Schwimmer v. 24 Hour Fitness USA, Inc.

Filing 50

ORDER denying Plaintiff's 47 Motion to Compel Deposition of 24 Hour Fitness Insurance Signator. Signed by Magistrate Judge Alicia O. Valle on 6/2/2015. (ms01)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 14-CV-62387-BLOOM/VALLE
ROBERT F. SCHWIMMER,
Plaintiff,
v.
24 HOUR FITNESS USA, INC.,
INTEGRITY SOLUTIONS SERVICES, INC.,
and LIVEVOX, INC.

Defendants.
_______________________________________/
ORDER DENYING PLAINTIFF’S MOTION TO COMPEL
DEPOSITION OF 24 HOUR FITNESS INSURANCE SIGNATOR
THIS MATTER is before the Court on Plaintiff Robert Schwimmer’s Motion to Compel
Depositions of Defendant 24 Hour Fitness’s Insurance Signators (“Motion”) (ECF No. 47). The
Court has reviewed Plaintiff’s Motion and Defendant’s Response (ECF No. 48), and is otherwise
duly advised in the premises. Accordingly, for the reasons set forth below, Plaintiff’s Motion is
DENIED.
I.

BACKGROUND
Plaintiff alleges that Defendant violated the Telephone Consumer Protection Act, 47 U.S.C

§ 227 et. seq., by purportedly autodialing his cellphone on numerous occassions without his prior
express consent. See 2d Am. Compl. (ECF No. 37 at 11). Defendant, for its part, claims that the
calls were made by its co-defendant, Integrity Solutions Services, Inc. (“Integrity”). (ECF No. 48 at
1). According to Defendant, Integrity has thus agreed to indemnify Defendant in this suit. Id.
On December 31, 2014, Defendant served its initial disclosures pursuant to Federal Rule of
Civil Procedure 26(a)(1). (ECF No. 47-1). Consistent with Rule 26(a)(1)(A)(iv)—which requires a

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party to disclose “any insurance under which an insurance business may be liable to satisfy all or
part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy
the judgment”—Defendant disclosed that it was “not currently aware of any insurance policy that
affords coverage for the conduct alleged in this lawsuit.” (ECF No. 47-1 at 3). Defendant explains
that it did not identify any insurance policies at that time because, “due to the indemnification
[agreement with Integrity], the applicable policy is Integrity’s.” 1 (ECF No. 48 at 2).
Plaintiff then sought to verify Defendant’s disclosure through deposition. Specifically,
Plaintiff asked to depose “the signator of any insurance policy covering [Defendant] which was
executed within the last 3 years.” (ECF No. 47 at 1). Defendant, however, resisted Plaintiff’s
deposition request because it “is a very large company with many policies completely irrelevant to
plaintiff’s claim.” (ECF No. 48 at 2). As a compromise, Defendant offered to produce a corporate
representative to testify about all the insurance policies potentially available to Defendant in this
case. Id. at 2-3. Defendant further offered to revisit the issue of deposing its individual insurance
signators if Plaintiff was unsatisfied with the corporate representative deposition.

Id. at 3.

Moreover, Defendant has since supplemented its initial disclosures and identified and produced a
copy of the policy “that would have been applicable, but for the indemnity claim.” Id. at 3. Despite
these developments, the parties did not reach an agreement.
Accordingly, on April 17, 2015, Plaintiff filed his Motion to compel the deposition of
Defendant’s insurance signators. (ECF No. 47). The Motion is now ripe for disposition.
II.

DISCUSSION
Under Federal Rule of Civil Procedure 26(b)(1), “[p]arties may obtain discovery regarding

any nonprivileged matter that is relevant to any party’s claim or defense.” Relevant matter is
1

As an aside, on February 12, 2015, co-defendant Integrity served Plaintiff with its initial
disclosures, identifying its insurance policy and later providing a copy of the policy to Plaintiff.
(ECF No. 48 at 2).
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broadly defined as information that “appears reasonably calculated to lead to the discovery of
admissible evidence.” Id. Although the Rules “strongly favor full discovery whenever possible,”
Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985), discovery “is not
without limits,” Maharaj v. GEICO Cas. Co., 289 F.R.D. 666, 669 (S.D. Fla. 2013) (citing
Washington v. Brown & Williamson Tobacco, 959 F.2d 1566, 1570 (11th Cir.1992)). Under Rule
26(b)(2)(C)(i), for instance, the court must limit discovery if it determines that “the discovery
sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is
more convenient, less burdensome, or less expensive.”
In this case, Plaintiff seeks to depose every person who signed an insurance policy on behalf
of Defendant over the past three years to determine the scope of insurance applicable to Plaintiff’s
claims. (ECF No. 47 at 1). Plaintiff argues that he is entitled to this information because he has not
agreed to limit his recovery to exclude Defendant’s insurers, nor is he bound by any indemnity
agreement between Defendant and Integrity. Id. at 2. According to Plaintiff, obtaining Defendant’s
insurance information is vital to ensuring the collectability of any potential judgment. Id. at 2-3.
In response, Defendant argues—and the Court agrees—that the information Plaintiff seeks is
“overbroad and would lead to duplicative, unnecessary depositions and discovery.” (ECF No. 48 at
4). Defendant has already supplemented its initial disclosures and produced a copy of the insurance
policy “that would have been applicable, but for the indemnity claim.”

Id. at 3.

Since this

information is essentially what Plaintiff seeks to acquire in deposing the signators of Defendant’s
insurance policies, granting Plaintiff’s Motion would be an unreasonably duplicative and
unnecessary exercise. Furthermore, to the extent Plaintiff wants to verify that Defendant has no
other insurance applicable to Plaintiff’s claims, Plaintiff may do so through a far more convenient,
less burdensome, and less expensive

source—that is, Plaintiff may depose a corporate

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representative of Defendant to testify about whether any other insurance may apply to Plaintiff’s
claims.
Accordingly, it is hereby ORDERED AND ADJUDGED that Plaintiff’s Motion to Compel
Depositions of 24 Hour Fitness Insurance Signators (ECF No. 47) is DENIED.
DONE AND ORDERED in Chambers in Fort Lauderdale, Florida, on June 2, 2015.

________________________________________
ALICIA O. VALLE
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
United States District Judge Beth Bloom
All Counsel of Record

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