United States District Court, M.D. Florida, Fort Myers Division
MIRANDO UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court upon review of Defendant's
Motion to Compel Discovery (Doc. 49) filed on January 16,
2018. Defendant alleges that on October 19, 2017, Defendant
requested Plaintiff to produce the documents identified in
her Rule 26 disclosures, but she did not respond to the
request. Doc. 49 at 2. On November 28, 2017, Defendant served
its first request for production of documents on Plaintiff.
Id. Defendant alleges Plaintiff did not respond to
the request. Id. at 3. Although Defendant's
counsel attempted to resolve the issues by conferring with
Plaintiff's counsel, Plaintiff has not filed a response
to Defendant's discovery request. Id. at 3-4.
Accordingly, Defendant filed the present motion, seeking the
Court to compel Plaintiff to respond to its first request for
production of documents, sanction Plaintiff and award
reasonable attorney's fees associated with this motion.
Id. at 4. Plaintiff has not responded to the present
motion. See genera ly docket.
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
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). 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). Furthermore, if a party fails to respond in
writing within the time permitted, “it is appropriate
for the court to find that the party's objections are
waived, unless the court finds good cause and excuses that
failure.” Bailey v. City of Daytona Beach
Shores, 286 F.R.D. 625, 627 (M.D. Fla. 2012).
review of the request for production of documents, the Court
finds the requested documents are relevant to this
proceeding. Doc. 49-3. To the extent Plaintiff believes the
request is objectionable, she waived her objections by not
timely responding to Defendant's discovery request.
Bailey, 286 F.R.D. at 627. Plaintiff further chose
not to respond to the present motion, creating 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, the Court will
grant Defendant's motion to compel and compel Plaintiff
to produce any and all documents within her possession,
custody or control in response to Defendant's First
Request for Production of Documents and Electronically Stored
Information to Plaintiff (Doc. 49-3).
also seeks attorney's fees and costs associated with
bringing this motion. Doc. 49 at 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, 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)).
counsel for Defendant alleges that although he attempted in
good faith to resolve the disputes without the Court's
intervention, Plaintiff has not responded to Defendant's
discovery request, necessitating filing of the present
motion. Doc. 49 at 1-4. Plaintiff also has not objected to
Defendant's request for attorney's fees and costs,
creating a presumption that the request is unopposed.
Great Am. Assur., 2012 WL 195526, at *3.
Nonetheless, Defendant has not provided any documentation as
to the amount of time expended on bringing the present motion
or the hourly rate. Accordingly, Defendant's request for
attorney's fees and costs is denied without prejudice.
Defendant may file a renewed motion for attorney's fees
and costs consistent with the directives in this Order, if it
chooses to do so.
the parties' mediation deadline was February 7, 2018.
Doc. 42 at 1. The Court will direct the parties to file a
mediation report concerning the outcome of the parties'
it is hereby
1. Defendant's Motion to Compel Discovery (Doc. 49) is
2. On or before March 1, 2018, Plaintiff
shall produce to produce any and all documents within her
possession, custody or control in response to Defendant's
First Request for Production of Documents and Electronically
Stored Information to Plaintiff (Doc. 49-3).
3. If Plaintiff is unable to produce documents responsive to
the request for production of documents (Doc. 49-3), she must
explain to the Court why she is unable to provide them.