Opinion

Spoerer v. King

Court
District Court, M.D. Florida
Filed
Dec 12, 2019
Cited by
0 cases
Authority
More cited than 19.7%

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

CLAUDIA SPOERER,

Plaintiff,

v. Case No: 6:19-cv-1216-Orl-41GJK

KROGER SPECIALTY PHARMACY,

LLC,

Defendant.

ORDER1

This Americans with Disabilities Act case comes before the Court without a

hearing on Defendant’s Motion to Compel Plaintiff to Provide Answers to First Set of

Interrogatories, to Produce Documents in Response to First Request for Production of

Documents, and to Provide Rule 26 Disclosures (Doc. 34). Plaintiff has not filed a

response to the motion and the time within to do so has expired. When a party fails to

respond, that is an indication that the motion is unopposed. Foster v. The Coca-Cola Co.,

No. 6:14-cv-2102-Orl-40TBS, 2015 WL 3486008, at *1 (M.D. Fla. June 2, 2015); Jones v.

Bank of Am., N.A., 564 Fed. A’ppx 432, 434 (11th Cir. 2014)2 (citing Kramer v. Gwinnett

Cty., 306 F. Supp. 2d 1219, 1221 (N.D. Ga. 2004); Daisy, Inc. v. Polio 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); Brown v.

Platinum Wrench Auto Repair, Inc., No. 8:10-cv-2168-T-33TGW, 2012 WL 333803, at *1

1 Judge Smith is temporarily handling this case in the place of Judge Kelly.

2 “Unpublished opinions are not considered binding precedent, but may be cited as persuasive

authority.” CTA11 Rule 36-2.

(M.D. Fla. Feb. 1, 2012) (after party failed to respond, court treated motion for summary

judgment as unopposed). The Court proceeds on the basis that this motion is unopposed.

Suit was filed on July 2, 2019; the parties held their initial Federal Rule of Civil

Procedure 26(f) conference on October 1, 2019; and Defendant served its first

interrogatories and requests for production on October 3, 2019 (Docs. 1; 21 at 2; 34, ¶ 2).

As of November 11, 2019, Plaintiff had not filed her Rule 26(a)(1) initial disclosures or

answered the interrogatories and requests for production (Doc. 34, ¶ 10). By rule,

Plaintiff’s initial disclosures were due by October 15, 2019, FED. R. CIV. P. 26(C), and her

responses to the interrogatories were due by November 2, 2019, FED. R. CIV. P. 33(b)(2),

34(b)(2)(A). Defendant granted Plaintiff extensions to November 27, 2019, but the

discovery was still not forthcoming. On this record, the motion to compel is GRANTED.

Plaintiff shall, within ten days from the rendition of this Order, serve her full and complete

initial disclosures and answers to the interrogatories, and produce the information

requested by Defendant.

Federal Rule of Civil Procedure 37(a)(5) provides that if a motion to compel

discovery 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.” Still, the court will not order this payment if:

(i) the movant filed the motion before attempting in good faith

to obtain the disclosure or discovery without court action;

(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). A party’s objection to discovery is substantially justified if

“reasonable people could differ as to the appropriateness of the contested action.”

Maddow v. Procter & Gamble Co., Inc., 107 F.3d 846, 853 (11th Cir. 1997) (citation

omitted).

After due consideration, the Court finds: (1) Plaintiff has violated the Federal Rules

of Civil Procedure; (2) Plaintiff has failed to fulfill her discovery obligations to Defendant;

(3) Defendant’s motion to compel discovery is unopposed; (4) Plaintiff was given an

opportunity to respond to Defendant’s request for attorney’s fees and costs and did not

respond; and (5) none of the exceptions in Rule 37(a)(5)(A)(i)-(iii) apply. Accordingly,

Defendant is AWARDED its reasonable attorney’s fees and costs for prosecuting the

motion to compel. Defendant has 14 days from the rendition of this Order to file its

application for fees and costs and then Plaintiff will have 14 days to respond. The parties

may avoid this procedure by stipulating to the amount of attorney’s fees and costs to be

paid to Defendant.

DONE and ORDERED in Orlando, Florida on December 12, 2019.

THOMAS B. SMITH

United States Magistrate Judge

Copies furnished to:

Counsel of Record

Unrepresented Parties

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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