Month: June 2017

Failure to Promptly File a Motion to Compel Waives Discovery Issue


This is a case where a party waited until after discovery closed to file a motion to compel. The court denied the motion on the basis of the unreasonable delay. It also denied a Rule 37 sanctions motion on the basis that the party did not timely move to compel. The lesson is obvious: where there are discovery disputes, you must get moving.

Unreasonable Delay:

First, Plaintiffs’ motion to compel and for sanctions is untimely. Coleman v. Starbucks, No. 6:14-cv-527-Orl-22TBS, 2015 WL 2449585, at *8 (M.D. Fla. May 22, 2015) (“While there is no local or federal rule setting a precise deadline for the filing of a motion to compel, it is clear that any such motion must be filed within a `reasonable’ time period.”) (citation omitted); Wane v. Loan Corp., 926 F. Supp. 2d 1312, 1319 (M.D. Fla. 2013) (denying Rule 37 sanctions of striking the affidavit partly because the plaintiffs did not file a motion to compel when they realized the information was missing). Here, Plaintiffs received Defendants’ responses to the First Request for Production on February 10, 2016 and the McCarthy affidavit was dated September 22, 2016, yet filed the present motion nearly one year later, and after the discovery deadline passed. Plaintiffs do not explain nor acknowledge the delay in their filing.

By virtue of failing to address a discovery violation when the movant first learns of the issue, a party risks waiving the issue. United States v. Stinson, No. 6:14-cv-1534-Orl-22TBS, 2016 WL 8488241, at *5 (M.D. Fla. Nov. 22, 2016); see also Coleman, 2015 WL 2449585, at *8 (“[W]aiver principles apply in the discovery context just as they do in other aspects of litigation.”) (citations omitted). “The court’s decision whether or not to find waiver is discretionary.” Stinson, 2016 WL 8488241, at *5 (citing Woods v. DeAngelo Marine Exhaust, Inc., 692 F.3d 1272, 1279 (Fed. Cir. 2012)). In considering the timeliness of a motion to compel or for sanctions, the Court considers “such factors as when the movant learned of the discovery violation, how long he waited before bringing it to the court’s attention, and whether discovery has been completed.” Id. at *5 (citing Long v. Howard Univ.,561 F. Supp. 2d 85, 91 (D.D.C. 2008)). Here, Plaintiffs received Defendants’ discovery responses on February 10, 2016, waited one year to file the instant motion, and filed the motion after the discovery deadline. Similarly, Plaintiffs received Defendants’ response related to their obligation under the Court’s FLSA Scheduling on October 21, 2015, yet waited over one year to file the instant motion.

Rule 37 Sanctions Were Also Denied

The court denied Rule 37 sanctions because no motion to compel was filed during the discovery period:

Here, Plaintiffs did not file a motion to compel prior to filing the instant motion. As noted, the entirety of Plaintiffs’ argument is dedicated to seeking sanctions, primarily the sanction of default judgment. See Doc. 121. To the extent Plaintiffs seek sanctions for Defendants’ deficient responses to Plaintiffs’ First Request for Production, sanctions would be improper in light of Plaintiffs’ failure to precede their request with a motion to compel. Indeed, Plaintiffs did not confer with Defendants or place Defendants on notice of their alleged deficient responses until they emailed a copy of the instant motion to Defendants’ counsel on February 9, 2017. Doc. 126-5.

In imposing sanctions under Rule 37, the court may consider “the unsuitability of another remedy, the intransigence of a party, and the absence of an excuse.” Watkis v. Payless ShoeSource, Inc., 174 F.R.D. 113, 116 (M.D. Fla. 1997). The Eleventh Circuit held, however, that “the severe sanction of a dismissal or default judgment is appropriate only as a last resort, when less drastic sanctions would not ensure compliance with the court’s orders.” Malautea v. Suzuki Motor Co., Ltd.,987 F.2d 1536, 1542 (11th Cir. 1993) (citations omitted). Hence, “[v]iolation of a discovery order caused by simple negligence, misunderstanding, or inability to comply will not justify a Rule 37 default judgment or dismissal.” Id. (citation omitted). In other words, “[d]ismissal will not be upheld if a party’s failure to comply is due to inability rather than willfulness, bad faith or disregard of responsibilities.” Aztec Steel Co. v. Florida Steel Corp., 691 F.2d 480, 481 (11th Cir. 1982) (citation omitted). “When a party demonstrates a flagrant disregard for the court and the discovery process, however, dismissal is not an abuse of discretion.” Id. (citation omitted).

To the extent Plaintiffs seek sanctions on Defendants’ failure to comply with the Court’s FLSA Scheduling Order, the Court finds sanctions are unwarranted.

Source: Goers v. LA ENTERTAINMENT GROUP, INC., Dist. Court, MD Florida 2017 – Google Scholar

Another Reminder That A Request For Sanctions Must Be Filed As its Own Motion


You cannot include a sanctions request in your brief on another issue. You have to file and serve a separate motion. That gives the other side time to comply with the safe harbor (21 days to withdraw the challenged pleading) and requires you to focus on relevant issues in your brief.

Source: GINGILOSKI v. COMMERCIAL RECOVERY SERVICES, Dist. Court, ED Michigan 2017 – Google Scholar

Lawyer Had A Factual Basis For His Arguments – Sanctions Denied


Plaintiffs won a verdict of $544,276.14 against a real estate promoter. Plaintiffs alleged that they were fraudulently induced to enter into a transaction. After the verdict, they sought sanctions against Defendants’ counsel, accusing him of making “blatant[ly] false statements regarding the bank accounts and real estate properties.” The court denied the sanctions motion on the ground that the lawyer had proceeded in good faith and had a reasonable basis for his arguments.

After the verdict, plaintiffs sought sanctions against Defendants’ counsel, accusing him of making “blatant[ly] false statements regarding the bank accounts and real estate properties.” The court denied the sanctions motion on the ground that the lawyer had proceeded in good faith and had a reasonable basis for his arguments.

Comment: I’m not a fan of this type of sanctions motion – when you win a verdict, you should have the sense to walk away gracefully.

Source: RUI HE v. ROM, Dist. Court, ND Ohio 2017 – Google Scholar