Cirrincione v. The Davey Tree Expert Company
Filing
27
ORDER granting 25 Amended Motion to Compel Plaintiff's Discovery Responses and Deposition. Signed by Magistrate Judge Leslie Hoffman Price on 1/19/2023. (MKH)
Case 6:22-cv-01275-PGB-LHP Document 27 Filed 01/19/23 Page 1 of 6 PageID 244
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
VINCENT CIRRINCIONE,
Plaintiff,
v.
Case No: 6:22-cv-1275-PGB-LHP
THE DAVEY TREE EXPERT
COMPANY,
Defendant
ORDER
This cause came on for consideration without oral argument on the following
motion filed herein:
MOTION: AMENDED MOTION TO COMPEL PLAINTIFF’S
DISCOVERY RESPONSES AND DEPOSITION (Doc.
No. 25)
FILED:
December 13, 2022
THEREON it is ORDERED that the motion is GRANTED.
On May 25, 2022, Plaintiff Vincent Cirrincione, who at the time was
represented by counsel, filed a complaint in state court against Defendant The
Davey Tree Expert Company, alleging a single claim of retaliation in violation of
Case 6:22-cv-01275-PGB-LHP Document 27 Filed 01/19/23 Page 2 of 6 PageID 245
Florida’s Whistleblower Act, Fla. Stat. § 448.102(3). (Doc. No. 1-5). Defendant
removed the case to this Court on July 20, 2022, based on diversity jurisdiction.
(Doc. No. 1); see also 28 U.S.C. § 1332(a)(1). Discovery commenced on or about
August 5, 2022, and concludes on September 5, 2023. See Doc. Nos. 11-12; Fed. R.
Civ. P. 26(d)(1).
On November 1, 2022, the Court granted Plaintiff’s counsels’ motions to
withdraw. (Doc. No. 22). Since that time, Plaintiff has been proceeding pro se.
By the present motion, Defendant seeks an order compelling Plaintiff to
respond to its first set of interrogatories and first request for production of
documents. (Doc. No. 25; see also Doc. No. 25-1). Defendant further requests an
order compelling Plaintiff to cooperate in the scheduling of his deposition. (Doc.
No. 25).
According to the motion, Defendant has been attempting to obtain
responses to its written discovery since September 2022, and first requested a date
for Plaintiff’s deposition on August 5, 2022. (Id., at 1). Plaintiff’s prior counsel did
not provide either. (Id.). And following the withdrawal of Plaintiff’s counsel,
Defendant has been attempting to obtain this discovery and deposition date from
Plaintiff directly, via numerous emails and phone calls throughout the month of
November 2022. (Id., at 2). But Plaintiff did not respond. (Id.).
Plaintiff also has not responded to Defendant’s motion to compel, and the
time to do so has long expired. See Doc. No. 14 ¶ 5 (providing that a response in
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opposition to a discovery motion must be filed no later than five (5) days after the
motion is filed). See also Doc. No. 26. Accordingly, the Court deems the motion
to be unopposed. See Doc. No. 14 ¶ 5 (emphasis added) (“[A] failure to file a timely
response will result in the Motion being deemed unopposed.”). See also Westchester
Surplus Lines Ins. Co. v. Paramount Disaster Recovery, LLC, No. 6:18-cv-1738-Orl37DCI, 2019 WL 5294804, at *1 (M.D. Fla. Apr. 19, 2019) (“The Court routinely grants
motions as unopposed where the opposing parties have not filed a response in
opposition to the motion.”); Bercini v. City of Orlando, No. 6:15-cv-1921-Orl-41TBS,
2016 WL 11448993, at *2 (M.D. Fla. Sept. 28, 2016) (granting in full unopposed
motion to compel); Daisy, Inc. v. Pollo Operations, Inc., No. 2:14-cv-564-FtM-38CM,
2015 WL 2342951, at *1 (M.D. Fla. May 14, 2015) (when defendant did not respond
court could consider motion to compel unopposed). Plaintiff’s pro se status does
not absolve him from his duty to litigate his case, to respond to discovery as
appropriate, and to comply with all applicable Court Orders, Local Rules, and
Federal Rules of Civil Procedure. See Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.
1989) (a pro se litigant “is subject to the relevant law and rules of court, including
the Federal Rules of Civil Procedure.”), cert. denied, 493 U.S. 863 (1989).
Upon review of the unopposed motion, and the related discovery attached,
the Court finds Defendant’s motion well taken.
The Court further finds
Defendant’s request for sanctions under Federal Rule of Civil Procedure 37 well
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taken. (Doc. No. 25, at 3). Rule 37 provides that when, as here, a motion to compel
is granted, “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) (emphasis added).
While the rule permits the Court to decline to award sanctions under certain
circumstances, Fed. R. Civ. P. 37(a)(5)(A)(i)–(iii), Plaintiff has not presented any
information or argument suggesting that those circumstances apply here.
Accordingly, Defendant’s motion (Doc. No. 25) is GRANTED, and it is
ORDERED as follows:
1.
On or before February 17, 2023, Plaintiff shall serve on Defendant
complete, sworn answers to Defendant’s first set of interrogatories. See Doc. No.
25-1, at 2–21.
2.
On or before February 17, 2023, Plaintiff shall produce all documents
in his current possession, custody, or control responsive to Defendant’s first
requests for production of documents. See Doc. No. 25-1, at 22-37.
3.
All objections to the discovery at issue, other than attorney-client
privilege, have been waived by the failure to timely respond to the motion to
compel.
See, e.g., Jackson v. Geometrica, Inc., No. 3:04-cv-640-J-20HTS, 2006 WL
-4-
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213860, at *1 (M.D. Fla. Jan. 27, 2006) (objections not addressed in response to a
motion to compel are deemed abandoned).
4.
On or before February 17, 2023, Plaintiff shall provide to Defendant
three (3) dates that he is available for a full-day in-person deposition. If Plaintiff
does not provide these dates by this deadline, Defendant may unilaterally set the
deposition. See Middle District Discovery, § II.A.1. (February 1, 2021).
5.
On or before February 17, 2023, Plaintiff and counsel for Defendant
shall meet and confer in good faith to determine an amount of reasonable fees and
expenses that should be awarded to Defendant for the filing of the present motion.
The parties shall file a joint notice of the amount agreed upon by 5:00 p.m. on
February 21, 2023. If the parties are unable to reach an agreement by that time,
Defendant shall file a motion, supported by appropriate documentation, for
reasonable fees and expenses incurred in filing the present motion. That motion
shall be filed by February 28, 2023.
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6.
Plaintiff is cautioned that failure to comply with this Order may
result in sanctions, including a recommendation that this case be dismissed. See
Fed. R. Civ. P. 37(b).
DONE and ORDERED in Orlando, Florida on January 19, 2023.
Copies furnished to:
Counsel of Record
Unrepresented Parties
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