              Case: 18-10170     Date Filed: 01/22/2019   Page: 1 of 11


                                                               [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 18-10170
                              Non-Argument Calendar
                            ________________________

                       D.C. Docket No. 1:14-cv-21307-KMW



MARICELIA SOTO,

                                                   Plaintiff - Appellant,

versus

MIAMI DADE COUNTY,
a political subdivision of the State of Florida,
KATHLEEN COLUMBRO,
Miami-Dade Police Officer,
OFFICER KIMBERLY LLAMBES,
Miami Dade Police Officer,

                                                   Defendants - Appellees.

                            ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          ________________________

                                  (January 22, 2019)

Before WILSON, JILL PRYOR and DUBINA, Circuit Judges.
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PER CURIAM:

      Appellant, Maricelia Soto (“Soto”), appeals the district court’s order

dismissing her civil rights complaint against Miami-Dade County and two Miami-

Dade County police officers (“the defendants”). The district court dismissed

Soto’s complaint because it found that Soto repeatedly violated its orders and that

she failed to abide by her discovery obligations, particularly with regard to her

deposition. After reviewing the record and reading the parties’ briefs, we affirm

the district court’s order of dismissal.

                                 I. BACKGROUND

      In 2014, Soto filed an action alleging claims of false imprisonment, false

arrest, assault and battery against Miami-Dade County and two of its police

officers. The complaint also alleged excessive force and 42 U.S.C. § 1983

violations against the two police officers. The defendants filed a motion to

dismiss, in part based on sovereign immunity, and the district court denied the

motion. The defendants filed an interlocutory appeal with this court, and this court

dismissed the appeal on September 14, 2016, for lack of jurisdiction.

      The district court set forth a scheduling order, and defendants noticed Soto’s

deposition for November 28, 2016. One month later, Soto’s counsel advised that

Soto would be unable to attend a deposition on that date, and the parties agreed to


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re-notice the deposition for December 21, 2016. However, on December 8, Soto’s

counsel notified the defendants that Soto had to undergo a medical procedure and

would be unable to attend a deposition. Soto’s counsel did not provide alternative

dates for her deposition. The defendants requested a hearing on the matter, and, at

the hearing, the magistrate judge found that Soto failed to provide a sufficient

excuse to prevent her deposition from proceeding. The magistrate judge ordered

Soto to be deposed by December 30, 2016, and if she needed accommodation or

was unable to be deposed for medical reasons, she had to provide a detailed

doctor’s note setting forth those accommodations or reasons in detail. The

magistrate judge further ordered that if Soto’s doctor was unable to state when it

would be medically safe for Soto to be deposed, the doctor must submit a note

indicating what testing occurred that led to that conclusion, whether additional

testing was necessary, and when that testing would occur. (R. Doc. 75.)

      Following the discovery hearing and order, the parties scheduled Soto’s

deposition for December 28, 2016. Soto appeared at the deposition sans a doctor’s

note, as ordered by the magistrate judge. Within approximately 11 minutes of the

deposition, Soto stood and fell to the ground. After fire medics arrived and

checked on Soto, she refused to leave with them, but left on her own accord. Soto

refused to reschedule the deposition within the time remaining as set forth in the


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magistrate judge’s order or at any other time. Rather, Soto moved to stay all

proceedings based on her alleged health conditions. The district court set the

matter for a hearing, but before the hearing, Soto’s counsel filed a motion to

withdraw because Soto failed to cooperate with him and share information about

her medical condition.

      The district court conducted a hearing on January 27, 2017, to address the

pending motions. The district court found that in the two-plus years since Soto

filed her lawsuit, she never informed defendants that she had any medical

condition that could interfere with her being deposed. The district court also found

that Soto did not produce sufficient medical records demonstrating why she could

not be deposed. The district court also discovered that Soto had failed to update

her interrogatory answers regarding treating physicians as required by Rule 26(e)

of the Federal Rules of Civil Procedure. The district court warned Soto that

ignoring the court’s order to provide medical records was “imperiling her case”

and that Soto needed to understand that if she continued to ignore the order, she

would not have a case. The district court informed Soto that if she continued to

violate its order, the district court would have to consider dismissal of her case.

(R. Doc. 153.) The district court reserved ruling on the motion to stay and motion

to withdraw and set another status conference for January 24, 2017. The district


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court advised that Soto’s failure to “fully comply with all Court orders going

forward” may result in sanctions including fines or dismissal. (R. Doc. 74.)

      Soto appeared at the hearing on January 24, 2017, but the district court

found that she was still not abiding with her discovery obligations. Following the

hearing, the district court denied Soto’s counsel’s motion to withdraw without

prejudice, ordered Soto to continue her mental examination, and required Soto to

provide a detailed report by February 7 regarding her medical condition. The

district court again cautioned that her failure to do so “will result in sanctions,

including but not limited to dismissal of this case.” (R. Doc. 77.) Soto failed to

comply with the district court’s order. The defendants filed a motion to dismiss,

asserting that Soto failed to meet her burden of showing that she was unable to

comply with the district court’s order requiring her to appear for deposition. Soto

requested a stay pending a follow-up report from one of her doctors.

      The district court held another hearing on February 13, summarizing at the

outset Soto’s history of noncompliance with the court’s orders and her discovery

obligations. After hearing from the parties, the district court ordered Soto to be

deposed by March 17, 2017, unless the court received a detailed report prior to

March 8, explaining Soto’s test results, the diagnosis or diagnostic plan, the

treatment plan, the specific reason why Soto could not be deposed, and an estimate


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of when Soto’s condition will abate, as well as any other relevant medical opinions

or information. (R. Doc. 82.) Soto failed to appear for her deposition before the

deadline, and she did not submit a doctor’s note as ordered by the district court.

Instead, she filed a letter from one of her doctors, stating that Soto had recently

developed a medical condition that prevented her from undergoing a deposition.

The district court again ordered Soto to comply with its previous order regarding a

detailed diagnosis and diagnostic plan by April 5, 2017. Soto filed another letter

from a doctor, but the district court determined that the letter failed to comply with

its specific orders.

         The district court conducted another hearing and concluded that, after nearly

four months of failing to comply with its orders, Soto was deliberately disregarding

the orders of the court. (R. Doc. 157.) Soto requested that the district court give

her a date for her deposition in order to avoid dismissal of her case. Despite

finding that Soto was deliberately disregarding its orders, the district court gave

Soto another opportunity. The district court granted Soto’s attorney’s motion to

withdraw, required that Soto file a copy of all her medical records, and ordered that

Soto provide the defendants with a date for her deposition prior to May 15, 2017,

unless she filed a detailed doctor’s report containing the information ordered by the

court.


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      The district court granted Soto’s two motions for extensions of time to

obtain counsel, effectively staying her obligations for over one month. After

several months, the district court conducted its final hearing, at which Soto

appeared pro se. The district court informed Soto that her deposition would be

scheduled, and there would be no further continuances. It specifically informed

Soto that it would dismiss her case if she failed to show for her deposition. (R.

Doc. 158 at 2:9–21, 3:5–10, 4:4–5:4.) The district court then scheduled her

deposition for October 23, 2017. After the hearing, the district court denied the

defendants’ motion to dismiss, ordered Soto to sit for a deposition on October 23,

2017, and informed Soto that her failure to complete her deposition would result in

a dismissal of her case. (R. Doc. 123.)

      Without any notice, Soto failed to appear for her deposition on October 23,

2017. Rather, after the deposition was scheduled to begin, Soto faxed a note to the

defendants and the court advising that she was in the hospital and unable to leave.

The defendants renewed their motion to dismiss pursuant to Rule 37 of the Federal

Rules of Civil Procedure, and Soto responded, explaining her recent medical

procedure. Her response did not inform the district court when she decided to

schedule the procedure, and it referred to an unnamed doctor who would not

discharge her from the hospital to attend her deposition. After the defendants


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replied, the district court granted the renewed motion to dismiss. The district court

stated that it had afforded Soto numerous opportunities to remedy her

noncompliance with its orders and had issued her repeated warnings that failure to

comply could result in dismissal of her case. As such, the district court found that

“its attempts at imposing lesser sanctions have been and will continue to be

unsuccessful at effectuating [Soto’s] compliance with the orders of this Court and

the rules governing litigation in federal court.” (R. Doc. 133.) Accordingly, it

granted the defendants’ renewed motion for dismissal with prejudice.

                                      II. ISSUE

      Whether the district court abused its discretion in dismissing with prejudice

Soto’s civil rights complaint because of her failure to abide by the district court’s

discovery orders.

                                 III. DISCUSSION

      We review dismissals under Rules 37 and 41 of the Federal Rules of Civil

Procedure for abuse of discretion. Gratton v. Great Am. Commc’ns, 178 F.3d 1373,

1374 (11th Cir.1999). The district court's factual findings are reviewed for clear

error. Zocaras v. Castro, 465 F.3d 479, 483 (11th Cir.2006). Pursuant to Rule

37(d), a court may sanction a party who, after being served with proper notice, fails

to appear for his deposition, and it lists as an appropriate sanction dismissal of the


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action. Fed.R.Civ.P. 37(d)(1)(A)(i); 37(d)(3), 37(b)(2)(A)(v). “[T]he sanction of

dismissal is a most extreme remedy and one not to be imposed if lesser sanctions

will do.” Hashemi v. Campaigner Publ'ns, Inc., 737 F.2d 1538, 1538-39 (11th

Cir.1984) (upholding dismissal pursuant to Fed.R.Civ.P. 37(d)). However, “the

district court retains the discretion to dismiss a complaint where the party's conduct

amounts to flagrant disregard and willful disobedience of the court's discovery

orders.” Id. at 1539 (internal quotation marks omitted); see also Phipps v.

Blakeney, 8 F.3d 788, 790–91 (11th Cir. 1993) (reviewing dismissal under Rule 37

and finding that court had broad authority to control discovery and dismiss the

action as a sanction for violating discovery).

      Under Rule 41(b), “[a] district court is authorized, on defendant's motion, to

dismiss an action for failure to prosecute or to obey a court order or federal rule.”

Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir.1985). “Dismissal of a case with

prejudice is considered a sanction of last resort, applicable only in extreme

circumstances.” Id. In reviewing a dismissal under Rule 41(b), this court

considers “whether there is a clear record of delay or willful contempt and a

finding that lesser sanctions would not suffice.” Id. (internal quotation marks

omitted). Mere negligence is not sufficient to justify a finding of delay or willful

misconduct. McKelvey v. AT&T Techs., Inc., 789 F.2d 1518, 1520 (11th


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Cir.1986). Dismissal pursuant to Rule 41(b) “upon disregard of an order,

especially where the litigant has been forewarned, generally is not an abuse of

discretion.” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.1989).

      We conclude from the record that the district court did not abuse its

discretion in granting the defendants’ motion to dismiss based on Soto’s continued

failure to abide by the court’s orders and to abide by her discovery obligations. The

district court found that Soto acted willfully in disregarding its orders, and it made

a finding that lesser sanctions would not suffice in this case. The record supports

the district court’s findings with nine written orders and numerous hearings

regarding Soto’s failure to comply with the district court’s orders and her

discovery obligations. Moreover, the district court gave Soto numerous

opportunities to correct her discovery deficiencies and to be deposed, but Soto

failed to take advantage of these opportunities. In addition, Soto never offered a

satisfactory explanation for why she was medically unable to be deposed. In light

of the district court’s numerous admonitions, warnings, and continuances, and a

record fully supportive of the district court’s findings, we conclude there was no

abuse of discretion by the district court in granting the defendants’ motion to

dismiss.

      Accordingly, we affirm the district court’s order.


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AFFIRMED.




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