United States District Court, M.D. Florida, Fort Myers Division
LORENZO CARRUEGA, on behalf of himself and others similarly situated Plaintiff,
STEVE'S PAINTING, INC. and STEVEN BLAIR, Defendants.
MIRANDO United States Magistrate Judge.
matter comes before the Court upon review of Plaintiff's
Motion to Compel Responses to Plaintiff's First
Interrogatories and First Request for Production to Defendant
Steve's Painting Inc. (“Steve's
Painting”) (Doc. 22) filed on May 26, 2017. Plaintiff
alleges that he served interrogatories and requests for
production of documents to Steve's Painting on April 17,
2017. Doc. 22 at 2. He states that Steve's Painting has
not responded at all to these discovery requests.
Id. at 3. Plaintiff seeks Steve's Painting's
complete responses to the discovery requests served on April
17, 2017. Id. at 2. Although Plaintiff states that
Steve's Painting objects to the requested relief, it has
not responded to the present motion. Id. at 4.
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. 22-2. Moreover,
the information that Plaintiff seeks in each interrogatory is
relevant and Steve's Painting must respond. Doc. 22-1. To
the extent that Steve's Painting believes Plaintiff's
interrogatories are objectionable, Steve's Painting
waived its objections by not timely raising them.
Fed.R.Civ.P. 33(b)(4). Furthermore, Steve's Painting
chose not to respond to the motion to compel. Not only did
Steve's Painting 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, Plaintiff's
motion to compel Steve's Painting to produce any and all
documents that are in its possession, custody, or control
that are within the scope of the requests, and to provide
full, complete, and comprehensive responses to the
interrogatories is granted.
also seeks attorney's fees and costs associated with
bringing this motion. Doc. 22 at 3-4. Rule 37(a)(5)(A) of the
Federal Rules of Civil Procedure provides that if a motion to
compel discovery is granted, the court must, after giving an
opportunity to be heard, require the party whose conduct
necessitated the motion to pay the moving party's
reasonable expenses incurred in bringing the motion,
including attorney's fees. Fed.R.Civ.P. 37(a)(5)(A). When a
party makes a claim for fees, however, it is the party's
burden to establish entitlement and document the appropriate
hours and hourly rate. Am. Civil Liberties Union of Ga.
v. Barnes, 168 F.3d 423, 427 (11th Cir. 1999) (citing
Norman v. Housing Auth. of Montgomery, 836 F.2d
1292, 1303 (11th Cir. 1988)).
Plaintiff alleges that although he attempted in good faith to
resolve the disputes without the Court's intervention,
Steve's Painting has not responded to the discovery
requests. Doc. 22 at 4. Steve's Painting also has not
responded at all to Plaintiff's request for
attorney's fees and costs despite its opportunity to do
so. As noted, Steve's Painting's non- response to the
request creates a presumption that the request is unopposed.
Great Am. Assur., 2012 WL 195526, at *3. Plaintiff,
however, has not provided any documentation as to the amount
of time expended on bringing the present motion or the hourly
rate. Accordingly, Plaintiff's request for attorney's
fees and costs is denied without prejudice.
it is hereby
Plaintiff's Motion to Compel Responses to Plaintiff's
First Interrogatories and First Request for Production to
Defendant Steve's Painting Inc. (Doc. 22) is
On or before June 28, 2017, Defendant
Steve's Painting Inc. 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 Plaintiff's
motion (Doc. 22-2).
On or before June 28, 2017, Defendant
Steve's Painting Inc. shall provide full, complete, and
comprehensive responses to the interrogatories ...