The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
RICHARD ARZILLO,
Plaintiff,
v. Case No. 8:21-cv-1070-WFJ-AEP
THE SCHOOL BOARD OF
POLK COUNTY, FLORIDA,
Defendant.
/
ORDER
This cause comes before the Court upon Plaintiff’s Motion for Sanctions and
Motion to Compel Discovery Responses (Doc. 35). Defendant opposes Plaintiff’s
requests (Doc. 39). Plaintiff filed a response (Doc. 41).1
I. BACKGROUND
Plaintiff filed this action against Defendant for violation of 42 U.S.C § 1983,
violation of due process, and breach of contract (Doc. 20). On November 12, 2021,
Plaintiff served Defendant with interrogatories and requested to coordinate
deposition dates to depose the School Board members “individually and at the same
time” (Doc. 35-1, at 1). Defendant’s counsel responded that he was not agreeable
to having Plaintiff depose the School Board members (Doc. 35-1, at 9).
1 Although the Court reviewed and considered Plaintiff’s reply in addressing Plaintiff’s
original motion, Plaintiff’s reply was unauthorized. See Local Rule 3.01(d), M.D. Fla.
Additionally, Defendant’s counsel stated that if Plaintiff had any specific witnesses
he wished to depose, Plaintiff should name them, and Defendant would let Plaintiff
know its position (Doc. 35-1, at 9). On November 23, 2021, Plaintiff emailed
Defendant’s counsel a notice of deposition naming the School Board of Polk
County, Florida as the deponent and setting the deposition for January 10, 2022
(Doc. 35-1, at 13-15). Defendant’s counsel sought to clarify the deposition notice
and asked Plaintiff if he wished to depose a School Board employee as a corporate
representative or the School Board members (Doc. 39, at 7). Plaintiff agreed that
deposing a School Board representative was agreeable (Doc. 35-1, at 16). Plaintiff
also noted that he did not have time to prepare for his deposition until late January
(Doc. 35-1, at 16). According to the parties, they exchanged additional
correspondence leading into the new year.2 On January 10, 2022, Defendant did
not appear at the deposition Plaintiff had previously noticed (Doc. 35-1, at 19).
II. DISCUSSION
Plaintiff requests that this Court sanction Defendant and compel Defendant
to amend its answers to Plaintiff’s First Set of Interrogatories. Plaintiff argues that
Defendant’s counsel failed to attend a properly noticed deposition. Additionally,
Plaintiff argues that the Court should compel Defendant to answer Plaintiff’s
interrogatories because Defendant designated a Human Resources Director to
2 The Parties did not submit a complete record of the correspondence between them during
answer questions on its behalf and the answers are incomplete, evasive, and the
objections are contrary to the law.
District courts maintain broad discretion to impose sanctions, a power which
“derives from the court’s inherent power to manage its own affairs and to achieve
the orderly and expeditious disposition of cases.” Flury v. Daimler Chrysler Corp., 427
F.3d 939, 944 (11th Cir. 2005) (citation omitted). “To impose sanctions under these
inherent powers, the court first must find bad faith.” In re Walker, 532 F.3d 1304,
1309 (11th Cir. 2008). “A finding of bad faith is warranted where an attorney
knowingly or recklessly raises a frivolous argument, or argues a meritorious claim
for the purpose of harassing an opponent.” Id.
Plaintiff contends that Defendant’s counsel engaged in misconduct by failing
to attend the deposition Plaintiff had noticed for January 10, 2022, and not
communicating with Plaintiff a reason for not attending. Plaintiff did not provide a
complete record of the communications between him and Defendant’s counsel.
Regardless, based on Defendant’s response to the motion (Doc. 39) and the emails
included by Plaintiff (Doc. 35-1), it appears that the parties were working toward
finding dates to conduct the School Board’s representative and Plaintiff’s
deposition. After Defendant’s counsel received Plaintiff’s notice of deposition and
reached out to Plaintiff for clarification of who Plaintiff wanted to depose, Plaintiff
stated “[f]or now, I think deposing the representative is fine, we just need to agree
on a date” (Doc. 39, at 7). Nothing in the emails supports Plaintiff’s assertion that
sanctions are warranted at this time. The Court understands that the parties have a
vested interest in the outcome of the case, thus, the parties are to coordinate times
that work with each other’s schedules.
As discussed above, Plaintiff's requests for sanctions is not appropriate based
on the record before the Court at this tme. The parties are directed to meet and
confer to schedule the School Board’s representative’s deposition and regarding the
discovery issues raised in Plaintiffs Motion. After the School Board’s
representative’s deposition, if Plaintiff feels that it is necessary to depose School
Board members, the parties are to meet and confer and if there is disagreement,
Defendant should file a motion for protective order. Additionally, if issues remain
regarding discovery after the parties meet and confer, then Plaintiff may renew his
Motion to Compel.
Accordingly, it is hereby
ORDERED:
1. Plaintiff's Motion for Sanctions and to Compel Discovery Responses
(Doc. 35) is DENIED WITHOUT PREJUDICE.
DONE AND ORDERED in Tampa, Florida, on this 18th day of February,
2022.
2a 6
Ly, —
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ANTHONY E. PORCELLI
United Sfates Magistrate Judge
cc: Counsel of Record
Plaintiff, pro se