Hastings v. Inmate Services Corporation

Filing 63

ORDER denying 56 Plaintiff's Letter Motion; denying without prejudice 58 Plaintiff's Motion for Order Compelling Discovery. Signed by Magistrate Judge Carol Mirando on 10/31/2018. (APH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DAVID HASTINGS,
Plaintiff,
v.

Case No: 2:17-cv-145-FtM-99CM

INMATE SERVICES
CORPORATION,
Defendant.
ORDER
This matter comes before the Court upon review of Plaintiff David Hastings’
Letter Motion (Doc. 56) filed on June 21, 2018 and Motion for Order Compelling
Discovery (“motion to compel”) (Doc. 58) filed on September 13, 2018. Defendant
Inmate Services Corporation (“ISC”) filed a Response to Plaintiff’s motion to compel
on September 28, 2018. Doc. 59. Without leave of Court, on October 11, 2018 and
October 18, 2018, Plaintiff filed two separate replies to ISC’s response. Docs. 60, 61.
For the reasons stated below, both motions are denied.
I.

Letter Motion

Plaintiff’s Letter Motion is addressed to the Clerk and states that Plaintiff is
proceeding in forma pauperis (“IFP”) in the case. Doc. 56. Plaintiff requests that
the Court issue unspecified subpoenas for him due to his IFP status. Id. Plaintiff
is not, however, proceeding IFP and paid the $400 filing fee when he filed the
Complaint on March 10, 2017. See Doc. 1. Further, Local Rule 3.01 provides that
requests for relief must not be submitted to the Court “in the form of a letter or the

like.” M.D. Fla. R. 3.01(f). Plaintiff is directed to refrain from filing letter motions
in the future. For those reasons, Plaintiff’s Letter Motion will be denied.
II.

Motion to compel

Plaintiff’s motion to compel states Plaintiff submitted interrogatories and
requests for production to ISC on May 20, 2018 and ISC failed to produce responsive
documents. Doc. 58 at 3. For example, Plaintiff has requested a certain insurance
policy from ISC, to which ISC has denied Plaintiff access for over five months. Id.
Plaintiff also requests that the Court compel the depositions of five witnesses. Id.
at 3.1 ISC responds that it provided Plaintiff with the materials requested in his
motion to compel on September 27, 2018 and requests that Plaintiff’s motion to
compel be denied as moot. Doc. 59. ISC also states it is working with Plaintiff to
coordinate dates for the proposed depositions and attempting to ascertain the
locations of the witnesses. Id. at 1.
Plaintiff’s two replies, 2 filed seven days apart, are identical except for the
addition of a news article in the second reply. See generally Docs. 60, 61. Both
replies explain that ISC did not produce satisfactory responses and improperly
objected to many requests. See generally Docs. 60, 61. Plaintiff further requests
that the Court sanction ISC by imposing a $1,500 fine for failing to produce witnesses
at scheduled depositions in August 2018. See Doc. 60 at 8; Doc. 61 at 6.

1

Plaintiff does not identify the witnesses in the motion to compel, but states they are
the witnesses ISC identified in its Rule 26 disclosures served on Plaintiff on March 2, 2018.
See Doc. 58 at 1, 3.
2

The Court notes that Plaintiff did not seek leave to file a reply to ISC’s response;
thus, both of his replies were filed in violation of the Local Rules. See M.D. Fla. R. 3.01(c).

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Rule 3.04 of the Middle District of Florida Local Rules states:
A motion to compel discovery pursuant to Rule 36 or Rule 37, Fed. R.
Civ. P., shall include quotation in full of each interrogatory, question on
deposition, request for admission, or request for production to which the
motion is addressed; each of which shall be followed immediately by
quotation in full of the objection and grounds therefor as stated by the
opposing party; or the answer or response which is asserted to be
insufficient, immediately followed by a statement of the reason the
motion should be granted. . .
M.D. Fla. R. 3.04(a).

Neither Plaintiff’s motion to compel nor his unauthorized

replies comply with Rule 3.04. Further, Plaintiff does not provide the names of the
witnesses ISC allegedly failed to produce in August 2018 or provide proof of notices
of deposition served on the witnesses or ISC. See Doc. 60 at 8; Doc. 61 at 6; M.D.
Fla. R. 3.02.

Without more detail, the Court is unable to determine the

appropriateness of compelling the depositions and discovery responses or imposing
sanctions.

Furthermore, ISC’s response indicates it is attempting to locate the

witnesses Plaintiff seeks to depose and is coordinating with Plaintiff to arrange the
depositions. Doc. 59 at 1. Thus, the Court declines to impose sanctions at this
time.
Rule 37 of the Federal Rules of Civil Procedure states, in relevant part:
On notice to other parties and all affected persons, a party may move for
an order compelling disclosure or discovery. The motion must include
a certification that the movant has in good faith conferred or attempted
to confer with the person or party failing to make disclosure or discovery
in an effort to obtain it without court action.
Fed. R. Civ. P. 37(a).

Plaintiff’s motion to compel does not include a Rule 37

certification that he conferred in good faith with ISC’s counsel to attempt to resolve
the issues raised by his motion without court action.

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The motion also does not

contain a Local Rule 3.01(g) certification stating that Plaintiff conferred with ISC’s
counsel in a good-faith attempt to narrow or resolve the issues raised in his motion.

See M.D. Fla. R. 3.01(g). Local Rule 3.01(g) requires that each motion filed in a civil
case, with certain enumerated exceptions not at issue here, “stat[e] whether counsel
agree on the resolution of the motion,” and further provides that a statement to the
effect that counsel for the moving party attempted to confer with counsel for the
opposing party but counsel was unavailable is “insufficient to satisfy the parties’
obligation to confer.” Id. The rule further states that “[t]he moving party retains
the duty to contact opposing counsel expeditiously after filing and to supplement the
motion promptly with a statement certifying whether or to what extent the parties
have resolved the issue(s) presented in the motion.” Id. Thus, the Court will deny
the motion without prejudice to Plaintiff re-filing the motion in compliance with Rule
37 of the Federal Rules of Civil Procedure and the Middle District of Florida Local
Rules. Plaintiff is directed to meaningfully confer with ISC’s counsel and attempt
to narrow or resolve the issues raised by Plaintiff’s motion prior to re-filing.3
The Court reminds Plaintiff that “the right of self-representation does not
exempt a party from compliance with relevant rules of procedural and substantive
law.” Sanders v. Fluor Daniel, Inc., 151 F.R.D. 138, 139 (M.D. Fla. 1993), aff’d sub

3

Rule 37 also provides that if a motion to compel is denied, the Court “must, after
giving an opportunity to be heard, require the movant, the attorney filing the motion, or both
to pay the party . . . who opposed the motion its reasonable expenses incurred in opposing the
motion, including attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(B). The rule also provides,
however, that “the court must not order this payment if the motion was substantially justified
or other circumstances make an award of expenses unjust.” Id. Here, the Court finds that
the circumstances do not justify awarding ISC reasonable expenses, but Plaintiff is cautioned
that future motions to compel that are denied may result in the award of expenses.

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nom. Sanders v. Fluor Daniels, Inc., 36 F.3d 93 (11th Cir. 1994) (quoting Kersh v.
Derozier, 851 F.2d 1509, 1512 (5th Cir. 1988)). Plaintiff also must comply with the
Middle District of Florida Local Rules. Although Plaintiff is entitled to proceed pro

se, the Court encourages him to retain counsel admitted to practice before this Court
to assist him with litigating this matter. See Montgomery v. Brickell Place Condo.

Ass’n, No. 11-24316-CIV, 2012 WL 1203837, at *3 (S.D. Fla. Apr. 11, 2012)
(encouraging pro se plaintiff to “retain legal counsel and, failing that, to diligently
research how to prosecute” a case in federal court because pro se parties are
responsible for discovery, complying with scheduling orders, and following federal
and local rules). A copy of the Local Rules may be obtained from the Court’s website
at http://www.flmd.uscourts.gov/.

Moreover, the website includes a “Litigants

without Lawyers” page containing tips, frequently asked questions, sample forms and
a “Guide for Proceeding without a Lawyer.”
ACCORDINGLY, it is
ORDERED:
Plaintiff David Hastings’ Letter Motion (Doc. 56) is DENIED.

Plaintiff’s

Motion for Order Compelling Discovery (Doc. 58) is DENIED without prejudice.

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DONE and ORDERED in Fort Myers, Florida on this 31st day of October, 2018.

Copies:
Counsel of record
Pro se parties

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