United States District Court, S.D. Florida
ALBERTO LEAL, individually and on behalf of all others similarly situated, Plaintiff,
VAN DELL JEWELERS OF ROYAL PALM BEACH, INC., Defendant.
ORDER GRANTING PLAINTIFF'S MOTION TO COMPEL
RESPONSES TO PLAINTIFF'S INTERROGATORIES AND REQUEST FOR
PRODUCTION FDE 291
WILLIAM MATTHEWMAN UNITED STATES MAGISTRATE JUDGE.
CAUSE is before the Court upon Plaintiff, Alberto
Leal's ("Plaintiff) Motion to Compel Responses to
Plaintiffs Interrogatories and Request for Production
("Motion") [DE 29]. This matter was referred to the
undersigned upon an Order referring all discovery matters to
the undersigned for appropriate disposition. See DE
24. On August 19, 2019, the Court entered an Order to Show
Cause to Defendant and Defendant's Counsel [DE 31]. On
August 22, 2019, Defendant filed a Response to Order to Show
Cause [DE 33]. Plaintiff then filed a Reply to Order to Show
Cause [DE 34], and, finally, with permission of the Court,
Defendant filed a Sur-Reply to Plaintiffs Reply to
Defendant's Response to Order to Show Cause [DE 37].
discovery dispute concerns Defendant's dilatory discovery
behavior in this case. As any party is authorized to do under
the applicable rules, Plaintiff served his written discovery
upon Defendant on June 19, 2019. [DE 29, p. 1');">p. 1');">p. 1');">p. 1]. Now,
approximately nine weeks later, Defendant has yet to produce
full and complete discovery responses to Plaintiffs discovery
Court has carefully reviewed Plaintiffs Motion [DE 29] and
each of the related filings. Defendant has been dilatory in
responding to discovery in this case. On July 26, 2019, the
Court granted Defendant an extension until August 8, 2019, to
fully respond to Plaintiffs Requests for Production and
Interrogatories. [DE 27]. That date came and went, and
Defendant failed to produce the discovery as ordered.
August 19, 2019, Plaintiff was therefore forced to file a
Motion to Compel Responses to Plaintiffs Interrogatories and
Request for Production [DE 29]. Upon review of Plaintiffs
Motion, the Court entered an Order to Show Cause directed to
Defendant and Defendant's counsel [DE 29].
August 22, 2019, Defendant filed a response to the Order to
Show Cause which failed to establish good cause for its
dilatory conduct. [DE 33]. In effect, Defendant's
rationale for not timely producing the discovery sought by
Plaintiff sounded more like a series of excuses akin to
"the dog ate my homework." Moreover, in paragraph
11 of the response, Defendant stated that it "has since
served Plaintiff with its responses to Plaintiffs
interrogatories and requests for production." [DE 33, p.
3]. Upon reading Defendant's response, and especially
paragrap. 1');">p. 1');">p. 1');">p. 11 of Defendant's response, the Court was led
to believe by Defendant and Defendant's counsel that all
outstanding discovery had been served on Plaintiffs counsel.
on August 23, 2019, Plaintiff filed a reply [DE 34], in which
Plaintiff advised the Court that Defendant had still not
produced any documents or electronically stored information.
[DE 34, p. 1');">p. 1');">p. 1');">p. 1]. Moreover, when Plaintiffs counsel attempted to
confer with Defendant's counsel on the issues,
Defendant's counsel ignored him. Id. at pp. 1');">p. 1');">p. 1');">p. 1-2.
August 23, 2019, after receiving leave of the Court,
Defendant filed a sur-reply [DE 37]. Defendant explained that
Melissa M. Sims, Esq., is the lead attorney and is
"responsible for the events that have transpired."
Id. at p. 1');">p. 1');">p. 1');">p. 1. According to Defendant, upon receipt of
Plaintiff s reply, Ms. Sims called Plaintiffs counsel to
apologize for the unreturned calls and to discuss the
production of documents. Id. The parties have agreed
to a document production date of August 30, 2019, because the
employee with access to the records is on vacation through
August 27, 2019. Id. at pp. 1');">p. 1');">p. 1');">p. 1-2.
even after numerous motions, responses, replies, and Orders,
Defendant has yet to produce the discovery sought by
Court has had enough of Defendant's dilatory conduct. The
Court is also extremely concerned about the misleading
representation made by Defendant's counsel, Melissa M.
Sims, Esq., and the law firm of Berk, Merchant & Sims,
PLC, that all discovery had been produced when it had not
been produced. See DE 33, p. 3; DE 34, p. 1');">p. 1');">p. 1');">p. 1. In
fact, in Defendant's sur-reply, it admitted that it had
not yet produced all relevant documents. [DE 37, pp. 1');">p. 1');">p. 1');">p. 1-2].
The Court is further frustrated by Defendant's
counsel's failure to confer as required by our Local
Rules and this Court's Order Setting Discovery Procedure
[DE 25]. Not until Plaintiff filed his reply did
Defendant's counsel return Plaintiffs counsel's phone
calls about discovery. [DE 37, p. 1');">p. 1');">p. 1');">p. 1].
on the foregoing, Plaintiffs Motion [DE 29] is
GRANTED. Defendant is ORDERED to produce all
discovery sought by Plaintiff in its Interrogatories and
Requests for Production on or before Friday, August
30, 2019. The Court finds that due to
Defendant's dilatory conduct, all objections to the
Interrogatories and Requests for Production are deemed waived
pursuant to Federal Rule of Civil Procedure 33(b)(4) and
Local Rule 26.1(e) as Plaintiff has not established good
cause for failing to timely object to the discovery requests.
See Turner v. Trans Union, LLC, No. 18-CV-80938,
2019 WL 2709000, at *1 (S.D. Fla. June 21, 2019) (citing
Kennedy v. Batmasian, No. No., 15-81353-CIV, 2016 WL
824571, at *2 (S.D. Fla. Feb. 26, 2016)) ("Failure to
timely object to discovery requests waives a party's
objections to the requests unless good cause has been
shown."). Should Defendant fail to comply with this
Order, the Court will schedule a hearing on further sanctions
and possible contempt.
Rule 37(a)(5)(A) provides that, if a motion to compel
discovery is granted, the Court must require the party whose
conduct necessitated the motion or the attorney advising that
conduct, or both, to pay the movant's reasonable fees in
making the motion unless (1) the movant filed the motion
before attempting in good faith to obtain the discovery with
court action, (2) the opposing party's response or
objection was substantially justified, or (3) other
circumstances make an award of expenses unjust. Fed.R.Civ.P.
37(a)(5)(A). The Court finds that, under the facts of this
case and because none of the exceptions apply, both Defendant
and Defendant's counsel shall be required to pay
Plaintiff's attorney's fees and ...