United States District Court, S.D. Florida
BLOOM UNITED STATES DISTRICT JUDGE
CAUSE is before the Court upon Defendant The Fresh
Market, Inc.'s (“Defendant” or “Fresh
Market”) Motion to Dismiss or for Sanctions for Failure
to Comply with Court Orders and to Compel, ECF No. 
(“Defendant's Motion”), and Plaintiff Inderia
Shields' (“Plaintiff”) Motion to Compel
Defendant Interrogatories, Admissions, Request for Production
and Motion to Sanction, ECF No.  (“Motion to
Compel”). The Court has reviewed the Motions, the
supporting and opposing briefs and is otherwise fully
advised. For the reasons that follow Defendant's Motion
is granted in part and denied in part and the Motion to
Compel is denied.
initiated the above-styled lawsuit in the Circuit Court of
the Seventeenth Judicial Circuit in and for Broward County,
Florida. ECF No. [1-2]. In the Complaint, Plaintiff alleges
that she sustained injuries after she slipped and fell while
at the Fresh Market store located at 12171 W. Sunrise Blvd.,
Plantation, Florida. Id. at 2. At the time of the
filing of the Complaint, Plaintiff was represented by
counsel, Michael W. Wallace, Esq., of the Law Offices of
Robert J. Fenstersheib & Associates, P.A. Counsel has
since withdrawn, and the Plaintiff has elected to proceed in
this action pro se. See ECF Nos. ,
26, 2019, Defendant propounded written discovery upon
Plaintiff. On August 8, 2019, Defendant filed a motion to
compel Plaintiff's responses to its requests for
discovery. See ECF No. . In the motion to
compel, Defendant sought to compel Plaintiff's discovery
responses, to deem its requests for admissions admitted, and
for its attorneys' fees and costs associated with the
time and preparation of drafting and filing the motion.
See generally Id. On September 12, 2019, the Court
granted in part and denied in part Defendant's motion to
compel and ordered the Plaintiff to provide her responses to
Defendant's discovery requests no later than September
25, 2019. ECF No. . Plaintiff then apparently timely
responded to the Defendant's discovery requests.
Defendant has now moved to dismiss this action, arguing that
the Plaintiff has failed to adequately respond to its Request
for Admissions and Interrogatories. See generally
ECF No. .
October 7, 2019, the Plaintiff filed her Motion to Compel,
seeking an order from the Court compelling the Defendant to
respond to her Interrogatories, Requests for Admissions and
Request for Production. ECF No. . Plaintiff also
requested an order of sanctions be imposed against the
Defendant for its alleged failure to respond to her requests
for discovery. Id.
Motion, Defendant argues that the instant action should be
dismissed for the Plaintiff's failure to adequately
respond to its discovery requests. See generally ECF
No. . Specifically, Defendant contends that while
Plaintiff has produced documents, she has not submitted
written responses to the Defendant's Request for
Admissions. Id. at 2. Thus, Defendant argues that
Plaintiff should be required to submit a document confirming
that the documents she produced are intended to be her
responses to the Defendant's Request for Admissions.
Id. Defendant also argues that many of
Plaintiff's responses to its Interrogatories are
insufficient. Id. Therefore, Defendant argues that
Plaintiff's failure to adequately respond to its
discovery requests warrants the dismissal of this action.
Id. Alternatively, Defendant seeks to compel proper
answers to its Interrogatories. Id. at 9. Plaintiff
opposes the relief sought in the Defendant's Motion. ECF
Eleventh Circuit has “articulated a two-part analysis
for determining when an action should be dismissed as a
sanction: There must be both (1) a clear record of willful
conduct and (2) a finding that lesser sanctions are
inadequate. Zocaras v. Castro, 465 F.3d 479, 483
(11th Cir. 2006) (citing Betty K Agencies, Ltd. v. M/V
MONADA, 432 F.3d 1333, 1339 (11th Cir. 2005)
(“dismissal with prejudice is plainly improper unless
and until the district court finds a clear record of delay or
willful conduct and that lesser sanctions are inadequate to
correct such conduct”)); see also Boazman v. Econ.
Lab., Inc., 537 F.2d 210, 212 (5th Cir. 1976)
(“[D]ismissal with prejudice is such a severe sanction
that it is to be used only in extreme circumstances, where
there is a clear record of delay or contumacious conduct, and
where lesser sanctions would not serve the best interests of
justice.”) (quotations omitted). When considering
alternative sanctions, the Eleventh Circuit has counseled
that “[d]ismissal of a case with prejudice is
considered a sanction of last resort, applicable only in
extreme circumstances.” Zocaras, 465 F.3d at
483; see also Boazman, 537 F.2d at 212 (explaining
“that lesser sanctions would suffice in all but the
most flagrant circumstances”).
of an action is the most severe of sanctions and should only
be implemented when lesser sanctions will not suffice. Here,
the Court finds that there are lesser sanctions which will
better serve the interests of justice, rather than the
dismissal of this action. Specifically, the Court can order
the Plaintiff to amend her discovery responses.
Court understands that the Plaintiff has provided documents
presumed to be her responses to the Defendant's Requests
for Admissions. To the extent that the Plaintiff has failed
to provide written responses indicating whether she admits or
denies Defendant's Requests for Admissions, the
Defendant's Motion is granted. The Plaintiff is directed
to provide written responses either admitting or denying the
Defendant's Requests for Admissions or confirming which
documents produced are intended to be responses to the
Defendant's First Request for Admissions.
following review of the responses submitted by the Plaintiff
to the Defendant's Interrogatories, the Court agrees with
the Defendant that many of the Plaintiff's responses are
insufficient or incomplete. The Court makes the following
Interrogatory No. 3:
No. 3 asks the following:
Did you have any physical infirmity, disability, sickness or
consume alcohol/medications at the time of or prior to the
incident described in the complaint? If so, what was the
nature of the infirmity, disability, sickness, consumption?
In answering please state whether you consumed any alcoholic
beverages or had taken any drugs or medication within twelve
hours before the time of the incident described in the
complaint and if so, state the type and amount of alcoholic
beverages, drugs or medication which were consumed and when
and where you consumed them.
ECF No. , at 2-3. Plaintiff's response to
Interrogatory No. 3 is simply “no.” Id.
at 3. Defendant argues that this answer is insufficient as
Plaintiff fails to identify prior injuries, despite
acknowledging that she was involved in personal injury claims
against other parties. Id. at 3. The Defendant also
argues that this information is necessary to permit it to
advance fact discovery and develop its defenses to
Plaintiff's claim. Id.
Court finds that Plaintiff's response to Interrogatory
No. 3 is deficient as it relates to the issue of whether
Plaintiff consumed alcoholic beverages, drugs or medication
within twelve hours before the incident alleged in
the Complaint. As it relates to the first question posed in
Interrogatory No. 3-whether Plaintiff has “any physical
infirmity, disability, sickness or consume
alcohol/medications at the time of or prior to the incident
described in the complaint“, Plaintiff has sufficiently
the Defendant's Motion as it relates to Interrogatory No.
3 is GRANTED IN PART. Plaintiff must amend
her response to Interrogatory No. 3 to provide the
information as to whether she consumed alcoholic beverages,
drugs or medication within twelve hours before the
incident alleged in the Complaint.
Interrogatory No. 4:
No. 4 asks the following:
Have you ever made a claim or filed a lawsuit against anyone
on behalf of yourself or any member of your family other than
this lawsuit? If so, state the state and county where claim
was made, the date thereof and identify all parties to the
action or proceeding.
ECF No. , at 3. Plaintiff's response to Interrogatory
No. 4 was “[y]es, Publix Supermarket.
Florida/Broward.” Id. Defendant argues that
Plaintiff has failed to specify the dates of the claims and
the number of claims she had and that the requested
information is necessary to permit Defendant to conduct
discovery to obtain information regarding Plaintiff's
prior claims in order to develop its defenses. Id.
Court agrees with the Defendant that Plaintiff's response
to Interrogatory No. 4 is deficient. Plaintiff has failed to
provide the date the claim against Publix was made, nor has
she identified the parties to the action referenced in her
the Defendant's Motion as it relates to Interrogatory No.
4 is GRANTED. Plaintiff must amend her
response to include the date the action against Publix
Supermarket was filed and must identify all parties to the
action. The Court also notes that to the extent Plaintiff has
filed more than one lawsuit on behalf of herself or any
member of her family, she must also provide all details
requested in Interrogatory No. 4 for each action filed.