Tagged Opinion

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

IN RE: 

CARLOS ALBERTO GARCIA,

 Debtor.

________________________________/

CASE NO. 18-11056-BKC-LMI

Chapter 7

DREW M. DILLWORTH, AS CHAPTER 

7 TRUSTEE,

 Plaintiff,

v.

ESTEBAN GUERRA, IVONNE PEREZ, 

AND ERICKA J. PEREZ,

 Defendants.

_________________________________/

ADV. CASE NO. 20-01049-LMI

ORDER GRANTING IN PART AND DENYING IN PART

MOTION FOR RECONSIDERATION

Laurel M. Isicoff

Chief United States Bankruptcy Judge

___________________________________________________________________________

ORDERED in the Southern District of Florida on November 12, 2020.

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This matter came before the Court on November 10, 2020 at 10:30 a.m. 

on Defendant’s Motion for to [sic] Reconsider Order of August 25, 2020 Granting 

Trustee’s Omnibus Motion (ECF #70) (the “Motion to Reconsider”). The Court has 

considered the Motion to Reconsider, argument of counsel for the Plaintiff Drew 

Dillworth as Trustee (the “Plaintiff”) and for the Defendant Ivonne Perez (the 

“Defendant”), and reviewed the applicable case law and rules. For the reasons 

more fully outlined below, the Motion to Reconsider is GRANTED in part and 

DENIED in part. 

The Motion to Reconsider seeks relief pursuant to Fed. R. Civ. P. 60(b) 

made applicable to these proceedings by virtue of Fed. R. Bankr. P. 9024.1 The 

Defendant argues that the Court should reconsider its Order Granting in Part 

Trustee’s Omnibus Motion2 (ECF #60) (the “Sanctions Order”) on the grounds of 

excusable neglect. Defendant’s counsel argues that his failure to comply with 

discovery requests over a period of several months3 was due to a litany of 

personal challenges exacerbated by the pandemic, and therefore his complete 

disregard of his obligations to his client and to the case should be excused or 

should be limited to monetary sanctions, the amount of which has already been 

resolved. Plaintiff argues that “complete abdication” of responsibility does not 

1 “On motion and just terms, the court may relieve a party or its legal representative from a final 

judgment, order, or proceeding for . . . excusable neglect.” 

2 Order Granting-in-Part Trustee’s Omnibus Motion to: 1) Enter Order to Show Cause; 2) Award 

Sanctions, Fees and Costs; 3) Compel Attendance at 7030 Examination Duces Tecum; 4) Produce 

Duces Tecum Documents; 5) Respond to Discovery Requests; and, 6) Deem Admissions Final and 

Enter Presumption in Favor of Trustee (ECF #60). 

3 Defendant’s counsel also failed to appear at the hearing after which the Sanctions Order was 

entered.

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constitute excusable neglect, and that, Plaintiff would be prejudiced if the 

Sanctions Order is modified or vacated.

The Sanctions Order granted the Plaintiff’s request to compel the 

Defendant to respond to interrogatories, produce documents, and appear at a 

deposition.4 The Sanctions Order also sanctioned the Defendant5 for failing to 

timely, or even ever, respond to outstanding discovery.6 Those sanctions are: 

Defendant Ivonne Perez’s pleadings were stricken; Defendant Ivonne Perez was 

prohibited from supporting or opposing designated claims or defenses, and from 

introducing designated matters into evidence; and Defendant’s counsel was 

required to pay all reasonable fees and costs associated with the various 

pleadings and other actions necessitated by the many failures to respond. 

Finally, the Sanctions Order ruled that all admissions requested in the Trustee’s 

Request for Admissions were deemed admitted.

Excusable neglect is an equitable concept “taking account of all relevant 

circumstances surrounding the party’s omission.” Pioneer Investment Services 

Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 395 (1993); Worldstar 

Communications Corp. v. Feltman (In re Worldwide Web Systems, Inc.), 328 F.3d

4 The Sanctions Order granted in part Trustee’s Omnibus Motion to: 1) Enter Order to Show Cause; 

2) Award Sanctions, Fees and Costs; 3) Compel Attendance at 7030 Examination Duces Tecum; 4) 

Produce Duces Tecum Documents; 5) Respond to Discovery Requests; and, 6) Deem Admissions 

Final and Enter Presumption in Favor of Trustee (ECF #48) (the “Motion to Compel”). 5 There is no dispute that all of the problems and delays were caused by Defendant’s counsel’s 

failure to do his job, but as the Supreme Court observed in Pioneer Investment Services Co. v. 

Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 397 (1993) “respondents [must] be held accountable 

for the acts and omissions of their chosen counsel.”

6 The Defendant finally responded to the outstanding discovery requests three days after the 

Sanctions Order was entered.

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1291 (11th Cir. 2003). These factors include prejudice to the non-moving party, 

“the length of the delay and its potential impact on judicial proceedings, the 

reason for the delay, including whether it was within the reasonable control of 

the movant, and whether the movant acted in good faith.” Pioneer, 507 U.S. at 

395. Accord Worldwide Web, 328 F.3d at 1297 (“[A] determination of excusable 

neglect is an equitable one that necessarily involves consideration of all three 

elements – a meritorious defense, prejudice, and a good reason for not 

responding . . . and not . . . exclusively prejudice.”).

All of the cases cited by Plaintiff, or that the Court otherwise reviewed, look 

at excusable neglect in the context in which it was raised. So, for example, the 

Supreme Court in Pioneer looked at “excusable neglect” through the lens of Fed.

R. Bankr. P. 9006 and Fed. R. Civ. P. 6 in the context of a late filed proof of claim. 

In Worldwide Web the Eleventh Circuit looked at “excusable neglect” through the 

lens of Rule 60(b) in the context of a motion to set aside a default judgment. In 

this case the Court must consider the Motion to Reconsider through the lens of 

Rule 60(b) but in the context of setting aside sanctions for failure to respond to 

discovery, and in the context of Fed. R. Civ. P. 36(b) with respect to the request 

to withdraw the admissions.

This Court has already been quite lenient with others during the

pandemic, and has made allowances for lack of diligence that normally would 

not be excused.7 And so, while the Court appreciates, and agrees with those 

7 The Court also notes that Plaintiff’s counsel made many overtures and gave many chances to 

the Defendant over several months before filing the Motion to Compel.

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cases cited by the Plaintiff that hold that a “complete and ongoing abdication of 

duty,” Bynes v. Vilos Navigation Co., Ltd., No. 18-CV-61840-UU, 2018 WL 

9372459, at *1 (S.D. Fla. Sept. 21, 2018), such as occurred in this case, would 

usually not be found excusable under the Pioneer standards, the Court will make 

that allowance in this case. 

Regarding the meritorious defense aspect of the Court’s consideration –

this is not a Motion to Reconsider entry of a judgment; in the context of seeking 

reconsideration of a sanctions order, it is not clear to what the meritorious 

defense analysis would apply. Thus, the Court finds that the “meritorious 

defense” element is not applicable when a Rule 60(b) motion is not seeking 

reconsideration of a final judgment or other case dispositive orders such as on 

motions to dismiss or motions for summary judgment.

Turning to the last element – prejudice – the Plaintiff argues that he will 

be prejudiced if the sanctions are withdrawn, but the Court is not convinced that 

the Plaintiff will be prejudiced other than to have to prove his case against the 

Defendant, something that courts encourage, as is evident when considering how 

the courts address prejudice under Rule 36(b). Moreover, unlike the Worldwide 

Web case, where, by the time the issue came before the Eleventh Circuit it had 

been three years since the original default judgment had been entered, in this 

case the Motion to Reconsider was filed less than three weeks after the Motion 

to Compel was filed. Thus, any prejudice to the Plaintiff with respect to modifying 

the Sanctions Order is minimal.

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Turning to Rule 36(b), the rule states that a court may permit withdrawal 

of an admission “if it would promote the presentation of the merits of the action 

and if the court is not persuaded that it would prejudice the requesting party in 

maintaining or defending the action on the merits.” While a trial court has some 

discretion regarding the decision to allow a withdrawal, that discretion is not 

unfettered. Perez v. Miami-Dade County, 297 F.3d 1255, 1263 (11th Cir. 2002).

The trial court must limit its decision regarding the request solely in the context 

of the rule’s two-part test. Id. at 1264.

[W]e read Rule 36(b) as granting a district court discretion but then 

specifying exactly how that discretion is to be exercised. See, e.g., . 

. . ; Mid Valley Bank v. North Valley Bank, 764 F. Supp. 1377, 1391 

(E.D. Cal.1991) ( “[A]lthough the motion [to withdraw admissions] is, 

as the parties acknowledge, directed to the sound discretion of the 

court, the discretion should not be exercised in terms of the 

defaulting party's excuses, but in terms of the effect upon the 

litigation and prejudice to the resisting party.”) (internal citations 

omitted). Rule 36(b)'s two-part test is much more than merely 

hortatory; it “emphasizes the importance of having the action 

resolved on the merits, while at the same time assuring each party 

that justified reliance on an admission in preparation for trial will 

not operate to his prejudice.” Smith [v. First Nat’l Bank, 837 F.2d 

1575, 1577-78 (11th Cir. 1988)], (quoting Fed. R. Civ. P. 36 advisory

committee's note).

Id. (emphasis supplied).8

The non-moving party must demonstrate prejudice. However, “[t]he 

prejudice contemplated by the Rule [36(b)] is not simply that the party who 

8 In Perez, Miami-Dade County failed to file responses to discovery, including requests for 

admission, for several months. The attorney for Miami-Dade County, in seeking withdrawal of 

the admissions (which if left to stand, conclusively established all the elements of the plaintiff’s 

claim), advised the trial court that he had been “under the care of a psychologist for a serious 

mental health condition that had rendered him incapable of carrying out his professional 

responsibilities . . . .” Id. at 1261.

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initially obtained the admission will now have to convince the fact finder of its 

truth. Rather, it relates to the difficulty a party may face in proving its case . . .

.” Id. at 1266 (quoting Smith). In Perez, the Eleventh Circuit rejected the plaintiff’s 

argument that he would be prejudiced, noting: there had not yet been a trial; the 

plaintiff had been, and was continuing to gather evidence to prove his case; and 

the only prejudice likely suffered was “the inconvenience in having to gather 

evidence” which prejudice, the court noted, did not justify denying the motion to 

withdraw. Id. at 1268 (citing Hadley v. United States, 45 F.3d 1345, 1349 (9th

Cir. 1995). The Court finds that in this case the Plaintiff has not demonstrated 

prejudice sufficient to deny withdrawal of the admissions.

For these reasons it is ORDERED as follows:

a. The Motion to Reconsider is GRANTED in part and DENIED in part.

b. The monetary sanctions shall remain in place.9

c. The non-monetary sanctions are removed.

d. The admissions are withdrawn.

The Defendant Ivonne Perez shall timely comply with all further deadlines 

in outstanding scheduling orders or file the appropriate motions with the Court 

(after first conferring with Plaintiff’s counsel) to alter those deadlines.

9 At the hearing Defendant’s counsel outlined all the measures he has taken, both personally 

and professionally, to assure that there are no further lapses in his service to his clients. Thus, 

the Court does not find it necessary at this time to impose additional professionalism 

requirements as a condition of the relief granted. However, if there are further lapses, the Court 

may require Defendant’s counsel to take additional measures in order to retain his right to 

appear before the Bankruptcy Court.

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# # #

Copies furnished to:

James Miller, Esq.

Jonathan Markoff, Esq.

Attorney Markoff shall serve a copy of this Order upon all parties in interest and 

file a Certificate of Service with the Clerk of Court. 

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