Preview
Filing # 108223869 E-Filed 06/01/2020 05:12:31 PM
IN THE CIRCUIT COURT OF THE
11TH JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
CASE NO.: 2019-021552 CA 01
BAY PLUMBING COMPANY,
Plaintiff,
vs.
AQUAM USA, INC.,
Defendant.
/
AMENDED MOTION TO STAY DISCOVERY, OR, ALTERNATIVELY, MOTION FOR
PROTECTIVE ORDER, IN RESPONSE TO PLAINTIFF’S DISCOVERY REQUESTS
AND MOTION TO COMPEL 1
COMES NOW, the Defendant, AQUAM USA, INC. (“Aquam”), by and through its
undersigned counsel, and pursuant to the Florida Rules of Civil Procedure, and hereby files this
Amended Motion to Stay Discovery or, Alternatively, Motion for Protective Order, in Response
to Plaintiff’s Discovery Requests and Motion to Compel, and states the following in support
thereof:
1. Plaintiff, BAY PLUMBING COMPANY (“Plaintiff”) initiated the instant lawsuit against
Aquam seeking a declaratory judgment, as well as asserting one count of negligent
misrepresentation, one count of breach of statutory warranty, and one count for breach of
fiduciary duty, based on purported deficiencies in certain plumbing work performed at a
residence in Miami-Dade County, Florida.
2. The instant case appears to parallel another matter related to the same claimed
1
The instant Motion is being filed in light of the Court’s rulings on Aquam’s Motion to Dismiss with Prejudice.
Bay Plumbing v. Aquam
CASE NO.: 2019-021552 CA 01
Page 2
deficiencies alleged to have been performed by Specialized Pipe Technologies (“SPT”). 2
This parallel litigation (which originated in 2016 and precedes the instant case), is being
prosecuted by the same Plaintiff and seeks the same alleged damages allegedly at issue in
this action.
3. On March 10, 2020, Plaintiff filed a request for production to Aquam. On May 1, 2020,
Plaintiff filed other discovery requests, more specifically, requests for admissions to
Aquam (and similar ones in the related matter).
4. On April 17, 2020, Aquam filed a Motion to Dismiss and/or for Summary Judgment in
the instant case on grounds that, on the face of the Second Amended Complaint, the
allegations are subject to dismissal with prejudice or, alternatively, that the statute of
limitations affirmative defense appears on the face of the Second Amended Complaint
and summary judgment is appropriate on that narrow basis (the “Dismissal Motion”). 3
The Dismissal Motion is unequivocally seeking dismissal on the face of the Second
Amended Complaint without need to go beyond its four corners and the allegations
therein.
5. Subsequently, on May 1, 2020, Plaintiff filed a Motion to Compel seeking production of
transactional documents as well as seeking to compel the depositions of Aquam’s
corporate officers. This Motion to Compel undoubtedly seeks to inject matters outside of
the four corners of the Second Amended Complaint as a basis to insulate Plaintiff from
the dispositive flaws therein.
6. If the Motion to Compel was not enough, also on May 1, 2020, Plaintiff filed other
2
See Bay Plumbing Company v. Specialized Plumbing Technologies, Inc., d/b/a SPT, Case No. 16-30840-CA-01.
3
See, e.g., Alexander v. Suncoast Builders, Inc., 837 So. 2d 1056, 1057 (Fla. 3d DCA 2002) (recognizing that the
affirmative defenses of statute of limitations may be granted when the facts supporting the defense affirmatively
appear on the face of the complaint and that the action is barred as a matter of law).
Bay Plumbing v. Aquam
CASE NO.: 2019-021552 CA 01
Page 3
discovery requests, more specifically, requests for admissions to Aquam (and similar
ones in the related matter).
7. Ultimately, on May 28, 2020, the Court heard Aquam’s Motion to Dismiss with Prejudice
and dismissed—with prejudice—three of Plaintiff’s four Counts 4 asserted in the Second
Amended Complaint, while dismissing the fourth Count with leave to amend. Plaintiff
will presumably file a Third Amended Complaint within twenty days. 5
8. Plaintiff’s requests for production, request for admission, and deposition demands all
appear to be based on Plaintiff’s belief that it has a viable claim against Aquam. These
requests are objectionable on a variety of grounds, but Aquam would respectfully submit
that none of these requests are relevant if Plaintiff’s case against Aquam issue is subject
to dismissal in toto as a matter of law in the pleading stage. This is precisely Aquam’s
position. Aquam has never believed this matter should proceed beyond the pleading
stage, and the Court agreed on three of four Counts while giving the Plaintiff another
opportunity to show the opposite in the Third Amended Complaint.
9. Rule 1.280(b)(1) of the Florida Rules of Civil Procedure dictates that discovery in civil
cases must be relevant to the subject matter of the case and must be admissible or
reasonably calculated to lead to admissible evidence. Capco Properties, LLC. v.
Monterey Gardens of Pinecrest Condo., 982 So. 2d 1211 (Fla. 3rd DCA 2008). Further,
“It is axiomatic that information sought in discovery must relate to the issues involved in
the litigation, as framed in all pleadings.” Krypton Broad. of Jacksonville, Inc. v. MGM–
Pathe Commc'ns Co., 629 So.2d 852, 854 (Fla. 1st DCA 1993).
4
The Counts dismissed with prejudice were Declaratory Judgment, Breach of Statutory Implied Warranty of
Fitness, and Breach of Fiduciary Duty. None of these were deemed to apply as between Plaintiff and Aquam.
5
The Order on Aquam’s Motion to Dismiss with Prejudice is being submitted to the Court today.
Bay Plumbing v. Aquam
CASE NO.: 2019-021552 CA 01
Page 4
10. Moreover, a “trial court has great discretion in matters of discovery, and abuse must be
shown in order to reverse.” Boyles v. Mid-Florida Television Corp., 431 So.2d 627, 641
(Fla. 5th DCA 1983) (citing Levenson v. Barnett Bank of Miami, 330 So.2d 192 (Fla. 3d
DCA 1976)). A trial court has the discretion to stay discovery depositions pending a
motion to dismiss hearing. See Feigin v. Hospital Staffing Services, Inc., 569 So.2d 941,
942 (Fla. 4th DCA 1990); Elsner v. E-Commerce Coffee Club, 126 So. 3d 1261, 1264
(Fla. 4th DCA 2013).
11. Florida Rule of Civil Procedure 1.280(c) grants this Court broad discretion to limit
discovery where, as here, justice requires such in order to “protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense.”
12. Aquam should not be required to exert the time and effort to locate and produce the
documents, records and witnesses Plaintiff seeks if, ultimately, the operative
Complaint—whatever iteration it ultimately is—is subject to dismissal with prejudice.
Aquam would be unduly burdened and prejudiced by having to provide responses to
Plaintiff’s discovery, and possibly present individuals for deposition, when the action
may not even survive the pleading stage.
13. Aquam believes the Court should determine the legal sufficiency of Plaintiff’s pleadings
prior to the Defendant incurring the expense and intrusiveness of discovery. See Deltona
Corp. v. Bailey, 336 So. 2d 1163, 1169-1170 (Fla. 1976)(recognizing that facial
challenges to legal sufficiency of a claim, such as a motion to dismiss based upon failure
to state a claim, should be resolved before discovery begins, as such a dispute always
presents purely legal questions, and thus, neither parties nor the court have any need for
discovery before the court rules on the motion). In Deltona, the Florida Supreme Court
Bay Plumbing v. Aquam
CASE NO.: 2019-021552 CA 01
Page 5
held that the trial court has discretion to stay discovery for a reasonable period of time
pending a determination of material, outstanding motions. Id.
14. The Plaintiff will not be prejudiced by the granting of a stay on discovery until Aquam is
required to Answer a Complaint in this case. If the action is ultimately dismissed with
prejudice in its entirety, the requests will be moot. If the Aquam is required to Answer
the Complaint, Aquam will respond to the discovery accordingly.
15. Therefore, Aquam respectfully requests that this Honorable Court enter an Order staying
discovery and/or for a Protective Order unless and until Aquam is required to Answer the
Complaint.
WHEREFORE, Defendant, AQUAM USA, INC., respectfully requests that this
Honorable Court enter an Order granting its Motion to Stay Discovery and/or for a Protective
Order unless and until Plaintiff’s Complaint is allowed to proceed, or, alternatively, for an
enlargement of time to respond to said discovery requests, and any other such relief it deems just
and proper.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing was e-mailed this
1st day of June, 2020 to all counsel on the attached service list.
KUBICKI DRAPER
Counsel to Defendant,
Aquam USA, Inc.
9100 S. Dadeland Blvd., Suite 1800
Miami, Florida 33156
Direct Line: (305) 982-6774
BY: /s/ Michael Suarez
MICHAEL F. SUAREZ, ESQ.
Florida Bar No.: 88845
ALEJANDRO J. VARGAS, ESQ.
Florida Bar No.: 125481
Bay Plumbing v. Aquam
CASE NO.: 2019-021552 CA 01
Page 6
SERVICE LIST
John R. Sutton, Esq.
7721 S.W. 62nd Avenue, Suite 101
South Miami, FL 33143
Counsel to Plaintiff
info@suttonlawgroup.com
Preview
Filing # 108223869 E-Filed 06/01/2020 05:12:31 PM IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CASE NO.: 2019-021552 CA 01 BAY PLUMBING COMPANY, Plaintiff, vs. AQUAM USA, INC., Defendant. / AMENDED MOTION TO STAY DISCOVERY, OR, ALTERNATIVELY, MOTION FOR PROTECTIVE ORDER, IN RESPONSE TO PLAINTIFF’S DISCOVERY REQUESTS AND MOTION TO COMPEL 1 COMES NOW, the Defendant, AQUAM USA, INC. (“Aquam”), by and through its undersigned counsel, and pursuant to the Florida Rules of Civil Procedure, and hereby files this Amended Motion to Stay Discovery or, Alternatively, Motion for Protective Order, in Response to Plaintiff’s Discovery Requests and Motion to Compel, and states the following in support thereof: 1. Plaintiff, BAY PLUMBING COMPANY (“Plaintiff”) initiated the instant lawsuit against Aquam seeking a declaratory judgment, as well as asserting one count of negligent misrepresentation, one count of breach of statutory warranty, and one count for breach of fiduciary duty, based on purported deficiencies in certain plumbing work performed at a residence in Miami-Dade County, Florida. 2. The instant case appears to parallel another matter related to the same claimed 1 The instant Motion is being filed in light of the Court’s rulings on Aquam’s Motion to Dismiss with Prejudice. Bay Plumbing v. Aquam CASE NO.: 2019-021552 CA 01 Page 2 deficiencies alleged to have been performed by Specialized Pipe Technologies (“SPT”). 2 This parallel litigation (which originated in 2016 and precedes the instant case), is being prosecuted by the same Plaintiff and seeks the same alleged damages allegedly at issue in this action. 3. On March 10, 2020, Plaintiff filed a request for production to Aquam. On May 1, 2020, Plaintiff filed other discovery requests, more specifically, requests for admissions to Aquam (and similar ones in the related matter). 4. On April 17, 2020, Aquam filed a Motion to Dismiss and/or for Summary Judgment in the instant case on grounds that, on the face of the Second Amended Complaint, the allegations are subject to dismissal with prejudice or, alternatively, that the statute of limitations affirmative defense appears on the face of the Second Amended Complaint and summary judgment is appropriate on that narrow basis (the “Dismissal Motion”). 3 The Dismissal Motion is unequivocally seeking dismissal on the face of the Second Amended Complaint without need to go beyond its four corners and the allegations therein. 5. Subsequently, on May 1, 2020, Plaintiff filed a Motion to Compel seeking production of transactional documents as well as seeking to compel the depositions of Aquam’s corporate officers. This Motion to Compel undoubtedly seeks to inject matters outside of the four corners of the Second Amended Complaint as a basis to insulate Plaintiff from the dispositive flaws therein. 6. If the Motion to Compel was not enough, also on May 1, 2020, Plaintiff filed other 2 See Bay Plumbing Company v. Specialized Plumbing Technologies, Inc., d/b/a SPT, Case No. 16-30840-CA-01. 3 See, e.g., Alexander v. Suncoast Builders, Inc., 837 So. 2d 1056, 1057 (Fla. 3d DCA 2002) (recognizing that the affirmative defenses of statute of limitations may be granted when the facts supporting the defense affirmatively appear on the face of the complaint and that the action is barred as a matter of law). Bay Plumbing v. Aquam CASE NO.: 2019-021552 CA 01 Page 3 discovery requests, more specifically, requests for admissions to Aquam (and similar ones in the related matter). 7. Ultimately, on May 28, 2020, the Court heard Aquam’s Motion to Dismiss with Prejudice and dismissed—with prejudice—three of Plaintiff’s four Counts 4 asserted in the Second Amended Complaint, while dismissing the fourth Count with leave to amend. Plaintiff will presumably file a Third Amended Complaint within twenty days. 5 8. Plaintiff’s requests for production, request for admission, and deposition demands all appear to be based on Plaintiff’s belief that it has a viable claim against Aquam. These requests are objectionable on a variety of grounds, but Aquam would respectfully submit that none of these requests are relevant if Plaintiff’s case against Aquam issue is subject to dismissal in toto as a matter of law in the pleading stage. This is precisely Aquam’s position. Aquam has never believed this matter should proceed beyond the pleading stage, and the Court agreed on three of four Counts while giving the Plaintiff another opportunity to show the opposite in the Third Amended Complaint. 9. Rule 1.280(b)(1) of the Florida Rules of Civil Procedure dictates that discovery in civil cases must be relevant to the subject matter of the case and must be admissible or reasonably calculated to lead to admissible evidence. Capco Properties, LLC. v. Monterey Gardens of Pinecrest Condo., 982 So. 2d 1211 (Fla. 3rd DCA 2008). Further, “It is axiomatic that information sought in discovery must relate to the issues involved in the litigation, as framed in all pleadings.” Krypton Broad. of Jacksonville, Inc. v. MGM– Pathe Commc'ns Co., 629 So.2d 852, 854 (Fla. 1st DCA 1993). 4 The Counts dismissed with prejudice were Declaratory Judgment, Breach of Statutory Implied Warranty of Fitness, and Breach of Fiduciary Duty. None of these were deemed to apply as between Plaintiff and Aquam. 5 The Order on Aquam’s Motion to Dismiss with Prejudice is being submitted to the Court today. Bay Plumbing v. Aquam CASE NO.: 2019-021552 CA 01 Page 4 10. Moreover, a “trial court has great discretion in matters of discovery, and abuse must be shown in order to reverse.” Boyles v. Mid-Florida Television Corp., 431 So.2d 627, 641 (Fla. 5th DCA 1983) (citing Levenson v. Barnett Bank of Miami, 330 So.2d 192 (Fla. 3d DCA 1976)). A trial court has the discretion to stay discovery depositions pending a motion to dismiss hearing. See Feigin v. Hospital Staffing Services, Inc., 569 So.2d 941, 942 (Fla. 4th DCA 1990); Elsner v. E-Commerce Coffee Club, 126 So. 3d 1261, 1264 (Fla. 4th DCA 2013). 11. Florida Rule of Civil Procedure 1.280(c) grants this Court broad discretion to limit discovery where, as here, justice requires such in order to “protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” 12. Aquam should not be required to exert the time and effort to locate and produce the documents, records and witnesses Plaintiff seeks if, ultimately, the operative Complaint—whatever iteration it ultimately is—is subject to dismissal with prejudice. Aquam would be unduly burdened and prejudiced by having to provide responses to Plaintiff’s discovery, and possibly present individuals for deposition, when the action may not even survive the pleading stage. 13. Aquam believes the Court should determine the legal sufficiency of Plaintiff’s pleadings prior to the Defendant incurring the expense and intrusiveness of discovery. See Deltona Corp. v. Bailey, 336 So. 2d 1163, 1169-1170 (Fla. 1976)(recognizing that facial challenges to legal sufficiency of a claim, such as a motion to dismiss based upon failure to state a claim, should be resolved before discovery begins, as such a dispute always presents purely legal questions, and thus, neither parties nor the court have any need for discovery before the court rules on the motion). In Deltona, the Florida Supreme Court Bay Plumbing v. Aquam CASE NO.: 2019-021552 CA 01 Page 5 held that the trial court has discretion to stay discovery for a reasonable period of time pending a determination of material, outstanding motions. Id. 14. The Plaintiff will not be prejudiced by the granting of a stay on discovery until Aquam is required to Answer a Complaint in this case. If the action is ultimately dismissed with prejudice in its entirety, the requests will be moot. If the Aquam is required to Answer the Complaint, Aquam will respond to the discovery accordingly. 15. Therefore, Aquam respectfully requests that this Honorable Court enter an Order staying discovery and/or for a Protective Order unless and until Aquam is required to Answer the Complaint. WHEREFORE, Defendant, AQUAM USA, INC., respectfully requests that this Honorable Court enter an Order granting its Motion to Stay Discovery and/or for a Protective Order unless and until Plaintiff’s Complaint is allowed to proceed, or, alternatively, for an enlargement of time to respond to said discovery requests, and any other such relief it deems just and proper. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing was e-mailed this 1st day of June, 2020 to all counsel on the attached service list. KUBICKI DRAPER Counsel to Defendant, Aquam USA, Inc. 9100 S. Dadeland Blvd., Suite 1800 Miami, Florida 33156 Direct Line: (305) 982-6774 BY: /s/ Michael Suarez MICHAEL F. SUAREZ, ESQ. Florida Bar No.: 88845 ALEJANDRO J. VARGAS, ESQ. Florida Bar No.: 125481 Bay Plumbing v. Aquam CASE NO.: 2019-021552 CA 01 Page 6 SERVICE LIST John R. Sutton, Esq. 7721 S.W. 62nd Avenue, Suite 101 South Miami, FL 33143 Counsel to Plaintiff info@suttonlawgroup.com