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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

CITIZENS STATE BANK, 

a Florida corporation, f/k/a

THE CITIZENS BANK OF 

PERRY, a Florida corporation,

Plaintiff,

v. CASE NO. 1:10-cv-224-SPM-GRJ

DIXIE COUNTY, a political 

subdivision of the State of Florida,

Defendant.

_____________________________/

O R D E R

This matter is before the Court on Defendant Dixie County’s Motion To Compel

Answers To Interrogatories And Responses To Requests To Produce From The

Plaintiff. (Doc. 60.) Plaintiff requests the Court to enter an order compelling Plaintiff to

respond to discovery requests served on the Plaintiff in May and June and to award

Defendant its attorney’s fees and costs incurred in filing the motion to compel. Plaintiff

has filed a response (Doc. 67) in opposition to the motion and, thus, this matter is ripe

for review. For the reasons discussed below, Defendant’s motion to compel is due to

be GRANTED. 

 DISCUSSION

Defendant served its Second Request to Produce on Plaintiff on May 13, 2011

and asked Plaintiff to produce all documents regarding the relationship between Plaintiff

and Charles L. Slaughter and Charles L. Slaughter Construction, the contractor on the

River Shores project. Defendant served its Second Set of Interrogatories on Plaintiff on

June 27, 2011. These interrogatories request information relevant to Plaintiff’s loan

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practices and Plaintiff’s constitutional claims in this case. Defendant’s Third Request

To Produce was also served on Plaintiff on June 27, 2011. This request for production

asks Plaintiff to produce documents relevant to Plaintiff’s responses to the Second Set

of Interrogatories. 

In its Response Plaintiff concedes that it did not respond to the discovery

requests in a timely manner. According to Defendant’s counsel, counsel had three

telephone conversations with Plaintiff’s counsel in July, and one in person discussion

on August 2, 2011, in an effort to obtain responses to the outstanding discovery

requests. Despite counsel’s good faith effort to obtain the discovery responses,

Plaintiff’s counsel did not provide any information as to when the responses would be

completed and served. 

In its response Plaintiff advises it is in the process of collecting the necessary

information and documents to respond to Defendant’s discovery requests. (Doc. 67.) 

Plaintiff represents it will require approximately one more week to finalize gathering the

relevant information to respond to Defendant’s discovery requests. Plaintiff therefore

does not object to the Court granting the motion to compel so long as the Court grants it

an additional seven days to respond to the outstanding discovery requests. Because

the current discovery deadline is August 31, 2011 (Doc. 55) an extension of time to

respond to the outstanding discovery requests will extend beyond the discovery

deadline in this case.

Because there is no dispute Plaintiff has failed to serve timely responses to

Defendant’s discovery requests, Defendant’s motion to compel is due to be granted.

The Court will, however, also grant Plaintiff an additional seven days, until September

5, 2011, to serve responses to the outstanding discovery requests. To accommodate

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the extension of time to serve responses to the discovery requests the discovery

deadline will also be extended until September 5, 2011 for this limited purpose. 

Defendant also requests an award of attorney’s fees and costs incurred in

bringing its motion to compel. Rule 37(a)(5) provides “if the disclosure or requested

discovery is provided after the motion was filed – the court must ... require the party ...

whose conduct necessitated the motion ... to pay the movant’s reasonable expenses

incurred in making the motion, including attorney’s fees.” As written the Rule mandates

that the Court award fees where, as here, the responses to the discovery requests are

provided after the filing of the motion. The Rule provides an exception to the

requirement that the Court “must” award of attorney’s fees in situations where the court

finds that the “opposing party’s nondisclosure ... was substantially justified” or finds

“other circumstances make an award of expenses unjust.” Id. Neither of these

situations are present in this case.

 In its Response, Plaintiff has failed to provide any reason or justification for the

delay in responding to Defendant’s discovery requests, other than suggesting that

“while the attorneys did confer concerning the discovery requests ... [Plaintiff’s counsel]

was never asked if he would stipulate to the granting of the motion as required by

N.D.Fla.Loc.R.7.1(B).” Doc. 67, Pl’s Response at p. 3. This statement misses the point

and misconstrues Plaintiff’s obligation. It was Plaintiff’s responsibility - and not

Defendant’s -- to request a stipulation for an extension of time to respond to the

discovery requests if additional time was required. And it was Plaintiff’s responsibility,

failing agreement by the parties regarding an extension of time, to file a motion to

obtain the Court’s permission to extend the time. Plaintiff did neither. Apparently

Plaintiff did not request Defendant to stipulate to an extension of time and the docket

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reflects Plaintiff never requested permission from the Court for additional time to

respond to the discovery requests. Consequently, Defendant was required to file a

motion to compel after Defendant’s efforts to obtain the discovery requests without

court intervention were unsuccessful. 

Accordingly, consistent with the mandate of Rule 37(a)(5) the Court is required to

award Defendant its reasonable expenses, including attorney’s fees, incurred in making

the motion. In this regard Defendant shall submit within ten days of this order an

affidavit detailing the attorney’s fees and expenses incurred in preparing and filing the

motion to compel. Plaintiff shall be afforded an opportunity to contest the amount of

attorney’s fees by filing a response within ten days after service of Defendant’s affidavit.

The Court will enter a further order setting the amount of attorney’s fees after receipt of

Defendant’s affidavit and Plaintiff’s response, if any.

Accordingly, upon due consideration, it is ORDERED:

(1) Defendant Dixie County’s Motion To Compel Answers To Interrogatories

And Responses To Requests To Produce From The Plaintiff (Doc. 60) is GRANTED.

Plaintiff shall provide full and complete responses to Defendant’s Second Request to

Produce, Second Set of Interrogatories, and Third Request To Produce on or before

September 5, 2011.

(2) Defendant Dixie County’s request for attorney’s fees in its Motion to Compel

is GRANTED. Within ten (10) days of the date of this Order Defendant shall file an

affidavit detailing the attorney’s fees and expenses it incurred in preparing and filing the

motion to compel. Plaintiff may file a response within ten days of receipt of Defendant’s

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affidavit.

(3) The discovery deadline in this case is extended until September 5, 2011 for

the sole purpose of permitting Plaintiff to serve full and complete responses to

Defendant’s outstanding discovery requests.

 DONE AND ORDERED this 29 day of August, 2011. 

th 

s/ Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

Case No: 1:10-cv-224-SPM -GRJ

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