Cake v. Casual Concepts, Inc et al

Filing 21

ORDER granting 20 the defendants' motion to compel and directing the plaintiff, by February 3, 2017, to respond in full and without objection to the defendants' interrogatories and requests for production. The Court directs the plaint iff, by February 3, 2017, to show cause, if any, why the Court should not require her or her counsel to pay the defendants' reasonable expenses incurred in bringing the motion to compel. Signed by Magistrate Judge Patricia D. Barksdale on 1/9/2017. (BGK)

United States District Court
Middle District of Florida
Jacksonville Division
CANDI CAKE,
Plaintiff,
V.

NO. 3:16-CV-102-J-32PDB

CASUAL CONCEPTS, INC.,
RONALD LEGRAND, & JOHN LONG,
Defendants.

Order
In this action under the Fair Labor Standards Act, 29 U.S.C. §§ 201–19, the
plaintiff alleges the defendants failed to pay her wages as required and fired her for
complaining about the failure. Doc. 9. Before the Court is the defendants’ motion to
compel her to respond to interrogatories and requests for production and award
expenses incurred in bringing the motion. Doc. 20. She has not responded to the
motion, and the time for doing so has passed. The discovery deadline is February 15,
2017. Doc. 18.
Federal Rule of Civil Procedure 1 provides that the rules “should be construed,
administered, and employed by the court and the parties to secure the just, speedy,
and inexpensive determination of every action and proceeding.” The addition of “and
the parties” places shared “responsibility to employ the rules in the same way.” Fed.
R. Civ. P. 1, Advisory Comm. Notes (2015 Amend.). “Effective advocacy is consistent
with—and indeed depends upon—cooperative and proportional use of procedure.” Id.
Federal Rule of Civil Procedure 26 provides that a party “may obtain 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.” Fed. R. Civ. P. 26(b)(1).
Under Federal Rule of Civil Procedure 33, “Any ground [for objecting to an
interrogatory] not stated in a timely objection is waived unless the court, for good
cause, excuses the failure.” Fed. R. Civ. P. 33(b)(4). This Court generally applies the
same waiver rule when a party fails to timely object to a request for production. See
Middle District of Florida Discovery Handbook, § III.A.6 (rev’d June 5, 2015).
Federal Rule of Civil Procedure 37 provides that a party “seeking discovery
may move for an order compelling an answer, designation, production, or inspection
… [if] a party fails to answer an interrogatory submitted under Rule 33 … [or] fails
to produce documents … as requested under Rule 34.” Fed. R. Civ. P. 37(a)(3)(B)(iii),
(iv). If a court grants a motion to compel discovery, “the court must, after giving an
opportunity to be heard, require the party … whose conduct necessitated the motion,
the party or attorney advising that conduct, or both to pay the movant’s reasonable
expenses incurred in making the motion, including attorney’s fees.” Fed. R. Civ. P.
37(a)(5)(A). “But the court must not order this 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). Nondisclosure, a response, or an objection is
substantially justified if reasonable people could differ on its appropriateness.
Maddow v. Proctor & Gamble Co., Inc., 107 F.3d 846, 853 (11th Cir. 1997).
The defendants assert that, on August 26, 2016, they served six discovery
requests on the plaintiff: three sets of interrogatories (one from each defendant) and
three requests for production (also one from each defendant), with responses due by
September 29. Doc. 20 at 1–2. On October 18, having received no response, the
defendants’ counsel asked the plaintiff’s counsel about the status of the responses,
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and the plaintiff’s counsel stated they had already been sent but would be resent.
Doc. 20 at 2. On November 17, the defendants’ counsel asked about the status of the
responses, and the plaintiff’s counsel responded he would serve them as soon as
possible. On December 6, the defendants’ counsel “conferred regarding [the
defendants’] intention to file” the motion to compel but received no response. Doc. 20
at 6. The defendants seek responses to the requests and an award of expenses
incurred in bringing the motion. Doc. 20 at 2–5.
Presented with no reason why the requested relief would be unwarranted, the
Court grants the motion to compel, Doc. 20, and directs the plaintiff, by February
3, 2017, to respond in full and without objection to the discovery requests, Doc. 20-1.
If she fails to do so, the defendants may renew their request for dismissal sanctions,
Doc. 20 at 6−7, by filing an appropriate motion and legal memorandum.
Because the Court grants the defendants’ motion to compel, it must, after
giving the plaintiff an opportunity to be heard, require her or her counsel to pay the
“reasonable expenses” incurred in bringing the motion, subject to a few exceptions.
See Fed. R. Civ. P. 37(a)(5)(A). The Court directs the plaintiff, by February 3, 2017,
to show cause, if any, why the Court should not require her or her counsel to pay the
defendants’ reasonable expenses incurred in bringing the motion to compel.
Alternatively, her counsel may confer with opposing counsel to resolve the issue of
expenses and inform the Court by that date whether they have resolved it.
Ordered in Jacksonville, Florida, on January 9, 2017.

c:

Counsel of Record

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