Filing # 85586462 E-Filed 02/27/2019 01:11:39 PM

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT

IN AND FOR MIAMI-DADE COUNTY, FLORIDA
Case No.: 2018-034893

STEVEN MIRO

Plaintiff, Expedited Treatment

v. Required by Statute

CITY OF MIAMI &

JOE CAROLLO

Defendants.
_______________________________________/

PLAINTIFF’S MOTION FOR SANCTIONS AGAINST THE CITY OF MIAMI

Pursuant to Rule 1.380(d), Plaintiff Steven Miro hereby files his Motion for Sanctions

Against the City of Miami for not appearing at a properly noticed deposition.

1. Plaintiff noticed the City of Miami’s deposition regarding his pending motion for

entitlement to fees and costs as the prevailing party under this PRR action. See Exhibit A (notice

of deposition).

2. The City of Miami expressly stated it would not provide a witness for the

deposition, but did not indicate any reason for refusing to do so. See Exhibit B (email).

3. The City of Miami did not appear for the properly noticed deposition. See Exhibit

C (certificate of non-appearance).

4. A special set hearing on Plaintiff’s motion is scheduled for Monday, March 4,

2019. The motion was filed on January 11, 2019 and the hearing was noticed on January 15,

2019.

5. As of the date of this filing, the City of Miami has not responded to the motion for

fees. Nor has the City ever provided, even informally, an explanation for why the Plaintiff

would not be entitled to fees and costs as the prevailing party.

KAPLAN YOUNG & MOLL PARRÓN, 600 Brickell Avenue, Suite 1715, Miami, Florida 33131, 305.330.6090
www.kymplaw.com
 6. The City did not even file a motion for a protective order, much less receive a

protective order. “The filing of a motion for protective order does not act as an automatic stay in a

civil action.” Momenah v. Ammache, 616 So. 2d 121, 124 (Fla. 2d DCA 1993); Stables v. Rivers,

559 So. 2d 440 (Fla. 1st DCA 1990) (holding that nothing in the rules of civil procedure allow a

party to not participate in discovery merely by filing a motion for a protective order).

7. Rule 1.380(d) authorizes the following sanctions if a party fails to attend its own

scheduled deposition:

a. “(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.

b. (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. (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.”

8. Rule 1.380(d) further states: “Instead of any order or in addition to it, the court

shall require the party failing to act to pay the reasonable expenses caused by the failure, which

may include attorneys' fees, unless the court finds that the failure was substantially justified or

that other circumstances make an award of expenses unjust. The failure to act described in this

subdivision may not be excused on the ground that the discovery sought is objectionable unless

the party failing to act has applied for a protective order as provided by rule 1.280(c).”

(Emphasis added).

2
KAPLAN YOUNG & MOLL PARRÓN, 600 Brickell Avenue, Suite 1715, Miami, Florida 33131, 305.330.6090
www.kymplaw.com
 9. Here, the City of Miami’s conduct was particularly troublesome – instead of filing

a motion for a protective order, it simply responded by stating it would not provide a witness.

I.e., it knew the deposition was noticed, but just said “we don’t care.” This is even more

problematic because the City of Miami has not responded to the pending motion for fees and

costs despite the special set hearing set for less than a week away. Plaintiff has no idea what facts

(if any) the City intends to rely upon to defeat the pending motion.

10. The appropriate sanction is for the Court to accept as true all facts alleged in the

Plaintiff’s motion for fees and costs and to otherwise preclude the City of Miami from making

any contrary factual assertions. The City of Miami should also be obligated to reimburse the

Plaintiff for his fees and costs incurred in preparing for and attending the deposition and for the

filing of this motion.

For the reasons stated above, Plaintiff requests an order sanctioning the Defendant City of

Miami, accepting as true all facts alleged in the Plaintiff’s motion for fees and costs, precluding

the City of Miami from making any contrary factual assertions, and entitling him to fees and

costs in connection with the deposition and this motion.

. Respectfully submitted,

_/s/ Matthew Sarelson

Matthew Seth Sarelson, Esq.
Florida Bar 888281
KAPLAN YOUNG & MOLL PARRÓN
Attorneys for Plaintiff Steven Miro
600 Brickell Avenue, Suite 1715
Miami, Florida 33131
Phone (305) 330-6090
msarelson@kymplaw.com

3
KAPLAN YOUNG & MOLL PARRÓN, 600 Brickell Avenue, Suite 1715, Miami, Florida 33131, 305.330.6090
www.kymplaw.com
 CERTIFICATE OF SERVICE
I hereby certify that I electronically filed this document on February 27, 2019 via the

Court’s eportal system and that it will email this document to all counsel of record.

/s/ Matthew Sarelson

Matthew Sarelson

4
KAPLAN YOUNG & MOLL PARRÓN, 600 Brickell Avenue, Suite 1715, Miami, Florida 33131, 305.330.6090
www.kymplaw.com
Filing # 84698207 E-Filed 02/11/2019 10:27:52 AM

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT

IN AND FOR MIAMI-DADE COUNTY, FLORIDA
Case No.: 2018-034893

STEVEN MIRO

Plaintiff,
v.

CITY OF MIAMI

Defendant.
_______________________________________/

PLAINTIFF’S NOTICE OF TAKING DEPOSITION OF THE CITY OF MIAMI

Pursuant to Rule 1.310(b)(6), please take notice that Plaintiff will take the deposition of

Defendant City of Miami on Tuesday, February 26, 2019 at 2pm at KYMP, 600 Brickell

Avenue, Suite 1715, Miami, Florida 33131. 1

The topics of the deposition shall include:

1. All steps taken by the City of Miami to respond to Public Records Request No. 18-

1201, including the dates and times and method of any search for responsive

documents.

2. All facts supporting any response to Plaintiff’s motion for attorney fees and costs, or

all facts tending to disprove any of the allegations in the Plaintiff’s motion for

attorney fees and costs.

Respectfully submitted,

_/s/ Matthew Sarelson

Matthew Seth Sarelson, Esq.
Florida Bar 888281
KAPLAN YOUNG & MOLL PARRÓN
Attorneys for Plaintiff Steven Miro
600 Brickell Avenue, Suite 1715

1
Or another reasonable date and time in advance of the March 4, 2019 hearing.

KAPLAN YOUNG & MOLL PARRÓN, 600 Brickell Avenue, Suite 1715, Miami, Florida 33131, 305.330.6090
www.kymplaw.com
Exhibit A
 Miami, Florida 33131
Phone (305) 330-6090
msarelson@kymplaw.com

CERTIFICATE OF SERVICE

I hereby certify that I electronically filed this document on February 11, 2019 via the
Court’s eportal system and that it will email this document to all counsel of record.

/s/ Matthew Sarelson

Matthew Sarelson

2
KAPLAN YOUNG & MOLL PARRÓN, 600 Brickell Avenue, Suite 1715, Miami, Florida 33131, 305.330.6090
www.kymplaw.com
From: Eves, Eric
To: Matthew Sarelson
Cc: Harrison, Douglas A.
Subject: FW: SERVICE OF COURT DOCUMENT CASE NUMBER 132018CA034893000001 Steven Miro vs City of Miami et al
Date: Tuesday, February 19, 2019 2:19:48 PM
Attachments: Notice Of Taking Deposition.pdf

Matthew,

The City will not provide any witnesses for this deposition.

Eric

Eric J. Eves, Assistant City Attorney

City of Miami
Office of the City Attorney
Telephone:  305-416-1816
Facsimile:  305-416-1801
eeves@miamigov.com

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From: eservice@myflcourtaccess.com <eservice@myflcourtaccess.com>

Sent: Monday, February 11, 2019 10:28 AM
Subject: SERVICE OF COURT DOCUMENT CASE NUMBER 132018CA034893000001 Steven Miro vs City of Miami et al

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Notice of Service of Court Documents

Filing Information

Filing #: 84698207

Filing Time: 02/11/2019 10:27:52 AM ET

Filer: Matthew Seth Sarelson 305-330-6090

Court: Eleventh Judicial Circuit in and for Miami-Dade County, Florida

Case #: 132018CA034893000001

Court Case #: 2018-034893-CA-01

Case Style: Steven Miro vs City of Miami et al

Documents

Title File

Notice of Deposition.pdf
Notice Of Taking Deposition

E-service recipients selected for service:

Name Email Address

Exhibit B
 1

IN THE CIRCUIT COURT OF THE ELEVENTH

1
JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY,
2 FLORIDA

3
STEVEN MIRO,
4
Plaintiff,
5
vs.
6

7 THE CITY OF MIAMI,

8
Defendant,
9

10 Case No. 2018-034893 CA-01

11 CERTIFICATE OF NON-APPEARANCE

12
STATE OF FLORIDA
13 MIAMI-DADE COUNTY, FLORIDA

14 I, Rufo Lyons, a Court Reporter and a Notary

Public in and for the State of Florida, do hereby
15 certify that, pursuant a Notice of Taking a
Deposition in the above-entitled cause, I was
16 present at 600 Brickell Avenue, Suite 1715, Miami,
Florida 33131 for the purpose of reporting the
17 Deposition of City of Miami, scheduled to begin at
2:00 p.m. on the 26th day of February, 2019; that
18 Matthew Sarelson, Esquire was present; and that I
remained there until 2:30 p.m.
19
I further certify that there City of Miami,
20 nor anyone in their behalf.

21 WITNESS MY HAND AND SEAL in the City of

Miami, County of Miami-Dade, State of Florida,
22 this 26th day of February, 2019.

23
___________________
24 Rufo Lyons
Court Reporter/Notary Public
25 MY COMMISSION # GG 101845
EXPIRE: May 7, 2021

Exhibit C