Opinion
Case No.: 8:02-CV-1112-T-27EAJ
April 25, 2003
ORDER
Before the court are Defendant's Motion To Declare Interrogatories Unserved (Dkt. 16) filed April 9, 2003, Memorandum By United States of America In Opposition To Defendant's Motion To Declare Interrogatories Unserved (Dkt. 20) filed on April 15, 2003, Motion By United States of America For Sanctions Under Rule 37(b)(2) (Dkt. 17) filed on April 15, 2003, and Memorandum In Support of Motion By United States of America For Sanctions Under Rule 37 (b)(2) (Dkt. 18) filed on April 15, 2003.
I. Background
Plaintiff, on February 25, 2003, moved to compel Defendant to respond to interrogatories and a request for production (Dkt. 10). Defendant failed to respond to both Plaintiff's discovery and Plaintiff's motion and the court accordingly entered an order granting Plaintiff's motion and requiring Defendant to serve Plaintiff with discovery responses within twenty (20) days from the date of the order (Dkt. 15).
Defendant Donna Gwinn, appearing pro se, now seeks an order declaring the interrogatories "unserved" under Local Rule 3.03(f), M. D. Fla. Defendant Gwinn argues that Local Rule 3.03(f) requires parties to serve interrogatories with a copy of the questions on computer disk as well as a printed copy and Plaintiff did not serve her with the questions on computer disk. Defendant Gwinn also states that she has prepared answers to Plaintiff's interrogatories but that she requests an order on her motion before she serves the answers on Defendant.
Plaintiff contends that Defendant Gwinn's motion must denied because: (1) she waived her objections when she failed to timely respond to the interrogatories, (2) Defendant Gwinn failed to comply with Local Rule 3.01(g) prior to filing her motion, and (3) Defendant Gwinn's interpretation of Local Rule 3.03(f) does not warrant the relief requested.
Plaintiff also seeks sanctions for Defendant's failure to comply with the court's order requiring her to answer the interrogatories and request for production. Plaintiff seeks an order striking portions of Defendant Gwinn's answers to the complaint, specifically her answers to paragraphs four, five and eighteen. Plaintiff alleges in paragraphs four, five and eighteen of the complaint that: (1) Defendant Gwinn conducts business in St. Petersburg, Florida under the trade name Classic Custom Cleaners, a/k/a Classic Cleaners, (2) Defendant Gwinn employees Alexander Petroski, and (3) in her capacity as Petroski's employer, notices of levy were served on Defendant Gwinn because she was in possession of property belonging to Petroski and after the date of the notices of levy, Petroski continued in his employment with Defendant and continued to earn a salary and wages subject to the levies (Dkt. 1).
II. Discussion A. Defendant's Motion To Declare Interrogatories Unserved
First, as a procedural bar, Plaintiff argues that Defendant's motion must be denied on the basis that she failed to comply with Local Rule 3.01(g), M. D. Fla. Local Rule 3.01(g) provides that before filing any motion in a civil case, with the exception of certain listed motions, "the moving party shall confer with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion". Defendant's motion does not include what is commonly referred to as a "3.01(g) Certificate" and Plaintiff additionally contends that Defendant did not contact Plaintiff in an effort to resolve the dispute before filing the motion.
Local Rule 3.01(g) is strictly enforced. Middle District Discovery (2001) at 20. Further, potential discovery disputes are resolved (or the differences narrowed or clarified) when counsel confer in good faith.Id.
The issue in this instance, namely whether a computer disk may have been provided Defendant, appears to be a dispute that was resolvable. There appears to be no reason why Plaintiff would not have provided Defendant with the questions on computer disk. Therefore this court's consideration of Defendant's motion to declare the interrogatories unserved and even Plaintiff's motion to compel may have been obviated. Thus, Defendant's motion may be properly denied on that basis alone. However, the court recognizes that Defendant proceeds pro se and thus considers her motion substantively.
Local Rule 3.03(f) provides that "[l]itigant's counsel should utilize computer technology to the maximum extent possible in all phases of litigation, i.e., to serve interrogatories on opposing counsel with a copy of the questions on computer disk in addition to the required printed copy." Defendant's argument that the term "should" is compulsory is unpersuasive. Local Rule 3.03(a)-(e) contain the compulsory word "shall." The term "should" in Local Rule 3.03(f), in comparison, indicates that counsel are encouraged and should endeavor or try to serve a copy of the questions on computer disk, but such action is not mandatory.
B. Plaintiff's motion for sanctions
Federal Rule of Civil Procedure 37(b)(2) provides that if a party fails to obey an order granting a motion to compel, the court may impose sanctions, including the striking of pleadings. Plaintiff contends that Defendant was required to answer Plaintiff's discovery by April 9, 2003, pursuant to the court's March 20, 2003, order (Dkt. 15). Trial counsel for Plaintiff, Scott Grossman filed a declaration in support of Plaintiff's motion for sanctions and states that as of April 14, 2003, Defendant had not yet served Plaintiff with her discovery responses (Dkt. 19).
In her motion to declare interrogatories unserved, Defendant Gwinn states that she has prepared answers to Plaintiff's interrogatories but she is awaiting a ruling on her motion. Defendant's motion to declare interrogatories unserved is akin to a motion for protective order as she is essentially seeking an order that she is not required to comply with requested or scheduled discovery. However, the mere filing of a motion for a protective order does not, absent an order of the court granting the motion, excuse the moving party from complying with the requested or scheduled discovery. Middle District Discovery (2001) at 20. Morever, while Defendant's motion seeks an order declaring Plaintiff's interrogatories unserved, Defendant does not object to Plaintiff's request for production. Yet, Defendant has also not complied with this court's order requiring her to respond to Plaintiff's request for production.
The court previously cautioned Defendant that even though she appearspro se, she is subject to the relevant law and rules of court, including the Federal Rules of Civil Procedure. Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989). If a pro se litigant ignores the court's order, he or she should be subject to sanctions like any other litigant. Id.
Generally, severe sanctions, even dismissal upon disregard of an order, especially where the litigant has been forewarned, is not an abuse of discretion. See Newsome, 863 F.2d at 837. The sanction sought by Plaintiff in this case may be tantamount to entry of a judgment of default as to the portions of the pleadings sought stricken is potentially dispositive of the litigation. At this juncture, this court finds that such a drastic order is not "just."
Defendant Gwinn is instead again cautioned that future noncompliance with the rules or orders of the court will result in sanctions monetary or otherwise.
III. Conclusion
Accordingly, it is ORDERED and ADJUDGED:
(1) Defendant's motion to declare interrogatories unserved (Dkt. 16) is DENIED;
(2) Plaintiff's motion for sanctions (Dkt. 17) is DENIED without prejudice to reconsideration as circumstances warrant; and
(3) Defendant shall serve Plaintiff with responses to Plaintiff's interrogatories and request for production within ten (10) days from the date of this order.