15-005952 Cheryl Delong vs. Global Tpa Status: Closed Recommended Order on Wednesday, January 6, 2016.

Summary: Failure to cooperate in discovery warrants dismissal of Petition for Relief.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHERYL DELONG,

Petitioner,

vs. Case No. 15 - 5952

GLOBAL TPA,

Respondent.

_______________________________/

RECOMMENDED ORDER OF DISMISSAL

On December 22, 2015, Global TPA (Respond ent) filed a Motion

to Dismiss with Prejudice (Motion) and relevant exhibits. As

grounds for the Motion, the Respondent alleges that the

Petitioner has refused to participate in discovery and failed to

appear for a duly noticed deposition. No response to the Motion

has been filed by Cheryl DeLong (Petitioner). The time for

response has passed. See Florida Administrative Code Rules

28 - 106.103 and 28 - 106.204.

Florida Administrative Code Rule 28 - 106.206 provides that

discovery in this case may proceed Ð through the means and in the

manner provided in Rules 1.280 through 1.400, Florida Rules of

Civil Procedure.Ñ The cited rule permits imposition of the

sanctions contained in the Florida Rules of Civil Procedure,

except contempt, for any failure to make di scovery.

Florida Rules of Civil Procedure Rule 1.380(d) authorizes

the imposition of sanctions set forth in Rules 1.380(b)(2) (A),

(B) and (C) for the failure of a party to appear at a duly

noticed deposition. Florida Rules of Civil Procedure Rule

1.380( b)(2)(C) specifically provides for the dismissal of an

action to sanction a partyÓs refusal to permit discovery to

proceed or failure to appear at a duly noticed deposition.

Review of the Motion and exhibits establishes sufficient

grounds to warrant dism issal of the Petition for Relief filed in

this case.

The Motion also seeks an award of attorneyÓs fees and costs

pursuant to Florida Rules of Civil Procedure R ule 1.380(d) ,

which, in relevant part, states that Ðthe court shall require the

party failing t o act to pay the reasonable expenses caused by the

failure, which may include attorneysÓ fees, unless the court

finds that the failure was substantially justified or that other

circumstances make an award of expenses unjust.Ñ At this stage

of the proceedi ngs, dismissal of the case is the appropriate

sanction for the PetitionerÓs failure to cooperate in discovery,

and an additional penalty beyond dismissal is not warranted.

Based on the foregoing, it is hereby ORDERED that:

1. The RespondentÓs Motion to Dismiss is GRANTED.

Jurisdiction is relinquished to the Florida Commission on Human

Relation s for entry of a final o rder dismissing the Petition for

Relief filed by the Petitioner in this case.

2. The RespondentÓs request for an award of attorneysÓ fe es

and costs is DENIED.

DONE AND ENTERED this 6th day of January, 2016 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

123 0 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of January, 2016 .

COPIES FURNISHED:

Tammy S. Barton, Agenc y Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Erin L. Malone, Esquire

Phelps Dunbar LLP

100 South Ashley Drive

Suite 1900

Tampa, Florida 33602

(eServed)

Cheryl A. Delong

Apartment 201

6922 Ralston Place Drive

Tampa, Florida 33614

Cheyanne Costilla, Gen eral Co unsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.