GRAZIANO

v.

EAGLE CREEK OF NAPLES CONDOMINIUM ASSOC., INC.

Before the Court is Defendant Jeffrey S. Schelling P.A.’s Motion to Dismiss as Sanctions for Plaintiff’s Failure to Comply with this Court’s Order. (Doc. 142.)¹ Plaintiff Thomas Graziano has responded in opposition. (Doc. 143.) For the reasons below, Schelling’s motion is granted in part and denied in part.

I. Background

As part of discovery, Schelling served requests for production and interrogatories on Graziano. (Doc. 137.) Graziano did not respond. The parties spoke on the phone to resolve the missing discovery but could not reach an agreement. (Doc. 137, Doc. 139 at 3, Doc. 139-3.) Schelling thus moved to compel production. (Doc. 137.)

On the night his discovery responses were due, Graziano asked Schelling to sign a confidentiality agreement in exchange for the documents. (Doc. 143- 2 at 4.) Schelling did not respond. (Id. at 5-6.) Nearly a month later, Graziano finally provided his overdue discovery responses. (Id. at 12.)

Schelling now seeks sanctions, arguing Graziano’s untimely responses are “woefully inadequate, evasive, incomplete, . . . and improperly raise objections which were waived by their non-response and this Court’s Order compelling Plaintiff to answer.” (Doc. 142 at 4, 5.) Schelling claims this conduct justifies a death blow and asks the Court to dismiss Graziano’s case. (Doc. 142 at 9.) Graziano acknowledges he did not provide discovery responses by the deadline in this Court’s order. (Doc. 143 at 3.) That said, Graziano believes he was relieved from complying because he requested a protective order in his motion for reconsideration, which stayed the deadline. (Id. at 3, 4.) He also asserts he satisfied the spirit of the Court’s order by making the documents available to Schelling, so long as he consented to the proposed confidentiality agreement. (Id. at 7.) Thus, the argument goes, Schelling should have cooperated with Graziano to protect the documents’ confidentiality. (Id.) Finally, Graziano asserts the motion should be denied because Schelling has not shown how the discovery responses are incomplete or deficient. (Id. at 9.)

II. Legal Standard

This Court has broad authority to sanction a party “for abuse of the discovery process.” Lawal v. RTM, 260 F. App’x 149, 154 (11th Cir. 2006). “Federal Rule of Civil Procedure 37 provides different remedies for discovery violations depending on whether those violations occur due to a party’s failure to respond to discovery requests, in the context of an order granting or denying a discovery motion, or when a party disobeys a discovery order.” Maletta v. Woodle, No. 2:20-CV-1004-JES-KCD, 2022 WL 3213426, at *2 (M.D. Fla. Aug. 9, 2022). Under Rule 37, a Court may strike pleadings, dismiss an action, render a default judgment, or issue “further just orders” when a party disobeys a discovery order as alleged here. Fed. R. Civ. P. 37(b)(2)(A). As mentioned, Schelling seeks dismissal. This is a tall ask. Dismissal is available only when: “(1) a party’s failure to comply with a court order is a result of willfulness or bad faith; and (2) the [court] finds that lesser sanctions would not suffice.” Lyle v. BASF Chemistry, Inc., 802 F. App’x 479, 482 (11th Cir. 2020). As for the first prong, “all that is required to demonstrate willfulness, bad faith, and fault is disobedient conduct not shown to be outside the control of the litigant.” Williams v. Youth Opportunity Invs., LLC, No. 5:20-

CV-449-JSM-PRL, 2021 WL 11642385, at *2 (M.D. Fla. Sept. 29, 2021). Under the second prong, the court must consider lesser sanctions because “[d]ismissal of a complaint with prejudice is considered a sanction of last resort, applicable only in extreme circumstances.” Zocaras v. Castro, 465 F. 3d 479, 483 (11th Cir. 2006). “Ultimately, Rule 37 sanctions are intended to prevent unfair prejudice to the litigants and ensure the integrity of the discovery process.” Maletta, 2022 WL 3213426 at *2.

III. Discussion

The Court is satisfied that Schelling has shown Graziano willfully violated a court order. Maletta, 2022 WL 3213426, at *2 (“The party moving under Rule 37(b) must first show that a court order has been violated.”). Graziano was directed to answer the outstanding discovery by September 27, 2023. (Doc. 138 at 3.) He was aware of this deadline, but acknowledges he withheld the discovery responses for another month. (Doc. 143 at 3.) This is enough to trigger Rule 37(b)(2)(A). See Williams, 2021 WL 11642385, at *2.2 Graziano’s argument that his motion for reconsideration automatically stayed the September 27 deadline because it also sought a protective order is dead wrong. (Doc. 143 at 3.) Moving for a protective order “do[es] not stay a party’s duty to respond to discovery.” Martin v. Am. Traveler Staffing Pros., LLC, No. 08-80461-CIV, 2008 WL 11381806, at *4 (S.D. Fla. Sept. 16, 2008); see also Versage v. Marriott Int’l, Inc., No. 6:05-CV-974ORL19JGG, 2006 WL

3614921, at *7 (M.D. Fla. Dec. 11, 2006). Even worse, his argument is grounded in a false premise. Graziano never asked for a protective order. The Court can similarly dispose of Graziano’s claim that he followed the spirit of the Court’s order because the documents were available to Schelling if he accepted the confidentiality agreement. (Doc. 143 at 4-5). To be sure, Graziano was entitled to make such a request. But “[t]he Federal Rules of Civil

WM Aviation, LLC v. Cessna Aircraft Co., No. 611CV2005ORL18GJK, 2012 WL 13145515, at *6 (M.D. Fla. Sept. 21, 2012). Nor does a pending request for a confidentiality agreement suspend discovery. See Quinn v. Deutsche Bank Nat. Tr. Co., 625 F. App’x 937, 939 (11th Cir. 2015) (“Deadlines are not meant to be aspirational.”). The timeline only further undermines Graziano’s position. He waited until the night the discovery responses were due to ask Schelling to sign a confidentiality agreement. (Doc. 143-2.) He then refused to produce the documents until Schelling acquiesced. (Doc. 143 at 4-5.) But Graziano had two months to seek a confidentiality agreement if he thought it was needed. And had negotiations failed, the proper course was to move for a protective order not unilaterally withhold the discovery responses. Graziano seemingly sat on his hands until the deadline arrived and withheld the discovery, in defiance of the Court’s order, when Schelling would not agree to the proposed confidentiality agreement.³ That is unacceptable.

ow ee te Ce [...] ft atl Keele C. Dudek United States Magistrate Judge

Copies: All Parties of Record