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Filing # 199622950 E-Filed 05/31/2024 04:45:25 PM
IN THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT, IN AND
FOR, PALM BEACH COUNTY, FLORIDA
CASE NO. 50-2022-CA-011847-XXXX-MB
KHRYSTAL VERGARA AND RICARDO
VERGARA GONZALEZ,
Plaintiff,
vs.
UBER TECHNOLOGIES, INC., RASIER-DC,
LLC, RASIER (FL), LLC, AND AARON
ABELLA,
Defendants.
PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANT UBER
TECHNOLOGIES, INC., RAISER-DC, LLC, AND RAISER (FL), LLC’S MOTION FOR
SUMMARY JUDGMENT ON PLAINTIFFS’ VICARIOUS LIABILITY CLAIMS
COMES NOW, the Plaintiffs, KHRYSTAL VERGARA and RICARDO VERGARA
GONZALEZ, by and through undersigned counsel and pursuant to the Florida Rules of Civil
Procedure move this Court for an Order denying Defendants’ Motion for Summary Judgment on
Plaintiffs’ Vicarious Liability Claims, 1 as it was brought prematurely not in good-faith, and also
deny the Motion on the merits, and state as follows:
I. Introduction
An Uber rider picked up an Uber Ride from Uber’s Driver Partner, Defendant, Aaron
Abella. Recklessly, while Mr. Abella was driving, rather than remain focused on the road, he
utilized the Uber-designed Application from his mobile device to try and confirm he had picked
1
Plaintiffs utilize the Defendants’ reference to these as “vicarious liability claims,” albeit they are
not all vicarious liability claims under Florida law.
1
FILED: PALM BEACH COUNTY, FL, JOSEPH ABRUZZO, CLERK, 05/31/2024 04:45:25 PM
up the correct passenger. Mr. Abella was allowed to drive recklessly in this distracted fashion
because Uber’s business model allowed, encouraged and even required Mr. Abella to utilize the
App while the vehicle was in motion. Distracted, Mr. Abella crashed into the rear of Plaintiff’s
vehicle while Plaintiff, Khrystal Vergara, was standing between her vehicle and another parked in
front of her, pinning and crushing her between the two vehicles. Ms. Vergara has sustained
catastrophic injuries as a result of the accident.
The Plaintiff raises several separate and independent theories of liability against the Uber
Defendants (collectively referred to as Uber, unless otherwise noted), including vicarious and
direct liability claims. Uber moved to dismiss two of the claims against it, which this Court denied.
Uber did not move to dismiss any of the four claims it now seeks to dismiss in its Motion for
Summary Judgment (MSJ) pending to be heard on June 10, 2024, i.e., Uber recognized each of
these claims could only be considered after full discovery and were not pure legal issues:
• Count II: Agency
• Count IV: Joint venture
• Count V: Partnership
• Count IX: Respondeat Superior
Procedurally, this Court should decline to consider summary judgment when it is not duly
noticed for the June 10, 2024, hearing. Uber understood there was a reasonable ambiguity on the
date for the hearing, which is still set for September 9, 2024. This Court should also deny
summary judgment when it was prematurely filed and set by Uber. Outstanding discovery
remains, and this Court has repeatedly noted it would not grant summary judgment to any party
when relevant discovery remains and would only decide this case on its merits. That is the case
here, and Uber set this matter in bad-faith, obstructing access to the very discovery that would
2
[further] show why summary judgment cannot be granted. Uber’s win-at-all-costs approach in
trying to have this case not heard on the merits should be rejected by this Court.
On the merits, Uber throws out an array of arguments that it is immune from any potential
liability on these four claims as a matter of law. Uber relies on statutory provisions that it claims
support its position. None of the provisions are controlling as a matter of law, and Uber’s
premature decision to move for summary judgment precludes this Court ruling on the factual
matters that remain in discovery. Uber relies on the very little evidence it has provided in discovery.
This is misleading and fundamentally unfair – Uber prematurely moved for summary judgment,
blocked material summary judgment evidence to try and run out the clock, and now cherry picks
the evidence it has turned over. Uber also relies on circuit court orders that it asks this Court to
deem persuasive. This is unfortunate. Uber falsely gives this Court there are only orders favorable
to its position. In giving this false misimpression, Uber violated the spirit of professionalism and
Florida Bar Rule 4-3.3 by not citing orders adverse to its position. But to make this worse, Uber
objected in discovery to providing these Orders – only to then cite the Orders it deems favorable
to its position.
This Court should reject this win-at-all-costs approach.
Briefly here at the outset, Uber argues it cannot be liable for the negligence of its “Partner
driver.” Uber’s arguments misunderstand both Florida law concerning summary judgment and
the material facts and questions the jury will be required to resolve at trial. As the Plaintiffs will
demonstrate, the factual issues in this case cannot be resolved by summary judgment, as agency
and employment status matters are virtually always a jury question. “[T]he question whether
Uber’s drivers are employees or independent contractors is an issue to be decided by a jury, not
this Court on summary judgment.” O'Connor v. Uber Techs., Inc., 82 F. Supp. 3d 1133, 1138 (N.D.
3
Cal. 2015); McEvoy v. Union Oil Co., 552 So. 2d 1169, 1170 (Fla. 3d DCA 1989) (“Where there
exists any evidence from which a jury could conclude that the acts in question were committed by
an agent of the corporation within the scope of his employment, the questions of agency and scope
of employment are to be resolved by a jury.”).
Further, even if Uber were correct that its partner drivers are legally independent
contractors as opposed to traditional employees, that finding by the jury would not resolve three
of the four claims here –it would only resolve the respondeat superior claim. As will be
demonstrated below, there a multiple issues of material fact precluding this case from being
determined via summary judgment as to any of these four claims.
II. Summary Judgment Standard and Relevant Procedural Requirements
In 2021, Florida amended its summary judgment rule to align with the federal standard. In
re Amends. to Fla. R. Civ. Pro. 1.510, 317 So. 3d 72, 73 (Fla. 2021). Under the federal standard,
“[o]nce the moving party has presented a properly supported motion for summary judgment, the
nonmoving party cannot rely on the existence of a mere ‘scintilla of evidence’ to avoid summary
judgment.” Royal Bahamian Ass'n Inc. v. QBE Ins. Corp., 750 F. Supp. 2d 1346, 1354 (S.D. Fla.
2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986)). The nonmovant’s
evidence must be more than “incredible,” “trivial,” “merely colorable,” or “not significantly
probative.” In re Amends. to Fla. R. Civ. Pro. 1.510, 309 So. 3d 192, 193 (Fla. 2020) (quoting
Bruce J. Berman & Peter D. Webster, Berman's Florida Civil Procedure § 1.510:5 (2020 ed.), and
Anderson, 477 U.S. at 249).
But to survive a motion for summary judgment, a nonmovant-plaintiff need not “present
evidence that compels a single, airtight inference” in his favor— “just evidence that allows a
reasonable one.” N. Shore Med. Ctr., Inc. v. Cigna Health & Life Ins. Co., 68 F.4th 1241, 1245
4
(11th Cir. 2023). In other words, a plaintiff opposing summary judgment need not “establish that
he [or she] will likely prevail if the case proceeds to trial”—only that it is “merely possible [] that
a reasonable jury would find in his favor.” Carbone v. Cable News Network, Inc., 910 F.3d 1345,
1351, 1353 (11th Cir. 2018). 2
Thus, a court considering a motion for summary judgment “must ask [itself] not whether
[it] thinks the evidence unmistakably favors one side or the other [,] but whether a fair-minded
jury could return a verdict for the plaintiff on the evidence presented.” Anderson, 477 U.S. at 252.
In doing so, the court views “the evidence and all factual inferences therefrom in the light most
favorable to the party opposing the motion, and all reasonable doubts about the facts are resolved
in favor of the nonmovant.” Abbes., 195 F. App’x at 899. If reasonable minds could differ on the
inferences arising from undisputed facts or the import of the evidence, then a court should deny
summary judgment. Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir.
1992); Anderson, 477 U.S. at 250.
The amended rule 1.510 “recognize[s] the fundamental similarity between the summary
judgment standard and the directed verdict standard,” both of which “focus on ‘whether the
evidence presents a sufficient disagreement to require submission to a jury,’” In re Amends. to Fla.
Rule of Civil Proc. 1.510, 317 So. 3d 72, 75 (Fla. 2021) (quoting Anderson, 477 U.S. at 251), “or
whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at
249, 251-52. See also Gracia v. Security First Ins. Co., 347 So. 3d 479, 482 (Fla. 5th DCA 2022)
(explaining that summary judgment is only appropriate when “the evidence is such that a
reasonable jury could not return a verdict for the nonmoving party.”) (citations omitted).
2
All emphasis is added by the Plaintiffs unless otherwise noted.
5
To determine whether the evidence presents a sufficient disagreement to require
submission to a jury or is too one-sided to go to the jury—in other words, to determine whether a
genuine dispute of material fact exists — “the correct test . . . is whether ‘the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.’” In re Amends., 317 So. 3d at
75. In determining whether a reasonable jury could return a verdict for the non-moving party, the
court must view the facts and draw reasonable inferences therefrom in the light most favorable to
the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007)). Generally, the court “may not
make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000)). “Even if a . . . court believes that the evidence presented by one
side is of doubtful veracity, it is not proper to grant summary judgment on the basis of credibility
choices.” Feliciano v. City of Miami Beach, 707 F.3d 1244, 1252 (11th Cir. 2013) (citation and
internal quotation marks omitted). A non-movant’s “testimony cannot be discounted on summary
judgment unless it is blatantly contradicted by the record, blatantly inconsistent, or incredible as a
matter of law, meaning that it relates to facts that could not have possibly been observed or events
that are contrary to the laws of nature.” Id. at 1253. But the mere existence of any piece of
“incredible” or “trivial” evidence that raises only the “slightest doubt” is not enough to defeat
summary judgment. Id. at 76. In other words, “[w]hen opposing parties tell two different stories,
one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a
court should not adopt that version of the facts for purposes of ruling on a motion for summary
judgment.” Id. at 75-76 (quoting Scott, 550 U.S. at 380). Stated conversely, if “two parties’ stories
conflict, neither of which is blatantly contradicted by indisputable evidence, a [trial] court may not
make credibility determinations in favor of one party over the other.” Simpson v. Guess, No. 3:18-
CV-547-J-39PDB, 2020 WL 7385379, at *5 (M.D. Fla. Dec. 16, 2020).
6
Recently, the Fifth DCA explained that the trial court incorrectly interpreted the amended
summary judgment standard “as allowing it to weigh and judge the credibility of the evidence.”
Gracia, 347 So. 3d at 482. As the Fifth DCA observed, id.:
While no longer an absolute prohibition—depending on the nature of the
evidence—the general rule remains intact: credibility determinations and
weighing the evidence “are jury functions, not those of a judge,” when
ruling on a motion for summary judgment. Anderson, 477 U.S. at 255, 106
S.Ct. 2505; see also A.L. ex rel. D.L. v. Walt Disney Parks & Resorts US,
Inc., 900 F.3d 1270, 1289 (11th Cir. 2018) (noting that under federal
summary judgment rule, “[t]he court does not weigh conflicting evidence
or determine the credibility of witnesses.”).
The Fifth DCA noted that the exception to this general principle allowing trial judges to
weigh and judge the credibility of the evidence is only where “the record evidence blatantly
contradicts a litigant's version of the facts will a court be allowed to weigh conflicting evidence or
determine the credibility of a witness.” Gracia, 347 So. 3d at 482 n.1.
Earlier in May 2024, the Second DCA in a detailed Opinion explained the trial court had
erred in granting summary judgment because it reasoned the parties’ competing affidavits resulted
in a “tie.” Lassiter v. Citizens Prop., Ins. Co., Case No. 2D2022-2609, 2024 WL 2744676, at **1,
3, 5 (Fla. 2d DCA May 29, 2024). The Second DCA reminded trial judges they are not allowed to
weigh and judge the credibility of the evidence. Id. at *4:
“It is improper to consider either the weight of the conflicting evidence or
the credibility of witnesses” in ruling on a motion for summary judgment.
Bernhardt v. Halikoytakis, 95 So. 3d 1006, 1008-09 (Fla. 2d DCA 2012)
(citing Juno Indus., Inc. v. Heery Int'l, 646 So. 2d 818, 822 (Fla. 5th DCA
1994)). This remains the general rule even under the new summary
judgment standard that is applicable to this case. See, e.g., Gracia v. Sec.
First Ins., 347 So. 3d 479, 482 (Fla. 5th DCA 2022) (explaining that even
under the new summary judgment standard, “credibility determinations
and weighing the evidence 'are jury functions, not those of a judge' “
(quoting Anderson, 477 U.S. at 255)); see also Navarro v. Borges, No.
3D23-0175, 2024 WL 1422996, at *2 (Fla. 3d DCA Apr. 3, 2024); Daniel's
Tree Serv., Inc. v. Nat'l Core Servs. Corp., 379 So. 3d 524, 530-31 (Fla.
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4th DCA 2023).6 “[A] motion for summary judgment is not a trial by
affidavit or deposition.” Clampitt v. Wick, 320 So. 3d 826, 833 (Fla. 2d
DCA 2021) (quoting Gorrin v. Poker Run Acquis., Inc., 237 So. 3d 1149,
1153 (Fla. 3d DCA 2018). “Summary judgment is not intended to weigh
and resolve genuine [disputes as to any] material fact, but only [to] identify
whether such issues exist.” Id. (quoting Gorrin, 237 So. 3d at 1153); see
also Navarro, 2024 WL 1422996, at *2 (“[C]ompeting material
evidentiary showings are incapable of resolution on summary
judgment.”). 3
Furthermore, it remains the case that summary judgment is usually not appropriate or
feasible in negligence cases because they present fact-specific claims in which “the standard of the
reasonable man must be applied to conflicting testimony.” Peuser v. Wal-Mart Stores E., LP, No.
6:19-CV-2098-JA-GJK, 2021 WL 1752063, at *2 (M.D. Fla. May 4, 2021) (quoting Croley v.
Matson Navigation Co., 434 F.2d 73, 75 (5th Cir. 1970); and citing Gomez Cruz v. Wal-Mart Stores
East, LP, 268 So. 3d 796, 800 (Fla. 4th DCA 2019) (“[M]otions for summary judgment should be
cautiously granted in negligence actions.”)). Indeed, where conflicting testimony “presents a
classic swearing match,” that “is the stuff of which jury trials are made.” Feliciano, 707 F.3d at
1253.
Additionally, there are procedural requirements for summary judgment proceedings.
“Summary judgment is not a dress rehearsal or practice run; it ‘is the put up or shut up moment in
a lawsuit, when a party must show what evidence, it has that would convince a trier of fact to
accept its version of the events.’” Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th
Cir. 2005). A party moving for summary judgment is limited to the grounds stated in its motion
because of the due process notice requirements of Rule 1.510. E.g., City of Cooper City v. Sunshine
3
The Second DCA in the Footnote explained the lone scenario where a trial court can weigh the
credibility of the evidence: when the record evidence blatantly contradicts a party’s version of the
facts. 2024 WL 2744676, at *4 n.6.
8
Wireless Co., 654 So. 2d 283, 284 (Fla. 4th DCA 1995). The party seeking summary judgment
goes all-in in its motion because it can’t make new arguments in a reply. SEC v. Keener, 2020 WL
4736205, at *6 n.4 (S.D. Fla. Aug. 14, 2020) (“It is improper to raise an argument for the first time
in a reply.”); FTC v. Nationwide Connections, Inc., 2007 WL 4482607, *2 (S.D. Fla. Dec. 19,
2007); Robinson v. Intercorp, 512 F. Supp. 2d 1307, 1316 (N.D. Ga. 2007) (“Arguments raised for
the first time in a reply brief are not properly before the court.”); Fisher v. Ciba Specialty Chem.
Corp., 238 F.R.D. 273, 317 n.89 (S.D. Ala.2006) (“[T]his argument is not properly raised because
[the movants] submitted it for the first time in their reply brief.”); Herring v. Sec’y, Dep’t of Corr.,
397 F.3d 1338, 1342 (11th Cir. 2005); Flamenbaum v. Orient Lines, Inc., 2004 WL 1773207, at
*14 (S.D. Fla. July 20, 2004).
And Florida’s summary judgment rule does not authorize a party’s right to file any Reply,
let alone introduce new Facts or make new arguments for the first time in a Reply. Trial courts are
authorized to “enforc[e] the plain language of a rule of civil procedure promulgated to place
practitioners and courts on notice of what is required” in Rule 1.510. State Farm Mut. Auto. Ins.
Co. v. Advanced X-Ray Analysis, Inc., 368 So. 3d 1049 (Fla. 3d DCA 2023) (recognizing a trial
court’s discretion to not consider the non-moving party’s untimely response that was not filed at
least 20 days before the initially-set summary judgment hearing; the fact the hearing was continued
did not allow the non-moving party to violate the rule, and the non-moving party also failed to
meet the deadline for the continued hearing). 4 Especially here where Uber prematurely moved for
summary judgment and attempted to block a merits-based ruling from this Court, it would be
particularly inappropriate, and a violation of due process, for Uber to submit an unauthorized
4
Here, this Court exercised its discretion to allow the Plaintiffs to file their MSJ Response by May
31, 2024. We discuss that issue below, as Uber’s position twice objecting to this reflects its win-
at-all-costs mentality designed to prevent this Court from reaching a merits-based decision.
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Reply for a hearing date it should never have pushed to be heard at this premature stage of
discovery.
III. This Court for Procedural Reasons Should Not Consider the Motion for Summary
Judgment at this time.
1. Summary Judgment Cannot Be Considered at the June 10, 2024, Hearing When
The Hearing Is Not Duly Noticed.
It is surprising that Uber so strenuously moved to have this hearing heard at the June 10,
2024, hearing date –except that it reflects Uber’s win-at-all-costs approach to try and run out the
clock and avoid this Court deciding this case on the merits.
For one, as explained below, it was premature to have set the MSJ for hearing at all. But
second, Uber knew there was a genuine ambiguity regarding the procedural setting of the hearing
date. Rather than take the professional, fair route and agree to have the hearing heard at the date
the Plaintiff’s counsel reasonably understood it had been moved to, in September 2024, which the
parties collectively discussed, Uber plowed ahead. While this Court agreed to have the hearing
heard on June 10th, Uber did not move to correct the deficiency in the setting of the hearing. The
same procedural issue remains – this hearing is not duly noticed for June 10, 2024. Plaintiffs
would contend it would be reversible error to proceed to the hearing on June 10th under these
circumstances.
In short, this Court cannot consider this MSJ at the June 10, 2024, Hearing when the Matter
has not been duly noticed for that date. Uber filed this MSJ on January 12, 2024. Uber filed the
MSJ even though it had objected, in bad faith, to a plethora of the discovery requests in Plaintiff’s
First Request for Production. Over Plaintiff’s objection, on 2/6/24, this Court set the MSJ for the
June 10th date. DE 168. This was more than four months out, and this Court understandably may
have reasoned that the discovery would be provided in time for the Plaintiffs to file a meaningful
MSJ Response for a hearing set four months later.
10
But with the hearing date set, Uber dug into further discovery obstruction. The parties met
and conferred over multiple hours. Because of the limited hearing time because of this Court’s
busy docket, Plaintiff’s Motion to Compel hearing is not set until June 28, 2024 – 18 days after
the MSJ hearing. Inexplicably, Uber has not voluntarily provided the little additional discovery it
agreed to turn over in the Meet-and-Confer meetings. Nor has Uber agreed to voluntarily turn over
the documents Plaintiffs requested last week in a corporate B6 deposition.
Uber then moved for summary judgment on additional claims, direct negligence and
product liability claims, also prematurely. On March 15, 2024, this Court re-set the vicarious
liability MSJ for September 9, 2024. DE 215. Uber would later argue to this Court, falsely, that
this was done administratively by this Court’s Judicial Assistant. This was an Order executed by
this Court. This 3/15/24 Order has never been amended or vacated. It remains as of this filing.
On March 20, 2024, this Court issued what is titled an Amended Order, setting Uber’s direct
liability MSJ for September 9, 2024. DE 221.
This Court’s 3/20/24 Order did not state it was amending the 3/15/24 Order. This Court’s
3/20/24 Order did not state it was removing the vicarious liability claims from the September 9th
hearing date. Plaintiff’s counsel, at this time of this Court’s 3/20/24 Order, all believed that both
of Uber’s MSJ’s had now been set for September 9th. What’s more, Plaintiff’s counsel discussed
this issue with Uber’s counsel in one of the Meet-and-Confers, where Plaintiff’s counsel noted the
parties now had some additional time to address the pending discovery disputes in light of the
MSJ’s (plural) not being heard until September 9th. Uber’s counsel did not say it disagreed with
this procedural issue–at that time. There was then a Case Management Conference and it was
discussed there that the MSJ’s (plural) were not being heard until September 9th. Uber’s counsel
did not say it disagreed with this procedural issue – at that time.
11
It was not until 2 months later, in May 2024 that Uber took a new position: its new position
was that this Court’s 3/20/24 Order had silently reinstated this Court’s earlier 2/6/24 Order setting
the vicarious liability MSJ hearing date for June 10th. Plaintiff’s counsel explained there was a
genuine ambiguity, explained the parties had collectively discussed this in prior meetings, but Uber
refused to budge.
A hearing was held on this matter before the Court on May 23, 2024. Uber insisted the
June 10th hearing should proceed, even though, again, the 3/15/24 Order resetting the vicarious
liability MSJ hearing date has never been amended or vacated, and even though the 3/20/24 Order
makes no mention of the vicarious liability MSJ. While this Court appeared to first correctly
reason that it would make practical sense to have both MSJ’s heard together at the September 9th
date, this Court then agreed with Uber to have this vicarious liability MSJ hearing be heard on
June 10th.
While we respectfully disagree with this Court’s ruling, we respect this Court’s ruling. But
the procedural reality is that the vicarious liability claims are set for hearing on September 9th, not
June 10th. The 3/15/24 Order remains in place, setting the vicarious liability MSJ claims for
September 9, 2024. It would be procedurally in error for this Court to consider the vicarious
liability MSJ on its merits on June 10th, without a duly noticed hearing.
2. Summary Judgment Cannot Be Granted When There is Outstanding Discovery,
and Uber Inexplicably Pushed to Have This Hearing Heard When There is a
Pending Motion to Compel, and Depositions Have Not Been Taken.
Setting aside this procedural issue that there is not a duly noticed hearing set for June 10th,
this Court must deny summary judgment because it was prematurely filed by Uber, and then
prematurely set for hearing for Uber, and then prematurely pushed for this hearing date by Uber.
Its position to proceed at this time is not in good faith. There is a mountain of relevant discovery
that Uber has refused to turn over, and which is set for hearing before this Court 18 days after the
12
MSJ Hearing. At the same time Uber pushed this hearing date forward, even when this Court
floated it being heard in September, Uber has refused to turn over the relevant discovery.
This Court has noted at multiple hearings that while setting this hearing date, it would not
grant summary judgment if there was outstanding discovery that is relevant. This Court has
explained it is a merit-based Court and would decide this matter on its merits. This Court repeated
this statement at the 5/23/24 hearing, and again at the May 30, 2024, Case Management
Conference. That is exactly the scenario here.
Under Florida’s revised summary judgment rule, the Fourth DCA has consistently
cautioned trial judges from granting summary judgment when there is pending discovery.
For example, recently in Babani v. Broward Auto., Inc., 348 So. 3d 608, 609 (Fla. 4th DCA
2022), the Court reversed a summary judgment, stating this:
Where the information contained in outstanding discovery could create
genuine issues of material fact, summary judgment would not be proper.”
Osorto v. Deutsche Bank Nat'l Tr. Co., 88 So. 3d 261, 263 (Fla. 4th DCA
2012). A trial court should not consider a motion for summary judgment
until discovery is concluded. Id. at 262. “An order granting summary
judgment while there is an outstanding request for production of
documents is premature and the appellate court should reverse and remand
for discovery to be completed.” Id. at 262–63 (citing Henderson v. Reyes,
702 So. 2d 616, 616 (Fla. 3d DCA 1997).
Then, in another case reversing summary judgment because discovery was pending, the
Fourth DCA specifically explained this reasoning for our revised summary judgment rule. See
Patient Depot, LLC v. Acadia Enters., Inc., 360 So. 3d 399, 408, 409-10 (Fla. 4th DCA 2023):
In adopting the new summary judgment rule, our supreme court noted the
importance of the parties having adequate time for discovery, stating “it is
equally important to emphasize that, before being subjected to summary
judgment because of the absence of evidence, the nonmovant must have
been afforded ‘adequate time for discovery.’ ” In re Amends. 1.510 II, 317
So. 3d at 77 (quoting Celotex, 477 U.S. at 322, 106 S.Ct. 2548); see also
In re Amends. 1.510 I, 309 So. 3d at 193 (stating “provided there has been
an ‘adequate time for discovery,’ the Supreme Court has held that
13
summary judgment should be entered ‘against a party who fails to make a
showing sufficient to establish the existence of an element essential to that
party's case, and on which that party will bear the burden of proof at trial’
” (quoting Celotex, 477 U.S. at 322, 106 S.Ct. 2548)). We have followed
that admonition. 5
The amended Florida Rule of Civil Procedure 1.510(d), which is modeled after Federal
Rule of Civil Procedure 56(d), provides,
(d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows
by affidavit or declaration that, for specified reasons, it cannot present facts
essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.
Consistent with the Florida state cases since this amended rule took effect, the Eleventh
Circuit, to which Florida courts look in interpreting the new Rule 1.510, “has cautioned that courts
‘should not’ grant summary judgment ‘until the party opposing the motion has had an adequate
opportunity for discovery.’” Nafta Traders, Inc. v. Corkcicle, LLC, No. 619CV1672ORL78GJK,
2020 WL 7421941, at *2 (M.D. Fla. July 9, 2020) (quoting Snook v. Tr. Co. of Ga. Bank of
5
The same was true for the long-standing application of the prior version of Rule 1.510. E.g., Fleet
Finance v. Carey, 707 So. 2d 949. 950 (4th DCA 1998):
This court has held on many occasions that “a court should not enter summary judgment
when the opposing party has not completed discovery.” Lubarsky v. Sweden House
Properties of Boca Raton, Inc., 673 So.2d 975, 977 (Fla. 4th DCA 1996) (quoting
Brandauer v. Publix Super Markets, Inc., 657 So.2d 932, 933 (1995)). See also Sica v. Sam
Caliendo Design, Inc., 623 So.2d 859 (Fla. 4th DCA 1993); Moore v. Freeman, 396 So.2d
276 (Fla. 3d DCA 1981) (trial court's granting of summary judgment was premature where
the opposing party, through no fault of his own, had not completed discovery). Further, it
is reversible error to grant summary judgment where depositions are still pending. See
Sica.”).
See also Kimball vs. Publix Super Markets, Inc., 901 So. 2d 293 (Fla. 2d DCA 2005) (summary
judgment should not be entered where there is relevant discovery pending); Abbate vs. Publix
Super Markets, Inc., 632 So. 2d 1141 (Fla. 4th DCA 1994).
14
Savannah, 859 F.2d 865, 870 (11th Cir. 1988)). “The nonmovant must alert the court to any
outstanding discovery, but summary judgment is generally found to be premature when the party
opposing the motion has been unable to obtain responses to its discovery requests.” Nafta Traders,
2020 WL 7421941, at *2 (citing Cowan v. J.C. Penney Co., 790 F.2d 1529, 1530–32 (11th Cir.
1986) (per curiam)).
This is exactly the circumstance in this case. Plaintiff’s trial counsel has signed a
Declaration. See Exhibit P. To be clear, this MSJ Response shows that if this Court considers the
MSJ on its merits, this Court should deny it on all grounds. But because Uber has obstructed
discovery, and prematurely set this matter for hearing, Plaintiffs cannot present all facts essential
to further justify their opposition to the MSJ.
We note Plaintiff’s counsel has met and conferred with Uber’s counsel on the discovery
issues on multiple occasions. Uber has refused to budge. This is even though, as stated above, as
of this filing, there is no duly-noticed summary judgment hearing set for June 10, 2024, and the
Motion to Compel hearing is set for 18 days later on June 28, 2024. This Court has informed the
parties that the June 10, 2024, hearing will proceed; again, while we disagree with this Court’s
ruling, we respect this Court’s ruling. The point here is that Uber has taken a win-at-all-costs
approach in prematurely moving for summary judgment, and pushing this for hearing where there
is so much outstanding, relevant discovery.
In addition to the outstanding paper discovery, it is notable that Plaintiffs did not set
corporate depositions in this case as they waited for the completion of paper discovery. Plaintiffs’
counsel, up to the 5/23/24 Hearing, reasonably believed that the MSJ’s (plural) were not being
heard until September 9th. Without this deposition testimony, this is another reason for this Court
to defer ruling on the merits until all relevant discovery is complete. Plaintiffs, for example, have
15
not completed a corporate representative deposition, and should not have to do so until all paper
discovery is provided.
Uber is so intent at winning at all costs that at the 5/23/24 hearing, where there has been a
genuine good-faith belief by the Plaintiffs that the MSJ hearing was proceeding on September 9th,
after this Court decided to have this MSJ heard on June 10th, Plaintiffs moved for an additional
seven days to file a MSJ Response. An extension of time was necessary to file any Response, as
the MSJ Hearing was eighteen days away. Uber opposed this Court giving Plaintiffs any additional
time to file a Response. Uber offered no explanation for how it would be prejudiced with the
Response being filed 7 days later on May 30, 2024. Uber opposed this request even though it knew
of the procedural history of this hearing having been set for September 9, 2024 (it is still set for
that day), and even though Plaintiff’s appellate counsel explained at the 5/23/24 hearing he was
waiting outside a doctor’s office and had been ill over the course of days before. Graciously, this
Court granted the request for seven additional days to 5/30/24.
Fast forward a week later. At the 5/30/24 Case Management Conference, Plaintiffs asked
for one additional day to submit this Response, to 5/31/24. Plaintiffs’ trial and appellate counsel
explained that Plaintiffs’ appellate counsel went to the doctor’s office at the conclusion of the
5/23/24 Hearing, was given medication for his illness, and was sick for an additional 5 days
through 5/28/24, not working in this time. Thus, the Plaintiffs asked for this single additional day.
But in its continuing win at all costs approach, Uber objected to this single day of extension.
Again, Uber did not claim there was any prejudice – as there is none, and Uber refused to agree to
this single day of extension even after being given the details of Plaintiff’s counsel’s recent illness.
What’s more, Uber inaccurately told this Court that the seven-day extension had already passed as
of 5/30/24; seven days from 5/23/24, of course, means the initial, extended deadline was 5/30/24.
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Graciously again, this Court granted this one-day extension of time through 5/31/24 to file a MSJ
Response.
The point of all this is that Uber has made it painstakingly obvious it does not want these
issues decided on the merits. This full discussion shows the degree that Uber has gone to try and
avoid this matter being decided on the merits. It is unfortunate that Uber has plowed ahead in its
desire to have its summary judgment heard, while obstructing the production of highly relevant
discovery. This Court should defer hearing these matters on the merits until discovery is
completed.
IV. The relevant, outstanding discovery that precludes summary judgment.
There are numerous items of discovery that UBER either objected to any only partly
responded to – leaving Plaintiff to assume there are additional responsive documents being
withheld, or that UBER outright objected to and refused to provide. Plaintiffs anticipates and
believes that the withheld and incomplete discovery is relevant and would suffice as evidence of
an agency relationship, partnership or venture. Plaintiffs have moved to compel better responses
thereto, and a hearing regarding the same is set for June 28, 2024 (the earliest Special Set date
available). Nevertheless, UBER has objected to moving the Summary Judgment hearing until
after the discovery issues are resolved and discovery is complete and insisted upon moving forward
with only the discovery UBER chose to provide. It can only be inferred that the discovery which
UBER objected to and refused to provide would have been beneficial to the Plaintiff.
Plaintiff’s Request for Production dated December 5, 2023, and Defendants’ Responses are
attached as Exhibit C.
Plaintiff’s Request for Production dated February 5, 2024, and Defendants’ Responses are
attached as Exhibit D.
17
Plaintiff’s Request for Production dated March 26, 2024, and Defendants’ Responses are
attached as Exhibit E.
The following are the incomplete response which Plaintiffs believes, if complete, would
help to establish employment, agency, partnership or joint venture:
Plaintiff's First Request for Production dated December 5, 2023, deficient responses:
Request #s 27, 28, & 30:
27. A copy of Defendants, UBER TECHNOLOGIES. INC, RASIER-DC, LLC.
RAS1ER-CA. LLC, and RAS1ER (FL), LLC, background check into AARON ABELLA,
including the following: any applicable criminal history, driving record, credit check, and any
other relevant records used during the application process of hiring drivers using Uber's
technology,
RESPONSE: liber objects to this Request to the extent it seeks private and
confidential information protected by various privacy rights. Subject to and without waiving
said objections, Uber will produce the background checks performed by third-party
companies on Mr. Abella prior to the date of the incident, subject to the parties' December
7, 2023 stipulated protective order.
by various privacy rights. Subject to and without waiving said objections, Uber will produce
inspection reports related to Mr. Abella’s vehicle, subject to the parties' December 7, 2023
stipulated protective order.
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30. A copy of AARON ABELLA’s written request, application or similar
documentation with Defendant. UBER TECHNOLOGIES, INC. RASIER-DC. LLC, RASIER-
CA, LLC, and RASIER (FL), LLC. to be a Driver for any entity operated by UBER
TECHNOLOGIES, INC, RASIER-DC. LLC. RASIER-CA. LLC. and RASIER (FL). LLC.
RESPONSE: Uber objects to this Request because it is vague and ambiguous in that
it presumes assumes facts not in evidence and mischaracterizes Uber's relationship with
independent drivers by presuming there was an employment, partnership, agency, or simitar
relationship between Mr. Abella and Uber. Uber specifically denies such a relationship.
Subject to and without waiving such objections and subject to the parties' December
7, 2023 stipulated protective order, Uber will produce the Software License and Online
Services Agreement the Technology Services Agreement (“TSA”) both signed by Mr. Abella
to receive and fulfill requests for transportation services through the Driver App. and all
The above requests relate to issues centering around the background and application
process, along with vehicle inspections. Each of the above requests were objected to and partly
answered, but incomplete. The extent of the background, and requirements by UBER may likely
show the extent of a partnership/agency relationship. They additionally go to the right of control
as would be relevant and probative as to the agency issues. The objections and incomplete
responses must be inferred to have likely shown some more evidence of a partnership/agency
relationship.
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Request # 29
29. The entire Ilie maintained by Defendants. UBER TECHNOLOGIES. INC.
RASIER-DC, LLC, RASIER-CA, LLC, and RASIER (FL), LLC, for Defendant. AARON
ABELLA.
If you claim these documents are privilege, provide a privilege log in accordance with the
rules of procedure.
RESPONSE: Uber objects to the term “file” as vague, ambiguous, and undefined.
Uber does not maintain a “file" on Mr. Abella. Uber objects because the documents
requested are overly broad in time and scope, unduly burdensome, and neither relevant nor
reasonably calculated to lead to the discovery of admissible evidence. Uber objects to this
Request because it seeks documents that are protected by the work-product doctrine,
attorney work-product doctrine, consulting expert privilege and/or the attorney-client
privilege, many of which are categorically privileged such that no privilege log is required.
See Nevin v. Paint Beach County School Board, 958 So. 2d 10113 (Fla. 1st DC A 2007),
Uber further objects to this Request to the extent that it seeks sensitive and/or
confidential proprietary business information, or trade secret information. Uber further
objects to this Request to the extent it seeks private and confidential financial information of
Mr. Abella and Uber which protected by various privacy laws. Moreover, Uber maintains
that such private and confidential financial information is neither relevant nor reasonably
calculated to lead to the discovery of admissible evidence. Plaintiffs further have no basis to
seek financial discovery from Mr. Abella or Uber.
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Subject to and without waiving these objections. Uber will produce the following
documents related to Mr. Abella: Technology Services Agreement with Mr. Abella
(including all addendums to the TSA); Software License and Online Services Agreement and
all other agreements and addenda in Uber's possession consented to by Mr. Abella;
background checks performed by third-party companies on Mr. Abella prior to the date of
the incident; inspection reports related to Mr. Abella's vehicle; documents reflecting Mr.
Abella's status with respect to the Driver App for the 24-hour period prior to the incident;
documents reflecting feedback and ratings for Mr. Abella for 12 months prior to the
incident; documents reflecting the trip SMS log; documents reflecting Mr. Abella's GPS
coordinates from the Trip; documents reflecting Comms Log — SMS for the trip; the Trip
Receipt (redacted to protect a non-party’s private financial information); and a summary of
the number of trips completed by Mr. Abella for 12 months prior to the incident.
This is the request for the entire file of Abella. Again, objected to and partly answered, but
incomplete. In fact, UBER even went as far as to absurdly contend that the term “file” is vague
and ambiguous. Plaintiffs reasonably anticipate that complete “file” would likely have shown a
greater partnership/agency/joint venture relationship. The objection and refusal by Defendants to
provide complete information may only be inferred to be a tool to withhold helpful evidence.
Requests #s 31, 32 & 55:
21
32. All documents reflecting AARON ABELLA’S weekly summary report, including
the following information: how many hours AARON ABELLA was online on the Defendants,
LIBER TECHNOLOGIES, INC, RAS1ER-DC, LLC, RASIER-CA, LLC, and RASIER (FL), LLC
,’s platform, number of trips, fares per hour, acceptance rate, and driver rating for that week. This
request includes all weekly summary reports for the one year prior to the crash that is the subject
of this Complaint.
RESPONSE: Uber objects to the (erm “weekly summary report” as vague, ambiguous,
and undefined, Uber does not maintain “weekly summary reports.” Uber further objects
because the documents requested are overly broad in time and scope, unduly burdensome,
and neither relevant nor reasonably calculated to lead to the discovery of admissible
evidence. Uber further objects to this Request to the extent it seeks private and confidential
financial information of Mr. Abella arid Uber which arc protected by various privacy laws,
and which are neither relevant nor reasonably calculated to lead to the discovery of
admissible evidence. Plaintiffs further have no basis to seek financial discovery from Mr.
Abella or Uber.
Subject to and without waiving said objections, and subject to the parties' December
7, 2023 stipulated protective order, Uber will produce documents reflecting Mr. Abella's
status with respect to the Driver App for the 24-hour period prior to the incident, documents
reflecting feedback and ratings for Mr. Abella for 12 months prior to the incident, and a
summary of the number of trips completed by Mr. Abella for 12 months prior to the incident.
22
31. All documents reflecting AARON ABELLA's earnings from the Defendants,
UBER TECHNOLOGIES. INC. RAS1ER-DC, LLC. RAS1ER-CA, LLC. and RAS1ER (FL), LLC.
including the following information: his weekly payout, number of trips, pickup times, duration
of each trip, distance of each trip, total number of hours online, completed trips, driver
cancellations, applicable acceptance rate, and total payment for each trip, from January 1, 2019 up
through and including the date of the crash giving rise to this action.
RESPONSE: Uber objects because the documents requested are overly broad in time
and scope, unduly burdensome, and neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence. Uber further objects to this Request to the extent it seeks
private and confidential financial information of Mr. Abella and Uber which are protected
by various privacy laws, which are neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence. Plaintiffs further have no basis to seek financial discovery
from Mr. Abella or Uber.
Subject to and without waiving this objection, Uber will produce documents reflecting
Mr. Abella's status with respect to the Driver App for the 24-hour period prior to the
incident; documents reflecting feedback and ratings for Mr. Abella for 12 months prior to
the incident; documents reflecting the trip SMS log; documents reflecting Mr. Abella's GPS
coordinates from the Trip; documents reflecting Comms Log - SMS for the trip; the Trip
Receipt (redacted to protect a non-party's private financial information); and a summary of
the number of trips completed by Mr. Abella for 12 months prior to the incident.
23
55. All documentation showing how much money Defendant. Uber Technologies, Inc.,
retained for itself for any ridesharc trips provided by Defendant, AARON ABELLA, for the three
(3) years preceding the subject crash through the date of the crash.
RESPONSE: Uber objects because the documents requested are overly broad in time
and scope, unduly burdensome, and neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence. This request is also vague and ambiguous, assumes facts
not in evidence, and mischaracterizes the relationship between I ber and Mr. Abella. Uber
further objects to this Request to the extent that it seeks sensitive and/or confidential
proprietary business information, or trade secret information.
Uber further objects to this Request to the extent it seeks private and confidential
financial information of Uber and Mr. Abella which is protected by various privacy laws.
Moreover, fiber maintains that such private and confidential financial information is neither
relevant nor reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs
further have no basis to seek financial discovery from Mr. Abella or fiber. This request thus
amounts to nothing more than an impermissible fishing expedition.
These are requests for earnings for and trip information and documents for various periods
of time prior to the incident. Earnings, breakdowns and summaries of trips may very easily be
helpful in showing an agency relationship
Preview
Filing # 199622950 E-Filed 05/31/2024 04:45:25 PM IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR, PALM BEACH COUNTY, FLORIDA CASE NO. 50-2022-CA-011847-XXXX-MB KHRYSTAL VERGARA AND RICARDO VERGARA GONZALEZ, Plaintiff, vs. UBER TECHNOLOGIES, INC., RASIER-DC, LLC, RASIER (FL), LLC, AND AARON ABELLA, Defendants. PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC., RAISER-DC, LLC, AND RAISER (FL), LLC’S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS’ VICARIOUS LIABILITY CLAIMS COMES NOW, the Plaintiffs, KHRYSTAL VERGARA and RICARDO VERGARA GONZALEZ, by and through undersigned counsel and pursuant to the Florida Rules of Civil Procedure move this Court for an Order denying Defendants’ Motion for Summary Judgment on Plaintiffs’ Vicarious Liability Claims, 1 as it was brought prematurely not in good-faith, and also deny the Motion on the merits, and state as follows: I. Introduction An Uber rider picked up an Uber Ride from Uber’s Driver Partner, Defendant, Aaron Abella. Recklessly, while Mr. Abella was driving, rather than remain focused on the road, he utilized the Uber-designed Application from his mobile device to try and confirm he had picked 1 Plaintiffs utilize the Defendants’ reference to these as “vicarious liability claims,” albeit they are not all vicarious liability claims under Florida law. 1 FILED: PALM BEACH COUNTY, FL, JOSEPH ABRUZZO, CLERK, 05/31/2024 04:45:25 PM up the correct passenger. Mr. Abella was allowed to drive recklessly in this distracted fashion because Uber’s business model allowed, encouraged and even required Mr. Abella to utilize the App while the vehicle was in motion. Distracted, Mr. Abella crashed into the rear of Plaintiff’s vehicle while Plaintiff, Khrystal Vergara, was standing between her vehicle and another parked in front of her, pinning and crushing her between the two vehicles. Ms. Vergara has sustained catastrophic injuries as a result of the accident. The Plaintiff raises several separate and independent theories of liability against the Uber Defendants (collectively referred to as Uber, unless otherwise noted), including vicarious and direct liability claims. Uber moved to dismiss two of the claims against it, which this Court denied. Uber did not move to dismiss any of the four claims it now seeks to dismiss in its Motion for Summary Judgment (MSJ) pending to be heard on June 10, 2024, i.e., Uber recognized each of these claims could only be considered after full discovery and were not pure legal issues: • Count II: Agency • Count IV: Joint venture • Count V: Partnership • Count IX: Respondeat Superior Procedurally, this Court should decline to consider summary judgment when it is not duly noticed for the June 10, 2024, hearing. Uber understood there was a reasonable ambiguity on the date for the hearing, which is still set for September 9, 2024. This Court should also deny summary judgment when it was prematurely filed and set by Uber. Outstanding discovery remains, and this Court has repeatedly noted it would not grant summary judgment to any party when relevant discovery remains and would only decide this case on its merits. That is the case here, and Uber set this matter in bad-faith, obstructing access to the very discovery that would 2 [further] show why summary judgment cannot be granted. Uber’s win-at-all-costs approach in trying to have this case not heard on the merits should be rejected by this Court. On the merits, Uber throws out an array of arguments that it is immune from any potential liability on these four claims as a matter of law. Uber relies on statutory provisions that it claims support its position. None of the provisions are controlling as a matter of law, and Uber’s premature decision to move for summary judgment precludes this Court ruling on the factual matters that remain in discovery. Uber relies on the very little evidence it has provided in discovery. This is misleading and fundamentally unfair – Uber prematurely moved for summary judgment, blocked material summary judgment evidence to try and run out the clock, and now cherry picks the evidence it has turned over. Uber also relies on circuit court orders that it asks this Court to deem persuasive. This is unfortunate. Uber falsely gives this Court there are only orders favorable to its position. In giving this false misimpression, Uber violated the spirit of professionalism and Florida Bar Rule 4-3.3 by not citing orders adverse to its position. But to make this worse, Uber objected in discovery to providing these Orders – only to then cite the Orders it deems favorable to its position. This Court should reject this win-at-all-costs approach. Briefly here at the outset, Uber argues it cannot be liable for the negligence of its “Partner driver.” Uber’s arguments misunderstand both Florida law concerning summary judgment and the material facts and questions the jury will be required to resolve at trial. As the Plaintiffs will demonstrate, the factual issues in this case cannot be resolved by summary judgment, as agency and employment status matters are virtually always a jury question. “[T]he question whether Uber’s drivers are employees or independent contractors is an issue to be decided by a jury, not this Court on summary judgment.” O'Connor v. Uber Techs., Inc., 82 F. Supp. 3d 1133, 1138 (N.D. 3 Cal. 2015); McEvoy v. Union Oil Co., 552 So. 2d 1169, 1170 (Fla. 3d DCA 1989) (“Where there exists any evidence from which a jury could conclude that the acts in question were committed by an agent of the corporation within the scope of his employment, the questions of agency and scope of employment are to be resolved by a jury.”). Further, even if Uber were correct that its partner drivers are legally independent contractors as opposed to traditional employees, that finding by the jury would not resolve three of the four claims here –it would only resolve the respondeat superior claim. As will be demonstrated below, there a multiple issues of material fact precluding this case from being determined via summary judgment as to any of these four claims. II. Summary Judgment Standard and Relevant Procedural Requirements In 2021, Florida amended its summary judgment rule to align with the federal standard. In re Amends. to Fla. R. Civ. Pro. 1.510, 317 So. 3d 72, 73 (Fla. 2021). Under the federal standard, “[o]nce the moving party has presented a properly supported motion for summary judgment, the nonmoving party cannot rely on the existence of a mere ‘scintilla of evidence’ to avoid summary judgment.” Royal Bahamian Ass'n Inc. v. QBE Ins. Corp., 750 F. Supp. 2d 1346, 1354 (S.D. Fla. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986)). The nonmovant’s evidence must be more than “incredible,” “trivial,” “merely colorable,” or “not significantly probative.” In re Amends. to Fla. R. Civ. Pro. 1.510, 309 So. 3d 192, 193 (Fla. 2020) (quoting Bruce J. Berman & Peter D. Webster, Berman's Florida Civil Procedure § 1.510:5 (2020 ed.), and Anderson, 477 U.S. at 249). But to survive a motion for summary judgment, a nonmovant-plaintiff need not “present evidence that compels a single, airtight inference” in his favor— “just evidence that allows a reasonable one.” N. Shore Med. Ctr., Inc. v. Cigna Health & Life Ins. Co., 68 F.4th 1241, 1245 4 (11th Cir. 2023). In other words, a plaintiff opposing summary judgment need not “establish that he [or she] will likely prevail if the case proceeds to trial”—only that it is “merely possible [] that a reasonable jury would find in his favor.” Carbone v. Cable News Network, Inc., 910 F.3d 1345, 1351, 1353 (11th Cir. 2018). 2 Thus, a court considering a motion for summary judgment “must ask [itself] not whether [it] thinks the evidence unmistakably favors one side or the other [,] but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.” Anderson, 477 U.S. at 252. In doing so, the court views “the evidence and all factual inferences therefrom in the light most favorable to the party opposing the motion, and all reasonable doubts about the facts are resolved in favor of the nonmovant.” Abbes., 195 F. App’x at 899. If reasonable minds could differ on the inferences arising from undisputed facts or the import of the evidence, then a court should deny summary judgment. Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992); Anderson, 477 U.S. at 250. The amended rule 1.510 “recognize[s] the fundamental similarity between the summary judgment standard and the directed verdict standard,” both of which “focus on ‘whether the evidence presents a sufficient disagreement to require submission to a jury,’” In re Amends. to Fla. Rule of Civil Proc. 1.510, 317 So. 3d 72, 75 (Fla. 2021) (quoting Anderson, 477 U.S. at 251), “or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 249, 251-52. See also Gracia v. Security First Ins. Co., 347 So. 3d 479, 482 (Fla. 5th DCA 2022) (explaining that summary judgment is only appropriate when “the evidence is such that a reasonable jury could not return a verdict for the nonmoving party.”) (citations omitted). 2 All emphasis is added by the Plaintiffs unless otherwise noted. 5 To determine whether the evidence presents a sufficient disagreement to require submission to a jury or is too one-sided to go to the jury—in other words, to determine whether a genuine dispute of material fact exists — “the correct test . . . is whether ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” In re Amends., 317 So. 3d at 75. In determining whether a reasonable jury could return a verdict for the non-moving party, the court must view the facts and draw reasonable inferences therefrom in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007)). Generally, the court “may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)). “Even if a . . . court believes that the evidence presented by one side is of doubtful veracity, it is not proper to grant summary judgment on the basis of credibility choices.” Feliciano v. City of Miami Beach, 707 F.3d 1244, 1252 (11th Cir. 2013) (citation and internal quotation marks omitted). A non-movant’s “testimony cannot be discounted on summary judgment unless it is blatantly contradicted by the record, blatantly inconsistent, or incredible as a matter of law, meaning that it relates to facts that could not have possibly been observed or events that are contrary to the laws of nature.” Id. at 1253. But the mere existence of any piece of “incredible” or “trivial” evidence that raises only the “slightest doubt” is not enough to defeat summary judgment. Id. at 76. In other words, “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Id. at 75-76 (quoting Scott, 550 U.S. at 380). Stated conversely, if “two parties’ stories conflict, neither of which is blatantly contradicted by indisputable evidence, a [trial] court may not make credibility determinations in favor of one party over the other.” Simpson v. Guess, No. 3:18- CV-547-J-39PDB, 2020 WL 7385379, at *5 (M.D. Fla. Dec. 16, 2020). 6 Recently, the Fifth DCA explained that the trial court incorrectly interpreted the amended summary judgment standard “as allowing it to weigh and judge the credibility of the evidence.” Gracia, 347 So. 3d at 482. As the Fifth DCA observed, id.: While no longer an absolute prohibition—depending on the nature of the evidence—the general rule remains intact: credibility determinations and weighing the evidence “are jury functions, not those of a judge,” when ruling on a motion for summary judgment. Anderson, 477 U.S. at 255, 106 S.Ct. 2505; see also A.L. ex rel. D.L. v. Walt Disney Parks & Resorts US, Inc., 900 F.3d 1270, 1289 (11th Cir. 2018) (noting that under federal summary judgment rule, “[t]he court does not weigh conflicting evidence or determine the credibility of witnesses.”). The Fifth DCA noted that the exception to this general principle allowing trial judges to weigh and judge the credibility of the evidence is only where “the record evidence blatantly contradicts a litigant's version of the facts will a court be allowed to weigh conflicting evidence or determine the credibility of a witness.” Gracia, 347 So. 3d at 482 n.1. Earlier in May 2024, the Second DCA in a detailed Opinion explained the trial court had erred in granting summary judgment because it reasoned the parties’ competing affidavits resulted in a “tie.” Lassiter v. Citizens Prop., Ins. Co., Case No. 2D2022-2609, 2024 WL 2744676, at **1, 3, 5 (Fla. 2d DCA May 29, 2024). The Second DCA reminded trial judges they are not allowed to weigh and judge the credibility of the evidence. Id. at *4: “It is improper to consider either the weight of the conflicting evidence or the credibility of witnesses” in ruling on a motion for summary judgment. Bernhardt v. Halikoytakis, 95 So. 3d 1006, 1008-09 (Fla. 2d DCA 2012) (citing Juno Indus., Inc. v. Heery Int'l, 646 So. 2d 818, 822 (Fla. 5th DCA 1994)). This remains the general rule even under the new summary judgment standard that is applicable to this case. See, e.g., Gracia v. Sec. First Ins., 347 So. 3d 479, 482 (Fla. 5th DCA 2022) (explaining that even under the new summary judgment standard, “credibility determinations and weighing the evidence 'are jury functions, not those of a judge' “ (quoting Anderson, 477 U.S. at 255)); see also Navarro v. Borges, No. 3D23-0175, 2024 WL 1422996, at *2 (Fla. 3d DCA Apr. 3, 2024); Daniel's Tree Serv., Inc. v. Nat'l Core Servs. Corp., 379 So. 3d 524, 530-31 (Fla. 7 4th DCA 2023).6 “[A] motion for summary judgment is not a trial by affidavit or deposition.” Clampitt v. Wick, 320 So. 3d 826, 833 (Fla. 2d DCA 2021) (quoting Gorrin v. Poker Run Acquis., Inc., 237 So. 3d 1149, 1153 (Fla. 3d DCA 2018). “Summary judgment is not intended to weigh and resolve genuine [disputes as to any] material fact, but only [to] identify whether such issues exist.” Id. (quoting Gorrin, 237 So. 3d at 1153); see also Navarro, 2024 WL 1422996, at *2 (“[C]ompeting material evidentiary showings are incapable of resolution on summary judgment.”). 3 Furthermore, it remains the case that summary judgment is usually not appropriate or feasible in negligence cases because they present fact-specific claims in which “the standard of the reasonable man must be applied to conflicting testimony.” Peuser v. Wal-Mart Stores E., LP, No. 6:19-CV-2098-JA-GJK, 2021 WL 1752063, at *2 (M.D. Fla. May 4, 2021) (quoting Croley v. Matson Navigation Co., 434 F.2d 73, 75 (5th Cir. 1970); and citing Gomez Cruz v. Wal-Mart Stores East, LP, 268 So. 3d 796, 800 (Fla. 4th DCA 2019) (“[M]otions for summary judgment should be cautiously granted in negligence actions.”)). Indeed, where conflicting testimony “presents a classic swearing match,” that “is the stuff of which jury trials are made.” Feliciano, 707 F.3d at 1253. Additionally, there are procedural requirements for summary judgment proceedings. “Summary judgment is not a dress rehearsal or practice run; it ‘is the put up or shut up moment in a lawsuit, when a party must show what evidence, it has that would convince a trier of fact to accept its version of the events.’” Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005). A party moving for summary judgment is limited to the grounds stated in its motion because of the due process notice requirements of Rule 1.510. E.g., City of Cooper City v. Sunshine 3 The Second DCA in the Footnote explained the lone scenario where a trial court can weigh the credibility of the evidence: when the record evidence blatantly contradicts a party’s version of the facts. 2024 WL 2744676, at *4 n.6. 8 Wireless Co., 654 So. 2d 283, 284 (Fla. 4th DCA 1995). The party seeking summary judgment goes all-in in its motion because it can’t make new arguments in a reply. SEC v. Keener, 2020 WL 4736205, at *6 n.4 (S.D. Fla. Aug. 14, 2020) (“It is improper to raise an argument for the first time in a reply.”); FTC v. Nationwide Connections, Inc., 2007 WL 4482607, *2 (S.D. Fla. Dec. 19, 2007); Robinson v. Intercorp, 512 F. Supp. 2d 1307, 1316 (N.D. Ga. 2007) (“Arguments raised for the first time in a reply brief are not properly before the court.”); Fisher v. Ciba Specialty Chem. Corp., 238 F.R.D. 273, 317 n.89 (S.D. Ala.2006) (“[T]his argument is not properly raised because [the movants] submitted it for the first time in their reply brief.”); Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338, 1342 (11th Cir. 2005); Flamenbaum v. Orient Lines, Inc., 2004 WL 1773207, at *14 (S.D. Fla. July 20, 2004). And Florida’s summary judgment rule does not authorize a party’s right to file any Reply, let alone introduce new Facts or make new arguments for the first time in a Reply. Trial courts are authorized to “enforc[e] the plain language of a rule of civil procedure promulgated to place practitioners and courts on notice of what is required” in Rule 1.510. State Farm Mut. Auto. Ins. Co. v. Advanced X-Ray Analysis, Inc., 368 So. 3d 1049 (Fla. 3d DCA 2023) (recognizing a trial court’s discretion to not consider the non-moving party’s untimely response that was not filed at least 20 days before the initially-set summary judgment hearing; the fact the hearing was continued did not allow the non-moving party to violate the rule, and the non-moving party also failed to meet the deadline for the continued hearing). 4 Especially here where Uber prematurely moved for summary judgment and attempted to block a merits-based ruling from this Court, it would be particularly inappropriate, and a violation of due process, for Uber to submit an unauthorized 4 Here, this Court exercised its discretion to allow the Plaintiffs to file their MSJ Response by May 31, 2024. We discuss that issue below, as Uber’s position twice objecting to this reflects its win- at-all-costs mentality designed to prevent this Court from reaching a merits-based decision. 9 Reply for a hearing date it should never have pushed to be heard at this premature stage of discovery. III. This Court for Procedural Reasons Should Not Consider the Motion for Summary Judgment at this time. 1. Summary Judgment Cannot Be Considered at the June 10, 2024, Hearing When The Hearing Is Not Duly Noticed. It is surprising that Uber so strenuously moved to have this hearing heard at the June 10, 2024, hearing date –except that it reflects Uber’s win-at-all-costs approach to try and run out the clock and avoid this Court deciding this case on the merits. For one, as explained below, it was premature to have set the MSJ for hearing at all. But second, Uber knew there was a genuine ambiguity regarding the procedural setting of the hearing date. Rather than take the professional, fair route and agree to have the hearing heard at the date the Plaintiff’s counsel reasonably understood it had been moved to, in September 2024, which the parties collectively discussed, Uber plowed ahead. While this Court agreed to have the hearing heard on June 10th, Uber did not move to correct the deficiency in the setting of the hearing. The same procedural issue remains – this hearing is not duly noticed for June 10, 2024. Plaintiffs would contend it would be reversible error to proceed to the hearing on June 10th under these circumstances. In short, this Court cannot consider this MSJ at the June 10, 2024, Hearing when the Matter has not been duly noticed for that date. Uber filed this MSJ on January 12, 2024. Uber filed the MSJ even though it had objected, in bad faith, to a plethora of the discovery requests in Plaintiff’s First Request for Production. Over Plaintiff’s objection, on 2/6/24, this Court set the MSJ for the June 10th date. DE 168. This was more than four months out, and this Court understandably may have reasoned that the discovery would be provided in time for the Plaintiffs to file a meaningful MSJ Response for a hearing set four months later. 10 But with the hearing date set, Uber dug into further discovery obstruction. The parties met and conferred over multiple hours. Because of the limited hearing time because of this Court’s busy docket, Plaintiff’s Motion to Compel hearing is not set until June 28, 2024 – 18 days after the MSJ hearing. Inexplicably, Uber has not voluntarily provided the little additional discovery it agreed to turn over in the Meet-and-Confer meetings. Nor has Uber agreed to voluntarily turn over the documents Plaintiffs requested last week in a corporate B6 deposition. Uber then moved for summary judgment on additional claims, direct negligence and product liability claims, also prematurely. On March 15, 2024, this Court re-set the vicarious liability MSJ for September 9, 2024. DE 215. Uber would later argue to this Court, falsely, that this was done administratively by this Court’s Judicial Assistant. This was an Order executed by this Court. This 3/15/24 Order has never been amended or vacated. It remains as of this filing. On March 20, 2024, this Court issued what is titled an Amended Order, setting Uber’s direct liability MSJ for September 9, 2024. DE 221. This Court’s 3/20/24 Order did not state it was amending the 3/15/24 Order. This Court’s 3/20/24 Order did not state it was removing the vicarious liability claims from the September 9th hearing date. Plaintiff’s counsel, at this time of this Court’s 3/20/24 Order, all believed that both of Uber’s MSJ’s had now been set for September 9th. What’s more, Plaintiff’s counsel discussed this issue with Uber’s counsel in one of the Meet-and-Confers, where Plaintiff’s counsel noted the parties now had some additional time to address the pending discovery disputes in light of the MSJ’s (plural) not being heard until September 9th. Uber’s counsel did not say it disagreed with this procedural issue–at that time. There was then a Case Management Conference and it was discussed there that the MSJ’s (plural) were not being heard until September 9th. Uber’s counsel did not say it disagreed with this procedural issue – at that time. 11 It was not until 2 months later, in May 2024 that Uber took a new position: its new position was that this Court’s 3/20/24 Order had silently reinstated this Court’s earlier 2/6/24 Order setting the vicarious liability MSJ hearing date for June 10th. Plaintiff’s counsel explained there was a genuine ambiguity, explained the parties had collectively discussed this in prior meetings, but Uber refused to budge. A hearing was held on this matter before the Court on May 23, 2024. Uber insisted the June 10th hearing should proceed, even though, again, the 3/15/24 Order resetting the vicarious liability MSJ hearing date has never been amended or vacated, and even though the 3/20/24 Order makes no mention of the vicarious liability MSJ. While this Court appeared to first correctly reason that it would make practical sense to have both MSJ’s heard together at the September 9th date, this Court then agreed with Uber to have this vicarious liability MSJ hearing be heard on June 10th. While we respectfully disagree with this Court’s ruling, we respect this Court’s ruling. But the procedural reality is that the vicarious liability claims are set for hearing on September 9th, not June 10th. The 3/15/24 Order remains in place, setting the vicarious liability MSJ claims for September 9, 2024. It would be procedurally in error for this Court to consider the vicarious liability MSJ on its merits on June 10th, without a duly noticed hearing. 2. Summary Judgment Cannot Be Granted When There is Outstanding Discovery, and Uber Inexplicably Pushed to Have This Hearing Heard When There is a Pending Motion to Compel, and Depositions Have Not Been Taken. Setting aside this procedural issue that there is not a duly noticed hearing set for June 10th, this Court must deny summary judgment because it was prematurely filed by Uber, and then prematurely set for hearing for Uber, and then prematurely pushed for this hearing date by Uber. Its position to proceed at this time is not in good faith. There is a mountain of relevant discovery that Uber has refused to turn over, and which is set for hearing before this Court 18 days after the 12 MSJ Hearing. At the same time Uber pushed this hearing date forward, even when this Court floated it being heard in September, Uber has refused to turn over the relevant discovery. This Court has noted at multiple hearings that while setting this hearing date, it would not grant summary judgment if there was outstanding discovery that is relevant. This Court has explained it is a merit-based Court and would decide this matter on its merits. This Court repeated this statement at the 5/23/24 hearing, and again at the May 30, 2024, Case Management Conference. That is exactly the scenario here. Under Florida’s revised summary judgment rule, the Fourth DCA has consistently cautioned trial judges from granting summary judgment when there is pending discovery. For example, recently in Babani v. Broward Auto., Inc., 348 So. 3d 608, 609 (Fla. 4th DCA 2022), the Court reversed a summary judgment, stating this: Where the information contained in outstanding discovery could create genuine issues of material fact, summary judgment would not be proper.” Osorto v. Deutsche Bank Nat'l Tr. Co., 88 So. 3d 261, 263 (Fla. 4th DCA 2012). A trial court should not consider a motion for summary judgment until discovery is concluded. Id. at 262. “An order granting summary judgment while there is an outstanding request for production of documents is premature and the appellate court should reverse and remand for discovery to be completed.” Id. at 262–63 (citing Henderson v. Reyes, 702 So. 2d 616, 616 (Fla. 3d DCA 1997). Then, in another case reversing summary judgment because discovery was pending, the Fourth DCA specifically explained this reasoning for our revised summary judgment rule. See Patient Depot, LLC v. Acadia Enters., Inc., 360 So. 3d 399, 408, 409-10 (Fla. 4th DCA 2023): In adopting the new summary judgment rule, our supreme court noted the importance of the parties having adequate time for discovery, stating “it is equally important to emphasize that, before being subjected to summary judgment because of the absence of evidence, the nonmovant must have been afforded ‘adequate time for discovery.’ ” In re Amends. 1.510 II, 317 So. 3d at 77 (quoting Celotex, 477 U.S. at 322, 106 S.Ct. 2548); see also In re Amends. 1.510 I, 309 So. 3d at 193 (stating “provided there has been an ‘adequate time for discovery,’ the Supreme Court has held that 13 summary judgment should be entered ‘against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial’ ” (quoting Celotex, 477 U.S. at 322, 106 S.Ct. 2548)). We have followed that admonition. 5 The amended Florida Rule of Civil Procedure 1.510(d), which is modeled after Federal Rule of Civil Procedure 56(d), provides, (d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order. Consistent with the Florida state cases since this amended rule took effect, the Eleventh Circuit, to which Florida courts look in interpreting the new Rule 1.510, “has cautioned that courts ‘should not’ grant summary judgment ‘until the party opposing the motion has had an adequate opportunity for discovery.’” Nafta Traders, Inc. v. Corkcicle, LLC, No. 619CV1672ORL78GJK, 2020 WL 7421941, at *2 (M.D. Fla. July 9, 2020) (quoting Snook v. Tr. Co. of Ga. Bank of 5 The same was true for the long-standing application of the prior version of Rule 1.510. E.g., Fleet Finance v. Carey, 707 So. 2d 949. 950 (4th DCA 1998): This court has held on many occasions that “a court should not enter summary judgment when the opposing party has not completed discovery.” Lubarsky v. Sweden House Properties of Boca Raton, Inc., 673 So.2d 975, 977 (Fla. 4th DCA 1996) (quoting Brandauer v. Publix Super Markets, Inc., 657 So.2d 932, 933 (1995)). See also Sica v. Sam Caliendo Design, Inc., 623 So.2d 859 (Fla. 4th DCA 1993); Moore v. Freeman, 396 So.2d 276 (Fla. 3d DCA 1981) (trial court's granting of summary judgment was premature where the opposing party, through no fault of his own, had not completed discovery). Further, it is reversible error to grant summary judgment where depositions are still pending. See Sica.”). See also Kimball vs. Publix Super Markets, Inc., 901 So. 2d 293 (Fla. 2d DCA 2005) (summary judgment should not be entered where there is relevant discovery pending); Abbate vs. Publix Super Markets, Inc., 632 So. 2d 1141 (Fla. 4th DCA 1994). 14 Savannah, 859 F.2d 865, 870 (11th Cir. 1988)). “The nonmovant must alert the court to any outstanding discovery, but summary judgment is generally found to be premature when the party opposing the motion has been unable to obtain responses to its discovery requests.” Nafta Traders, 2020 WL 7421941, at *2 (citing Cowan v. J.C. Penney Co., 790 F.2d 1529, 1530–32 (11th Cir. 1986) (per curiam)). This is exactly the circumstance in this case. Plaintiff’s trial counsel has signed a Declaration. See Exhibit P. To be clear, this MSJ Response shows that if this Court considers the MSJ on its merits, this Court should deny it on all grounds. But because Uber has obstructed discovery, and prematurely set this matter for hearing, Plaintiffs cannot present all facts essential to further justify their opposition to the MSJ. We note Plaintiff’s counsel has met and conferred with Uber’s counsel on the discovery issues on multiple occasions. Uber has refused to budge. This is even though, as stated above, as of this filing, there is no duly-noticed summary judgment hearing set for June 10, 2024, and the Motion to Compel hearing is set for 18 days later on June 28, 2024. This Court has informed the parties that the June 10, 2024, hearing will proceed; again, while we disagree with this Court’s ruling, we respect this Court’s ruling. The point here is that Uber has taken a win-at-all-costs approach in prematurely moving for summary judgment, and pushing this for hearing where there is so much outstanding, relevant discovery. In addition to the outstanding paper discovery, it is notable that Plaintiffs did not set corporate depositions in this case as they waited for the completion of paper discovery. Plaintiffs’ counsel, up to the 5/23/24 Hearing, reasonably believed that the MSJ’s (plural) were not being heard until September 9th. Without this deposition testimony, this is another reason for this Court to defer ruling on the merits until all relevant discovery is complete. Plaintiffs, for example, have 15 not completed a corporate representative deposition, and should not have to do so until all paper discovery is provided. Uber is so intent at winning at all costs that at the 5/23/24 hearing, where there has been a genuine good-faith belief by the Plaintiffs that the MSJ hearing was proceeding on September 9th, after this Court decided to have this MSJ heard on June 10th, Plaintiffs moved for an additional seven days to file a MSJ Response. An extension of time was necessary to file any Response, as the MSJ Hearing was eighteen days away. Uber opposed this Court giving Plaintiffs any additional time to file a Response. Uber offered no explanation for how it would be prejudiced with the Response being filed 7 days later on May 30, 2024. Uber opposed this request even though it knew of the procedural history of this hearing having been set for September 9, 2024 (it is still set for that day), and even though Plaintiff’s appellate counsel explained at the 5/23/24 hearing he was waiting outside a doctor’s office and had been ill over the course of days before. Graciously, this Court granted the request for seven additional days to 5/30/24. Fast forward a week later. At the 5/30/24 Case Management Conference, Plaintiffs asked for one additional day to submit this Response, to 5/31/24. Plaintiffs’ trial and appellate counsel explained that Plaintiffs’ appellate counsel went to the doctor’s office at the conclusion of the 5/23/24 Hearing, was given medication for his illness, and was sick for an additional 5 days through 5/28/24, not working in this time. Thus, the Plaintiffs asked for this single additional day. But in its continuing win at all costs approach, Uber objected to this single day of extension. Again, Uber did not claim there was any prejudice – as there is none, and Uber refused to agree to this single day of extension even after being given the details of Plaintiff’s counsel’s recent illness. What’s more, Uber inaccurately told this Court that the seven-day extension had already passed as of 5/30/24; seven days from 5/23/24, of course, means the initial, extended deadline was 5/30/24. 16 Graciously again, this Court granted this one-day extension of time through 5/31/24 to file a MSJ Response. The point of all this is that Uber has made it painstakingly obvious it does not want these issues decided on the merits. This full discussion shows the degree that Uber has gone to try and avoid this matter being decided on the merits. It is unfortunate that Uber has plowed ahead in its desire to have its summary judgment heard, while obstructing the production of highly relevant discovery. This Court should defer hearing these matters on the merits until discovery is completed. IV. The relevant, outstanding discovery that precludes summary judgment. There are numerous items of discovery that UBER either objected to any only partly responded to – leaving Plaintiff to assume there are additional responsive documents being withheld, or that UBER outright objected to and refused to provide. Plaintiffs anticipates and believes that the withheld and incomplete discovery is relevant and would suffice as evidence of an agency relationship, partnership or venture. Plaintiffs have moved to compel better responses thereto, and a hearing regarding the same is set for June 28, 2024 (the earliest Special Set date available). Nevertheless, UBER has objected to moving the Summary Judgment hearing until after the discovery issues are resolved and discovery is complete and insisted upon moving forward with only the discovery UBER chose to provide. It can only be inferred that the discovery which UBER objected to and refused to provide would have been beneficial to the Plaintiff. Plaintiff’s Request for Production dated December 5, 2023, and Defendants’ Responses are attached as Exhibit C. Plaintiff’s Request for Production dated February 5, 2024, and Defendants’ Responses are attached as Exhibit D. 17 Plaintiff’s Request for Production dated March 26, 2024, and Defendants’ Responses are attached as Exhibit E. The following are the incomplete response which Plaintiffs believes, if complete, would help to establish employment, agency, partnership or joint venture: Plaintiff's First Request for Production dated December 5, 2023, deficient responses: Request #s 27, 28, & 30: 27. A copy of Defendants, UBER TECHNOLOGIES. INC, RASIER-DC, LLC. RAS1ER-CA. LLC, and RAS1ER (FL), LLC, background check into AARON ABELLA, including the following: any applicable criminal history, driving record, credit check, and any other relevant records used during the application process of hiring drivers using Uber's technology, RESPONSE: liber objects to this Request to the extent it seeks private and confidential information protected by various privacy rights. Subject to and without waiving said objections, Uber will produce the background checks performed by third-party companies on Mr. Abella prior to the date of the incident, subject to the parties' December 7, 2023 stipulated protective order. by various privacy rights. Subject to and without waiving said objections, Uber will produce inspection reports related to Mr. Abella’s vehicle, subject to the parties' December 7, 2023 stipulated protective order. 18 30. A copy of AARON ABELLA’s written request, application or similar documentation with Defendant. UBER TECHNOLOGIES, INC. RASIER-DC. LLC, RASIER- CA, LLC, and RASIER (FL), LLC. to be a Driver for any entity operated by UBER TECHNOLOGIES, INC, RASIER-DC. LLC. RASIER-CA. LLC. and RASIER (FL). LLC. RESPONSE: Uber objects to this Request because it is vague and ambiguous in that it presumes assumes facts not in evidence and mischaracterizes Uber's relationship with independent drivers by presuming there was an employment, partnership, agency, or simitar relationship between Mr. Abella and Uber. Uber specifically denies such a relationship. Subject to and without waiving such objections and subject to the parties' December 7, 2023 stipulated protective order, Uber will produce the Software License and Online Services Agreement the Technology Services Agreement (“TSA”) both signed by Mr. Abella to receive and fulfill requests for transportation services through the Driver App. and all The above requests relate to issues centering around the background and application process, along with vehicle inspections. Each of the above requests were objected to and partly answered, but incomplete. The extent of the background, and requirements by UBER may likely show the extent of a partnership/agency relationship. They additionally go to the right of control as would be relevant and probative as to the agency issues. The objections and incomplete responses must be inferred to have likely shown some more evidence of a partnership/agency relationship. 19 Request # 29 29. The entire Ilie maintained by Defendants. UBER TECHNOLOGIES. INC. RASIER-DC, LLC, RASIER-CA, LLC, and RASIER (FL), LLC, for Defendant. AARON ABELLA. If you claim these documents are privilege, provide a privilege log in accordance with the rules of procedure. RESPONSE: Uber objects to the term “file” as vague, ambiguous, and undefined. Uber does not maintain a “file" on Mr. Abella. Uber objects because the documents requested are overly broad in time and scope, unduly burdensome, and neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Uber objects to this Request because it seeks documents that are protected by the work-product doctrine, attorney work-product doctrine, consulting expert privilege and/or the attorney-client privilege, many of which are categorically privileged such that no privilege log is required. See Nevin v. Paint Beach County School Board, 958 So. 2d 10113 (Fla. 1st DC A 2007), Uber further objects to this Request to the extent that it seeks sensitive and/or confidential proprietary business information, or trade secret information. Uber further objects to this Request to the extent it seeks private and confidential financial information of Mr. Abella and Uber which protected by various privacy laws. Moreover, Uber maintains that such private and confidential financial information is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs further have no basis to seek financial discovery from Mr. Abella or Uber. 20 Subject to and without waiving these objections. Uber will produce the following documents related to Mr. Abella: Technology Services Agreement with Mr. Abella (including all addendums to the TSA); Software License and Online Services Agreement and all other agreements and addenda in Uber's possession consented to by Mr. Abella; background checks performed by third-party companies on Mr. Abella prior to the date of the incident; inspection reports related to Mr. Abella's vehicle; documents reflecting Mr. Abella's status with respect to the Driver App for the 24-hour period prior to the incident; documents reflecting feedback and ratings for Mr. Abella for 12 months prior to the incident; documents reflecting the trip SMS log; documents reflecting Mr. Abella's GPS coordinates from the Trip; documents reflecting Comms Log — SMS for the trip; the Trip Receipt (redacted to protect a non-party’s private financial information); and a summary of the number of trips completed by Mr. Abella for 12 months prior to the incident. This is the request for the entire file of Abella. Again, objected to and partly answered, but incomplete. In fact, UBER even went as far as to absurdly contend that the term “file” is vague and ambiguous. Plaintiffs reasonably anticipate that complete “file” would likely have shown a greater partnership/agency/joint venture relationship. The objection and refusal by Defendants to provide complete information may only be inferred to be a tool to withhold helpful evidence. Requests #s 31, 32 & 55: 21 32. All documents reflecting AARON ABELLA’S weekly summary report, including the following information: how many hours AARON ABELLA was online on the Defendants, LIBER TECHNOLOGIES, INC, RAS1ER-DC, LLC, RASIER-CA, LLC, and RASIER (FL), LLC ,’s platform, number of trips, fares per hour, acceptance rate, and driver rating for that week. This request includes all weekly summary reports for the one year prior to the crash that is the subject of this Complaint. RESPONSE: Uber objects to the (erm “weekly summary report” as vague, ambiguous, and undefined, Uber does not maintain “weekly summary reports.” Uber further objects because the documents requested are overly broad in time and scope, unduly burdensome, and neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Uber further objects to this Request to the extent it seeks private and confidential financial information of Mr. Abella arid Uber which arc protected by various privacy laws, and which are neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs further have no basis to seek financial discovery from Mr. Abella or Uber. Subject to and without waiving said objections, and subject to the parties' December 7, 2023 stipulated protective order, Uber will produce documents reflecting Mr. Abella's status with respect to the Driver App for the 24-hour period prior to the incident, documents reflecting feedback and ratings for Mr. Abella for 12 months prior to the incident, and a summary of the number of trips completed by Mr. Abella for 12 months prior to the incident. 22 31. All documents reflecting AARON ABELLA's earnings from the Defendants, UBER TECHNOLOGIES. INC. RAS1ER-DC, LLC. RAS1ER-CA, LLC. and RAS1ER (FL), LLC. including the following information: his weekly payout, number of trips, pickup times, duration of each trip, distance of each trip, total number of hours online, completed trips, driver cancellations, applicable acceptance rate, and total payment for each trip, from January 1, 2019 up through and including the date of the crash giving rise to this action. RESPONSE: Uber objects because the documents requested are overly broad in time and scope, unduly burdensome, and neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Uber further objects to this Request to the extent it seeks private and confidential financial information of Mr. Abella and Uber which are protected by various privacy laws, which are neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs further have no basis to seek financial discovery from Mr. Abella or Uber. Subject to and without waiving this objection, Uber will produce documents reflecting Mr. Abella's status with respect to the Driver App for the 24-hour period prior to the incident; documents reflecting feedback and ratings for Mr. Abella for 12 months prior to the incident; documents reflecting the trip SMS log; documents reflecting Mr. Abella's GPS coordinates from the Trip; documents reflecting Comms Log - SMS for the trip; the Trip Receipt (redacted to protect a non-party's private financial information); and a summary of the number of trips completed by Mr. Abella for 12 months prior to the incident. 23 55. All documentation showing how much money Defendant. Uber Technologies, Inc., retained for itself for any ridesharc trips provided by Defendant, AARON ABELLA, for the three (3) years preceding the subject crash through the date of the crash. RESPONSE: Uber objects because the documents requested are overly broad in time and scope, unduly burdensome, and neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. This request is also vague and ambiguous, assumes facts not in evidence, and mischaracterizes the relationship between I ber and Mr. Abella. Uber further objects to this Request to the extent that it seeks sensitive and/or confidential proprietary business information, or trade secret information. Uber further objects to this Request to the extent it seeks private and confidential financial information of Uber and Mr. Abella which is protected by various privacy laws. Moreover, fiber maintains that such private and confidential financial information is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs further have no basis to seek financial discovery from Mr. Abella or fiber. This request thus amounts to nothing more than an impermissible fishing expedition. These are requests for earnings for and trip information and documents for various periods of time prior to the incident. Earnings, breakdowns and summaries of trips may very easily be helpful in showing an agency relationship