Miller v. Environmental Turnkey Solutions, LLC et al

Filing 34

ORDER granting 33 Plaintiff's Opposed Motion to Compel Responses to Second Set of Interrogatories and Requests for Production and Supporting Memorandum of Law. Defendant Environmental Turnkey Solutions, LLC shall have up to and including J anuary 10, 2017 to produce appropriate responses and documents to Plaintiff's Second Set of Interrogatories (Doc. 33-1) and Plaintiff's Second Request for Production of Documents (Doc. 33-2). Signed by Magistrate Judge Carol Mirando on 12/27/2016. (LS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
WILLIAM MILLER,
Plaintiff,
v.

Case No: 2:15-cv-732-FtM-29CM

ENVIRONMENTAL TURNKEY
SOLUTIONS, LLC and ANTHONY
M. CIALONE,
Defendants.
ORDER
This matter comes before the Court upon review of Plaintiff’s Opposed Motion
to Compel Responses to Second Set of Interrogatories and Requests for Production
and Supporting Memorandum of Law (Doc. 33) filed on November 29, 2016. To date,
Defendant has not filed a response and the time to do so has expired. The motion,
therefore, is ripe for review. For the reasons that follow, the motion is due to be
granted.
Plaintiff instituted this action on November 27, 2015 alleging violations of the
minimum wage and overtime provisions of the Fair Labor Standards Act (“FLSA”).
Doc. 1. On January 14, 2016, Defendants filed their Answer in which they also
asserted five affirmative defenses.

Doc. 17.

As their third affirmative defense,

Defendants claim that Plaintiff was exempt from the FLSA’s minimum wage and
overtime compensation under 29 U.S.C. § 213 because he was employed in an
executive or administrative capacity, or a combination of the two. Id. at 5.

On October 5, 2016, Plaintiff served his Second Set of Interrogatories and
Second Request for Production of Documents to Defendant Environmental Turnkey
Solutions, LLC (“Defendant”) aimed at securing information and documents relating
to Defendant’s claims as raised in its Answer. Docs. 33-1; 33-2. In the Second Set
of Interrogatories, Plaintiff lists one interrogatory, which requests that Defendant
[i]dentify any and all individuals Plaintiff is alleged to have supervised
while employed by Defendant, including the dates he supervised such
individuals, the individuals’ job titles, status as exempt employees, nonexempt employees or contractors, rate of pay, and whether the
employee(s) was/were paid hourly or paid a weekly salary.
Doc. 33-1 at 10. Similarly, the Second Request for Production of Documents requests
Defendant’s communications with its payroll company or any other payroll
administrator relating to Plaintiff’s treatment as exempt or non-exempt employee, its
contracts or agreements with any payroll companies during Plaintiff’s employment,
and other documents evidencing that Plaintiff hired, fired, disciplined, or set
schedules or rates of pay for any of Defendant’s employees.

Doc. 33-2 at 7-8.

Plaintiff’s counsel states that she has followed up with Defendant’s counsel through
several emails, including but not limited to emails on November 11, 2016, November
14, 2016, and November 28, 2016, but has not received a response. Doc. 33 at 2.
The trial court has discretion whether to grant a motion to compel.

Commercial Union Insurance Co. v. Westrope, 730 F.2d 729, 731 (11th Cir. 1984).
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.

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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).

Relevancy is determined based on the “tendency to make a

fact more or less probable than it would be without the evidence, and the fact is of
consequence in determining the action.”

Fed. R. Evid. 401.

A request for

production must state “with reasonable particularity each item or category of items
to be inspected.” 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.” Fed. R. Civ. P. 34(b)(2). 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). Here, based on the review of the Second
Request for Production of Documents and Defendant’s affirmative defenses, the Court
is satisfied that the requested documents are relevant to Defendant’s affirmative
defenses, and proportional to the needs of the case. Because Defendant has failed to

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produce the documents as requested under Rule 34, the Court will compel that it does
so within fourteen days from the date of this Order.
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. Fed. R.
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. Fed. R.
Civ. P. 33(b)(4). 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. Fed. R. Civ. P.
37(a)(3)(B)(iii). Here, based on the review of the Second Set of Interrogatories and
Defendant’s affirmative defenses, the Court is satisfied that the sole interrogatory
that was served is relevant to Defendant’s affirmative defenses, and proportional to
the needs of the case. Because Defendant has failed to answer the interrogatory, the
Court will compel that it does so within fourteen days from the date of this Order.

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ACCORDINGLY, it is hereby
ORDERED:
1.

Plaintiff's Opposed Motion to Compel Responses to Second Set of

Interrogatories and Requests for Production and Supporting Memorandum of Law
(Doc. 33) is GRANTED.
2.

Defendant Environmental Turnkey Solutions, LLC shall have up to and

including January 10, 2017 to produce appropriate responses and documents to
Plaintiff’s Second Set of Interrogatories (Doc. 33-1) and Plaintiff’s Second Request for
Production of Documents (Doc. 33-2).
DONE and ORDERED in Fort Myers, Florida on this 27th day of December,
2016.

Copies:
Counsel of record

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