*1 THIS CAUSE is before the Court upon Third-Party Plaintiffs’ Motion for Order Precluding Ted Muftic from Using Any Information or Witness to Supply Evidence at Trial and for Other Relief (ECF No. 230). Third-Party Defendant Theodore Muftic filed a response in opposition (ECF No. 266) after his counsel was instructed to do so.[1] The matter was referred to the undersigned by the Honorable Federico A. Moreno, United States District Judge, pursuant to 28 U.S.C. § 636 and the Magistrate Judge Rules of the Local Rules of the Southern District of Florida, to take all necessary and proper action as required by law with respect to any and all pretrial matters (ECF No. 15). The undersigned held a hearing on the Motion on October 12, 2022, where the Court heard testimony from Mr. Muftic; the Motion was taken under advisement. (ECF No. 272). Upon consideration of the Motion, the Response, the record as a whole, and being otherwise duly advised in the premises, and with the benefit of the testimony and positions advanced at the October 12, 2022 hearing, the Motion (ECF No. 230) is GRANTED in part and DENIED in part as further set forth below.

I. BACKGROUND

This action began as a suit for breach of a promissory note, breach of guaranty, breach of a franchise agreement, defamation, and tortious interference with advantageous business contracts and relationships, brought by an income tax preparation service franchisor against former and current franchisees. Plaintiffs—the franchisors—initiated this action in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, on October 4, 2019. Defendants removed the action to this Court on November 1, 2019, invoking the Court's diversity jurisdiction pursuant to 28 U.S.C. § 1332. After motion practice and a series of amendments, Plaintiffs filed the operative Third Amended Complaint (ECF No. 81), on December 15, 2020.

On September 17, 2021, Defendants answered the Third Amended Complaint (ECF No. 125). Concurrently, they also filed their nine-count Counterclaims and Third-Party Complaint (id. at 16), naming Mr. Muftic as a Third-Party Defendant. The Court assumes familiarity with the allegations set forth in the Counterclaims and Third-Party Complaint, which do not bear summarizing here.

Mr. Muftic was served with process on January 12, 2022. (ECF No. 171). On February 19, 2022, he filed a motion to quash service of process, pursuant to Federal Rule of Civil Procedure 12(b)(5).[2] (ECF No. 182). The motion was denied on July 22, 2022. (ECF No. 216). On August 3, 2022, Mr. Muftic moved to dismiss for lack of personal jurisdiction. (ECF No. 226). The undersigned entered a Report and Recommendation (ECF No. 241), recommending that the district court deny the motion, because Mr. Muftic waived any objection to personal jurisdiction by failing to first assert that defense at the same time as his earlier-filed Rule 12(b)(5) motion. On October 17, 2022, the Report and Recommendation was adopted and Mr. Muftic's motion to dismiss for lack of personal jurisdiction was denied. (ECF No. 273). To date, Mr. Muftic has not filed an answer to the Third-Party Complaint.

*2 On June 15, 2022, the district court entered an order reopening discovery until August 8, 2022 (ECF No. 207). Trial is presently set to begin during the two-week trial period commencing March 13, 2023; the calendar call is scheduled for March 7, 2022. (ECF No. 276). Discovery remains closed. (Id.).

Now, pursuant to Federal Rule of Civil Procedure 37(c) and 37(d), Third-Party Plaintiffs move for sanctions against Mr. Muftic. They request that the Court preclude Mr. Muftic from using any information or witness to supply evidence on a motion, at a hearing, or at trial; prohibit Mr. Muftic from opposing the claims directed against him in the Third-Party Complaint and from introducing evidence at trial; and award Third-Party Plaintiffs’ expenses, including attorneys’ fees, against Mr. Muftic, his counsel, or both.

At the hearing on the Motion on October 12, 2022, the Court heard testimony from Mr. Muftic. Mr. Muftic testified that, because of his then-pending motions objecting to jurisdiction, he was unaware whether he was “in the case” or not, and thus did not know that he was required to appear for his deposition, having been told by counsel that he did not. Mr. Muftic also testified that he was not aware of the particular discovery requests at issue in the instant Motion (Third-Party Plaintiffs’ interrogatories and requests for production); his testimony further revealed that he had not received or read a copy of the instant Motion for Sanctions against him. Mr. Muftic further testified that attorney Amber Robinson, Esq., has been his attorney since January of 2022, that he has a limited understanding of the legal process, and that he afforded Ms. Robinson deference as his attorney. Mr. Muftic averred that he does not check the docket in this case, and that he is not aware of what a “limited appearance” is, such as the one entered by Ms. Robinson.

II. DISCUSSION

Third-Party Plaintiffs assert that, to date, Mr. Muftic has not complied with his initial disclosure obligations, served answers to discovery requests, appeared for a duly noticed deposition, or served a responsive pleading answering the Third-Party Complaint. Specifically, Third-Party Plaintiffs assert that Mr. Muftic's Rule 26 initial disclosures were due on or before February 11, 2022, 30 days after he was served with process on January 12, 2022, pursuant to Rule 26(a)(1)(D), but he has refused to make those disclosures. They assert that Mr. Muftic has failed to serve answers to, object to, or move for relief from interrogatories and requests for production that were propounded on June 30, 2022, during the then-reopened discovery period. Third-Party Plaintiffs also assert that Mr. Muftic failed to appear at, object to, or move to be excused from attending his duly noticed deposition. Moreover, they inform the Court that Mr. Muftic did not file a responsive pleading answering the Third-Party Complaint within 14 days of the Court's order denying his Rule 12(b)(5) motion to quash service. Rather, and according to Third-Party Plaintiffs, Mr. Muftic's counsel informed them on August 2, 2022, that Mr. Muftic would not be complying with the foregoing requests and obligations. Based on Mr. Muftic's failure to meet his discovery and disclosure obligations, or otherwise respond to the Third-Party Complaint, Third-Party Plaintiffs argue that they have no notice of any issue Mr. Muftic may raise at trial and thus, they would suffer undue prejudice unless Mr. Muftic is precluded from, essentially, opposing the claims asserted against him.

*3 Mr. Muftic's Response asserts that he has at all times acted in good faith, attempting to exhaust his defenses, through counsel making “special and limited appearance” before this Court. According to the Response, attorney Amber Robinson had only been retained to defend the now-denied motion to quash service of process. The Response argues that Mr. Muftic was not required to answer the discovery requests identified above while his motions to quash service and to dismiss for lack of personal jurisdiction were pending. To that end, the Response reiterates many of the same arguments advanced in Mr. Muftic's briefing on his motion to dismiss for lack of personal jurisdiction—that his successive filing of a second Rule 12(b) motion to dismiss is no more than a technical waiver of personal jurisdiction.[3] The Response contends that Rule 37 sanctions are not necessary at this posture.

The Court finds that Mr. Muftic has failed to comply with his discovery obligations. As to the failure to timely make Rule 26 initial disclosures, the Court finds that the failure is harmless because the prejudice can be cured. Nonetheless, the Court finds that sanctions are required because the failure to respond to discovery requests and appear for deposition was not substantially justified. But because the foregoing failures were caused by no fault of Mr. Muftic and are attributable wholly to Mr. Muftic's counsel, Amber Robinson, Esq., the Court awards sanctions against counsel directly, as set forth below.

A. Failure to Comply with Discovery and Disclosure Obligations

First, the Court finds that Mr. Muftic failed to comply with his discovery and disclosure obligations because he did not make initial disclosures, serve responses to Third-Party Plaintiffs’ discovery requests, or sit for a duly noticed deposition. Mr. Muftic did not serve initial disclosures upon being joined as a Third-Party Defendant in this case, within 30 days of being served with process in January of 2022. (ECF No. 171); see Fed. R. Civ. P. 26(a)(1)(D). Nor did Mr. Muftic serve answers to Third-Party Plaintiffs’ interrogatories and requests for production within 30 days of those requests being served. Fed. R. Civ. P. 33(b)(2); 34(b)(2)(A). Moreover, Mr. Muftic did not appear for a duly noticed deposition. (ECF No. 230 at 32).

Mr. Muftic was, indeed, required to comply with the foregoing disclosure obligations, discovery requests, and sit for his deposition. In the Response and also at oral argument, Ms. Robinson argued that Mr. Muftic was not required to serve initial disclosures or participate in discovery while his Rule 12(b)(5) motion to quash service was pending and later while his successive Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction was pending, so that Mr. Muftic's conduct would not be construed as a general appearance and so his objection to personal jurisdiction would be preserved. Not so. As was noted in the undersigned's Report and Recommendation, special appearances have long been abolished in the federal courts. See Pouyeh v. Pub. Health Tr. of Jackson Health Sys., 718 F. App'x 786, 791 (11th Cir. 2017) (observing that “the Federal Rules of Civil Procedure abolished the technical distinction between general and special appearances”) (citing Hous. Auth. of City of Atlanta v. Millwood, 472 F.2d 268, 272 (5th Cir. 1973); Orange Theatre Corp. v. Rayherstz Amusement Corp., 139 F.2d 871, 874 (3d Cir. 1944)). Moreover, the Response cites no federal authority that supports the proposition that, absent a court order, an objection to personal jurisdiction operates as an automatic stay of discovery and disclosure obligations as to the objecting party. Nor can the Court find any authority to that effect. Cf., e.g., Inspirations Nevada LLC v. Med Pro Billing, Inc., No. 20-CV-60268, 2020 WL 6581602, at *2 (S.D. Fla. Nov. 10, 2020) (stating that the party “should have moved for a protective order rather than simply failing to appear at the depositions of which they had plainly adequate notice”). To the extent the Response cites federal authority, the authority cited is inapposite, as discussed in further detail below.

*4 Further, the record does not reflect that Mr. Muftic sought to be excused from complying with any disclosure or discovery obligations. Mr. Muftic did not, through counsel or personally, move for a protective order, a stay of discovery as to him, an extension of time, or seek any other relief from any of his discovery and disclosure obligations while either of his Rule 12(b) motions were pending. Cf., e.g., Cabrera v. Progressive Behav. Sci., Inc., 331 F.R.D. 185, 186 (S.D. Fla. 2019) (noting that “[a] stay of discovery pending the determination of a motion to dismiss, however, is the exception rather than the rule”); Cuhaci v. Kouri Grp., LP, 540 F. Supp. 3d 1184, 1187–88 (S.D. Fla. May 14, 2021) (denying motion to stay discovery pending resolution of motions to dismiss); Inspirations Nevada LLC, 2020 WL 6581602, at *2.

Accordingly, the Court finds that Mr. Muftic was obligated to make initial disclosures, serve answers Third-Party Plaintiffs’ discovery interrogatories and requests for production, and sit for his deposition, but he failed to do so.

B. Rule 37

Second, the Court finds that sanctions are required. While the failure to make initial disclosures is harmless because the prejudice can be cured, sanctions must nonetheless be imposed because the failure to respond to discovery requests and appear at the deposition was not substantially justified. The Court first addresses the failure to make initial disclosures.

Federal Rule of Civil Procedure 26(a) requires a party, “without awaiting a discovery request,” to make certain disclosures to the other parties in the action. These disclosures include the name and contact information for individuals likely to have discoverable information that the disclosing party may use to support its claims or defenses; copies, or descriptions by category or location, of documents, electronically stored information, and tangible things in the disclosing party's possession the disclosing party may use to support a claim or defense; a computation of damages claimed; and any insurance agreement under which an insurance company may be liable to satisfy the judgment or indemnify the disclosing party. Fed. R. Civ. P. 26(a)(A)(i)–(iii). Generally, a party first joined in an action after the Rule 26(f) scheduling conference “must make initial disclosures within 30 days after being served or joined[.]” Fed. R. Civ. P. 26(a)(1)(D). “Rule 26(a)’s purposes are to allow for adequate case preparation and foreclose unfair surprises ... The initial disclosure requirement should be applied with common sense keeping in mind the salutary purposes that the rule is intended to accomplish.” Sec. & Exch. Comm'n v. Montano, No. 618CV1606ORL31GJK, 2019 WL 2254946, at *2 (M.D. Fla. Mar. 5, 2019) (citations omitted).

Where, as here, “a party fails to provide information or identify a witness as required by Rule 26(a) or (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, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). However, Rule 37(c) also provides that a court may, “[i]n addition to or instead of” the foregoing sanctions, “order payment of the reasonable expenses, including attorney's fees, caused by the failure,” “inform the jury of the party's failure,” and “impose other appropriate sanctions[.]” Fed. R. Civ. P. 37(c)(1)(A)–(C).

“An individual's discovery conduct should be found ‘substantially justified’ under Rule 37 if it is a response to a ‘genuine dispute, or if reasonable people could differ as to the appropriateness of the contested action.’ ” Pitts v. HP Pelzer Auto. Sys., Inc., 331 F.R.D. 688, 692 (S.D. Ga. 2019) (quoting In re Delta/AirTran Baggage Fee Antitrust Litig., 846 F. Supp. 2d 1335, 1358 (N.D. Ga. Feb. 3, 2012)). “A failure to timely make the required disclosures is harmless when there is no prejudice to the party entitled to receive the disclosure.” Hewitt v. Liberty Mut. Grp., Inc., 268 F.R.D. 681, 683 (M.D. Fla. 2010). The nondisclosing party bears “[t]he burden of establishing that a failure to disclose was substantially justified or harmless.” Mitchell v. Ford Motor Co., 318 F. App'x 821, 824 (11th Cir. 2009).

*5 Here, while the Court would find that the failure to provide initial disclosures was not substantially justified, the harm suffered by Third-Party Plaintiffs can be cured in light of the recently continued trial date—Mr. Muftic can and will be ordered to make belated initial disclosures.[4] However, the Court will nonetheless impose sanctions, to be borne by Ms. Robinson alone, for the failure to respond to discovery requests and appear for a duly noticed deposition.

Under Rule 37(d), courts must order sanctions where, as here, a party fails to appear for a duly noticed deposition or serve answers, objections, or responses to interrogatories or requests for inspection. Fed. R. Civ. P. 37(d)(1)(A). Under Rule 37(d)(3), sanctions may include any of the sanctions listed in Rule 37(b)(2)(A)(i)–(vi), which are: “(i) directing that the matters embraced in [a disobeyed discovery] order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment against the disobedient party[.]” Fed. R. Civ. P. 37(b)(2)(A)(i)–(vi). Courts, instead of or in addition to the foregoing sanctions, “must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(d)(3). “No showing of willfulness or bad faith or fault is required.” Inspirations Nevada LLC, 2020 WL 6581602, at *1 (quoting Joe Hand Promotions, Inc. v. Bowers, No. 1:18-CV-3859-MHC, 2020 WL 4557072, at *2 (N.D. Ga. Feb. 25, 2020)).

The Court finds that the failure to respond to Third-Party Plaintiffs’ interrogatories and requests for production and appear for deposition was not substantially justified, and thus sanctions are required. The Response does not directly argue that these failures were substantially justified, but to the extent, at oral argument, that Ms. Robinson asserted Mr. Muftic did not engage in discovery to act consistent with his special appearance and preserve his objection to personal jurisdiction, the argument is misplaced. The Federal Rules of Civil Procedure are clear that “[a] failure described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c).” Fed. R. Civ. P. 37(d)(2) (emphasis added). And here, review of the record reveals that Mr. Muftic, through counsel or personally, did not move this Court to stay discovery, to excuse him from participating in discovery pending resolution of his motion to quash service or motion to dismiss for lack of personal jurisdiction, or for any other protective order.

Further, the authorities advanced in the Response and by Ms. Robinson at oral argument do not stand for the proposition for which they are offered: that Mr. Muftic was automatically excused from participating in discovery because he had moved to quash service and objected to personal jurisdiction and endeavored to act consistent with that objection. Rather, the cases cited in the Response and advanced by Ms. Robinson, which discuss waivers of personal jurisdiction and find timely and proper Rule 12(b)(2) motions to dismiss for lack of personal jurisdiction filed after an answer asserting an affirmative defense to that effect, are inapposite. See In re Asbestos Prod. Liab. Litig. (No. VI), 921 F.3d 98, 106–07 (3d Cir. 2019) (finding that a party waived a personal jurisdiction defense by filing an answer despite that party's intent to preserve that defense); Mold-A-Rama Inc. v. Collector-Concierge-Int'l, 451 F. Supp. 3d 881, 886–87 (N.D. Ill. 2020) (finding that, “where a defendant has asserted a personal-jurisdiction defense in its answer and subsequently seeks dismissal on that basis, the Court must be able to decide such a motion under the Rule 12(b)(2) standard of review”); Levine Hat Co. v. Innate Intel., LLC, No. 4:16-CV-1132 (CEJ), 2017 WL 3021526, at *3 (E.D. Mo. July 17, 2017) (accepting as timely a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction filed after the defendant filed an answer asserting lack of personal jurisdiction as a defense).

*6 Thus, the Court finds that reasonable minds would not agree that, in the absence of a court order, Mr. Muftic was automatically excused from participating in discovery because he objected to service and personal jurisdiction. See Lewis v. Mercedes-Benz USA, LLC, No. 19-CIV-81220-RAR, 2020 WL 4923640, at *3 (S.D. Fla. Mar. 25, 2020) (quoting Mimbs v. J.A. Cambece Law Office, P.C., No. 12-62200, 2013 WL 11982063, at *1 (S.D. Fla. June 13, 2013)) (explaining that Eleventh Circuit precedence, specifically Chudasama v. Mazda Motor Corporation, 123 F.3d 1353 (11th Cir. 1997), “does not indicate a broad rule that discovery should be deferred or stayed whenever there is a pending motion that is potentially dispositive”).

For all these reasons, the Court finds that the failure was not substantially justified and that sanctions are required. See Fed. R. Civ. P. 37(d)(3). However, because the failures above are attributable entirely to Mr. Muftic's counsel, and correspondingly the imposition of sanctions on Mr. Muftic directly would be unjust, the Court will impose the award of sanctions against Ms. Robinson.

C. Failure Attributable to Counsel

Third, the Court attributes the failure to respond to interrogatories and requests for production, and to appear for deposition, to Mr. Muftic's counsel of record, Amber Robinson, Esq.

The Court notes that the scope of Ms. Robinson's representation in this matter has not been clear. In the Response, Ms. Robinson noted that she is retained only to defend the motion to quash. At oral argument, Ms. Robinson also asserted that the representation, which is pursuant to a written representation agreement, extended to litigating the motion to dismiss for lack of personal jurisdiction. Ms. Robinson averred that, in light of the limited scope of the representation and her special appearance before this Court, Third-Party Plaintiffs’ inquiries regarding their discovery requests should have been made to Mr. Muftic, directly. Ms. Robinson also faulted opposing counsel for not serving Mr. Muftic's deposition notice on Mr. Muftic, directly.

However, the Local Rules of this Court do not contemplate limited appearances whereby a party proceeds pro se with respect to some aspects of their case, such as discovery, but through counsel as to other aspects, such as motion practice. The relevant rule—Local Rule 11.1(d)(4)—reads in full as follows:

S.D. Fla. L.R. 11.1(d)(4). That Ms. Robinson entered an appearance as “special and limited counsel” had no meaning.

Moreover, all appearances were that Ms. Robinson was Mr. Muftic's attorney on a non-limited basis. There is no dispute that Ms. Robinson entered an appearance on Mr. Muftic's behalf in this action. Ms. Robinson also filed the Response to the instant Motion on Mr. Muftic's behalf. Further, at oral argument, counsel for the Third-Party Plaintiffs, Lonnie Simpson, proffered that it has appeared, throughout the litigation, that Mr. Muftic has been represented by Ms. Robinson and that he was not proceeding pro se.[5] Although Ms. Robinson attempted to fault Mr. Simpson and proffered that communications between her and Mr. Simpson explained the limited scope of her representation, Mr. Simpson's proffer was corroborated by Mr. Muftic's testimony at the hearing. Mr. Muftic credibly testified that Ms. Robinson has been his attorney since January of 2022, that he has a limited understanding of the legal process, and that he afforded Ms. Robinson deference as his attorney. Mr. Muftic's testimony also revealed that Ms. Robinson advised him that he would not have to comply with discovery requests or sit for deposition while his objection to personal jurisdiction was pending. Further, the Court credits Mr. Muftic's testimony that he would have complied with the discovery requests had he known about them—there is no indication Ms. Robinson advised Mr. Muftic that she did not represent him for purposes of discovery when Third-Party Plaintiffs’ deposition notice and discovery requests were provided to her for Mr. Muftic. Thus, the Court finds that Ms. Robinson's conduct created the appearance, both for her client and for opposing counsel, that the representation and her appearance before this Court were not “limited” in nature.

*7 The foregoing circumstances are troubling and reveal that the failure to provide responses to Third-Party Plaintiffs’ interrogatories and requests for production, and the failure to attend the deposition, were caused by Ms. Robinson and not by Mr. Muftic. Accordingly, the Court finds that the circumstances presented in this case warrant the imposition of sanctions against Ms. Robinson, alone. See Devaney v. Cont'l Am. Ins. Co., 989 F.2d 1154, 1160 (11th Cir. 1993) (“[A] motion for sanctions under Rule 37, even one which names only a party, places both that party and its attorney on notice that the court may assess sanctions against either or both unless they provide the court with a substantial justification for their conduct.”).

Having found that the failure to respond to Third-Party Plaintiffs’ discovery requests or sit for deposition was not substantially justified, the Court is required to, at a minimum, order payment of “the reasonable expenses, including attorney's fees, caused by the failure[.]” Fed. R. Civ. P. 37(d)(3). Because the failures identified above were caused by Ms. Robinson alone and not her client, this award of attorneys’ fees and expenses (to include court reporter appearance fees for Mr. Muftic's deposition) will be entered against Ms. Robinson, alone. Mr. Muftic will also be ordered to provide responses to Third-Party Plaintiffs’ interrogatories and requests for production, and to sit for a deposition, within the timeframe set forth below.

III. CONCLUSION

For the foregoing reasons, it is ORDERED AND ADJUDGED as follows:

*8 DONE AND ORDERED in Chambers at Miami, Florida, this 24th day of October, 2022.