Verrier v. Perrino et al
ORDER denying 127 Plaintiff's Motion to Compel; denying 131 Plaintiff's Rule 45 Motion to Compel; denying 134 Plaintiff's Motion to Compel; granting 138 Plaintiff's Motion for Discovery Cost Shifting. Plaintiff's Response to Defendants' Response for Motion to Compel (Doc. 137) is STRICKEN. See Order for details. Signed by Magistrate Judge Carol Mirando on 10/5/2017. (HJ)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JOSEPH M. VERRIER,
Case No: 2:14-cv-744-FtM-29CM
PETER PERRINO and DIANE
This matter comes before the Court upon review of Plaintiff’s Motion to Compel
(Doc. 127); Plaintiff’s Rule 45 Motion to Compel (Doc. 131); Plaintiff’s Motion to
Compel (Doc. 134); and Plaintiff’s Motion for Discovery Cost Shifting (Doc. 138).
Defendants filed responses in opposition to Plaintiff’s motions to compel (Docs. 127,
Docs. 132, 135.
Plaintiff filed a reply to Defendants’ response in
opposition (Doc. 135) without obtaining leave of Court.
As an initial matter, the Court will not consider Plaintiff’s reply brief and will
Doc. 137. The Court noted several times in its previous Orders that even
when Plaintiff is proceeding pro se, he “must follow the rules of procedure,” and “the
district court has no duty to act as his lawyer.”
United States v. Hung Thien Ly, 646
F.3d 1307, 1315 (11th Cir. 2011) (citations omitted); Docs. 115 at 2, 126 at 2.
Pursuant to Middle District of Florida Local Rule 3.01(c), “[n]o party shall file any
reply or further memorandum directed to the motion or response . . . unless the Court
Accordingly, Plaintiff must have obtained leave of Court before filing
any reply brief.
See M.D. Fla. R. 3.01(c). Here, because Plaintiff filed a reply brief
without obtaining leave of Court in violation of Local Rule 3.01(c), the Court will
strike his reply brief and not consider it.
Next, the Court will address Plaintiff’s motions individually.
In his first
Motion to Compel, Plaintiff seeks Defendants to produce certain documents related
to his requests for admissions dated July 10, 2017.
Doc. 127 at 1-2.
requests for admissions concern Defendants’ electronic data regarding their GPS
monitoring of Plaintiff.
Doc. 127-1 at 1-2.
Defendants admitted they can make
electronic adjustments to their GPS monitoring units so that alarms and warnings of
their GPS monitoring system would not work in specific circumstances.
Id. at 4.
Plaintiff also served a request for production of documents, seeking a paper copy of
“all data held by Florida [Department of Corrections (“DOC”),] or the GPS monitoring
center contracted with Florida DOC for Plaintiff in [his] entire period on probation in
Id. at 2-3. Defendants objected to this request, asserting this request is
unduly vague and ambiguous, and they are not in possession of any documents
responsive to this request.
Id. at 5.
Plaintiff argues the requested data are part of public records under the Florida
Public Records Act, Chapter 119 of the Florida Statutes.
Doc. 127 at 4. Plaintiff
also relies on Rule 34(a)(1)(A) of the Federal Rules of Civil Procedure, which states a
party may serve a discovery within the scope of Rule 26(b)
(1) to produce and permit the requesting party or its representative to
inspect, copy, test, or sample the following items in the responding
party’s possession, custody, or control:
(A) any designated documents or electronically stored
information--including writings, drawings, graphs, charts,
photographs, sound recordings, images, and other data or data
compilations--stored in any medium from which information can
be obtained either directly or, if necessary, after translation by
the responding party into a reasonably usable form. . . .
Fed. R. Civ. P. 34(a)(1); Doc. 127 at 7. Defendants respond that Plaintiff’s request
raises security concerns and also is vague, ambiguous and not proportional to the
needs of this case.
Doc. 132 at 2.
Defendants also assert Plaintiff’s discovery
request accomplishes nothing but affirming what they already admitted. Id. at 2-3.
Rule 26(b)(1) of the Federal Rules of Civil Procedure permits discovery
regarding any nonprivileged matter that is relevant to any party’s claim
or defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery, in resolving the
issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this scope of discovery
need not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1).
“On motion or on its own, the court must limit the frequency
or extent of discovery otherwise allowed by these rules or by local rule if it determines
that . . . the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed.
R. Civ. P. 26(b)(2)(C) (emphasis added).
Accordingly, the Court previously has found a party moving to compel
discovery has the burden to prove the relevancy of the requested information when
the relevancy of the information sought is not clear.
Schumann v. Collier
Anesthesia, P.A., No. 2:12-cv-347-FtM-29UAM, 2014 WL 1261919, at *2 (M.D. Fla.
Jan. 21, 2014) (citation omitted); Berman v. Kafka, No. 3:13-cv-1109-J-JBT, 2014 WL
12617002, at *1 (M.D. Fla. July 25, 2014) (citation omitted) (“When the relevancy of
information sought cannot be discerned from a review of the discovery request, . . .
the party seeking to compel responses must demonstrate relevancy.”); Bright v. Frix,
No. 8:12-cv-1163-T-35MAP, 2016 WL 1011441, at *1 (M.D. Fla. Jan. 22, 2016)
(citation omitted); Doc. 126 at 4-5.
Here, the Court cannot discern the relevancy of the electronic data sought,
especially given Defendants’ admissions.
See Schumann, 2014 WL 1261919, at *2;
Berman, 2014 WL 12617002, at *1; Bright, 2016 WL 1011441, at *1. Furthermore,
Plaintiff’s Third Amended Complaint arises from one incident that occurred on
December 24, 2014.
See Doc. 46 at 2 (“On December 24, 2014, [P]laintiff went to a
restaurant without part of his GPS unit, or without his entire GPS unit. . . .”).
Nonetheless, Plaintiff seeks the production of “all data” regarding Defendants’ GPS
monitoring of him during the “entire period” of his probation in Florida.
at 2-3. In light of the facts at issue and Defendants’ admissions, the Court finds
Plaintiff has not demonstrated the relevancy of his discovery request, and the
information sought is outside the scope of Rule 26(b)(1).
See Fed. R. Civ. P. 26(b)(1);
Schumann, 2014 WL 1261919, at *2; Berman, 2014 WL 12617002, at *1; Bright, 2016
WL 1011441, at *1. Accordingly, the Court will sustain Defendants’ objections and
deny Plaintiff’s motion to compel (Doc. 127).
See Fed. R. Civ. P. 26(b)(2)(C).
With regard to Plaintiff’s Rule 45 Motion to Compel, Plaintiff seeks to compel
his former counsel Roy Foxall to produce documents mailed by Foxall to Defendants
on behalf of Plaintiff in November 2014.
Doc. 131 at 2.
By obtaining these
documents and any related mail receipts, Plaintiff desires to rebut Defendants’ claim
they did not receive these documents.
Id. Plaintiff attached a subpoena issued to
Foxall, which requested Foxall to produce the documents at issue.
Doc. 131-2 at 2.
The Court previously addressed and denied Plaintiff’s similar discovery request and
noted Foxall has not entered a formal appearance in this matter.
Doc. 126 at 5.
Furthermore, it is not clear at all if the issue of whether Defendants received the
documents at issue in November 2014 is relevant here.
See Fed. R. Civ. P. 26(b)(1);
Schumann, 2014 WL 1261919, at *2; Berman, 2014 WL 12617002, at *1; Bright, 2016
WL 1011441, at *1. As a result, the Court will deny Plaintiff’s Rule 45 Motion to
Compel (Doc. 131). See Fed. R. Civ. P. 26(b)(2)(C).
With regard to his third Motion to Compel, Plaintiff states he sent a subpoena
by certified mail to the DOC, specifically addressed to Jenny Nimer.
134-1 at 2.
Docs. 134 at 1,
Plaintiff argues that although Florida law allows the service of a
subpoena by mail, the DOC refused to comply with the subpoena based on the
improper service of the subpoena.
Docs. 134 at 2, 134-1 at 3 (the letter from the
DOC’s Assistant General Counsel stating that “[t]here must be written confirmation
of delivery with the date of service and the name and signature of the person
accepting the subpoena.”).
with the subpoena.
Plaintiff requests the Court to compel the DOC to comply
Doc. 134 at 3.
Defendants respond Plaintiff’s argument is
frivolous and without merit because it lacks any legal support.
Doc. 135 at 3.
The Court cannot verify whether Plaintiff’s subpoena complies with Rule 45
because Plaintiff has not provided a copy of the subpoena mailed to the DOC.
Fed. R. Civ. P. 45(a)(1)(A); Johnson v. Petsmart, Inc., No. 6:06-cv-1716-Orl-31UAM,
2007 WL 2852363, at *2 (M.D. Fla. Oct. 2, 2007) (“As Plaintiff fails to attach the
subpoenas in question, the Court cannot verify the form or content of the
subpoenas.”); Jenkins v. Winn-Dixie Stores, Inc., No. 3:14-cv-1104-J-34MCR, 2015
WL 12915699, at *1 (M.D. Fla. Oct. 5, 2015) (“[W]hile Defendant attached the return
of service for the subpoenas, it does not appear that Defendant attached the
subpoenas. As such, the Court cannot verify the form or content of the subpoenas to
ensure Defendant complied with Rule 45.”).
The Court cannot compel the DOC to
comply with the subpoena until the Court can verify the subpoena is properly issued
See Fed. R. Civ. P. 45(a)(1)(A); Johnson, 2007 WL 2852363, at *2;
Jenkins, 2015 WL 12915699, at *1. Accordingly, Plaintiff’s Motion to Compel (Doc.
134) is denied.
Lastly, Plaintiff appears to have sought the production of unspecified
documents from the DOC by serving a subpoena upon Bradley Rouskey of the DOC
on August 14, 2017. Doc. 138 at 1. Plaintiff received the DOC’s response, which
states that the DOC will produce the requested documents if Plaintiff pays for fees
associated with the production of the requested documents.
Docs. 138-2, 138-3.
Plaintiff asserts a party should bear its own costs in responding to a discovery
Doc. 138 at 3.
He seeks the Court to compel Defendants to produce the
requested documents without shifting the associated discovery costs to him.
Although Plaintiff states Defendants oppose the requested relief, they have not
filed a response in opposition, creating a presumption that this motion is unopposed.
Id. See Great Am. Assur. Co. v. Sanchuk, LLC, No. 8:10-cv-2568-T-33AEP, 2012 WL
195526, at *3 (M.D. Fla. Jan. 23, 2012).
Plaintiff again has not attached a copy of the subpoena at issue to the present
motion, and the Court cannot verify the content of the subpoena. See Fed. R. Civ. P.
45(a)(1)(A); Johnson, 2007 WL 2852363, at *2; Jenkins, 2015 WL 12915699, at *1.
Nonetheless, because the DOC agreed to produce the requested documents upon its
receipt of costs associated with the production, and Defendants do not contest the
present motion, the Court will direct Defendants to produce the requested documents
without shifting the associated costs to Plaintiff.
ACCORDINGLY, it is hereby
Plaintiff’s Motion to Compel (Doc. 127) is DENIED.
Plaintiff’s Rule 45 Motion to Compel (Doc. 131) is DENIED.
Plaintiff’s Motion to Compel (Doc. 134) is DENIED.
Plaintiff’s Motion for Discovery Cost Shifting (Doc. 138) is GRANTED.
Plaintiff shall have up to and including October 12, 2017 to submit a copy of the
subpoena served upon Bradley Rouskey to Defendants.
Defendants shall have up to
and including October 26, 2017 to produce the requested documents.
not be responsible for costs associated with this discovery request.
Plaintiff’s Response to Defendants’ Response for Motion to Compel (Doc.
137) is STRICKEN.
DONE and ORDERED in Fort Myers, Florida on this 5th day of October, 2017.
Counsel of record
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