Carvalho v. Jassas Capital, LLC

Filing 50

ORDER granting 49 Defendant's Motion to Compel Discovery. Defendant's Request for Attorney's Fees and Costs is DENIED without prejudice. The parties shall have up to and including February 21, 2018 to file a mediation report. Signed by Magistrate Judge Carol Mirando on 2/15/2018. (HJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BRITTANY CARVALHO,
Plaintiff,
v.

Case No: 2:17-cv-362-FtM-99CM

HOSPMAN, LLC,
Defendant.
ORDER
This matter comes before the Court upon review of Defendant’s Motion to
Compel Discovery (Doc. 49) filed on January 16, 2018.

Defendant alleges that on

October 19, 2017, Defendant requested Plaintiff to produce the documents identified
in her Rule 26 disclosures, but she did not respond to the request.

Doc. 49 at 2. On

November 28, 2017, Defendant served its first request for production of documents
on Plaintiff.
3.

Id. Defendant alleges Plaintiff did not respond to the request. Id. at

Although Defendant’s counsel attempted to resolve the issues by conferring with

Plaintiff’s counsel, Plaintiff has not filed a response to Defendant’s discovery request.

Id. at 3-4. Accordingly, Defendant filed the present motion, seeking the Court to
compel Plaintiff to respond to its first request for production of documents, sanction
Plaintiff and award reasonable attorney’s fees associated with this motion.
Plaintiff has not responded to the present motion.

Id. at 4.

See generally docket.

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.

When a party fails to produce documents as requested under Rule 34, the

party seeking the discovery may move to compel the discovery.
37(a)(3)(B)(iv).

Fed. R. Civ. P.

Furthermore, if a party fails to respond in writing within the time

permitted, “it is appropriate for the court to find that the party’s objections are
waived, unless the court finds good cause and excuses that failure.”

Bailey v. City

of Daytona Beach Shores, 286 F.R.D. 625, 627 (M.D. Fla. 2012).
Upon a review of the request for production of documents, the Court finds the
requested documents are relevant to this proceeding.

Doc. 49-3.

To the extent

Plaintiff believes the request is objectionable, she waived her objections by not timely
responding to Defendant’s discovery request.

Bailey, 286 F.R.D. at 627. Plaintiff

further chose not to respond to the present motion, creating a presumption that the

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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, the Court will

grant Defendant’s motion to compel and compel Plaintiff to produce any and all
documents within her possession, custody or control in response to Defendant’s First
Request for Production of Documents and Electronically Stored Information to
Plaintiff (Doc. 49-3).
Defendant also seeks attorney’s fees and costs associated with bringing this
motion.

Doc. 49 at 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, 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)).

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).

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Here, counsel for Defendant alleges that although he attempted in good faith
to resolve the disputes without the Court’s intervention, Plaintiff has not responded
to Defendant’s discovery request, necessitating filing of the present motion.
at 1-4.

Doc. 49

Plaintiff also has not objected to Defendant’s request for attorney’s fees and

costs, creating a presumption that the request is unopposed.
WL 195526, at *3.

Great Am. Assur., 2012

Nonetheless, Defendant has not provided any documentation as

to the amount of time expended on bringing the present motion or the hourly rate.
Accordingly, Defendant’s request for attorney’s fees and costs is denied without
prejudice.

Defendant may file a renewed motion for attorney’s fees and costs

consistent with the directives in this Order, if it chooses to do so.
Lastly, the parties’ mediation deadline was February 7, 2018. Doc. 42 at 1.
The Court will direct the parties to file a mediation report concerning the outcome of
the parties’ mediation.
ACCORDINGLY, it is hereby
ORDERED:
1.

Defendant’s Motion to Compel Discovery (Doc. 49) is GRANTED.

2.

On or before March 1, 2018, Plaintiff shall produce to produce any and all

documents within her possession, custody or control in response to Defendant’s First
Request for Production of Documents and Electronically Stored Information to
Plaintiff (Doc. 49-3).

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3.

If Plaintiff is unable to produce documents responsive to the request for

production of documents (Doc. 49-3), she must explain to the Court why she is unable
to provide them. Failure to comply may result in sanctions.
5.

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

prejudice.
6.

The parties shall have up to and including February 21, 2018 to file a

mediation report.
DONE and ORDERED in Fort Myers, Florida on this 15th day of February,
2018.

Copies:
Counsel of record

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