Rumberger Kirk & Caldwell Attorney Mike Forte Wins Appeal for Kmart

12.11.09

In May v. Kmart, the Second District Court of Appeal denied the plaintiff's Petition for Certiorari regarding the location of his deposition. The injured plaintiff allegedly sustained a head injury in the subject accident, and therefore a conservator filed suit on his behalf. The injured plaintiff lives in Michigan, and he claimed he was not required to return to Florida for his deposition because he was not a party to the lawsuit. There is no case law directly on point, but Rumberger, Kirk & Caldwell argued the injured plaintiff must return to Florida because he is the real party in interest, despite not filing the suit himself. In addition, Rumberger, Kirk & Caldwell analogized the deposition rule to other rules of procedure in which the term "party" is used. Courts have ruled real parties in interest are parties in the contexts of medical examinations (Rule 1.360), proposals for settlement (Rule 1.442) and substitution of parties (Rule 1.260). Therefore, a real party in interest should be treated as a party plaintiff and required to return to Florida. After rendering its ruling, the appellate court granted Rumberger, Kirk & Caldwell’s Motion for Appellate Fees. 

 
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