DISABLED PATRIOTS OF AMERICA, INC.

v.

TROPICAL PARADISE RESORTS, LLC

THIS CAUSE is before me upon Plaintiff’s Motion to Compel Defendant, Tropical Paradise Resorts, LLC, Pursuant to Fed. R. Civ. P. 37(a)(5)(A) to Answer Plaintiff’s Interrogatories, Dated June 22, 2021, Request for Production [(“RFP”)], Dated June 22, 2021 and Deem Request for Admissions [(“RFAs”)], Dated June 22, 2021 Admitted and for Sanctions Pursuant to Fed. R. Civ. P. 37(a)(5)(A) (“Motion to Compel”). (DE 25). The District Court has referred to me all pretrial discovery motions pursuant to 28 U.S.C. § 636 and the Magistrate Rules of the Local Rules of the Southern District of Florida. (DE⁴). Defendant has filed a response.¹ (DE 30). Plaintiff has filed a reply. (DE 33). Therefore, the Motion to Compel is ripe for review. Having carefully reviewed the motion, the response, the reply and the record and being otherwise duly advised, the Motion to Compel is GRANTED IN PART AND DENIED IN PART as set forth herein.

according to Plaintiff, Defendant did not confer before filing the motion for protective order. (DE 22 at 3). Defendant’s Reply argued that Plaintiff had insisted on an overly broad inspection and never amended his Rule 34 inspection demand. (DE 23). Noting that the parties themselves should have been able to resolve the matter, I issued an order permitting Plaintiff to inspect the premises in accordance with its July 20, 2021 email. (DE 24). On August 25, 2021, Plaintiff filed the instant Motion to Compel and states that it submitted its First Set of Interrogatories, Request for Production and Request for Admissions to Defendant on June 22, 2021. (DE 25 at ¶2). Plaintiff also avers that Defendant refused to respond to the propounded discovery and responded to Plaintiff’s requests by stating that “it plans to settle once it receives the Plaintiff’s settlement documents and expert report.” Id. at ¶3. Further, Plaintiff states that, although a Rule 34 inspection occurred on August 10, 2021, Plaintiff has been unable to produce its expert report because Plaintiff’s expert contracted Covid. Id. Plaintiff also notes that its expert report is not due until September 30, 2021. Id. Plaintiff contends that it needs the information requested by the propounded discovery requests, in part, to comply with the Court’s scheduling order requiring Plaintiff to produce its Rule 26(a)(2) expert witness disclosures and summaries/reports by the September 30, 2021 deadline. Id. at ¶4. Plaintiff notes that one of the expert reports relates to determining the financial ability of Defendant to undertake barrier removal on the subject premises, and Plaintiff’s financial expert needs thirty (30) days to accomplish same. Id. In addition to sanctions, Plaintiff requests that the Court compel Defendant to serve responses to the RFP and Interrogatories within fifteen (15) days of the Court’s Order and to order that the RFAs be deemed admitted. Id. at 2. Defendant argues that “[t]here is no need for the discovery sought or alternatively, if the case does not settle, the deadlines in this case can be moved a few months back as even if the property is in non-compliance with the ADA, the Plaintiff has no plans to stay at the hotel or to come to Florida any time soon and the hotel has not received any ADA related complaints from anyone else.” (DE 30 at ¶6). Defendant also argues that Plaintiff only filed the Motion to Compel because its expert contracted Covid, which delayed drafting a proposed settlement and gave Plaintiff concern about the case’s pretrial deadlines. Id. at ¶¶2-4. Defendant’s counsel further avers that he has handled about 50 ADA cases and “practically all end with the signing of a settlement agreement such as the one contemplated by the parties herein.” Id. at ¶5. Defendant notes that the parties are scheduled to mediate on September 13, 2021. Id. at ¶6. Finally, Defendant argues that the Motion to Compel is untimely pursuant to Local Rule 26.1(g)(1), which requires the Motion to have been filed within 30 days of when responses were due. Id. at ¶7 (citing S.D. Fla. L.R. 26.1(g)(1)). Following the Court granting an extension of time because the parties reported to be working towards settlement (DE 31; DE 32), Plaintiff filed its reply on September 10, 2021 arguing that it brought the Motion to Compel within thirty (30) days of the “occurrence of grounds for the motion” because, on August², 2021, Defendant’s counsel refused to commit to producing the financial information that Plaintiff requested. (DE 33 at 6) (referencing email correspondence attached as Exhibit E). Plaintiff argues that, central to this case, is whether remediation of the alleged barriers is “readily achievable,” which Plaintiff can prove through its expert’s examination of Defendant’s financial information or through admission of Plaintiff’s Request for Admission Number⁶ stating that “the removal of any barriers to access on the subject property is ‘readily achievable.’” (DE 33 at 7). Under the Federal Rules of Civil Procedure, a party may pose interrogatories related to any matter into which Rule 26(b) allows inquiry, Fed. R. Civ. P. 33 (a)(2), request the production of any documents that fall within the scope of Rule 26(b), Fed. R. Civ. P. 34(a), and serve requests to admit certain matters within the scope of Rule 26(b)(1), Fed. R. Civ. P. 36(a)(1). Under S.D. Fla. L.R. 26.1(g)(1), “[a]ll disputes related to discovery shall be presented to the Court by motion . . . within (30) days from the . . . original due date (or later date if extended by the Court or the parties) of the response or objection to the discovery request that is the subject of the dispute.” The rule also states that “[f]ailure to present the dispute to the Court within that timeframe, absent a showing of good cause for the delay, may constitute a waiver of the relief sought at the Court’s discretion.” Id. (emphasis added). Rule 37 provides that, if a motion to compel a discovery response is granted, “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 attorney’s fees” with certain exceptions permitted, including “other circumstances [that] make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A). Likewise, if a motion to compel is denied, Rule 37 provides for the same award of expenses to the opponent of the motion. Fed. R. Civ. P. 37(a)(5)(B). Here, I find that circumstances warrant granting the Motion to Compel only to the extent that it seeks to compel responses to the RFP and Interrogatories. Under the Federal Rules of Civil Procedure, the Court need not take action for RFAs to be deemed admitted where there is no response.² Fed. R. Civ. P. 36(a). As to the RFP and Interrogatories, the Court will exercise its discretion to not deem Plaintiff’s requested relief waived for failure to file the Motion to Compel within the timeframe provided by the Local Rules³ and will grant, in part, the motion to compel. Defendant apparently did not raise any proper objections to the requests, and Defendant raises no proper grounds for failing to serve responses. Defendant’s statement that “there is no need for the discovery” is both vague and improper, as is the flippant remark that “the deadlines in this case

Accordingly, it is hereby

United States Magistrate Judge