Suffolk Constr. Co. v. Edenburg Hosp., Inc.
Suffolk Constr. Co. v. Edenburg Hosp., Inc.
2023 WL 3171965 (S.D. Fla. 2023)
March 9, 2023
Louis, Lauren F., United States Magistrate Judge
Summary
Edenburg and Westchester requested documents and communications related to the hotel construction project, including project schedules in their native file format. Suffolk was ordered to produce the schedules by March 10, 2023 and documents and communications related to its damages by March 20, 2023. A Status Conference regarding production of documents was scheduled for March 13, 2023.
SUFFOLK CONSTRUCTION COMPANY, INC., Plaintiff,
v.
EDENBURG HOSPITALITY, INC., et al., Defendants
v.
EDENBURG HOSPITALITY, INC., et al., Defendants
Case No. 1:22-cv-20431-KMM
United States District Court, S.D. Florida
Signed
March 06, 2023
Entered March 09, 2023
Counsel
Juan Diaz, Suffolk Construction Company, Inc., West Palm Beach, FL, Ira L. Libanoff, Jordana Lee Goldstein, Ferencik Libanoff Brandt Bustamante & Williams, Fort Lauderdale, FL, for Plaintiff.Brian Scott McHugh, Brian S. McHugh, P.A., Pompano Beach, FL, for Defendant Edenburg Hospitality, Inc.
Edward Etcheverry, Jeffrey Scott Geller, Etcheverry & Harrison LLP, Plantation, FL, for Defendant Westchester Fire Insurance Company.
Louis, Lauren F., United States Magistrate Judge
ORDER
*1 THIS CAUSE is before the Court upon Defendant Edenburg Hospitality, Inc.’s (“Edenburg”) Motion to Compel Production of Documents from Plaintiff and Overrule Plaintiff's Objections to Defendant's First Request for Production (ECF No. 86). Plaintiff Suffolk Construction Company, Inc. (“Suffolk”) filed a Response in opposition (ECF No. 88), to which Defendant filed a Reply (ECF No. 92). The matter was referred to the undersigned by the Honorable K. Michael Moore, United States District Judge, pursuant to 28 U.S.C. § 636 and the Magistrate Judge Rules of the Local Rules of the Southern District of Florida, to take all necessary and proper action as required by law with respect to any and all pretrial discovery matters. (ECF No. 6). I convened a hearing on the Motion on March 6, 2023. The Motion was resolved in open court; this Order memorializes but does not alter the rulings made on the record.
In its Motion filed on the last day of the discovery period provided for in the District Court's Scheduling Order, Edenburg moved to compel Suffolk to produce documents responsive to Edenburg's First Request for Production. Notwithstanding the Parties’ widely divergent positions regarding the nature and sufficiency of the pre-filing conferral that occurred here under Local Rule 7.1(a)(1)(3), and notwithstanding the Parties’ apparent lack of meaningful engagement in discovery throughout the discovery period prescribed in the District Court's Scheduling Order,[1] Edenburg's request to compel the production of documents is well-placed.
Edenburg's Motion sought in overly generalized terms for the Court to overrule Suffolk's objections to Edenburg's First Request for Production, without sufficient explanation as to the proportionality of the discovery requested at this late posture with trial looming. However, at the hearing on March 6, 2023, Edenburg and surety co-defendant Westchester Fire Insurance Company (“Westchester”) advanced with particularity the categories of documents and records of communications sought, and explained their need. These documents and communications included project schedules, in their native file format, for the hotel construction project that is the subject of the Parties’ dispute. In this regard, Suffolk represented at the hearing that it was prepared to produce those documents in their native file format, beyond the schedules in PDF format previously produced, notwithstanding that Westchester had not propounded a request for the production of the schedules in the native format. Nonetheless, Suffolk was ordered to produce the schedules in their native format by no later than Friday, March 10, 2023.
Edenburg also clarified its request for communications between Suffolk and its chargeback contractors and various documents concerning those chargeback contractors’ work on the hotel construction project. Edenburg advanced that these documents and communications relate to Suffolk's calculation of its damages in this action, and the invoices Suffolk has produced in support of those damages. In light of Suffolk's representations in its responses to Edenburg's First Request for Production that Suffolk would produce documents responsive to the requests seeking this information, Suffolk was ordered to produce those documents and communications by no later than March 20, 2023.
*2 Under Federal Rule of Civil Procedure 37(a)(5), the shifting of fees and expenses incurred in making a motion to compel is mandatory where the motion is granted or where the disclosure or requested discovery at issue is later provided after the motion to compel was filed. The documents that Suffolk has been ordered to produce are those which Suffolk represented in its responses that it would produce. However, upon request made at the March 6, 2023 hearing, the Court will reserve ruling on the shifting of fees.
Based on the foregoing, and for the reasons stated on the record at the March 6, 2023 hearing on the Motion to Compel, it is
ORDERED AND ADJUDGED that
(1) Defendant Edenburg Hospitality, Inc.’s Motion to Compel Production of Documents from Plaintiff and Overrule Plaintiff's Objections to Defendant's First Request for Production (ECF No. 86) is GRANTED, in part;
(2) By no later than Friday, March 10, 2023, Plaintiff Suffolk Construction Company, Inc. shall produce schedules for the hotel construction project in their native format;
(3) By no later than Monday, March 20, 2023, Plaintiff Suffolk Construction Company, Inc. shall produce (a) documents responsive to Request Nos. 51, 52, 119, 120, 122, 123, and 127 in Edenburg's First Request for Production; (b) documents responsive to Request No. 41, to include communications between Suffolk and the owner of the project, concerning Edenburg's performance of the work that are within Suffolk's possession, custody, or control; and (c) documents responsive to Request No. 43, limited to communications between Suffolk and the owner of the project concerning the costs incurred by Suffolk in having to retain and hire the chargeback contractors listed in Request No. 51;
(4) The Court RESERVES RULING on an award of fees under Federal Rule of Civil Procedure 37(a)(5); and,
(5) The Court shall hold a Status Conference regarding production of documents responsive to the foregoing requests on Monday, March 13, 2023, at 11:00 A.M. in Miami Division at the C. Clyde Atkins United States Courthouse, 11th Floor, 301 North Miami Avenue, Miami, Florida 33128.
DONE AND ORDERED in open court at Miami, Florida, this 6th day of March, 2023.
Footnotes
For example, the Parties represented to the Court that, despite filing their Joint Scheduling Report (ECF No. 35) in May 2022, they did not agree to a production protocol for electronically stored information until after the deadline to complete discovery had passed, in January 2023. This Court's Orders are not mere suggestions.