Chapter 16-3 Sanctions Pursuant to Rule
16-3 Sanctions Pursuant to Rule
16-3:1 Introduction
The Florida Rules of Civil Procedure provide for sanctions in foreclosure cases. There are a number of rules which include a sanction component,40 including Rule 1.380, titled "Failure to Make Discovery; Sanctions."
16-3:2 Sanctions for Discovery Violations
Rule 1.380 provides that any party may apply for an order compelling discovery.41 If a party fails to respond to discovery, the discovering party may move for an order to compel that discovery.42 A discovery response that is challenged on the basis that it is incomplete or evasive is treated as though there was a failure to answer the discovery in its entirety.43 The motion must include a certification that the party seeking the order has, in good faith, conferred with the allegedly non-producing party.44
If a court enters an order compelling discovery, and there is subsequent non-compliance with the order, then Rule 1.380 empowers the court to enter sanctions. The trial court has discretion as to whether to sanction a party for failure to comply with a discovery order.45 In the case of a deponent at a deposition, if the deponent fails to answer or to be sworn in, following an order requiring the deponent to do so, the court may hold the deponent in contempt.46 Further, if a party or a party's representative fails to obey an order regarding discovery, the court is empowered to order that the subject matter of the testimony be taken to be established, refusing to allow the party to support or oppose certain claims or defenses or introduce matters into evidence, striking pleadings or parts thereof, staying the matter, dismissing the action or any part thereof, or entering a default judgment, treating the matter as a contempt of court.47 However, if the would-be sanctioned party can show an inability to produce the person for examination, the court's powers become limited.48
Additionally, with regard to requests for admissions, should there be a failure to admit the genuineness of any genuine document or the truth of any truthful matter, then the party seeking discovery may move for an order requiring the party avoiding admissions to pay the reasonable expenses involved in pursuing the discovery, including attorney's fees.49 Rule 1.380(c) contains exceptions, whereby a non-admitting party may not be sanctioned if the request was objectionable, the admission sought was of no substantial importance, or there was other good reason for failing to admit to the request.50
16-3:3 Limitations on Sanctions for Discovery Violations
The purpose of Rule 1.380 is to promote the orderly movement of litigation.51 Sanctions under Rule 1.380 are to be applied on a sliding scale of severity, with the ultimate sanction of dismissal or the striking of pleadings being reserved only for cases in which there has been a protracted history of discovery abuses, numerous motions to compel, the entry of prior sanctions, and obvious prejudice.52
To determine whether dismissal is warranted, rather than a less severe sanction, courts are guided by the following six factors: willfulness; prior sanctions of the attorney; whether the client was involved in the act of disobedience, rather than counsel being solely responsible for the act or neglect; prejudice; whether there was a reasonable...
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