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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO: 0:22-CV-61553-WPD

CRUZ VALDIVIESO FIGUERA,

Plaintiff,

vs.

ALL VIP CARE, INC., &

LIZ VELAZQUEZ McKINNON,

Defendants.

__________________________________________/

DEFENDANTS’ MOTION LEAVE FOR WITNESS ANGELA MELENDEZ TO APPEAR 

TELEPHONCALLY OR BY ZOOM AT TRIAL

The Defendants in accordance with Rule 43 of Fed. R. Civ. P. et al., and Local Rule 7.1, 

file this Motion to For Leave for Witness Angela Melendez to Appear Telephonically or by 

Zoom for Trial and in support thereof states:

1. Angela Melendez is a material witness in the present action.

2. Angela Melendez was served with a subpoena for trial in this matter for the trial 

period beginning October 23, 2023 through and including November 3, 2023.

3. Angela Melendez informed the undersigned that due to a recent fall she has been 

ordered to bed rest by her physician.

4. The Defendants request that Angela Melendez be allowed to appear by telephone 

or by way of Zoom for this trial.

5. This granting of this request will not prejudice the Plaintiff; however if Angela 

Melendez was not allowed to appear at trial via telephone or by a Zoom type platform, then the 

Defendants would be significantly prejudiced in the trying of this case.

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Memorandum of Law

6. Rule 43 of the Fed. R. Civ. P., states in pertinent part, 

“(a) IN OPEN COURT. At trial, the witnesses’ testimony must be taken in open 

court unless a federal statute, the Federal Rules of Evidence, these rules, or other 

rules adopted by the Supreme Court provide otherwise. For good cause in 

compelling circumstances and with appropriate safeguards, the court may permit 

testimony in open court by contemporaneous transmission from a different 

location.” (emphasis added.)

7. In a recent Southern District case BluestarExpo Inc.v. Enis, No.21-20875-CivScola (S.D. Fla., Oct.17, 2022), the Court explained that a compelling circumstance is an 

unexpected circumstance — an accident or illness that prevents the witness from traveling to the 

courthouse.1Id.

8. In the case at bar the circumstances that give rise this motion were not expected or 

anticipated and are compelling, the reason was that the witness, suffered a fall that requires bed 

rest per her physician.

WHEREFORE the Defendants requests that this Court grant this motion an allow Angela 

Melendez to appear by telephone or by way of zoom; together with whatever further relief that 

this Court deems to be fit and proper.

CERTIFICATIONS

1. I certify that in accordance with Local Rule 7.1(3) prior to the filing of this 

motion the Defendants conferred with the Plaintiff about the relief requested in this motion. The 

Plaintiff refused to consent to the entry of an agreed order regarding this motion.

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In Bluestar Expo, the compelling circumstance proffered by the plaintiff was that two of its 

witnesses simply refused to travel from their homes (upstate New York, and Turkey) to the 

Southern District of Florida. Mere inconvenience doesn’t satisfy Rule 43(a), the court held. “The 

difficulties in procuring in-person testimony here were all reasonably foreseeable.”

Case 0:22-cv-61553-WPD Document 100 Entered on FLSD Docket 10/17/2023 Page 2 of 3
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2. I hereby certify that a copy of this pleading which was filed with the Clerk of the 

Court and was provided to: Brian Howard Pollock, Esquire, Fairlaw Firm, 135 San Lorenzo, 

Avenue, Suite 770, Coral Gables, FL 33146, Brian@fairlawattorney.com; and all attorneys listed 

on and via the ECM System on October 17, 2023.

/s/ RANDY M. GOLDBERG, ESQUIRE

Florida Healthcare Law Firm

FBN: 045187

151 NW 1st Avenue

Delray Beach, FL 33444

754-224-0867

RMGEsquire@gmail.com

Randy@Randygoldberglaw.com

Case 0:22-cv-61553-WPD Document 100 Entered on FLSD Docket 10/17/2023 Page 3 of 3