Preview
Filing # 136240260 E-Filed 10/08/2021 11:03:06 PM
IN THE CIRCUIT COURT OF THE 15"
JUDICIAL CIRCUIT COURT IN AND
FOR PALM BEACH’ COUNTY,
FLORIDA
TRANCIS ALOYSIUS MOMAHON, ar NO: 50-2020-CA-010915-XXXX-
Plaintiif,
‘VS.
BMW OF NORTH AMERICA LLC,
Defendant. :
DEFENDANT BM' 1F NORTH AMERICA, LLC’S RESPONSE IN
OPPOSITION TO PLAINTIFF’S MOTION TO DEEM REQUEST FOR ADMISSIONS
ADMITTED
Defendant, BMW of North America, LLC (“BMW NA”), in the above-captioned matter,
respectfully submits the within Response in Opposition to Plaintiffs Motion to Deem Request for
Admissions Admitted and in support thereof states as follows:
FACTUAL AND PROCEDURAL HISTORY!
1. On February 8, 2021, BMW NA filed a Motion to Dismiss Plaintiff’s Complaint
pursuant to Fla. R. Civ. P. § 1.140(b)(1) for lack of subject matter jurisdiction and Fla. R. Civ. P.
§ 1.140(b)(6) for failure to state a cause of action (“Motion”). See Motion to Dismiss of February
8, 2021 on file with the Court.
2. The Motion was set for hearing by the Court July 19, 2021. See Order Setting
! BMW NA reserves argument regarding the Request for Admissions and specific responses, as it is beyond the scope
of PlaintifPs Motion to Deem Request for Admissions Admitted, but preliminarily advises the Court that the Request
for Admissions contain improper requests directed to BMW NA and factually and legally inaccurate requests.
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Hearing on file with the Court.
3. Notwithstanding that the Motion sought dismissal for a threshold issue, to wit,
subject matter jurisdiction, Plaintiff’s counsel served initial discovery requests prior to the hearing
on May 25,2021. See Service Email attached hereto as Exhibit “A”.
4. The initial discovery requests included a Request for Production, Interrogatories
and Request for Admissions. Id.
5. Pursuant to Fla. R. Civ. P. 1.370, 1.340, 1.350, responses to the initial discovery
requests were due June 24, 2021.
6. On June 23, 2021, the undersigned emailed Plaintiff's Counsel, Rachel Cichowic,
prior to the discovery due date to ask if she had any objection to an extension as our office was
awaiting and reviewing file materials to prepare responses. Ms. Cichowic unequivocally
responded “Hello I can give you a 5 day extension.”
7. Pursuant to same, a timely Motion for Extension of time to respond to the initial
discovery requests was filed on June 24,2021. See Motion for Extension attached hereto as Exhibit
8. While our office followed up to determine whether Ms. Cichowic was agreeable to
us responding within 5 days of a ruling on the Motion, Ms. Cichowic declined.
9. Nonetheless, in response to our request to respond to the initial discovery requests
on or before July 2, 2021, Ms. Cichowic responded verbatim on June 28, 2021 “Hello I have no
issue responding July 2.” See email correspondence between the undersigned and Ms. Cichowic
regarding the extension cumulatively attached hereto as Exhibit “C”.
10. Pursuant to the above agreement, our office filed and served responses to Plaintiff’s
initial discovery requests on July 2, 2021. See email confirmation of service July 2, 2021 and the50-2020-CA-010915-XXXXMB
Response to Request for Admissions cumulatively attached hereto as Exhibit “D”.
11. The undersigned reasonably relied on the extension in filing discovery responses
on July 2, 2021 and at no point in time did Ms. Cichowic file opposition to the Motion for
Extension of Time or suggest that the extension was only relating to the Reauest for Production or
Interrogatories. See Exhibit “C”.
12. Notwithstanding, on July 14, 2021, Ms. Cichowic blindsided the undersigned by
filed a Motion to Deem Plaintiff's Request for Admissions Admitted. See Motion to Deem
Request for Admissions Admitted on file with the Court.
13. Therein, Ms. Cichowic includes a gaping and materially false record of events.
Specifically, Ms. Cichowic blatantly misrepresents to this Court that the extension was never
authorized by Plaintiff. See Plaintiff's Motion to Deem Request for Admissions Admitted and
Exhibit “C”.
14. However, the record submitted herewith demonstrates the accurate factual record.
In compliance with Local Rule 4 and this Court’s Divisional Instructions, the undersigned
contacted Plaintiff’s counsel to discuss the Motion for Extension and Ms. Cichowic agreed to the
extension without qualification. Id.
15. When the undersigned was in the process of preparing a proposed Order for the
Court pursuant to the timely Motion for Extension and agreed extension by Ms. Cichowic, she
declined any further extension and provided for the first time on the date that the responses were
agreed to be due that she was not granting the extension. See Exhibit “C”.
16. Based on the factual record, including the timely Motion for Extension of Time and
Ms. Cichowic’s original agreement to the extension and pursuant to Florida law as further
discussed below, the undersigned respectfully requests that this Court enter an Order denying50-2020-CA-010915-XXXXMB
Plaintiff's Motion to Deem Plaintiff’s Request for Admissions Admitted and awarding sanctions
against Ms. Cichowic for bad faith litigation conduct.
INCORPORATED MEMORANDUM OF LAW AND LEGAL ARGUMENT
I. BMW NA’S Motion for Extension of Time should be Granted and Plaintiffs
Motion to Deem Plaintiff’s Request for Admissions Admitted should be Rendered
Moot
Pursuant to the agreed extension on June 23, 2021 and prior to the discovery due date,
the undersigned filed a timely Motion for Extension of Time to respond to Plaintiff's initial
discovery requests under Fla. R. Civ. P. 1.090(b). See Exhibit “C”.
Fla. R. Civ. P. 1.090(b) provides in pertinent part as follows:
When an act is required or allowed to be done at or within a specified
time by order of court, by these rules, or by notice given thereunder,
for cause shown the court at any time in its discretion; (A) with or
without notice, may order the period enlarged if request therefor is
made before the expiration of the period originally prescribed ...
in compiiance with Fla. R. Civ. P. |A’s Motion for Extension was timely
filed and set forth cause shown for the extension, including that the undersigned was reviewing
the pertinent file materials to prepare appropriate responses and that it was BMW NA’s first
request for extension of time and not being sought for purposes of delay.
one of the carriers for the Champlain Towers collapse. As the Court is likely aware, the collapse
occurred on June 24, 2021 (the same date that responses were originally due) and in the immediacy
of same, we had to perform certain time sensitive work.
Moarenver at the time that diecnvery was carved thera wae a Motian ta Diemice nanding
Moreover, at the ime that ciscovery Was served, there was 2 Mouon to Dismiss pencing
which included a jurisdictional defense. Accordingly, it was not clear at that time whether this
Court had subject matter jurisdiction over this matter.50-2020-CA-010915-XXXXMB
Further, responses to all discovery requests were served and filed pursuant to the original
agreed extension date with Ms. Cichowic on July 2, 2021. See Exhibit “C”. This was merely one
week after responses were originally due.
Accordingly. the undersigned respectfully requests that the Court exercise its express
discretion under Fla. R. Civ. P. 1.090(b) and enter an Order granting the Motion for Extension,
which in effect will render BMW NA’s discovery responses timely and Plaintiff’s Motion to Deem.
Request for Admissions Admitted moot and/or denied. See e.g., Nicaragua Trader Corp. v. Alejo
Fla. Properties, LLC, 19 So. 3d 395 (Fla. 3d DCA 2009) (A motion for extension of time to file a
brief tolls the time for filing until the motion is ruled on); Pinnacle Corp. of Cent. Fla. v. R.L.
Jernigan Sandblasting & Painting, Inc., 718 So. 2d 1265 (Fla. 2" DCA 1998) (Home builder was
not in default at time trial court orally pronounced its default ruling, where builder had
filed timely motion for extension of time.)
Il. Alternatively, Plaintiff's Motion to Deem Plaintiffs Request for Admissions
Admitted should be Denied for Demonstrated Mistake, Inadvertence or
Excusable Neglect
As the material factual record clearly reflects, Plaintiff's counsel has filed this motion with
unclean hands and is seeking relief that would cause irreparable hardship and prejudice to BMW
NA. That said, to the extent of an arguable delay, which is clearly refuted by the factual record, it
was caused by Plaintiff's counsel apparent attempt to bait BMW NA into non-compliance and
constitutes demonstrated mistake, inadvertence or excusable neglect under Florida law. See e.g.,
Church v. Strickland, 382 So. 2d 419 (Fla. 5" DCA 1980) (Affirming the trial court’s order setting
aside partial summary judgment due to excusable neglect and a meritorious defense, which is left
to the discretion of the trial court to determine); Acosta v. Deutsche Bank Nat. Tr. Co., 88 So. 3d.
415, 416-17 (Fla. 5" DCA 2012) (providing pertinently that “Appellant's claim that a failure to
appear due to a calendaring or clerical error is the type of “excusable neglect” or “mistake” that50-2020-CA-010915-XXXXMB
warrants relief under rule 1.540(b) is well-supported in Florida law. See, e.g., J.J.K. Int'l, Inc. v.
Shivbaran, 985 So.2d 66, 68-69 (Fla. 4th DCA 2008) (holding it was error to deny 1.540(b) motion
seeking relief from order of dismissal entered after counsel failed to appear at hearing on motion
to dismiss because secretary mistakenly marked hearing as “cancelled”: Wilson v.
Woodward, 602 So.2d 547, 549 (Fla. 2d DCA 1992) (holding it was abuse of discretion to deny
1,540(b) relief from summary judgment after plaintiff's counsel failed to appear for hearing due to
secretary's failure to calendar)”).
In the instant case, while Ms. Cichowic’s conduct constitutes bad faith litigation tactics, to
the extent she claims any untimeliness, it is clear that she created a situation of excusable neglect.
The undersigned’s office would have been in no position to calendar a correct date to respond to
the discovery requests when it relied upon Plaintiff's counsel granting our office an extension in
the first instance for 5 days and in the second instance, through to and including July 2, 2021.
Similarly a meritorious defense is evident from the pending Motion to Dismiss at that time, which
included a challenge to subject matter jurisdiction.
‘Therefore, BMW NA’s Response to Plaintiff's Request for Admissions should be deemed.
timely and Plaintiff's Motion to Deem Request for Admissions Admitted should be denied in its
entirety.
III. Sanctions Should be Imposed Against Ms. Cichowic for Bad Faith Litigation
Conduct
As the factual record reflects, Ms. Cichowic has made blatant and inferably deliberate
misrepresentations to this Court in the Motion to Deem Request for Admissions Admitted.
Specifically, she had falsely advised this Court that an extension to respond to the Request for
Admissions was not provided by Plaintiff’s office and that “Defendant is not able to cite any
reason of mistake inadvertence or excusable neglect...”” These misrepresentations were made
to the Court against the backdrop of Ms. Cichowic’s email correspondence personally50-2020-CA-010915-XXXXMB
granting the extension of time for our office to respond to the discovery requests on July 2,
2021. See Exhibit “C”. Based on this bad faith litigation conduct, sanctions are appropriate
against Ms. Cichowic.
To this end, the Florida Supreme Court has recognized that “A trial court possesses the
inherent authority to impose attorney fees against an attorney for bad faith conduct.” Moakley v.
Smallwood, 826 So. 2d 221 (Fla. 2002)
In Shniderman v. Fitness Innovations & Techs., Inc., 994 So. 2d 508, 509 (Fla. 4%" DCA
2008) the court provided the guidelines for a court to reference when exercising their inherent
discretion to assess fees against a lawyer for bad faith. These guidelines include the following: 1)
an express finding of bad faith conduct is made; 2) the finding must be supported by factual
findings regarding the bad faith that resulted in the unnecessary incurrence of attorneys’ fees; 3)
the attorneys’ fees must be directly related to the attorneys’ fees and costs that the opposing party
has incurred as a result of the specific bad faith conduct; 4) a sanction is only appropriate after
notice and an opportunity to be heard and present witnesses; and 5) if a statute or rule applies, that
should govern over inherent authority.
Here, the pertinent facts in support of a determination that Ms. Cichowic has engaged
* Ms. Cichowic has made blatant misrepresentations to this Court and omitted material
facts from the Motion to Deem Request for Admissions Admitted regarding not
granting an extension to BMW NA;
e Ms. Cichowic has filed a frivolous motion for the Court’s adjudication and prompted
further unnecessary motion practice by the undersigned;
* Ms. Cichowic has acted in direct contravention of Local Rule 4 and this Court’s
Divisional Instructions;
© Ms. Cichowic has demonstrated a developing pattern of bad faith litigation conduct,50-2020-CA-010915-XXXXMB
which has already resulted in the Court awarding BMW NA entitlement to fees for the
hearing on its Motion to Dismiss. See Court Order of August 2, 2021 and transcript of
the July 19, 2021 hearing submitted to the Court with BMW NA’s Response in
Opposition to Plaintiff's Motion for Reconsideration.
Similar misconduct warranted sanctions against the client’s attorney in Shniderman
where the attorney, in part, failed to inform the court that the verified complaint erroneously
stated that there was a signed guaranty. See Shniderman at 508. Here, Ms. Cichowic has not
only failed to inform the Court that an extension was granted in the first instance, but further,
has blatantly misrepresented that an extension was not granted. See Motion to Deem Request
for Admissions Admitted and Exhibit “C”.
Based on the foregoing misconduct and following a hearing on the instant motion, the
undersigned counsel respectfully requests that the Court award fees and costs for have to
respond to the instant motion and attend the hearing.
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Honorable Court to enter an Order granting BMW NA’s Motion for Extension of time to respond
to discovery requests and deeming the responses timely; denying Plaintiff's Motion to Deem
Request for Admissions Admitted or rendering it moot; awarding attorneys’ fees and costs for
and attendance at the hearing on the Motion to Deem Re for
and attendance at the hearing on the Motion to Deem Rei for
Admissions Admitted; and for such other and further relief that this Court deems just and proper.
(CERTIFICATE OF SERVICE FOLLOWS.)§0-2020-CA-010915-XXXXMB
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served by e-mail
via the Florida Courts E-Filing Portal system on this 8" day of October, 2021, upon: Rachel
Cichowic Attorneys for Plaintiff at rcichowic@lemonlawgrouppartners.com.
BIEDERMANN HOENIG SEMPREVIVO, P.A.
601 Brickell Key Drive, Suite 700
Miami, Florida 33131
(646) 218-7541 Ext. 508- Telephone
(646) 218-7510- Fascimile
E-mail: suzanne.valles@lawbhs.com
By: /s/ Suzanne M. Valles
SUZANNE M. VALLES
Florida Bar No. 124546EXHIBIT “A”§0-2020-CA-010915-XXXXMB
Friday, October 8, 2021 at 10:17:38 PM Eastern Daylight Time
Subject: SERVICE OF COURT DOCUMENT CASE NUMBER 502020CA010915XXXXMB MCMAHON,
FRANCIS ALOYISIUS - BMW OF NORTH AMERICA LLC
Date: Tuesday, May 25, 2021 at 11:30:37 AM Eastern Daylight Time
From: eservice@myficourtaccess.com
Attachments: Request For Admissions.pdf, Notice Of Service Of Request For Production.pdf, Notice Of
Service Of Interrogatories.pdf
Notice of Service of Court Documents
Filing #: 127471309
Filing Time: 05/25/2021 11:30:32 AM ET
Filer: Rachel Monica Cichowic 888-415-0610
Court: Fifteenth Judicial Circuit in and for Palm Beach County, Florida
Case #: 502020CA010915XXXXMB
Court Case #: 50-2020-CA-010915-XXXX-MB.
Poon Chalne MCMAUAM ED ARIAT ALAVTETIC OMIA AE IAD TU AMEnTCA HE
Case Style: MCMAON, FRANCIS ALOYISIUS ~ Bri OF NORTH AMERICA LLC
Documents
Title File
Request For Admissions Francis McMahon-RFA.pdf
Notice Of Service Of Request For Production Francis McMahon -Request fi
Notice Of Service Of Interrogatories Francis McMahon-Notice of 1
E-service recipients selected for service:
Name
Email Address
Rachel Monica Cichowic i
lajackier@lemonlawgrouppartners.con
Suzanne Mary Valles suzanne. valles@lawbhs.com
Ifrancis.diaz@lawbhs.com
E-service recipients not selected for service:
IName [Email Address
INo Matching Entries
This is an automatic email message generated by the Florida Courts E-Filing
Portal. This email address does not receive email.
Thank you,
The Florida Courts E-Filing Portal
Page 1 of 1EXHIBIT “B”50-2020-CA-010915-XXXXMB
Filing # 129478856 E-Filed 06/24/2021 08:57:30 PM
IN THE CIRCUIT COURT OF THE 15TH
JUDICIAL CIRCUIT IN AN FOR PALM
BEACH COUNTY, FLORIDA
FRANCIS ALOYISUS MCMAHON, CASE NO: 2020-CA-010915-XXXX- MB
ee
Tite
vs.
BMW of NORTH AMERICA, LLC.,
Defendant.
1
DEFENDANT’S MOTION FOR EXTENSION OF TIME TO RESPOND TO
PLAINTIFF’S INITIAL DI VERY REQUEST:
Defendant, BMW of North America, LLC, (“Defendant”), by and through the undersigned
counsel and pursuant to Rule 1.090(b), Florida Rules of Civil Procedure, hereby files this Motion
for Extension of Time to Respond to Plaintiff's Requests for Admissions, Interrogatories and
Request to Produce (“initial discovery requests”) and in support thereof, states the following:
1. Plaintiff, Francis Aloyisus McMahon, (“Plaintiff”), caused Defendant to be served
with his initial discovery demands on May 25, 2021.
2. Pursuant to Rules 1.340(a), 1.350(b) and 1.370(a), Florida Rules of Civil Procedure,
Defendant’s responses to Plaintiff’s initial discovery requests are due June 24, 2021.
3. The undersigned counsel is in the process of reviewing the initial discovery requests
and relevant file materials to prepare appropriate responses.
4. Accordingly, Defendant requests an extension of time to respond to Plaintiff's
initial discovery requests.
5. This is Defendant’ s first request for an extension of time, is made in good faith, and
is not for the purpose of delay.§0-2020-CA-010915-XXXXMB
WHEREFORE, Defendant, BMW of North America, LLC, respectfully asks this
Honorable Court to enter an Order granting an extension of time to respond to Plaintiff’s Requests
for Admissions, Interrogatories and Request to Produce.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served by e-mail
via the Florida Courts E-Filing Portal system on this 24th day of June 2021, upon: Rachel Cichowic,
Esq., Attorneys for Plaintiff at info@lemonlawgrouppartners.com and
rcichowic@ lemonlawgrouppartners.com.
BIEDERMANN HOENIG SEMPREVIVO, P.A.
601 Brickell Key Drive, Suite 700
Miami, Florida 33131
(646) 218-7541 Ext. 541- Telephone
(646) 218-7510- Fascimile
E-mail: suzanne.valles@lawbhs.com
By: /s/ Suzanne M. Valles
SUZANNE M. VALLES
Florida Bar No. 124546EXHIBIT “C”50-2020-CA-010915-XXXXMB
Friday, October 8, 2021 at 10:18:21 PM Eastern Daylight Time
Subject: Re: Mcmahon v. BMW
Date: Friday, July 2, 2021 at 8:23:40 AM Eastern Daylight Time
From: Suzanne Valles
To: rcichowic@lemonlawgrouppartners.com
cc: Ariana Jackier
Okay, we will file our responses today.
Thanks.
Regards,
Suzanne
SUZANNE M. VALLES
BIEDERMANN HOENIG SEMPREVIVO
A PROFESSIONAL ASSOCIATION IN FLORIDA
601 BRICKELL KEY DRIVE
SUITE 700
MIAMI, FL 33131.
TEL 646-218-7541 EXT. 541
FAX 646-218-7510
SUZANNE.VALLES@LAWBHS.COM
WWW.LAWBHS.COM
THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS
ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM.
DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED
RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE MESSAGE TO THE
INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING
OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IN ADDITION, PLEASE NOTE THAT UNLESS
DIRECT REFERENCE IS MADE TO REDLINING OR TRACK CHANGES THAT ARE EXPRESSLY TRANSMITTED
FOR REVIEW AND CONSIDERATION, IT IS THE SPECIFIC INTENT OF THE SENDER TO REMOVE ALL
METADATA FROM THIS EMAIL AND ITS ATTACHMENTS AND ANY METADATA THAT MAY BE FOUND
THEREIN HAS BEEN INADVERTENTLY PRODUCED AND SHOULD NOT BE REVIEWED. IF YOU HAVE RECEIVED
THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US BY REPLY EMAIL OR TELEPHONE (1.646.218.7560),
AND IMMEDIATELY DESTROY THIS MESSAGE AND ATTACHMENTS. THANK YOU.
From: Rachel Cichowic
c ‘@lemonlawsrounnartners.com"
riday, July 2, 2021 at 8:22 AM
To: Suzanne Valles
Cc: Ariana Jackier
Subject: Re: Mcmahon v. BMW,
Hello I cannot extend any deadlines on Mcmahon
Page 10f9§0-2020-CA-010915-XXXXMB
Rachel Cichowic
Florida Licensed Attorney
Lemon Law Group Partners, PLC
Phone: (888) 415-0610 Ext. 5103
Fax: (888) 809-7010
rcichowic@lemonlawgrouppartners.com
On Fri, Jul 2, 2021 at 8:04 AM Suzanne Valles wrote:
Hi Rachel,
We are in the process of finalizing our discovery responses. Do you have any objection to us
responding by Monday July 5th?
Regards,
Suzanne
SUZANNE M. VALLES
BIEDERMANN HOENIG SEMPREVIVO
A PROFESSIONAL ASSOCIATION IN FLORIDA
601 BRICKELL KEY DRIVE
SUITE 700
MIAMI, FL 33131
TEL 646-218-7541 EXT. 541
FAX 646-218-7510
SUZANNE.VALLES@LAWBHS.COM
WWW.LAWBHS.COM
THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS.
ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT
FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED
RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE MESSAGE TO THE
INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION
OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IN ADDITION, PLEASE NOTE THAT
UNLESS DIRECT REFERENCE IS MADE TO REDLINING OR TRACK CHANGES THAT ARE EXPRESSLY
REMOVE ALL METADATA FROM THIS EMAIL AND ITS ATTACHMENTS AND ANY METADATA THAT MAY
BE FOUND THEREIN HAS BEEN INADVERTENTLY PRODUCED AND SHOULD NOT BE REVIEWED. IF
YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US BY REPLY EMAIL
OR TELEPHONE (1.646.218.7560), AND IMMEDIATELY DESTROY THIS MESSAGE AND.
ATTACHMENTS. THANK YOU.
Page 2 of 9§0-2020-CA-010915-XXXXMB
From: Rachel Cichowic
Reply-To: "rcichowic@lemonlawgrouppartners.com"
Date: Monday June 28, 2021 at 11:18 AM
To: Suzanne Valles
Cc: Ariana Jackier
Subject: Re: Mcmahon v. BMW
Np
Rachel Cichowic
Florida Licensed Attorney
Lemon Law Group Partners, PLC
Phone: (888) 415-0610 Ext. 5103
Fax: (888) 809-7010
reichowic@lemonlawgrouppartners.com
Error! Filename not specified,
On Mon, Jun 28, 2021 at 11:16 AM Suzanne Valles wrote:
Thanks, Rachel.
Regards,
Suzanne
SUZANNE M. VALLES
BIEDERMANN HOENIG SEMPREVIVO
A PROFESSIONAL ASSOCIATION IN FLORIDA
601 BRICKELL KEY DRIVE
SUITE 700
MIAMI, FL 33131.
TEL 646-218-7541 EXT. 541
FAX 646-218-7510
SUZANNE.VALLES@LAWBHS.COM
WWW.LAWBHS.COM
THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS.
ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT
FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE IS NOT
THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE
| | MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION,
Page 3 of 9§0-2020-CA-010915-XXXXMB
DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IN
ADDITION, PLEASE NOTE THAT UNLESS DIRECT REFERENCE IS MADE TO REDLINING OR TRACK
CHANGES THAT ARE EXPRESSLY TRANSMITTED FOR REVIEW AND CONSIDERATION, IT IS THE SPECIFIC
INTENT OF THE SENDER TO REMOVE ALL METADATA FROM THIS EMAIL AND ITS ATTACHMENTS AND
ANY METADATA THAT MAY BE FOUND THEREIN HAS BEEN INADVERTENTLY PRODUCED AND SHOULD
NOT BE REVIEWED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US BY
REPLY EMAIL OR TELEPHONE (1.646.218.7560), AND IMMEDIATELY DESTROY THIS MESSAGE AND.
ATTACHMENTS. THANK YOU.
From: Rachel Cichowic
Reply-To: "rcichowic@lemonlawgrouppartners.com"
Date: Monday, June 28, 2021 at 11:15 AM
To: Suzanne Valles
Cc: Ariana Jackier
Subject: Re: Mcmahon v. BMW,
Hello I h ave no issue responding July 2
Rachel Cichowic
Florida Licensed Attorney
Lemon Law Group Partners, PLC
Phone: (888) 415-0610 Ext. 5103
Fax: (888) 809-7010
rcichowic@lemonlawerouppartners.com
lename not specified.|
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specified
On Mon, Jun 28, 2021 at 10:41 AM Suzanne Valles wrote:
Hi Rachel,
Hope all is well. Our office has filed a motion for extension. Please advise if you have any
objection to us responding to the discovery requests on or before this Friday July ng,
Page 4 of 9§0-2020-CA-010915-XXXXMB
Thanks.
Regards,
Suzanne
SUZANNE M. VALLES
BIEDERMANN HOENIG SEMPREVIVO
A PROFESSIONAL ASSOCIATION IN FLORIDA
OUL DNICNCLL ACT UAIVE
SUITE 700
MIAMI, FL 33131.
TEL 646-218-7541 EXT. 541
FAX 646-218-7510
SUZANNE.VALLES@LAWBHS.COM
WWW,LAWBHS.COM.
THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS
ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT
FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE IS NOT
THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE
MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION,
DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IN
ADDITION, PLEASE NOTE THAT UNLESS DIRECT REFERENCE IS MADE TO REDLINING OR TRACK
CHANGES THAT ARE EXPRESSLY TRANSMITTED FOR REVIEW AND CONSIDERATION, IT IS THE
SPECIFIC INTENT OF THE SENDER TO REIMOVE ALL WETADATA FROM THIS EMAIL AND 175
ATTACHMENTS AND ANY METADATA THAT MAY BE FOUND THEREIN HAS BEEN INADVERTENTLY
PRODUCED AND SHOULD NOT BE REVIEWED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN
ERROR, PLEASE NOTIFY US BY REPLY EMAIL OR TELEPHONE (1.646.218.7560), AND IMMEDIATELY
DESTROY THIS MESSAGE AND ATTACHMENTS. THANK YOU.
From: Rachel Cichowic
Reply-To: "rcichowic@lemonlawgrouppartners.com"
Date: Thursday, June 24, 2021 at 3:40 PM
To: Suzanne Valles
Ce: Ariana Jackier
Subject: Re: Mcmahon v. BMW.
No I cannot wait that long
Rachel Cichowic
Florida Licensed Attorney
Lemon Law Group Partners, PLC
Phone: (888) 415-0610 Ext. 5103
Fax: (888) 809-7010
rcichowic@lemonlawgrouppartners.com
Error! Filename not specified.|
Page 5 of 9§0-2020-CA-010915-XXXXMB
On Thu, Jun 24, 2021 at 3:36 PM Suzanne Valles wrote:
Hi Rachel,
Would you be agreeable to us responding to discovery within 5 days of a ruling on the Motion
to Dismiss?
Thanks.
Regards,
Suzanne
SUZANNE M. VALLES
BIEDERMANN HOENIG SEMPREVIVO
A PROFESSIONAL ASSOCIATION IN FLORIDA
601 BRICKELL KEY DRIVE
SUITE 700
MIAMI, FL 33131
TEL 646-218-7541 EXT. 541
FAX 646-218-7510
SUZANNE.VALLES@LAWBHS.COM.
WWW.LAWBHS.COM
THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS
ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND
EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE |S NOT
THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE
MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT
ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY
PROHIBITED. IN ADDITION, PLEASE NOTE THAT UNLESS DIRECT REFERENCE IS MADE TO.
REDLINING OR TRACK CHANGES THAT ARE EXPRESSLY TRANSMITTED FOR REVIEW AND.
CONSIDERATION, IT IS THE SPECIFIC INTENT OF THE SENDER TO REMOVE ALL METADATA.
FROM THIS EMAIL AND ITS ATTACHMENTS AND ANY METADATA THAT MAY BE FOUND THEREIN
HAS BEEN INADVERTENTLY PRODUCED AND SHOULD NOT BE REVIEWED. IF YOU HAVE
RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US BY REPLY EMAIL
OR TELEPHONE (1.646.218.7560), AND IMMEDIATELY DESTROY THIS MESSAGE AND
ATTACHMENTS. THANK YOU.
From: Rachel Cichowic
Reply-To: "rcichowic@lemonlawgrouppartners.com"
Date: Wednesday, June 23, 2021 at 12:02 PM
To: Suzanne Valles , Ariana Jackier
Subiect: Re: Mcmahon v. RMW
quae
Hello I can give you a 5 day extension
Page 6 of 9§0-2020-CA-010915-XXXXMB
Rachel Cichowic
Florida Licensed Attorney
Lemon Law Group Partners, PLC
Phone: (888) 415-0610 Ext. 5103
Fax: (888) 809-7010
rcichowic@lemonlawgrouppartners.com
Error! Filename not specified]
On Wed, Jun 23, 2021 at 1
AM Suzanne Valles wra'
Hi Rachel,
Aresponse to your office’s initial discovery requests are currently due tomorrow. Do you
have any objection to an extension through July 3oth (following the hearing on the MTD)?
Thanks.
Regards,
Suzanne
SUZANNE M. VALLES
BIEDERMANN HOENIG SEMPREVIVO
A PROFESSIONAL ASSOCIATION IN FLORIDA
601 BRICKELL KEY DRIVE
SUITE 700
MIAMI, FL 33131
TEL 646-218-7541 EXT. 541
FAX 646-218-7510
SUZANNE.VALLES @LAWBHS.COM.
WWW.LAWBHS.COM
THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT
IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND
EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE IS
NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING
THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT
ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY
PROHIBITED. IN ADDITION, PLEASE NOTE THAT UNLESS DIRECT REFERENCE IS MADE TO
REDLINING OR TRACK CHANGES THAT ARE EXPRESSLY TRANSMITTED FOR REVIEW AND
CONSIDERATION, IT IS THE SPECIFIC INTENT OF THE SENDER TO REMOVE ALL METADATA
FROM THIS EMAIL AND ITS ATTACHMENTS AND ANY METADATA THAT MAY BE FOUND.
THEREIN HAS BEEN INADVERTENTLY PRODUCED AND SHOULD NOT BE REVIEWED. IF
YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US BY REPLY EMAIL
OR TELEPHONE (1.646.218.7560), AND IMMEDIATELY DESTROY THIS MESSAGE AND.
ATTACHMENTS. THANK YOU.
Page 7 of 9EXHIBIT “D”50-2020-CA-010915-XXXXMB
Friday, October 8, 2021 at 10:19:17 PM Eastern Daylight Time
Subject: SERVICE OF COURT DOCUMENT CASE NUMBER 502020CA010915XXXXMB MCMAHON,
FRANCIS ALOYISIUS - BMW OF NORTH AMERICA LLC
Date: Friday, July 2, 2021 at 11:45:37 PM Eastern Daylight Time
From: eservice@myficourtaccess.com
Attachments: Response To Request For Admissions.pdf, Response To Request For Production.pdf
Notice of Service of Court Documents
Filing Information
Filing #: 130030376
Filing Time: 07/02/2021 11:45:33 PM ET
Filer: Suzanne Mary Valles
Court: Fifteenth Judicial Circuit in and for Palm Beach County, Florida
Case #: 502020CA010915XXXXMB
Court Case #: 50-2020-CA-010915-XXXX-MB
Case Style: MCMAHON, FRANCIS ALOYISIUS - BMW OF NORTH AMERICA LLC
Documents
Title File
Response To Request For Admissions IMcMahon-Response to Requi
Response To Reauest For Production McMahon Response to Reau
E-service recipients selected for service:
Email Address
Name
Rachel Monica Cichowic
Suzanne Mary Valles suzanne. valles@lawbhs.com
francis.diaz@lawbhs.com
E-service recipients not selected for service:
IName [Email Address
This is an automatic email message generated by the Florida Courts E-Filing
Portal. This email address does not receive email.
Thank you,
The Florida Courts E-Filing Portal
Page 1 of 150-2020-CA-010915-XXXXMB
Filing # 130030376 E-Filed 07/02/2021 11:45:33 PM
IN THE CIRCUIT COURT OF THE 15TH
JUDICIAL CIRCUIT IN AND FOR PALM
BEACH COUNTY, FLORIDA
FRANCIS ALOYISUS MCMAHON CASE NO: 2020-CA-010915-XXXX- MB
Plaintiff,
vs.
BMW of NORTH AMERICA, LLC.,
/
DEFENDANT’S ANSWERS TO PLAINTIFF'S RE! STS FOR ADMISSION
Defendant, BMW of North America, LLC, (“BMW NA”), by and through the undersigned
C
Plaintiff's Requests for Admission and states the following:
1. Admit or deny that BMW OF NORTH AMERICA, LLC, is the manufacturer of
the 2017 BMW 530i, Vehicle Identification Number (VIN No.) WBAJA5C51JG898149,
(“Subject Vehicle”).
ANSWER: Denied. BMW NA is the distributor of new BMW vehicles in the United States and
does not manufacture vehicles, including the Subject Vehicle.
2. Admit or deny that Subject Vehicle was purchased on or about October 21, 2017.
ANSWER: BMW NA objects to this request as an improperly directed discovery request to BMW
NA as it seeks information from an independent non-party to this lawsuit. BMW NA is the
distributor of new BMW vehicles in the United States and does not sell or lease vehicles directly
to consumers, including the Subject Vehicle.
3. Admit or deny that Subject Vehicle was purchased new.
ANSWER: BMW NA objects to this request as an improperly directed discovery request to BMW
NA as it seeks information from an independent non-party to this lawsuit. BMW NA is the
distributor of new BMW vehicles in the United States and does not sell or lease vehicles directly
to consumers, including the Subject Vehicle.50-2020-CA-010915-XXXXMB
4. Admit or deny that BMW OF NORTH AMERICA, LLC provided a
Manufacturer’s 4 (four) year / 50,000 mile bumper-to-bumper factory warranty and 4 (four) year
/ 50,000 mile Powertrain warranty.
ANSWER: BMW NA objects to this request as phrased, but admits that the New Vehicle Limited
Warranty would have accompanied the Subject Vehicle for the earlier of 4 years or 50,000 miles.
Further in response, the foregoing warranty is subiect to the terms and conditions, therein. Plaintiff
and the Court are respectfully referred to the full-text version for its true and complete content.
5. Admit or deny that Subject Vehicle was in BMW OF NORTH AMERICA, LLC
or BMW OF NORTH AMERICA, LLC’s Authorized Dealer’s possession for eleven (10) days,
for repairs on June 9, 2018 for Electrical issues, Airbag Warning Light issues and Shifting issues.
ANSWER: BMW NA objects to this request as vague, unduly burdensome, unintelligible, and an
improperly directed discovery request to BMW NA as it seeks information from an independent
non-party to this lawsuit. BMW NA is the distributor of new BMW vehicles in the United States
and does not service or repair vehicles, including the Subject Vehicle.
6. Admit or deny that Subject Vehicle was presented to BMW OF NORTH
AMERICA, LLC’S or BMW OF NORTH AMERICA, LLC’s Authorized Dealer’s possession for
sixteen (16) days on June 26, 2018 for repairs on Fuel Tank and Fuel Pump and Level Sensors
Issues.
ANSWER: BMW NA objects to this request as vague, unduly burdensome, unintelligible, and an
improperly directed discovery request to BMW NA as it seeks information from an independent
non-party to this lawsuit. BMW NA is the distributor of new BMW vehicles in the United States
and does not service or repair vehicles, including the Subject Vehicle.
7. Admit or deny that Subject Vehicle was in BMW OF NORTH AMERICA, LLC’S
or BMW OF NORTH AMERICA, LLC’s Authorized Dealer’s possession for three (3) days on
October 8, 2018 for repairs for Passenger Restraint MALF Light and related faults, Service
Standard Scope issues.
ANSWER: BMW NA objects to this request as vague, unduly burdensome, unintelligible, and an
improperly directed discovery request to BMW NA as it seeks information from an independent
non-party to this lawsuit. BMW NA is the distributor of new BMW vehicles in the United States
and does not service or repair vehicles, including the Subject Vehicle.
8. Admit or deny that _Subject Vehicle was presented to BMW OF NORTH
AMERICA, LLC’S or BMW OF NORTH AMERICA, LLC's Authorized Deaier’s possession for
twelve (12) days on October 29, 2018 for repairs for Passenger Restraint Signal issues.
ANSWER: BMW NA objects to this request as vague, unduly burdensome, unintelligible, and an
improperly directed discovery request to BMW NA as it seeks information from an independent
non-party to this lawsuit. BMW NA is the distributor of new BMW vehicles in the United States
and does not service or repair vehicles, including the Subject Vehicle.50-2020-CA-010915-XXXXMB
9. Admit or deny that Subject Vehicle was presented to BMW OF NORTH
AMERICA, LLC’S or BMW OF NORTH AMERICA, LLC’s Authorized Dealer’s possession for
two (2) days on July 22, 2020 for repairs for Passenger Restraint Malfunction and Sensor Mat
Issues.
ANSWER: BMW NA objects to this request as vague, unduly burdensome, unintelligible, and an
improperly directed discovery request to BMW NA as it seeks information from an independent
non-party to this lawsuit. BMW NA is the distributor of new BMW vehicles in the United States
and does not service or repair vehicles, including the Subject Vehicle.
10. Admit or deny that the Purchase Price of Subject Vehicle was $59,080.00.
ANSWER: BMW NA objects to this request as an improperly directed discovery request to BMW
NA as it seeks information from an independent non-party to this lawsuit. BMW NA is the
distributor of new BMW vehicles in the United States and does not sell or lease vehicles directly
to consumers, including the Subject Vehicle.
11. Admit or deny that BMW OF NORTH AMERICA, LLC had a chance to repair
Subject Vehicle after receipt of the written notification.
ANSWER: Denied. BMW NA is the distributor of new BMW vehicles in the United States and
does not service or repair vehicles, including the Subject Vehicle.
12. Admit or deny that BMW OF NORTH AMERICA, LLC took over twenty (20)
days to repair Subject Vehicle after presented for repairs due to written notification.
ANSWER: Denied. BMW NA is the distributor of new BMW vehicles in the United States and
does not service or repair vehicles, including the Subject Vehicle.
13. Admit or deny that the defects, nonconformities, or conditions complained of
substantially impair Subject Vehicle’s use.
ANSWER: Denied.
14. Admit or deny that the defects the defects, nonconformities, or conditions
complained of substantially impair Subject Vehicle’s value.
ANSWER: Denied.
15. Admit or deny that the defects, nonconformities, or conditions complained of
substantially impair Subject Vehicle’s safety.
ANSWER: Denied.
16. Admit or deny that BMW OF NORTH AMERICA, LLC failed to repair Subject
Vehicle within a reasonable number of repair attempts.50-2020-CA-010915-XXXXMB
ANSWER: Denied. BMW NA is the distributor of new BMW vehicles in the United States and
does not service or repair vehicles, including the Subject Vehicle.
17. Admit or deny that BMW OF NORTH AMERICA, LLC failed to repair Subject
Vehicle within a reasonable amount of time.
ANSWER: Denied. BMW NA is the distributor of new BMW vehicles in the United States and
does not service or repair vehicles, including the Subject Vehicle.
18. | Admit or deny that Plaintiffs could not use or enjoy Subject Vehicle while it was in
BMW OF NORTH AMERICA, LLC in BMW OF NORTH AMERICA, LLC’s Authorized
Dealer’s, possession.
ANSWER: BMW NA objects to this request as vague and unintelligible. Further in response,
denied as phrased.
19. | Admit or deny that in BMW OF NORTH AMERICA, LLC breached the express
warranty provided to Plaintiffs for Subject Vehicle.
ANSWER: Denied.
20. Admit or deny that in BMW OF NORTH AMERICA, LLC breached the statutory
warranty provided to Plaintiffs through Fla. Stat. § 380.835.
ANSWER: Denied.
PLEASE TAKE NOTICE that Defendant BMW of North America, LLC, reserves the
right to amend and/or supplement its Answers to Plaintiff's Request for Admissions up to and
including the time of trial.50-2020-CA-010915-XXXXMB
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served by e-
mail via the Florida Courts E-Filing Portal system on this 2nd day of July, 2021, upon: Rachel
Cichowic, Esa. Attorneys for Plaintiff at info@lemonlawgrouppartners.com and
reichowic@lemonlawgrouppartners.com.
BIEDERMANN HOENIG SEMPREVIVO, P.A.
601 Brickell Key Drive, Suite 700
Miami, Florida 33131
(646) 218-7541 Ext. 508 — Telephone
(646) 218-7510- Fascimile
E-mail: suzanne.valles@lawbhs.com
By: /s/ Suzanne M. Valles
SUZANNE M. VALLES
Florida Bar No. 124546
Preview
Filing # 136240260 E-Filed 10/08/2021 11:03:06 PM IN THE CIRCUIT COURT OF THE 15" JUDICIAL CIRCUIT COURT IN AND FOR PALM BEACH’ COUNTY, FLORIDA TRANCIS ALOYSIUS MOMAHON, ar NO: 50-2020-CA-010915-XXXX- Plaintiif, ‘VS. BMW OF NORTH AMERICA LLC, Defendant. : DEFENDANT BM' 1F NORTH AMERICA, LLC’S RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION TO DEEM REQUEST FOR ADMISSIONS ADMITTED Defendant, BMW of North America, LLC (“BMW NA”), in the above-captioned matter, respectfully submits the within Response in Opposition to Plaintiffs Motion to Deem Request for Admissions Admitted and in support thereof states as follows: FACTUAL AND PROCEDURAL HISTORY! 1. On February 8, 2021, BMW NA filed a Motion to Dismiss Plaintiff’s Complaint pursuant to Fla. R. Civ. P. § 1.140(b)(1) for lack of subject matter jurisdiction and Fla. R. Civ. P. § 1.140(b)(6) for failure to state a cause of action (“Motion”). See Motion to Dismiss of February 8, 2021 on file with the Court. 2. The Motion was set for hearing by the Court July 19, 2021. See Order Setting ! BMW NA reserves argument regarding the Request for Admissions and specific responses, as it is beyond the scope of PlaintifPs Motion to Deem Request for Admissions Admitted, but preliminarily advises the Court that the Request for Admissions contain improper requests directed to BMW NA and factually and legally inaccurate requests. CHEN. DAIAARCACUAAIINTY Cl INGEDU ARDIIV7ZA FLED Aninainnns 44.n2-Ne DNA Pty. PAL DLA VUUINE TT, PL, vUOL IE mDnuecy, ULL, 1uruureue! 1 1.ul.uu it50-2020-CA-010915-XXXXMB Hearing on file with the Court. 3. Notwithstanding that the Motion sought dismissal for a threshold issue, to wit, subject matter jurisdiction, Plaintiff’s counsel served initial discovery requests prior to the hearing on May 25,2021. See Service Email attached hereto as Exhibit “A”. 4. The initial discovery requests included a Request for Production, Interrogatories and Request for Admissions. Id. 5. Pursuant to Fla. R. Civ. P. 1.370, 1.340, 1.350, responses to the initial discovery requests were due June 24, 2021. 6. On June 23, 2021, the undersigned emailed Plaintiff's Counsel, Rachel Cichowic, prior to the discovery due date to ask if she had any objection to an extension as our office was awaiting and reviewing file materials to prepare responses. Ms. Cichowic unequivocally responded “Hello I can give you a 5 day extension.” 7. Pursuant to same, a timely Motion for Extension of time to respond to the initial discovery requests was filed on June 24,2021. See Motion for Extension attached hereto as Exhibit 8. While our office followed up to determine whether Ms. Cichowic was agreeable to us responding within 5 days of a ruling on the Motion, Ms. Cichowic declined. 9. Nonetheless, in response to our request to respond to the initial discovery requests on or before July 2, 2021, Ms. Cichowic responded verbatim on June 28, 2021 “Hello I have no issue responding July 2.” See email correspondence between the undersigned and Ms. Cichowic regarding the extension cumulatively attached hereto as Exhibit “C”. 10. Pursuant to the above agreement, our office filed and served responses to Plaintiff’s initial discovery requests on July 2, 2021. See email confirmation of service July 2, 2021 and the50-2020-CA-010915-XXXXMB Response to Request for Admissions cumulatively attached hereto as Exhibit “D”. 11. The undersigned reasonably relied on the extension in filing discovery responses on July 2, 2021 and at no point in time did Ms. Cichowic file opposition to the Motion for Extension of Time or suggest that the extension was only relating to the Reauest for Production or Interrogatories. See Exhibit “C”. 12. Notwithstanding, on July 14, 2021, Ms. Cichowic blindsided the undersigned by filed a Motion to Deem Plaintiff's Request for Admissions Admitted. See Motion to Deem Request for Admissions Admitted on file with the Court. 13. Therein, Ms. Cichowic includes a gaping and materially false record of events. Specifically, Ms. Cichowic blatantly misrepresents to this Court that the extension was never authorized by Plaintiff. See Plaintiff's Motion to Deem Request for Admissions Admitted and Exhibit “C”. 14. However, the record submitted herewith demonstrates the accurate factual record. In compliance with Local Rule 4 and this Court’s Divisional Instructions, the undersigned contacted Plaintiff’s counsel to discuss the Motion for Extension and Ms. Cichowic agreed to the extension without qualification. Id. 15. When the undersigned was in the process of preparing a proposed Order for the Court pursuant to the timely Motion for Extension and agreed extension by Ms. Cichowic, she declined any further extension and provided for the first time on the date that the responses were agreed to be due that she was not granting the extension. See Exhibit “C”. 16. Based on the factual record, including the timely Motion for Extension of Time and Ms. Cichowic’s original agreement to the extension and pursuant to Florida law as further discussed below, the undersigned respectfully requests that this Court enter an Order denying50-2020-CA-010915-XXXXMB Plaintiff's Motion to Deem Plaintiff’s Request for Admissions Admitted and awarding sanctions against Ms. Cichowic for bad faith litigation conduct. INCORPORATED MEMORANDUM OF LAW AND LEGAL ARGUMENT I. BMW NA’S Motion for Extension of Time should be Granted and Plaintiffs Motion to Deem Plaintiff’s Request for Admissions Admitted should be Rendered Moot Pursuant to the agreed extension on June 23, 2021 and prior to the discovery due date, the undersigned filed a timely Motion for Extension of Time to respond to Plaintiff's initial discovery requests under Fla. R. Civ. P. 1.090(b). See Exhibit “C”. Fla. R. Civ. P. 1.090(b) provides in pertinent part as follows: When an act is required or allowed to be done at or within a specified time by order of court, by these rules, or by notice given thereunder, for cause shown the court at any time in its discretion; (A) with or without notice, may order the period enlarged if request therefor is made before the expiration of the period originally prescribed ... in compiiance with Fla. R. Civ. P. |A’s Motion for Extension was timely filed and set forth cause shown for the extension, including that the undersigned was reviewing the pertinent file materials to prepare appropriate responses and that it was BMW NA’s first request for extension of time and not being sought for purposes of delay. one of the carriers for the Champlain Towers collapse. As the Court is likely aware, the collapse occurred on June 24, 2021 (the same date that responses were originally due) and in the immediacy of same, we had to perform certain time sensitive work. Moarenver at the time that diecnvery was carved thera wae a Motian ta Diemice nanding Moreover, at the ime that ciscovery Was served, there was 2 Mouon to Dismiss pencing which included a jurisdictional defense. Accordingly, it was not clear at that time whether this Court had subject matter jurisdiction over this matter.50-2020-CA-010915-XXXXMB Further, responses to all discovery requests were served and filed pursuant to the original agreed extension date with Ms. Cichowic on July 2, 2021. See Exhibit “C”. This was merely one week after responses were originally due. Accordingly. the undersigned respectfully requests that the Court exercise its express discretion under Fla. R. Civ. P. 1.090(b) and enter an Order granting the Motion for Extension, which in effect will render BMW NA’s discovery responses timely and Plaintiff’s Motion to Deem. Request for Admissions Admitted moot and/or denied. See e.g., Nicaragua Trader Corp. v. Alejo Fla. Properties, LLC, 19 So. 3d 395 (Fla. 3d DCA 2009) (A motion for extension of time to file a brief tolls the time for filing until the motion is ruled on); Pinnacle Corp. of Cent. Fla. v. R.L. Jernigan Sandblasting & Painting, Inc., 718 So. 2d 1265 (Fla. 2" DCA 1998) (Home builder was not in default at time trial court orally pronounced its default ruling, where builder had filed timely motion for extension of time.) Il. Alternatively, Plaintiff's Motion to Deem Plaintiffs Request for Admissions Admitted should be Denied for Demonstrated Mistake, Inadvertence or Excusable Neglect As the material factual record clearly reflects, Plaintiff's counsel has filed this motion with unclean hands and is seeking relief that would cause irreparable hardship and prejudice to BMW NA. That said, to the extent of an arguable delay, which is clearly refuted by the factual record, it was caused by Plaintiff's counsel apparent attempt to bait BMW NA into non-compliance and constitutes demonstrated mistake, inadvertence or excusable neglect under Florida law. See e.g., Church v. Strickland, 382 So. 2d 419 (Fla. 5" DCA 1980) (Affirming the trial court’s order setting aside partial summary judgment due to excusable neglect and a meritorious defense, which is left to the discretion of the trial court to determine); Acosta v. Deutsche Bank Nat. Tr. Co., 88 So. 3d. 415, 416-17 (Fla. 5" DCA 2012) (providing pertinently that “Appellant's claim that a failure to appear due to a calendaring or clerical error is the type of “excusable neglect” or “mistake” that50-2020-CA-010915-XXXXMB warrants relief under rule 1.540(b) is well-supported in Florida law. See, e.g., J.J.K. Int'l, Inc. v. Shivbaran, 985 So.2d 66, 68-69 (Fla. 4th DCA 2008) (holding it was error to deny 1.540(b) motion seeking relief from order of dismissal entered after counsel failed to appear at hearing on motion to dismiss because secretary mistakenly marked hearing as “cancelled”: Wilson v. Woodward, 602 So.2d 547, 549 (Fla. 2d DCA 1992) (holding it was abuse of discretion to deny 1,540(b) relief from summary judgment after plaintiff's counsel failed to appear for hearing due to secretary's failure to calendar)”). In the instant case, while Ms. Cichowic’s conduct constitutes bad faith litigation tactics, to the extent she claims any untimeliness, it is clear that she created a situation of excusable neglect. The undersigned’s office would have been in no position to calendar a correct date to respond to the discovery requests when it relied upon Plaintiff's counsel granting our office an extension in the first instance for 5 days and in the second instance, through to and including July 2, 2021. Similarly a meritorious defense is evident from the pending Motion to Dismiss at that time, which included a challenge to subject matter jurisdiction. ‘Therefore, BMW NA’s Response to Plaintiff's Request for Admissions should be deemed. timely and Plaintiff's Motion to Deem Request for Admissions Admitted should be denied in its entirety. III. Sanctions Should be Imposed Against Ms. Cichowic for Bad Faith Litigation Conduct As the factual record reflects, Ms. Cichowic has made blatant and inferably deliberate misrepresentations to this Court in the Motion to Deem Request for Admissions Admitted. Specifically, she had falsely advised this Court that an extension to respond to the Request for Admissions was not provided by Plaintiff’s office and that “Defendant is not able to cite any reason of mistake inadvertence or excusable neglect...”” These misrepresentations were made to the Court against the backdrop of Ms. Cichowic’s email correspondence personally50-2020-CA-010915-XXXXMB granting the extension of time for our office to respond to the discovery requests on July 2, 2021. See Exhibit “C”. Based on this bad faith litigation conduct, sanctions are appropriate against Ms. Cichowic. To this end, the Florida Supreme Court has recognized that “A trial court possesses the inherent authority to impose attorney fees against an attorney for bad faith conduct.” Moakley v. Smallwood, 826 So. 2d 221 (Fla. 2002) In Shniderman v. Fitness Innovations & Techs., Inc., 994 So. 2d 508, 509 (Fla. 4%" DCA 2008) the court provided the guidelines for a court to reference when exercising their inherent discretion to assess fees against a lawyer for bad faith. These guidelines include the following: 1) an express finding of bad faith conduct is made; 2) the finding must be supported by factual findings regarding the bad faith that resulted in the unnecessary incurrence of attorneys’ fees; 3) the attorneys’ fees must be directly related to the attorneys’ fees and costs that the opposing party has incurred as a result of the specific bad faith conduct; 4) a sanction is only appropriate after notice and an opportunity to be heard and present witnesses; and 5) if a statute or rule applies, that should govern over inherent authority. Here, the pertinent facts in support of a determination that Ms. Cichowic has engaged * Ms. Cichowic has made blatant misrepresentations to this Court and omitted material facts from the Motion to Deem Request for Admissions Admitted regarding not granting an extension to BMW NA; e Ms. Cichowic has filed a frivolous motion for the Court’s adjudication and prompted further unnecessary motion practice by the undersigned; * Ms. Cichowic has acted in direct contravention of Local Rule 4 and this Court’s Divisional Instructions; © Ms. Cichowic has demonstrated a developing pattern of bad faith litigation conduct,50-2020-CA-010915-XXXXMB which has already resulted in the Court awarding BMW NA entitlement to fees for the hearing on its Motion to Dismiss. See Court Order of August 2, 2021 and transcript of the July 19, 2021 hearing submitted to the Court with BMW NA’s Response in Opposition to Plaintiff's Motion for Reconsideration. Similar misconduct warranted sanctions against the client’s attorney in Shniderman where the attorney, in part, failed to inform the court that the verified complaint erroneously stated that there was a signed guaranty. See Shniderman at 508. Here, Ms. Cichowic has not only failed to inform the Court that an extension was granted in the first instance, but further, has blatantly misrepresented that an extension was not granted. See Motion to Deem Request for Admissions Admitted and Exhibit “C”. Based on the foregoing misconduct and following a hearing on the instant motion, the undersigned counsel respectfully requests that the Court award fees and costs for have to respond to the instant motion and attend the hearing. wien TTC racnantfully, acko thio Tea, saw, iespecuuuy SxS us WUHEDEEODE Defendant RMW af North Ae Honorable Court to enter an Order granting BMW NA’s Motion for Extension of time to respond to discovery requests and deeming the responses timely; denying Plaintiff's Motion to Deem Request for Admissions Admitted or rendering it moot; awarding attorneys’ fees and costs for and attendance at the hearing on the Motion to Deem Re for and attendance at the hearing on the Motion to Deem Rei for Admissions Admitted; and for such other and further relief that this Court deems just and proper. (CERTIFICATE OF SERVICE FOLLOWS.)§0-2020-CA-010915-XXXXMB CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served by e-mail via the Florida Courts E-Filing Portal system on this 8" day of October, 2021, upon: Rachel Cichowic Attorneys for Plaintiff at rcichowic@lemonlawgrouppartners.com. BIEDERMANN HOENIG SEMPREVIVO, P.A. 601 Brickell Key Drive, Suite 700 Miami, Florida 33131 (646) 218-7541 Ext. 508- Telephone (646) 218-7510- Fascimile E-mail: suzanne.valles@lawbhs.com By: /s/ Suzanne M. Valles SUZANNE M. VALLES Florida Bar No. 124546EXHIBIT “A”§0-2020-CA-010915-XXXXMB Friday, October 8, 2021 at 10:17:38 PM Eastern Daylight Time Subject: SERVICE OF COURT DOCUMENT CASE NUMBER 502020CA010915XXXXMB MCMAHON, FRANCIS ALOYISIUS - BMW OF NORTH AMERICA LLC Date: Tuesday, May 25, 2021 at 11:30:37 AM Eastern Daylight Time From: eservice@myficourtaccess.com Attachments: Request For Admissions.pdf, Notice Of Service Of Request For Production.pdf, Notice Of Service Of Interrogatories.pdf Notice of Service of Court Documents Filing #: 127471309 Filing Time: 05/25/2021 11:30:32 AM ET Filer: Rachel Monica Cichowic 888-415-0610 Court: Fifteenth Judicial Circuit in and for Palm Beach County, Florida Case #: 502020CA010915XXXXMB Court Case #: 50-2020-CA-010915-XXXX-MB. Poon Chalne MCMAUAM ED ARIAT ALAVTETIC OMIA AE IAD TU AMEnTCA HE Case Style: MCMAON, FRANCIS ALOYISIUS ~ Bri OF NORTH AMERICA LLC Documents Title File Request For Admissions Francis McMahon-RFA.pdf Notice Of Service Of Request For Production Francis McMahon -Request fi Notice Of Service Of Interrogatories Francis McMahon-Notice of 1 E-service recipients selected for service: Name Email Address Rachel Monica Cichowic i lajackier@lemonlawgrouppartners.con Suzanne Mary Valles suzanne. valles@lawbhs.com Ifrancis.diaz@lawbhs.com E-service recipients not selected for service: IName [Email Address INo Matching Entries This is an automatic email message generated by the Florida Courts E-Filing Portal. This email address does not receive email. Thank you, The Florida Courts E-Filing Portal Page 1 of 1EXHIBIT “B”50-2020-CA-010915-XXXXMB Filing # 129478856 E-Filed 06/24/2021 08:57:30 PM IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN AN FOR PALM BEACH COUNTY, FLORIDA FRANCIS ALOYISUS MCMAHON, CASE NO: 2020-CA-010915-XXXX- MB ee Tite vs. BMW of NORTH AMERICA, LLC., Defendant. 1 DEFENDANT’S MOTION FOR EXTENSION OF TIME TO RESPOND TO PLAINTIFF’S INITIAL DI VERY REQUEST: Defendant, BMW of North America, LLC, (“Defendant”), by and through the undersigned counsel and pursuant to Rule 1.090(b), Florida Rules of Civil Procedure, hereby files this Motion for Extension of Time to Respond to Plaintiff's Requests for Admissions, Interrogatories and Request to Produce (“initial discovery requests”) and in support thereof, states the following: 1. Plaintiff, Francis Aloyisus McMahon, (“Plaintiff”), caused Defendant to be served with his initial discovery demands on May 25, 2021. 2. Pursuant to Rules 1.340(a), 1.350(b) and 1.370(a), Florida Rules of Civil Procedure, Defendant’s responses to Plaintiff’s initial discovery requests are due June 24, 2021. 3. The undersigned counsel is in the process of reviewing the initial discovery requests and relevant file materials to prepare appropriate responses. 4. Accordingly, Defendant requests an extension of time to respond to Plaintiff's initial discovery requests. 5. This is Defendant’ s first request for an extension of time, is made in good faith, and is not for the purpose of delay.§0-2020-CA-010915-XXXXMB WHEREFORE, Defendant, BMW of North America, LLC, respectfully asks this Honorable Court to enter an Order granting an extension of time to respond to Plaintiff’s Requests for Admissions, Interrogatories and Request to Produce. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served by e-mail via the Florida Courts E-Filing Portal system on this 24th day of June 2021, upon: Rachel Cichowic, Esq., Attorneys for Plaintiff at info@lemonlawgrouppartners.com and rcichowic@ lemonlawgrouppartners.com. BIEDERMANN HOENIG SEMPREVIVO, P.A. 601 Brickell Key Drive, Suite 700 Miami, Florida 33131 (646) 218-7541 Ext. 541- Telephone (646) 218-7510- Fascimile E-mail: suzanne.valles@lawbhs.com By: /s/ Suzanne M. Valles SUZANNE M. VALLES Florida Bar No. 124546EXHIBIT “C”50-2020-CA-010915-XXXXMB Friday, October 8, 2021 at 10:18:21 PM Eastern Daylight Time Subject: Re: Mcmahon v. BMW Date: Friday, July 2, 2021 at 8:23:40 AM Eastern Daylight Time From: Suzanne Valles To: rcichowic@lemonlawgrouppartners.com cc: Ariana Jackier Okay, we will file our responses today. Thanks. Regards, Suzanne SUZANNE M. VALLES BIEDERMANN HOENIG SEMPREVIVO A PROFESSIONAL ASSOCIATION IN FLORIDA 601 BRICKELL KEY DRIVE SUITE 700 MIAMI, FL 33131. TEL 646-218-7541 EXT. 541 FAX 646-218-7510 SUZANNE.VALLES@LAWBHS.COM WWW.LAWBHS.COM THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM. DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IN ADDITION, PLEASE NOTE THAT UNLESS DIRECT REFERENCE IS MADE TO REDLINING OR TRACK CHANGES THAT ARE EXPRESSLY TRANSMITTED FOR REVIEW AND CONSIDERATION, IT IS THE SPECIFIC INTENT OF THE SENDER TO REMOVE ALL METADATA FROM THIS EMAIL AND ITS ATTACHMENTS AND ANY METADATA THAT MAY BE FOUND THEREIN HAS BEEN INADVERTENTLY PRODUCED AND SHOULD NOT BE REVIEWED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US BY REPLY EMAIL OR TELEPHONE (1.646.218.7560), AND IMMEDIATELY DESTROY THIS MESSAGE AND ATTACHMENTS. THANK YOU. From: Rachel Cichowic c ‘@lemonlawsrounnartners.com" riday, July 2, 2021 at 8:22 AM To: Suzanne Valles Cc: Ariana Jackier Subject: Re: Mcmahon v. BMW, Hello I cannot extend any deadlines on Mcmahon Page 10f9§0-2020-CA-010915-XXXXMB Rachel Cichowic Florida Licensed Attorney Lemon Law Group Partners, PLC Phone: (888) 415-0610 Ext. 5103 Fax: (888) 809-7010 rcichowic@lemonlawgrouppartners.com On Fri, Jul 2, 2021 at 8:04 AM Suzanne Valles wrote: Hi Rachel, We are in the process of finalizing our discovery responses. Do you have any objection to us responding by Monday July 5th? Regards, Suzanne SUZANNE M. VALLES BIEDERMANN HOENIG SEMPREVIVO A PROFESSIONAL ASSOCIATION IN FLORIDA 601 BRICKELL KEY DRIVE SUITE 700 MIAMI, FL 33131 TEL 646-218-7541 EXT. 541 FAX 646-218-7510 SUZANNE.VALLES@LAWBHS.COM WWW.LAWBHS.COM THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS. ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IN ADDITION, PLEASE NOTE THAT UNLESS DIRECT REFERENCE IS MADE TO REDLINING OR TRACK CHANGES THAT ARE EXPRESSLY REMOVE ALL METADATA FROM THIS EMAIL AND ITS ATTACHMENTS AND ANY METADATA THAT MAY BE FOUND THEREIN HAS BEEN INADVERTENTLY PRODUCED AND SHOULD NOT BE REVIEWED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US BY REPLY EMAIL OR TELEPHONE (1.646.218.7560), AND IMMEDIATELY DESTROY THIS MESSAGE AND. ATTACHMENTS. THANK YOU. Page 2 of 9§0-2020-CA-010915-XXXXMB From: Rachel Cichowic Reply-To: "rcichowic@lemonlawgrouppartners.com" Date: Monday June 28, 2021 at 11:18 AM To: Suzanne Valles Cc: Ariana Jackier Subject: Re: Mcmahon v. BMW Np Rachel Cichowic Florida Licensed Attorney Lemon Law Group Partners, PLC Phone: (888) 415-0610 Ext. 5103 Fax: (888) 809-7010 reichowic@lemonlawgrouppartners.com Error! Filename not specified, On Mon, Jun 28, 2021 at 11:16 AM Suzanne Valles wrote: Thanks, Rachel. Regards, Suzanne SUZANNE M. VALLES BIEDERMANN HOENIG SEMPREVIVO A PROFESSIONAL ASSOCIATION IN FLORIDA 601 BRICKELL KEY DRIVE SUITE 700 MIAMI, FL 33131. TEL 646-218-7541 EXT. 541 FAX 646-218-7510 SUZANNE.VALLES@LAWBHS.COM WWW.LAWBHS.COM THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS. ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE | | MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, Page 3 of 9§0-2020-CA-010915-XXXXMB DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IN ADDITION, PLEASE NOTE THAT UNLESS DIRECT REFERENCE IS MADE TO REDLINING OR TRACK CHANGES THAT ARE EXPRESSLY TRANSMITTED FOR REVIEW AND CONSIDERATION, IT IS THE SPECIFIC INTENT OF THE SENDER TO REMOVE ALL METADATA FROM THIS EMAIL AND ITS ATTACHMENTS AND ANY METADATA THAT MAY BE FOUND THEREIN HAS BEEN INADVERTENTLY PRODUCED AND SHOULD NOT BE REVIEWED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US BY REPLY EMAIL OR TELEPHONE (1.646.218.7560), AND IMMEDIATELY DESTROY THIS MESSAGE AND. ATTACHMENTS. THANK YOU. From: Rachel Cichowic Reply-To: "rcichowic@lemonlawgrouppartners.com" Date: Monday, June 28, 2021 at 11:15 AM To: Suzanne Valles Cc: Ariana Jackier Subject: Re: Mcmahon v. BMW, Hello I h ave no issue responding July 2 Rachel Cichowic Florida Licensed Attorney Lemon Law Group Partners, PLC Phone: (888) 415-0610 Ext. 5103 Fax: (888) 809-7010 rcichowic@lemonlawerouppartners.com lename not specified.| Error! Elename AME Virus-free. www.avast.com not specified On Mon, Jun 28, 2021 at 10:41 AM Suzanne Valles wrote: Hi Rachel, Hope all is well. Our office has filed a motion for extension. Please advise if you have any objection to us responding to the discovery requests on or before this Friday July ng, Page 4 of 9§0-2020-CA-010915-XXXXMB Thanks. Regards, Suzanne SUZANNE M. VALLES BIEDERMANN HOENIG SEMPREVIVO A PROFESSIONAL ASSOCIATION IN FLORIDA OUL DNICNCLL ACT UAIVE SUITE 700 MIAMI, FL 33131. TEL 646-218-7541 EXT. 541 FAX 646-218-7510 SUZANNE.VALLES@LAWBHS.COM WWW,LAWBHS.COM. THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IN ADDITION, PLEASE NOTE THAT UNLESS DIRECT REFERENCE IS MADE TO REDLINING OR TRACK CHANGES THAT ARE EXPRESSLY TRANSMITTED FOR REVIEW AND CONSIDERATION, IT IS THE SPECIFIC INTENT OF THE SENDER TO REIMOVE ALL WETADATA FROM THIS EMAIL AND 175 ATTACHMENTS AND ANY METADATA THAT MAY BE FOUND THEREIN HAS BEEN INADVERTENTLY PRODUCED AND SHOULD NOT BE REVIEWED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US BY REPLY EMAIL OR TELEPHONE (1.646.218.7560), AND IMMEDIATELY DESTROY THIS MESSAGE AND ATTACHMENTS. THANK YOU. From: Rachel Cichowic Reply-To: "rcichowic@lemonlawgrouppartners.com" Date: Thursday, June 24, 2021 at 3:40 PM To: Suzanne Valles Ce: Ariana Jackier Subject: Re: Mcmahon v. BMW. No I cannot wait that long Rachel Cichowic Florida Licensed Attorney Lemon Law Group Partners, PLC Phone: (888) 415-0610 Ext. 5103 Fax: (888) 809-7010 rcichowic@lemonlawgrouppartners.com Error! Filename not specified.| Page 5 of 9§0-2020-CA-010915-XXXXMB On Thu, Jun 24, 2021 at 3:36 PM Suzanne Valles wrote: Hi Rachel, Would you be agreeable to us responding to discovery within 5 days of a ruling on the Motion to Dismiss? Thanks. Regards, Suzanne SUZANNE M. VALLES BIEDERMANN HOENIG SEMPREVIVO A PROFESSIONAL ASSOCIATION IN FLORIDA 601 BRICKELL KEY DRIVE SUITE 700 MIAMI, FL 33131 TEL 646-218-7541 EXT. 541 FAX 646-218-7510 SUZANNE.VALLES@LAWBHS.COM. WWW.LAWBHS.COM THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE |S NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IN ADDITION, PLEASE NOTE THAT UNLESS DIRECT REFERENCE IS MADE TO. REDLINING OR TRACK CHANGES THAT ARE EXPRESSLY TRANSMITTED FOR REVIEW AND. CONSIDERATION, IT IS THE SPECIFIC INTENT OF THE SENDER TO REMOVE ALL METADATA. FROM THIS EMAIL AND ITS ATTACHMENTS AND ANY METADATA THAT MAY BE FOUND THEREIN HAS BEEN INADVERTENTLY PRODUCED AND SHOULD NOT BE REVIEWED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US BY REPLY EMAIL OR TELEPHONE (1.646.218.7560), AND IMMEDIATELY DESTROY THIS MESSAGE AND ATTACHMENTS. THANK YOU. From: Rachel Cichowic Reply-To: "rcichowic@lemonlawgrouppartners.com" Date: Wednesday, June 23, 2021 at 12:02 PM To: Suzanne Valles , Ariana Jackier Subiect: Re: Mcmahon v. RMW quae Hello I can give you a 5 day extension Page 6 of 9§0-2020-CA-010915-XXXXMB Rachel Cichowic Florida Licensed Attorney Lemon Law Group Partners, PLC Phone: (888) 415-0610 Ext. 5103 Fax: (888) 809-7010 rcichowic@lemonlawgrouppartners.com Error! Filename not specified] On Wed, Jun 23, 2021 at 1 AM Suzanne Valles wra' Hi Rachel, Aresponse to your office’s initial discovery requests are currently due tomorrow. Do you have any objection to an extension through July 3oth (following the hearing on the MTD)? Thanks. Regards, Suzanne SUZANNE M. VALLES BIEDERMANN HOENIG SEMPREVIVO A PROFESSIONAL ASSOCIATION IN FLORIDA 601 BRICKELL KEY DRIVE SUITE 700 MIAMI, FL 33131 TEL 646-218-7541 EXT. 541 FAX 646-218-7510 SUZANNE.VALLES @LAWBHS.COM. WWW.LAWBHS.COM THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IN ADDITION, PLEASE NOTE THAT UNLESS DIRECT REFERENCE IS MADE TO REDLINING OR TRACK CHANGES THAT ARE EXPRESSLY TRANSMITTED FOR REVIEW AND CONSIDERATION, IT IS THE SPECIFIC INTENT OF THE SENDER TO REMOVE ALL METADATA FROM THIS EMAIL AND ITS ATTACHMENTS AND ANY METADATA THAT MAY BE FOUND. THEREIN HAS BEEN INADVERTENTLY PRODUCED AND SHOULD NOT BE REVIEWED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US BY REPLY EMAIL OR TELEPHONE (1.646.218.7560), AND IMMEDIATELY DESTROY THIS MESSAGE AND. ATTACHMENTS. THANK YOU. Page 7 of 9EXHIBIT “D”50-2020-CA-010915-XXXXMB Friday, October 8, 2021 at 10:19:17 PM Eastern Daylight Time Subject: SERVICE OF COURT DOCUMENT CASE NUMBER 502020CA010915XXXXMB MCMAHON, FRANCIS ALOYISIUS - BMW OF NORTH AMERICA LLC Date: Friday, July 2, 2021 at 11:45:37 PM Eastern Daylight Time From: eservice@myficourtaccess.com Attachments: Response To Request For Admissions.pdf, Response To Request For Production.pdf Notice of Service of Court Documents Filing Information Filing #: 130030376 Filing Time: 07/02/2021 11:45:33 PM ET Filer: Suzanne Mary Valles Court: Fifteenth Judicial Circuit in and for Palm Beach County, Florida Case #: 502020CA010915XXXXMB Court Case #: 50-2020-CA-010915-XXXX-MB Case Style: MCMAHON, FRANCIS ALOYISIUS - BMW OF NORTH AMERICA LLC Documents Title File Response To Request For Admissions IMcMahon-Response to Requi Response To Reauest For Production McMahon Response to Reau E-service recipients selected for service: Email Address Name Rachel Monica Cichowic Suzanne Mary Valles suzanne. valles@lawbhs.com francis.diaz@lawbhs.com E-service recipients not selected for service: IName [Email Address This is an automatic email message generated by the Florida Courts E-Filing Portal. This email address does not receive email. Thank you, The Florida Courts E-Filing Portal Page 1 of 150-2020-CA-010915-XXXXMB Filing # 130030376 E-Filed 07/02/2021 11:45:33 PM IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA FRANCIS ALOYISUS MCMAHON CASE NO: 2020-CA-010915-XXXX- MB Plaintiff, vs. BMW of NORTH AMERICA, LLC., / DEFENDANT’S ANSWERS TO PLAINTIFF'S RE! STS FOR ADMISSION Defendant, BMW of North America, LLC, (“BMW NA”), by and through the undersigned C Plaintiff's Requests for Admission and states the following: 1. Admit or deny that BMW OF NORTH AMERICA, LLC, is the manufacturer of the 2017 BMW 530i, Vehicle Identification Number (VIN No.) WBAJA5C51JG898149, (“Subject Vehicle”). ANSWER: Denied. BMW NA is the distributor of new BMW vehicles in the United States and does not manufacture vehicles, including the Subject Vehicle. 2. Admit or deny that Subject Vehicle was purchased on or about October 21, 2017. ANSWER: BMW NA objects to this request as an improperly directed discovery request to BMW NA as it seeks information from an independent non-party to this lawsuit. BMW NA is the distributor of new BMW vehicles in the United States and does not sell or lease vehicles directly to consumers, including the Subject Vehicle. 3. Admit or deny that Subject Vehicle was purchased new. ANSWER: BMW NA objects to this request as an improperly directed discovery request to BMW NA as it seeks information from an independent non-party to this lawsuit. BMW NA is the distributor of new BMW vehicles in the United States and does not sell or lease vehicles directly to consumers, including the Subject Vehicle.50-2020-CA-010915-XXXXMB 4. Admit or deny that BMW OF NORTH AMERICA, LLC provided a Manufacturer’s 4 (four) year / 50,000 mile bumper-to-bumper factory warranty and 4 (four) year / 50,000 mile Powertrain warranty. ANSWER: BMW NA objects to this request as phrased, but admits that the New Vehicle Limited Warranty would have accompanied the Subject Vehicle for the earlier of 4 years or 50,000 miles. Further in response, the foregoing warranty is subiect to the terms and conditions, therein. Plaintiff and the Court are respectfully referred to the full-text version for its true and complete content. 5. Admit or deny that Subject Vehicle was in BMW OF NORTH AMERICA, LLC or BMW OF NORTH AMERICA, LLC’s Authorized Dealer’s possession for eleven (10) days, for repairs on June 9, 2018 for Electrical issues, Airbag Warning Light issues and Shifting issues. ANSWER: BMW NA objects to this request as vague, unduly burdensome, unintelligible, and an improperly directed discovery request to BMW NA as it seeks information from an independent non-party to this lawsuit. BMW NA is the distributor of new BMW vehicles in the United States and does not service or repair vehicles, including the Subject Vehicle. 6. Admit or deny that Subject Vehicle was presented to BMW OF NORTH AMERICA, LLC’S or BMW OF NORTH AMERICA, LLC’s Authorized Dealer’s possession for sixteen (16) days on June 26, 2018 for repairs on Fuel Tank and Fuel Pump and Level Sensors Issues. ANSWER: BMW NA objects to this request as vague, unduly burdensome, unintelligible, and an improperly directed discovery request to BMW NA as it seeks information from an independent non-party to this lawsuit. BMW NA is the distributor of new BMW vehicles in the United States and does not service or repair vehicles, including the Subject Vehicle. 7. Admit or deny that Subject Vehicle was in BMW OF NORTH AMERICA, LLC’S or BMW OF NORTH AMERICA, LLC’s Authorized Dealer’s possession for three (3) days on October 8, 2018 for repairs for Passenger Restraint MALF Light and related faults, Service Standard Scope issues. ANSWER: BMW NA objects to this request as vague, unduly burdensome, unintelligible, and an improperly directed discovery request to BMW NA as it seeks information from an independent non-party to this lawsuit. BMW NA is the distributor of new BMW vehicles in the United States and does not service or repair vehicles, including the Subject Vehicle. 8. Admit or deny that _Subject Vehicle was presented to BMW OF NORTH AMERICA, LLC’S or BMW OF NORTH AMERICA, LLC's Authorized Deaier’s possession for twelve (12) days on October 29, 2018 for repairs for Passenger Restraint Signal issues. ANSWER: BMW NA objects to this request as vague, unduly burdensome, unintelligible, and an improperly directed discovery request to BMW NA as it seeks information from an independent non-party to this lawsuit. BMW NA is the distributor of new BMW vehicles in the United States and does not service or repair vehicles, including the Subject Vehicle.50-2020-CA-010915-XXXXMB 9. Admit or deny that Subject Vehicle was presented to BMW OF NORTH AMERICA, LLC’S or BMW OF NORTH AMERICA, LLC’s Authorized Dealer’s possession for two (2) days on July 22, 2020 for repairs for Passenger Restraint Malfunction and Sensor Mat Issues. ANSWER: BMW NA objects to this request as vague, unduly burdensome, unintelligible, and an improperly directed discovery request to BMW NA as it seeks information from an independent non-party to this lawsuit. BMW NA is the distributor of new BMW vehicles in the United States and does not service or repair vehicles, including the Subject Vehicle. 10. Admit or deny that the Purchase Price of Subject Vehicle was $59,080.00. ANSWER: BMW NA objects to this request as an improperly directed discovery request to BMW NA as it seeks information from an independent non-party to this lawsuit. BMW NA is the distributor of new BMW vehicles in the United States and does not sell or lease vehicles directly to consumers, including the Subject Vehicle. 11. Admit or deny that BMW OF NORTH AMERICA, LLC had a chance to repair Subject Vehicle after receipt of the written notification. ANSWER: Denied. BMW NA is the distributor of new BMW vehicles in the United States and does not service or repair vehicles, including the Subject Vehicle. 12. Admit or deny that BMW OF NORTH AMERICA, LLC took over twenty (20) days to repair Subject Vehicle after presented for repairs due to written notification. ANSWER: Denied. BMW NA is the distributor of new BMW vehicles in the United States and does not service or repair vehicles, including the Subject Vehicle. 13. Admit or deny that the defects, nonconformities, or conditions complained of substantially impair Subject Vehicle’s use. ANSWER: Denied. 14. Admit or deny that the defects the defects, nonconformities, or conditions complained of substantially impair Subject Vehicle’s value. ANSWER: Denied. 15. Admit or deny that the defects, nonconformities, or conditions complained of substantially impair Subject Vehicle’s safety. ANSWER: Denied. 16. Admit or deny that BMW OF NORTH AMERICA, LLC failed to repair Subject Vehicle within a reasonable number of repair attempts.50-2020-CA-010915-XXXXMB ANSWER: Denied. BMW NA is the distributor of new BMW vehicles in the United States and does not service or repair vehicles, including the Subject Vehicle. 17. Admit or deny that BMW OF NORTH AMERICA, LLC failed to repair Subject Vehicle within a reasonable amount of time. ANSWER: Denied. BMW NA is the distributor of new BMW vehicles in the United States and does not service or repair vehicles, including the Subject Vehicle. 18. | Admit or deny that Plaintiffs could not use or enjoy Subject Vehicle while it was in BMW OF NORTH AMERICA, LLC in BMW OF NORTH AMERICA, LLC’s Authorized Dealer’s, possession. ANSWER: BMW NA objects to this request as vague and unintelligible. Further in response, denied as phrased. 19. | Admit or deny that in BMW OF NORTH AMERICA, LLC breached the express warranty provided to Plaintiffs for Subject Vehicle. ANSWER: Denied. 20. Admit or deny that in BMW OF NORTH AMERICA, LLC breached the statutory warranty provided to Plaintiffs through Fla. Stat. § 380.835. ANSWER: Denied. PLEASE TAKE NOTICE that Defendant BMW of North America, LLC, reserves the right to amend and/or supplement its Answers to Plaintiff's Request for Admissions up to and including the time of trial.50-2020-CA-010915-XXXXMB CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served by e- mail via the Florida Courts E-Filing Portal system on this 2nd day of July, 2021, upon: Rachel Cichowic, Esa. Attorneys for Plaintiff at info@lemonlawgrouppartners.com and reichowic@lemonlawgrouppartners.com. BIEDERMANN HOENIG SEMPREVIVO, P.A. 601 Brickell Key Drive, Suite 700 Miami, Florida 33131 (646) 218-7541 Ext. 508 — Telephone (646) 218-7510- Fascimile E-mail: suzanne.valles@lawbhs.com By: /s/ Suzanne M. Valles SUZANNE M. VALLES Florida Bar No. 124546