Weaver v. Mateer

• Decision Date: 03 November 2011
• Docket Number: Case No. 5:09-cv-514-Oc-34TBS
• Parties: EVERETTE WEAVER, Plaintiff, v. MATEER AND HARBERT, P.A., et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

EVERETTE WEAVER, Plaintiff,

v.MATEER AND HARBERT, P.A., et al., Defendants.

Case No. 5:09-cv-514-Oc-34TBS

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA OCALA DIVISION

Dated: November 3, 2011

ORDER

Pending before the Court are plaintiff, Everette Weaver's Motion to Compel Discovery of Defendant Lewis Dinkins (Doc. 100); Mr. Weaver's Motion to Compel Discovery of Defendant Mateer and Harbert (Doc. 102); his Motion to Compel Discovery of Defendant Renee Thompson (Doc. 103); and Plaintiff's Motion to Appoint Counsel (Doc. 160).

I. The Third Amended Complaint.

Mr. Weaver's Third Amended Complaint (Doc. 162) alleges that he engaged the Mateer & Harbert law firm ("Mateer") to overturn a $1,000,000 default final judgment that had been entered against him and to obtain for him a $250,000 judgment against Peter Zarcone d/b/a Southway Building Corporation ("Southway"). Defendant, Renee Thompson was the Mateer lawyer with primary responsibility for the representation. Mr. Weaver is suing Mateer and Ms. Thompson for breach of contract, breach of fiduciary duty, professional negligence and unjust enrichment in connection with the engagement. He alleges he was damaged because the judgment was not vacated, he did not recover a judgment against Southway, title to his home inFlorida was clouded by a notice of lis pendens and the property, upon which he owed over $400,000 was ultimately auctioned and sold for $100.

Defendant, Lewis Dinkins was the attorney for Southway who caused the lis pendens to be recorded against Mr. Weaver's home. Mr. Weaver seeks damages from Mr. Dinkins for professional negligence, the intentional infliction of emotional distress and legal fees based upon Mr. Dinkins alleged failure to adequately investigate Southway before agreeing to represent it and for the recording of the lis pendens.

II. The Motion to Compel Discovery from Lewis Dinkins.

Mr. Weaver propounded the following interrogatories and received the following answers from Mr. Dinkins:

Interrogatory No. 17. Explain in detail what happened when you went off the record to discuss the Goldstone Homes case with plaintiff's former attorney Renee Thompson and the presiding Judge Jack Singbush.

Answer: I have no recollection.

Interrogatory No. 23. On September 10, 2007 was Everette Weaver present in the courtroom? If not, give the names of the people present in the Courtroom on that day and if you do not know their names give a description of each person?

Answer: This interrogatory is objected to as exceeding the 25 permitted interrogatories under Rule 33(a)(1), and no permission to exceed that number has been obtained by Plaintiff. Nevertheless, the answer is "unknown and unable to do so."

Apparently, there was a hearing in state court on September 10, 2007 that was attended by Mr. Dinkins, Ms. Thompson and possibly others. Mr. Weaver denies being present but there is a transcript of the proceeding which shows him respondingto a question from the judge. This has resulted in Mr. Weaver propounding discovery to the defendants concerning his presence at the hearing. He is not satisfied with Mr. Dinkins responses to these interrogatories because in his opinion, Mr. Dinkins either knows the answers or if he cannot recall, he can find the answer to interrogatory 23 in the records in his possession (presumably the transcript). (Doc. 100). In his response (Doc. 104), Mr. Dinkins says his interrogatory answers are truthful and neither contradictory or evasive. He also says he did not have the benefit of the hearing transcript when he answered the interrogatories.

"Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath." Fed. R. Civ. P. 33(b)(3). The answers must be "true, explicit, responsive, complete, and candid." Equal Rights Center v. Post Props., Inc., 246 F.R.D. 29, 32 (D.D.C. 2007)(quoting Hansel v. Shell Oil Corp., 169 F.R.D. 303, 305 (E.D. Pa. 1996)). The party seeking the discovery has the burden of proving that a discovery response is inadequate. Equal Rights Center, 246 F.R.D. at 32. Mr. Weaver has not met his burden of showing Mr. Dinkins' answers to the interrogatories are inadequate, incomplete or evasive.

Mr. Weaver also asked Mr. Dinkins to produce documents. The requests and responses in controversy are:

Document Request No. 1. Copy of the summons the clerk of Court issued for Everett Weaver.

Response: not available.

Document request No.2. Copy of the proof of service to prove that Everette Weaver was served by a process server.

Response: A copy of the proof of service is produced with these responses.

Document request No. 3. Copy of the invoice you received from John Dorough for Southway's portion of the mediation settlement conference.

Response: not available.

Document request No. 4. Copy of the cancelled check you paid to John Dorough for the mediation settlement conference.

Response: not available.

Mr. Weaver is concerned about service of process because he contends that in a state court action original process was not served on him.¹ He is interested in payment for a mediation because, he says, Mr. Dinkins has stated that Southway paid one-half of the mediator's fee for a mediation and Mr. Weaver does not believe the mediator ever sent Southway a bill. Mr. Dinkins says he has produced the only responsive document in his possession and that he otherwise does not know or recall the information Mr. Weaver is seeking. While Mr. Weaver may not believe Mr. Dinkins he has not met his burden. He has not provided the Court any basis upon which a finding could be made that Mr. Dinkins is lying or that the requested documents exist and are in his possession.

III. The Motion to Compel Discovery from Mateer.

Mr. Weaver seeks an order compelling Mateer to answer or better answer the following interrogatories:

Interrogatory No. 2. If you had a contract to represent Weaver did you breach the contract? If no, itemize the steps you took to protect the interest of Weaver.

Answer: No. Defendant objects to the second question in Interrogatory # 2 in that it is overly broad, burdensome and designed to force an exhaustive or oppressive catalogue of information. Additionally, it is vague in that it is unknown what plaintiff means by "protect the interest of Weaver."

According to his motion, what Mr. Weaver is attempting to learn from this interrogatory is what Mateer did for the money it charged him. (Doc. 146). Mateer's position is that it answered the only part of the interrogatory it understands and the second part is not a good faith effort at discovery as evidenced by Mr. Weaver's statements including that Mateer's legal representation of him was "faulty, defective and deficient." (Doc. 102). Because Mr. Weaver has sued Mateer for breach of contract the scope of the firm's engagement, the services it was supposed to provide and the services it actually performed as part of the engagement are relevant. Therefore, it is appropriate for Mateer to state what work it did for Mr. Weaver.

Interrogatory No. 4. Did the clerk of the Court ever issue a summons for Everett Weaver? If no, state what actions you took after you found out? If yes, submit a copy.

Answer: Unknown.

Mr. Weaver's issue with this and several of the defendants' other interrogatory answers is that he believes they should be answered "yes" or "no." The Court respectfully disagrees. Lack of knowledge or the ability to recollect is, if true, a fair answer. In this case, Mr. Weaver has not demonstrated that Mateer's answer is untruthful or otherwise inappropriate.

Interrogatory No. 8. Why did you bill Weaver for 7.5 hours to travel to the Marion County Building Department to retrieve records? Please state what records you collected and how you used each record to represent your client's interest?

Answer: Defendant did not bill Plaintiff 7.5 hours to travel to the Marion County Building Department to retrieve records. Defendant objects to the second question posed in Interrogatory # 8 in that it is overly broad, burdensome, vague and is designed to force an exhaustive or oppressive catalogue of information.

This interrogatory is another attempt by Mr. Weaver to find out what Mateer did for him. The firm has answered the first question. As to the second question, if Mateer obtained records from the Building Department as part of its engagement by Mr. Weaver then identification of those records and how they were used by Mateer is discoverable.

Interrogatory No. 9. Did attorney Dinkins ever threaten any of the witnesses you subpoenaed to testify in this matter? If yes, state the actions you took after you found out.

Answer: Not to our knowledge.

One of the recurring issues in these discovery motions is that Mr. Weaver does not believe the defendants' responses. In Mr. Weaver's opinion, Mateer's answer to this interrogatory is a lie. However, his belief, in the absence of evidence is not sufficient to meet his burden to compel a better answer to the interrogatory.

Interrogatory No. 10. Were you aware that attorney Dinkins filed a lis pendens against Weaver's home? If yes, what did you do about it?

Answer: Yes. Defendant objects to the second question in Interrogatory # 10 as argumentative.

While Mateer may find the second question argumentative, if the firm's engagement included responding to the lis pendens then Mateer is obliged to state what in fact it did about the lis pendens.

Interrogatory No. 14. Explain in detail the difference between the representations you provided to Weaver and the attorney work product prepared by your firm and faxed to John Dorough on October 22, 2007.

Answer: This Defendant objects to Interrogatory # 14 as exceeding the 25 permitted Interrogatories under Rule 33(a)(1), and no permission to exceed that number was obtained by Plaintiff and is ambiguous, vague, confusing and unintelligible. (Sic)

Mr. Weaver does not dispute Mateer's contention that when sub-parts are included, this and the remaining interrogatories exceed the 25...