Diaz-Rios v. Walt Disney Parks and Resorts U.S., Inc.

Filing 26

ORDER granting in part and denying in part 23 Motion to Compel. Plaintiff shall serve discovery responses by November 21, 2023. See order for details. Signed by Magistrate Judge Leslie Hoffman Price on 11/7/2023. (SFC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

VIRGEN DIAZ-RIOS,
Plaintiff,
v.

Case No: 6:22-cv-2211-RBD-LHP

WALT DISNEY PARKS AND
RESORTS U.S., INC.,
Defendant

ORDER
This cause came on for consideration without oral argument on the following
motion filed herein:
MOTION: DEFENDANT’S UNOPPOSED (IN PART) MOTION
TO COMPEL DISCOVERY RESPONSES (Doc. No.
23)
FILED:

October 31, 2023

THEREON it is ORDERED that the motion is GRANTED in part
and DENIED in part.
Defendant moves for an order compelling Plaintiff to answer in full
Defendant’s First Set of Interrogatories and First Requests for Production of
Documents (“RFPs”), and for Plaintiff to provide her Initial Disclosures. Doc. No.

23. Defendant requests these responses within fourteen (14) days of the date any
order issues, and also seeks an award of its fees and costs pursuant to Fed. R. Civ.
P. 37(a)(5) and (d)(3).

According to the motion, Defendant served its

Interrogatories and RFPs on Plaintiff on May 22, 2023, but as of date, Plaintiff has
not responded. Id., at 1–2; see also Doc. No. 23-1. Defendant further represents
that Plaintiff has not provided her Initial Disclosures, which were due on June 23,
Id., at 2.

2023.

Defendant has made multiple attempts to communicate with

Plaintiff’s counsel via email, including granting several extensions of time, all to no
avail. Id., at 1–2; see also Doc. No. 23-2. And on numerous occasions, Plaintiff’s
counsel simply did not respond to Defendant’s counsel’s emails. See Doc. No. 232.

Pursuant to the Local Rule 3.01(g) certification, Plaintiff’s counsel does not

object to the entry of an order compelling discovery but does object to any monetary
sanction. Doc. No. 23, at 3–4.
Plaintiff has filed a response in opposition, in which her counsel candidly
admits that Defendant is owed the outstanding discovery, that Plaintiff’s counsel
“has faced a stark learning curve” in opening his own solo practice, and that counsel
has taken on more of a caseload than he can handle. Doc. No. 25. Plaintiff’s
counsel appears to take full responsibility for the failure to participate in discovery
in this case, apologizes to the Court, and “warrants he is doing his best to not let it
recur.”

Id., at 1–2.

Plaintiff further represents that as of this date, Initial
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Disclosures have now been served, Plaintiff “continues to finalize her discovery
requests,” and that those discovery responses will be produced within the time
requested by Defendant. Id., at 2. Plaintiff further states that she does not oppose
granting Defendant’s motion to compel, but opposes any monetary sanction. Id.
Upon consideration of the motion and response, the Court will grant the
motion has unopposed with respect to ordering Plaintiff to produce all discovery in
full.

See Bercini v. City of Orlando, Case 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). And while the Court is authorized to award fees and costs for a party’s
failure to respond to discovery, see Fed. R. Civ. P. 37(a)(5), (d)(3), the Court finds,
given Plaintiff’s counsel’s candor and assurances that he will litigate this case in a
timely and professional manner going forward, that an award of fees and costs in
this one instance would be unjust. See Fed. R. Civ. P. 37(a)(5)(iii). However, the
Court is greatly troubled by Plaintiff’s counsel’s failure to even respond to email
correspondence, and advises counsel in the strongest terms possible, that such
behavior will not be excused going forward. Plaintiff initiated this litigation, and
Plaintiff is expected to participate and respond to discovery requests and all other
case-related filings in a timely manner, and without any further waste of attorney
and judicial resources.

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Accordingly, Defendant’s motion (Doc. 23) is GRANTED IN PART AND
DENIED IN PART as follows:
1.

On or before November 21, 2023, Plaintiff shall serve on Defendant

complete, sworn answers to Defendant’s First Set of Interrogatories. See Doc. No.
23-1, at 21-51.
2.

On or before November 21, 2023, Plaintiff shall produce all documents

in her current possession, custody, or control responsive to Defendant’s First
Requests for Production. See Doc. No. 23-1, at 1–20.
3.

All objections to the discovery at issue have been waived by the failure

to address same in response to the motion to compel, and by the failure to timely
respond to the discovery. See, e.g., Jackson v. Geometrica, Inc., Case No. 3:04-cv-640J-20HTS, 2006 WL 213860, at *1 (M.D. Fla. Jan. 27, 2006) (objections not addressed
in response to a motion to compel are deemed abandoned); Bercini, 2016 WL
11448993, at *2 (same). See also Foster v. Coca-Cola Co., Case No. 6:14-cv-2102-Orl40TBS, 2015 WL 3486008, at *2 (M.D. Fla. June 2, 2015) (“As a general rule, in the
absence of an extension of time for good cause, the failure of a party to object timely
to interrogatories, production requests, or other discovery efforts constitutes a
waiver of any objections the responding party may have.”).
4.

Defendant’s request for fees and costs is DENIED.

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5.

Given the length of time that this discovery has remained

outstanding, these deadlines will not be extended absent a showing of exigent
circumstances supported by evidence. Plaintiff’s counsel is advised that failure
to comply with this Order may result in sanctions, which may be against Plaintiff,
Plaintiff’s counsel, or both. See Fed. R. Civ. P. 37(b).
DONE and ORDERED in Orlando, Florida on November 7, 2023.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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