Opinion
6:23-cv-580-RBD-LHP
07-10-2023
JAMES TURNER, Plaintiff, v. NATIONAL FIRE & MARINE INSURANCE COMPANY, Defendant
ORDER
LESLIE HOFFMAN PRICE, UNITED STATES MAGISTRATE JUDGE.
This cause came on for consideration without oral argument on the following motion filed herein:
MOTION: DEFENDANT'S SHORT-FORM MOTION TO COMPEL DISCOVERY (Doc. No. 30)
FILED: June 29, 2023
THEREON it is ORDERED that the motion is GRANTED.
Defendant National Fire & Marine Insurance Company seeks to compel Plaintiff James Turner to: (1) serve mandatory initial disclosures; (2) respond to Defendant's Request for Production and Interrogatories served on May 17, 2023; and (3) provide dates for Plaintiff's deposition. Doc. No. 30. According to Defendant, Plaintiff has provided none of the above, and has refused to participate in discovery. Id. at 2. Defendant also seeks to recover reasonable fees and expenses for filing the motion pursuant to Fed.R.Civ.P. 37(a)(5)(A). Id.
Plaintiff, who at all times has been represented by counsel, has not responded to the motion, and his time for doing so has expired. See Doc. No. 26 ¶ 5 (providing that opposition briefing to a discovery motion must be filed no later than five days after the motion). See also Fed.R.Civ.P. 6(a)(1)(C). Accordingly, the Court deems the motion to be unopposed in all respects. See Doc. No. 26 ¶ 5 (stating that failure to file a timely response will result in the discovery motion being deemed unopposed). See also Westchester Surplus Lines Ins. Co. v. Paramount Disaster Recovery, LLC, No. 6:18-cv-1738-Orl-37DCI, 2019 WL 5294804, at *1 (M.D. Fla. Apr. 19, 2019) (“The Court routinely grants motions as unopposed where the opposing parties have not filed a response in opposition to the motion.”); Bercini v. City of Orlando, No. 6:15-cv-1921-Orl-41TBS, 2016 WL 11448993, at *2 (M.D. Fla. Sept. 28, 2016) (granting in full unopposed motion to compel); Daisy, Inc. v. Pollo Operations, Inc., No. 2:14-cv-564-FtM-38CM, 2015 WL 2342951, at *1 (M.D. Fla. May 14, 2015) (when defendant did not respond court could consider motion to compel unopposed).
Upon review of the unopposed motion, and the related discovery attached, the Court finds Defendant's motion well taken. The Court further finds sanctions under Federal Rule of Civil Procedure 37 warranted. Rule 37 provides that when, as here, a motion to compel is granted, “the court must, after giving an opportunity to be heard, require the party . . . whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” Fed.R.Civ.P. 37(a)(5)(A) (emphasis added). While the rule permits the Court to decline to award sanctions under certain circumstances, Fed.R.Civ.P. 37(a)(5)(A)(i)-(iii), Plaintiff has been provided an opportunity to be heard, and has not presented any information or argument suggesting that those circumstances apply here.
Accordingly, it is ORDERED as follows:
1. Defendant's Short-Form Motion to Compel Discovery (Doc. No. 30) is GRANTED.
2. On or before July 24, 2023, Plaintiff shall serve on Defendant his mandatory initial disclosures. See Fed.R.Civ.P. 26(a)(1).
3. On or before July 24, 2023, Plaintiff shall produce all documents in his current possession, custody, or control responsive to Defendant's First Request for Production. See Doc. No. 30-1, at 1-9.
4. On or before July 24, 2023, Plaintiff shall serve on Defendant complete, sworn answers to Defendant's First Set of Interrogatories. See Doc. No. 301, at 12-19.
5. All objections to the discovery at issue have been waived by the failure to timely respond to the motion to compel. See, e.g., Jackson v. Geometrica, Inc., No. 3:04-cv-640-J-20HTS, 2006 WL 213860, at *1 (M.D. Fla. Jan. 27, 2006) (objections not addressed in response to a motion to compel are deemed abandoned); Bercini, 2016 WL 11448993, at *2 (same); LIMU Co., LLC v. Burling, No. 6:12-cv-347-Orl-TBS, 2013 WL 1482760, at *1 (M.D. Fla. April 11, 2013) (same).
6. On or before July 24, 2023, the parties are DIRECTED to meet and confer on the selection of a date for Plaintiff's deposition, with such deposition to take place within sixty (60) days from the date of this Order. If Plaintiff fails to meet and confer with Defendant by July 24, 2023, then Defendant may unilaterally notice Plaintiff's deposition. See Middle District Discovery (2021) § II.A.1.
7. On or before July 24, 2023, Plaintiff and Defendant shall meet and confer in good faith to determine an amount of reasonable fees and expenses that should be awarded to Defendant for the filing of the present motion. The parties shall file a joint notice of the amount agreed upon by 5:00 p.m. on July 25, 2023. If the parties are unable to reach an agreement by that time, Defendant shall file a motion, supported by appropriate documentation, for reasonable fees and expenses incurred in filing the present motion. That motion shall be filed by August 1, 2023. Given the lack of response both to the discovery and to the present motion, any award of fees and expenses shall be levied jointly and severally against both Plaintiff and his counsel.
8. Plaintiff and Plaintiff's counsel are advised that failure to comply with this Order may result in the imposition of sanctions. See Fed. R. Civ. P. 37(b).
DONE and ORDERED.