United States District Court, M.D. Florida, Tampa Division
P. FLVM UNITED STATES MAGISTRATE JUDGE.
cause comes before the Court upon Defendant Livernois'
Motion to Compel Plaintiff to Serve Complete Initial
Disclosures and Respond to Discovery (Doc. 32). Plaintiff has
not responded to the motion, and the time to do so has
expired. See L.R. 3.01(b), M.D. Fla. (party opposing
motion must file response in opposition within 14 days after
service). 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
to compel discovery are committed to the sound discretion of
the trial court. See Commercial Union Ins. Co. v.
Westrope, 730 F.2d 729, 731 (11th Cir. 1984). Rule 26(b)
of the Federal Rules of Civil Procedure governs the scope of
discovery and provides, in relevant part, that
[p]arties may obtain 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 be discoverable.
Fed. R. Civ. P. 26(b)(1). Upon reviewing the outstanding
discovery requests, the Court grants the motion to compel as
to Request Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 14, 15, 16 and 17,
because the Court finds that those requests seek documents
relevant to Plaintiff's claims and are proportional to
the needs of the case. With respect to Request Nos. 10 and
12, the motion to compel is granted only to the extent that
Plaintiff shall provide any and all documents relating to
medical treatment or medication provided to Plaintiff to
treat any injury allegedly sustained as a result of Defendant
Livernois' wrongful conduct. In addition, Plaintiff shall
provide any and all documents relating to medical treatment
or medication provided to Plaintiff to treat any wrist injury
from 2009 to present. The motion to compel as to Requests No.
10 and 12 is denied as either irrelevant or not proportional
to the needs of the case. Likewise, the motion to compel as
to Request Nos. 11 and 13 is denied as either irrelevant or
not proportional to the needs of the case.
addition, the Federal Rules of Civil Procedure require
Plaintiff to disclose “a computation of each category
of damages claimed by the disclosing party-who must also make
available for inspection and copying as under Rule 34 the
documents or other evidentiary material, unless privileged or
protected from disclosure, on which each computation is
based, including materials bearing on the nature and extent
of injuries suffered.” Fed.R.Civ.P. 26(a)(1)(A)(iii).
Plaintiff is ordered to supplement her initial disclosure to
provide a complete calculation of her economic damages.
Plaintiff is not required to provide a calculation for her
noneconomic damages; however, the failure to do so may result
in Plaintiff being precluded from suggesting an amount or
range to the finder of fact. See, e.g. Nagele v. Delta
Air Lines, Inc., No. 17-22559-CIV, 2017 WL 6398337, at
*2 (S.D. Fla. Dec. 13, 2017) (holding that plaintiff was not
required to provide a computation for non-economic damages
where she had stipulated that she did not intend to ask the
jury for a specific dollar amount or range); Gray v.
Florida Dept. of Juvenile Justice, No.
3:06-cv-990-J020MCR, 2007 WL 295514, at *2 (M.D. Fla. Jan.
30, 2007) (holding that plaintiff was not required to provide
defendant with a calculation of her suggested compensatory
damages for emotional distress but she would be precluded
from suggesting to the jury an amount of compensatory damages
for her emotional distress).
Livernois also requests costs and attorney's fees
associated with bringing its motion. Rule 37(a)(5), Federal
Rules Civil Procedure, provides the framework for
consideration of Defendant's request and provides, in
If the motion is granted __ or if the disclosure or requested
discovery is provided after the motion was filed __ the court
must, after giving an opportunity to be heard, require the
party ... whose conduct necessitated the motion, the party or
attorney advising such conduct, or both to pay to the
movant's reasonable expenses incurred in making the
motion, including attorney's fees. But the court must not
order this payment if:
(i) the movant filed the motion before attempting in good
faith to obtain the disclosure or discovery without court
(ii) the opposing party's nondisclosure, response, or
objection was substantially justified; or
(iii) other circumstances make an award of expenses unjust.
Fed. R. Civ. P. 37(a)(5)(A); see also Devaney v.
Cont'l Am. Ins. Co., 989 F.2d 1154, 1159 (11th Cir.
1993) (noting that “[t]he rule was toughened in 1970 to
mandate that expenses be awarded unless the conduct of the
losing party or person is found to have been substantially
justified.”). “Substantially justified means that
reasonable people could differ as to the appropriateness of
the contested action.” Hill v. Emory Univ.,
346 Fed.Appx. 390, 392 (11th Cir. 2009) (per curiam) (quoting
Maddow v. Procter & Gamble Co., Inc., 107 F.3d
846, 853 (11th Cir. 1997)) (internal quotation marks
omitted). “The burden of establishing substantial
justification is on the party being sanctioned.”
Telluride Mgmt. Sols., Inc. v. Telluride Inv. Grp.,
55 F.3d 463, 466 (9th Cir. 1995), abrogated on other
grounds by Cunningham v. Hamilton Cty., 527 U.S. 198
(1999). There being no response filed by Plaintiff, much less
a substantial justification for her failure to timely respond
to Defendant's discovery requests, an award of expenses