RUBIO
v.
ALGO CAPITAL, LLC
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The court held that a motion to compel discovery cannot be granted when the moving party has not demonstrated that discovery requests were ever served on the opposing party.
Plaintiff filed a motion to compel discovery from the defendants. However, there was no record that the plaintiff (or his former attorney) had ever se…
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This cause comes before the Court on Plaintiffs, Armando Rubio's, Motion to Compel Discovery. [D.E. 79]. Defendants timely responded to the motion [D.Ε. 88], and the time for Plaintiff to reply has passed. The motion, therefore, is ripe for disposition. [fn 1] After careful review of the briefing and relevant authorities, and for the reasons set forth below, Plaintiffs motion is DENIED.
Plaintiff seeks to compel Defendants' production of certain documents and information. There is no record, however, of Plaintiff (or his now-withdrawn attorney) ever serving corresponding discovery requests on Defendants. Specifically, Plaintiff
1
has not attached the discovery requests to his pending motion, nor has he otherwise provided that the discovery requests were ever served.
As a result, we cannot compel Defendants to respond more properly to discovery requests that they never received (or at least, where service of the requests has not been demonstrated by Plaintiff). See First Sav. Bank v. Deane, No. 3:23-CV- 432-TJC-LLL, 2023 WL 8434476, at *2 (M.D. Fla. Sept. 27, 2023) (“Additionally, counsel for plaintiff states defendant never served discovery on plaintiff before filing the motion before the Court. A motion to compel is not the proper means to obtain discovery never served. Plaintiff cannot be compelled or sanctioned for failing to disclose something it was never requested to provide.”); Pandora Jewelers 1995, Inc. v. Pandora Jewelry, LLC, No. 09-61490-civ-Cooke/Bandstra, 2010 WL 11440948, at *1 (S.D. Fla. July 26, 2010) (denying a motion to compel discovery, in part, because certain discovery was never served on defendant); Fuggi v. Steadfast Ins. Co., No. 6:04-cv-1714-Orl-22KRS, 2006 WL 1760478, at *2 (M.D. Fla. June 23, 2006) (“The Court simply cannot compel a party to engage in discovery when he has not been served with the appropriate requests.”).
Accordingly, Plaintiffs Motion to Compel Discovery [D.E. 79] is DENIED.
DONE and ORDERED in Chambers in Miami, Florida this 2nd day of October, 2024.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge
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[fn 1]: On May 28, 2024, the Honorable Jacqueline Becerra referred all discovery matters to the Undersigned Magistrate Judge for disposition. [D.E. 51].
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Rubio v. Algo Cap., LLC, 2023 WL 8434476 (S.D. Fla. 2024)…result, we cannot compel Defendants to respond more properly to discovery requests that they never received (or at least, where service of the requests has not been demonstrated by Plaintiff). See First Sav. Bank v. Deane, No. 3:23-CV- 432-TJC-LLL, 2023 WL 8434476, at *2 (M.D. Fla. Sept. 27, 2023) (“Additionally, counsel for plaintiff states defendant never served discovery on plaintiff before filing the motion before the Court. A motion to compel is not the proper means to obtain discovery never served. Plai…
Authorities Cited
- Rubio v. Algo Cap., LLC, 2023 WL 8434476 (S.D. Fla. 2024)