Maronda Homes, Inc. of Florida v. Progressive Express Insurance Company

Filing 41

ORDER denying 32 Motion to Compel written discovery. Signed by Magistrate Judge Thomas B. Smith on 11/5/2014. (Smith, Thomas)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
MARONDA HOMES, INC., OF FLORIDA,
Plaintiff,
v.

Case No. 6:14-cv-1287-Orl-31TBS

PROGRESSIVE EXPRESS INSURANCE
COMPANY,
Defendant.
_____________________________________/
ORDER
Pending before the Court is Plaintiff’s Second Motion to Compel Discovery with
Respect to Defendant’s Written Discovery Responses. (Doc. 32). For the reasons
that follow the motion is due to be DENIED.
On October 8, 2014, Plaintiff Maronda Homes, Inc., of Florida served
interrogatories, requests for production and requests for admissions on Defendant
Progressive Express Insurance Company. (Id., ¶ 5). Seven days later, Progressive
informed Maronda that it was preparing a motion to delay the time within it would be
required to respond to Maronda’s written discovery. 1 The next day at approximately
4:56 p.m., counsel for Maronda sent an email to Progressive’s attorney. 2 (Doc. 39, ¶
15). Progressive characterizes the email as being nearly identical to an earlier email
which “purported to constitute Plaintiff’s counsel’s good faith attempt to resolve the

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The parties have not provided a copy of Progressive’s email. Maronda alleges that
Progressive said it would request an extension of time (Doc. 32, ¶ 7); Progressive alleges that it told
Maronda it would be asking the Court to suspend discovery until resolution of its pending motion to
dismiss. (Doc. 39, ¶ 14). For purposes of this Order, the distinction does not make a difference.
2

A copy of this email has not been provided to the Court.

issues raised in Plaintiff’s First Motion to Compel ...”. (Id., ¶ 15). Attached to the
email was a copy of Maronda’s second motion to compel discovery. (Id.).
Approximately 44 minutes later, and without having received a response from
Progressive, Maronda’s lawyer filed the second motion to compel. (Id., ¶ 16). The
motion includes the following certificate:
CERTIFICATE OF GOOD FAITH CONFERENCE
Pursuant to Local Rule 3.05(g), Maronda’s counsel contacted
opposing counsel’s office in an effort to discuss the issues raised in
this motion but was unable to reach opposing counsel. Maronda’s
counsel will supplement this motion as soon as possible with a
statement certifying whether and to what extent the parties have
resolved the issues raised in the motion.
(Doc. 32 at 8). Maronda supplemented the motion the following day, stating that it
was authorized to represent to the Court that Progressive does not agree to the relief
sought in the second motion to compel. (Doc. 34). Progressive has filed its response
in opposition to the second motion to compel discovery and this dispute is ripe for
decision. (Doc. 39).
The Federal Rules of Civil Procedure permit party’s to take written discovery
from their opponents by means of interrogatories, requests to produce, and requests
for admissions. F ED. R. CIV. P. 33, 34, 36. The opponent has 30 days after service to
respond to this written discovery. F ED. R. CIV. P. 33(b)(2), 34(b)(2)(A), 36(a)(3).
Maronda filed its second motion to compel eight days after propounding its discovery
requests to Progressive. It explains:
Because Progressive indicated on October 15 (by email) that it
does not intend to respond to Maronda’s written discovery requests
within the time allowed by the Federal Rules of Civil Procedure, and
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because Progressive’s refusal to respond will unnecessarily and
unfairly delay the depositions of Progressive’s corporate
representative and records custodian, and render the agreed-upon
discovery deadlines pointless, Maronda moves to compel Progressive
to provide timely responses to its written discovery requests, for the
following reasons.
(Doc. 32, ¶ 8).
The Court rejects Maronda’s rationale for filing its second motion to compel.
First, Progressive never “indicated” that it did not intend to respond to Maronda’s
written discovery within the time provided by the Rules. What Progressive said was
that it was going to motion the Court for an extension of time or suspension of
discovery. If Maronda had waited for Progressive’s motion to be filed, it would have
had an opportunity to respond, and then the Court would have made a decision.
However the Court ruled, it has no reason to believe Progressive would not have
complied with the Court’s decision and the applicable rules of civil procedure.
In its first breath, Maronda alleges that Progressive “indicated” it would not
comply with the rules of civil procedure. In its next breath, Maronda recasts
Progressive’s communication as an unequivocal “refusal to respond.” Maronda
provides no evidence to support this claim which appears to the Court to be false.
Maronda argues that the immediate filing of its motion to compel was required
or else two depositions would be unnecessarily and unfairly delayed. The depositions
could not have been delayed because they were never set. (Doc. 31). Even if the
depositions had been set, Maronda has not explained why or how it would be unfairly
prejudiced if the Court granted Progressive relief. Maronda’s further argument that if

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the Court granted Progressive’s to-be-filed motion, the discovery deadlines in the
case would be rendered “pointless” does not merit discussion.
Counsel for Maronda did not comply with Local Rule 3.01(g) before filling the
second motion to compel, and any subsequent discussion by counsel came too late to
cure the violation. Local Rule 3.01(g) provides that before filing most motions in a civil
case, the moving party shall confer with the opposing party in a good faith effort to
resolve the issues raised by the motion, and shall file with the motion a statement
certifying that the moving party has conferred with the opposing party, and that the
parties have been unable to agree on the resolution of the motion.
The term “confer” in Rule 3.01(g) requires a substantive conversation in person
or by telephone in a good faith effort to resolve the motion without court action and
does not envision an email, fax or letter. Counsel who merely “attempt” to confer
have not “conferred.” 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. See Local Rule 3.01(g).
Counsel must respond promptly to inquiries and communications from
opposing counsel. Board of Governors of the Florida Bar, Ideals and Goals of
Professionalism, ¶ 6.10 and Creed of Professionalism ¶ 8 (adopted May 16, 1990),
available at www.floridabar.org (Professional Practice - Henry Latimer Center for
Professionalism). A party who, due to time constraints, must file a motion before
complying with Rule 3.01(g), is under a duty to contact opposing counsel
expeditiously after filing the motion and supplement the motion promptly with a

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completed Rule 3.01(g) certificate. There were no time constraints on counsel for
Maronda when he filed the second motion to compel and therefore, no justification for
filing the motion without waiting a reasonable time for a response.
For these reasons, Plaintiff’s Second Motion to Compel Discovery with
Respect to Defendant’s Written Discovery Responses (Doc. 32), is DENIED. When a
motion to compel is denied, the Court:
... must, after giving an opportunity to be heard, require the movant,
the attorney filing the motion, or both to pay the party or deponent
who opposed the motion its reasonable expenses incurred in
opposing the motion, including attorney’s fees. But the court must not
order this payment if the motion was substantially justified or other
circumstances make an award fo expenses unjust.
FED. R. CIV. P. 37(a)(50(B).
No exception applies in this case. Accordingly, Progressive shall recover its
expenses, including reasonable attorneys’ fees, for defending Maronda’s second
motion to compel. The Court will carry the issue of amount until it resolves Plaintiff’s
First Motion to Compel Discovery with Respect to Deposition Dates and Defendant’s
Motion for Protective Order Regarding Plaintiff’s Requests for Deposition Duces
Tecum as to Defendant’s Corporate Representative and Records Custodian. (Docs.
31, 40). Then, the Court will enter a single, net award as to all three motions.
DONE AND ORDERED in Orlando, Florida, on November 3, 2014.

Copies to all Counsel
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