Cushman v. City of Largo et al

Filing 33

ORDER granting in part and denying in part 32 Motion to Compel. Signed by Magistrate Judge Sean P. Flynn on 10/11/2019. (Flynn, Sean)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
NATALIA CUSHMAN
Plaintiff,
v.

Case No. 8:19-cv-496-T-30SPF

CITY OF LARGO FLORIDA,
and BRIAN LIVERNOIS
Defendants.
/
ORDER
This cause comes before the Court upon Defendant Livernois’ Motion to Compel
Plaintiff to Serve Complete Initial Disclosures and Respond to Discovery (Doc. 32).
Plaintiff has not responded to the motion, and the time to do so has expired. See L.R.
3.01(b), M.D. Fla. (party opposing motion must file response in opposition within 14 days
after service). Therefore, the motion is deemed unopposed. See Legends Collision Ctr., LLC
v. State Farm Mut. Auto. Ins. Co., No. 6:14-cv-6006-ORL-31TBS, 2016 WL 3406409, at *1
(M.D. Fla. June 21, 2016) (stating that a party’s failure to respond to a motion indicates
the motion is unopposed).
Motions to compel discovery are committed to the sound discretion of the trial
court. See Commercial Union Ins. Co. v. Westrope, 730 F.2d 729, 731 (11th Cir. 1984). Rule
26(b) of the Federal Rules of Civil Procedure governs the scope of discovery and provides,
in relevant part, that
[p]arties may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense and proportional to the needs of the

case, considering the importance of the issues at stake in the action, the
amount in controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery outweighs its likely
benefit. Information within this scope of discovery need not be admissible in
evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1). Upon reviewing the outstanding discovery requests, the Court
grants the motion to compel as to Request Nos. 1, 2, 3, 4, 5, 6 ,7, 8, 9, 14, 15, 16 and 17,
because the Court finds that those requests seek documents relevant to Plaintiff’s claims
and are proportional to the needs of the case. With respect to Request Nos. 10 and 12,
the motion to compel is granted only to the extent that Plaintiff shall provide any and all
documents relating to medical treatment or medication provided to Plaintiff to treat any
injury allegedly sustained as a result of Defendant Livernois’ wrongful conduct. In
addition, Plaintiff shall provide any and all documents relating to medical treatment or
medication provided to Plaintiff to treat any wrist injury from 2009 to present. The motion
to compel as to Requests No. 10 and 12 is denied as either irrelevant or not proportional
to the needs of the case. Likewise, the motion to compel as to Request Nos. 11 and 13 is
denied as either irrelevant or not proportional to the needs of the case.
In addition, the Federal Rules of Civil Procedure require Plaintiff to disclose “a
computation of each category of damages claimed by the disclosing party—who must also
make available for inspection and copying as under Rule 34 the documents or other
evidentiary material, unless privileged or protected from disclosure, on which each
computation is based, including materials bearing on the nature and extent of injuries
suffered.” Fed. R. Civ. P. 26(a)(1)(A)(iii). Plaintiff is ordered to supplement her initial
disclosure to provide a complete calculation of her economic damages. Plaintiff is not
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required to provide a calculation for her noneconomic damages; however, the failure to
do so may result in Plaintiff being precluded from suggesting an amount or range to the
finder of fact. See, e.g. Nagele v. Delta Air Lines, Inc., No. 17-22559-CIV, 2017 WL 6398337,
at *2 (S.D. Fla. Dec. 13, 2017) (holding that plaintiff was not required to provide a
computation for non-economic damages where she had stipulated that she did not intend
to ask the jury for a specific dollar amount or range); Gray v. Florida Dept. of Juvenile Justice,
No. 3:06-cv-990-J020MCR, 2007 WL 295514, at *2 (M.D. Fla. Jan. 30, 2007) (holding
that plaintiff was not required to provide defendant with a calculation of her suggested
compensatory damages for emotional distress but she would be precluded from suggesting
to the jury an amount of compensatory damages for her emotional distress).
Defendant Livernois also requests costs and attorney’s fees associated with
bringing its motion. Rule 37(a)(5), Federal Rules Civil Procedure, provides the framework
for consideration of Defendant's request and provides, in relevant part,
If the motion is granted -- or if the disclosure or requested discovery is
provided after the motion was filed -- the court must, after giving an
opportunity to be heard, require the party ... whose conduct necessitated
the motion, the party or attorney advising such conduct, or both to pay to
the movant’s reasonable expenses incurred in making the motion, including
attorney's fees. But the court must not order this payment if:
(i)
the movant filed the motion before attempting in good faith
to obtain the disclosure or discovery without court action;
(ii)
the opposing party's nondisclosure, response, or objection
was substantially justified; or
(iii)
other circumstances make an award of expenses unjust.
Fed. R. Civ. P. 37(a)(5)(A); see also Devaney v. Cont’l Am. Ins. Co., 989 F.2d 1154, 1159
(11th Cir. 1993) (noting that “[t]he rule was toughened in 1970 to mandate that expenses
be awarded unless the conduct of the losing party or person is found to have been

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substantially justified.”). “Substantially justified means that reasonable people could
differ as to the appropriateness of the contested action.” Hill v. Emory Univ., 346 F. App’x
390, 392 (11th Cir. 2009) (per curiam) (quoting Maddow v. Procter & Gamble Co., Inc., 107
F.3d 846, 853 (11th Cir. 1997)) (internal quotation marks omitted). “The burden of
establishing substantial justification is on the party being sanctioned.” Telluride Mgmt.
Sols., Inc. v. Telluride Inv. Grp., 55 F.3d 463, 466 (9th Cir. 1995), abrogated on other grounds
by Cunningham v. Hamilton Cty., 527 U.S. 198 (1999). There being no response filed by
Plaintiff, much less a substantial justification for her failure to timely respond to
Defendant’s discovery requests, an award of expenses is appropriate.
Accordingly, it is hereby
ORDERED:
1.

Defendant Livernois’ Motion to Compel Plaintiff to Serve Complete Initial
Disclosures and Respond to Discovery (Doc. 32) is granted as follows:
a. Plaintiff shall produce all responsive documents to Request Nos. 1, 2, 3,
4, 5, 6 ,7, 8, 9, 14, 15, 16 and 17.
b. With respect to Request Nos. 10 and 12, Plaintiff shall provide any and
all documents relating to medical treatment or medication provided to
Plaintiff to treat any injury allegedly sustained as a result of Defendant
Livernois’ wrongful conduct. In addition, Plaintiff shall provide any
and all documents relating to medical treatment or medication provided
to Plaintiff to treat any wrist injury from 2009 to present.

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c. Plaintiff shall supplement her initial disclosure to provide a complete
calculation of her economic damages.
d. Plaintiff shall serve Defendant Livernois with the discovery responses
and supplemental disclosure within 14 days of the date of this Order
without objection.
2.

Defendant’s request for costs and attorney’s fees incurred in filing his
Motion to Compel Plaintiff to Serve Complete Initial Disclosures and
Respond to Discovery (Doc. 32) is granted. Within 14 days of the date of
this Order, Defendant shall file with the Court an affidavit setting forth the
reasonable costs and fees incurred with respect to filing its motion. Plaintiff
shall have 14 days from the filing of Defendant’s affidavit to object to the
fees and costs claimed.

3.

Defendant Livernois’ Motion to Compel Plaintiff to Serve Complete Initial
Disclosures and Respond to Discovery (Doc. 32) is otherwise denied.

ORDERED in Tampa, Florida, on October 11, 2019.

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