The opinion of the court was delivered by: Honorable Hugh B. Scott United States Magistrate Judge
Initially before the Court was plaintiffs' motion to compel answers to their Interrogatories and document production (Docket No. 19). Responses to this motion were due by November 21, 2007, reply by November 30, 2007, and this motion was to be submitted (without oral argument) on November 30, 2007 (Docket No. 20). Defendant replied on November 20, 2007 (Docket No. 23). Later that day, plaintiffs filed their notice to withdraw this motion (Docket No. 24). The Court terminated that motion (Docket No. 19) on November 26, 2007 (Docket No. 25).
The issue remaining is whether plaintiffs (or their counsel or both) should be sanctioned under Federal Rule of Civil Procedure 37(a)(4)(B) for filing the second withdrawn motion. Plaintiffs were given until December 4, 2007, to address this*fn1 with defendant allowed to respond by December 11, 2007 (id.).
This is an Americans with Disabilities Act ("ADA") case against a hotel for allegedly failing to accommodate plaintiff Marcus Ingram, a disabled veteran. Ingram is a member of plaintiff Disabled Patriots of America, a non-profit Florida corporation which represents the interests of its members (including individuals with disabilities as defined by the ADA) "by assuring places of public accommodation are accessible to and usable by the disabled and that its members are not discriminated against because of their disabilities" (Docket No. 1, Compl. ¶¶ 6, 7). Plaintiffs allege that defendant's hotel, the Inn on the River, in Niagara Falls, New York, had architectural barriers that endangered Ingram's safety and that defendant discriminated against Ingram due to his disability (id. ¶¶ 3, 6, 11). Defendant answered on June 11, 2007 (Docket No. 4).
Plaintiffs' First Motion to Compel--Inspection of Defendant's Premises
Following entry of the Scheduling Order (Docket No. 11), plaintiffs served their request for entry upon land for inspection under Federal Rule of Civil Procedure 34 (Docket No. 17, Ex. A, Ex. D, Pls. Atty. Aff. ¶ 2 (hereinafter cited as "Pls. Atty. Aff.")), scheduling that entry for October 11, 2007. Plaintiffs' counsel, Thomas Bacon*fn2 of Fuller, Fuller & Associates, P.A., of North Miami, Florida, had to cancel the October 11, 2007, inspection due to the last minute unavailability and travel logistics (Docket No. 17, Pls. Atty. Aff. ¶ 5, Ex. B), and sought to have defendant give him dates to reschedule the inspection. By October 25, 2007, defendant had not provided plaintiffs with a new date for the inspection (id. Pls. Atty. Aff. ¶¶ 6, 7, Ex. C; see Docket No. 26, Pls. Response Ex. B). That e-mail also noted that defendant had not responded to other, unspecified discovery. This e-mail said that one motion to compel (apparently Docket No. 17) was already drafted and would be filed by October 27, 2007, if no date were set for the inspection and that another motion would be filed regarding the remaining outstanding discovery (Docket No. 17, Pls. Atty. Aff., Ex. C).
Plaintiffs filed their first motion to compel (Docket No. 17), but the parties eventually rescheduled this inspection and this first motion was withdrawn (Docket No. 21) and later terminated by the Court (Docket No. 25).
Plaintiffs' Second Motion to Compel--Interrogatory Answers and Document Production
Plaintiffs contended (in their second motion to compel) that their Interrogatories and document demands were served on September 11, 2007, without objections by defendant (Docket No. 19, Pls. 2d Motion ¶¶ 1, 2, Exs. A, B). Bacon noted, on October 25, 2007, that he had not received overdue discovery (apparently the answers to these Interrogatories and the document production) and, if not provided by October 31, 2007, plaintiffs would have to move to compel (id. Ex. C; see Docket No. 17, Ex. C (same); Docket No. 19, Ex. D, Pls. Atty. Aff. ¶ 3).
Defendant argued in response to this motion that it was never served with Interrogatories or document demands plaintiffs claim were served upon it; rather, defendant contended that it was served with discovery demands for another action pending in the United States District Court for the Northern District of Illinois, Disabled Patriots of America and Michael Miles, individually v. Kennedy Cumberland Hospitality, LLC, No. 1:07-cv-04031-CPK-GSB (Docket No. 23, Def. Atty. Ans. Aff. ¶¶ 5-8, Exs. A, B). The certificates of service for these discovery devices indicated that they were supposedly served upon defense counsel in Springfield, Illinois (id. Exs. A, B). This is defendant's first reference to the mistake in service of discovery.
Plaintiffs then withdrew this second motion (Docket No. 24). The Court later terminated that motion and afforded plaintiffs an opportunity to be heard on whether they (or their counsel or both) should be sanctioned for filing the second withdrawn motion (Docket No. 25). In response, Bacon outlines the chronology leading to the erroneously filed motion (Docket No. 26, Pls. Response ¶¶ 2-3, 5-7). By clerical error, the wrong discovery demands were served in the wrong cases, although Bacon's files showed that the discovery demands were filed in their proper cases (id. ¶ 3). He notes that defense counsel did not contact him to inform him that the wrong discovery had been served upon him (id. ¶ 4). After plaintiffs filed their second motion to compel, defense counsel e-mailed Bacon indicating the error in served discovery (id. ¶ 7, Ex. C), but Bacon ...