Henns v. Mony Life Insurance Company of America
Filing
59
ORDER granting in part and denying in part 32 Motion to compel; denying as moot 38 Motion for leave to file; granting 44 Motion to compel. Signed by Magistrate Judge Thomas B. Smith on 10/31/2011. (Smith, Thomas)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
THERESA HENNS,
Plaintiff,
v.
Case No. 5:11-cv-55-Oc-37TBS
MONY LIFE INSURANCE COMPANY OF
AMERICA,
Defendant.
______________________________________
ORDER
Pending before the Court is Plaintiff’s Motion to Compel Discovery (Doc. 32) and
Plaintiff’s Second Motion to Compel (Doc. 44). Defendant filed responses in opposition.
(Docs. 37, 49). Plaintiff filed a notice concerning partial resolution of the first motion to
compel. (Doc. 41). On October 12, 2011, the Court conducted a hearing on both
motions to compel, the transcript of which has been filed. (Doc. 53).1
I.
BACKGROUND
This case involves a dispute over the proceeds of a life insurance policy in the
amount of $650,000 issued by Defendant, MONY Life Insurance Company of America,
on the life of Robert G. Harvey. The policy initially was issued on July 24, 2000.
According to Defendant, the policy lapsed on July 24, 2008 due to non-payment. Mr.
Harvey later submitted a reinstatement application in October 2008 and the policy was
reinstated effective December 1, 2008.
At the time of his death in March 2010, Mr. Harvey’s wife, Theresa Henns, the
Plaintiff in this action, was the beneficiary. Plaintiff subsequently made a request for
1
All citations to the hearing transcript will be “Tr.” followed by the applicable page(s).
payment of the policy proceeds. According to Defendant, Mr. Harvey’s death occurred
during the policy’s contestable period, and during its review, Defendant discovered that
the reinstatement application contained misrepresentations and omissions that were
material to Defendant’s approval of the reinstatement. Defendant asserts that it would
not have reinstated the policy had it known the true answers to the questions and
therefore, Defendant notified Plaintiff that it was rescinding the policy.
This litigation ensued. On January 13, 2011, Plaintiff filed a Complaint against
Defendant in the Circuit Court of the Fifth Judicial Circuit, Lake County, Florida for the
payment of benefits under the policy. Defendant removed the action to this Court and
asserted a counterclaim against Plaintiff for rescission of the policy.
A number of issues have arisen related to Plaintiff’s discovery requests.
This
Order will address Plaintiff’s Motion to Compel Discovery (Doc. 32) and Plaintiff’s
Second Motion to Compel Discovery. (Doc. 44).
II.
PLAINTIFF’S MOTION TO COMPEL DISCOVERY (Doc. 32)
Plaintiff’s first Motion to Compel Discovery focuses on her First Set of
Interrogatories (Doc. 32-1 at 1-12) and First Request for Production of Documents (Doc.
32-1 at 18-23).
Plaintiff’s First Set of Interrogatories
On May 2, 2011, Plaintiff served her First Set of Interrogatories to Defendant.
Pursuant to the Federal Rules of Civil Procedure, a party upon whom interrogatories
have been served has 30 days to respond either by filing answers or objections to the
propounded interrogatories. Fed.R.Civ.P. 33(b)(2). The parties may stipulate to a
shorter or longer time to respond. Id. “The grounds for objecting to an interrogatory
2
must be stated with specificity. Any ground not stated in a timely objection is waived
unless the court, for good cause, excuses the failure.” Fed.R.Civ.P. 33(b)(4).
At the hearing, Plaintiff’s counsel conceded that he agreed to an extension of
Defendant’s deadline to respond to the interrogatories through June 14, 2011. Tr. at 4.
On June 15, 2011, after receiving no discovery responses, Plaintiff’s counsel sent an
email to defense counsel advising of Plaintiff’s willingness to resolve the outstanding
discovery issues without a motion to compel provided Defendant produced the
outstanding discovery by July 5, 2011. Doc. 32-1 at 17. Defendant failed to serve
discovery responses by July 5, 2011 whereupon Plaintiff filed her motion to compel on
July 8, 2011. That same day – and shortly after the motion to compel was filed –
Defendant finally served answers to the interrogatories.
Despite email correspondence confirming the July 5, 2011 deadline, defense
counsel, Eliott Good, now has filed a declaration in which he avers that he understood
the deadline to be the week of July 5, 2011, and that he served the interrogatory
answers on the last day of that week. Doc. 37, Exhibit 1. According to Mr. Good, at Mr.
Bogeajis’s June 9, 2011 deposition, he and Plaintiff’s counsel discussed an extension
of time through the week of July 8, 2011. At the hearing, Plaintiff’s counsel denied
such an agreement and it is not reflected on the record of Mr. Bogeajis’s deposition. Tr.
at 5.
Pursuant to M.D. Fla. Local Rule 4.15:
No stipulation or agreement between any parties or their attorneys, the
existence of which is not conceded, in relation to any aspect of any
pending case, will be considered by the Court unless the same is made
before the Court and noted in the record or is reduced to writing and
subscribed by the party or attorney against whom it is asserted.
3
Here, Plaintiff’s counsel does not concede that he agreed to an extension through July
8, 2011 and the purported agreement was not reduced to writing; thus, the Court will not
consider the alleged agreement and finds the Defendant failed to timely serve
responses to Plaintiff’s First Set of Interrogatories.
Because answers to the interrogatories were not timely served, and Defendant
has not articulated good cause to excuse its failure to timely serve its responses,2
Defendant’s objections are waived. Fed.R.Civ.P. 33(b)(4); Reliance Ins. Co. v. Core
Carriers, Inc., No. 3:06-cv-585-J-20MCR, 2008 WL 2414041, *2 (M.D. Fla. June 11,
2008).3
Now, Plaintiff’s Motion to Compel is GRANTED as to Plaintiff’s First Set of
Interrogatories. Within ten (10) days of this Order, Defendant shall provide Plaintiff with
full and complete answers to the First Set of Interrogatories.
Plaintiff’s First Request for Production of Documents
On May 2, 2011, Plaintiff also served her First Request for Production of
Documents on Defendant. Defendant responded with objections and Plaintiff filed the
instant motion to compel seeking an order compelling Defendant to produce documents
responsive to the following two requests to produce:
Request Number 2
All correspondence between Daniel Bogeajis and Defendant concerning, pertaining
to, or referencing, directly or indirectly, Plaintiff Robert G. Harvey or the Policy or
any of the allegations contained within Plaintiff’s Complaint from January 1, 2000
through the date of this Request for Production.
2
Indeed, Defendant has failed to offer any meaningful explanation as to why it needed more than
sixty (60) days to respond to the interrogatories.
3
Based on this finding, the Court need not address Plaintiff’s various arguments as to why the
objections are inadequate.
4
Request Number 4
All correspondence, written applications for insurance, invoices, documents,
communications, e-mails, contracts, notes or memoranda between Defendant and
Plaintiff from January 1, 2000 through the date of this Request for Production.
Defendant objected to these requests on the grounds that they were overly broad,
unduly burdensome and not relevant.
Plaintiff’s counsel subsequently filed a notice advising the Court that on August
1, 2011, Plaintiff’s counsel received from defense counsel 550 pages of emails from
and to Defendant’s agent dated on or after March 20, 2009. According to Plaintiff:
By producing these emails, the parties have resolved, for the purposes of the
Motion to Compel only, the issue regarding whether the local agent was
Defendant’s agent acting in his capacity as Defendant’s Agent/Financial
Advisor. This agency issue will likely be litigated in the future, but is now
moot as it relates to Plaintiff’s Motion to Compel.
Plaintiff continues to ask the Court to resolve, “[w]hether Defendant should produce the
requested documents existing before March 20, 2009.”
As an initial matter, the Court has no idea why Defendant chose March 20, 2009
as the operative date. At the hearing, counsel for Plaintiff and Defendant were unable
to explain why this date was chosen.
With that said, while the Court agrees that the information sought by these
requests is relevant to issues raised in this action, the requests, as drafted, are overly
broad. Because the inquiry in this action focuses on the reinstatement application in
August 2008, Plaintiff is entitled to the records beginning one year prior to the date of
the reinstatement application.4
4
Even Defendant acknowledged that “the principal issue” in this matter focuses on the
reinstatement of the policy, which occurred in the second half of 2008. Doc. 37 at 4-5.
5
Therefore, Defendant’s objections to the Requests to Produce are overruled and
Plaintiff’s motion to compel is GRANTED. Within ten (10) days of this Order,
Defendant shall produce all documents responsive to Plaintiff’s Requests to Produce
numbered 2 and 4 dating from and after August 1, 2007.
Redacted Documents
Plaintiff also asks the Court to compel Defendant to produce un-redacted copies
of two documents – MONY-100 and MONY-109. In its privilege log, Defendant asserted
that the portions of the documents were redacted because of the attorney-client
privilege and the attorney-work product doctrine.
After the hearing, counsel for Defendant provided copies of these documents for
in camera inspection. The Court has reviewed these documents and finds the
redacted portions report legal advice from MONY’s in-house counsel. Therefore,
Plaintiff’s motion to compel is DENIED as to these redacted documents. Defendant is
not required to produce un-redacted copies of MONY-100 and MONY-109.
Attorneys’ Fees and Costs
The Court finds that an award of fees and expenses in bringing the motion to
compel is mandated by Rule 37(a)(4)(A).5 Where, as here, the motion to compel is
granted and was caused by the failure of a party to provide responsive answers to
discovery requests, the Court is required to award the fees and expenses incurred in
filing the motion. Only if the Court determines that the motion was filed without the
moving party having made a good faith effort to obtain the discovery without court
5
See Fed. R. Civ. P. 37(a)(5)(A)(“if [a motion to compel discovery] is granted – or if the disclosure
or requested discovery is provided after the motion was filed – the court must . .. require the party . . .
whose conduct necessitated the motion . . . to pay the movant’s reasonable expenses incurred in making
the motion, including attorney’s fees . ..”(emphasis added).
6
action or the Court determines that the response of the non-moving party was
substantially justified or if other circumstances make an award of expenses unjust, is
the Court authorized to deny the request for sanctions. None of these exceptions are
presented here. Indeed, before filing this motion counsel for Plaintiff corresponded with
Defendant’s counsel several times in efforts to obtain the discovery from Defendant and
granted Defendant several extensions of time. For these reasons, Plaintiff is entitled to
reimbursement of the fees and expenses she incurred in preparing and filing the instant
motion. Now, Defendant is ordered to pay to Plaintiff the reasonable expenses and
attorney’s fees incurred by Plaintiff in preparing and filing the instant motion.
At the hearing, Plaintiff’s counsel, Derek Schroth stated that he seeks a blended
hourly rate of $275 for himself and his associate, Vanessa Grant for 32 hours for a total
of $8,800. Plaintiff has not submitted any evidence to support this claim. Defense
counsel did not raise any specific objections to the requested hourly rate or the number
of hours spent and stated that he was “in no position really to rebut it.” Transcript at 98.
Where as here, the motion to compel is granted in part and denied in part, the Court
“may, after giving an opportunity to be heard, apportion the reasonable expenses for
the motion.” Fed.R.Civ.P. 37(a)(5)(C). Under these circumstances, and on this limited
record, the Court is not comfortable awarding Plaintiff the $8,800 without giving the
Defendant an additional opportunity to respond.
Within ten (10) days of the date of this Order, the Defendant should file its
opposition, if any to the reasonable expenses and attorneys’ fees sought by Plaintiff in
connection with this motion to compel. If the Defendant does not file anything within the
ten days then the Court will award Plaintiff the $8,800. If the Defendant does object
7
then it should tell the Court what it believes a reasonable amount is and then the Court
will make its determination or, if necessary, set the matter for an evidentiary hearing.
III. PLAINTIFF’S SECOND MOTION TO COMPEL DISCOVERY (Doc. 44)
In her Second Motion to Compel Discovery, Plaintiff asks the Court to compel
Defendant to (1) produce documents pursuant to Plaintiff’s Second Request for
Production of Documents (Doc. 44-1 at 1-5); and (2) answer Plaintiff’s Amended
Second Request for Admissions (Doc. 44-1 at 27-28).
Plaintiff’s Second Request for Production of Documents
In requests numbered 1 and 2, Plaintiff seeks any and all life insurance
applications which MONY approved and disapproved from October 1, 2008 through
December 1, 2008. Defendant has objected stating that the requests seek irrelevant
information and that they are “overbroad, unduly burdensome, harassing and vague.”
Objections which simply state that a discovery request is “vague, overly broad, or
unduly burdensome”, are, by themselves, meaningless. A party properly objecting on
these grounds “must explain the specific and particular ways in which a request is
vague, overly broad, or unduly burdensome.” Milinazzo v. State Farm Ins. Co., 247
F.R.D. 691, 695 (S.D. Fla. 2007). Here, Defendant has failed to offer any meaningful
explanation as to how these requests are vague, overly broad or unduly burdensome.
As such, these unsupported and general objections are overruled.
As to relevance, Plaintiff claims that these documents are relevant to
Defendant’s claim that it would not have issued the policy if Mr. Harvey had fully and
truthfully answered the questions on the reinstatement application. Plaintiff wants to
8
review the requested applications to determine if Defendant approved or denied policy
applications under similar circumstances to those in this case.
Courts interpret relevancy “broadly to encompass any matter that bears on, or
that reasonably could lead to other matter[s] that could bear on, any issue that is or may
be in the case.” Pepperwood of Naples Condo Ass’n, Inc. v. Nationwide Mut. Fire Insur.
Co., No. 2:10-cv-753-FtM-36SPC, 2011 WL 4596060, * 1 (M.D. Fla. Oct. 3,
2011)(quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380,
57 L.Ed.2d 253 (1978)).. The Eleventh Circuit has recognized that approved and
disapproved insurance applications can be relevant because “they might [show] that
[the insurer] had issued policies and honored claims under similar circumstances.”
Fernandez v. Bankers National Life Insur. Co., 906 F.2d 559 (11th Cir. 1990). While the
applicability of the Fernandez case may be diminished by the number of alleged
inaccuracies in the reinstatement application, the Court, nonetheless finds that the
insurance applications requested for the three-month period are both relevant and
discoverable.
In requests numbered 3 and 4, Plaintiff seeks “any and all Notices from AXA” to
Ms. Henns or Mr. Harvey, “in 2006, 2007, and 2008, informing [her or him] that the
premium payments were due on the Policy.” Defendant objects claiming that the
requests are vague in that the terms “Notice” and “AXA” are not defined.
With respect to “Notice”, Defendant argues that the term is capitalized, thus
suggesting that it is a defined term; however, it was not defined in the definitions section
of the interrogatories. This argument is without merit. Regardless of whether “Notice”
is capitalized or not, Plaintiff clearly is requesting copies of all notices informing her or
9
Mr. Harvey that the premium payments were due on the policy. Indeed, as defense
counsel concedes, Defendant was able to respond to other requests to produce, which
included the term “Notice” capitalized.
Likewise, Defendant’s contention that “AXA” is too vague is without merit. In her
Second Request for Production of Documents, Plaintiff stated “AXA as set forth in
Defendant’s 26(a)(1) A Initial Disclosure to the Court.” Doc. 44-1 at 3. Counsel for
Defendant concedes, the term “AXA” only appears in one place in the Rule 26
disclosures – “AXA Advisors, LLC” is included in the address for Mr. Bogeajis. At the
hearing, counsel for Plaintiff confirmed that he was referring to “AXA Advisors, LLC.”
Tr. at 54.
Accordingly, Defendant’s objections are overruled and Plaintiff’s motion to
compel is GRANTED as to Plaintiff’s Second Request for Production of Documents.
Defendant shall produce documents responsive to requests numbered 1, 2, 3 and 4
within ten (10) days of this Order.
Plaintiff’s Amended Second Request for Admissions
On August 11, 2011, Plaintiff served on Defendant her Second Amended
Request for Admissions. Defendant objected to requests numbered 1-6 and 8-10
primarily on the grounds that they were vague, and in some instances irrelevant. As
discussed below, Defendant’s objections are overruled in their entirety and Defendant is
required to either admit or deny these requests for admissions.
In request number 1, Plaintiff asks Defendant to:
1. Admit the specimen copy of the Policy you provided to Plaintiff contains terms
approved by the State of Illinois.
10
Defendant objected claiming that the terms “you” and “contains terms approved
by the State of Illinois” are not defined and their meaning is unclear. The Court,
however, has no idea how the term “you” can be vague where the request for admission
is directed to the only defendant in the action. Likewise, it is unclear how Plaintiff could
have further defined “contains terms approved by the State of Illinois.”
In request number 2, Plaintiff asks Defendant to:
2. Admit you did not modify the form provisions approved by the State of Illinois
when issuing the Policy at issue in this case.
Once again, Defendant objected claiming that it could not answer because the
terms “form”, “provision,” “approved” and “State of Illinois” are vague. The Court,
however, has little difficulty concluding that these terms are not vague. Indeed, it is
difficult to comprehend how Defendant can take the position that these terms are
unclear.
Next, Plaintiff’s requests for admissions numbered 3, 4 and 5 seek information
regarding AXA and the relationship between AXA and Mr. Bogeajis:
3.
Admit Defendant is an AXA Financial Company.
4.
Admit Dan Bogeajis is an AXA agent.
5.
Admit Dan Bogeajis was AXA’s agent from January 1, 2008 through
August 11, 2011.
Defendant objects to these requests claiming that they are vague as the terms
“AXA Financial Company”, “AXA” and “agent” are not defined and they seek information
that is neither relevant nor reasonably calculated to lead to the discovery of admissible
evidence as “AXA Financial Company” and “AXA” are not parties to this action. As
discussed above, Plaintiff’s counsel confirmed at the hearing that he was using the term
11
“AXA” as Defendant used it in its Rule 26 disclosures – “AXA Advisors, LLC.”
Accordingly, these terms are not too vague. Moreover, these requests for admissions
are relevant. While “AXA” is not a party to this action, “AXA Advisors, LLC” was
included in the address for Mr. Bogeajis and Plaintiff has submitted a number of papers
showing that Defendant is referred to as “An AXA Financial Company.” Doc. 44-1 at
11-21. Plaintiff is entitled to investigate the relationship between AXA, Defendant, and
Mr. Bogeajis.
Next, in request number 6, Plaintiff asks Defendant to:
6. Admit AXA’s agent, Dan Bogeajis, participated in five divorce mediations
between the Plaintiff and decedent insured, Robert Harvey.
Defendant once again objected claiming that the request is vague as “AXA”,
“agent”, “participated”, “divorce mediation” are not defined, and the scope and extent of
agency requested to be admitted is not defined. Defendant also objected on relevance
grounds because “AXA” is not a party to this action. None of these terms are vague.
Moreover, as discussed above, although “AXA” is not a party to this action, information
relating to the relationship between AXA and Mr. Bogeajis is relevant to this action.
In request number 8, Plaintiff asks Defendant to:
8. Admit Dan Bogeajis attached to his e-mail (included in Exhibit “A”) the
timeline attached hereto as Exhibit “B.”
Defendant objected stating that “MONY is without the ability to determine
whether Exhibit “B” was attached to Exhibit “A.” Pursuant to Fed.R.Civ.P. 36(4),
Defendant would be entitled to assert lack of knowledge or information, only if it stated
that it had made reasonable inquiry and the information it knows or which can be readily
12
obtained is insufficient to enable it to admit or deny. Defendant has not complied with
this rule and thus, its objection is insufficient.
In request number 9, Plaintiff asks Defendant to:
9. Admit AXA through its Financial Company, MONY, accepted premiums for
the Policy at issue in this case after April, 2009.
Defendant objected claiming that the request is vague as the terms “AXA” and
“its Financial Company” are not defined. Once again, these terms are not vague, and
thus, Defendant’s objections are overruled.
Lastly, in request number 10, Plaintiff asks Defendant to:
10.
Admit that agent Dan Bogeajis testified that he attended at least one of
Plaintiff’s divorce mediations as an AXA Financial Advisor.
Defendant objected on the grounds that “agent”, “AXA Financial Advisor”, and
“testified” are vague; the request is not relevant; and the official transcript of the
testimony would be the best evidence. These terms are not vague. It was clear at the
hearing that Plaintiff is referring to Mr. Bogeajis’s deposition testimony taken in this
case. Moreover, as discussed above, the relationship between Mr. Bogeajis and AXA
is relevant to this action.
Accordingly, Defendant’s objections to Plaintiff’s Requests for Admissions are
overruled and Plaintiff’s Second Motion to Compel Discovery is GRANTED. Within ten
(10) days of this Order, Defendant shall admit or deny Plaintiff’s Requests for
Admissions consistent with the requirements of Fed.R.Civ.P. 36.
Attorneys’ Fees and Costs
Although the Court is granting Plaintiff’s Second Motion to Compel, the Court
finds that an award of fees and expenses is not justified because Plaintiff’s counsel
13
failed to make a good faith effort to obtain the discovery prior to filing the motion. Rule
37(a)(4)(A).6
On September 2, 2011, Mr. Schroth sent an email to Mr. Good in which he
stated, “Your client’s objections have no merit. Please allow this email to serve as my
client’s good faith effort to resolve this discovery dispute. Should you not withdraw your
objections by September 12, 2011, I will be filing a Motion to Compel.” Doc. 49-1 at 3.
While counsel agree that there was some additional email correspondence and
Plaintiff’s counsel left a voicemail message asking Defendant again to withdraw its
objections, there is no suggestion that counsel had any substantive discussion
regarding this discovery dispute. Mr. Schroth’s demand that Plaintiff withdraw its
objections falls short of a good faith effort to obtain the discovery without court
intervention. Accordingly, the Court declines to award fees and expenses.
IV.
CONCLUSION
Accordingly, for the reasons discussed above, it is ORDERED:
1.
Plaintiff’s Motion to Compel Discovery (Doc. 32) is GRANTED in part and
DENIED in part as stated in the body of this Order.
2.
Plaintiff’s Motion for Leave to File A Reply To Defendant’s Memorandum
in Opposition to Plaintiff’s Motion to Compel Discovery (Doc. 38) is DENIED as MOOT.
3.
Plaintiff’s Second Motion to Compel Discovery (Doc. 44) is GRANTED.
6
See Fed. R. Civ. P. 37(a)(5)(A)(“if [a motion to compel discovery] is granted – or if the disclosure
or requested discovery is provided after the motion was filed – the court must . .. require the party . . .
whose conduct necessitated the motion . . . to pay the movant’s reasonable expenses incurred in making
the motion, including attorney’s fees . ..” However, “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.”
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IT IS SO ORDERED.
DONE AND ORDERED in Ocala, Florida, on October 31, 2011.
Copies to:
All Counsel
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