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Leal v. Van Dell Jewelers of Royal Palm Beach, Inc.

United States District Court, S.D. Florida

August 26, 2019

ALBERTO LEAL, individually and on behalf of all others similarly situated, Plaintiff,
v.
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.

         THIS 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].

         I. BACKGROUND

         This 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 requests.

         The 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.

         On 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].

         On 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.

         However, 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.

         On 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.

         Thus, even after numerous motions, responses, replies, and Orders, Defendant has yet to produce the discovery sought by Plaintiff.

         II. ANALYSIS

         The 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].

         Based 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.

         Finally, 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 ...


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