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IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
CIVIL DIVISION
Case No: 15-CA-11630
DR. CHRISTINA PAYLAN Division: E
Plaintiff,
v.
TIMOTHY
FITZGERALD, ESQ.,
an individual, and
FARMER &
FITZGERALD, PA, a
Florida Corporation,
Defendants.
/
DEFENDANTS’ MOTION FOR SANCTIONS FOR FAILURE TO COMPLY
WITH COURT ORDER
COME NOW Defendants, Timothy Fitzgerald, Esq. & Farmer and Fitzgerald,
P.A., by and through its undersigned counsel, and pursuant to the Florida Rule of Civil
Procedure 1.380(b), hereby files this Motion for Sanctions for Failure to comply with this
Court’s order, and in support thereof states:
1. On May 30, 2017, this Court issued an order in response to a motion to compel,
and required plaintiff to answer interrogatories. The order was issued on May 30, 2017,
granted the motion to compel, and required plaintiff to answer interrogatories.
Among the interrogatories plaintiff was ordered to answer were the following:
1. # 2: All names she has used in her lifetime within 5 days.
2. # 3: All fees paid to any lawyer who represented plaintiff in
Case Numbers 11-CF-10038, 11-CF-015977, 11-CF-008930, 14-
CF- 005764 and DOAH Case Number 11-5891PL, and DOH Case
No. 2011-10006, within 25 days.
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3. # 4: All actions and court cases where she has been a party,
within 30 days.
4. #5: Whether plaintiff was willing to resolve case number 11-
CF-10038 and 11-CF-015977 by entering and completing the
Office of the State Attorney’s Pretrial Intervention Program within
10 days.
5. #9: Describe how schedule II controlled substances were
ordered inventoried and secured within 25 days.
6. #10: Provide a list of all persons that had access to Cosmetic
Surgery of Tampa Bay, Inc.’s narcotics box within 25 days.
7. #26: Itemize and show how you calculate any and all
economic damages and describe any and all non-economic damages
within 10 days.
See Exhibit A.
2. To date, plaintiff has disregarded this Court’s order.
3. The court order ignored by the plaintiff goes to the central issues of the case:
A. Background of Plaintiff
The court order compelling plaintiff to answer interrogatories #2 and #4 go to the
heart of the case and plaintiff’s very identity plaintiff refuses to provide the names she
has used in her lifetime and the court cases she has been involved in. These questions go
directly to matters including whether plaintiff is a vexatious litigant, her credibility,
potential background issues counsel is entitled to investigate, etc. Plaintiff disobeys a
court order to hinder the investigation of who she is and her background, issues that are
particularly important in this case.
B. Count Two of the Case
Plaintiff has failed to respond to this Court’s order to answer interrogatory
number 5, namely, whether she was willing to resolve Case Numbers 11-CF-10038 and
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11-CF-015977 by entering the Pretrial Intervention Program. This question goes directly
to plaintiff’s claim in Count Two of the case.
C. Fees Paid to Other Lawyers
Plaintiff has alleged that excessive fees were charged by defendants (the claim in
Count Seven) and that counsel neglected a duty to represent her and she was forced to
hire other counsel (the claim in Count Eight), and plaintiff’s failure to respond to this
Court’s order bears directly on the case.
D. Economic Damages
Plaintiff has alleged economic damages throughout the claims in her complaint.
Plaintiff’s failure to comply with the court order has prevented counsel from being able to
investigate the claimed damages, and to hire experts to analyze and potentially dispute
the claimed damages.
F. Case Investigation
Plaintiff’s failure to comply with the court order and to answer questions 9 and 10
has prevented counsel from being able to fully investigate the case.
The Governing Rule
4. Fla. Rule of Civil Procedure 1.850(b)(2) states:
(2) If a party or an officer, director, or managing agent of a party or a
person designated under Rule 1.310(b)(6) or 1.320(a) to testify on behalf
of a party fails to obey an order to provide or permit discovery,
including an order made under subdivision (a) of this rule or rule 1.360,
the court in which the action is pending may make any of the following
orders:
(A) An order that the matters regarding which the questions were asked
or any other designated facts shall be taken to be established for the
purposes of the action in accordance with the claim of the party
obtaining the order.
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(B) An order refusing to allow the disobedient party to support or
oppose designated claims or defenses, or prohibiting that party from
introducing designated matters in evidence.
(C) An order striking out pleadings or parts of them or staying further
proceedings until the order is obeyed, or dismissing the action or
proceeding or any part of it, or rendering a judgment by default against
the disobedient party.
(D) Instead of any of the foregoing orders or in addition to them, an
order treating as a contempt of court the failure to obey any orders
except an order to submit to an examination made pursuant to rule
1.360(a)(1)(B) or subdivision (a)(2) of this rule.
(E) When a party has failed to comply with an order under rule
1.360(a)(1)(B) requiring that party to produce another for examination,
the orders listed in paragraphs (A), (B), and (C) of this subdivision,
unless the party failing to comply shows the inability to produce the
person for examination.
Instead of any of the foregoing orders or in addition to them, the court
shall require the party failing to obey the order to pay the reasonable
expenses caused by the failure, which may include attorneys' fees, unless
the court finds that the failure was justified or that other circumstances
make an award of expenses unjust.
Requested Sanctions
Defendants request that the Court sanction plaintiff to the fullest extent possible.
The defendants request the Court to dismiss the pending action with prejudice for failure
to comply with the Court’s order. Plaintiff’s blatant disrespect for the court is evidence in
recurring and baseless motions for judicial disqualification. Plaintiff’s failure to obey a
court order has hindered counsel’s ability to prepare the case. Plaintiff refuses to provide
basic information required in litigation like the names she has used, cases she was
involved with, and other information which bear directly on issues in the claims she has
brought. The refusal to comply with the court order is nothing more than an example of
plaintiff’s unmeritorious and abusive litigation tactics, which have unnecessarily
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protracted the timely progress of the case and unreasonably demanded judicial and
counsel’s time and resources.
In summary, plaintiff refuses to comply with a court order to state only:
1. her names,
2. her prior cases,
3. whether she wanted a program which is the basis for an entire count of the
complaint,
4. the fees she paid other attorneys when she claims defendants charged her
excessive fees,
5. her economic damages despite alleging them, and
6. other facts which are of central importance to her case.
Plaintiff’s complaint should be dismissed with prejudice.
WHEREFORE, defendants respectfully request that this Court dismiss the
complaint with prejudice or the imposition of sanction the court deems appropriate.
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Respectfully submitted,
/s/ MATTHEW FARMER, ESQ.
Matthew P. Farmer, Esq.
Fla. Bar No. 0793469
MattFarmer1@aol.com
102 W. Whiting St. Suite 501
Tampa, FL 33602
ATTORNEY FOR DEFENDANT
FARMER AND FITZGERALD,
P.A.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY, that on December 14, 2017, I served the foregoing
document by electronic mail to Plaintiff Christina Paylan at
Dr.Paylan@Bodytuck.com.
s/ Matthew P. Farmer
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Preview
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA CIVIL DIVISION Case No: 15-CA-11630 DR. CHRISTINA PAYLAN Division: E Plaintiff, v. TIMOTHY FITZGERALD, ESQ., an individual, and FARMER & FITZGERALD, PA, a Florida Corporation, Defendants. / DEFENDANTS’ MOTION FOR SANCTIONS FOR FAILURE TO COMPLY WITH COURT ORDER COME NOW Defendants, Timothy Fitzgerald, Esq. & Farmer and Fitzgerald, P.A., by and through its undersigned counsel, and pursuant to the Florida Rule of Civil Procedure 1.380(b), hereby files this Motion for Sanctions for Failure to comply with this Court’s order, and in support thereof states: 1. On May 30, 2017, this Court issued an order in response to a motion to compel, and required plaintiff to answer interrogatories. The order was issued on May 30, 2017, granted the motion to compel, and required plaintiff to answer interrogatories. Among the interrogatories plaintiff was ordered to answer were the following: 1. # 2: All names she has used in her lifetime within 5 days. 2. # 3: All fees paid to any lawyer who represented plaintiff in Case Numbers 11-CF-10038, 11-CF-015977, 11-CF-008930, 14- CF- 005764 and DOAH Case Number 11-5891PL, and DOH Case No. 2011-10006, within 25 days. 1 12/14/2017 9:11 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 1 3. # 4: All actions and court cases where she has been a party, within 30 days. 4. #5: Whether plaintiff was willing to resolve case number 11- CF-10038 and 11-CF-015977 by entering and completing the Office of the State Attorney’s Pretrial Intervention Program within 10 days. 5. #9: Describe how schedule II controlled substances were ordered inventoried and secured within 25 days. 6. #10: Provide a list of all persons that had access to Cosmetic Surgery of Tampa Bay, Inc.’s narcotics box within 25 days. 7. #26: Itemize and show how you calculate any and all economic damages and describe any and all non-economic damages within 10 days. See Exhibit A. 2. To date, plaintiff has disregarded this Court’s order. 3. The court order ignored by the plaintiff goes to the central issues of the case: A. Background of Plaintiff The court order compelling plaintiff to answer interrogatories #2 and #4 go to the heart of the case and plaintiff’s very identity plaintiff refuses to provide the names she has used in her lifetime and the court cases she has been involved in. These questions go directly to matters including whether plaintiff is a vexatious litigant, her credibility, potential background issues counsel is entitled to investigate, etc. Plaintiff disobeys a court order to hinder the investigation of who she is and her background, issues that are particularly important in this case. B. Count Two of the Case Plaintiff has failed to respond to this Court’s order to answer interrogatory number 5, namely, whether she was willing to resolve Case Numbers 11-CF-10038 and 2 12/14/2017 9:11 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 2 11-CF-015977 by entering the Pretrial Intervention Program. This question goes directly to plaintiff’s claim in Count Two of the case. C. Fees Paid to Other Lawyers Plaintiff has alleged that excessive fees were charged by defendants (the claim in Count Seven) and that counsel neglected a duty to represent her and she was forced to hire other counsel (the claim in Count Eight), and plaintiff’s failure to respond to this Court’s order bears directly on the case. D. Economic Damages Plaintiff has alleged economic damages throughout the claims in her complaint. Plaintiff’s failure to comply with the court order has prevented counsel from being able to investigate the claimed damages, and to hire experts to analyze and potentially dispute the claimed damages. F. Case Investigation Plaintiff’s failure to comply with the court order and to answer questions 9 and 10 has prevented counsel from being able to fully investigate the case. The Governing Rule 4. Fla. Rule of Civil Procedure 1.850(b)(2) states: (2) If a party or an officer, director, or managing agent of a party or a person designated under Rule 1.310(b)(6) or 1.320(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or rule 1.360, the court in which the action is pending may make any of the following orders: (A) An order that the matters regarding which the questions were asked or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order. 3 12/14/2017 9:11 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 3 (B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence. (C) An order striking out pleadings or parts of them or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part of it, or rendering a judgment by default against the disobedient party. (D) Instead of any of the foregoing orders or in addition to them, an order treating as a contempt of court the failure to obey any orders except an order to submit to an examination made pursuant to rule 1.360(a)(1)(B) or subdivision (a)(2) of this rule. (E) When a party has failed to comply with an order under rule 1.360(a)(1)(B) requiring that party to produce another for examination, the orders listed in paragraphs (A), (B), and (C) of this subdivision, unless the party failing to comply shows the inability to produce the person for examination. Instead of any of the foregoing orders or in addition to them, the court shall require the party failing to obey the order to pay the reasonable expenses caused by the failure, which may include attorneys' fees, unless the court finds that the failure was justified or that other circumstances make an award of expenses unjust. Requested Sanctions Defendants request that the Court sanction plaintiff to the fullest extent possible. The defendants request the Court to dismiss the pending action with prejudice for failure to comply with the Court’s order. Plaintiff’s blatant disrespect for the court is evidence in recurring and baseless motions for judicial disqualification. Plaintiff’s failure to obey a court order has hindered counsel’s ability to prepare the case. Plaintiff refuses to provide basic information required in litigation like the names she has used, cases she was involved with, and other information which bear directly on issues in the claims she has brought. The refusal to comply with the court order is nothing more than an example of plaintiff’s unmeritorious and abusive litigation tactics, which have unnecessarily 4 12/14/2017 9:11 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 4 protracted the timely progress of the case and unreasonably demanded judicial and counsel’s time and resources. In summary, plaintiff refuses to comply with a court order to state only: 1. her names, 2. her prior cases, 3. whether she wanted a program which is the basis for an entire count of the complaint, 4. the fees she paid other attorneys when she claims defendants charged her excessive fees, 5. her economic damages despite alleging them, and 6. other facts which are of central importance to her case. Plaintiff’s complaint should be dismissed with prejudice. WHEREFORE, defendants respectfully request that this Court dismiss the complaint with prejudice or the imposition of sanction the court deems appropriate. 5 12/14/2017 9:11 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 5 Respectfully submitted, /s/ MATTHEW FARMER, ESQ. Matthew P. Farmer, Esq. Fla. Bar No. 0793469 MattFarmer1@aol.com 102 W. Whiting St. Suite 501 Tampa, FL 33602 ATTORNEY FOR DEFENDANT FARMER AND FITZGERALD, P.A. CERTIFICATE OF SERVICE I HEREBY CERTIFY, that on December 14, 2017, I served the foregoing document by electronic mail to Plaintiff Christina Paylan at Dr.Paylan@Bodytuck.com. s/ Matthew P. Farmer 6 12/14/2017 9:11 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 6