Carruega v. Steve's Painting, Inc. et al

Filing 23

ORDER granting 22 Plaintiff's Motion to Compel Responses to Plaintiff's First Interrogatories and First Request for Production to Defendant Steve's Painting Inc. Plaintiff's Request for Attorney's Fees and Costs is DENIED without prejudice. See Order for details. Signed by Magistrate Judge Carol Mirando on 6/14/2017. (HJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
LORENZO CARRUEGA, on behalf of
himself and others similarly situated
Plaintiff,
v.

Case No: 2:16-cv-715-FtM-29CM

STEVE’S PAINTING, INC. and
STEVEN BLAIR,
Defendants.
ORDER
This matter comes before the Court upon review of Plaintiff’s Motion to Compel
Responses to Plaintiff’s First Interrogatories and First Request for Production to
Defendant Steve’s Painting Inc. (“Steve’s Painting”) (Doc. 22) filed on May 26, 2017.
Plaintiff alleges that he served interrogatories and requests for production of
documents to Steve’s Painting on April 17, 2017.

Doc. 22 at 2.

He states that

Steve’s Painting has not responded at all to these discovery requests.

Id. at 3.

Plaintiff seeks Steve’s Painting’s complete responses to the discovery requests served
on April 17, 2017. Id. at 2.

Although Plaintiff states that Steve’s Painting objects

to the requested relief, it has not responded to the present motion.

Id. at 4.

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.”
34(b)(1)(A).

Fed. R. Civ. P.

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

-2-

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).
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. 22-2.

Moreover, the information that Plaintiff seeks in each

interrogatory is relevant and Steve’s Painting must respond.

Doc. 22-1.

To the

extent that Steve’s Painting believes Plaintiff’s interrogatories are objectionable,
Steve’s Painting waived its objections by not timely raising them.

Fed. R. Civ. P.

33(b)(4).

Furthermore, Steve’s Painting chose not to respond to the motion to

compel.

Not only did Steve’s Painting 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, Plaintiff’s motion to compel Steve’s Painting

to produce any and all documents that are in its possession, custody, or control that

-3-

are within the scope of the requests, and to provide full, complete, and comprehensive
responses to the interrogatories is granted.
Plaintiff also seeks attorney’s fees and costs associated with bringing this
motion.

Doc. 22 at 3-4.

Rule 37(a)(5)(A) of the Federal Rules of Civil Procedure

provides that if a motion to compel discovery is granted, the court must, after giving
an opportunity to be heard, require the party whose conduct necessitated the motion
to pay the moving party’s reasonable expenses incurred in bringing the motion,
including attorney’s fees. 1

Fed. R. Civ. P. 37(a)(5)(A).

When a party makes a

claim for fees, however, it is the party’s burden to establish entitlement and document
the appropriate hours and hourly rate.

Am. Civil Liberties Union of Ga. v. Barnes,

168 F.3d 423, 427 (11th Cir. 1999) (citing Norman v. Housing Auth. of Montgomery,
836 F.2d 1292, 1303 (11th Cir. 1988)).
Here, Plaintiff alleges that although he attempted in good faith to resolve the
disputes without the Court’s intervention, Steve’s Painting has not responded to the
discovery requests.

Doc. 22 at 4.

Steve’s Painting also has not responded at all to

Plaintiff’s request for attorney’s fees and costs despite its opportunity to do so.

As

noted, Steve’s Painting’s non- response to the request creates a presumption that the

1

The court must not order the payment if:

(i)

the movant filed the motion before attempting in good faith to obtain the
disclosure or discovery without court action;

(ii)

the opposing party's nondisclosure, response, or objection was substantially
justified; or

(iii)

other circumstances make an award of expenses unjust.

Fed. R. Civ. P. 37(a)(5)(A)(i)-(iii).

-4-

request is unopposed.

Great Am. Assur., 2012 WL 195526, at *3.

Plaintiff,

however, has not provided any documentation as to the amount of time expended on
bringing the present motion or the hourly rate.

Accordingly, Plaintiff’s request for

attorney’s fees and costs is denied without prejudice.
ACCORDINGLY, it is hereby
ORDERED:
1.

Plaintiff’s Motion to Compel Responses to Plaintiff’s First Interrogatories

and First Request for Production to Defendant Steve’s Painting Inc. (Doc. 22) is
GRANTED.
2.

On or before June 28, 2017, Defendant Steve’s Painting Inc. 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 Plaintiff’s motion (Doc. 22-2).
3.

On or before June 28, 2017, Defendant Steve’s Painting Inc. shall provide

full, complete, and comprehensive responses to the interrogatories laid out in
Plaintiff’s motion (Doc. 22-1).
4.

If Steve’s Painting Inc. is unable to produce documents responsive to

the requests or provide responses to the interrogatories, then Steve’s Painting Inc.
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.
5.

Plaintiff’s Request for Attorney’s Fees and Costs is DENIED without

prejudice.

-5-

DONE and ORDERED in Fort Myers, Florida on this 14th day of June, 2017.

Copies:
Counsel of record

-6-