procedure and the local rules of this jurisdiction, responds and objects to Plaintiff’s Motion to Compel FRCP 1.310(B)(6) Deposition Duces Tecum Pursuant to the Attached Notice of Deposition Duces Tecum and Deposition of the Pre-Litigation Adjuster as follows: SUMMARY Plaintiff’s motion to compel is due to be denied and GEICO objects to the proposed deposition. Discovery, including depositions, is improper in this action as GEICO has moved to stay this action and sought a protective order due to a pending federal action with priority over this lawsuit. GEICO has filed a motion to stay and a motion for protective order specifically addressed to prevent irreparable harm to GEICO, as discussed herein. BACKGROUND 1. On April 7, 2020, GEICO filed the Federal Action against the Plaintiff, along with twenty-three related defendants. The Right Spinal Clinic, Inc. – Plaintiff in this case – was served on April 17, 2020. GEICO filed an Amended Complaint in the Federal Action on August 14, 2020 SGR/36049300.1 where The Right Spinal Clinic, Inc. is still one of twenty-two related defendants defending the Federal Action. The Federal Action remains pending before the Honorable Charlene E. Honeywell in the U.S. District Court for the Middle District of Florida, Tampa Division. 2. Subsequently, Plaintiff served its Complaint on GEICO on September 24, 2021, broadly seeking PIP benefits for medical services allegedly provided by Plaintiff, after filing it on September 7, 2021. 3. Plaintiff filed various discovery requests on September 18, 2021, before GEICO was served with the Complaint, and supplemental discovery on November 11, 2021 (collectively, the “Discovery Requests”). 4. On January 19, 2022, GEICO filed its Motion and Supporting Memorandum to Stay Proceedings (“Motion to Stay”) and Motion for Protective Order and Supporting Memorandum of Law (“Motion for Protective Order”), as it previously advised Plaintiff it would do. GEICO’s Motion to Stay and Motion for Protective Order seek a stay of these proceedings including any and all discovery. GEICO’s Motions are based upon the principle of priority, which requires that the latter court to assume jurisdiction is precluded from prosecuting a lawsuit, requiring the action be stayed – including all discovery – while the prior action remains pending. 5. Out of an abundance of caution, GEICO filed its response and objection to the Discovery Requests on January 18, 2022. 6. Plaintiff filed its Motion to Compel FRCP 1.310(B)(6) Deposition Duces Tecum Pursuant to the Attached Notice of Deposition Duces Tecum and Deposition of the Pre-Litigation Adjuster (the “Motion to Compel”) on January 11, 2022. The Motion to Compel also listed a proposed deposition notice that requested many documents in addition to those listed in the Discovery Requests (the “Proposed Deposition Notice”). 7. Out of an abundance of caution, GEICO files this response and objection to the SGR/36049300.1 Discovery Requests, the Motion to Compel, and the Proposed Deposition Notice, before the entry of any Order compelling the deposition or discovery responses. 8. Moreover, GEICO files this response and objection to the Motion to Compel and Proposed Deposition Notice out of an abundance of caution because allowing Plaintiff to proceed with discovery and related depositions will expose GEICO to the irreparable harm that the “principle of priority” exists to avoid. Based on the pending Motion to Stay and Motion for Protective Order, GEICO objects to each of Plaintiff’s production requests and areas of inquiry in the Proposed Deposition Notice and the Motion to Compel, and reserves the right to file responses and conduct depositions should the Court deny GEICO’s Motion to Stay and Motion for Protective Order and allow discovery to proceed in this matter. 9. GEICO further objects to the requested videotaped deposition. Due to the COVID- 19 pandemic, for the safety of its employees and others GEICO has directed that its employees are not to enter its building and are not to attend in person meetings unless required to do so by a court. Likewise, GEICO’s counsel’s office is also closed and travel restricted except as required by court order. In order to allow discovery to progress in cases, witnesses have been appearing remotely, typically from their homes. Rule 1.310(b)(4), Fla.R.Civ.P., does not contemplate video depositions be taken remotely or by non-professional operators. Accordingly, if this action is not stayed in its entirety, GEICO objects to Plaintiff’s attempt to schedule a videotaped deposition until such time as the COVID-19 pandemic subsides to the point of making in-person deposition appearances no longer a health risk to witnesses and counsel. ARGUMENT Plaintiff’s Motion to Compel is due to be denied filed because GEICO’s pending Motion to Stay and Motion for Protective Order object to the discovery filed by Plaintiff in this action, and Plaintiff’s motion fail to account for GEICO’s pending motions (and any appeal, if pursued by one SGR/36049300.1 of the parties). Moreover, GEICO objects to the purported Proposed Deposition Notice and Motion to Compel for the reasons stated herein and within the Motion to Stay and the Motion for Protective Order. As stated in the Motion to Stay and the Motion for Protective Order, the underlying Federal Action was served before this action was served by Plaintiff. Plaintiff is actively defending the Federal Action. Allowing Plaintiff to proceed with discovery will expose GEICO to the irreparable harm that the “principle of priority” exists to avoid. The principle of priority exists to protect a party from subjection to duplicative proceedings and inconsistent rulings. Due to the importance of these protections, the District Courts of Appeal have held that failure to stay the second action causes irreparable harm constituting an abuse of discretion warranting certiorari review and reversal. OPKO Health, Inc. v. Lipsius, 279 So.3d 787, 791-92 (Fla. 3d DCA 2019), rev. denied, 2020 WL 789085, (Fla. Feb. 18, 2020); Benihana of Tokyo, Inc. v. Benihana, Inc., 129 So. 3d 1153, 1155 (Fla. 3d DCA 2014) (noting that material injury would occur is the case was permitted to move forward with “pretrial discovery, motions, and trial” before the first-filed lawsuit.) (emphasis added); see also New Plan Realty Trust v. Towers Apartments, Inc., 350 So.2d 99 (Fla. 1st DCA 1977) (finding that trial court abused its discretion in excepting discovery proceedings from a stay of the cause pending in a previously filed suit in New York. “The whole purpose of the stay is to avoid duplicate proceedings…, and we find no reasonable basis for allowing duplicate discovery proceedings.”). Under the principle of priority, the first court to assume jurisdiction (by service of process) takes precedence. Thus, any later served action must give way and be stayed. GEICO renews its arguments before this honorable Court to issue a protective order staying all discovery in this action at least until GEICO’s Motion to Stay is decided by this Court (and any appeal, if pursued SGR/36049300.1 by one of the parties) and deny Plaintiff’s Motion to Compel. GEICO files this response out of an abundance of caution contending that GEICO’s Motion to Stay and Motion for Protective Order should be heard before any discovery is conducted in this action. Further, Plaintiff’s Motion to Compel should be denied as Plaintiff’s motion fails to account for the objections to all discovery, including depositions, made in GEICO’s pending Motion to Stay and Motion for Protective Order. WHEREFORE, Defendant, GEICO respectfully requests that the Court deny Plaintiff’s Motion to Compel FRCP 1.310(B)(6) Deposition Duces Tecum Pursuant to the Attached Notice of Deposition Duces Tecum and Deposition of the Pre-Litigation Adjuster, or alternatively to strike Plaintiff’s Motion to Compel, and for any other appropriate relief. Dated: January 19, 2022. Respectfully submitted, SMITH, GAMBRELL & RUSSELL, LLP /s/ E. K. Cottrell Edward K. Cottrell (FBN 13579) ecottrell@sgrlaw.com Drew Krieger (FBN 117800) dkrieger@sgrlaw.com 50 N. Laura Street, Suite 2600 Jacksonville, Florida 32202 Telephone: (904) 598-6100 Facsimile: (904) 598-6300 Primary Service Email: PIPeservice@sgrlaw.com And LAW OFFICE OF HAYDEE DE LA ROSA- TOLGYESI 2600 Douglas Road, Suite 700 Coral Gables, Florida 33134 Telephone: (786) 483-1830 Facsimile: (305) 373-3661 Primary Service Email: miamipipgeico@geico.com Attorneys for Defendant SGR/36049300.1 CERTIFICATE OF SERVICE I HEREBY CERTIFY a true and correct copy of the foregoing has been filed through the Florida Court’s E-filing Portal this 19th day of January, 2022, which will send a copy of the filed document to: Kelly M Arias, Esq. THE EVOLUTION LAW GROUP, P.A. 2700 Glades Circle, Suite 145 Weston, Florida 33327 Telephone: (954) 840-6665 Facsimile (954) 840-6997 Service Email: serviceelg@theevolutionlawgroup.com; george@bgelegal.com Attorney for Plaintiff /s/ E. K. Cottrell Attorney SGR/36049300.1