Pietri v. Jdrpunkt, Inc. et al
Filing
34
ORDER granting 32 Motion to Compel responses to interrogatories and requests to produce. Signed by Magistrate Judge Thomas B. Smith on 9/15/2014. (Smith, Thomas)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
ROSA M. PIETRI,
Plaintiff,
v.
Case No. 6:13-cv-1879-Orl-31TBS
JDRPUNKT, INC., d/b/a DR THERAPY
SERVICES, JOSE A. RIVERA, and DALIS
RIVERA,
Defendants.
_____________________________________/
ORDER
This case comes before the Court without oral argument on Plaintiff’s Motion to
Compel Discovery, Motion for Sanctions, Motion to Extend Discovery & Motion for
Attorney’s Fees & Costs. (Doc. 32). The motion is due to be granted in part and
denied in part.
Plaintiff’s amended complaint alleges, inter alia, violations of the Fair Labor
Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq., and the willful filing of
fraudulent information returns in violation of 26 U.S.C. § 7434. (Doc. 27, ¶¶ 44-46,
58-65). Paragraph 9 of the amended complaint alleges “Plaintiff was not Defendants’
independent contractor; Plaintiff was an employee as defined by the FLSA.” (Doc.
27). Defendants denied this averment and affirmatively alleged that Plaintiff was an
independent contractor. (Doc. 29, ¶ 9, pp. 5-7).
On June 16, 2014, Plaintiff served interrogatories and requests for production
on Defendants. (Doc. 32, ¶ 2). Defendants requested, and were granted, additional
time within to answer this discovery. (Id.,¶ 4). When Defendants did provide their
answers, they were incomplete and included some objections. (Id., ¶¶ 5-8). Counsel
conferred and Defendants agreed to supplement their responses to the interrogatories
and requests for production. (Id., ¶¶ 5-8). When the supplemental responses were
not forthcoming, counsel for Plaintiff inquired and was told Defendants would provide
the additional responses by the close of business on August 13, 2014. (Id., ¶¶ 9-10).
Defendants did not supplement their responses and Plaintiff filed the pending motion.
Plaintiffs’ motion seeks to compel responses to three interrogatories and two
requests for production. Interrogatory No. 6 asks whether Defendants are “claiming
that Plaintiff was an independent contractor,” and, if yes, asks Defendants to “state all
the facts supporting Defendants’ claim that Plaintiff was an independent contractor.”
(Doc. 32, p. 3). Defendants response directs Plaintiff to “[s]ee response to
Interrogatory No. 25," which doesn’t exist because Plaintiff served Defendants with
only 16 interrogatories. (Id.). Defendants assert that the reference to Interrogatory
No. 25 was “a typographical error” and that Plaintiff’s counsel was “well aware” that
Defendants meant to refer to the response to Interrogatory No. 4, which states, “As
stated in the response to Interrogatory No. 3, the decision to classify Ms. Pietri as an
Independent Contractor, was her own and in accordance with her specific request.”
(Doc. 33, p. 2). Defendants add—seemingly oblivious to the fact that the discovery
deadline has passed—that “[w]hether Plaintiff was an Independent Contractor will
depend on what the discovery process will reveal.” (Id.) Defendants also argue that
Plaintiff’s questions were answered, to the extent possible, when Defendants were
deposed on August 28, 2014. (Id., p. 3).
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Plaintiff’s Interrogatory No. 16 asks whether Defendants have “obtained any
written or recorded ... documents, statements, reports, affidavits, declarations, and/or
letters relating to” the case. (Doc. 32, p. 5). Defendants response states, in relevant
part, that “[a]ll documents within our custody and control may be deemed responsive
to this request will be made available for inspection in response to request for
production of documents.” (Id.). Plaintiff argues that this answer is “evasive” and
adds that “to date, Plaintiff has not received a reply or a summary of the documents
requested.” (Id.). Defendants argue that DR Therapy has produced all of its
documents to Plaintiff (it abandoned prior objections). (Doc. 33, pp. 1, 4).
Defendants also assert that one of the documents they produced was a statement
signed by Plaintiff that she never worked more than 40 hours per week. (Id., p. 4).
Defendants argue that this statement “alone defeats Plaintiff’s claim,” and that
therefore they “do not need, nor do they possess any other statements relating to the
claim. (Id.).
Plaintiff’s Interrogatory No. 10 asks Defendants to identify their employees “by
name, title, address and telephone numbers.” (Doc. 32, p.4). Plaintiff’s Requests for
Production of Documents Nos. 22 and 23 request Defendants’ UTC-6 records and
941 records for 2013. (Id., pp. 4, 6–7). Defendants objected to these requests on the
grounds that they seek confidential and sensitive information belonging to
Defendants’ employees, who are not parties to the action. (Id.) Plaintiff argues that
this information is not confidential, and that the requests are designed to uncover “‘the
identity and location of persons who know of ... discoverable matter.’” (Id., pp. 4, 6, 7
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(quoting Fed. R. Civ. P. 26(b)(1))). Plaintiff notes that Defendants’ attorney informed
them over the phone on August 7, 2014 that Defendants had no employees. (Id.).
Plaintiff argues that this fact renders Defendants’ response to Interrogatory No. 10
and Document Requests 22 and 23 “either false or evasive because it creates the
false impression that Defendants employ employees.” (Id., p. 4). Defendants state
that, after Defendants provided their original answers, counsel “discovered that [in]
2013, DR Therapy Service, Inc., did not have employees,” and informed Plaintiff’s
counsel of that fact. (Doc. 33, p. 3). Defendants argue that Plaintiff’s request for
UTC-6 and 941 records for the year 2013 should be denied because those records do
not exist. (Id., pp. 4–5). The Court is left to speculate about why counsel only
discovered his clients had no employees after the original responses were served on
Plaintiff.
Under Rule 33(b)(2) of the Federal Rules of Civil Procedure, a party must serve
answers and objections within 30 days of being served with interrogatories. “Each
interrogatory must, to the extent it is not objected to, be answered separately and fully
in writing under oath.” F ED. R. CIV. P. 33(b)(3). Any objections to an interrogatory
must be “stated with specificity.” F ED. R. CIV. P. 33(b)(4). If an answer to an
interrogatory may be ascertained by examining a party’s business records, and if the
burden of ascertaining the answer will be substantially the same for either party, a
responding party may elect to respond by permitting an examination of its business
records. FED. R. CIV. P. 33(d). To do so, the party must “specify[] the records that
must be reviewed, in sufficient detail to enable the interrogating party to locate and
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identify them as readily as the responding party could,” and “giv[e] the interrogating
party a reasonable opportunity to examine and audit the records and to make copies,
compilations, abstracts, or summaries.” Id.
Rule 34 of the Federal Rules of Civil Procedure governs requests for
production of documents. A party who receives a request for production of documents
must, for each item or category of documents requested, “either state that inspection
and related activities will be permitted as requested or state an objection to the
request, including the reasons.” F ED. R. CIV. P. 34(b)(2)(B).
When a party fails to answer an interrogatory, or gives an improper or
incomplete response, or fails to comply with a request to produce, the opponent can
move for an order compelling the discovery. F ED. R. CIV. P. 37(a)(3)(B)(iii), (iv),
(d)(1)(A). If it grants the motion, the Court may direct the party to respond or impose
other sanctions as set forth in Rule 37(b)(2)(A). F ED. R. CIV. P. 37(a)(3)(B)(iii), (iv),
(d)(3).
Defendants’ responses to the interrogatories and requests for production of
documents fall short of what Rules 33 and 34 require. Defendants’ response to
Interrogatory No. 6, which merely incorporates by reference an nonexistent answer to
a nonexistent interrogatory, is no response at all. Likewise, the response to
Interrogatory No. 10 is non-responsive. If Defendants wished to produce business
records in response to this interrogatory, they needed to identify the pertinent records
with greater specificity. See Pulsecard, Inc. v. Discover Card Services, Inc., 168
F.R.D. 295, 305 (D. Kan. 1996) (“Under the guise of Fed.R.Civ.P. 33(d) defendants
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may not simply refer generically to past or future production of documents. They must
identify in their answers to interrogatories specifically which documents contain the
answer.”). Finally, Defendants’ objections to Interrogatory No. 16 and the requests for
production of documents are without merit and Defendants do not argue otherwise.
Defendants argument is, in essence, that even though their responses were
untimely, and not in the form required by Federal Rules of Civil Procedure 33 and 34,
they should be excused because ultimately, Plaintiff got the information she was
seeking. It is far from clear that this is true. Defendants’ response suggests that
discovery may uncover further facts supporting Defendants’ position that Plaintiff was
an independent contractor. (Doc. 33, p. 2). But the response does not suggest what
these facts might be, even though discovery is over. Even if Defendants have
provided Plaintiff with information in discovery sufficient to answer the interrogatories
and fully respond to the requests for production, that does not excuse their failure to
comply with Rules 33 and 34. Therefore, the motion to compel is GRANTED.
Defendants shall answer in full Plaintiff’s interrogatories numbered 6, 10 and 16 and
provide a complete written response to Plaintiff’s requests for production numbered 22
and 23 within 7 days from the rendition of this Order.
The party that prevails on a motion to compel discovery is entitled to recover its
expenses, including reasonable attorney’s fees except when: (1) the motion to compel
was filed before the movant attempted in good faith to get the discovery without court
action; (2) the losing party’s position was substantially justified; or (3) other
circumstances make an award unjust. F ED. R. CIV. P. 37(a)(5)(A). None of the
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exceptions apply. Accordingly, Plaintiff’s motion for sanctions is GRANTED.
Defendants are liable to Plaintiff for her reasonable expenses, including attorney’s
fees, incurred in connection with the motion to compel. Plaintiff has 14 days from the
rendition of this Order within to file her application for expenses and Defendants shall
have 14 days to respond.
Finally, Plaintiff seeks an enlargement of the discovery period so that she can
re-depose Jose Rivera, Dalis Rivera, and Ivette Torres. She is also asking the Court
to order Defendants to pay the costs of the depositions already taken and the costs
necessary to re-depose the witnesses. The motion, which was filed before the
depositions were taken, is DENIED because it is premature.
DONE AND ORDERED in Orlando, Florida, on September 15, 2014.
Copies to all Counsel
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