Fox et al v. Safeco Insurance Company of Illinois

Filing 108

ORDER denying 74 Defendant's Motion for Leave to Supplement and Correct Its Discovery Responses; granting 75 Plaintiffs' Motion to Strike Defendant's Exhibits 72-3 and 72-3 for Failure to Comply with Court Order and Fed. R. Civ. P. 36(b). Signed by Magistrate Judge Julie S. Sneed on 9/15/2017. (SMC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JASON FOX and CHRISTINA FOX,
Plaintiffs,
v.

Case No: 8:16-cv-2665-T-23JSS

SAFECO INSURANCE COMPANY OF
ILLINOIS,
Defendant.
___________________________________/
ORDER
THIS MATTER is before the Court on Defendant’s Motion for Leave to Supplement and
Correct Its Discovery Responses (“Motion to Supplement”) (Dkt. 74) and Plaintiffs’ Motion to
Strike Defendant’s Exhibits 72-3 and 72-3 for Failure to Comply with Court Order and Fed. R.
Civ. P. 36(b) (“Motion to Strike”) (Dkt. 75). A hearing was held on the Motion to Strike on
September 14, 2017. For the following reasons, Defendant’s Motion to Supplement is denied and
Plaintiffs’ Motion to Strike is granted.
BACKGROUND
Plaintiffs sued Defendant asserting underinsured motorist and consortium claims arising
out of a June 9, 2015, automobile accident involving Plaintiff Jason Fox. (Dkt. 2.) Pre-suit,
Defendant provided insurance policy information and disclosures pursuant to Section 627.4137,
Florida Statutes. (Dkts. 70-2, 70-3.) Within its sworn disclosure statement, Defendant stated that
it was unaware of any policy or coverage defense, but Defendant agreed to supplement the
disclosures should new information regarding coverage arise. (Dkt. 70-2 at 3.)
On November 9, 2016, the Court entered the Case Management and Scheduling Order
(“Scheduling Order”) and scheduled the case for the October 2017 trial term. (Dkts. 14, 15.)

Pursuant to the Scheduling Order, the discovery deadline was May 19, 2017. (Dkt. 14, 15.) The
parties later filed a Joint Motion to Extend Deadlines, which the Court granted, extending the
discovery period through June 19, 2017. (Dkts. 20, 21.) On April 19, 2017, Plaintiffs served
Defendant with a Request for Admissions. (Dkt. 70-6.) In its Response to Request for Admissions,
Defendant admitted the following:
2.

Plaintiff, Jason Fox, was covered by an auto insurance policy #UF2399480
by Safeco Insurance Company of Illinois on June 9, 2015, which provided
umbrella uninsured/underinsured motorist insurance for Mr. Fox at the
policy Limits of $1,000,000.

4.

As of June 9, 2015, all premiums due had been paid for Policy #UF2399480,
issued by Safeco Insurance Company of Illinois, and policy #UF2399480
was in full force and effect.

11.

Defendant, Safeco Insurance Company of Illinois, admits that no policy
defenses exist pursuant to the policy #F2894187 held by Mr. Fox.

12.

Defendant, Safeco Insurance Company of Illinois, admits that no policy
defenses exist pursuant to the policy #UF2399480 held by Mr. Fox.

13.

Defendant, Safeco Insurance Company of Illinois, admits that no coverage
defenses exist pursuant to the policy #F2894187 held by Mr. Fox.

14.

Defendant, Safeco Insurance Company of Illinois, admits that no coverage
defenses exist pursuant to the policy #UF2399480 held by Mr. Fox.

(Dkt. 70-8.) On April 28, 2017, Plaintiffs served their Second Request for Admissions, asking
Defendant to admit or deny that “Plaintiffs have complied with all conditions precedent to bringing
this action against Safeco.” (Dkt. 70-7.) Defendant denied the request with no further explanation.
(Dkt. 70-9.)
On July 17, 2017, Plaintiffs filed their Motion for Summary Judgment on Defendant’s
Fourth and Seventh Affirmative Defenses (“Plaintiffs’ Motion for Summary Judgment”). (Dkt.
58.) Defendant’s fourth affirmative defense asserted that Plaintiffs failed to perform or allege all
conditions precedent to the filing of this matter, and Defendant’s seventh affirmative defense
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asserted that Plaintiffs failed to state a claim upon which relief can be granted. (Dkt. 46 at 9.) In
its argument for summary judgment, Plaintiffs relied, in part, on Defendant’s responses to
Plaintiffs’ requests for admissions. (Dkt. 58.)
On August 1, 2017, in its Response in Opposition to Plaintiffs’ Motion for Summary
Judgment, Defendant filed amended responses to Plaintiffs’ requests for admissions as exhibits.
(Dkts. 72-2, 72-3.) In Defendant’s amended responses, Defendant denied the above listed
requests, stating that at the time of the subject accident, Plaintiff Jason Fox had a personal umbrella
policy with Safeco Insurance Company of America (not Safeco Insurance Company of Illinois)
that included excess underinsured motorist coverage with policy number UF2399480, with limits
of $1,000,000. (Dkt. 72-2.) Defendant’s amended responses further assert that Plaintiffs failed to
meet the conditions precedent required by the subject insurance policies and by Section
627.727(6)(a), Florida Statutes. (Dkts. 72-2, 72-3.) Defendant also filed an amended response to
Plaintiffs’ Request for Production Number 6. (Dkt. 72-1.) Plaintiffs’ Request for Production
Number 6 requests a complete copy of the subject insurance policy. (Dkt. 72-1.) Defendant’s
initial response stated that a copy of the policy was attached to the response. (Dkt. 72-1.) In its
amended response, Defendant states that Plaintiff Jason Fox’s personal umbrella policy was with
Safeco Insurance Company of America. (Dkt. 72-1.)
In short, Defendant amended its discovery responses for the first time in exhibits to its
Response in Opposition to Plaintiffs’ Motion for Summary Judgment, past the discovery deadline,
past the dispositive motion deadline, more than a year after the case was filed, and without seeking
leave from the Court. After filing the exhibits, Defendant filed its Motion to Supplement. (Dkt.
74.) Defendant seeks to amend its Response to Request for Admission, Response to Second
Request for Admissions, Answer to Interrogatory Number 11, and Request for Production Number

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11. (Dkt. 74.) In response, Plaintiffs filed their Motion to Strike, seeking to strike Defendant’s
Supplemental and Corrected Responses to Request for Admissions and Supplemental and
Corrected Response to Second Request for Admissions. (Dkt. 75.)
APPLICABLE STANDARDS
Pursuant to Federal Rule of Civil Procedure 16(b)(3)(A), a case management and
scheduling order must limit the time to complete discovery. Fed. R. Civ. P. 16(b)(3)(A). This
deadline “may be modified only for good cause and with the judge’s consent.” Id. at 16(b)(4).
“To establish good cause, the party seeking the extension must establish that the schedule could
not be met despite the party’s diligence.” Ashmore v. Sec’y, Dep’t of Transp., 503 Fed. App’x
683, 685 (11th Cir. 2013); M.D. Fla. Local R. 3.09(b) (“Failure to complete discovery procedures
within the time established . . . shall not constitute cause for continuance unless such failure or
inability is brought to the attention of the Court at least sixty (60) days in advance of any scheduled
trial date and is not the result of lack of diligence in pursuing such discovery.”).
With regard to requests for admissions, parties seeking to amend their responses must
comply with Federal Rule of Civil Procedure 36. Pursuant to Rule 36, a matter admitted in
response to a request for admission “is conclusively established unless the court, on motion,
permits the admission to be withdrawn or amended.” Fed. R. Civ. P. 36(b). Further, “the court
may permit withdrawal or amendment if it would promote the presentation of the merits of the
action and if the court is not persuaded that it would prejudice the requesting party in maintaining
or defending the action on the merits.” Fed. R. Civ. P. 36(b).
ANALYSIS
A.

Motion to Supplement
1.

Rule 16(b)

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In its Motion to Supplement, Defendant does not address Rule 16(b) or whether there is
good cause to allow its proposed amendments past this Court’s deadline. Rather, Defendant relies
on the requirement to supplement under Rule 26(e)(1) to amend its discovery responses. (Dkt. 74
at 1–2.) A party must supplement or correct discovery responses “in a timely manner if the party
learns that in some material respect the disclosure or response is incomplete or incorrect, and if
the additional or corrective information has not otherwise been made known to the other parties
during the discovery process or in writing.” Fed. R. Civ. P. 26(e)(1)(A). However, Defendant’s
duty to supplement discovery does not allow Defendant to ignore the scheduled deadlines set by
the Court. See Cook v. Royal Caribbean Cruises, Ltd., 11-20723-CIV, 2012 WL 2319089, at *1
(S.D. Fla. June 15, 2012) (“The mere fact that Plaintiff believes she is or was under
a duty to supplement her discovery disclosures does not mean that complying with the duty
trumps deadlines in the case and permits trial use of post-deadline disclosures, prejudicial
consequences notwithstanding.”).
Defendant states that discovery in this matter was responded to prior to the filing of
Plaintiffs’ Amended Complaint on June 6, 2017. (Dkt. 74 at 2.) Defendant claims that when
Plaintiffs filed their Amended Complaint, “documents were attached that were not attached
previously.” (Dkt. 74 at 2.) Defendant asserts that “[i]t is not prejudicial to allow Defendant to
properly supplement and correct its discovery responses in light of the Amended Complaint.”
(Dkt. 74 at 2.) During the hearing on Plaintiffs’ Motion to Strike, Defendant indicated that the
Amended Complaint prompted its supplemental responses because Plaintiffs attached the policy
declaration for the umbrella policy. (See Dkt. 44.) However, the policy declaration for the
umbrella policy was filed at the beginning of this litigation on September 16, 2016, as an exhibit
to Plaintiffs’ Notice of Removal and was referenced as an exhibit to Plaintiffs’ initial Complaint.

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(Dkt. 1-3 at 2–3; Dkt. 2 ¶ 21.) Thus, it is unclear why the Amended Complaint required Defendant
to amend its discovery responses two months after the Amended Complaint was filed. (See Dkt.
44.) Defendant further asserts that allowing the amendments is not prejudicial because “the
corrective information” has been in Plaintiffs’ possession. (Dkt. 74 at 2.) Defendant does not
explain what the “corrective information” is or how it came to be in Plaintiffs’ possession. Last,
without elaboration, Defendant makes the conclusory argument that the amendments to its
discovery responses will not cause delay. (Dkt. 74 at 3.)
In response, Plaintiffs contend that Defendant has not shown good cause for amending its
discovery responses at this late date. (Dkt. 86 at 8.) Plaintiffs argue that Defendant waited until
summary judgment responses were due and amended its previous responses without leave of
Court. (Dkt. 86 at 16.) According to Plaintiffs, allowing Defendant to withdraw and amend its
previous discovery responses six weeks before trial would “entirely change the case” and create
additional disputed issues on which no discovery was taken in reliance on Defendant’s previous
admissions. (Dkt. 86 at 16.) Further, Plaintiffs state that permitting Defendant to withdraw its
Response to Request for Admissions numbers two and four would “require Plaintiffs to either
amend their complaint to add a party or lose $1,000,000 in insurance coverage, which Safeco had
intentionally evaluated, adjusted, and litigated this case as to both policies for the entire pendency
of this claim.” (Dkt. 86 at 16–17.) Likewise, if Defendant were allowed to withdraw its Response
to Request for Admissions numbers eleven through fourteen, “Plaintiffs would be forced to defend
against any number of ‘coverage defenses’ or ‘policy defenses’ which have never been disclosed
to Plaintiffs . . . and which Plaintiffs have had no way to take discovery on.” (Dkt. 86 at 17.)
In light of the parties’ arguments, the Court finds that Defendant failed to establish good
cause for amending its discovery responses past the Court’s deadline. Defendant offers no

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explanation for its failure to amend its responses within the Court’s deadline. To establish good
cause, Defendant must have been diligent. Ashmore, 503 Fed. App’x at 685. Defendant responded
to Plaintiffs’ requests for admissions in May 2017. (Dkts. 70-8, 70-9.) Defendant had over a
month to amend its responses within the Court’s June 19, 2017 discovery deadline. (Dkts. 20, 21.)
However, Defendant waited until after the discovery and dispositive motion deadlines, amending
its responses while responding to Plaintiffs’ Motion for Summary Judgment. (Dkts. 72-2, 72-3.)
Defendant gives no persuasive reason for its delay. Further, Defendant’s delay in amending its
responses to requests for admissions may have a significant impact on the proceedings in light of
Plaintiffs’ arguments that: Defendant’s amended admissions may require Plaintiffs to seek leave
to add a defendant although the deadline to add additional parties passed in January 2017; Plaintiffs
did not conduct discovery into the issues Defendant admitted previously; allowing the amended
admissions will require additional discovery which is precluded now that discovery has closed and
trial is scheduled to occur in October 2017, in two weeks; and Defendant’s amended admissions
would affect the evidence Plaintiffs relied upon in their Motion for Summary Judgment, and the
deadline for dispositive motions passed on July 19, 2017. Given the lack of explanation by
Defendant and potential prejudice to Plaintiffs, Defendant has not established good cause as
required by Rule 16(b) for belatedly attempting to amend its discovery responses. Watkins v.
Regions Mortg. Inc., 555 Fed. App’x 922, 924 (11th Cir. 2014) (affirming district court’s denial
of plaintiff’s request to extend discovery where plaintiff did not show good cause); Arianas v.
LVNV Funding LLC, 307 F.R.D. 615, 619–620 (M.D. Fla. 2015) (denying plaintiff’s motion to
extend discovery for failure to demonstrate good cause); see Oravec v. Sunny Isles Luxury
Ventures, L.C., 527 F.3d 1218, 1232 (11th Cir. 2008) (explaining in order to establish good cause,
the party seeking the extension must establish that the court’s schedule could not be met despite

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the party’s diligence); see also Lowe’s Home Ctrs., Inc. v. Olin Corp. 313 F.3d 1307, 1315 (11th
Cir. 2002) (“It is not an abuse of discretion for a district court to deny a motion for leave to amend
a complaint when such motion is designed to avoid an impending adverse summary judgment.
Furthermore, it is not an abuse of discretion for a district court to deny a motion for leave to amend
following the close of discovery, past the deadline for amendments and past the deadline for filing
dispositive motions.”) (citations omitted).
2.

Rule 36(b)

Next, the Court considers whether Defendant can withdraw its prior responses to Plaintiffs’
requests for admissions under Rule 36(b). The Eleventh Circuit has set forth a two-part test for
determining whether to permit a withdrawal of admissions under Rule 36(b). See Perez v. Miami–
Dade Cnty., 297 F.3d 1255, 1264 (11th Cir. 2002). The Court should first consider “whether the
withdrawal will subserve the presentation of the merits.” Id. Second, it should “determine whether
the withdrawal will prejudice the party who obtained the admissions in its presentation of the
case.” Id. (citations omitted). The first prong of the test “emphasizes the importance of having
the action resolved on the merits.” Id. at 1266 (emphasis omitted) (quoting Smith v. First Nat’l
Bank of Atlanta, 837 F.2d 1575, 1577–78 (11th Cir. 1988) (per curiam)). It is “satisfied when
upholding the admissions would practically eliminate any presentation of the merits of the case.”
Perez, 297 F.3d at 1266 (quoting Hadley v. United States, 45 F.3d 1345, 1348 (9th Cir. 1995)).
“The prejudice contemplated by the Rule . . . relates to the difficulty a party may face in proving
its case, e.g., caused by the unavailability of key witnesses, because of the sudden need to obtain
evidence with respect to the questions previously answered by the admissions.” Smith, 837 F.2d
at 1578 (quoting Brook Village N. Assocs. v. Gen. Elec. Co., 686 F.2d 66, 70 (1st Cir. 1982)). A
district court abuses its discretion under Rule 36(b) in denying a motion to withdraw or amend

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admissions when it applies some other criterion beyond the two-part test—or grossly misapplies
the two-part test—in making its ruling. Perez, 297 F.3d at 1265.
In its Motion to Supplement, Defendant fails to address the two-part test established in
Perez or make any arguments other than those addressed above in Section A.1. In their response,
Plaintiffs contend that Defendant must satisfy the Perez test to amend their admissions. (Dkt. 86
at 7.) With regard to step one in Perez, Plaintiffs argue that if Defendant is allowed to withdraw
its admissions, it would undo the entirety of this litigation. (Dkt. 86 at 14.) The purpose of requests
for admissions under Rule 36 is “to expedite the trial and to relieve the parties of the cost of proving
facts that will not be disputed at trial.” Perez, 297 F.3d at 1264 (citation omitted). Here, Defendant
admitted in the initial Complaint that Defendant issued an insurance policy to Plaintiff Jason Fox,
including the subject umbrella uninsured/underinsured motorist coverage. (Dkt. 8 at ¶ 21.)
Defendant admitted that no coverage or policy defenses exist in its response to requests for
admissions. (Dkt. 70-8.) Withdrawal of Defendant’s admissions will not subserve the presentation
of the merits in the case. Rather, the merits of the action, including Defendant’s affirmative
defenses in its Answer, may continue to be disputed by the parties through summary judgment and
potentially trial.
The Court must also consider the second prong of the Perez test and determine whether
Plaintiffs would be prejudiced by the withdrawal or amendment of admissions. Perez, 297 F.3d
at 1266. As addressed above, allowing Defendant’s proposed amendments would result in
prejudice to Plaintiffs. For example, Plaintiffs understood that Defendant did not dispute the
allegations in Plaintiffs’ requests for admissions throughout this case. If withdrawal or amendment
were allowed, Plaintiffs would suddenly need to obtain evidence with respect to policy and
coverage defenses where Defendant had admitted that there were no defenses before. According

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to Plaintiffs, they conducted no discovery on these issues given Defendants’ admissions. Plaintiffs
also filed their Motion for Summary Judgment on the policy and coverage issues in light of
Defendant’s admissions, and the deadline for dispositive motions has now passed. Thus, allowing
Defendant to withdraw its prior admissions would prejudice Plaintiffs, causing difficulty in
proving their case and creating a “sudden need to obtain evidence with respect to the questions
previously answered by the admissions.” See Smith, 837 F.2d at 1578. Therefore, Defendant’s
Motion to Supplement is denied. See Mut. Serv. Ins. Co. v. Frit Indus., Inc., 358 F.3d 1312, 1322
(11th Cir. 2004) (finding district court did not abuse discretion in denying insurers motion to
withdraw admissions that directly conflicted with the insurers’ summary judgment motion as the
“insurers were trying to change their litigation position” and withdrawal would result in prejudice);
United States v. Stinson, 614CV1534ORL22TBS, 2016 WL 8488241, at *3 (M.D. Fla. Nov. 22,
2016) (denying defendant’s motion to withdraw and amend admissions as defendant’s decision to
wait until trial to withdraw the admissions prejudiced plaintiff).
B.

Motion to Strike

In their Motion to Strike, Plaintiffs seek to strike Defendant’s Supplemental and Corrected
Responses to Request for Admissions and Supplemental and Corrected Response to Second
Request for Admissions, which were filed as exhibits in response to Plaintiffs’ Motion for
Summary Judgment. (Dkt. 75.) Plaintiffs argue that Defendant failed to comply with the Court’s
Scheduling Order because the amended responses were served outside the discovery period,
approximately one hour after they were filed as exhibits on August 1, 2017. (Dkt. 75 at 1.) Further,
Defendant failed to seek leave of Court before amending its responses. (Dkt. 75 at 5.) Plaintiffs
assert that Defendant relies on summary judgment evidence that was neither properly served nor

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filed. (Dkt. 75 at 2.) Plaintiffs also contend that Defendant’s attempt to change its responses given
throughout discovery is prejudicial as trial is scheduled to occur in October 2017. (Dkt. 75 at 4.)
In response, Defendant contends that the amended responses are “completely harmless” as
Plaintiffs were aware of the correct underwriting entity pre-suit on March 22, 2016, when
Defendant provided Plaintiffs with complete copies of the underlying policy and umbrella policy.
(Dkt. 83 at 1.) A complete copy of the umbrella policy was again provided to Plaintiffs on June
19, 2017, as part of Defendant’s Supplemental Initial Disclosures. (Dkt. 83 at 2.) Defendant
asserts that it had a duty to supplement its discovery responses under Rule 26(e). (Dkt. 83 at 3.)
Rule 26(e) requires parties who have responded to a request for admission to supplement
or correct responses “in a timely manner if the party learns that in some material respect the
disclosure or response is incomplete or incorrect, and if the additional or corrective information
has not otherwise been made known to the other parties during the discovery process or in writing.”
Fed. R. Civ. P. 26(e)(1)(A). “If a party fails to provide information . . . as required under Rule
26(a) or (e), the party is not allowed to use that information . . . to supply evidence on a motion, at
a hearing, or at trial, unless that failure was substantially justified or harmless.” Fed. R. Civ. P.
37(c)(1). The court has broad discretion in deciding whether a failure to disclose evidence is
substantially justified or harmless under Rule 37(c)(1). United States ex rel. Bane v. Breathe Easy
Pulmonary Servs., Inc., No. 8:06-cv-00040-T-33MAP, 2009 WL 92826, at *3 (M.D. Fla. Jan. 14,
2009). “The burden of establishing that a failure to disclose was substantially justified or harmless
rests on the nondisclosing party.” Mitchell v. Ford Motor Co., 318 Fed. App’x 821, 825 (11th Cir.
2009) (internal quotations omitted).
Here, Defendant failed to timely supplement or amend its responses to Plaintiffs’ requests
for admissions before the close of discovery. Defendant asserts that Plaintiffs have been in

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possession of the information supplied in the amended discovery responses “as the underwriting
entity of the umbrella policy was clearly identified on the Sworn Disclosure Statement, dated
March 22, 2016 and within [its] Supplemental Initial Disclosure.” (Dkt. 83 at 4–5.) However,
Defendant does not address its amended admissions regarding policy and coverage defenses.
Defendant has not shown that its failure to timely disclose this information was substantially
justified or harmless. Therefore, Defendant’s Supplemental and Corrected Responses to Request
for Admissions and Supplemental and Corrected Response to Second Request for Admissions are
stricken. Fed. R. Civ. P. 37(c)(1); see Mitchell, 318 Fed. App’x at 824–25 (affirming district
court’s decision to strike testimony of untimely disclosed expert); Woods v. Austal, U.S.A., LLC,
CIV.A. 09-0699-WS-N, 2011 WL 1380054, at *7–8 (S.D. Ala. Apr. 11, 2011) (striking references
to untimely supplemental discovery responses from plaintiff’s opposition to defendant’s motion
for summary judgment as the untimely disclosures were neither substantially justified nor
harmless); Shire Dev. LLC v. Watson Pharm., Inc., 932 F. Supp. 2d 1349, 1357 (S.D. Fla. 2013)
(striking declaration of untimely disclosed expert witness under Rule 37). Accordingly, it is
ORDERED:
1.

Defendant’s Motion for Leave to Supplement and Correct Its Discovery Responses
(Dkt. 74) is DENIED.

2.

Plaintiffs’ Motion to Strike Defendant’s Exhibits 72-3 and 72-3 for Failure to
Comply with Court Order and Fed. R. Civ. P. 36(b) (Dkt. 75) is GRANTED.

DONE and ORDERED in Tampa, Florida, on September 15, 2017.

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Copies furnished to:
Counsel of Record

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