Novero v. Duke Energy et al

Filing 50

ORDER denying without prejudice 40 Motion to Compel ; finding as moot 49 Motion to Seal. See Order for details. Signed by Magistrate Judge Philip R. Lammens on 7/31/2017. (JWM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
PRIMO C NOVERO,
Plaintiff,
v.

Case No: 5:16-cv-571-Oc-39PRL

DUKE ENERGY, URS ENERGY AND
CONSTRUCTION INC. and CDI
CORPORATION
Defendants.

ORDER
This matter is before the Court on Plaintiff’s motion to compel responses by Defendants to
discovery that he promulgated. (Doc. 40).
As Defendants’ point out, Plaintiff’s motion is due to be denied on procedural grounds
because it fails to comply with the requirements of the Local Rules for the Middle District of
Florida. (Doc. 47). Specifically, Plaintiff failed to confer with opposing counsel prior to filing the

instant motion as required by Local Rule 3.01(g), 1 and the motion fails to comply with the
substantive requirements of Local Rule 3.04(a).2
Moreover, based on the current posture of the case (i.e., the pending report recommending
that Plaintiff’s complaint be dismissed in its entirety with leave to amend), it is unknown whether
Plaintiff’s claims will continue on the existing Complaint or whether he will be required to file an
amended complaint. This is significant because in resolving discovery disputes, relevancy and
proportionality are the guiding principles: “Parties 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.” Fed. R. Civ. P. 26(b). In order to determine the scope of discovery the Courts and the
parties must consider and evaluate “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.” Id. (“The parties and the court have a collective

1

Rule 3.01(g) states, “[b]efore filing any motion in a civil case, except a motion for injunctive
relief, for judgment on the pleadings, for summary judgment, to dismiss or to permit maintenance of a class
action, to dismiss for failure to state a claim upon which relief can be granted, or to involuntarily dismiss
an action, the moving party shall confer with counsel for the opposing party in a good faith effort to resolve
the issues raised by the motion, and shall file with the motion a statement (1) certifying that the moving
counsel has conferred with opposing counsel and (2) stating whether counsel agree on the resolution of the
motion. A certification to the effect that opposing counsel was unavailable for a conference before filing a
motion is insufficient to satisfy the parties’ obligation to confer. The 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. If the
interested parties agree to all or part of the relief sought in any motion, the caption of the motion shall
include the word “unopposed,” “agreed,” or “stipulated” or otherwise succinctly inform the reader that, as
to all or part of the requested relief, no opposition exists.”
2
Rule 3.04(a) states, “[a] motion to compel discovery pursuant to Rule 36 or 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. The opposing party shall then respond as required by Rule 3.01(b) of these rules.”
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responsibility to consider the proportionality of all discovery and consider it in resolving discovery
disputes.” Comment, 2015 Amendment). Here, without knowing what claims are being asserted,
the Court cannot conduct the necessary analysis.
Accordingly, it is ORDERED:
1. Plaintiff’s motion to compel is DENIED without prejudice.
2. Plaintiff is reminded again that despite proceeding pro se, he is required to comply with
this Court’s Local Rules, the Federal Rules of Civil Procedure, and the Federal Rules
of Evidence.3
3. Defendants’ motion to file under seal (Doc. 49) is terminated as moot.
DONE and ORDERED in Ocala, Florida on July 31, 2017.

Copies furnished to:
Counsel of Record
Unrepresented Parties

3

Plaintiff may obtain a copy of the Local Rules from the Court’s website
(http://www.flmd.uscourts.gov) or by visiting the Office of the Clerk of Court. Also, resources and
information related to proceeding in court without a lawyer, including a handbook entitled Guide for
Proceeding
Without
a
Lawyer,
can
be
located
on
the
Court’s
website
(http://www.flmd.uscourts.gov/pro_se/default.htm).
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