BUTLER v. SMITH DEAN & ASSOCIATES INC

Filing 42

ORDER re 34 Motion to Compel Production is GRANTED. Defendant shall provide full and complete responses to Plaintiff's requests for production nos. 6,7,9,10,13, and 16 and shall produce all documents responsive to each of t hose requests for production by 10/19/2011. Plaintiff's request for attorney's fees is GRANTED. Plaintiff shall file an affidavit in support of request for fees w/n 10 days. Defendant shall have 10 days after service to file a response. Signed by MAGISTRATE JUDGE GARY R JONES on 10/4/2011. (jws)

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
ANGELA D. BUTLER,
Plaintiff,
v.

CASE NO. 5:11-cv-44-RS-GRJ

SMITH, DEAN & ASSOCIATES, INC.,
a Florida Corporation,
Defendant.
____________________________ /
ORDER
Pending before the Court is Plaintiff’s Motion To Compel Production Of
Documents And Compel Complete Responses To Plaintiff’s First Request For
Production Of Documents. (Doc. 34.) Plaintiff requests the Court to enter an order
compelling Defendant to produce documents and provide more complete answers to
Plaintiff’s requests for production. Defendant has not filed a response to the motion and
the time for doing so has long since passed.
According to Plaintiff, although Defendant has served several responses to
Plaintiff’s request for production, Defendant failed to provide a promised supplemental
response and failed to provide any documents in response to the Plaintiff’s discovery
requests. Plaintiff requests that Defendant provide more complete responses to
Plaintiff’s requests for production nos. 6, 7, 9, 10, 13, and 16, which concern, inter alia,
previous litigation filed against Defendant, a list of Defendant’s employees, Defendant’s
tax returns and financial statements.
Because Defendant has failed to file a response to Plaintiff’s motion the Court
assumes that Defendant does not have any meaningful arguments to offer in opposition

Page 2 of 3

to Plaintiff’s request and therefore the motion is due to be granted.
In addition, Plaintiff requests an award of attorney’s fees pursuant to Rule
37(a)(5) of the Federal Rules of Civil Procedure due to Defendant’s failure to provide
the requested discovery. Rule 37(a)(5) provides “If the motion is granted ... the court
must, after giving an opportunity to be heard, 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, as here, the motion is granted. The Rule 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.
Because Defendant has failed to file a response to the motion, Defendant has failed to
demonstrate that either of these situations is present in this case. Accordingly, Plaintiff
is entitled to an award of attorney’s fees incurred in preparing and filing the motion to
compel. Plaintiff will be given ten days to file an affidavit establishing the time expended
and the hourly rate for the requested attorney’s fees. Defendant shall have ten days
thereafter to file a response to the requested amount of attorney’s fees. The Court will
then take the matter under advisement and issue a further order as to the amount of
attorney’s fees to be awarded.
Accordingly, upon due consideration, it is ORDERED that:
(1)

Plaintiff’s Motion To Compel Production Of Documents And Compel
Complete Responses To Plaintiff’s First Request For Production Of
Documents (Doc. 34) is GRANTED.

Page 3 of 3

(2)

Defendant shall provide full and complete responses to Plaintiff’s requests
for production nos. 6, 7, 9, 10, 13, and 16 and shall produce all
documents responsive to each of those requests for production on or
before October 19, 2011.

(3)

Plaintiff’s request for attorney’s fees is granted. Plaintiff shall file an
affidavit in support of her request for attorney’s fees within ten days.
Defendant shall have ten days after service of Plaintiff’s affidavit to file a
response to the amount of attorney’s fees requested.

DONE AND ORDERED this 4th day of October, 2011.

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