Opinion
Case No. 14-20484-BLOOM/VALLE
03-12-2015
SARA ALHASSID, on her own behalf and on behalf of all others similarly situated, Plaintiffs, v. BANK OF AMERICA, N.A., et al., Defendants.
ORDER GRANTING DEFENDANT'S MOTION TO COMPEL
THIS CAUSE is before the Court upon Defendant Nationstar Mortgage LLC's Motion to Compel Plaintiffs to Provide Amended Discovery Responses (ECF No. 179) (the "Motion"). United States District Judge Beth Bloom has referred the case to the undersigned for discovery. See (ECF No. 55). The Court has reviewed the Motion, Plaintiffs' response (ECF No. 183), and Defendant's reply (ECF No. 193), and being otherwise fully advised in the matter, it is hereby ORDERED AND ADJUDGED that the Motion is GRANTED for the reasons discussed below.
DISCOVERY DISPUTE
This case suffers from a history of discovery disputes. Indeed, the parties have previously filed numerous discovery motions and appeared before the undersigned for a lengthy hearing. See (ECF. Nos. 114, 115, 117, 118, 123, 124, 139, 140, 141, 146, 149, 150, 159 and 168). The current Motion, however, appears to be the result of gamesmanship and unnecessary delay by Plaintiffs. Thus, the Motion will be granted.
First, the undisputed factual chronology leading to the Motion weighs in favor of Defendant. On November 14, 2014, Defendant served Plaintiffs with Interrogatories and Requests for Production. See (ECF. Nos. 179-1 at 8, 179-2 at 8, 179-3 at 8 and 179-4 at 8). The parties subsequently agreed to extend Plaintiffs' time to respond to the discovery demands, and Plaintiffs' responses were due by January 16, 2015. See (ECF No. 179-5 at 2). Plaintiffs, however, without further extension from the Court or the Defendant, did not respond to the discovery demands until January 20, 2015. See (ECF Nos. 179-6, 179-7, 179-8 and 179-9).
Noting Plaintiffs' late responses, on January 23, 2015, Defendant emailed Plaintiffs' counsel and, on January 30, 2015, sent a letter explaining Defendant's position that Plaintiffs' responses were both late and improper. See (ECF No. 179-5 at 2 and 179-10 at 2-4). Receiving no response from Plaintiffs, on February 9, 2015, Defendant again emailed Plaintiffs' counsel to follow up on the status of the discovery demands and to request that Plaintiffs "serve amended responses." See (ECF No. 179-11 at 2). On February 10, 2015, Plaintiffs' counsel responded to Defendant and asked Defense counsel if they could "plan to talk" later in the week. See (ECF No. 179-12 at 2). The parties later conferred without success, and Defendant ultimately filed the Motion on February 20, 2015. See (ECF No. 179).
Significantly, in response to the Motion, Plaintiffs state that they "are willing and able to serve better discovery responses" and are "willing to provide more specific and narrative detail with respect to [their] answer to interrogatories." See (ECF No. 183 at 2, 5). Thus, Plaintiffs concede that better responses are in order. Plaintiffs, however, would have been better served and could have more efficiently proceeded if they had actually served amended responses instead of arguing about them. In addition, Plaintiffs' arguments about the Motion's procedural infirmities are unpersuasive.
Plaintiffs' argument that the Motion is untimely because it was filed one day late is disingenuous. The record confirms that Defendant accidentally uploaded the wrong document in the case, but then filed the correct document the next day. Compare (ECF No. 177) with (ECF No. 179). In addition, Plaintiffs' argument that Defendant violated Local Rule 26.1(h)(2) because it did not repeat each request and response in the Motion is also unpersuasive. The problems with Plaintiffs' discovery responses are endemic and, under such circumstances, Defendant was not required to repeat each and every discovery request in the Motion. Lastly, Plaintiffs wrongly assert that Defendant did not meet and confer in advance of filing the Motion. The record reveals that Defendant repeatedly reached out to Plaintiffs' counsel in an effort to address the deficiencies in Plaintiffs' discovery responses and, according to the reply (ECF No. 193 at 5), when the parties ultimately conferred by phone, Plaintiffs would not agree to amend their responses. Thus, Defendant properly filed the Motion.
More specifically, with reference to the document requests, Plaintiffs' boilerplate objections and generalized responses to the Defendant's requests are improper in this District. See, e.g., Adelman v. Boy Scouts of America, 276 F.R.D. 681, 688 (S.D. Fla. 2011) (Goodman, Mag. J.) ("Judges in this District typically condemn boilerplate objections as legally inadequate or 'meaningless.'"); Benfatto v. Wachovia Bank, N.A., No. 08-CIV-60646, 2008 WL 4938418, at *2 (S.D. Fla. Nov.19, 2008) (Simonton, Mag. J. ("[G]eneralized objections, which purport to object to each and every category of documents, are not recognized by this Court."). Indeed, boilerplate objections may also border on a frivolous response to discovery requests. Steed v. Everhome Mortgage Co., 308 Fed. App'x 364, 371 (11th Cir. 2009). Similarly,
Parties shall not recite a formulaic objection followed by an answer to the discovery request. It has become common practice for a party to object on the basis relevance, vague or unduly burdensome and then state that 'notwithstanding the above,' the party will respond to the discovery request, subject to or without waiving such objection. Such objection and answer preserves nothing, and constitutes only a waste of effort and the resources of both the parties and the court. Further, such practice leaves the requesting party uncertain as to whether the question has actually been fully answered, or only a portion of it has been answered.See Guzman v. Irmadan, Inc., 249 F.R.D 399, 400 (S. D. Fla. April 10, 2008). Here, in response to Defendant's document requests, Plaintiffs repeatedly "object to the request on the grounds that it is overbroad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence," yet "subject to said objection and without waiver," Plaintiffs refer Defendant to hundreds of pages of documents that Plaintiffs produced. See, e.g., (ECF No. 179-7 and 179-9). Plaintiffs' responses to the document requests are inappropriate and must be amended. In amending their responses to the document requests, Plaintiffs may make appropriate objections and must affirmatively state, as they have in response to the Motion, whether Plaintiffs have produced all documents in their possession, custody or control responsive to the requests, see (ECF No. 183 at 5), or whether no responsive documents exist, so that Defendant can appropriately assess Plaintiffs' position.
Plaintiffs' responses to Defendant's interrogatories are similarly deficient. First, the interrogatory responses are not verified as required under Rule 33, which provides that a responding party answer "separately and fully . . . under oath" or object, in which case the party must "state the reasons for objection" with "specificity" and "shall answer to the extent the interrogatory is not objectionable." Fed. R. Civ. P. 33(b). A partial answer is not candid and will be deemed evasive, examples will not suffice when a requesting party asks for "all" of anything, and answers such as "including, but not limited to" are simply not acceptable. See, e.g., Dollar v. Long Mfg., N.C., Inc., 561 F.2d 613, 616-17 (5th Cir. 1977). Consequently, Plaintiffs shall supplement and modify their interrogatory answers to comply with the requirements of Rule 33.
To the extent that Plaintiffs refer to documents previously produced, Rule 33(d) requires that Plaintiffs identify the responsive document with specificity. Fed. R. Civ. P. 33(d). --------
Accordingly, by the date set forth below, Plaintiffs shall serve amended responses to the Defendant's Interrogatories and Requests for Production.
RULE 37 ATTORNEY'S FEES AND COSTS
Defendant does not request fees and costs pursuant to Rule 37. Nonetheless, the Court finds that the payment of Defendant's attorneys' fees and costs incurred in connection with the Motion is appropriate.
Rule 37(a)(5) provides for payment of expenses, including attorney's fees, when a court grants a motion to compel discovery. Fed. R. Civ. P. 37(a)(5). The payment of the moving party's expenses is required unless "the opposing party's nondisclosure, response or objection was substantially justified" or "other circumstances make an award of expenses unjust." Id. at 37(a)(5)(A)(ii) and (iii). A court has wide latitude in imposing sanctions for failure to comply with discovery. Maryland Cas. Co. v. Shreejee Ni Pedhi's, Inc., 2013 WL 3353319, *4 (M.D. Fla. July 2, 2013).
Here, Plaintiffs concede that better discovery responses are appropriate. It is also evident that Defendant made significant efforts to address Plaintiffs' discovery objections before filing the Motion. Under these circumstances, the Court finds that the Plaintiffs' position was not substantially justified, and absent the Motion, Plaintiffs would likely have further delayed serving amended responses. Consequently, while not all costs associated with the Motion will be awarded, Defendant should recover some of the expenses incurred in filing the Motion.
The Court is free to use its own knowledge and experience to determine a reasonable fee that would cover Defendant's expenses in connection with the Motion. See Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988) (finding that a court may use its knowledge and experience concerning reasonable and proper legal fees); see also Paxton v. Great American, Ins. Co., No. 08-81431-CIV, 2009 WL 5064054, *8 (S.D. Fla. Dec. 16, 2009) (Rosenbaum, Mag. J.) (ordering payment of expenses incurred in connection with discovery motions where party failed to properly comply with discovery demands). Thus, Plaintiffs shall pay Defendant $2,500 to defray the costs and expenses incurred in filing the Motion.
CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED that Defendant Nationstar Mortgage LLC's Motion to Compel Plaintiffs to Provide Amended Discovery Responses (ECF No. 179) is GRANTED. The parties shall meaningfully meet and confer by March 19, 2015 to help expedite Plaintiffs' responses and avoid unnecessary motion practice. Plaintiffs shall then serve amended responses (with objections as necessary and appropriate) to Defendant's discovery demands by March 26, 2015. Additionally, by April 13, 2015, Plaintiffs shall pay to Defendant $2,500 to defray the costs and expenses incurred in filing the Motion.
DONE AND ORDERED in Chambers at Fort Lauderdale, Florida on March 12, 2015.
/s/_________
ALICIA O. VALLE
UNITED STATES MAGISTRATE JUDGE cc: U.S. District Judge Beth Bloom
All Counsel of Record