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.
ORDER
1
On March 18, 2020, the Court held a hearing (Docs. 51, 53) on Defendant’s Motion
to Compel Plaintiff’s Deposition and Motion for Brief Extension of Time to Conduct
Mediation (Doc. 48) and Defendant’s Motion for Sanctions (Doc. 49). The motion to
compel will be granted in part and denied in part.2
Defendant moves to compel Plaintiff to provide dates for her deposition and to
extend the mediation deadline from March 16 to May 5, 2020, so that Defendant can take
Plaintiff’s deposition in advance of the mediation (Doc. 48, at 1, 2, 7). Defendant contends
that despite emails and attempts to communicate with Plaintiff’s counsel by phone,
Plaintiff failed to provide dates for her deposition (Id., at 3, 6). Plaintiff counters that
Defendant’s attorneys did not confer with him as required by Local Rule 3.01(g) before
filing the motion and that he was not informed of Defendant’s desire to depose Plaintiff
1 COOL HAND LUKE (Warner Bros. 1967).
2 A report and recommendation will be entered on the motion for sanctions.
before mediation until defense counsel contacted him regarding the motion to compel
(Doc. 52, at 4-6).
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).
The mediation deadline was set for March 16, 2020 (Doc. 25, at 2). On November 27,
2019, Defendant filed a motion to compel Plaintiff to provide answers to its
interrogatories, to produce documents in response to its requests for production, and to
provide Rule 26 disclosures (Doc. 34). Plaintiff did not respond to the motion which was
granted on December 12, 2019 (Doc. 35). While Plaintiff provided the discovery that day,
the interrogatories were not signed under oath (Doc. 54, ¶ 27).
Plaintiff represents that the defense first requested deposition dates in an October
2nd email (Doc. 54, ¶ 28). Her attorney says he responded to the email and proposed
dates in the January/February 2020 timeframe (Id.). According to Defendant’s Case
Chronology provided at the hearing,3 the first time Defendant’s lawyer contacted
Plaintiff’s lawyer regarding dates to depose Plaintiff was November 14, 2019 (Doc. 48-4,
at 2), six weeks after the parties’ Rule 26(f) conference. At the time, Defendant proposed
dates in mid-January (Id.). Plaintiff’s lawyer does not claim to have responded to the
November 14th request (Id.; Hearing).
Defense counsel waited over two months, until February 12, 2020, to once again
contact Plaintiff’s attorney about setting Plaintiff’s deposition. At that time, Defendant’s
lawyer sent an email to Plaintiff’s lawyer proposing dates in late February (Doc. 48-14, at
3 Plaintiff filed a response on March 23, 2020 in which she identifies the statements in the
Chronology which she disputes (Doc. 54).
2). The email included an ultimatum: “Please let us know immediately if any of these
dates work for you. Otherwise, we will have to take it up with the Magistrate Judge.” (Id.).
According to the Chronology, defense counsel’s legal assistant telephoned the next day
and was informed that Plaintiff’s lawyer was out of the office, but that Plaintiff’s availability
would be confirmed when the attorney returned on February 17th (Chronology, ¶ 53).
Plaintiff’s attorney disputes this representation but does not specify what the
disagreement was regarding setting the deposition (Doc. 54, ¶ 53). An email from
Plaintiff’s counsel’s assistant dated February 17th states that she would verify the dates
Plaintiff’s lawyer was available for the deposition (Doc. 48-15, at 2). Thirty minutes after
this email, Defendant responded with another ultimatum: “If we do not hear back by 5 PM
today with both the notice of mediation and the availability for the deposition, we will be
forced to move to extend the deadline of mediation and reschedule, and move to compel
Plaintiff’s deposition.” (Id.). The only additional communication before the motion to
compel was a notice of mediation filed by Plaintiff’s attorney (Doc. 48; Chronology).
In most situations, including this one, Local Rule 3.01(g) requires the moving party
to certify that it has conferred with opposing counsel and indicate whether opposing
counsel opposes the relief sought in the motion. Defendant’s Chronology confirms that no
conference occurred before Defendant filed the motion to compel. Although the Case
Management and Scheduling Order (“CMSO”) specifically states that ultimatums in letters
are not what is envisioned by Rule 3.01(g) (Doc. 25, at 4), it appears that is what
Defendant’s counsel sent before the motion was filed.
Plaintiff’s attorney is also at fault. He failed in his duty to timely respond to
communications from opposing counsel and to request a Rule 3.01(g) conference. The
CMSO provides: “Counsel must respond promptly to inquiries and communications from
opposing counsel.” (Doc. 25, at 4, citing Board of Governors of the Florida Bar,
¶ 6.10). The attorneys for both parties told the Court at the
hearing that the motion to compel could have been avoided if one side had called the
other (Hearing). At the hearing, the parties also agreed to the schedule set forth below
(Hearing). So, the motion to compel resulted from the parties’ failure to communicate.
Now, Defendant requests an award of attorney’s fees and costs associated with
the motion to compel (Doc. 48, at 8-10).4 This request is made pursuant to FED. R. CIV. P.
37, 28 U.S.C. § 1927, and the Court’s inherent power (Id.). Rule 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). The Court finds that Defendant filed the motion to compel before attempting in
good faith to obtain the discovery without judicial intervention and therefore, fees and
costs are not recoverable under Rule 37.
4 Defendant also argues that the amended complaint should be dismissed but the facts do not
warrant this sanction (Doc. 48, at 8).
Title 28 U.S.C. § 1927 provides that “[a]ny attorney ... who so multiplies the
proceedings in any case unreasonably and vexatiously may be required by the court to
satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred
because of such conduct.” The Court’s inherent power and § 1927 are considered
together because “the court’s inherent power to issue sanctions for vexatious conduct by
attorneys does not reach further than § 1927.” Amlong & Amlong, P.A. v. Denny’s, Inc.,
500 F.3d 1230, 1239 (11th Cir. 2007).
To impose sanctions under § 1927, the Court must make the following three
findings: (1) the attorney’s conduct was unreasonable and vexatious; (2) that conduct
multiplied the proceedings; and (3) the amount awarded may not be more than the costs
and attorney’s fees reasonably incurred due to the conduct. Id. (quoting Peterson v. BMI
Refractories, 124 F.3d 1386 (11th Cir. 1997)). “[A]n attorney multiplies proceedings
‘unreasonably and vexatiously’ within the meaning of the statute only when the attorney’s
conduct is so egregious that it is ‘tantamount to bad faith.’” Id. (quoting Avirgan v. Hull,
932 F.2d 1572, 1582 (11th Cir. 1991)). “[T]he district court must compare the attorney’s
conduct against the conduct of a ‘reasonable’ attorney and make a judgment about
whether the conduct was acceptable according to some objective standard. The term
‘vexatiously’ similarly requires an evaluation of the attorney’s objective conduct.” Id. at
1239-40. A malicious intent or bad purpose is not required. Id. at 1240. “[O]bjectively
reckless conduct is enough to warrant sanctions even if the attorney does not act
knowingly and malevolently.” Id. at 1241. Negligent conduct, i.e., conduct not expected
from a reasonable attorney, fails to warrant sanctions under § 1927. Id. “[A]n attorney’s
conduct must be particularly egregious to warrant the imposition of sanctions—the
attorney must knowingly or recklessly pursue a frivolous claim or needlessly obstruct the
litigation of a non-frivolous claim.” Id. at 1242. Plaintiff’s counsel’s failure to respond to the
November email regarding deposition dates and the February ultimatums, while
disappointing, was not so unreasonable and vexatious as to warrant sanctions under §
1927 or the Court’s inherent power.
So that the failure to communicate ceases to be a problem in this case the lawyers
are on notice that if one side believes the other is failing to timely communicate a motion
should be filed and if the Court is persuaded it will order a weekly telephone conference,
on a day and time set by the Court, until this case is resolved. In the meantime, the
motion to compel is GRANTED in part and DENIED in part as follows:
(1) By March 28, 2020, the parties shall:
(a) coordinate a date for Plaintiff’s deposition to occur on or before April 8,
2020; and
(b) a date for mediation on or before May 15, 2020.
(2) If the parties are unable to coordinate Plaintiff’s deposition or the mediation,
then they shall file a notice with the Court which will set the schedule for them.
(3) Plaintiff shall provide Defendant with a signed HIPAA release and sworn
answers to the interrogatories on or before March 27, 2020.
(4) Any party who believes the other side is not fulfilling its obligation to
communicate may file a motion to that effect and if the Court is persuaded it will set a
schedule of weekly telephone calls where council shall meet and confer about all pending
matters.
DONE and ORDERED in Orlando, Florida on March 25, 2020.
(LKL>
THOMAS B. SMITH
United States Magistrate Judge
Copies furnished to:
Counsel of Record
Unrepresented Parties