Espinosa v. 2K Clevelander, LLC

Filing 29

ORDER granting in part and denying in part 17 Plaintiff's Motion to Compel. Signed by Magistrate Judge Edwin G. Torres on 1/9/2018. (js02)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-Civ-22783-KING/TORRES
SAMANTHA ESPINOSA,
Plaintiff,
v.
2K CLEVELANDER, LLC,
Defendant.
______________________________________/
ORDER ON PLAINTIFF’S MOTION TO COMPEL
This matter is before the Court on Samantha Espinosa’s (“Plaintiff”) motion
to compel interrogatory answers, production responses, and documents against 2K
Clevelander, LLC (“Defendant”). [D.E. 17]. Defendant responded on December 27,
2017 [D.E. 24] to which Plaintiff replied on January 4, 2018. [D.E. 26]. Therefore,
Plaintiff’s motion is now ripe for disposition.

After careful consideration of the

motion, response, reply, relevant authority, and for the reasons discussed below,
Plaintiff’s motion is GRANTED in part and DENIED in part.
I.

ANALYSIS

On October 7, 2017, Plaintiff served several discovery requests on
Defendant. Upon agreement of counsel, Plaintiff extended Defendant’s response
deadline to November 20, 2017.

Despite this extension, Plaintiff claims that

Defendant failed to respond to Plaintiff’s discovery requests and that Plaintiff’s
motion – filed on December 10, 2017 – is timely filed within 30 days of the
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November 20, 2017 deadline.

Because Defendant failed to respond to any of

Plaintiff’s discovery requests, Plaintiff filed a motion to compel.
Plaintiff argues that Defendant’s failure to respond to any of her discovery
requests is a violation of the Federal Rules and that Defendant has waived all
objections to Plaintiff’s interrogatories and requests for production.

See Guerra v.

Se. Freight Lines, Inc., 2014 WL 6770175, at *2 (S.D. Fla. Dec. 1, 2014)
(“Guerra did not file a timely objection to SEFL’s interrogatories and did not claim
that any of the discovery infringed upon privileged information. Guerra has failed
to provide any responses. Therefore, any and all objections to SEFL’s discovery
requests are now waived.”) (citing Fed. R. Civ. P. 33(b)(4) (“Any ground not stated in
a timely objection is waived unless the court, for good cause, excuses the failure.”);
Dorrough v. MuUikin, 563 F.2d 187, 191 (5th Cir. 1977)).1 Plaintiff also contends
that attorneys’ fees and costs should be awarded in the preparation of Plaintiff’s
motion, and that Defendant should be compelled to immediately respond to
Plaintiff’s discovery requests.
Defendant argues, in response, that it has been completely transparent in its
discussions with Plaintiff regarding Defendant’s inability to obtain the requisite
documents and information needed to respond to Plaintiff’s discovery requests.

See also Allstate Ins. Co. v. South Harbor Joint Venture, LC, 2008 WL
4826094, *1 (S.D. Fla. Nov. 4, 2008) (noting that “failure to respond or object to [ ]
discovery requests constitutes a waiver of any valid objections that may have been
available”); Henry v. National Housing Partnership, 2007 WL 2746725. *1 (N.D.
Fla. Sept. 18, 2007) (where defendants failed to respond to discovery demands by
deadline, court deemed any objections waived and ordered defendants to provide
“all requested documents which are within their possession, custody or control”).
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Specifically, Defendant claims that it has made substantial efforts to extend its
response deadline in an effort to avoid unnecessary motion practice. Defendant also
suggests that it has every intention of responding to Plaintiff’s discovery requests,
yet needs more time to do so. Because Defendant has been working in good faith to
provide Plaintiff with the information sought, Defendant concludes that Plaintiff’s
motion should be denied and that Defendant should be given ten (10) additional
days to provide its discovery responses.2
We agree with Plaintiff that a party’s failure to respond to discovery requests
as required under the Federal Rules may in some circumstances warrant a finding
that the party has waived their objections. See, e.g., Guerra, 2014 WL 6770175, at
*2. However, in this case, Defendant explained to Plaintiff that it was attempting
to gather the information requested but that Defendant simply could not do so in
the time frame required.

After the parties mutually agreed to an extension,

Defendant still could not locate the information requested and therefore Plaintiff
filed a motion to compel.
Given the record presented, we find that there is good cause to excuse
Defendant’s failure to respond to Plaintiff’s discovery requests. However, Plaintiff’s
motion is GRANTED to the extent that Defendant is compelled to respond to
Plaintiff’s discovery requests within seven (7) days from the date of this Order. No
further extensions of time shall be granted. As for Plaintiff’s request for attorneys’
Defendant also believes that any award of attorneys’ fees would be unjust
because there has not been any purposeful or willful failure to respond. Instead,
Defendant has purportedly worked diligently to respond to Plaintiff’s discovery
requests and has advised Plaintiff of its ongoing efforts.
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fees and costs, Plaintiff’s motion is DENIED without prejudice with leave to renew
if necessary if Defendant fails to comply with the Court’s Order.

Accordingly,

Plaintiff’s motion is GRANTED in part and DENIED in part.
II.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that
Plaintiff’s motion to compel is GRANTED in part and DENIED in part. [D.E.
17].

Defendant is compelled to respond to Plaintiff’s discovery requests within

seven (7) days from the date of this Order. No further extensions of time shall be
granted. To this extent, Plaintiff’s motion is GRANTED. As for Plaintiff’s request
for attorneys’ fees and costs – as well as a finding that Defendant has waived all of
its discovery objections – Plaintiff’s motion is DENIED.
DONE AND ORDERED in Chambers at Miami, Florida, this 9th day of
January, 2018.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge

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