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Velez v. Bank of America, N.A.

United States District Court, M.D. Florida, Tampa Division

October 4, 2019

GEORGE VELEZ and NANCY VELEZ on behalf of themselves and those similarly situated, Plaintiffs,
v.
BANK OF AMERICA, N.A. and SPECIALIZED LOAN SERVICING, LLC, Defendants.

          ORDER

          SEAN P. FLVM, UNITED STATES MAGISTRATE JUDGE

         This cause comes before the Court upon Defendant Specialized Loan Servicing, LLC's (“Defendant”) Request for Sanctions, and in the Alternative, Third Motion to Compel (Doc. 84). Plaintiffs have not responded to the motion, and the time to do so has passed. See L o c al Rule 3.01(b), M.D. Fla. (party opposing motion must file response in opposition within 14 days after servi ce). Therefore, the motion is deemed unopposed. See Legends Collision Ctr., LLC v. State Farm Mut. Auto. Ins. Co., No. 6:14-cv-6006-ORL-31TBS, 2016 WL 3406409, at *1 (M.D. Fla. June 21, 2016) (stating that a party's failure to respond to a motion indicates the motion is unopposed).

         Defendant initially served Interrogatories and Requests for Production on Plaintiffs on September 11, 2018. After numerous attempts to obtain Plaintiffs' discovery responses, Defendant filed its first Motion to Compel Discovery Responses from the Plaintiffs (Doc. 56), to which Plaintiffs failed to respond. This Court granted the motion, ordered Plaintiffs to serve Defendant with the requested discovery within 14 days of the date of the Order, and granted Defendant's request for costs and attorney's fees incurred in filing the motion (Doc. 57).

         Plaintiffs, however, failed to serve Defendant with the discovery within the 14 day deadline, and Defendant filed its Second Motion to Compel Discovery Responses from the Plaintiffs and Request for Sanctions (Doc. 60). This time Plaintiffs responded to the motion and indicated that they “do not contest the Defendant's right to discovery and acknowledge the Court's Order” (Doc. 63). Plaintiffs further indicated that “[i]n an effort to show good faith partial compliance with this court's order, ” Plaintiffs' responses to the Request for Production would be served on February 5, 2019, with the caveat that the responses would be unsorted and not linked to each particular request as Plaintiffs need more time to sort the documents (Doc. 63). Defendant confirmed in its Reply that, as promised, Plaintiffs provided “a document dump of materials” as well as “what appears to be a joint response to [Defendant's] First Set of Interrogatories” (Doc. 65). Defendant detailed in its Reply the insufficiency of the discovery responses in this format including the fact that there was no discernable way to determine how the production of numerous folders, containing hundreds of pages, actually related to Defendant's Interrogatories or Request for Production.

         The Court granted Defendant's Second Motion to Compel and ordered Plaintiffs to serve Defendant with complete discovery responses, including proper reference to any documents upon which they rely, within 30 days of the date of the Order (Doc. 68). T he Court additionally ordered that, within 45 days of the date of the Order, Defendant shall file with the Court a status report regarding Plaintiffs' compliance, or lack thereof, with the Order, and that, if Defendant reports continued failure to comply with the Court's Orders, Plaintiffs shall have 14 days from the filing of Defendant's status to show cause why the Court should not recommend more stringent sanctions to the District Judge such as dismissal of the case pursuant to Federal Rule of Civil Procedure 37(b)(2). The Court also granted Defendant's request for costs and attorney's fees incurred in filing the Second Motion to Compel.[1]

         Defendant subsequently filed a status report regarding Plaintiffs' continued non-compliance stating that Plaintiffs had provided nothing to Defendant or made any contact with Defendant's counsel since entry of the Court's most recent Order (Doc. 73). The Court then entered a Show Cause Order directed to Plaintiffs as to why the action should not be dismissed for failure to comply with the Court's Orders and set a Show Cause Hearing, which the Court held on May 16, 2019 (Doc. 75). At the hearing, the Court extensively discussed Plaintiffs' obligations to respond to discovery requests and comply with Court orders. In addition, the Court went through each discovery request with Plaintiffs and explained the deficiencies in their responses (Doc. 80). The Court then entered an Order directing Plaintiffs to serve complete discovery responses, including proper reference to any documents upon which they rely, by June 6, 2019, and advising that failure to comply may result in a recommendation to the District Judge that this case be dismissed (Doc. 79). The Court also ordered the parties to submit a joint status report by June 13, 2019, regarding compliance with the Order.

         On June 13, 2019, the parties filed a joint status reporting partial compliance with the Order and indicating that, while some of the responses did a better job at identifying what was actually being produced in response to the particular request, there were still a number of issues with both of Plaintiffs' updated responses (Doc. 82 at ¶ 8; Doc. 83 at ¶ 2). Defendant's counsel attempted to resolve the outstanding issues with Plaintiffs and filed a Supplemental Status Report regarding the outstanding insufficiencies (Doc. 83).

         Defendant then filed the Request for Sanctions, and in the Alternative, Third Motion to Compel (Doc. 84) now before the Court. Defendant seeks an order dismissing Plaintiffs' Amended Complaint pursuant to Federal Rule of Civil Procedure 37(b)(2)(A)(iii) & (v) and 41(b) due to Plaintiffs' continued pattern of willful disregard and failure to comply with the Court's Orders in this case. In the alternative, Defendant requests an order requiring Plaintiffs to provide complete discovery responses and enter an amended scheduling order providing Defendant the ability to depose Plaintiffs once they provide complete discovery responses and extending the dispositive motion, pre-trial, and trial deadlines.[2] Defendant also seeks an award of attorney's fees and costs for bringing the motion.

         The Federal Rules of Civil Procedure authorize that “[i]f a party ... fails to obey an order to provide or permit discovery, ” the district court “may make issue further just orders” including “dismissing the action or proceeding in whole or in part.” Fed.R.Civ.P. 37(b)(2)(A)(v). The Eleventh Circuit has recognized that “[d]ismissal with prejudice is the m o st sever e R u le 3 7 sanction and is not favored ... [b]ut, dismissal may be appropriate when a plaintiff's recalcitrance is due to wilfulness, bad faith or fault.” Phipps v. Blakeney, 8 F.3d 788, 790 (11th Cir. 1993). Dismissal is not an abuse of discretion “[w]hen a party demonstrates a flagrant disregard for the court and the discovery process.” Aztec Steel Co. v. Fla. Steel Corp., 691 F.2d 480, 481 (11th Cir. 1982). On the other hand, a “[v]iolation of a discovery order caused by simple negligence, misunderstanding, or inability to comply will not justify a Rule 37 ... dismissal.” Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1542 (11th Cir. 1993). Dismissal is appropriate only as a last resort -- when less drastic but equally effective sanctions could have been fashioned to ensure compliance with the court's orders. Mene v. Marriott Int'l, Inc., 238 Fed.Appx. 579, 581-82 (11th Cir. 2007) (citing Aztec Steel, 691 F.2d at 481-82).

         Upon due consideration, the Court finds that dismissal would be an inappropriate sanction at this time. Although Plaintiffs have not yet fully satisfied their discovery obligations, they have provided answers to Defendant's Interrogatories and tendered discovery materials to Defendant in response to Defendant's Request for Production. In addition, due to the extension of the discovery deadline to November 1, 2019, there is still time to address Defendant's remaining issues regarding Plaintiffs' responses. As such, lesser sanctions are appropriate such as costs and attorney's fees associated with bringing its motion. See, e.g., U.S. v. Doletzky, No. 8:18-cv-780-T-36CPT, 2019 WL 2232223 (M.D. Fla. May 23, 2019). The Court reiterates that failure to comply with the Court's Orders may result in more severe sanctions such as a recommendation to the District Judge of dismissal of the case.

         With that in mind, the Court now turns the outstanding discovery issues raised by Defendant.

         Interrogatories

         Request 1: Defendant objects to Plaintiffs' response that paragraph 43 of the Amended Complaint (Doc. 29) “does not indicate the vacant property registration fee.” See Doc. 82-1 at 1. Paragraph 43 of the Amended Complaint does state, in pertinent part, “Subject to further discovery, the loan charges sought by SLS include the December 22, 2016 Vacant Property Registration fee.” (Doc. 29 at ¶ 43). As such, Plaintiffs need to revise their response to Request #1.

         Request 8: If Plaintiffs intend to call the individuals listed as witnesses at trial, P la i n t i ffs must provide contact ...


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