Schuster vs Search, Survey, & Recovery, Inc

Filing 22

ORDER ON PLAINTIFF'S MOTION FOR SANCTIONS granting in part and denying in part 19 Motion for Sanctions. Signed by Ch. Magistrate Judge Frank J. Lynch, Jr on 12/30/2016. (lan)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. l6-l4039-CIVMARRA/LYNCH
SCOTT SCHUSTER ,

Plaintiff,

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D.C.

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SEARCH , SURVEY & RECOVERY , INC .,

STEVENM L MORE
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d/b/a SSR, Inc.,

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Defendant .

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ORDER ON PLAINTIFF'S MOTION FOR SANCTIONS ( l9)
DE
THIS CAUSE comes before this Court upon the above Motion .
Having rev iewed the Motion , Response , and Reply , this Court
finds as follows :

The instant Motion concerns the Defendant's failure to
comply with this Court's Order to Compel found at DE 15 . The
Defendant had until November 22, 2016 to produce all responsive
discovery . To -date the Defendant still has not done so . The

Plaintiff now moves for sanctions for that noncompliance . The
procedural history surrounding the discovery request is
complicated , however . A thorough consideration of the
Defendant's noncompliance therefore requires review of the
contemporaneous procedural history .
2.

This Court begins its review by identify ing exactly

what discovery request is at issue . In his underly ing Motion to

Request to Produce E
that
Compel, the Plaintiff referenced the u
he had served) on Defendant, NORTHCLIFFE OCEAN SHIPPING
TRADING CO ., INC . on September

2016 .' The Plaintiff's
'

m istake was to refer to the Defendant by the wrong name . That
Northcliffe company is not a defendant to this lawsuit nor an

involved third-party. The subject Request to Produce also was
said to be attached to the Motion to Compel as Exhib it

but

the Motion was docketed without any attachments . These two
erro rs

identifying the subject discovery request do not

excuse the Defendant 's noncompliance, however . As the Plaintiff
has explained in subsequent filings, the Defendant knew that the

'
Motion to Compel concerned the uRequest for Production' dated
August

2016 that he had sent to it. (
The Plaintiff now

attaches the subject Request for Production to his Motion for
Sanctions.) Despite the Plaintiff 's prior explanation of this
simple mistake, the Defendant continues to rely on

RS a

reason for its noncompliance .
This excuse for noncompliance is unavailing . This
Court notes that the Defendant does not expressly deny receiving

even if the Plaintiff used the
the discovery request at issue (
wrong defendant name in his Motion to Compel). The Defendant

does not deny the statement that the Plaintiff made in his

Motion to Compel that the two had attempted in good faith to
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resolve the discovery dispute ; that the Defendant had promised
to answer the discovery request; but that the Defendant has
provided none of those promised answers . This further implies

that the Defendant knew what discovery request was at issue .
If the identification error had made any material
difference , the Defendant did not respond to the Motion to
Compel to raise

as a defense . Nor did the Defendant move for

reconsideration or clarification of this Court's Order to
Compel. The simple fact remains that this Court ordered the
'.
Defendant to answer uthe pending Request for Productionz The
Defendant should have known what the pending Request for
Production was and should have answered it as instructed .
The Defendant's second reason for its noncompliance is

the fact that its counsel is mov ing to withdraw his
representation . This Court appreciates that this circumstance
may be a complicating factor . However , in the ab sence of a stay ,
the Defendant must remain current with its litigation
obligations .
The Defendant's third reason is the health -related

matter of Peter Theophanis, the Vice President of the Defendant
Company .

Mr. Theophanis suffered a back injury and has had two

related hospitalizations for

The Defendant says that Mr .

Theophanis is bed ridden . This Court appreciates the difficulty
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that this may have caused . However the Defendant does not go so

far as to explain why the subject Request for Production has
remained unanswered for the full length of the intervening
period

time . Nor does the Defendant explain how the

Defendantzs corporate officers have been able to wind the
company 's operations down and to liquidate its assets during the
same time frame . If Mr . Theophanis remains unable to assist with
the discovery , then the Defendant shall find someone else who
Can .

Lastly this Court notes that the attorney of the

Defendant has had the distraction of health problems and deaths
in his own family . No doubt that has posed difficulties , as
well . However there is also the fact that still today , despite

the intervening length of time , no progress at all has been made
towards answering any of the Requests for Production that this
Court ordered the Defendant to do .

8.

The Plaintiff seeks the severest of sanctions .

Pursuant to Rule 37(
b)

Fed .R .Civ .P ., the Plaintiff asks to

strike the Defendant's pleadings and to enter Final Judgment
against

(
The Plaintiff did not confer with the Defendant

before filing the Motion for Sanctions as required by Local Rule

7.1( 3), this Court notes.) In light of the full circumstances
a)(
this Court does not find such severe sanctions warranted . This
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Court observes moreover that the Plaintiff also has filed a

Motion for Summary Judgment , and the Defendant opposes the
Plaintiff's claim for relief on the merits . The contemporaneous

summary judgment proceeding weighs against entering a Final
Judgment as a matter of discovery sanctions .

This Court finds the circumstances instead to warrant
giving the Defendant an additional opportun ity to comply with

this Court's Order . This has the benefit of creating a new
deadline that is free of the several distractions that have
hindered compliance thus far and of clarify ing the Defendant 's

still ongoing obligation to bring itself into comp liance despite
those distractions .
It is therefore ,
ORDERED AND ADJUDGED that the Plaintiff 's Motion for

Sanctions ( l9) is DENIED with respect to the form of
DE
sanctions requested but GRANTED to the extent this Court extends
the time for compliance . Defendant shall answer completely and
in full the Request for Production that is dated August

2016

and attached to the Motion for Sanctions at DE 19-1 . The
Defendant shall bring itself into full compliance by TUESDAY ,
JANUARY 17, 2017 . This new deadline gives the Defendant ample
additional time to bring itself into comp liance . Should the

Defendant not bring itself into full compliance by this new
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deadline, then the Plaintiff may file a new Motion for

Sanctions.
DONE AND ORDERED in Chambers at Fort Pierce , Florida , this
.M
.

.

ay of December , 2016 .

J. L
, JR .
IEF UN ITED STATES MAGISTRATE JUDGE

cc : G .J . Sullivan , Jr ., Esq .
Michael W . McLeod, Esq .

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