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Filing# 167845842 E-Filed 03/01/2023 05:51:19 PM
IN THE CIRCUIT COURT OF THE
17TH JUDICIAL CIRCUIT IN AND
FOR BROWARD COUNTY, FLORIDA
STRIKE X, LLC, CASE NO.: CACE-21-016240
Plaintiff,
VS.
THE VILLAGE AT GULFSTREAM
PARK, LLC, a Delaware limited liability
Company
Defendant.
i
EMERGENCY MOTION TO RECONSIDER OF THE COURT'S ORDER
RELATING TO DEPOSITION OF BELINDA STRONACH
STRIKE X,
Plaintiff, LLC by and through
("Plaintiff'), its undersigned counsel hereby
files its Emergency Motion to Reconsider this Court's February 24, 2023 Order Relating to
Depositionof Belinda Stronach which was entered without Plaintiffhaving
had the opportunity
to
file a response to Defendant's Motion for Entry of a Protective Order (the"Motion"). This matter
is filed on an emergency basis as Stronach's depositionis scheduled for March 8,2023. In support
ofthis Motion, Plaintiff states as follows:
I. Introduction
This Court entered its Order Relatingto Deposition of Belinda Stronach on February 24,
2023 (the "Order") which, in pertinentpart, provides that Stronach cannot be deposed on
substantive issues at her upcoming March 8,2023 depositionand that Stronach would only have
to sit for a second depositionif the Court
(substantive) first determines it has personaljurisdiction
over Stronach as a party. The Order issued less than twenty-four hours after Stronach filed the
underlyingMotion seeking a protectiveorder to prevent Plaintiff from inquiringon substantive
issues at her upcoming deposition.As such, Plaintiff did not have the opportunityto respond to
ZAR(JO EINHORN SALKOWSKI, P.A.
ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ? F: (305) 374-5428
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 03/01/2023 05:51:18 PM.****
the Motion nor appraisethe Court ofthe relevant factual details or the law on the
controlling issue.
Through this Motion, Plaintiff seeks reconsideration of the Order.
There are two critical issues warranting reconsideration of the Order. First,Stronach
alreadyagreedto be deposed on substantive issues over six months ago when she accepted service
of the subpoena for her deposition through her attorneys, without any challengeor objection.
See Exhibit C (Stronach'scounsel states: "we will accept service on behalf of Ms. Stronach for
That depositionwas rescheduled three times
her deposition."). - ultimatelyto the current March
8, 2023 date
- through no fault of Plaintiff but rather to accommodate the trial conflicts of
Stronach's attorney, Mr. Michael Kreitzer. Thus, there is no reason that Plaintiff should be
prohibitedfrom inquiringon substantive matters at a depositionthat Stronach alreadyagreed she
was sit for and respond to inquirieson factual matters.
Second, Stronach's challengeto this Court's over her as aparty is of
personaljurisdiction
no consequence to the issue of whether she can be deposed on substantive matters. Stated
this Court does not need to have personaljurisdiction
differently, over Stronach in order for her
to be compelled to sit for depositionas a fact witness. See Ohio Cas. Ins. Co. v. Jackman, 621 So.
2d 531, 531 (Fla.2d Dist. App. 1993)(upholdingorder requiringdefendant to produce non-resident
employees for depositionin Florida).As the pleadingsdemonstrate, Stronach is a material witness
in the ofwhether this Court ultimatelydetermines that
underlyingaction regardless it has personal
over her as a party defendant. Indeed, Stronach
jurisdiction is single-handedlythe most critical
fact witness as to the issues alleged in the operativepleadings.For this reason, Florida law
conclusivelyallows Plaintiff to take her depositioneven (fshe cannot be haled into Court as a
to take Stronach's deposition- as a critical witness
party. Depriving Plaintiff of the ability
- is
error and would be unfairlyprejudicial
to Plaintiff especiallyconsideringthat the hearing on
2
ZAR(JO EINHORN SALKOWSKI, P.A.
ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ? F: (305) 374-5428
Gulfstream's Motion for Partial Summary Judgment is currentlyscheduled for March 28,2023.
This is preciselywhy Stronach has now sought to shield herself from substantive inquiryat her
depositiondespiteagreeing to sit for depositionrepeatedlyover the course of the last six months
and to reschedule her depositionas to substantive inquiryto March 8,2023.
Simply put, there are no facts or law that would shield Stronach from being deposed on
substantive issues. requests that this Court reconsider
Therefore, Plaintiff respectfully its Order
and substantive matters
and allow Plaintiff to simultaneouslyinquireon both jurisdictional at the
upcoming depositionwhich Plaintiff has waited six months to take. Plaintiff would be unduly
prejudicedif it were deprived of the opportunityto questionStronach as one of the most critical
witnesses in the case.
II. Factual Background
1. On February 23,2023 at 9:52 P.M., Defendant, Belinda Stronach ("Stronach")
filed the underlyingMotion seeking an expeditedcase management conference and a protective
order to prevent any substantive inquiryat the March 8,2023 deposition.
2. The Court entered an order the following day, on February 24, 2023, before
Plaintiffhad an opportunityto respond to the Motion and advise the Court of certain critical facts
that the Court may have not been aware of at the time it entered the Order. The Order provides as
follows: (1) Stronach's March 8,2023 depositionis inquiryonly; (2) a
limited to jurisdictional
three-hour time limitation is inquiry;and (3) Stronach may have
imposed on the jurisdictional to
sit for a second depositionon substantive issues at a later date but only (fthe Court determines it
over Stronach. See Exhibit "A".
has in personam jurisdiction
3 While Plaintiff does not take issue with the three-hour limitation on the
inquiry imposed by the Court, Plaintiff respectfullyrequests
jurisdictional that this Court
3
ZAR(JO EINHORN SALKOWSKI, P.A.
ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ? F: (305) 374-5428
reconsider its ruling prohibitingPlaintiff from inquiring on substantive grounds during the
depositionand findingthat personaljurisdiction
over Stronach is a pre-requisite
to Stronach being
requiredto sit for a second substantive deposition.
4. Critically, of
irrespective how this Court ultimatelyrules on the question of
jurisdictionover Stronach, the partiespreviosuly agreed that Stronach would be deposed on
substantive issues and that depositionwas rescheduled three times to the current March 8,2023
date. Moreover, Florida law entitles Plaintiff to take Stronach's depositionregardlessof whether
she is a party (and the Court has in personam jurisdiction)
because she is,at minimum, a high-
ranking corporate officer with intimate knowledge and involvement with the transaction and
occurrences that are at the heart of this dispute.
A. Stronach Agreed to Be Deposed on Substantive Grounds, Voluntarily Accepted
Service of the Subpoena for Her Deposition Which Was Rescheduled Three Times
to the Current March 8,2023 Date
5. In enteringits Order, this Court likelywas not aware that the partiesalready agreed that
Stronach would sit for depositionand Stronach accepted a subpoena for her deposition.
6. Stronach's depositionwas previosulyscheduled (by agreement) for September 13, 2022.
See email correspondence from Stronach's counsel dated July 6,2022 providingavailability
for
and subpoena for depositionattached hereto as Composite Exhibit "B").
Stronach's deposition,
7. On July 11, 2022, Stronach's counsel acceptedservice of the subpoena for depositionon
behalf of Stronach. See e-mail attached hereto as Exhibit "C" ("we will accept service on behalf
of Ms. Stronach for her deposition-")- Moreover,
1
it bears noting that Stronach's counsel also
later requested that the subpoena be withdrawn because Stronach "is now a
1
Although Stronach' s counsel
party,"nonetheless Stronach conclusively accepted service ofthe subpoena for her deposition and thereafter
agreed to sit for deposition on substantive inquiry by way of a Notice of Deposition without making any
Thus, Stronach's acceptance of the subpoena for deposition is operative. Since
objectionto jurisdiction.
thus the subpoena was not fonnally withdrawn.
Stronach subsequently challenged jurisdiction
4
ZAR(JO EINHORN SALKOWSKI, P.A.
ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ? F: (305) 374-5428
accepted service of the pleadings on behalf of Stronach. See August 17, 2022 correspondence
from Stronach's counsel stating"we will accept service" of the Amended Complaint attached
hereto as Exhibit "G". See also Plaintiff's Response in Opposition to Defendants' Motion to
Dismiss Amended Complaint.
8. The depositionwas then rescheduled at the request of Defendants' counsel, Mr. Kreitzer,
due to Mr. Kreitzer's trial conflict. See email ofAugust 29,2022, attached hereto as Exhibit "D."
Plaintiff agreed to reschedule Stronach's depositionas a courtesy to accommodate Mr. Kreitzer' s
trial conflict. Importantly,Plaintiff filed its Motion for Leave to Amend the Complaint and add
Stronach as a party on July 6, 2022. Therefore, at all relevant times, Stronach agreed to a
substantive depositioneven after she alreadyknew that she was being joined as a party to the
Stronach never once opposed the depositionor sought a protectiveorder.
litigation.
9. had to be rescheduled as a courtesy to Mr.
After Stronach's September 13,2022 deposition
Kreitzer,the partiesworked to find a mutually agreeabledate to reschedule Stronach's deposition.
However, Mr. Kreitzer's ongoing trial conflicts preventedthe partiesfrom conductingdepositions
or was rescheduled
hearingsfor many months. Finally,Stronach's deposition for January 10, 2023
(again,by agreement ofthe parties).See depositionnotice attached hereto as Exhibit "E."
10. Stronach's depositionwas ultimately
re-scheduled and postponed to March 8,2023.
Counsel for Defendants previouslytook the positionthat the March 8,2023 depositionwould be
inquiries.See email of February 1,2023 from Defendants'
on both substantive and jurisdictional
..
and substantive purposes'
that Stronach "will be put up once for both jurisdictional
counsel stating
attached hereto as Exhibit "F". However, defense counsel abruptlychanged course and shortly
before filingthe Motion stated that they refused to allow Stronach to be deposed on substantive
grounds even though Stronach agreed and should have sat for depositionsix months ago but for
5
ZAR(JO EINHORN SALKOWSKI, P.A.
ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ? F: (305) 374-5428
Mr. Kreitzer' s trial conflicts.
11. Plaintiff only agreed to reschedule Stronach's depositionas a courtesy to counsel
with the express understanding that the depositionon substantive issues would be rescheduled.
LEGAL STANDARD ON MOTION TO RECONSIDER
It is well established that Florida trial courts may, upon a party'smotion, choose
to reconsider a priororder. See e.g., Commercial Garden Mall v. Success Academy, Inc., 453 So.
2d 934 (Fla.4th DCA 1984) (holdingthat trial judges have the discretion to entertain a motion for
rehearing based on their jurisdictionto control nonfinal orders prior to an entry of
judgment); Bettez v.
Cio' ofMiami, 510 So. 2d 1242 (Fla.3d DCA 1987) (holdingthat trial court's
order grantingmotion for reconsideration was properlywithin its inherent authorityto modify or
vacate any nonfinal rulingspriorto entry of final judgment). Since a final judgment has not yet
been entered,the Court can reconsider its Order and as set discussed herein there is sufficient basis
for this Court to do so in this instance.
ARGUMENT
1. The Florida Rules of Civil Procedure Entitle Plaintiff to Stronach's Deposition
Regardless of Whether She is a Party and Whether This Court Ultimately Decides
That It Has Personal Jurisdiction Over Stronach
Florida Rule of Civil Procedure 1.310(a)providesthat after commencement of the action
a party may take a depositionof"any person, includinga party." Further, Florida Rule of Civil
Procedure 1.280(b) provides that parties may obtain discovery regarding any matter, not
that
privileged, is relevant to the subjectmatter of the pending action,whether it relates to the
claim or defense of the party seeking discovery or the claim or defense of any other party.
Moreover, contrary to Stronach's suggestion,the subpoena power of the Court has no bearing on
and
the present issue because Stronach alreadyacceptedservice ofthe subpoena for her deposition
6
ZAR(JO EINHORN SALKOWSKI, P.A.
ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ? F: (305) 374-5428
thereafter continued to agree to sit for her depositionon substantive inquiry.Further,Stronach's
depositionis proceedingvia zoom such that this Court does not need to compel Stronach to travel
to Florida to appear for her deposition.
The jurisdictional
inquiryis largelyirrelevant to the analysisbecause even if Stronach had
not alreadyaccepted service of the subpoena for her depositionand agreed to be deposed on
substantive matters (which she has), this Court can nonetheless compel Stronach to sit for
of her
depositionirrespective status as a party defendant. Plaintiff is not relegatedby the Florida
Rules of Civil Procedure and law from taking Stronach's depositionmerely because she does not
wish for Plaintiff to take her deposition.As explainedbelow, Stronach is at minimum a material
witness with relevant knowledge and has not established any "good cause" whatsoever to resist
her depositionon substantive matters. As such, there is no basis in law or fact for a protective
order preventing Plaintiff from substantively
inquiringof Stronach as a material witness to the
in
allegations this action.
A. This Court's Order Was Entered Without Stronach Articulating Any "Good Cause',,
For A Protective Order As To Substantive Inquiry At Her Upcoming Deposition Nor
Did She Supply This Court With An Affidavit Pursuant To Rule 1.280(h) Necessary
For Her To Resist The Deposition As A High-Level Officer
In her Motion, Stronach sought a protectiveorder to preclude Plaintiff from inquiringon
substantive matters at the and agreed upon deposition.However, in order to
be entitled to a protectiveorder in the context of discovery,Stronach was requiredto show "good
cause." Under Florida Rule of Civil Procedure 1.280(c), this Court may enter
order only "for good cause
a protective shown" to protect a party or person "from annoyance,
embarrassment, oppression,or undue burden or expense that justicerequires.").
Understandably,
the burden of demonstratinggood cause for the issuance of a protective
order falls upon the party
- here, Stronach. See Bush Schiavo, 866 So.2d 138 (Fla. 2d
seeking protection v. 136,
7
ZAR(JO EINHORN SALKOWSKI, P.A.
ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ? F: (305) 374-5428
DCA2004); see also Deltona Corp. v. Bailey,336 So. 2d 1163, 1170 (Fla.1976) (explainingthat
before a party will be completely deprived of the rightto take a deposition,
a strong showing of
good cause is required).
In decidingwhether to issue a protectiveorder, this Court "must balance the competing
interests that would be served by grantingdiscoveryor by denying it." Rasmussen v. South Fla.
Blood Service, Inc.,500 So. 2d 533, 535 (Fla.1987).The burden to show good cause to prevent
is high. See Arnold
a depositionfrom takingplace altogether v. Wausau Underwriters Ins. Co.,
2013 WL 5488520, at *2 (S.D. Fla. Sept. 30, 2013) (quotingDunfbrd v.
Roily Marine Serv. Co.,
233 F.R.D. 635,637 (S.D. Fla. 2005)).Because the burden to preclude a depositionaltogetheris
high,courts rarelyissue such protective
orders. Id.
In its Order, this Court effectivelygranted a protectiveorder to Stronach even though
Stronach has not shown even of modicum of "good cause" to warrant a protectiveorder on
substantive inquiry at her deposition.To be sure, the entire basis of Stronach's Motion as to why
she should not be requiredto sit for depositionon substantive matters is contained in one sentence
ofher Motion, to wit. "it would be wholly unfair to subjectMs. Stronach to fact-based questioning
regardingthe merits of the case unless and until such time as the Plaintiff has established the
over Ms. Stronach." Stronach then misleads the Court by suggestingthat the
Court's jurisdiction
"rules" related to Stronach's the "subpoena powers ofthe Court," can only "be defined
deposition,
once it is determined whether she is a party defendant." This is a flagrantmisrepresentationofthe
in this instance where service ofthe subpoena for deposition
law and the facts,especially has never
been challengedand was indeed acceptedby Stronach throughher attorneys. See Anthony v. Gary
1 Rotella & Associates, P.A., 906 So. 2d 1205, 1208 (Fla.4th Dist. App. 2005)(serviceofprocess
can be waived by party "authorizinghis attorney to accept the initial pleadingswithout service of
8
ZAR(JO EINHORN SALKOWSKI, P.A.
ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ? F: (305) 374-5428
See also
process."); Fla. Stat. Ann. § 48.031 (West)(serviceof process of subpoenas effectuated
pursuant to Section 48.031, Florida Statutes,as with service of initial pleadingsunder subsection
(1)).
Stronach's conclusorycontention that it would be "wholly unfair" for her to be subjectto
fact questioning
- that she alreadyagreed to - is not grounded in any facts or law. There is no
burden, expense, or oppressionto Stronach by having her proceed with a zoom depositionthat she
agreed to related to factual issues to which she has critical and independentknowledge. Stronach
has failed to articulate any facts whatsoever as to why the depositionshe agreed to sit for would
somehow subjecther to "annoyance, embarrassment, oppression,or undue burden or expense."
It goes without sayingthat depositions and
are an essential part of civil discoverypractice,
deprivationof a party to take a depositionof a material witness amounts to a deprivationof due
process.See Clarke v. Coca-Cola Refreshments USA, Inc., 282 So. 3d 897, 898 Cfla.3dDCA
2019) (reversing summary judgment on the basis that plaintiffwas entitled to a thorough
preparationof her case, includingthe depositionof a material witness).A trial court departsfrom
the essential requirementsof law when it denies a party the rightto depose an allegedmaterial
witness without a findingof good cause. Akhnoukh v. Benvenuto, 219 So. 3d 96, 99 (Fla.2nd
DCA 2017) (citingNucci v. Simmons, 20 So.3d 388,390 (Fla.2d DCA 2009)).Florida courts have
largelydisapprovedthe entry o f protective the takingo f depositions
orders prohibiting generally
and orders providing for lengthy postponements of discovery.Bush v. Schiavo, 866 So. 2d 136,
138 (Fla.2nd DCA 2004);Offtce of Attorney Gen., Dep't of Legal Affairs,State of Fla. v.
Millennium Commc'ns & Fu#illment,Inc., 800 So. 2d 255,258 (Fla.3rd DCA 2001) ("thebare
that Millennium would suffer 'an unreasonable burden' ifrequiredto providediscovery
allegation
cannot form the basis for denying petitionerits discovery.").
Further, "[a] strong showing [of
9
ZAR(JO EINHORN SALKOWSKI, P.A.
ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ? F: (305) 374-5428
good cause] is required before a party will be denied entirely the right to take
"'
a deposition. Scolaro v. Butler. 135 So. 3d 1111, 1113 (Fla.2nd DCA 2013).
Even if this Court ultimatelydecides that Stronach is not a proper party defendant - for
reasons or otherwise
jurisdictional
- she indisputablya corporate officer (in the complicated
corporate web ofthe entitydefendants)with personalknowledge ofthe critical facts allegedin the
operativepleadings such that a subpoena a witness subpoena is not even necessary as her
depositioncan be set vis a vi a See N. Ridge Med Plaza,
simple notice of deposition. Inc. v. Tenet
Healthcare Corp., 719 So. 2d 1014, 1015 (Fla.4th Dist. App. 1998)(ifdeponent is an "officer,
or managing agent of [a party],.
director, . .
depositionmay be taken by "simplenotice and without
the necessityof serving"him with a witness subpoena.")
In her Motion, Stronach concedes that she "holds leadershippositionsin various affiliated
who, togethermanage and operate the Villageof Gulfstream Park"
entitles,
- which is where the
subjectpremises is located. See Motion, p. 2. Thus, in order to meet her burden to persuade this
Court that she is entitled to protectionfrom deposition as a high-levelcorporate officer,Rule
1.280(h)of the Florida Rules of Civil Procedure requirethat Stronach produce an affidavit or
declaration explaining that she "lacks unique, personal knowledge of the issues being
See
litigated." Fla. R. Civ. P. 1.280(h).This is otherwise known as the Apex doctrine which was
codified by the Florida Supreme Court in Rule 1.280(h)and provides,in pertinent
part
A current or former high-level government or corporate officer may seek an
order preventingthe officer from being subjectto a deposition. The motion,
whether by a party or by the person of whom the depositionis sought,must be
accompanied by an affidavit or declaration of the officer explainingthat the
officer lacks unique, personal knowledge of the issues being litigated.
Fla. R. Civ. P. In re Amend.
1.280(h); to Fla. Rule of Civ. Proc. l.280,324 So. 3d at 463.
10
ZAR(JO EINHORN SALKOWSKI, P.A.
ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ? F: (305) 374-5428
Stronach produced no affidavit to this Court indicating
that she lacks personalknowledge
-
as to the issues being litigated nor can she as it is undisputedthat she was intimatelyinvolved in
every decision related to the underlying lease. In fact, Stronach singlehandedly has the most
in the operativepleadingsand she
knowledge concerningthe allegations is thus a critical fact
- As confirmed
witness regardlessof whether this Court has jurisdiction
over her as a party. in
the depositionof former employee, Alan Shaw, Stronach became more "heavilyinvolved" in the
operationsof Gulfstream Park in the relevant timeframe of 2020 through 2021 when the lease was
executed and the beach of the lease occurred. See excerpt of depositionof Alan Shaw attached as
Exhibit "H" ("Shaw Dep.") at 37-38 (describingStronach as being more heavily involved in
2020-2021); at pp. 36 (stating
that Stronach is the "CEO of the entire organization").Stronach
was also involved in the underlying lease transaction when it was being negotiated,and she
ultimatelywould have been the person to approve the lease. Shaw Dep. at pp. 180-181 (testifying
that Stronach was involved in the lease transaction when it was being negotiatedin 2019); Id. at
p. that "the lease would not have been approved for signature
53 (testifying had Belinda [Stronach]
not ...
approved it.") An overwhelming majority of the relevant correspondenceproduced by
.
Defendants illustrates this fact to be true.
Stronach met personallywith Plaintiff's representative
in Florida related to the lease. See
Shaw Dep. at p. 87. She was the ultimate decision maker when it came whether the Landlord
would perform under the lease. See Shaw Dep. at 197 (stating"we [Landlordl kept thingsgoing
to the extent we can while we're waiting for a final decision from Belinda" [as to whether to
proceed with the Landlord's performance under the Leasel. She was involved in the build-out of
the premises and she made requests for financials and other information from Plaintiff. Shaw Dep.
at pp. 66 - 67. Indeed, even though the lease contained no relocation provision,Stronach, in bad
11
ZAR(JO EINHORN SALKOWSKI, P.A.
ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ? F: (305) 374-5428
faith,approved the lease knowing that she still planned to move the casino to the same location
that was contractually
promised to Plaintiff. See Shaw Dep. at 172. Stronach went againstthe
best interests of the Landlord and singlehandedlyoverrode the decision ofthe senior management
team of the Landlord for her own ulterior motives and directed them to make misrepresentations
to Plaintiff. See SAC, 15 - 16.
p.
Simply put, Stronach, at minimum, is a material percipientwitness involved in the
which form the subjectmatter of
allegations this such that deprivingPlaintiff of the
litigation
abilityto take her deposition would be extremely prejudicial.See Remington Lodging &
LLC
Hospitality, v. Southernmost House, Ltd., 206 So. 3d 764 (Fla.3d DCA 2016) (concluding
that depositionsof officers of a corporationcould be said to be reasonablycalculated to lead to the
discovery of admissible evidence where said officers admitted in affidavits to meeting with a
party'spresidentand discussingmatters relevant to the subjectmatter ofthe action).
In this regard,this Court's denial of the rightto take Stronach's depositionbefore the
upcoming summary judgment hearing on March 28 and until such time that this Court finds that it
over Stronach would in effect eviscerate Plaintiff's rightto defend against
has personaljurisdiction
the pending motion for summary judgment and to take the necessary discoveryto ultimatelyprove
its claims. Indeed, part ofthe relevant inquiryon summary judgment is the entitlement to specific
performance which includes equitableconsiderations that could only be fullydeveloped from the
material witnesses, like Stronach. See Hepco Data, LLC v. Hepco Med., LLC.301 So. 3d 406, 412
(Fla.2d Dist. App. 2020)(findingthat granting of a motion for protectiveorder to preclude
deposition of alleged material witnesses was error that caused material irreversible
harm); See Giacalone, 8 So. 3d at 1234 (grantingpetitionfor writ of certiorari where trial court's
eviscerated a party'sclaim, defense, or counterclaim).
order denying discoveryeffectively
12
ZAR(JO EINHORN SALKOWSKI, P.A.
ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ? F: (305) 374-5428
In the absence of any showing of good cause by Stronach
- which there is none -
precludingPlaintiff from takingher depositionwould cause material harm to Plaintiff for which
there is no adequate remedy. Hepco Data, 301 So. 3d at 411; See also, Dees v. Kidney Grp., LLC,
16 So. 3d 277, 280 (Fla.2d DCA order that prevented any discovery
2009) (holdingprotective
concerningtwo priorclients and a new venture formed by the other members of the company, in
was seekingjudicialdissolution,caused material harm); Kyker
case where petitioner v. Lopez, 718
So. 2d 957, 957 (Fla.5th DCA order when
1998) (approvingorder denying motion for protective
requestedinformation was discoverable);
Towers v. City of Longwood, 960 So. 2d 845,849 (Fla.
5th DCA 2007) (holding "it would be utterlyimpossible to tell whether [a witness] has any
from askingany questionsof [the
information that is relevant to the suit if [a party]is prohibited
witness. I").
CONCLUSION
In short,Stronach accepted service ofthe subpoena for her depositionthrough her attorneys
pursuant to which she agreed to be deposed on substantive matters without any objection.Stronach
failed to meet her burden to show "good cause" to resist depositionon substantive matters via
zoom that she agreed to sit for six months ago. Accordingly,Plaintiff respectfully
requests that
this Court revisit its Order which prohibitsPlaintiff from making substantive inquiryat Stronach's
upcoming depositionwhich Stronach. Depriving Plaintiff of critical discovery would severely
prejudiceespeciallyin lightofthe fact that this Court is scheduled to hear Defendant's Motion for
Partial Summary Judgment on March 28,2023.
WHEREFORE, Plaintiff, requests that the enter an order:
Strike X, LLC, respectfully (i)
reconsideringthe Court's March 24,2023 Order and permitting Plaintiff to inquire of Belinda
Stronach as to substantive matters at her March 8,2023 deposition;or, alternatively
requiring
13
ZAR(JO EINHORN SALKOWSKI, P.A.
ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ? F: (305) 374-5428
Stronach to sit for a substantive depositionbefore this Court hears Defendant's Motion for Partial
grantingsuch other and further relief as this Honorable Court deems
Summary Judgement; and (iii)
justand proper.
Dated: March 1, 2023 Respectfullysubmitted,
ZAR(JO EINHORN SALKOWSKI, P.A.
Counsel for Plaintiff
One Biscayne Tower
th
2 South Biscayne Boulevard, 34? Floor
Miami, Florida 33131
Telephone: (305) 374-5418
Facsimile: (305) 374-5428
Byr si Mary Nikezic
ROBERT ZARCO
Florida Bar No. 502138
E-mail:
ROBERT F. SALKOWSKI
Florida Bar No. 903124
E-mail: rsalkowski@zarcolaw.com
Secondary acoro@zarcolaw.com
MARY NIKEZIC
Florida Bar No. 92928
E-mail: mnikezic@zarcolaw.com
E-mail: aaybar@zarcolaw.com
E-mail: eservice@zarcolaw.com
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on March 1, 2023, a true and correct copy o f the foregoing
was served via the Florida Courts' e-Portal upon the following Jordanna Ishmael
abrahamd@gtlaw.com, and and Michael N.
Kreitzer and belloy@gtlaw.coml GREENBERG TRAURIG, P.A., 333
S.E. Second Avenue, 44th Floor, Miami, FL 33131.
By-- /sl Mary Nikezic
14
ZAR(JO EINHORN SALKOWSKI, P.A.
ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ? F: (305) 374-5428
Filing# 167540679 E-Filed 02/24/2023 07:18:14 PM
IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
CASE NO. CACE21016240 DIVISION: QZ JUDGE: Tuter, Jack (07)
Strike X LLC
/ Petitioner(s)
Plaintiff(s)
V
VillageAt Gulfstream Park, LLC , et al
Defendant(s)/ Respondent(s)
i
ORDER RELATING TO DEPOSITION OF BELINDA STRONACH
The partiesare indisagreementas to how a depositionshould proceed.The deponent is a party to
the case but is challengingin personam jurisdiction. The depositionmay proceed as scheduled. The
deponent may only be asked to
questionrelating jurisdictional issues and the deposition is limited to
three hours. If the depositionon jurisdiction cannot be completed in three hours the partiesshould
attempt to contact the Court to determine how to proceed. Further, should the Court determine it does
have in personam jurisdiction over the deponent,she will have to sit for a second depositionon
substantive issues at a later date.
DONE AND ORDERED in Chambers at Broward County, Florida on 24th day of February.2023.
CLA633?7,)6==461 o===*lg?*L i pqvi
0
CACE21016240 02-24-2023 1:31 PM
Hon. Jack Tuter
CIRCUIT COURT JUDGE
Signed by Jack Tuter
Electronically
Copies Furnished To:
Adeline Ortiz, E-mail : AOrtiz@beckerlawyers.com
Jennifer Junger, E-mail : flservice@gtlaw.com
Jennifer Junger, E-mail: jungerj@gtlaw.com
Jennifer Junger, E-mail :
Jon Polenberg, E-mail : tfritz@beckerlawyers.com
Jon Polenberg, E-mail : jpolenberg@beckerlawyers.com
Jon Polenberg, E-mail : ftlefile@beckerlawyers.corn
Page 1 of 2
A
Case Number: CACE21016240
Jordanna Ishmael, E-mail : cohenpa@gtlaw.corn
Jordanna Ishmael, E-mail: ishmaelj@gtlaw.com
MICHAEL N. KREITZER, E-mail :
MICHAEL N. KREITZER, E-mail belloy@gtlaw.corn
:
Mary Nikezic, E-mail :
mnikezic@zarcolaw.corn
Mary Nikezic, E-mail :
Nancy Ginart, E-mail ginartn@gtlaw.com
:
Robert F. Salkowski, E-mailrsalkowski@zarcolaw.corn
:
Robert F. Salkowski, E-mailacoro@zarcolaw.corn
:
Robert F. Salkowski, E-mail eservice@zarcolaw.com
:
Robert Zarco, E-mail mlabrador@zarcolaw.corn
:
Robert Zarco, E-mail : reception@zarcolaw.com
Robert Zarco, E-mail rzarco@zarcolaw.com
:
Page 2 of 2
Anite Coro
From: jungerj@gtlaw.com
Sent: Wednesday, July6, 2022 5:01 PM
To: Anite Coro; ishmaelj@gtlaw.com; Robert Salkowski; Mary N
Preview
Filing# 167845842 E-Filed 03/01/2023 05:51:19 PM IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA STRIKE X, LLC, CASE NO.: CACE-21-016240 Plaintiff, VS. THE VILLAGE AT GULFSTREAM PARK, LLC, a Delaware limited liability Company Defendant. i EMERGENCY MOTION TO RECONSIDER OF THE COURT'S ORDER RELATING TO DEPOSITION OF BELINDA STRONACH STRIKE X, Plaintiff, LLC by and through ("Plaintiff'), its undersigned counsel hereby files its Emergency Motion to Reconsider this Court's February 24, 2023 Order Relating to Depositionof Belinda Stronach which was entered without Plaintiffhaving had the opportunity to file a response to Defendant's Motion for Entry of a Protective Order (the"Motion"). This matter is filed on an emergency basis as Stronach's depositionis scheduled for March 8,2023. In support ofthis Motion, Plaintiff states as follows: I. Introduction This Court entered its Order Relatingto Deposition of Belinda Stronach on February 24, 2023 (the "Order") which, in pertinentpart, provides that Stronach cannot be deposed on substantive issues at her upcoming March 8,2023 depositionand that Stronach would only have to sit for a second depositionif the Court (substantive) first determines it has personaljurisdiction over Stronach as a party. The Order issued less than twenty-four hours after Stronach filed the underlyingMotion seeking a protectiveorder to prevent Plaintiff from inquiringon substantive issues at her upcoming deposition.As such, Plaintiff did not have the opportunityto respond to ZAR(JO EINHORN SALKOWSKI, P.A. ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ? F: (305) 374-5428 *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 03/01/2023 05:51:18 PM.**** the Motion nor appraisethe Court ofthe relevant factual details or the law on the controlling issue. Through this Motion, Plaintiff seeks reconsideration of the Order. There are two critical issues warranting reconsideration of the Order. First,Stronach alreadyagreedto be deposed on substantive issues over six months ago when she accepted service of the subpoena for her deposition through her attorneys, without any challengeor objection. See Exhibit C (Stronach'scounsel states: "we will accept service on behalf of Ms. Stronach for That depositionwas rescheduled three times her deposition."). - ultimatelyto the current March 8, 2023 date - through no fault of Plaintiff but rather to accommodate the trial conflicts of Stronach's attorney, Mr. Michael Kreitzer. Thus, there is no reason that Plaintiff should be prohibitedfrom inquiringon substantive matters at a depositionthat Stronach alreadyagreed she was sit for and respond to inquirieson factual matters. Second, Stronach's challengeto this Court's over her as aparty is of personaljurisdiction no consequence to the issue of whether she can be deposed on substantive matters. Stated this Court does not need to have personaljurisdiction differently, over Stronach in order for her to be compelled to sit for depositionas a fact witness. See Ohio Cas. Ins. Co. v. Jackman, 621 So. 2d 531, 531 (Fla.2d Dist. App. 1993)(upholdingorder requiringdefendant to produce non-resident employees for depositionin Florida).As the pleadingsdemonstrate, Stronach is a material witness in the ofwhether this Court ultimatelydetermines that underlyingaction regardless it has personal over her as a party defendant. Indeed, Stronach jurisdiction is single-handedlythe most critical fact witness as to the issues alleged in the operativepleadings.For this reason, Florida law conclusivelyallows Plaintiff to take her depositioneven (fshe cannot be haled into Court as a to take Stronach's deposition- as a critical witness party. Depriving Plaintiff of the ability - is error and would be unfairlyprejudicial to Plaintiff especiallyconsideringthat the hearing on 2 ZAR(JO EINHORN SALKOWSKI, P.A. ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ? F: (305) 374-5428 Gulfstream's Motion for Partial Summary Judgment is currentlyscheduled for March 28,2023. This is preciselywhy Stronach has now sought to shield herself from substantive inquiryat her depositiondespiteagreeing to sit for depositionrepeatedlyover the course of the last six months and to reschedule her depositionas to substantive inquiryto March 8,2023. Simply put, there are no facts or law that would shield Stronach from being deposed on substantive issues. requests that this Court reconsider Therefore, Plaintiff respectfully its Order and substantive matters and allow Plaintiff to simultaneouslyinquireon both jurisdictional at the upcoming depositionwhich Plaintiff has waited six months to take. Plaintiff would be unduly prejudicedif it were deprived of the opportunityto questionStronach as one of the most critical witnesses in the case. II. Factual Background 1. On February 23,2023 at 9:52 P.M., Defendant, Belinda Stronach ("Stronach") filed the underlyingMotion seeking an expeditedcase management conference and a protective order to prevent any substantive inquiryat the March 8,2023 deposition. 2. The Court entered an order the following day, on February 24, 2023, before Plaintiffhad an opportunityto respond to the Motion and advise the Court of certain critical facts that the Court may have not been aware of at the time it entered the Order. The Order provides as follows: (1) Stronach's March 8,2023 depositionis inquiryonly; (2) a limited to jurisdictional three-hour time limitation is inquiry;and (3) Stronach may have imposed on the jurisdictional to sit for a second depositionon substantive issues at a later date but only (fthe Court determines it over Stronach. See Exhibit "A". has in personam jurisdiction 3 While Plaintiff does not take issue with the three-hour limitation on the inquiry imposed by the Court, Plaintiff respectfullyrequests jurisdictional that this Court 3 ZAR(JO EINHORN SALKOWSKI, P.A. ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ? F: (305) 374-5428 reconsider its ruling prohibitingPlaintiff from inquiring on substantive grounds during the depositionand findingthat personaljurisdiction over Stronach is a pre-requisite to Stronach being requiredto sit for a second substantive deposition. 4. Critically, of irrespective how this Court ultimatelyrules on the question of jurisdictionover Stronach, the partiespreviosuly agreed that Stronach would be deposed on substantive issues and that depositionwas rescheduled three times to the current March 8,2023 date. Moreover, Florida law entitles Plaintiff to take Stronach's depositionregardlessof whether she is a party (and the Court has in personam jurisdiction) because she is,at minimum, a high- ranking corporate officer with intimate knowledge and involvement with the transaction and occurrences that are at the heart of this dispute. A. Stronach Agreed to Be Deposed on Substantive Grounds, Voluntarily Accepted Service of the Subpoena for Her Deposition Which Was Rescheduled Three Times to the Current March 8,2023 Date 5. In enteringits Order, this Court likelywas not aware that the partiesalready agreed that Stronach would sit for depositionand Stronach accepted a subpoena for her deposition. 6. Stronach's depositionwas previosulyscheduled (by agreement) for September 13, 2022. See email correspondence from Stronach's counsel dated July 6,2022 providingavailability for and subpoena for depositionattached hereto as Composite Exhibit "B"). Stronach's deposition, 7. On July 11, 2022, Stronach's counsel acceptedservice of the subpoena for depositionon behalf of Stronach. See e-mail attached hereto as Exhibit "C" ("we will accept service on behalf of Ms. Stronach for her deposition-")- Moreover, 1 it bears noting that Stronach's counsel also later requested that the subpoena be withdrawn because Stronach "is now a 1 Although Stronach' s counsel party,"nonetheless Stronach conclusively accepted service ofthe subpoena for her deposition and thereafter agreed to sit for deposition on substantive inquiry by way of a Notice of Deposition without making any Thus, Stronach's acceptance of the subpoena for deposition is operative. Since objectionto jurisdiction. thus the subpoena was not fonnally withdrawn. Stronach subsequently challenged jurisdiction 4 ZAR(JO EINHORN SALKOWSKI, P.A. ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ? F: (305) 374-5428 accepted service of the pleadings on behalf of Stronach. See August 17, 2022 correspondence from Stronach's counsel stating"we will accept service" of the Amended Complaint attached hereto as Exhibit "G". See also Plaintiff's Response in Opposition to Defendants' Motion to Dismiss Amended Complaint. 8. The depositionwas then rescheduled at the request of Defendants' counsel, Mr. Kreitzer, due to Mr. Kreitzer's trial conflict. See email ofAugust 29,2022, attached hereto as Exhibit "D." Plaintiff agreed to reschedule Stronach's depositionas a courtesy to accommodate Mr. Kreitzer' s trial conflict. Importantly,Plaintiff filed its Motion for Leave to Amend the Complaint and add Stronach as a party on July 6, 2022. Therefore, at all relevant times, Stronach agreed to a substantive depositioneven after she alreadyknew that she was being joined as a party to the Stronach never once opposed the depositionor sought a protectiveorder. litigation. 9. had to be rescheduled as a courtesy to Mr. After Stronach's September 13,2022 deposition Kreitzer,the partiesworked to find a mutually agreeabledate to reschedule Stronach's deposition. However, Mr. Kreitzer's ongoing trial conflicts preventedthe partiesfrom conductingdepositions or was rescheduled hearingsfor many months. Finally,Stronach's deposition for January 10, 2023 (again,by agreement ofthe parties).See depositionnotice attached hereto as Exhibit "E." 10. Stronach's depositionwas ultimately re-scheduled and postponed to March 8,2023. Counsel for Defendants previouslytook the positionthat the March 8,2023 depositionwould be inquiries.See email of February 1,2023 from Defendants' on both substantive and jurisdictional .. and substantive purposes' that Stronach "will be put up once for both jurisdictional counsel stating attached hereto as Exhibit "F". However, defense counsel abruptlychanged course and shortly before filingthe Motion stated that they refused to allow Stronach to be deposed on substantive grounds even though Stronach agreed and should have sat for depositionsix months ago but for 5 ZAR(JO EINHORN SALKOWSKI, P.A. ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ? F: (305) 374-5428 Mr. Kreitzer' s trial conflicts. 11. Plaintiff only agreed to reschedule Stronach's depositionas a courtesy to counsel with the express understanding that the depositionon substantive issues would be rescheduled. LEGAL STANDARD ON MOTION TO RECONSIDER It is well established that Florida trial courts may, upon a party'smotion, choose to reconsider a priororder. See e.g., Commercial Garden Mall v. Success Academy, Inc., 453 So. 2d 934 (Fla.4th DCA 1984) (holdingthat trial judges have the discretion to entertain a motion for rehearing based on their jurisdictionto control nonfinal orders prior to an entry of judgment); Bettez v. Cio' ofMiami, 510 So. 2d 1242 (Fla.3d DCA 1987) (holdingthat trial court's order grantingmotion for reconsideration was properlywithin its inherent authorityto modify or vacate any nonfinal rulingspriorto entry of final judgment). Since a final judgment has not yet been entered,the Court can reconsider its Order and as set discussed herein there is sufficient basis for this Court to do so in this instance. ARGUMENT 1. The Florida Rules of Civil Procedure Entitle Plaintiff to Stronach's Deposition Regardless of Whether She is a Party and Whether This Court Ultimately Decides That It Has Personal Jurisdiction Over Stronach Florida Rule of Civil Procedure 1.310(a)providesthat after commencement of the action a party may take a depositionof"any person, includinga party." Further, Florida Rule of Civil Procedure 1.280(b) provides that parties may obtain discovery regarding any matter, not that privileged, is relevant to the subjectmatter of the pending action,whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party. Moreover, contrary to Stronach's suggestion,the subpoena power of the Court has no bearing on and the present issue because Stronach alreadyacceptedservice ofthe subpoena for her deposition 6 ZAR(JO EINHORN SALKOWSKI, P.A. ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ? F: (305) 374-5428 thereafter continued to agree to sit for her depositionon substantive inquiry.Further,Stronach's depositionis proceedingvia zoom such that this Court does not need to compel Stronach to travel to Florida to appear for her deposition. The jurisdictional inquiryis largelyirrelevant to the analysisbecause even if Stronach had not alreadyaccepted service of the subpoena for her depositionand agreed to be deposed on substantive matters (which she has), this Court can nonetheless compel Stronach to sit for of her depositionirrespective status as a party defendant. Plaintiff is not relegatedby the Florida Rules of Civil Procedure and law from taking Stronach's depositionmerely because she does not wish for Plaintiff to take her deposition.As explainedbelow, Stronach is at minimum a material witness with relevant knowledge and has not established any "good cause" whatsoever to resist her depositionon substantive matters. As such, there is no basis in law or fact for a protective order preventing Plaintiff from substantively inquiringof Stronach as a material witness to the in allegations this action. A. This Court's Order Was Entered Without Stronach Articulating Any "Good Cause',, For A Protective Order As To Substantive Inquiry At Her Upcoming Deposition Nor Did She Supply This Court With An Affidavit Pursuant To Rule 1.280(h) Necessary For Her To Resist The Deposition As A High-Level Officer In her Motion, Stronach sought a protectiveorder to preclude Plaintiff from inquiringon substantive matters at the and agreed upon deposition.However, in order to be entitled to a protectiveorder in the context of discovery,Stronach was requiredto show "good cause." Under Florida Rule of Civil Procedure 1.280(c), this Court may enter order only "for good cause a protective shown" to protect a party or person "from annoyance, embarrassment, oppression,or undue burden or expense that justicerequires."). Understandably, the burden of demonstratinggood cause for the issuance of a protective order falls upon the party - here, Stronach. See Bush Schiavo, 866 So.2d 138 (Fla. 2d seeking protection v. 136, 7 ZAR(JO EINHORN SALKOWSKI, P.A. ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ? F: (305) 374-5428 DCA2004); see also Deltona Corp. v. Bailey,336 So. 2d 1163, 1170 (Fla.1976) (explainingthat before a party will be completely deprived of the rightto take a deposition, a strong showing of good cause is required). In decidingwhether to issue a protectiveorder, this Court "must balance the competing interests that would be served by grantingdiscoveryor by denying it." Rasmussen v. South Fla. Blood Service, Inc.,500 So. 2d 533, 535 (Fla.1987).The burden to show good cause to prevent is high. See Arnold a depositionfrom takingplace altogether v. Wausau Underwriters Ins. Co., 2013 WL 5488520, at *2 (S.D. Fla. Sept. 30, 2013) (quotingDunfbrd v. Roily Marine Serv. Co., 233 F.R.D. 635,637 (S.D. Fla. 2005)).Because the burden to preclude a depositionaltogetheris high,courts rarelyissue such protective orders. Id. In its Order, this Court effectivelygranted a protectiveorder to Stronach even though Stronach has not shown even of modicum of "good cause" to warrant a protectiveorder on substantive inquiry at her deposition.To be sure, the entire basis of Stronach's Motion as to why she should not be requiredto sit for depositionon substantive matters is contained in one sentence ofher Motion, to wit. "it would be wholly unfair to subjectMs. Stronach to fact-based questioning regardingthe merits of the case unless and until such time as the Plaintiff has established the over Ms. Stronach." Stronach then misleads the Court by suggestingthat the Court's jurisdiction "rules" related to Stronach's the "subpoena powers ofthe Court," can only "be defined deposition, once it is determined whether she is a party defendant." This is a flagrantmisrepresentationofthe in this instance where service ofthe subpoena for deposition law and the facts,especially has never been challengedand was indeed acceptedby Stronach throughher attorneys. See Anthony v. Gary 1 Rotella & Associates, P.A., 906 So. 2d 1205, 1208 (Fla.4th Dist. App. 2005)(serviceofprocess can be waived by party "authorizinghis attorney to accept the initial pleadingswithout service of 8 ZAR(JO EINHORN SALKOWSKI, P.A. ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ? F: (305) 374-5428 See also process."); Fla. Stat. Ann. § 48.031 (West)(serviceof process of subpoenas effectuated pursuant to Section 48.031, Florida Statutes,as with service of initial pleadingsunder subsection (1)). Stronach's conclusorycontention that it would be "wholly unfair" for her to be subjectto fact questioning - that she alreadyagreed to - is not grounded in any facts or law. There is no burden, expense, or oppressionto Stronach by having her proceed with a zoom depositionthat she agreed to related to factual issues to which she has critical and independentknowledge. Stronach has failed to articulate any facts whatsoever as to why the depositionshe agreed to sit for would somehow subjecther to "annoyance, embarrassment, oppression,or undue burden or expense." It goes without sayingthat depositions and are an essential part of civil discoverypractice, deprivationof a party to take a depositionof a material witness amounts to a deprivationof due process.See Clarke v. Coca-Cola Refreshments USA, Inc., 282 So. 3d 897, 898 Cfla.3dDCA 2019) (reversing summary judgment on the basis that plaintiffwas entitled to a thorough preparationof her case, includingthe depositionof a material witness).A trial court departsfrom the essential requirementsof law when it denies a party the rightto depose an allegedmaterial witness without a findingof good cause. Akhnoukh v. Benvenuto, 219 So. 3d 96, 99 (Fla.2nd DCA 2017) (citingNucci v. Simmons, 20 So.3d 388,390 (Fla.2d DCA 2009)).Florida courts have largelydisapprovedthe entry o f protective the takingo f depositions orders prohibiting generally and orders providing for lengthy postponements of discovery.Bush v. Schiavo, 866 So. 2d 136, 138 (Fla.2nd DCA 2004);Offtce of Attorney Gen., Dep't of Legal Affairs,State of Fla. v. Millennium Commc'ns & Fu#illment,Inc., 800 So. 2d 255,258 (Fla.3rd DCA 2001) ("thebare that Millennium would suffer 'an unreasonable burden' ifrequiredto providediscovery allegation cannot form the basis for denying petitionerits discovery."). Further, "[a] strong showing [of 9 ZAR(JO EINHORN SALKOWSKI, P.A. ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ? F: (305) 374-5428 good cause] is required before a party will be denied entirely the right to take "' a deposition. Scolaro v. Butler. 135 So. 3d 1111, 1113 (Fla.2nd DCA 2013). Even if this Court ultimatelydecides that Stronach is not a proper party defendant - for reasons or otherwise jurisdictional - she indisputablya corporate officer (in the complicated corporate web ofthe entitydefendants)with personalknowledge ofthe critical facts allegedin the operativepleadings such that a subpoena a witness subpoena is not even necessary as her depositioncan be set vis a vi a See N. Ridge Med Plaza, simple notice of deposition. Inc. v. Tenet Healthcare Corp., 719 So. 2d 1014, 1015 (Fla.4th Dist. App. 1998)(ifdeponent is an "officer, or managing agent of [a party],. director, . . depositionmay be taken by "simplenotice and without the necessityof serving"him with a witness subpoena.") In her Motion, Stronach concedes that she "holds leadershippositionsin various affiliated who, togethermanage and operate the Villageof Gulfstream Park" entitles, - which is where the subjectpremises is located. See Motion, p. 2. Thus, in order to meet her burden to persuade this Court that she is entitled to protectionfrom deposition as a high-levelcorporate officer,Rule 1.280(h)of the Florida Rules of Civil Procedure requirethat Stronach produce an affidavit or declaration explaining that she "lacks unique, personal knowledge of the issues being See litigated." Fla. R. Civ. P. 1.280(h).This is otherwise known as the Apex doctrine which was codified by the Florida Supreme Court in Rule 1.280(h)and provides,in pertinent part A current or former high-level government or corporate officer may seek an order preventingthe officer from being subjectto a deposition. The motion, whether by a party or by the person of whom the depositionis sought,must be accompanied by an affidavit or declaration of the officer explainingthat the officer lacks unique, personal knowledge of the issues being litigated. Fla. R. Civ. P. In re Amend. 1.280(h); to Fla. Rule of Civ. Proc. l.280,324 So. 3d at 463. 10 ZAR(JO EINHORN SALKOWSKI, P.A. ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ? F: (305) 374-5428 Stronach produced no affidavit to this Court indicating that she lacks personalknowledge - as to the issues being litigated nor can she as it is undisputedthat she was intimatelyinvolved in every decision related to the underlying lease. In fact, Stronach singlehandedly has the most in the operativepleadingsand she knowledge concerningthe allegations is thus a critical fact - As confirmed witness regardlessof whether this Court has jurisdiction over her as a party. in the depositionof former employee, Alan Shaw, Stronach became more "heavilyinvolved" in the operationsof Gulfstream Park in the relevant timeframe of 2020 through 2021 when the lease was executed and the beach of the lease occurred. See excerpt of depositionof Alan Shaw attached as Exhibit "H" ("Shaw Dep.") at 37-38 (describingStronach as being more heavily involved in 2020-2021); at pp. 36 (stating that Stronach is the "CEO of the entire organization").Stronach was also involved in the underlying lease transaction when it was being negotiated,and she ultimatelywould have been the person to approve the lease. Shaw Dep. at pp. 180-181 (testifying that Stronach was involved in the lease transaction when it was being negotiatedin 2019); Id. at p. that "the lease would not have been approved for signature 53 (testifying had Belinda [Stronach] not ... approved it.") An overwhelming majority of the relevant correspondenceproduced by . Defendants illustrates this fact to be true. Stronach met personallywith Plaintiff's representative in Florida related to the lease. See Shaw Dep. at p. 87. She was the ultimate decision maker when it came whether the Landlord would perform under the lease. See Shaw Dep. at 197 (stating"we [Landlordl kept thingsgoing to the extent we can while we're waiting for a final decision from Belinda" [as to whether to proceed with the Landlord's performance under the Leasel. She was involved in the build-out of the premises and she made requests for financials and other information from Plaintiff. Shaw Dep. at pp. 66 - 67. Indeed, even though the lease contained no relocation provision,Stronach, in bad 11 ZAR(JO EINHORN SALKOWSKI, P.A. ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ? F: (305) 374-5428 faith,approved the lease knowing that she still planned to move the casino to the same location that was contractually promised to Plaintiff. See Shaw Dep. at 172. Stronach went againstthe best interests of the Landlord and singlehandedlyoverrode the decision ofthe senior management team of the Landlord for her own ulterior motives and directed them to make misrepresentations to Plaintiff. See SAC, 15 - 16. p. Simply put, Stronach, at minimum, is a material percipientwitness involved in the which form the subjectmatter of allegations this such that deprivingPlaintiff of the litigation abilityto take her deposition would be extremely prejudicial.See Remington Lodging & LLC Hospitality, v. Southernmost House, Ltd., 206 So. 3d 764 (Fla.3d DCA 2016) (concluding that depositionsof officers of a corporationcould be said to be reasonablycalculated to lead to the discovery of admissible evidence where said officers admitted in affidavits to meeting with a party'spresidentand discussingmatters relevant to the subjectmatter ofthe action). In this regard,this Court's denial of the rightto take Stronach's depositionbefore the upcoming summary judgment hearing on March 28 and until such time that this Court finds that it over Stronach would in effect eviscerate Plaintiff's rightto defend against has personaljurisdiction the pending motion for summary judgment and to take the necessary discoveryto ultimatelyprove its claims. Indeed, part ofthe relevant inquiryon summary judgment is the entitlement to specific performance which includes equitableconsiderations that could only be fullydeveloped from the material witnesses, like Stronach. See Hepco Data, LLC v. Hepco Med., LLC.301 So. 3d 406, 412 (Fla.2d Dist. App. 2020)(findingthat granting of a motion for protectiveorder to preclude deposition of alleged material witnesses was error that caused material irreversible harm); See Giacalone, 8 So. 3d at 1234 (grantingpetitionfor writ of certiorari where trial court's eviscerated a party'sclaim, defense, or counterclaim). order denying discoveryeffectively 12 ZAR(JO EINHORN SALKOWSKI, P.A. ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ? F: (305) 374-5428 In the absence of any showing of good cause by Stronach - which there is none - precludingPlaintiff from takingher depositionwould cause material harm to Plaintiff for which there is no adequate remedy. Hepco Data, 301 So. 3d at 411; See also, Dees v. Kidney Grp., LLC, 16 So. 3d 277, 280 (Fla.2d DCA order that prevented any discovery 2009) (holdingprotective concerningtwo priorclients and a new venture formed by the other members of the company, in was seekingjudicialdissolution,caused material harm); Kyker case where petitioner v. Lopez, 718 So. 2d 957, 957 (Fla.5th DCA order when 1998) (approvingorder denying motion for protective requestedinformation was discoverable); Towers v. City of Longwood, 960 So. 2d 845,849 (Fla. 5th DCA 2007) (holding "it would be utterlyimpossible to tell whether [a witness] has any from askingany questionsof [the information that is relevant to the suit if [a party]is prohibited witness. I"). CONCLUSION In short,Stronach accepted service ofthe subpoena for her depositionthrough her attorneys pursuant to which she agreed to be deposed on substantive matters without any objection.Stronach failed to meet her burden to show "good cause" to resist depositionon substantive matters via zoom that she agreed to sit for six months ago. Accordingly,Plaintiff respectfully requests that this Court revisit its Order which prohibitsPlaintiff from making substantive inquiryat Stronach's upcoming depositionwhich Stronach. Depriving Plaintiff of critical discovery would severely prejudiceespeciallyin lightofthe fact that this Court is scheduled to hear Defendant's Motion for Partial Summary Judgment on March 28,2023. WHEREFORE, Plaintiff, requests that the enter an order: Strike X, LLC, respectfully (i) reconsideringthe Court's March 24,2023 Order and permitting Plaintiff to inquire of Belinda Stronach as to substantive matters at her March 8,2023 deposition;or, alternatively requiring 13 ZAR(JO EINHORN SALKOWSKI, P.A. ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ? F: (305) 374-5428 Stronach to sit for a substantive depositionbefore this Court hears Defendant's Motion for Partial grantingsuch other and further relief as this Honorable Court deems Summary Judgement; and (iii) justand proper. Dated: March 1, 2023 Respectfullysubmitted, ZAR(JO EINHORN SALKOWSKI, P.A. Counsel for Plaintiff One Biscayne Tower th 2 South Biscayne Boulevard, 34? Floor Miami, Florida 33131 Telephone: (305) 374-5418 Facsimile: (305) 374-5428 Byr si Mary Nikezic ROBERT ZARCO Florida Bar No. 502138 E-mail: ROBERT F. SALKOWSKI Florida Bar No. 903124 E-mail: rsalkowski@zarcolaw.com Secondary acoro@zarcolaw.com MARY NIKEZIC Florida Bar No. 92928 E-mail: mnikezic@zarcolaw.com E-mail: aaybar@zarcolaw.com E-mail: eservice@zarcolaw.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that on March 1, 2023, a true and correct copy o f the foregoing was served via the Florida Courts' e-Portal upon the following Jordanna Ishmael abrahamd@gtlaw.com, and and Michael N. Kreitzer and belloy@gtlaw.coml GREENBERG TRAURIG, P.A., 333 S.E. Second Avenue, 44th Floor, Miami, FL 33131. By-- /sl Mary Nikezic 14 ZAR(JO EINHORN SALKOWSKI, P.A. ONE BISCAYNE TOWER ?2 S. BISCAYNE BLVD., 34TH FLOOR ?MIA&n, FLORIDA 33131 ? T: (305) 374-5418 ? F: (305) 374-5428 Filing# 167540679 E-Filed 02/24/2023 07:18:14 PM IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO. CACE21016240 DIVISION: QZ JUDGE: Tuter, Jack (07) Strike X LLC / Petitioner(s) Plaintiff(s) V VillageAt Gulfstream Park, LLC , et al Defendant(s)/ Respondent(s) i ORDER RELATING TO DEPOSITION OF BELINDA STRONACH The partiesare indisagreementas to how a depositionshould proceed.The deponent is a party to the case but is challengingin personam jurisdiction. The depositionmay proceed as scheduled. The deponent may only be asked to questionrelating jurisdictional issues and the deposition is limited to three hours. If the depositionon jurisdiction cannot be completed in three hours the partiesshould attempt to contact the Court to determine how to proceed. Further, should the Court determine it does have in personam jurisdiction over the deponent,she will have to sit for a second depositionon substantive issues at a later date. DONE AND ORDERED in Chambers at Broward County, Florida on 24th day of February.2023. CLA633?7,)6==461 o===*lg?*L i pqvi 0 CACE21016240 02-24-2023 1:31 PM Hon. Jack Tuter CIRCUIT COURT JUDGE Signed by Jack Tuter Electronically Copies Furnished To: Adeline Ortiz, E-mail : AOrtiz@beckerlawyers.com Jennifer Junger, E-mail : flservice@gtlaw.com Jennifer Junger, E-mail: jungerj@gtlaw.com Jennifer Junger, E-mail : Jon Polenberg, E-mail : tfritz@beckerlawyers.com Jon Polenberg, E-mail : jpolenberg@beckerlawyers.com Jon Polenberg, E-mail : ftlefile@beckerlawyers.corn Page 1 of 2 A Case Number: CACE21016240 Jordanna Ishmael, E-mail : cohenpa@gtlaw.corn Jordanna Ishmael, E-mail: ishmaelj@gtlaw.com MICHAEL N. KREITZER, E-mail : MICHAEL N. KREITZER, E-mail belloy@gtlaw.corn : Mary Nikezic, E-mail : mnikezic@zarcolaw.corn Mary Nikezic, E-mail : Nancy Ginart, E-mail ginartn@gtlaw.com : Robert F. Salkowski, E-mailrsalkowski@zarcolaw.corn : Robert F. Salkowski, E-mailacoro@zarcolaw.corn : Robert F. Salkowski, E-mail eservice@zarcolaw.com : Robert Zarco, E-mail mlabrador@zarcolaw.corn : Robert Zarco, E-mail : reception@zarcolaw.com Robert Zarco, E-mail rzarco@zarcolaw.com : Page 2 of 2 Anite Coro From: jungerj@gtlaw.com Sent: Wednesday, July6, 2022 5:01 PM To: Anite Coro; ishmaelj@gtlaw.com; Robert Salkowski; Mary N