1 

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 20-cv-22318-WILLIAMS/TORRES

KANAYO DERHEM, et al., 

 Plaintiffs, 

v.

BAY HOUSE MIAMI CONDOMINIUM

ASSOCIATION, et al., 

 Defendants. 

______________________________________/ 

ORDER ON PLAINTIFFS’ MOTION FOR SANCTIONS

This cause comes before the Court on Plaintiffs’ motion for sanctions due to 

alleged spoliation of evidence. [D.E. 187]. Defendants have responded to the motion, 

and the time for Plaintiffs to file a reply has passed. The motion, therefore, is ripe for 

disposition.1 After review of the briefing and relevant authorities, and for the reasons 

set forth below, Plaintiffs’ motion is DENIED. 

This case arises out of Plaintiffs’ allegations of violations of the Fair Housing 

Act. Specifically, Plaintiffs argue that they were mistreated on the basis of their sex 

and race by Defendants. In the pending motion, Plaintiffs seek sanctions because, 

they argue, Defendants (and specifically Charles Brumsted, Jr.) destroyed emails 

that evidence discriminatory animus towards Plaintiffs. As a result, Plaintiffs 

1 On September 23, 2024, the Honorable Kathleen M. Williams re-opened the pending 

motion and referred it to the Undersigned Magistrate Judge for disposition. [D.E. 

317].

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request that (1) Defendants be prohibited from raising arguments regarding the 

ostensibly lost evidence at trial; (2) jury instructions that include certain adverse 

inferences against Defendants; and (3) attorneys’ fees associated with the motion.

Much of the relief Plaintiffs request, however, is now moot. On September 23, 

2024, the Court entered a Final Judgment in favor of Defendants and none of 

Plaintiffs’ claims remain. [D.E. 318]. Thus, the only request for relief that is still in 

controversy is Plaintiffs’ request for attorneys’ fees incurred from the pending motion.

II. ANALYSIS

Plaintiffs’ request for fees is denied because Plaintiffs’ spoliation motion is 

untimely. Per the scheduling order in place at the time Plaintiffs filed the pending 

motion, all discovery was to be completed by October 22, 2021. Further, under the 

Local Rules, this dispute was to be brought to the Court’s attention within 28 days of 

non-production. This motion, meanwhile, was filed February 17, 2022—nearly four 

months after the close of discovery and approximately ten months after the Local 

Rules’ deadline lapsed.

At its core, this motion is indeed a discovery issue—it seeks sanctions for 

Defendants’ alleged failure to comply with certain requests for production. See Munro 

v. Fairchild Tropical Botanic Garden, Inc., No. 20-20079-CIV, 2021 WL 11960980, at 

*3 (S.D. Fla. June 30, 2021) (finding that a spoliation motion was a discovery motion 

“because discovery exchanged by the parties clearly revealed the spoliation at issue”).

As a result, it is untimely both under the Local Rules and the Court’s Scheduling 

Order.

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A. Plaintiffs’ Motion Violates Local Rule 26.1

Plaintiffs have impermissibly asked the Court to resolve a discovery dispute 

that Plaintiffs failed to timely raise under Local Rule 26.1(g)(2)(a). Our Local Rules 

require that “[a] party must submit any discovery dispute to the Court ... relating to 

the sufficiency of a production of documents or other materials ... within twenty-eight 

(28) days of the producing party’s service of the Notice of Completion of Production.” 

S.D. Fla. L.R. 26.1(g)(2)(a). 

Here, Plaintiffs make clear that they became aware of the alleged noncompliance “in [Defendants’] response to her discovery demands.” [D.E. 187 at 5].

Those discovery requests were propounded on January 25, 2021, and responded to in 

March of 2021. And yet, Plaintiffs did not bring the apparent non-production to the 

Court’s attention until the pending motion was filed in February of 2022—nearly one 

year after the Local Rule’s timeliness requirement had lapsed. 

Thus, Plaintiffs’ motion violates Local Rule 26.1 and is denied on that basis. 

See Munro, 2021 WL 11960980, at *3 (“Because Plaintiffs have been aware of the 

purported spoliation since May 29, 2020 [yet did not file the motion until May 3, 

2021]—with several other triggering discovery events since then—the Court finds 

that Plaintiffs have waived the relief sought in their untimely May 3, 2021 Motion.”); 

see also A.T.O. Golden Constr. Corp. v. Allied World Ins. Co., No. 17-24223-CIV, 2018 

WL 5886663, at *5 (S.D. Fla. Nov. 9, 2018) (denying spoliation motion and noting that 

“[i]f Plaintiff stonewalled discovery, as Defendants allege, then they should have 

sought relief pursuant to the Court's Discovery Calendar”); Haney v. PGA Tour, Inc., 

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No. 19-CV-63108, 2021 WL 535366, at *1 (S.D. Fla. Feb. 13, 2021) (quoting 4Demand, 

LLC v. G4S Secure Sols., Inc., No. 9:20-MC-80637-WPD/WM, 2020 WL 3266102, at 

*2 (S.D. Fla. June 17, 2020)) (“Notably, the purpose of Local Rule 26.1(g)(1) ... is to 

prompt early resolution of discovery disputes and to ensure that discovery motions 

are filed when ripe and not held until shortly before the close [of] discovery or the eve 

of trial.”).

B. Plaintiffs’ Motion Violates the Court’s Scheduling Order

Further, as an independent basis for denial, Plaintiffs’ motion violates the 

Court’s Scheduling Order. The Court required that, by October 22, 2021, “[t]he 

parties shall complete all discovery, including expert discovery.” [D.E. 178]. The 

pending discovery dispute, meanwhile, was not raised until February 17, 2022 (i.e., 

nearly four months after the discovery deadline lapsed). Accordingly, Plaintiffs’ 

motion is not only woefully untimely under the Local Rules, but is untimely under 

the Court’s Scheduling Order. 

The motion is also denied, then, on this separate basis. See Harborview Realty, 

Inc. v. Fifth Third Bank, Nat'l Ass'n, No. 2:21-CV-942-JLB-KCD, 2023 WL 7277169, 

at *1 (M.D. Fla. Oct. 3, 2023) (“The problem for Plaintiffs is simple, their request is 

untimely. Discovery closed on September 30, 2023, which is several days before the 

pending motion was filed. ... A motion to compel filed after the discovery deadline is 

thus dead on arrival.”); Ross v. Sejin Am., Inc., No. 3:18-CV-537-RAH-JTA, 2021 WL 

6973863, at *2 (M.D. Ala. May 26, 2021) (“The court agrees with Sejin that the instant 

motion is an attempt to conduct discovery after the discovery cutoff date. Because the 

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Plaintiffs’ motion to compel was filed after the expiration of the discovery deadline as 

set by the Uniform Scheduling Order and Plaintiffs have not shown good cause for 

modifying the schedule as required under Federal Rule of Civil Procedure 16(b)(4), 

the motion is due to be denied as untimely.”); Mannion v. Ameri-Can Freight Sys., 

2020 WL 417492, at *3 (D. Ariz. 2020) (“Spoliation is a discovery offense, so issues 

surrounding alleged spoliation should be resolved during discovery—not on the eve 

of trial.”); Wine Educ. Council v. Arizona Rangers, No. CV-19-02235-PHX-SMB, 2021 

WL 3550213, at *2 (D. Ariz. Aug. 11, 2021) (holding that “the Motion for Spoliation 

must be struck because Movants did not file the motion until after the close of 

discovery”); Muhammad v. Jenkins, No. CV 19-7970 JAK (PVC), 2022 WL 4292341, 

at *7–9 (C.D. Cal. Aug. 26, 2022), report and recommendation adopted, 2022 WL 

4292308 (C.D. Cal. Sept. 15, 2022) (denying spoliation motion because “Plaintiff 

inexplicably waited for well more than a year after she learned the facts underlying 

her spoliation sanctions request to file the ... motion” and “[m]any courts have found 

that because spoliation is a discovery-related issue, motions for spoliation sanctions 

typically must be brought during the discovery period”).

III. CONCLUSION

For the reasons set forth above, Plaintiffs’ Motion [D.E. 187] is DENIED. 

DONE and ORDERED in Chambers in Miami, Florida this 1st day of 

October, 2024.

/s/ Edwin G. Torres 

 EDWIN G. TORRES

 United States Magistrate Judge

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