United States District Court, M.D. Florida, Fort Myers Division
MIRANDO UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court upon review of Third Party
Defendant, Asphalt Milling Services, LLC's
(“Asphalt”) Motion to Compel Discovery Responses
from Third Party Plaintiff/Defendant Ajax Paving Industries
of Florida, LLC (“Defendant”) (Doc. 43) filed on
March 13, 2017. Asphalt seeks to compel Defendant to provide
complete responses to Asphalt's discovery requests served
on December 7, 2016 because Asphalt alleges that Defendant
has not objected or responded to Asphalt's discovery
requests. Doc. 43 at 1-2. Although Asphalt states that
Defendant objects to the requested relief, Defendant has not
responded to Asphalt's motion to compel. Id. at
3. Discovery closed on March 20, 2017. Docs. 39, 46.
alleges that on December 7, 2016, it served interrogatories
and requests for production of documents to Defendant, making
Defendant's response due January 6, 2017. Id. at
1-2. Asphalt states that on January 5, 2017, Defendant's
counsel requested a ten-day extension to provide
Defendant's response to the discovery requests.
Id. at 2. Asphalt states that on January 17, 2017,
Defendant's counsel requested an additional two-week
extension. Id. Asphalt alleges that when it
requested an update on February 24, 2017 and sent a second
request for outstanding discovery responses on March 2, 2017,
Defendant's counsel responded that Defendant would serve
its discovery response on March 7, 2017. Id. Asphalt
asserts that despite Defendant's alleged promises to
provide its response, Defendant has not objected or responded
to Asphalt's outstanding discovery requests served on
December 7, 2016. Id.
of the Federal Rules of Civil Procedure sets forth the
procedures for obtaining access to documents and things
within the control of the opposing party. Fed.R.Civ.P. 34.
Rule 34(a) allows a party to serve on any other party a
request within the scope of Rule 26(b). Fed.R.Civ.P. 34(a).
Rule 26(b) permits discovery
regarding any nonprivileged matter that is relevant to any
party's claim or defense and proportional to the needs of
the case, considering the importance of the issues at stake
in the action, the amount in controversy, the parties'
relative access to relevant information, the parties'
resources, the importance of the discovery, in resolving the
issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit. Information within
this scope of discovery need not be admissible in evidence to
Fed. R. Civ. P. 26(b)(1). A request for production must state
“with reasonable particularity each item or category of
items to be inspected.” Fed.R.Civ.P. 34(b)(1)(A). The
party to whom the request is directed must respond within
thirty days after being served, and “for each item or
category, . . . must state with specificity the grounds for
objecting to the request, including the reasons.”
Fed.R.Civ.P. 34(b)(2). Furthermore, “[a]n objection
must state whether any responsive materials are being
withheld on the basis of that objection.” Fed.R.Civ.P.
34(b)(2)(C). When a party fails to produce documents as
requested under Rule 34, the party seeking the discovery may
move to compel the discovery. Fed.R.Civ.P. 37(a)(3)(B)(iv).
of the Federal Rules of Civil Procedure allows a party to
serve on another party written interrogatories that relate to
“any matter that may be inquired into under Rule
26(b)” as outlined above. Fed.R.Civ.P. 33(a). A written
response or objection to an interrogatory is due within
thirty days after the service. Fed.R.Civ.P. 33(b)(2). An
objection is waived if not made timely “unless the
court, for good cause, excuses the failure.”
Fed.R.Civ.P. 33(b)(3). A party objecting to an interrogatory
must state “with specificity” the grounds for
such objection. Fed.R.Civ.P. 33(b)(4). Furthermore,
“[a] party resisting discovery must show specifically
how . . . each interrogatory is not relevant or how each
question is overly broad, burdensome or oppressive. .
.” Panola Land Buyer's Assn. v. Shuman,
762 F.2d 1550, 1559 (11th Cir. 1985) (citing Josephs v.
Harris Corp., 677 F.2d 985, 992 (3d Cir. 1982)). An
evasive or incomplete answer or response must be treated as a
failure to answer or respond. Fed.R.Civ.P. 37(a)(4). When a
party fails to answer an interrogatory, the party seeking the
discovery may move to compel the response. Fed.R.Civ.P.
37(a)(3)(B)(iii). Whether or not to grant a motion to compel
is at the discretion of the trial court. Commercial Union
Insurance Co. v. Westrope, 730 F.2d 729, 731 (11th Cir.
review of the requests for production of documents, the Court
is satisfied that the documents requested are relevant to
this proceeding and must be produced. Doc. 43-1 at 16-18.
Moreover, the information that Asphalt seeks in each
interrogatory is relevant and Defendant must respond.
Id. at 6-10. To the extent that Defendant believes
Asphalt's interrogatories are objectionable, Defendant
waived its objections by not timely raising them.
Fed.R.Civ.P. 33(b)(4). Furthermore, Defendant chose not to
respond to the motion to compel. Not only does Defendant
waive its objections, but failure to file a response to a
motion creates a presumption that the motion is unopposed.
Great Am. Assur. Co. v. Sanchuk, LLC, No.
8:10-cv-2568-T-33AEP, 2012 WL 195526, at *3 (M.D. Fla. Jan.
23, 2012). As a result, Asphalt's motion to compel
Defendant to produce any and all documents that are in
Defendant's possession, custody, or control that are
within the scope of the requests, and to provide full,
complete, and comprehensive responses to the interrogatories
it is hereby
Third Party Defendant, Asphalt Milling Services, LLC's
Motion to Compel Discovery Responses from Third Party
Plaintiff/Defendant Ajax Paving Industries of Florida, LLC
(Doc. 43) is GRANTED.
or before April 14, 2017, Defendant Ajax Paving Industries of
Florida, LLC shall produce any and all documents that are in
its possession, custody, or control that are within the scope
of the requests laid out in Asphalt Milling Services,
LLC's motion (Doc. 43-1 at 16-18).
or before April 14, 2017, Defendant Ajax Paving Industries of
Florida, LLC shall provide full, complete, and comprehensive
responses to the interrogatories laid out in Asphalt Milling
Services, LLC's motion (Doc. 43-1 at 6-10).
Defendant is unable to produce documents responsive to the
requests or provide responses to the interrogatories, then
Defendant must explain in reasonable factual detail the
efforts that it made to obtain the requested documents and
information and ...