Caribe Food LLC v. Penn-America Insurance Company
| Caribe Food LLC doing business as El Siboney |
| Penn-America Insurance Company |
| 4:2021cv10008 |
| January 15, 2021 |
| US District Court for the Southern District of Florida |
| Lauren Fleischer Louis |
| K Michael Moore |
| Insurance |
| 28 U.S.C. § 1332 |
| Plaintiff |
Docket Report
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Filing 19
PAPERLESS ORDER. THIS CAUSE came before the Court upon Plaintiff's Reply to Affirmative Defenses. #18 . Therein, Plaintiff "denies each and every affirmative defense raised by [Defendant] and demands strict proof thereof." Id. Neither the Local Rules of the Southern District of Florida nor the Federal Rules of Civil Procedure authorize the filing of a reply to an answer and affirmative defenses, except where a court orders such a reply. See Fed. R. Civ. P. 7(a)(7). The Court has not so ordered such a reply in this case. Accordingly, Plaintiff's Reply to Affirmative Defenses is an improper pleading. UPON CONSIDERATION of Reply, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED that Plaintiff's Reply to Affirmative Defenses is STRICKEN. The Clerk of the Court is INSTRUCTED to STRIKE Plaintiff's Reply to Affirmative Defenses #18 from the docket. Signed by Chief Judge K. Michael Moore on 3/15/2021. (hwr)
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| Filing 18 Plaintiff's REPLY to affirmative Defenses by Caribe Food LLC. (Ligman, James) |
| Filing 17 ANSWER and Affirmative Defenses to Complaint re the Notice of Removal by Penn-America Insurance Company. (Chodos, Jason) |
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Filing 16
PAPERLESS ORDER. THIS CAUSE came before the Court upon Defendant's Notice of Withdrawal of Counsel. #15 . Therein, Defendant requests that the Court permit Dana B. Kuczynski who has resigned from Litchfield Cavo LLP to withdraw as counsel for Defendant. Id. Defendant argues that Jason M. Chados of Litchfield Cavo LLP will continue to represent Defendant as counsel of record in this matter. Id. UPON CONSIDERATION of the Notice #15 , the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that Defendant's request that Dana B. Kuczynski be permitted to withdraw as counsel for Defendant #15 is GRANTED. Dana B. Kuczynski shall be relieved of all further responsibilities related to Defendant in these proceedings. The Clerk of Court is INSTRUCTED to remove Dana B. Kuczynski as counsel for Defendant. Signed by Chief Judge K. Michael Moore on 3/3/2021. (hwr)
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| Attorney Dana Beth Kuczynski representing Penn-America Insurance Company (Respondent) terminated per DE #15 . (pcs) |
| Filing 15 NOTICE by Penn-America Insurance Company of Withdrawal of Counsel (Kuczynski, Dana) |
| Filing 14 Clerks Notice to Filer re #13 Notice (Other). Parties/Mediator Not Added; ERROR - The Filer failed to add all parties from the complaint/petition/removal, etc. or the mediator. Filer is instructed to file a Notice of Entry of Parties Listed into CM/ECF and add the additional parties/mediator. (pcs) |
| Filing 13 NOTICE by Caribe Food LLC selection of Mediator (Ligman, James) |
| Filing 12 Initial Disclosure(s) pursuant to Rule 7.1 Disclosure and Certificate of Interested Parties by Caribe Food LLC (Attachments: #1 Certification Certification of Interested Parties)(Ligman, James) |
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Filing 11
PAPERLESS ORDER. THIS CAUSE came before the Court upon Respondent's Unopposed Motion for Extension of Time to Respond to the Petition. #10 Therein, Respondent requests a two (2) week extension of time to respond to the petition because Respondent "is in the process of evaluating the Petition to determine whether it has a legally sufficient Rule 12 motion or, alternatively, whether it should answer the Petition." Id. at 2. UPON CONSIDERATION of the Motion #10 , the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that the Motion #10 is GRANTED. Respondent's response to the Petition shall be due on or before March 5, 2021. Signed by Chief Judge K. Michael Moore on 2/18/2021. (hwr)
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| Filing 10 Unopposed MOTION for Extension of Time to File Response/Reply/Answer as to #1 Notice of Removal (State Court Complaint),,, 9 Order,,,, by Penn-America Insurance Company. (Attachments: #1 Text of Proposed Order)(Chodos, Jason) |
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Filing 9
PAPERLESS ORDER. THIS CAUSE came before the Court upon a sua sponte examination of the record. On February 11, 2021, the Parties filed a Joint Scheduling Report #6 , wherein the Parties state "in the event that [Defendant's] pending Motion to Dismiss [3-1] is not granted, it is expected that discovery will be needed...." #6 at 2. There is no such motion pending. On January 15, 2021, contemporaneously with filing a Notice of Removal #1 , Defendant filed a Notice of Filing of Pending Motions at Time of Removal. #3 . That Notice did not serve to initiate a motion before this Court, nor could it as the arguments made in the state court motions rely, in part, on the Florida Rules of Civil Procedure. See [3-1]. Defendant is hereby ORDERED to file any Rule 12 motions on this Court's docket on or before February 19, 2021 in compliance with the Federal Rules of Civil Procedure and the Local Rules of the Southern District of Florida. Signed by Chief Judge K. Michael Moore on 2/12/2021. (hwr)
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Filing 8
PAPERLESS ORDER OF REFERRAL TO MEDIATION. Trial having been set in this matter for the two week trial period beginning February 14, 2022, at 9:00 a.m. pursuant to Rule 16 of the Federal Rule of Civil Procedure and Rule 16.2 of the Local Rules of the United States District Court for the Southern District of Florida, it is hereby ORDERED AND ADJUDGED as follows: 1. All parties are required to participate in mediation. The mediation shall be completed no later than eighty (80) days before the scheduled trial date. 2. Plaintiff's counsel, or another attorney agreed upon by all counsel of record and any unrepresented parties, shall be responsible for scheduling the mediation conference. The parties are encouraged to avail themselves of the services of any mediator on the List of Certified Mediators, maintained in the office of the Clerk of this Court, but may select any other mediator. The parties shall agree upon a mediator and file a Notice of Mediator Selection within fifteen (15) days from the date of this Order. If there is no agreement, lead counsel shall file a request for the Clerk of Court to appoint a mediator in writing within fifteen (15) days from the date of this Order, and the Clerk shall designate a mediator from the List of Certified Mediators. Designation shall be made on a blind rotation basis. 3. The parties shall agree upon a place, date, and time for mediation convenient to the mediator, counsel of record, and unrepresented parties and file a Notice of Scheduling Mediation no later than one hundred and ten (110) days prior to the scheduled trial date. If the parties cannot agree to a place, date, and time for the mediation, they may motion the Court for an order dictating the place, date, and time. 4. The physical presence of counsel and each party or representatives of each party with full authority to enter in a full and complete compromise and settlement is mandatory. If insurance is involved, an adjuster with authority up to the policy limits or the most recent demand, whichever is lower, shall attend. 5. All discussions, representations and statements made at the mediation conference shall be confidential and privileged. 6. At least ten (10) days prior to the mediation date, all parties shall present to the mediator a brief written summary of the case identifying issues to be resolved. Copies of those summaries shall be served on all other parties. 7. The Court may impose sanctions against parties and/or counsel who do not comply with the attendance or settlement authority requirements herein, or who otherwise violate the terms of this Order. The mediator shall report non-attendance and may recommend imposition of sanctions by the Court for non-attendance. 8. The mediator shall be compensated in accordance with the standing order of the Court entered pursuant to Rule 16.2.B.6, or on such basis as may be agreed to in writing by the parties and the mediator selected by the parties. The cost of mediation shall be shared equally by the parties unless otherwise ordered by the Court. All payments shall be remitted to the mediator within 30 days of the date of the bill. Notice to the mediator of cancellation or settlement prior to the scheduled mediation conference must be given at least two (2) full business days in advance. Failure to do so will result in imposition of a fee for one hour. 9. If a full or partial settlement is reached in this case, counsel shall promptly notify the Court of the settlement in accordance with Local Rule 16.2.F, by filing a notice of settlement signed by the counsel of record within ten (10) days of the mediation conference. Thereafter, the parties shall forthwith submit an appropriate pleading concluding the case. 10. Within five (5) days following the mediation conference, the mediator shall file a Mediation Report indicating whether all required parties were present. The report shall also indicate whether the case settled (in full or in part), was continued with the consent of the parties, or whether the mediator declared an impasse. 11. If mediation is not conducted, the case may be stricken from the trial calendar, and other sanctions may be imposed. Signed by Chief Judge K. Michael Moore on 2/12/2021. (hwr)
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Filing 7
PAPERLESS ORDER SCHEDULING TRIAL IN KEY WEST. This case is now set for trial commencing the two-week trial period of February 14, 2022, at 1 p.m. at the United States District Courthouse, 301 Simonton Street, Key West, Florida. All parties are directed to report to the calendar call on February 10, 2022, at 2 p.m., at which time all matters relating to the scheduled trial date may be brought to the attention of the Court. A final pretrial conference as provided for by Rule 16, Fed. R. Civ. P., and Rule 16.1(C), S.D. Fla. L.R., is scheduled for February 1, 2022, at 11 a.m. The calendar call and the final pretrial conference will take place in Courtroom 13-1 (thirteenth floor), United States District Courthouse, 400 North Miami Avenue, Miami, Florida. A bilateral pretrial stipulation and all other pretrial preparations shall be completed NO LATER THAN FIVE DAYS PRIOR TO THE PRETRIAL CONFERENCE. All motions to amend the pleadings or to join additional parties must be filed by the later of forty-five (45) days after the date of entry of this Order, or forty-five (45) days after the first responsive pleading by the last responding defendant. Any and all pretrial motions, including motions for summary judgment, Daubert motions, and motions in limine must be filed no later than eighty (80) days prior to the trial date. Responses to summary judgment motions must be filed no later than fourteen (14) days after service of the motion, and replies in support of the motion must be filed no later than seven (7) days after service of the response, with both deadlines computed as specified in Rule 6, Fed. R. Civ. P. Each party is limited to one Daubert motion. If all evidentiary issues cannot be addressed in a 20-page memorandum, the parties must file for leave to exceed the page limit. Each party is also limited to one motion in limine (other than Daubert motions). If all evidentiary issues cannot be addressed in a 20-page memorandum, the parties must file for leave to exceed the page limit. Rule 26(a)(2) expert disclosures shall be completed one hundred thirty (130) days prior to the date of trial. All discovery, including expert discovery, shall be completed one hundred (100) days prior to the date of trial. The failure to engage in discovery pending settlement negotiations shall not be grounds for continuance of the trial date. All exhibits must be pre-marked, and a typewritten exhibit list setting forth the number and description of each exhibit must be submitted at the time of trial. Plaintiff's exhibits shall be marked numerically with the letter "P" as a prefix. Defendant's exhibits shall be marked numerically with the letter "D" as a prefix. For a jury trial, counsel shall prepare and submit proposed jury instructions to the Court. The Parties shall submit their proposed jury instructions and verdict form jointly, although they do not need to agree on each proposed instruction. Where the parties do not agree on a proposed instruction, that instruction shall be set forth in bold type. Instructions proposed only by a plaintiff should be underlined. Instructions proposed only by a defendant should be italicized. Every instruction must be supported by citation to authority. The parties should use the Eleventh Circuit Pattern Jury Instructions for Civil Cases as a guide, including the directions to counsel contained therein. The parties shall jointly file their proposed jury instructions via CM/ECF, and shall also submit their proposed jury instructions to the Court via e-mail at moore@flsd.uscourts.gov in WordPerfect or Word format. For a non-jury trial, the parties shall prepare and submit to the Court proposed findings of fact and conclusions of law fully supported by the evidence, which counsel expects the trial to develop, and fully supported by citations to law. The proposed jury instructions or the proposed findings of fact and conclusions of law shall be submitted to the Court no later than five (5) business days prior to the scheduled trial date. Pursuant to Administrative Order 2016-70 of the Southern District of Florida and consistent with the Court of Appeals for the Eleventh Circuit's Local Rules and Internal Operating Procedures, within three days of the conclusion of a trial or other proceeding, parties must file via CM/ECF electronic versions of documentary exhibits admitted into evidence, including photographs of non-documentary physical exhibits. The Parties are directed to comply with each of the requirements set forth in Administrative Order 2016-70 unless directed otherwise by the Court. THE FILING BY COUNSEL OF A "NOTICE OF UNAVAILABILITY" BY MOTION OR OTHERWISE IS NOT PROVIDED FOR UNDER THE LOCAL RULES AND SHALL NOT BE PRESUMED TO ALTER OR MODIFY THE COURT'S SCHEDULING ORDER. Signed by Chief Judge K. Michael Moore on 2/12/2021. (hwr)
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| Filing 6 Joint SCHEDULING REPORT - Rule 16.1 by Penn-America Insurance Company (Attachments: #1 Exhibit "A" - Proposed Case Management Schedule, #2 Exhibit "B" - Proposed Scheduling Order)(Kuczynski, Dana) |
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Filing 5
PAPERLESS ORDER REFERRING PRETRIAL DISCOVERY MATTERS TO MAGISTRATE JUDGE LAUREN FLEISCHER LOUIS. PURSUANT to 28 U.S.C. 636 and the Magistrate Rules of the Local Rules of the Southern District of Florida, the above-captioned Cause is referred to United States Magistrate Judge Lauren Fleischer Louis to take all necessary and proper action as required by law with respect to any and all pretrial discovery matters. Any motion affecting deadlines set by the Court's Scheduling Order is excluded from this referral, unless specifically referred by separate Order. It is FURTHER ORDERED that the parties shall comply with Magistrate Judge Lauren Fleischer Louis' discovery procedures. Signed by Chief Judge K. Michael Moore on 1/18/2021. (hwr)
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Filing 4
PAPERLESS PRETRIAL ORDER. THIS ORDER has been entered upon the filing of a Notice of Removal. Counsel for the removing party is hereby ORDERED to forward a copy of this Order to all other parties. It is further ORDERED that S.D. Fla. L.R. 16.1 shall apply to this case and the parties shall hold a scheduling conference within twenty (20) days of the date of this Order. Within ten (10) days of the scheduling conference, counsel shall file a Joint Scheduling Report. The report shall indicate the proposed month and year for the trial and the estimated number of days required for trial. The scheduling conference may be held via telephone. At the conference, the parties shall comply with the following agenda that the Court adopts from S.D. Fla. L.R. 16.1: (1) Documents (S.D. Fla. L.R. 16.1.B.1 and 2) The parties shall determine the procedure for exchanging a copy of, or a description by category and location of, all documents and other evidence that is reasonably available and that a party expects to offer, or may offer, if the need arises. Fed. R. Civ. P. 26(a)(1)(B). (A) Documents include computations of the nature and extent of any category of damages claimed by the disclosing party unless the computations are privileged or otherwise protected from disclosure. Fed. R. Civ. P. 26(a)(1)(C). (B) Documents include insurance agreements which may be at issue with the satisfaction of the judgment. Fed. R. Civ. P. 26(a)(1)(D). (2) List of Witnesses - The parties shall exchange the name, address, and telephone number of each individual known to have knowledge of the facts supporting the material allegations of the pleading filed by the party. Fed. R. Civ. P. 26(a)(1)(A). The parties have a continuing obligation to disclose this information. (3) Discussions and Deadlines (S.D. Fla. L.R. 16.1.B.2) - The parties shall discuss the nature and basis of their claims and defenses and the possibility of a prompt settlement or resolution of the case. Failure to comply with this Order or to exchange the information listed above may result in sanctions and/or the exclusion of documents or witnesses at the time of trial. S.D. Fla. L.R. 16.1.I. Failure of counsel to file a joint scheduling report may result in remand or dismissal, default, and the imposition of other sanctions including attorney's fees and costs. The filing of a motion to dismiss, or other motion, does not toll the time for filing a joint scheduling report. Counsel for the non-removing party must file a motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction within thirty (30) days after the filing of the Notice of Removal. The parties are hereby on notice that this Court requires all filings to be formatted in 12 point Times New Roman font and double spaced, including any footnotes, with one-inch margins on all sides. Failure to follow these formatting guidelines may result in the filing being stricken, any opposing filing being granted by default, and the imposition of other sanctions, including attorney's fees and costs. Pursuant to Administrative Order 2016-70 of the Southern District of Florida and consistent with the Court of Appeals for the Eleventh Circuit's Local Rules and Internal Operating Procedures, within three days of the conclusion of a trial or other proceeding, parties must file via CM/ECF electronic versions of documentary exhibits admitted into evidence, including photographs of non-documentary physical exhibits. The Parties are directed to comply with each of the requirements set forth in Administrative Order 2016-70 unless directed otherwise by the Court. Telephonic appearances are not permitted for any purpose. Upon reaching a settlement in this matter the parties are instructed to notify the Court by telephone and to file a Notice of Settlement within twenty-four (24) hours. Signed by Chief Judge K. Michael Moore on 1/18/2021. (hwr)
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| Filing 3 NOTICE by Penn-America Insurance Company of Filing of Pending Motions at Time of Removal. Attorney Jason Michael Chodos added to party Penn-America Insurance Company(pty:res). (Attachments: #1 Motion to Dismiss Petition for Declaratory Relief, #2 Opposition to Motion to Dismiss, #3 Notice of Filing of Case Law in Support of Opposition, #4 Motion to Stay Discovery) (Chodos, Jason) |
| Filing 2 Clerks Notice of Judge Assignment to Chief Judge K. Michael Moore. Pursuant to 28 USC 636(c), the parties are hereby notified that the U.S. Magistrate Judge Lauren F. Louis is available to handle any or all proceedings in this case. If agreed, parties should complete and file the Consent form found on our website. It is not necessary to file a document indicating lack of consent. Pro se (NON-PRISONER) litigants may receive Notices of Electronic Filings (NEFS) via email after filing a Consent by Pro Se Litigant (NON-PRISONER) to Receive Notices of Electronic Filing. The consent form is available under the forms section of our website. (pcs) |
| Filing 1 NOTICE OF REMOVAL (STATE COURT COMPLAINT - Petition for Declaratory Relief) Filing fee $ 402.00 receipt number AFLSDC-14220672, filed by Penn-America Insurance Company. (Attachments: #1 Civil Cover Sheet, #2 Exhibit "A" - Process, Pleadings & Orders Served on Penn-America, #3 Exhibit "B" - Record from Pa. Insurance Department, #4 Exhibit "C" - Sunbiz Record, #5 Exhibit "D" - Penn-America's Interrogatories, #6 Exhibit "E" - Penn-America's Requests for Admission, #7 Exhibit "F" - Caribe's Interrogatory Responses, #8 Exhibit "G" - Caribe's RFA Responses, #9 Exhibit "H" - Caribe's Settlement Demand)(Kuczynski, Dana) No Answer/Motion to Dismiss filed. Modified on 1/15/2021 (pcs). |
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| Petitioner: Caribe Food LLC doing business as El Siboney | |
| Represented By: | James Carl Ligman |
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| Respondent: Penn-America Insurance Company | |
| Represented By: | Jason Michael Chodos |
| Represented By: | Dana Beth Kuczynski |
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