CIANCIOLO v. AVMED INC

Filing 25

ORDER: Defendant's 20 Motion to Compel Sworn Interrogatory Answers from Plaintiff is DENIED. Signed by MAGISTRATE JUDGE GARY R JONES on 2/28/2012. (jws)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
KIRK CIANCIOLO, D.O.
Plaintiff,
v.

CASE NO. 1:11-cv-196-SPM-GRJ

AVMED, INC., d/b/a
AVMED HEALTH PLANS,
Defendant.
_____________________________/
ORDER
This matter is before the Court on Defendant’s Motion To Compel Sworn
Interrogatory Answers From Plaintiff. (Doc. 20.) Plaintiff has filed a Response (Doc. 24)
and therefore the motion is ripe for review.
Defendant requests the Court to enter an order compelling Plaintiff to provide
sworn responses to Defendant’s Second Set of Interrogatories, Plaintiff’s Supplemental
Answers to Defendant’s First Set of Interrogatories and Defendant’s Third Set of
Interrogatories. As Defendant points out Rule 33(b)(1) & (2) of the Federal Rules of Civil
Procedure requires that the answers to interrogatories must be answered under oath.
While Plaintiff provided unverified answers to the interrogatories the Plaintiff had not
provided verified responses at the time the motion was filed. Defendant requires the
verified responses so that it can utilize the responses, if necessary, at the deposition of
Plaintiff scheduled for February 20, 2012.
In his Response Plaintiff represents that on February 15, 2012 he provided
Defendant with verified answers to Defendant’s first, second and third set of
interrogatories as requested in Defendant’s motion. Accordingly, the Defendant was

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provided with the verified answers in sufficient time to utilize them at the February 20,
2012 deposition of Plaintiff. As such, Defendant’s motion to compel is due to be denied
as moot.
In its motion Defendant also requests an award of attorney’s fees pursuant to
Rule 37(a)(5)(A) for filing the motion. Although Plaintiff has not directly addressed the
request for attorney’s fees in his Response, Plaintiff points out that the failure to provide
the verified answers without the necessity of filing a motion was due to the fact that the
parties were unable to reach one another to resolve this issue. Additionally, as Plaintiff
argues in his Response, Plaintiff agreed to provide verified responses before Plaintiff’s
deposition and despite the filing of the motion the verified response were provided in
sufficient time to be used at Plaintiff’s deposition.
Rule 37(a)(5) provides “if the disclosure or requested discovery is provided after
the motion was filed – the court must ... require the party ... whose conduct
necessitated the motion ... to pay the movant’s reasonable expenses incurred in
making the motion, including attorney’s fees.” As written the Rule mandates that the
Court award fees where the responses to the discovery requests are provided after the
filing of the motion. The Rule, however, provides an exception to the requirement that
the Court “must” award of attorney’s fees in situations where the court finds that the
“opposing party’s nondisclosure ... was substantially justified” or finds “other
circumstances make an award of expenses unjust.” Id.
In view of the fact that Defendant had been provided with unverified answers
prior to filing the motion and then was provided with the verified answers in sufficient
time to be utilized at Plaintiff’s deposition the Court concludes that under these
Case No: 1:11-cv-196-SPM -GRJ

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circumstances an award of fees and expenses would be unjust. Moreover, the failure to
provide verified answers without the necessity of a motion appears to be a function of
the parties being unable to reach one another, rather than the result of inaction or
dilatory conduct by counsel. For these reasons, Defendant’s request for fees and
expenses is due to be denied.
Accordingly, upon due consideration, it is ORDERED:
Defendant’s Motion To Compel Sworn Interrogatory Answers From Plaintiff (Doc.
20) is DENIED.
DONE AND ORDERED this 28th day of February 2012.

s/ Gary R. Jones s/GaryR.Jone
GARY R. JONES
United States Magistrate Judge

Case No: 1:11-cv-196-SPM -GRJ