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Bernath v. Seavey, 2:15-cv-358-FtM-38CM. (2017)

Court: District Court, M.D. Florida Number: infdco20170829e68 Visitors: 29
Filed: Aug. 29, 2017
Latest Update: Aug. 29, 2017
Summary: ORDER CAROL MIRANDO , Magistrate Judge This matter comes before the Court upon review of (1) the Motion of The American Legion ("The Legion") and Mark Cameron Seavey ("Seavey") for Attorney's Fees and Costs to Compel Plaintiff's Responses to Discovery and Incorporated Memorandum of Law (Doc. 110) filed on January 5, 2017; (2) the Motion of Seavey for Attorney's Fees and Costs for Second Motion to Compel Plaintiff's Responses to Discovery and Incorporated Memorandum of Law (Doc. 223) filed
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ORDER

This matter comes before the Court upon review of (1) the Motion of The American Legion ("The Legion") and Mark Cameron Seavey ("Seavey") for Attorney's Fees and Costs to Compel Plaintiff's Responses to Discovery and Incorporated Memorandum of Law (Doc. 110) filed on January 5, 2017; (2) the Motion of Seavey for Attorney's Fees and Costs for Second Motion to Compel Plaintiff's Responses to Discovery and Incorporated Memorandum of Law (Doc. 223) filed on May 11, 2017; and (3) Plaintiff's Motion recuse [sic] Magistrate Mirando (Doc. 249) filed on June 28, 2017. Plaintiff has not filed responses to the motions for attorneys' fees (Docs. 110, 223). Plaintiff's non-response to these motions creates a presumption that they are unopposed. Great Am. Assur. Co. v. Sanchuk, LLC, No. 8:10-cv-2568-T-33AEP, 2012 WL 195526, at *3 (M.D. Fla. Jan. 23, 2012).

I. Seavey's and The Legion's requests for attorney's fees and costs (Docs. 110, 223)

On August 8, 2016, Seavey moved to compel Plaintiff to produce mandatory initial disclosures required under Rule 26(a)(1) of the Federal Rules of Civil Procedure and respond to Seavey's discovery requests. Doc. 78. The Legion separately filed a motion to compel, seeking the substantially similar relief to the one requested in Seavey's motion to compel. Docs. 98, 101 at 2. Plaintiff responded in opposition. Doc. 79. On December 1, 2016, the Court granted in part and denied in part Seavey's and The Legion's motions to compel. Doc. 101. The Court found that the documents Plaintiff alleged to be his mandatory disclosures did not satisfy Rule 26(a)(1) and lacked the proper certification as required by 26(g)(1). Id. at 5. As a result, the Court ordered stricken the two documents Plaintiff purported to be his mandatory disclosures and directed Plaintiff to respond to The Legion's and Seavey's discovery requests in a manner stated in the Order. Id. at 5-15, 19-21.

In their motions to compel, Seavey and The Legion also asked the Court to sanction Plaintiff by awarding attorney's fees associated with their motions to compel. Doc. 101 at 15 (citing Docs. 78 at 5, 98 at 4). The Court found that pursuant to Rules 26(g)(3) and 37(a)(5)(A) of the Federal Rules of Civil Procedure, sanctions in the form of attorney's fees are appropriate. Doc. 101 at 16. Nonetheless, the Court denied without prejudice Seavey's and The Legion's requests for attorney's fees because they did not provide documentation of their attorneys' hourly rates and hours associated with their motions to compel. Id. The Court directed Seavey and The Legion to file the proper documentation and Plaintiff to respond in fourteen days from the date of the filing. Id.

On January 16, 2017, Seavey filed a second motion to compel Plaintiff's responses to Seavey's discovery requests, alleging that Plaintiff had not properly responded to his discovery requests. Doc. 114. On February 13, 2017, the Court found that Plaintiff violated the Court's previous Order (Doc. 101) by not providing discovery responses as directed in that Order. Doc. 142 at 6-8. Accordingly, the Court ordered Plaintiff to show cause in writing as to why he should not be sanctioned under Rules 37(b)(2)(A) and 37(b)(2)(C) of the Federal Rules of Civil Procedure for not complying with the Order (Doc. 101). Id. at 9. The Court also noted that it "may award Seavey reasonable attorney's fees and costs associated with the preparation and filing of [the second] motion [to compel] (Doc. 114)." Id.

Although Plaintiff responded to the Order to Show Cause on February 17, 2017, the Court found his response insufficient and held that sanctions under Rules 37(b)(2) and 37(c)(1) are warranted. Doc. 218 at 9. The Court noted that "considering Plaintiff's conduct of repeatedly disobeying Court orders in this case, it is apparent that Plaintiff is likely to ignore any repeated warnings or orders requesting further compliance with Seavey's Discovery Requests." Doc. 218 at 10. Nonetheless, the Court imposed other sanctions against Plaintiff and denied Seavey's request for attorney's fees for the second time because Seavey failed to provide proper documentation of his counsel's hourly rates and hours expended. Id. at 11.

In light of this history, on January 5, 2017, Seavey and The Legion first filed a motion for attorney's fees and costs (Doc. 110) with the required documentation, asking for an award of attorney's fees in the amount of $24,375.00. Doc. 110 at 2-3. Seavey and The Legion show that counsel John D. Mason expended 26.50 hours at an hourly rate of $450.00; an associate expended 13.00 hours at an hourly rate of $250.00; counsel E. Molina expended 23.50 hours at an hourly rate of $350.00; and her paralegal expended 6.5 hours at an hourly rate of $150.00. Docs. 110-1, 110-2. On May 11, 2017, Seavey separately moved for attorney's fees and costs with the proper documentation, seeking attorney's fees in the amount of $10,452.50. Doc. 223 at 2-3. Seavey shows that counsel John D. Mason expended 14.90 hours at an hourly rate of $450.00; an associate expended 2.20 hours at an hourly rate of $250.00; counsel E. Molina expended 8.15 hours at an hourly rate of $350.00; and her paralegal expended 2.30 hours at an hourly rate of $150.00. Docs. 223-1, 223-2. As noted, Plaintiff has not responded to either motion, creating a presumption that these motions are unopposed. Great Am. Assur., 2012 WL 195526, at *3.

Rule 26(g) of the Federal Rules of Civil Procedure requires discovery-related filings to be signed by an attorney or a party, certifying that "the filing conforms to the discovery rules, is made for a proper purpose, and does not impose undue burdens on the opposing party in light of the circumstances of the case." Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1372 (11th Cir. 1997); Fed. R. Civ. P. 26(g)(1). If a certification is improper without substantial justification, "the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both." Fed. R. Civ. P. 26(g)(3). Available sanctions include "an order to pay the reasonable expenses, including attorney's fees, caused by the violation." Fed. R. Civ. P. 26(g)(3).

The decision to impose sanctions under Rule 26(g)(3) is not discretionary. Chudasama, 123 F.3d at 1372. "Once the court makes the factual determination that a discovery filing was signed in violation of the rule, it must impose an appropriate sanction." Id. (quotation marks omitted). The district court, however, has a discretion to decide what sanction is appropriate. Id.

In addition, pursuant to Rule 37(b)(2), if a party fails to obey a discovery order, the court may impose sanctions enumerated in Rule 37(b)(2)(A), or alternatively, "must order" the disobedient party "to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust." Fed. R. Civ. P. 37(b)(2)(A), (C). Lastly, Rule 37 mandates that if a motion to compel is granted, the court must, after giving an opportunity to be heard, require the party whose conduct necessitated the motion to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. Fed. R. Civ. P. 37(a)(5)(A).

The Court already explained the above rules and possible sanctions to Plaintiff and found that sanctions against Plaintiff, among other things, in the form of attorney's fees are appropriate for the reasons stated in the previous Orders. Docs. 101 at 15-16, 142 at 6-9, 218 at 6-11. Although the Court previously denied Seavey's and The Legion's requests for attorney's fees for lack of the proper documentation, they have cured the deficiencies by producing the requested documentation (Docs. 110-1, 110-2, 223-1, 223-2). Docs. 101 at 16, 218 at 11. As a result, the Court will award Seavey's and The Legion's requested attorney's fees and costs.

II. Plaintiff's Motion recuse [sic] Magistrate Mirando (Doc. 249)

Plaintiff requests that the undersigned and United States District Judge Sheri Polster Chappell recuse themselves from this case. Doc. 249. The Court already addressed and denied the same or substantially similar relief in three previous Orders (Docs. 101 at 16-17, 142 at 9-11, 202 at 3). For the reasons stated in these Orders, the Court will deny this motion.

ACCORDINGLY, it is hereby

ORDERED:

1. The Motion of The American Legion and Mark Cameron Seavey for Attorney's Fees and Costs to Compel Plaintiff's Responses to Discovery and Incorporated Memorandum of Law (Doc. 110) is GRANTED. The American Legion and Mark Cameron Seavey are AWARDED attorney's fees in the amount of $24,375.00.

2. The Motion of Mark Cameron Seavey for Attorney's Fees and Costs for Second Motion to Compel Plaintiff's Responses to Discovery and Incorporated Memorandum of Law (Doc. 223) is GRANTED. Mark Cameron Seavey is AWARDED attorney's fees in the amount of $10,452.50.

3. Plaintiff's Motion recuse [sic] Magistrate Mirando (Doc. 249) is DENIED.

DONE and ORDERED.

Source:  Leagle

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