Ace American Insurance Company v. AJAX Paving Industries of Florida, LLC

Filing 49

ORDER granting 43 Third Party Defendant, Asphalt Milling Services, LLC's Motion to Compel Discovery Responses from Third Party Plaintiff/Defendant Ajax Paving Industries of Florida, LLC. See Order for details. Signed by Magistrate Judge Carol Mirando on 3/31/2017. (HJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ACE AMERICAN INSURANCE
COMPANY,
Plaintiff,
v.

Case No: 2:15-cv-629-FtM-99CM

AJAX PAVING INDUSTRIES OF
FLORIDA, LLC,
Defendant/Third
Party Plaintiff
ASPHALT MILLING SERVICES,
LLC,
Third Party Defendant.
__________________________________/
ORDER
This matter comes before the Court upon review of Third Party Defendant,
Asphalt Milling Services, LLC’s (“Asphalt”) Motion to Compel Discovery Responses
from Third Party Plaintiff/Defendant Ajax Paving Industries of Florida, LLC
(“Defendant”) (Doc. 43) filed on March 13, 2017.

Asphalt seeks to compel Defendant

to provide complete responses to Asphalt’s discovery requests served on December 7,
2016 because Asphalt alleges that Defendant has not objected or responded to
Asphalt’s discovery requests.

Doc. 43 at 1-2.

Although Asphalt states that

Defendant objects to the requested relief, Defendant has not responded to Asphalt’s
motion to compel.

Id. at 3. Discovery closed on March 20, 2017. Docs. 39, 46.

Asphalt alleges that on December 7, 2016, it served interrogatories and
requests for production of documents to Defendant, making Defendant’s response due
January 6, 2017.

Id. at 1-2. Asphalt states that on January 5, 2017, Defendant’s

counsel requested a ten-day extension to provide Defendant’s response to the
discovery requests.

Id. at 2. Asphalt states that on January 17, 2017, Defendant’s

counsel requested an additional two-week extension.

Id.

Asphalt alleges that

when it requested an update on February 24, 2017 and sent a second request for
outstanding discovery responses on March 2, 2017, Defendant’s counsel responded
that Defendant would serve its discovery response on March 7, 2017. Id.

Asphalt

asserts that despite Defendant’s alleged promises to provide its response, Defendant
has not objected or responded to Asphalt’s outstanding discovery requests served on
December 7, 2016.

Id.

Rule 34 of the Federal Rules of Civil Procedure sets forth the procedures for
obtaining access to documents and things within the control of the opposing party.
Fed. R. Civ. P. 34.

Rule 34(a) allows a party to serve on any other party a request

within the scope of Rule 26(b). Fed. R. Civ. P. 34(a).

Rule 26(b) 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).

A request for production must state “with reasonable

particularity each item or category of items to be inspected.”

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Fed. R. Civ. P.

34(b)(1)(A).

The party to whom the request is directed must respond within thirty

days after being served, and “for each item or category, . . . must state with specificity
the grounds for objecting to the request, including the reasons.”
34(b)(2).

Fed. R. Civ. P.

Furthermore, “[a]n objection must state whether any responsive materials

are being withheld on the basis of that objection.”

Fed. R. Civ. P. 34(b)(2)(C).

When a party fails to produce documents as requested under Rule 34, the party
seeking the discovery may move to compel the discovery.

Fed. R. Civ. P.

37(a)(3)(B)(iv).
Rule 33 of the Federal Rules of Civil Procedure allows a party to serve on
another party written interrogatories that relate to “any matter that may be inquired
into under Rule 26(b)” as outlined above. Fed. R. Civ. P. 33(a). A written response
or objection to an interrogatory is due within thirty days after the service.
Civ. P. 33(b)(2).

An objection is waived if not made timely “unless the court, for good

cause, excuses the failure.”

Fed. R. Civ. P. 33(b)(3).

A party objecting to an

interrogatory must state “with specificity” the grounds for such objection.
Civ. P. 33(b)(4).

Fed. R.

Fed. R.

Furthermore, “[a] party resisting discovery must show specifically

how . . . each interrogatory is not relevant or how each question is overly broad,
burdensome or oppressive. . .”

Panola Land Buyer’s Assn. v. Shuman, 762 F.2d

1550, 1559 (11th Cir. 1985) (citing Josephs v. Harris Corp., 677 F.2d 985, 992 (3d Cir.
1982)).

An evasive or incomplete answer or response must be treated as a failure to

answer or respond.

Fed. R. Civ. P. 37(a)(4).

When a party fails to answer an

interrogatory, the party seeking the discovery may move to compel the response.

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Fed. R. Civ. P. 37(a)(3)(B)(iii).
discretion of the trial court.

Whether or not to grant a motion to compel is at the

Commercial Union Insurance Co. v. Westrope, 730 F.2d

729, 731 (11th Cir. 1984).
Upon a review of the requests for production of documents, the Court is
satisfied that the documents requested are relevant to this proceeding and must be
produced.

Doc. 43-1 at 16-18.

Moreover, the information that Asphalt seeks in

each interrogatory is relevant and Defendant must respond.

Id. at 6-10. To the

extent that Defendant believes Asphalt’s interrogatories are objectionable, Defendant
waived its objections by not timely raising them.

Fed. R. Civ. P. 33(b)(4).

Furthermore, Defendant chose not to respond to the motion to compel.

Not only does

Defendant waive its objections, but failure to file a response to a motion creates a
presumption that the motion is unopposed.

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).

As a

result, Asphalt’s motion to compel Defendant to produce any and all documents that
are in Defendant’s possession, custody, or control that are within the scope of the
requests, and to provide full, complete, and comprehensive responses to the
interrogatories is granted.
ACCORDINGLY, it is hereby
ORDERED:
1.

Third Party Defendant, Asphalt Milling Services, LLC’s Motion to

Compel Discovery Responses from Third Party Plaintiff/Defendant Ajax Paving
Industries of Florida, LLC (Doc. 43) is GRANTED.

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2.

On or before April 14, 2017, Defendant Ajax Paving Industries of

Florida, LLC shall produce any and all documents that are in its possession, custody,
or control that are within the scope of the requests laid out in Asphalt Milling
Services, LLC’s motion (Doc. 43-1 at 16-18).
3.

On or before April 14, 2017, Defendant Ajax Paving Industries of

Florida, LLC shall provide full, complete, and comprehensive responses to the
interrogatories laid out in Asphalt Milling Services, LLC’s motion (Doc. 43-1 at 6-10).
4.

If Defendant is unable to produce documents responsive to the requests

or provide responses to the interrogatories, then Defendant must explain in
reasonable factual detail the efforts that it made to obtain the requested documents
and information and why it is unable to provide them. Failure to comply may result
in sanctions.
DONE and ORDERED in Fort Myers, Florida on this 31st day of March, 2017.

Copies:
Counsel of record

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