D'Agostino, Sr. v. Keitel, No. 9:2018mc80460 - Document 32 (S.D. Fla. 2019)

Court Description: ORDER denying 29 Judgment Debtor Keitel's Motion to Vacate. Judgment Creditor's request for attorney's fees and costs is GRANTED. Dates set for submission of memoranda regarding attorney's fees and costs. Signed by Magistrate Judge William Matthewman on 1/4/2019. See attached document for full details. (kza)

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D'Agostino, Sr. v. Keitel Doc. 32 UN ITED STA TES DISTR ICT CO UR T SOU TH ERN D ISTR ICT O F FLORID A CivilN o.l8-m c-8o46o-D im itrouleasN attheo an TH O M AS D 'A G OSTm O ,SR ., an individual, Plaintiff, FILED BY D.C. JAd 2# 2219 FRED ERICK J.KEITEL,111, an individual, ANGELA E.NOBLE CLERK tlS nlSm Cm s.D.oF/1 .-w.R:. D efendant. ORDER DENYING JUDGM ENT DEBTOR KEITEL'S M OTION TO VACATE IDE 291 TH IS CA U SE is before the Court upon Judgm ent Debtor, Frederick J. K eitel, I1I's (dkludgmentDebtor'')Satisfaction ofRecorded Judgmentand Motion to Vacate OrderDenying Judgm ent Debtor K eitel's M otion for Protective O rder as M oot and V acate as M oot Order Ordering Judgm entD ebtor to A ppear for D eposition on D ecem ber 19,2018 at 10:00 a.m . atthe W estPalm Beach Office of Shutts & Bowen LLP (ûlM otion'') (DE 29J. This matter was referred to the undersigned by U nited StatesD istrictJudge W illiam P.Dim itrouleas. See DE 4. JudgmentCreditor,ThomasD'Agostino,Sr.(ûtludgmentCreditor''),has filed a Response in Opposition toDebtor'sMotion forProtectiveOrdergDE 311,and JudgmentDebtorhasfailedto file a tim ely reply. 1. BA C K G R O U N D Judgm ent Creditor has been attem pting for m onths to take the deposition of Judgm ent D ebtor w ithout success due to the actions of Judgm ent Debtor. ln this regard, Judgm ent 1 Dockets.Justia.com Debtor'sdeposition wasinitially scheduled forOctober 10s 2018. See DEs 10, 13. Judgm ent Debtorfailed to appearforhisdeposition and filed a Motion forProtectiveOrdergDE 14)on O ctober 11, 2018,the day after the scheduled deposition. On N ovem ber 6, 2018,the Court entered an O rder Denying Judgm entD ebtor K eitel's M otion for Protective Order and Ordering Judgm entD ebtorto A ppear for D eposition on N ovem ber 16, 2018,at 10:00 a.m .atthe O ftice of JudgmentCreditor'sCounsel(DE 181,finding thatJudgmentDebtorhad filed hismotion for protective orderto frustrate Judgm entCreditor and im properly delay his deposition. The Court also granted Judgm entCreditor's requestfor attorney'sfees and costs. 1d.atp.3. Judgm entDebtorfailed to appear forhis N ovem ber 16,2018 deposition and instead filed a Motion forProtective Order gDE 22)on the same date. On December 11,2018,the Court entered an O rder D enying Judgm ent Debtor K eitel's M otion for Proted ive O rder and Ordering Judgm ent D ebtor to Appear for D eposition on D ecem ber 19,20l8,at 10:00 a.m .at the W est Palm Beach OfficeofShutts& Bowen LLP gDE 271,again findingthatJudgmentDebtorhad filed hism otion forprotective orderto once again frustrate Judgm ent Creditor and improperly delay his deposition. The Court also granted Judgm ent Creditor's request for attorney's fees and costs. Id atp.4. ll. JU D G M EN T DEB TO R 'S M O TIO N TO V A CA TE ln thecurrentMotion to Vacate (DE 291,JudgmentDebtorarguesthathehaspaid the fullrecorded judgmentin this case,so there isno longera valid reason for his deposition. Judgm entDebtorthen m akes severalallegations aboutJudgm entCreditor's counsel. Id atp.2. . Judgm entDebtorcontends thathe hasrequested invoices for legalfees, costs,and expenses from Judgm ent Creditor's counsel so that he can Ssim m ediately pay any and a1l reasonable fees to 2 Shutts and Bow en upon inspection of the invoices.'' 1d. at pp. 2-3. Judgm ent Debtor emphasizesthathecannotaffordto pay'tshut'ts& Bowensgsicllegalfces,costsandexpensesto sitforadeposition by multiple lawyersthatcan go on foragsicl$5,338,36 gsicjand defendant (sicl.'' 1d.atp.3. Judgment Debtor acknowledges that he did not confer with opposing counselbeforefilingtheM otion. 1d. He seeksan orderdoing the following:(1)eontirming satisfaction ofthe paymentofthe recorded judgment in this case;(2)vacating the Court's December11,2018Order(DE 271,or,in thealternative,issuing aprotectiveorder;(3)striking JudgmentCreditor'srequestforlegalfeesordered in DocketEntry 27;(4)refening Attorney Christu'sthreatsagainsthislender/bankerto theFloridaBar;(5)requiring Shutts& Bowen to product any invoices for any possible fees prior to satisfaction; and (6) disallowing any attorney's fees from the date ofthe paym entofthe recorded satisfaction. 1d. 111. JUD G M ENT CR EDITO R 'S RE SPO N SE ln response,Judgm entCreditor explains thatJudgm entD ebtorindicated for the firsttim e on Devember 18,2018,that he wanted to pay $5,429.90 with a credit card to satisfy the judgmentunderlyingthiscollectionproceeding. gDE 31,p.2). JudgmentDebtoralsoclaimed thathe w ould pay certain attorney's fees incurred in connection w ith this action afterreview ing the legalinvoices. 1d. O n D ecem ber 18,2018,atapproxim ately 4:59 p.m .,Judgm entD ebtor made a wire transfer of$5,500.00,withoutJudgmentCreditor's counsel's agreementthatsuch am ountw ould be sufficient. 1d.atpp.2-3. A t5:20 p.m .,Judgm entCreditor'scotm seladvised Judgm ent Debtor that the paym ent S'w as not sufticient to conclude this m atter and that D 'Agostino intended to proceed w ith the Courtordered deposition.'' 1d.atp.3. According to Judgm ent Creditor,Judgm entD ebtor did not appear for his deposition on D ecem ber 19,2018. 3 1d. Judgm ent Creditor argues that the M otion should be denied because ûtit is a patently obviousattemptto continuetoharassD'Agostino.'' gDE 31,p.3). JudgmentCreditorargues that Judgm ent D ebtor has know n since N ovem ber 7, 2018,that Judgm ent Creditor dem anded paym ent of attorney's fees. 1d. Judgm ent Creditor also points outthatJudgm entD ebtor has notyetpaid the $1,422.50 in attorney'sfeesthatthe Courtpreviously ordered. 1d. Judgment Creditor further em phasizes that Judgm ent D ebtor again w aited untilthe last m inute- the day before his court-ordered deposition- to w ire a paym ent. at p. 4. Judgm ent Creditor contendsthatJudgm entD ebtor had no rightto failto appear at his court-ordered deposition and that Judgm ent D ebtor Ssw illfully and contum aciously'' ignored the Court's last Order. 1d. Judgm ent Creditor requests that the Court deny the M otion, award Judgm ent Creditor his reasonable attorney's fees and costs,and issue an order to show cause w hy Judgm ent D ebtor should notbe held in contem ptofcourt. 1d.atp.5. IV . D ISC U SSIO N The Courthas carefully review ed the M otion,response,the Court's priorO rders,and the entire docketin this case. The M otion filed by Judgm entD ebtor is due to be denied. First, the Court notes that Judgm ent D ebtor failed to confer w ith Judgm ent Creditor beforetilinghisM otion. Failuretocertify conferralunderLocalRule7.1(a)(3)isgroundsfor denialofa motion. SeeL.R.7.1(a)(3)(tiFailureto comply with the requirementsofthisLocal Rule m ay be cause for the Court to grant or deny the m otion and im pose on counsel an appropriate sanction,w hich m ay include an order to pay the am ount ofthe reasonable expenses incurredbecauseoftheviolation,including areasonableattorney'sfee.'');seealsoIncardonev. 4 RoyalCarribean Cruises,Ltd,No.16-20924-C1V,2018 W L 6520934, at*4 (S. D.Fla.Dec. 2018). JudgmentDebtor'sfailuretoconferasrequiredbyourLocalRuleswillnotbetolerated by this Court. Accordingly,Judgm entDebtor'sM otion is denied due to hisfailure to comply withLocalRule7.l(a)(3). Second,the M otion is also denied on the merits. This is beeause Judgm ent Debtor Keitelhasnotestablished any groundswhatsoeverforvacatingthe Court'spriorOrdergDE 271 and has not established good cause for a protective order. The Court's Order w as properly entered and w as based on sound analysis of the facts of the case and the applicable law . Judgm entD ebtor sim ply opted to not attend his court-ordered deposition w ithoutthe perm ission ofthe Courtorthe agreem entof Judgm entCreditor. Judgm entD ebtorhasprovided som e funds to Judgm entCreditor,but even he acknow ledges that he ow es attorney's fees. Therefore,the m atteris notcom pletely resolved. Third,theCourtwillnotenterasatisfaction ofjudgmentasthisisnotaproperactionto be undertaken by the Court. Parties are perm itted to file their ow n notice of satisfaction of a judgmentwithsupporting documentationwhenappropriate. Fourth, the Court is disturbed by Judgm ent D ebtor's allegations against counsel for Judgm ent Creditor. Judgm ent Debtor has not provided any credible evidence to support his allegations,andtheCourtwillgivetheallegationsnocredenceatthisjuncture. ln sum ,Judgm ent D ebtor has ignored severalCourtOrders and has repeatedly failed to attend his deposition. M oreover, Judgm ent D ebtor has been obstructionist and dilatory throughoutthese proceedings. He could have simply paid the amountofthe finaljudgment back in April 2018 and avoided all of the costly litigation and use of court resources that 5 follow ed. In light of the foregoing,the Court will issue a separate order to show cause as to w hy Judgm entDebtor should notbe held in contem ptofcourt,w hich w illalso seta show cause hearing. Accordingly,itishereby O R DER ED as follow s: Judgm entD ebtor's Satisfaction of Recorded Judgm ent and M otion to Vacate Order D enying Judgm ent D ebtor K eitel's M otion for Protective Order as M oot and Vacate asM ootOrderOrdering Judgm entDebtorto Appear for D eposition on D ecem ber 19, 2018at10:00a.m .attheW estPalm Beach OfficeofShutts& BowenLLP îDE 29)is D EN IED . 2. Judgm ent Creditor's requestfor attorney's fees and costs is GR ANT ED pursuantto FederalRule of Civil Procedure 37 and Local Rule 7.1.(a)(3). The Courtwill im pose an aw ard of reasonable attorney's fees,costs,and expenses againstJudgm ent D ebtor for the tim e incurred by Judgm ent Creditor in review ing Judgm ent D ebtor's M otion (DE 29)and responding to itand the costs incurred in retaining a court reporter for the failed D ecem ber 19,2018 deposition. The Court,therefore,directs counselforJudgm entCreditorto file,on orbefore January 16,2019,a m em orandum thataddressesthe hourly rate ofcounsel,the tim e expended,the am ountofreasonable attorney's fees that Judgm ent Creditor incurred com pleting the above described activities,aswellasanycostsorexpensesincurred(includingcourtreporterexpenses and/or costs). JudgmentCreditor's counselmay attach an affidavit or affidavits regarding his attorney's fees and costs incurred if he w ishes to do so. Judgm ent D ebtor shallthen have untilon orbefore January 25,2019,to tile a m em orandum 6 responding and/orobjecting to the amountof attorney's fees and costs soughtby Judgm ent Creditor. Thereafter, Judgm ent Creditor shall have until on or before February 1,2019,to tile hisreply. Thereafter,the Courtw illdeterm ine the am ount of attorney's fees and costs to be paid by Judgm ent Debtorto Judgm entCreditor and entera furtherO rderdirecting such paym ent. 3. The parties are encouraged to confer in an attem pt to resolve the issue of any additionalattorney's feesow ed to Judgm entCreditor. Judgm ent Creditor is DIR ECTED to forthw ith em ail a copy of this O rder to Judgm entDebtor. 5. The Clerk of Courtis DIR ECT ED to m ail a copy of this Order to the Frederick J. K eitel,111,P.O .Box 3243,Palm Beach,Florida 33480. D O N E AN D O RD ER ED in C m bers atW estPalm Beach,Palm Beach County,in the SouthernDistrictofFlorida,thisV NfofJanuary,2019. % ILLIA M M A TT EW M AN UN ITED STATES A GISTM TE JU DG E 7

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