Fodor v. Eastern Shipbuilding Group
Fodor v. Eastern Shipbuilding Group
2013 WL 11325063 (N.D. Fla. 2013)
August 30, 2013
Kahn, Charles J., Jr., United States Magistrate Judge
Summary
The court denied the defendant's request for Electronically Stored Information without prejudice, based on the plaintiff's sworn statement that he had never posted any information regarding the matters covered by production request 18 on his Facebook account. The court also denied plaintiff's motion to waive mediation fees and granted defendant's motion to compel in part.
Ferenc Fodor, Plaintiff,
v.
Eastern Shipbuilding Group, Defendant
v.
Eastern Shipbuilding Group, Defendant
Case No: 5:12cv28/RS/CJK
Signed August 30, 2013
Kahn, Charles J., Jr., United States Magistrate Judge
ORDER
*1 I held a case management and discovery conference in this matter on August 29, 2013, in Courtroom 3 of the United States District Courthouse in Pensacola, Florida, where I addressed the following matters: (1) plaintiff's motion to compel (doc. 73) and related motion for issuance of a subpoena duces tecum (doc. 82), and defendant's responses (docs. 77, 83); (2) plaintiff's motion to waive mediation fees (doc. 72) and defendant's response (doc. 76); (3) plaintiff's not having filed his second amended complaint adding his proposed claim for punitive damages by August 8, 2013, the deadline imposed by Judge Smoak (doc. 74); (4) defendant's motion to compel (doc. 79) and plaintiff's response and request for a protective order (doc. 86); and (5) plaintiff's notice that the parties have been unable to agree on a mediator (doc. 81). I ruled on all matters and stated my reasons on the record. This order memorializes my rulings and provides a limited statement of my reasons, where appropriate. A full explanation of my reasons is available by obtaining a transcript of the conference.
Plaintiff's Motion to Compel
I held an evidentiary hearing on the issue of the authenticity of the employment applications produced by the defendant in response to plaintiff's request for his “original employment application”. I have determined that the employment applications proffered by the defendant and marked in court during the hearing are responsive to plaintiff's request to produce, and have been produced for inspection and copying. Plaintiff admitted that the employment applications the defendants produced were completed by him and signed in his own hand. No evidence has been forthcoming to support plaintiff's claim that the documents are forgeries. I further note that the defendant offered to produce the employment applications within the timeframe provided by the Federal Rules of Civil Procedure, although defendant was understandably reluctant to part with the original documents. Accordingly, I denied plaintiff's motion to compel and motion for issuance of a subpoena duces tecum.
Plaintiff's Motion to Waive Mediation Fees
Plaintiff's motion to waive mediation fees was denied. Although the in forma pauperis statute provides indigent litigants with access to the courts by waiving the full prepayment of fees, costs and certain expenses, see 28 U.S.C. § 1915(a) and (c), no provision of the statute authorizes courts to commit federal monies for payment of mediation fees or other expenses in a civil suit brought by an indigent litigant. I further note that I offered the parties the opportunity to participate in a settlement conference with me free of charge, and plaintiff declined that opportunity.
Plaintiff's Second Amended Complaint
The deadline for plaintiff's filing of a second amended complaint was August 8, 2013. To date, plaintiff has not filed a second amended complaint. I provided plaintiff an additional fifteen days, until the close of business on September 13, 2013, in which to file his second amended complaint. Plaintiff's second amended complaint must be confined to adding a claim for punitive damages (and sufficient allegations to support that claim) and shall not add additional parties or plaintiff's proposed claim for spoliation of evidence, as plaintiff's request for those proposed amendments was denied. (See Docs. 62, 74). If plaintiff fails to file a second amended complaint by September 13, 2013, he will be deemed to have waived his right to amend.
Defendant's Motion to Compel
*2 Defendant's motion to compel (doc. 79) is divided into ten subparts lettered BK. I considered plaintiff's responses and all objections raised by him.
Subpart B. I granted defendant's request to compel answers to interrogatories 2, 3 and 14. I also granted defendant's motion to compel production of the documents sought in requests for production 15 and 16. I denied without prejudice defendant's motion to compel production as to document request 24 (a completed and signed Request for Transcript of Tax Return to release plaintiff's tax returns from the Internal Revenue Service). If plaintiff does not produce his federal tax returns by September 13, 2013, defendant may re-submit its request for a signed release.
Subpart C. I granted defendant's motion to compel production of the documents sought in requests for production 17 and 22. I reserved ruling on request for production 23.
Subpart D. I granted defendant's motion to compel an answer to interrogatory 11 to the extent that defendant's counsel may question plaintiff at his deposition about any prior complaints of harassment and discrimination. I granted defendant's motion to compel production of the documents sought in request for production 11.
Subpart E. I granted defendant's motion to compel answers to interrogatories 4 and 5. Plaintiff answered interrogatory 6, under oath, at the hearing.
Subpart F. I granted defendant's motion to compel an answer to interrogatory 15. I also granted defendant's motion to compel production of the documents sought in request for production 4.
Subpart G. I granted defendant's motion to compel answers to interrogatories 8, 9 and 10. I also granted defendant's motion to compel production of the documents sought in request for production 14. As to request for production 21 (a signed medical release), I granted defendant's request and ordered plaintiff to sign defendant's proposed medical release on the condition that the parties enter into a confidentiality agreement that plaintiff's medical records will be seen only by defendant's counsel, corporate representatives[1] and medical experts, and will be used only in furtherance of this litigation.
Subpart H. I denied without prejudice defendant's request to compel production of the Electronically Stored Information (“ESI”) sought in request for production 18, based on plaintiff's sworn statement at the hearing that he maintains an account on Facebook.com, but has never posted any information regarding the matters covered by production request 18. Counsel may, however, inquire further as to these matters at plaintiff's deposition.
Subpart I. I denied without prejudice defendant's request to compel an answer and production with regard to interrogatories 12 and 17, and document request 13, based on plaintiff's sworn statement at the hearing that the only person with whom he has discussed, or contacted concerning this action or the matter alleged in his complaint is his spouse.
Subpart J. I denied without prejudice defendant's request to compel an answer and production with regard to interrogatories 13 and 18, and document requests 5, 10 and 19, based on plaintiff's sworn statement at the hearing in which he described the recorded conversation he had with employees of the defendant, and attested that the audio recording is no longer available because he misplaced it. Counsel may inquire further as to this matter at plaintiff's deposition.
*3 Subpart K. I granted defendant's request to compel production with regard to document requests 6 and 20 to the extent that the defendant may examine plaintiff about these matters at plaintiff's deposition.
Plaintiff's Notice that the Parties are Unable to Agree On a Mediator
I will not appoint a mediator at this time, as I do not feel mediation would be helpful in settlement either now or in the foreseeable future. Counsel for the defendant agreed with this assessment, although she has never expressed any unwillingness to attempt resolution of this matter in good faith.
1. Plaintiff's motion to compel (doc. 73) and motion for issuance of a subpoena duces tecum (doc. 82) are DENIED.
2. Plaintiff's motion to waive mediation fees (doc. 72) is DENIED.
3. Defendant's motion to compel (doc. 79) is GRANTED IN PART AND DENIED WITHOUT PREJUDICE IN PART as outlined above. On or before September 13, 2013, plaintiff must provide complete answers to the interrogatories on which I granted defendant's motion to compel, and must produce the documents sought in the requests for production on which I granted defendant's motion to compel. Plaintiff's failure to comply will result in sanctions, which may include but are not limited to, payment of defendant's reasonable expenses, including attorney's fees, an order striking plaintiff's damages claims, and dismissal of this action. See Fed. R. Civ. P. 37(b).
4. Plaintiff's request for a protective order (doc. 86) is DENIED.
5. Plaintiff shall file his second amended complaint by September 13, 2013. Failure to do so will result in plaintiff being deemed to have waived his right to amend, and the Court proceeding on plaintiff's first amended complaint.
6. A ruling on the issue of plaintiff's payment of defendant's expenses incurred in making its motion to compel is RESERVED. Defendant may, at its option, file an appropriate motion itemizing its expenses, including attorney's fees.
DONE AND ORDERED this 30th day of August, 2013.
Footnotes
During the hearing, the corporate representative, of his own volition, agreed that employees of the defendant would not have access to plaintiff's medical records, absent further order of the court.