J.S., Plaintiff, v. GREG ABRAMS SEAFOOD INC.,

Lipcon, Margulies, Alsina & Winkleman, P.A - Maritime Lawyer

February 4, 2015

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION

CASE NO. 5:14-cv-116-RS-EMT
J.S.,

Plaintiff,

v.

GREG ABRAMS SEAFOOD INC.,

Defendant.
/

PLAINTIFF’S MOTION TO COMPEL BETTER RESPONSES
TO PLAINTIFF’S INITIAL DISCOVERY FROM DEFENDANT

The Plaintiff, J.S., by and through undersigned counsel and pursuant to Federal Rules of Civil Procedure, Local Rule 26.2 and this Court’s Scheduling and Mediation Order [D.E. 12], hereby respectfully moves to compel Defendant, GREG ABRAMS SEAFOOD INC. (“Greg Abrams”) to provide better responses to Plaintiff’s initial discovery. In furtherance thereof, the Plaintiff states as follows:
          I. Introduction
The instant matter arises out of the personal injuries sustained by the Plaintiff while he was working as a seaman aboard Defendant’s vessel. On May 8, 2014, the Plaintiff filed his Complaint, alleging Jones Act Negligence (Count I), Unseaworthiness (Count II), Failure to Pay Maintenance and Cure (Count III), and Failure to Treat (Count IV).
On October 27, 2014, the Plaintiff propounded his initial discovery upon Greg Abrams, including Interrogatories and Request for Production. On December 5, 2014, Greg Abrams served its responses to such discovery. The Plaintiff hereby respectfully requests this Honorable Court enter an order compelling Greg Abrams to provide better responses to the requests specified below.
          II. Argument
The scope of discovery under Rule 26(b) is broad, allowing parties to “obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.” Id. (emphasis added); see Hickman v. Taylor, 329 U.S. 495, 507-508, 67 S.Ct. 385, 91 L.Ed. 451 (1947); Farnsworth v. Proctor and Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985) (the Federal Rules of Civil Procedure “strongly favor full discovery whenever possible”); see also Donahay v. Palm Beach Tours & Transp., Inc., 242 F.R.D. 685, 687 (S.D. Fla. 2007). Thus, under Rule 26, relevancy is “construed broadly to encompass any matter that bears on, or that reasonably could lead to another matter that could bear on any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 352, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978). In short, information can be relevant and therefore discoverable, even if not admissible at trial, so long as the information is reasonably calculated to lead to the discovery of admissible evidence. Dunbar v. United States, 502 F.2d 506 (5th Cir. 1974).
Thus, “[f]or good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.” Fed. R. Civ. P. 26(b)(1). Herein, as set forth in detail below, Greg Abrams’ responses to Plaintiff’s Interrogatory number 20 and Requests for Production numbers 13, 36 and 38 are incomplete.
Interrogatory No. 20
Interrogatory:
Please state the daily amount that you paid to Plaintiff or on Plaintiff’s behalf for maintenance, along with the dates of payment and a breakdown as to how you arrived at the daily amount paid.

Answer:
See attached Payment List.

The information requested in this interrogatory is necessary for the Plaintiff’s claim of Failure to Pay Maintenance and Cure (Count III). Specifically, under maritime law, the seaman’s employer has the duty to pay maintenance and cure when the seaman falls ill or is injured and leaves the ship. See Morales Garijak, Inc., 829 F. 2d 1355 (5th Cir. 1987). This duty continues until the seaman is cured or, if there is permanent impairment, until he reaches the point of “maximum cure” and/or “maximum medical improvement,” which is a medical determination, not a legal one. See Farrel v. United States, 336 U.S. 511 (1949).
Furthermore, if an employer terminates maintenance and cure payments despite having knowledge that the seaman’s treating physicians have not declared him at “maximum cure,” it is considered a willful and arbitrary refusal warranting the imposition of punitive damages. See Hines v. J.A. LaPorte, Inc., 820 F. 2d 1187 (11th Cir. 1987) (finding that defendant’s termination of cure payments – despite lack of information concerning whether he had reached maximum medical cure – was arbitrary and in bad faith, warranting the imposition of punitive damages).
Count III of Plaintiff’s Complaint alleges that Greg Abrams delayed, failed and/or refused to pay the Plaintiff’s entire maintenance and cure. [D.E. 1, ¶¶24-28]. Interrogatory No. 20 is therefore directed at proving such claim. In response to the interrogatory, Greg Abrams refers to a Payment List, which it produced and is attached hereto as Exhibit 1. Greg Abrams also produced check, which are attached hereto as composite Exhibit 2.
A review of the list and checks shows, however, that they are incomplete. Specifically, the payment list appears to be missing entries for the months of November and December (if payments were in fact made). In addition, the checks produced by Greg Abrams do not match the payment list – while there are 32 entries of payments on the list, only 12 checks were produced.
Further, Greg Abrams’ response also fails to provide a breakdown of how it arrived at the amount provided (i.e., $500.00), as requested in the interrogatory.
Request for Production No. 13
Request:
Any and all ship’s logs (including, but not limited to, deck log, engineering log, maintenance and repair log, radio-telephone log, purser’s log, Plaintiff’s department log) rough and smooth for the voyage(s) during which Plaintiff’s incident(s)/accident(s) occurred.

Response:
None.
The ship’s logs requested herein are necessary and relevant to the Plaintiff’s case. These logs may include, for instance, the type of fish the crew was catching and what equipment was loaded on the vessel. This is particularly important to the Plaintiff’s case because the Plaintiff alleges that he sustained injuries as a result of, inter alia, Defendant’s failure to have the vessel properly configured for the type of work the Plaintiff was assigned. [D.E. 1, ¶13].
Although Greg Abrams simply responded “None,” the Plaintiff finds this hard to believe in light of a business like Greg Abrams’ restaurant needing a log to document the amount and type of fish caught, whether they were fishing in an authorized area, the amount of fuel used, what the sea conditions and/or weather conditions were during the voyage, etc. The Plaintiff therefore asked Defendant for clarification (i.e., whether it meant that there was never a log of any kind or that Greg Abrams no longer has a log in its possession). However, counsel did not clarify the response.
Request for Production No. 36
Request:
Copies of checks and records, and/or accounting summaries, reflecting payment(s) made by (or on behalf of) Defendant to Plaintiff for maintenance and cure, including sick wages and earned wages due the Plaintiff with respect to injuries sustained in the incident(s)/accident(s) cited in the Complaint.

Response:
          List attached.

Plaintiff refers to and incorporates by reference the argument set forth for Interrogatory No. 20 because: 1) the documents sought herein were requested for the same purpose (i.e., to prove Plaintiff’s claim that Greg Abrams delayed, failed and/or refused to pay the Plaintiff’s entire maintenance and cure); and 2) the deficiency of the documents produced by Greg Abrams is the same as those discussed above (i.e., only 12 checks were produced, despite the 36 entries listed in the payment list).
Request for Production No. 38
Request:
Copies of checks and records, and/or accounting summaries, reflecting payments by Defendant’s to others (besides Plaintiff) for maintenance and cure provided to the Plaintiff, with respect to the injuries sustained by the Plaintiff in the incident(s)/accident(s) cited in the Complaint.

Response:
           Attached.

Plaintiff refers to and incorporates by reference the argument set forth for Interrogatory No. 20 because: 1) the documents sought herein were requested for the same purpose (i.e., to prove Plaintiff’s claim that Greg Abrams delayed, failed and/or refused to pay the Plaintiff’s entire maintenance and cure); and 2) the deficiency of the documents produced by Greg Abrams is the same as those discussed above (i.e., only 12 checks were produced, despite the 36 entries listed in the payment list).
          WHEREFORE, based on the foregoing, the Plaintiff respectfully requests this Honorable Court enter an order compelling Greg Abrams to provide better responses to Plaintiff’s Initial Interrogatory number 20 and Initial Requests for Production numbers 13, 36 and 38 consistent with this motion, as well as any further relief this Court deems just and proper.

CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1

The undersigned counsel hereby certifies that Plaintiff’s counsel has conferred or attempted to confer with counsel for Defendant numerous times concerning the instant motion and the relief sought herein, but defense counsel did not provide a response to the deficiencies addressed herein.

Respectfully submitted,
LIPCON, MARGULIES,
ALSINA & WINKLEMAN, P.A.
Attorneys for Plaintiff
One Biscayne Tower, Suite 1776
2 South Biscayne Boulevard
Miami, Florida 33131
Telephone No.: (305) 373-3016
Facsimile No.: (305) 373-6204

By: /s/ Ricardo V. Alsina
RICARDO V. ALSINA
Florida Bar No. 883182

CERTIFICATE OF SERVICE

          I hereby certify that on February 4, 2015, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some electronically Notices of Electronic Filing.

By: /s/ Ricardo V. Alsina
RICARDO V. ALSINA