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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

ANGELA D. BUTLER,

Plaintiff,

v. CASE NO. 5:11-cv-44-RS-GRJ

SMITH, DEAN & ASSOCIATES, INC.,

a Florida Corporation, 

Defendant.

____________________________ /

O R D E R

Pending before the Court is Plaintiff’s Motion To Compel Production Of

Documents And Compel Complete Responses To Plaintiff’s First Request For

Production Of Documents. (Doc. 34.) Plaintiff requests the Court to enter an order

compelling Defendant to produce documents and provide more complete answers to

Plaintiff’s requests for production. Defendant has not filed a response to the motion and

the time for doing so has long since passed.

According to Plaintiff, although Defendant has served several responses to

Plaintiff’s request for production, Defendant failed to provide a promised supplemental

response and failed to provide any documents in response to the Plaintiff’s discovery

requests. Plaintiff requests that Defendant provide more complete responses to

Plaintiff’s requests for production nos. 6, 7, 9, 10, 13, and 16, which concern, inter alia,

previous litigation filed against Defendant, a list of Defendant’s employees, Defendant’s

tax returns and financial statements. 

Because Defendant has failed to file a response to Plaintiff’s motion the Court

assumes that Defendant does not have any meaningful arguments to offer in opposition

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to Plaintiff’s request and therefore the motion is due to be granted.

In addition, Plaintiff requests an award of attorney’s fees pursuant to Rule

37(a)(5) of the Federal Rules of Civil Procedure due to Defendant’s failure to provide

the requested discovery. Rule 37(a)(5) provides “If the motion 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.” As written the Rule mandates that the

Court award fees where, as here, the motion is granted. 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.

Because Defendant has failed to file a response to the motion, Defendant has failed to

demonstrate that either of these situations is present in this case. Accordingly, Plaintiff

is entitled to an award of attorney’s fees incurred in preparing and filing the motion to

compel. Plaintiff will be given ten days to file an affidavit establishing the time expended

and the hourly rate for the requested attorney’s fees. Defendant shall have ten days

thereafter to file a response to the requested amount of attorney’s fees. The Court will

then take the matter under advisement and issue a further order as to the amount of

attorney’s fees to be awarded.

Accordingly, upon due consideration, it is ORDERED that:

(1) Plaintiff’s Motion To Compel Production Of Documents And Compel

Complete Responses To Plaintiff’s First Request For Production Of

Documents (Doc. 34) is GRANTED. 

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(2) Defendant shall provide full and complete responses to Plaintiff’s requests

for production nos. 6, 7, 9, 10, 13, and 16 and shall produce all

documents responsive to each of those requests for production on or

before October 19, 2011. 

(3) Plaintiff’s request for attorney’s fees is granted. Plaintiff shall file an

affidavit in support of her request for attorney’s fees within ten days.

Defendant shall have ten days after service of Plaintiff’s affidavit to file a

response to the amount of attorney’s fees requested.

DONE AND ORDERED this 4 day of October, 2011. th

s/Gary R. Jones

GARY R. JONES

United States Magistrate Judge

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