IN THE COUNTY COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI DADE COUNTY, FLORIDA GENERAL JURISDICTION

DIVISION CASE NO. 11 20527 CA 21

LTA LOGISTICS, INC. A Florida corporation, and LESTER TRIMINO, et a/., plainti

fHE FILED ON

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\ 82013
IN THE OFFICE OF CiRCUlT COURT OADE CO, R

Vs. Enrique Varona, Defendant,

DEFENDANTS MOTION FOR SUMMARY JUDGMENT OF PLAINTIFF CLAIM FOR DEFAULT OF COURT ORDER TO COMPEL DOCUMENTS. PRODUCE EVIDENCE. AND TO STRIKE RESPONSES TO REQUEST OF ADMISSIONS COMES NOW the Defendant, Enrique Varona (from hereon, "The defendant") who is Sui Juris and proceeding Pro se in the above entitled action and hereby moves this court for summary judgment upon default to be entered against the plaintiff, LTA LOGISTICS, INC. a Florida corporation, ANNETTE TRIMINO and LESTER TRIMINO Sr., LESTER TRIMINO,

on count II for tortuous

interference with a business relationship of the plaintiff complaint pursuant to Fed. R. Civ. P. rule 26(a), and rule 55, and rule 56(c)(e).

"A default 'admits the material facts that constitute a cause of action': Travelers Indemnity Co. v. Rubin, 209 Conn. 437, 445,551 A.2d 1220 (1988);

STANDARD FOR SUMMARY JUDGMENT UNDER Fed. R. Civ. P. 56(cVe)

The Court may grant summary judgment

"if the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The movant, the defendant is the movant for this motion "bears the initial responsibility of informing the court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To discharge this burden, the movant must point out to the Court that there is an absence of evidence to support the nonmoving party's case. Id.at 325. After the movant has met its burden under Rule 56(c), the burden of production shifts and the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). According to the plain language of Fed. R. Civ. P. 56(e), the non-moving party "may not rely merely on allegations or denials in its own pleading" but instead must come forward with "specific facts showing a genuine issue for trial" Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 587. Essentially, so long as the non-moving party has had an ample opportunity to conduct discovery, it must come forward with affirmative evidence to support its claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). "A mere

'scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990). If the evidence advanced by the non-moving party "is merely colorable, or is not significantly probative,

summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).

DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT DUE TO PLAINTIFF FAILURE TO FILE INITIAL DISCLOSURES AS REQUIRED BY Fed. R. Civ. P 26(a) 1. The defendant was served with the pending lawsuit on July 9, 2011. After

almost 18 months, there must be at least one witness and/or there must exist some documents the plaintiff 'may use' to support or prove its proposed allegations since, "''the plaintiff may not rely solely on the conclusory allegations in his pleadings; rather, he must set forth sufficient evidence supporting a claimed factual dispute to require a fact finder to resolve the parties' differing versions of the truth at trial. " Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). 2. The plaintiffs lack of any initial disclosures evidence a failure or a refusal to Specifically, the plaintiff is in violation of Fed. R.

comply with the court rules.

Civ. P. rule 26(a)(l)(a) which provides that a party, without awaiting a discovery request, must provide the other party initial discovery disclosures, including but not limited to, the names of witnesses, documents and other tangible items a party may use to support its claims or defenses, and other disclosures, as follows.

Fed. R.Civ. P 26(a) Required Disclosures. (1) Initial Disclosures. (a) In General. Except as exempted by Rule 26(a)(l)(b) or as otherwise stipulated or ordered by the court, a party must, without awaitins a discovery request, provide to the other parties: (i) the name and, if known, the address and telephone number of each individual likely to have discoverable information alons with the

subjects of that information that the disclosing party may use to support its claims or defenses .... (ii) a copy or a description by category and location of all documents, electronically stored information, and tangible thinss that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses.... 3. The defendant believes the plaintiffs initial disclosures are purposely incomplete and purposefully vague and are occasioned by its intention to delay discovery, including the depositions of witnesses, and ultimately delay this case and obstruct justice and to perpetuate a fraud upon the defendant and this court since, "fraud

upon the court includes the deliberate concealment of material information in a setting of fiduciary obligation1'' see United States v. Dial, 757 F.2d 163, 168 (7th

Cir. 1985) and fraud upon the court as defined by the 7th Circuit Court of Appeals "embrace that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication." Kenner v. C.I.R., 387 F.3d 689 (1968); 7 Moore's Federal Practice, 2ded., p. 512,|60.23. 4. The defendant believes that there are no triable issues to be heard or evidence to be considered by a jury that pertains to the plaintiff allegations as proposed in their complaint therefore, the defendant is entitled to summary judgment as a matter of

law.

DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT DUE TO PLAINTIFFS FAILURE TO COMPLY WITH AN ORDER OF JUDICIAL AUTHORITY

5. The defendant repeats and re-alleges the foregoing as if the same were fully set forth at length herein. 7. On October 22, 2012 the defendant requested from the court an order compelling the plaintiff to produce documents, answer the defendant interrogatories by authority of Fed. R. Civ. P. 37(a)(3)(a) which authorizes a party to move to compel disclosures. 8. On December 13, 2012 Judge Marcia Caballero entered an order compelling the plaintiff to produce documents, answer the defendants interrogatories, and to

provide a revised answer to the defendants request of admissions question number 3 and 4. See courts order as exhibit "A". 9. The time allowed for complying to the judge's order of filing these responses and to produce the requested documents has expired, the defendant has not heard from the plaintiff and is now in default. The plaintiff has not requested from the court an extension of time to comply with the judge's order. 10. The plaintiff refuses to prove his claims with the evidence requested by the court order. Hence, The defendant is entitled to summary judgment by default. If the plaintiff "fails to make a showing on an element for which he bears the burden of proof, the defendant is entitled to judgment as a matter of law". Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986).

PLAINTIFF IS NOW BARRED BY Fed. R .Civ .P. 37 TcKD TO PRESENT WITNESSES OR EVIDENCE IN SUPPORT OF THEIR CLAIMS 11. The defendant repeats and re-alleges the foregoing as if the same were fully set forth at length herein. 12. The plaintiff can offer no justifiable excuse in refusing to provide adequate disclosures as required by Fed. R .Civ. P. rule 26(a), and for defaulting on the court order compelling discovery, and failing to request a time extension to reply to the courts orders. 13. The plaintiff is now subject to sanctions under Fed. R. Civ. P. rule 37(c)(l) which provides for sanctions for a failure to adequately disclose under Fed. R. Civ. P. 26(a) including prohibiting such party from utilizing evidence and witnesses subsequently disclosed to support motions or at trial. Fed. R. Civ. P. 37'(c)(l)provides: (1) Failure to Disclose or Supplement. If a party fails to provide information or identify a witness as required by Rule 26(a) or 26(e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial..., 14. The plaintiff is now barred by rule 37(c)(l) to present any witnesses or documents to a jury at trial. Therefore, he cannot demonstrate a triable issue of fact as to whether any alleged business relations existed or were interfered with, and there are no disputed material issues of fact regarding any monetary losses attributable to the defendants alleged actions that can be proven by the plaintiff. 15. The defendant is entitled to summary judgment as a matter of law.

DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT BY ESTOPPEL 16. The defendant repeats and re-alleges the foregoing as if the same were fully set forth at length herein. 17. Consequently and as a result of their failure to comply with Fed. R. Civ. P. rule 26(a) and for their failure to respond to the court order to compel discovery the plaintiff has admitted that there are now no issues which a jury needs to adjudicate at trial. "Silence is a species of conduct, and constitutes an implied representation of the existence of facts in question, and the estoppel therefrom is accordingly a species of estoppel by misrepresentation. When silence is of such a character and under such circumstances that it would become a fraud on the other party to permit the silent party to deny what his silence has induced the other party to believe and act upon, it will operate as an estoppel. " as per Carmine v. Bowen. 64 A.

923.
18. The defendant is now entitled to summary judgment by Estoppel as a matter of
law.

DEFENDANT MOVES TO STRIKE THE PLAINTIFFS ANSWERS TO REQUEST OF ADMISSIONS 19. The defendant repeats and re-alleges the foregoing as if the same were fully set forth at length herein. 20. The plaintiff is in default of answering request of admissions questions 3 & 4. 21. The plaintiffs responses to the defendant request of admissions should be stricken and the defendant is entitled to a summary judgment by default as a matter of law.

CONCLUSION
Because the Plaintiffs lack and refusal to provide any evidence to the extreme of defaulting on a court order compelling discovery and production, viewed in the light most favorable to them, is insufficient to establish any elements of their claims for count II of tortous interference with a business advantage and for money damages in excess of $15,000.00, the Defendant is entitled to summary judgment by default. In addition, the undisputed evidence in light of the plaintiffs default indicates that the defendant has proven its affirmative defense of 1) failure to state a claim upon which relief can be granted, 2) for the defendant telling the truth, 3) for plaintiff committing fraud, 4) for pari de licto and for, 5) equitable estoppel, entitling the defendant to summary judgment on all the affirmative defenses. The defendant now demands summary judgment for dismissal due to default of a judicial order, estoppel through misrepresentation, and for violations of Fed. R. Civ. P. rule 26(a), rule 55, and rule 56(c), and demands a grant of sweat equity to the defendant for labor and time

required to address this lawsuit at a rate of $1,500.00 dollar per appearance in court, and $200.00 dollars per hour for labor and any part of such hour for the time required to defend this lawsuit, and for Payment in Full at time of summary judgment of this hearing.

espectfully submitted,

"jU-aXyfluj!
Ehrique Varona, Sui Juris 14823 Ww. 125 Court Miami, Florida 33186

IN THE COUNTY COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI DADE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION
CASE NO. 11 20527 CA 21

LTA LOGISTICS, INC. LESTER TRIMINO, et al; Plaintiff,

Vs.
Enrique Varona, Defendant,

NOTICE OF HEARING PLEASE take notice that Enrique Varona a Defendant in this action, which has called the Courts time for a motion hearing in front of the honorable judge Antonio Alzola on Tuesday January 29, 2013 at 9:00 A.M. at the Miami Dade Courthouse at, 73 West Flagler St Miami, Florida 33125, room 1110 or as soon thereafter as it may be heard on:

DEFENDANTS MOTION FOR SUMMARY JUDGMENT OF PLAINTIFF CLAIM FOR DEFAULT OF COURT ORDER TO COMPEL DOCUMENTS. PRODUCE EVIDENCE. AND TO STRIKE RESPONSES TO REQUEST OF ADMISSIONS

espectfully submitted, Enrique] Varona pro se 14823 S.W. 125 Court Miami, Florida 33186

IN THE CIRCUIT COURT OF TK 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CIRCUIT CIVIL DIVISION^ CASE NO:

r~A X
Plaintiff(s),

vs.

ORDER GRANTING/DENYING PLAINTIFF'S/DEFENDANT'S Defendant(s),

THIS CAUSE having come on to be heard on on Plaintiff's/Defendant's Motion

and the Court having heard arguments of counsel, and being otherwise advised in the premises, it is hereupon ORDERED AND ADJUDGED that said Motion be, and the same is hereby

CL

DONE AND ORDERED in Chambers at Miami-Dade County, Florida this_

day of

CONFORMED COPY
CIRCUIT COURT JUDGE Copies furnished to: Counsel of Record ANTON1O ARZOLA CIRCUIT COURT JUDGE 117JH-554 3/11

IN THE COUNTY COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI DADE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO. 11 20527 CA 21 LTA LOGISTICS, INC. LESTER TRIMINO, et al; Plaintiff,

FILED ON:
V.

f EB 10 2N3

Enrique Varona, Defendant,

NOTICE OF CONTEMPT MOTION AND NOTICE OF HEARING

YOU ARE NOTIFIED that the Defendant, Enrique Varona, will apply to the Honorable Antonio Arzola, Circuit Judge, on Thursday, February 28th, 2013, at 9:00 a.m., in the MIAMI DADE County Courthouse at 73 west Flagler Street, Florida, 33125 room 1110 for an order adjudging The plaintiffs LTA LOGISTICS, Inc., LESTER TRIMINO Sr., LESTER TRIMINO, and ANNETTE VAZQUEZ TRIMINO, in contempt of court for violation of the terms of the order to compel entered by this court on January 29th, 2013. jectfully submitted,

Varona, Sui Juris (4823LSW 125 Court Miami, Florida 33186 305-812-3784