ISRAEL DIAZ and MICHELLE LITTLE, Plaintiff, v. GOAT EXPRESS, LLC, et al., Defendants Case No. 3:20cv3986-TKW-HTC United States District Court, N.D. Florida Filed June 01, 2021 Counsel Israel Diaz, Moss Point, MS, Pro Se. Dashawn Paul Hayes, the Hayes Law Firm PLC, New Orleans, LA, for Plaintiff. Jesse Craig Dyer, Randall Glen Rogers, Cole Scott & Kissane PA, Pensacola, FL, for Defendants. Cannon, Hope T., United States Magistrate Judge ORDER *1 This matter is before the undersigned on Defendants' Second Motion to Compel, which seeks better responses to certain Interrogatories and Requests for Disclosures as well as Rule 26 Initial Disclosures. ECF Doc. 38. The motion also seeks to compel the continued deposition of Plaintiff Michelle Little. Upon consideration, and for the reasons set forth below, the motion is GRANTED, and fees will be awarded. Before addressing the merits of Defendants' motion, the Court must address several issues that are of concern to the Court in this case. First is the untimeliness of Plaintiffs' response to the motion. Defendants filed the motion on May 11, 2021. Under this Court's Local Rules, motions must be responded to within fourteen (14) days unless a different time is ordered by the Court. N.D. Fla. Loc. R. 7.1(E). The Court may grant a motion by default for a party's failure to file a timely written memorandum in opposition. Id. at 7.1(H). Plaintiffs' counsel, Dashawn P. Hayes, did not file a memorandum in opposition within fourteen (14) days, and no other time was set by the Court for a response to be filed. Instead, Mr. Hayes filed an opposition the evening before oral argument on the motion was to be held. ECF Doc. 45. He did so without seeking leave of Court. Having been admitted to practice before the Court pro hac vice, Mr. Hayes is charged with knowledge of, and compliance with, this Court's Local Rules. Thus, the Court has no obligation to consider the untimely opposition, and as discussed more below, even after doing so, the Court finds the memorandum to be woefully deficient. Second, Mr. Hayes not only submitted an untimely written opposition, but he also failed to appear at the May 27, 2021 hearing to argue his clients' position. He failed to appear despite being alerted to the fact that Defendants' counsel was seeking an award of fees against him and his clients jointly and severally. He failed to appear despite having already been sanctioned by the Court for failing to comply with an earlier discovery order.[1] I. DISCUSSION Based on the failure to file a timely opposition, Mr. Hayes' failure to appear at the hearing to argue his clients' position, and the lack of merit in Plaintiffs' untimely written opposition, the Court finds Defendants' motion to be well taken and Mr. Hayes' and Plaintiffs' failure to comply with their discovery obligations to be unjustified. A. Michelle Little's Deposition *2 As stated above, Defendants seek to compel the deposition of Plaintiff Michelle Little. Defendants state in their motion, and counsel represented at the hearing, the following information. Plaintiff Little's deposition was initially set for April 29, 2021, following the deposition of Plaintiff Israel Diaz. Plaintiff Diaz arrived late to the deposition, resulting in the parties commencing Plaintiff Little's deposition late. Mr. Hayes unilaterally canceled Plaintiff Little's deposition without filing a motion for protective order. Defense counsel attempted to contact Mr. Hayes to reschedule Plaintiff Little's deposition at least five (5) times, and Mr. Hayes failed to respond until after the instant motion was filed. Plaintiffs' written opposition states that “the deposition of Michelle Little took place on May 21, 2021.” ECF Doc. 45 at 1. Defense counsel, however, advised the Court at the hearing that while the deposition started on May 21, 2021, it was ended by Mr. Hayes or his client a little more than an hour later. Clearly, Plaintiffs' written opposition, which fails to advise the Court of the early termination, is disingenuous. Under Federal Rule 30, “[u]nless otherwise stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours.” Fed. R. Civ. P. 30(d)(1). Although a deposition may be terminated or limited prior to that seven-hour period, that may only occur (1) by motion to the Court and (2) on grounds that the deposition is “being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party.” Fed. R. Civ. P. 30(d)(3). Mr. Hayes filed no such motion on Ms. Little's behalf. Mr. Hayes, therefore, had no legal basis on which to unilaterally terminate Ms. Little's deposition. Thus, Ms. Little is ordered to sit for deposition on a date selected by Defendants and their counsel. Additionally, Federal Rule 30(d)(2) also states that “the court may impose an appropriate sanction—including the reasonable expenses and attorneys' fees incurred by any party—on a person who impedes, delays, of frustrates the fair examination of the deponent.” Fed. R. Civ. P. 30(d)(2). As stated above, Mr. Hayes had an opportunity to argue his client's position by filing a timely written response, and even without having received a response, the Court set the matter for hearing, giving Mr. Hayes yet another opportunity to defend his position and his clients' positions. Mr. Hayes has failed to take advantage of either of those opportunities. Thus, the Court finds that Mr. Hayes' unilateral cancelation and termination of Plaintiff Little's deposition on April 29, and again on May 21, to have delayed, impeded, and frustrated the fair examination of Plaintiff Little. Thus, the Court finds sanctions to be warranted. B. Requests for Production Defendants seek better responses to requests for production numbers 15, 16, and 17 from Plaintiff Diaz. In request number 15, Defendants seek “any and all W-2s, 1099s, other tax withholding documents, and any and all other business records of income and all other evidence of income for the years 2013 through 2018 for Plaintiff.” ECF Doc. 38-1 at 17. Mr. Hayes did not assert an objection to this request on behalf of his client. Instead, Plaintiff Diaz responded, “None in the possession of the plaintiff.” Id. *3 In request number 16, Defendants ask for “any and all Federal and State Income Tax returns for years 2013 through 2018 for Plaintiff.” Id. Once again, Mr. Hayes did not assert an objection to this request on behalf of his client. Instead, Plaintiff Diaz states, “None in the possession of the plaintiff.” Id. In request number 17, Defendants ask for “any and all documents providing evidence of income to date for the year 2018 for Plaintiff.” ECF Doc. 38-1 at 17. Mr. Hayes did not assert an objection, and as to this request, Plaintiff Diaz states, “Plaintiff will provide once has [sic] access to the requested documents.” Id. Plaintiffs begin their untimely written opposition with what appears to be a general objection to the discovery requests at issue, stating “some of the discovery requests of the Defendant are overbroad and unlikely to lead to the discovery of admissible evidence.” ECF Doc. 45 at 1. Besides utterly lacking in specificity, this general objection comes a little too late. Because Plaintiffs did not object to the discovery at issue when they served their written responses, Plaintiffs have waived any such objections. See Limu Co., LLC v. Burling, 2013 WL 1482760, at *1 (M.D. Fla. Apr. 11, 2013) (“There is substantial legal precedent supporting the general rule that if a party fails to respond in writing within thirty days of being served with a request for production of documents, it is appropriate for the court to find that the party's objections are waived, unless the court finds good cause and excuses that failure.” (citing Enron Corp. Savings Plan v. Hewitt Associates, L.L.C., 258 F.R.D. 149, 156 (S.D. Tex. 2009) and identifying several cases in support)). Plaintiffs address all three requests together in the written opposition by explaining that Plaintiffs ran a contractor business and reported revenue for that business through their personal tax returns, which have been provided “for the pertinent years that are in their possession and control.”[2] ECF Doc. 45 at 2. That response is deficient. Regardless of whether Plaintiffs ran their business income through their personal tax returns, Plaintiffs would still have other business records relating to income. As Defendants point out, these are the very same documents Plaintiffs identify in their Rule 26 Initial Disclosures (which were served only after Defendants' filed this motion and one day before the May 27 hearing). Thus, Plaintiffs cannot credibly contend they do not have these documents or are awaiting access to them. Finally, Plaintiff Diaz's response to request numbers 15 and 16 that “none [of the requested documents] are in his possession” is not compliant with the Federal Rules. Plaintiff's production obligation is not limited to documents that are simply within his possession; it also applies to documents that are within his custody or control. See Fed. R. Civ. P. 34(a). This includes documents that he has the legal right to obtain, such as through an accountant, bookkeeper, or tax preparer and the Internal Revenue Service. See Searock v. Stripling, 736 F.2d 650, 653 (11th Cir. 1983) (“Control is defined not only as possession, but as the legal right to obtain documents upon demand.”). It also includes documents over which Plaintiff has a practical ability to obtain. See, e.g., In re Sergeeva, No. 2013 WL 12169388, at *8 (N.D. Ga. Nov. 22, 2013), objections overruled, 2015 WL 12866970 (N.D. Ga. Feb. 6, 2015) (“Instead, ‘control’ has been ‘construed broadly by the courts’ to include not just a legal right, but also a ‘practical ability to obtain the materials’ on demand.”); Costa v. Kerzner Int'l Resorts, Inc., 277 F.R.D. 468, 471 (S.D. Fla. 2011) (“Control, therefore, does not require that a party have legal ownership or actual physical possession of the documents at issue; indeed, documents have been considered to be under a party's control (for discovery purposes) when that party has the ‘right, authority, or practical ability to obtain the materials sought on demand.’ ”). *4 As stated above, Plaintiffs identified the requested documents in their Rule 26 initial disclosures as documents within their “possession, custody, or control.” Thus, Plaintiff Diaz is ordered to produce all responsive documents to request numbers 15, 16, and 17.[3] C. Interrogatory Reponses Defendants seek better responses from Plaintiff Diaz to Interrogatory Numbers 12, 15, 16, and 17. Interrogatory number 12 seeks an itemization of expenses or damages other than loss of income or earning capacity. Although Plaintiff Diaz does provide a response to this interrogatory, it does not include any past or future medical expenses. Plaintiffs do not specifically address this response in their written response. Instead, Plaintiffs attach a “supplemental response” to the untimely memorandum in which Plaintiff Diaz attempts to itemize his medical and non-medical damages. Plaintiff Diaz's supplement is a non-starter. First, it is not verified by Plaintiff Diaz and therefore not compliant with Federal Rule 33(b)(5). Second, the supplement included “undetermined” medical expenses. Plaintiff Diaz is ordered to provide a full and complete (and verified) response to interrogatory number 12. In interrogatories 15 and 16, Defendants seek for Plaintiff Diaz to identify his medical providers, those who provided him with treatment for injuries related to the accident (number 15), and those who provided him with any treatment in the last 10 years (number 16). Plaintiff identifies some providers in response to number 15 and answers “none” in response to number 16. As stated above, to the extent Plaintiffs now take issue with these interrogatories as being too broad, that objection (and all objections) are waived. Defendants contend Plaintiff Diaz's responses are deficient because he identifies only medical providers in Florida as to number 15, but Defendants know Plaintiff Diaz has a primary care physician in Mississippi. In the untimely written opposition, Plaintiffs states Diaz did not get a primary care physician until 2020 and is seeing that doctor for high blood pressure, which is not related to the accident. Plaintiff's explanation does not justify his failure to provide full and complete responses. Interrogatory number 16 clearly asks for the identity of all healthcare providers in the past 10 years, which would necessarily include the primary care physician he failed to disclose. Indeed, the fact that Plaintiff has a primary care physician means that Plaintiff Diaz's response to number 16 is inaccurate. Likewise, Plaintiff Diaz's attempt to supplement his response to number 16 by referring to number 15 is also deficient. Aside from being unverified, the supplemental response is also deficient because those interrogatories do not seek the same information. Plaintiff Diaz is ordered to provide full and complete (and verified) responses to Interrogatory numbers 15 and 16. In Interrogatory number 17, Defendants ask Plaintiff Diaz to identify all persons with knowledge about issues in the lawsuit. In response, Plaintiff Diaz identified a “Theresa Doe,” who Plaintiff contends witnessed the accident and assisted Plaintiff Diaz. Plaintiff Diaz further answered that “[o]nce contact information is obtained, it will be provided.” ECF Doc. 38-1 at 9. In Plaintiff Diaz's purported supplemental response, he states that “after diligent search, Plaintiff was unable to discovery [sic] the address or other contact information for Ms. Doe. Plaintiff serves the right to supplement this request.” *5 The Court obviously cannot compel Plaintiffs to provide information they do not have. Plaintiff Diaz, however, is ordered to serve a verified supplement to Interrogatory 17. Additionally, because Plaintiffs filed this action over a year ago, do not state what, if anything, they have done to locate this witness, and discovery closes in less than two weeks, Plaintiffs are advised that they may be precluded from calling any witnesses whose late disclosure is prejudicial to the Defendants. D. Initial Disclosures The Defendants also seek to compel Plaintiffs to provide their initial disclosures. The Court is quite astonished that this issue is just now being presented to the Court, less than two weeks from the close of discovery. As stated above, after Defendants filed the instant motion and one day prior to the scheduled hearing, Plaintiffs served their initial disclosures to the Defendants. Although the initial disclosures were not attached to Plaintiffs' untimely memorandum, a copy was provided to the Court at the hearing by defense counsel. The disclosures are deficient. As with Plaintiffs' attempted supplement to interrogatory number 12, the disclosures include “undetermined amounts.” Also, the itemization of damages includes only medical and non-medical expenses, even though Plaintiffs are also seeking “loss of wages and general damage for pain and suffering, mental anguish, loss of enjoyment of life and emotional distress.” Finally, as stated above, they include reference to documents in Plaintiffs' “possession, custody, and control,” which have not been produced or made available. Plaintiffs are ordered to provide full and complete disclosures. II. AWARD OF FEES AND COSTS Defendants also seek an award of attorney's fees pursuant to Federal Rule 37 and request that the award be made against both Plaintiffs and their counsel, jointly and severally. Under Federal Rule of Civil Procedure 37(a)(5), when the court grants a motion to compel, “the court must, after giving an opportunity to be heard, require the party or deponent 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 attorneys' fees.' Fed. R. Civ. P. 37(a)(5).[4] The court, however, must not order payment if the opposing party's nondisclosure, objection, or response was substantially justified. Fed. R. Civ. P. 37(a)(5)(ii). An objection or response is “substantially justified” so long as “there is a genuine dispute, or if reasonable people could differ as to [the appropriateness of the contested action].” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (alteration in original) (citations and internal quotation marks omitted) (comparing Rule 37's “substantially justified” language to a similar provision in the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A)). “Thus, as would be expected, the award of sanctions under Rule 37(a)(5) turns on the specifics of each individual case.” Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1313–14 (11th Cir. 2011). *6 As an initial matter, even when the Court considers the untimely opposition, and for all the reasons set forth above, the Court finds no justification for Plaintiffs' failure to provide adequate and sufficient responses to the discovery requests at issue or their initial disclosures. The Court has also provided Plaintiffs and their counsel an opportunity to be heard, both by waiting for the fourteen-day response deadline to pass before issuing any ruling and also by setting this matter for hearing. Thus, pursuant to Rule 37, the Court must award fees and costs. “[A]n attorney is to be held responsible for [the] professional disposition of the discovery process.” Reddy v. Bisaria, 2012 WL 13018360, at *3 (S.D. Fla. Feb. 10, 2012). The Court finds Mr. Hayes's conduct has interfered with the professional disposition of the discovery process in this case. In fact, based on the history of conduct in this case, it appears that Mr. Hayes frequently fails to respond to defense counsel or ensure his clients meet their discovery obligations until a motion is filed. Mr. Hayes fails to act, even when ordered to do so by the Court. Also, Mr. Hayes, as counsel for the Plaintiffs, failed to assert the appropriate objections, thereby waiving them. It is the attorney, after all, who signs the interrogatories as to the objections. Fed. R. Civ. P. 33(b)(5). It was also Mr. Hayes who prepared the initial disclosures, identifying documents in the Plaintiffs' “possession, custody, or control” that he then failed to produce in response to specific discovery requests. Thus, the Court finds it appropriate to hold both Plaintiffs and Mr. Hayes responsible, jointly and severally, for paying the Defendants' fees and costs. Accordingly, it is ORDERED: 1. Defendants' second motion to compel (ECF Doc. 38) is GRANTED. 2. Plaintiff Michelle Little shall sit for her continued deposition on a date and at a time selected by the Defendants. 3. Within three (3) days of this Order, Plaintiff Diaz shall provide full and complete (and verified) written responses to Interrogatories numbers 12, and 15–17. 4. Within ten (10) days of this Order, Plaintiffs shall produce all documents responsive to Request numbers 15, 16, and 17, including the requested tax returns and all documents identified in their initial disclosures. 5. Within three (3) days of this Order, Plaintiffs shall provide full and complete Rule 26(a)(1) initial disclosures, including all documents identified. 6. Within seven (7) days of this Order, Defendants shall file an affidavit of fees and costs, with supporting documentation, related to (a) preparing for the April 29, 2021 deposition of Michelle Little; (b) communicating with Plaintiffs' counsel for a new date for the deposition; (c) preparing for the May 21, 2021 deposition of Michelle Little; (d) obtaining better responses to the discovery at issue in the motion; and (e) preparing and prosecuting the second motion to compel. 7. Plaintiffs shall have seven (7) days after service of Defendants' affidavit to file a written opposition. 8. After the deadline for Plaintiffs to raise objections to the affidavit(s) has passed, the Court will enter a separate order on the amount of fees and costs to be awarded. DONE AND ORDERED this 1st day of June, 2021. Footnotes [1] The Court can reach no other conclusion than that Mr. Hayes' failure to appear was willful. Mr. Hayes contacted the undersigned's chambers the day before the hearing, asked to appear by phone, and advised of a conflict. He was told that he must appear in person. Mr. Hayes also contacted defense counsel and asked for consent to allow him to appear by phone or have the hearing continued. Defense counsel withheld such consent. Nonetheless, Mr. Hayes chose not to attend the hearing. He further chose not to file a motion for continuance. Defense counsel, however, did appear to argue his clients' position. [2] Defendants represent that Plaintiffs have produced tax returns for only 3 years: 2014, 2016, and 2017. [3] At the hearing, Defense counsel stated he received some documents from Mr. Hayes on either the morning of, or the day before, the hearing. Those documents, however, according to defense counsel, do not moot any part of the motion. [4] The fact that Rule 37 allows the court to sanction attorneys for misconduct means that a motion for sanctions, even one that is directed against the client only, “represents sufficient notice to the advising attorney of a possibility of being held jointly and severally liable for monetary damages.” Devaney v. Continental American Ins. Co., 989 F.2d 1154, 1161–62 (11th Cir. 1993). There can be no doubt Mr. Hayes is on notice of such exposure in the instant motion, as it specifically seeks to hold him jointly and severally liable for any sanctions imposed.