United States District Court, M.D. Florida, Tampa Division
GEORGE VELEZ and NANCY VELEZ on behalf of themselves and those similarly situated, Plaintiffs,
BANK OF AMERICA, N.A. and SPECIALIZED LOAN SERVICING, LLC, Defendants.
P. FLVM, UNITED STATES MAGISTRATE JUDGE
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).
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
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.
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.
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.
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).
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. Defendant also seeks an award of
attorney's fees and costs for bringing the motion.
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).
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.
that in mind, the Court now turns the outstanding discovery
issues raised by Defendant.
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.
8: If Plaintiffs intend to call the individuals listed as
witnesses at trial, P la i n t i ffs must provide contact