*1 This matter is again before the Court to consider the latest round of motions filed by the parties in this employment-related action. The lawsuit is brought by a class of similarly situated servers, cocktail servers and bartenders against their self-stated employer, Platinum Restaurants Mid-America LLC (Platinum) for its alleged violations of the Fair Labor Standards Act (FLSA) and Kentucky Wage and Hours Act (KWHA). The claims of the 37 Plaintiffs relate to a mandatory tip pooling agreement imposed on the Plaintiffs by Defendant, and its alleged failure to properly calculate and pay overtime wages due the same individuals, all of whom were employed at Defendant's Eddie Merlot's Prime Aged Beef and Seafood restaurant located in Louisville Kentucky.

Of the five motions under review, three are filed by the Plaintiffs. Plaintiffs have filed a motion for leave to file a sixth amended collective action and class action complaint (Sixth Amended Complaint). The proposed complaint seeks to add as defendants three additional parties whom Plaintiffs argue are co-employers of the Plaintiffs as the term “employer” is defined by the FLSA. (DN 153, Motion to Amend). The proposed Defendant co-employers include William C. Humphries, the Platinum Restaurant Group (Group) and Platinum Restaurants Shared Services, LLC (Shared Services).

Plaintiffs argue, pursuant to 29 U.S.C. § 203(d) and 29 C.F.R. 791.2, that the economic reality is that the current named Defendant and the proposed additional Defendants functioned as a single employer, or as joint employers, operating through the Group to “control virtually all of the significant operations of the restaurants so that the Court should treat all of these entities as co-employers of the plaintiffs.” (DN 153, brief at p. 8). Plaintiffs also argue pursuant to Rule 15(c)(1)(C) and Krupski v. Costa Crociere S.p. A., 560 U.S. 538, 548 (2010) that their existing claims will all relate back as against Humphries, the Group and Shared Services to the filing of the original complaint in June of 2014.

The second motion of the Plaintiffs is styled as a “Motion to Compel 30(b)(6) Deposition, Provide Supplemental Responses to Interrogatories and Requests for Production, to Extend Discovery, and for Sanctions.” (DN 151, Motion to Compel). By this motion, Plaintiffs seek to obtain “proper[ ] answers” to their interrogatories, “complete supplemental responses” to their requests for production, an unobstructed Rule 30(b)(6) deposition of Platinum Restaurants Mid-America, LLC corporate representative, an award of monetary sanctions in the form of attorneys' fees incurred in preparing the present motion and reply, along with the fees and costs incurred during the original, aborted Rule 30(b)(6) deposition on December 14, 2017, and finally, an extension of 60 days for all remaining deadlines from the date of entry of the present order.

This second motion finds its origin in an extensive procedural history that began with interrogatories and requests for production served by the Plaintiffs on Defendant Platinum in July 2016. Platinum served objections to the discovery requests the following month, and eventually provided substantive responses and some documents, along with renewed objections, the following year in September 2017. During this time, Plaintiffs in April 2017noticed the Rule 30(b)(6) depositions of the Defendant's corporate representative, its owner William C. Humphries and its Regional Director, William Vezeau. The deposition notice also requested production of specific documents and the supplementation of the Plaintiffs' prior request for production.

*2 Defendant Platinum in June and July 2017 respectively filed, a motion for protective order to prohibit the deposition of Mr. Humphries, and a motion for protective order to limit the scope of the Rule 30(b)(6) deposition topics. The undersigned in mid-July 2017 stayed the noticed depositions pending the resolution of these motions, while other individual depositions went forward in the interim. After that, in August 2017, the Plaintiffs filed a motion for leave to file a Fifth Amended Complaint to reinstate their KWHA class action claims, which was followed that October with a motion to extend the deadlines to complete discovery and to extend the time to respond to the motion of the Defendant to decertify the collective action claims.

These events led to the entry of a series of three orders by the undersigned on October 24, 2017. (DNs 143, 146, 147). The first order granted the motion of the Plaintiffs for leave to file a Fifth Amended Complaint reinstating the KWHA overtime claim based on the holding of McCann v. The Sullivan University System, Inc., d/b/a Sullivan University College of Pharmacy, et al, 2015-SC-000144-DG (Ky. Aug. 24, 2017) (DN 144). The second, 46-page order: (1) denied the motion of the Defendant to prevent the deposition of William C. Humphries; (2) denied in part and granted in part the motion of the Defendant for a protective order relating to the Rule 30(b)(6) deposition notice; and (3) granted the motion to extend the remaining discovery and decertification deadlines. (DN 146).

In the second order, the Court at pages 27-28 modified the scope of deposition topic no 1, which asked for “each method that was used to record, monitor/track, and make payments to any of its [Platinum's] employees for the hours worked by them.” The Court focused the scope of topic no 1 “by inserting the phrase ‘at its Louisville restaurant from June 10, 2010 to the present’ after the term ‘employees.’ ” (DN 146, pp. 27-28).[1] This quoted language from the Court's October 24 order was repeatedly relied on by Platinum during the attempted corporate deposition of William Vezeau on December 14, 2017 to instructed Vezeau not to respond to any question that defense counsel believed exceeded the scope of the Court's modification, or involved any related business entity other than the named Defendant.

Plaintiffs now maintain that these repeated instructions to the Vezeau not to respond to otherwise unobjectionable questions, some of which Vezeau admitted he knew the answer to, combined with Platinum's belated production of some 5,000 documents on the morning of the December 14 deposition -- after the Plaintiffs' counsel, without success, had twice written to defense counsel in mid-November requesting the defendant to immediately supplement its responses and objections to the original 2016 discovery requests-- led the Plaintiffs to terminate the Rule 30(b)(6) deposition over Platinum's protest and to seek the assistance of the Court with their second motion.

The final motion of the Plaintiffs requests that the Court stay their deadline to respond to the pending motion of the Defendant to decertify the collective action claims (DN 158). The motion is based on the existence of and the circumstances leading to the two prior motions discussed above. Plaintiffs also asked for a reasonable amount of time following the resolution of all their motions to respond to the motion to decertify, as well as, to file their own motion for class certification of their KWHA claims.

Platinum has responded to oppose, in whole or in part, all three of the Plaintiffs' motions. (DN 154, 157, 163). In response to the motion to file a Sixth Amended Complaint, Platinum contends that an amendment to add three new parties would not relate back to the filing of the original complaint in 2014. (DN 157). Rather, if granted, the motion would result in, “a lawsuit within a lawsuit,” where the new FLSA and KWHA causes of action asserted against the Group, Humphries and Shared Services would “not begin until 3 ½ years after the claims asserted against [Platinum]...” (DN 157, p. 1).

*3 Because the Plaintiffs allegedly have known of the involvement of William Humphries since the 2014 inception of the lawsuit, and have known about Platinum's relationship with the Group and Shared Services since the July 18, 2017 deposition of William Vezeau, Platinum insists that the current attempt to file a Sixth Amended Complaint is the result of undue delay and unduly prejudicial. Finally, Platinum maintains that the proposed Sixth Amended Complaint fails to plead adequate facts to support its allegations concerning the relationship of the proposed new defendants, such that any claims against them would be subject to immediate dismissal via the futility doctrine.

Platinum vigorously opposes the motion of the Plaintiffs to: compel it to permit its unobstructed Rule 30(b)(6) deposition; supplement its responses to discovery; extend the current discovery/response deadlines; and, impose sanctions on it for its conduct at the December 14 Rule 30(b)(6) deposition. (DN 154). First, Platinum maintains that the Plaintiffs raised no issue with its responses to interrogatories and requests for production until the letters of November 13 and 20, 2017, which Platinum received only a month before its Rule 30(b)(6) deposition, when it's counsel were trying to prepare William Vezeau to testify while compiling documents on the 34 deposition topics noticed. That is why on November 30, Platinum's counsel advised counsel for the Plaintiffs during a telephone conversation that Platinum would not be able to have its supplemental discovery responses ready within 21-days when the corporate deposition was scheduled. Nevertheless, Platinum did agree at the time that certain of its objections were probably no longer valid given the rulings of the Magistrate Judge on October 24 and that it would supplement its response albeit not before the December 14 deposition.

Despite receiving this notice from counsel, Plaintiffs filed their motion to compel on December 22, 2017, eight days after they terminated the Rule 30(b)(6) deposition without any further contact with counsel for Platinum. The result, according to Platinum, is that the motion to compel, to the extent it seeks supplemental discovery responses was simply unnecessary, premature and now moot given the immediate efforts of Platinum to complete its discovery supplementation.

Platinum also argues that no order requiring its corporate representative to appear and testify at a Rule 30(b)(6) deposition is necessary. Platinum's corporate representative appeared on December 14, 2017 prepared to testify to all 34 topics “as limited by the Courts October 24, 2017 order.” (DN 154, p. 2). According to Platinum, it was counsel for the Plaintiffs who less than two hours into the deposition terminated it without thereafter contacting counsel for Platinum to see if an agreement could be made to continue the deposition, which Platinum's counsel originally offered to do at the deposition to permit the Plaintiffs to have sufficient time to examine the discovery provided on the morning of the deposition. Accordingly, once again, Platinum characterizes this portion of the motion to compel as being “premature, unnecessary and moot.”

Platinum does not oppose the request of the Plaintiffs to obtain an extension of the deadline to complete class discovery--to the extent that Plaintiffs seek to complete the Rule 30(b)(6) deposition and any other currently outstanding discovery requests. To the extent the Plaintiffs would seek a general extension to take unspecified class discovery, however, Platinum opposes this request, given (1) the failure of the Plaintiffs to identify what additional class discovery is needed, and (2) in light of the fact that during the most recent 60-day discovery extension, Plaintiffs took no significant action until the very eve of the December 14 corporate deposition near the close of discovery.

*4 Finally, Platinum concludes that the request of the Plaintiffs to impose sanctions on it is inappropriate. Platinum maintains that to the extent the Plaintiffs seek to recover for filing a motion to compel discovery, Plaintiffs overlook that Platinum has never opposed providing supplemental responses to discovery, and in fact, has now done so. Further, Platinum maintains that the current raft of motions filed by Plaintiffs were done so without Plaintiffs first honoring the compulsory meet and confer requirements of Rule 37(a)(1) and LR 37.1, so that an award of sanctions is inappropriate for this reason alone.

Two of the motions currently pending before the Court for review are filed by Platinum. Both of the motions are similar in nature. Platinum has filed a motion for leave to file a surreply (DN 162) to address issues and legal authority that it claims were first raised in the Plaintiffs' reply in support of their motion for leave to file a Sixth Amended Complaint (DN 160). Platinum also has filed a second motion for leave to file a surreply (DN 161) to the Plaintiffs' reply in support of their current motion to compel. (DN 156). As before, Platinum maintains that the surreply is necessary given the Plaintiffs insertion of new arguments in their reply (DN 156), the mischaracterization by the Plaintiffs of the deposition testimony of both Humphries and Vezeau, and the belated request for additional relief in the form of a second deposition of William Vezeau.

Plaintiffs have filed a joint response in opposition to both of these motions (DN 164). Platinum has filed a reply in support of both of its motions for leave to file a surreply (DN 166). Accordingly, the motions of the parties are now ripe for consideration by the Court.

The present motion for leave to file an amended complaint is the third such motion that the Magistrate Judge has considered within the past year. (DN 118, 144). Previously, the Court in June 2017 granted the Plaintiffs leave to file a Fourth Amended Complaint. This complaint added a new claim for the alleged failure of Platinum to correctly calculate and pay the Plaintiffs their overtime pay. (DN 119). The Fifth Amended Complaint approved by the Court in October 2017 reinstated the previously dismissed KWHA claim as a result of the change in Kentucky law occasioned by the earlier-cited McCann decision of the Kentucky Supreme Court. (DN 145). The present motion, unlike either of the prior ones, does not seek to add additional claims.

Here, Plaintiffs argue that they were deliberately misled to believe that the current Defendant, Platinum Restaurants Mid-America, LLC, was the sole and proper Defendant employer. Plaintiffs attribute this belief to the prior motion of Platinum to dismiss the originally-named Defendant, Eddie Merlot Fine Dining, Inc. (DN 1, 13). Specifically, Platinum stated in its motion that “the Plaintiffs were employed by Platinum Restaurants Mid-America, LLC, as their electronic pay vouchers plainly state each week.” (DN 13, p. 2). In fact, matters are not so straightforward.

Upon taking the deposition of William Humphries, Plaintiffs maintain that they discovered that the “economic reality” is that they are actually employed by a collective entity, which is controlled by and comprised of William C. Humphries, the Platinum Restaurant Group, or “Group,” and Platinum Restaurants Shared Services, LLC, or “Shared Services.” This collective entity, Plaintiffs explain, easily fits within the FLSA definition of an “employer” set forth in 29 U.S.C. § 203(d) and 29 C.F.R. 791.2 so as to make all of these Defendants liable for the employment-related misconduct currently alleged by the Plaintiffs in their lawsuit.

*5 As matters stand, without the requested amendment, Plaintiffs contend that Defendant Platinum has attempted to obstruct the orderly progress of the litigation by throwing up artificial distinctions between these collective entities in an effort to derail its discovery obligations. The circumstances, recapped above, are what the Plaintiffs rely on to justify adding the three new defendants in their Sixth Amended Complaint. They insist pursuant to the provisions of Rule 15(c)(1)(C) that all of the existing legal claims brought in the lawsuit will relate back against these proposed new defendants to the filing of the original complaint in June 2016.

Both of our prior Orders discussed in depth the Sixth Circuit case law that applies the standard of Rule 15(a)(2) and (c)(1)(B). Much of that discussion remains relevant to the current matter, if not conclusive of it. To reiterate:

(DN 118).

From this point of departure, we continue now to discuss the requirements of Rule 15 that determine if a new defendant may properly be added. The answer to this question is governed by subsection (c)(1)(C) of the same Rule, which determines when such an amendment will relate back. It provides that an amendment to a pleading to change a party will relate back to the date of the original pleading when:

Fed. R. Civ. P. 15(c)(1)(C). See Hiler v. Extendicare Health Network, Inc. No. 5:11-CV-192-rew, 2013 WL 756352 at *3-4 (E.D. Ky. Feb. 26, 2013)(discussing Rule 15 and the impact of the Krupski decision on the long-standing Sixth Circuit position that amendments to name additional parties, rather than to correct or substitute parties, do not relate back) (citing In re Kent Holland Casting & Platting, Inc. 928 F.2d 1448, 1449 (6th Cir. 1991) (“[A]n amendment which adds a new party creates a new cause of action and there is no relation back to the original filing for purposes of limitations.”); Cox vs. Treadway, 75 F.3d 230, 240 (6th Cir. 1996) (“Sixth Circuit precedent clearly holds that new parties may not be added after the statute of limitations has run [.]”)). It is the final language of 15(c)(1)(C)(ii), the “but for a mistake concerning the proper party's identity” that turns the issue in this instance.

For many years, the Sixth Circuit reasoned that a Plaintiff's mere lack of knowledge regarding the identity of a defendant did not constitute a “mistake” concerning the party's identity within the meaning of Rule 15(c) so as to permit relation back. Moore v. Tennessee, 267 F. App'x. 450, 455 (6th Cir. 2008). Thus, when a plaintiff sought to “enlarge the defendant roster,” to amend a pleading to add a new party or parties, rather than to substitute a defendant party or parties, relation back historically was not permitted in the Sixth Circuit. Hiler, 2013 WL 756352 at *4.

The situation in our Circuit, however, temporarily became more complicated after the U.S. Supreme Court rendered its 2010 decision in Krupski, 560 U.S. at 548. The Krupski decision involved an action for damages brought by an injured cruise ship passenger. The plaintiff in Krupski originally named Costa Cruise Lines as defendant. Later, the plaintiff determined that Costa Crociere , S.p.A., was the proper defendant and amended her complaint to add it as a defendant party after the statute of limitation had expired on her injury claim.

Once the plaintiff in Krupski dismissed Costa Cruise Lines, the original defendant, the newly-added defendant, Costa Crociere , S.p.A., moved to dismiss plaintiff's claims on statute limitation grounds arguing that the amended complaint did not relate back under Rule 15(c). The district court agreed with Costa Crociere based on the precedent of the 11th Circuit, which held that the word “mistake” could not be construed “to encompass a deliberate decision not to sue a party whose identity the plaintiff knew before the statute of limitations had run.” Id. The 11th Circuit agreed that the plaintiff in Krupski had not made a “mistake” within the meaning of the Rule, where the information on her passenger ticket, which she provided to counsel prior to the expiration of the statute of limitation, provided the relevant information about the proper defendant.

*8 On certiorari, the Supreme Court reversed the lower court explaining that:

Krupski v. Costa Crociere S. p. A., 560 U.S. at 548–49.

For a brief time after the rendition of Krupski, some uncertainty did exist among the district courts of the Sixth Circuit about the impact of the decision. Certain district courts took the decision to heart to reject what they believed to be “an unduly narrow” reading of Rule 15(c)(1)(C)(ii). See Erie Indemnity Company vs. Keurig, Inc., No. 1:10-CV-02899, 2011 WL 2893013 at *3-4 (N.D. Ohio July 15, 2011) (finding that the following decisions had all misread Krupski to hold that a lack of knowledge concerning additional parties is not the type of mistake that would allow for relation back under Rule 15(c)(1)(C)--McKinney v. Laird, 2011 WL 2457650, at *4 (W.D. Ky. June 16, 2011); DeBois v. Pickoff, 2011 WL 1233665, at *11 (S.D. Ohio Mar.28, 2011); In re U.S. Ins. Grp., 441 B.R. 294, 297–98 (Bankr. E.D.Tenn.2010); Venezia v. 12th & Fiv. Props. LLC, 2010 WL 3122787, at *1 (M.D. Tenn. Aug.6, 2010); and Wilson v. Delta Airlines, Inc., 2010 WL 2836326, at *3–4 (W.D. Tenn. Jul.19, 2010)). These courts held that the Krupski decision abrogated the prior Sixth Circuit rule that categorically barred addition of new parties under Rule 15(c). Id.

Plaintiffs maintain that this liberalizing view of Krupski, one that permits the addition of new defendant parties under Rule 15(c)(1)(C)(ii), was upheld recently in a case that involved indistinguishable FLSA and KWHA claims, Palma v. Roman, No. 3:16-cv-00457-CRS, 2017 WL 3431143 at *2-3 (W.D. Ky. Aug. 9, 2017). Unfortunately for Plaintiffs, they are mistaken in their reading of the decision. Palma, in fact, did involve FLSA and KWHA claims, but unlike our situation, it did not involve the addition of new defendants under Rule 15(c)(1)(C)(ii), but rather the substitution of two defendants accomplished after the Plaintiffs learned that they had originally sued the wrong two defendants. This scenario easily fits within the classic definition of a “mistake” under the Rule. Consequently, the substitution of defendants in Palma merely flowed from the application of the pre-existing precedent in the Sixth Circuit. It says nothing about the vitality of Krupski.

*9 A better source by which to understand the impact of Krupski is a series of recent Sixth Circuit opinions that flow out of the decision announced in 2012 in Smith v. City of Akron, 476 F. App'x. 67, 68-70 (6th Cir. 2012). In Smith, the Sixth Circuit bluntly rejected the suggestion that “a recent Supreme Court decision requires us to alter our interpretation of Rule 15(c).” Id. After summarizing the facts and holding of Krupski, the Smith court explained that the plaintiff in Smith did not make a mistake about which defendant to sue, but “simply did not know whom to sue or opted not to find out within the limitations period.” Id.(Citing Moore v. Tennessee, 267 Fed. Appx. 450, 455 (6th Cir. 2008)). Based on this key distinction, the Smith court concluded that Krupski offered no solution for the plaintiffs' problem where “the Rule allows relation back for the mistaken identification of defendants, not for defendants to be named later through ‘John Doe,’ ‘unknown defendants' or other missing appellations.” Id.

The reasoning of the Smith decision has been uniformly applied by the Sixth Circuit since its rendition. See, e.g., Kelter v. WASP, Inc., No. 5:12-CV-00053-TBR, 2013 WL 6051762, at *6–7 (W.D. Ky. Nov. 15, 2013)(“ The relation-back provisions of Rule 15(c)(1)(C) permit parties to correct misnomers or misdescriptions. Kelter does not seek to correct a misnamed plaintiff or exchange one party for another. Rather, he asks the Court to allow the addition of a party after the limitations period has run. Sixth Circuit precedent does not permit such an addition.”); Ham v. Sterling Emergency Services of the Midwest, Inc., 575 F. App'x 610, 615–18 (6th Cir. 2014)(“An amendment that “changes the party ... against whom a claim is asserted” relates back under Rule 15 if the remaining requirements of Rule 15(c)(1)(C) are met. Fed.R.Civ.P. 15(c); Cox v. Treadway, 75 F.3d 230, 240 (6th Cir.1996) (“[A] change in the party sued ... may only be accomplished when all of the specifications of Fed.R.Civ.P. 15(c) are met.”)); In re Biozoom, INc. Securities Litigation, 93 F. Supp.3d 801, 812 (N.D. Ohio 2015) (Under Sixth Circuit law, Rule 15(c) only permits the substitution of plaintiffs or defendants, not the addition of them. For a time after the Supreme Court's decision in Krupski v. Costa Crociere S.p.A., it was unclear whether this rule had been abrogated. But the Sixth Circuit has since reaffirmed the rule, albeit in unpublished decisions. The Section 12(a)(1) claims against the later-added Defendants thus cannot relate back because they involve adding both new Defendants and new Plaintiffs.”); Cooper v. Montgomery Cty., Ohio, 199 F. Supp. 3d 1189, 1197–98 (S.D. Ohio 2016)(“The record demonstrates here that Plaintiff “did not make a mistake about the identity of the parties he intended to sue” and, instead, “he did not know who they were and apparently did not find out within the two-year limitations period.” Id. The Sixth Circuit has made clear that “the relation-back protections of Rule 15(c) were not designed to correct that kind of problem.”)(citing Smith, supra); Zywicki v. Sai Nath, LLC, No. 3:15-CV-435-DJH, 2017 WL 1128465, at *2–3 (W.D. Ky. Mar. 24, 2017), appeal dismissed, No. 17-5446, 2017 WL 4857556 (6th Cir. Aug. 14, 2017)(“ Notwithstanding these efforts, the shortcomings found in Smith v. City of Akron are also found here. As in Smith, Zywicki “did not make a mistake about the identity of the parties he intended to sue; he did not know who they were and apparently did not find out within the ... limitations period.” 476 Fed.Appx. at 69 ....Rule 15(c) offers no remedy for this problem. Id.”).

We reach the same conclusion as Smith. Plaintiffs seek to add new defendants, not to substitute for an erroneously named one. While the replacement of the original defendant, Eddie Merlot, with Platinum would be a key example of a “mistake” within Rule 15(c)(1)(C)(ii) so that the relation back doctrine would apply, the addition of proposed new Defendants simply does not meet the requirements of the above-cited subsection of Rule before Krupski or afterwards. This means that if we were to grant the present motion, the claims against the newly added defendants would not relate back to the filing of the original complaint. The result is that we would have a separate series of FLSA and KWHA claims that hypothetically would look back three or five years, respectively, from the date of the addition of the new defendants.

*10 Such an untenable situation would be unduly prejudicial to the parties as well as the orderly progress of the lawsuit. Accordingly, we strongly believe that we are compelled by the above-cited precedent of the Sixth Circuit to deny the motion for leave to file a Sixth Amended Complaint to add new party defendants, where there is no indication that Platinum actively misled anyone about their status, and the Plaintiffs in fact were well aware of the status of Humphries early on and that of Group and Shared Services following the deposition of William Vezeau in mid-July 2017.[2]

Cutting to the core of the dispute, we conclude that the present motion finds its true genesis in the conduct of Platinum during the Rule 30(b)(6) deposition on December 14, 2017. Apparently, Plaintiffs hope in the future to avoid the same type of repeated objections that were raised during that corporate deposition by adding Group, Shared Services and Humphries as party defendants. This view is confirmed by footnote 3 on page 5 of their Reply, whereat Plaintiffs explain that “On January 21, 2018, the plaintiffs filed a Motion to Amend Complaint, inter alia, in order to address the defendant's attempts to use the corporate form to avoid its discovery obligations in this case.”

Plaintiffs certainly do not argue that Platinum is merely a shell or pass-through business entity from which they cannot obtain meaningful relief, nor do they raise any arguments that the proposed new parties are somehow akin to necessary parties to the litigation under Rule 19(a)(1)(A). See gen., Bowling Transportation, Inc. vs. N.L.R.B., 352 F.3d 274, 282-83 (6th Cir. 2003) (a party will be deemed indispensable under Rule 19 only if in its absence the absentee is likely to be harmed, one of the parties may be subject to multiple or inconsistent obligations absent joinder, or complete relief cannot be accorded to the parties.).

We are confident first that the situation that arose during the Rule 30(b)(6) of Platinum's representative, William Vezeau, will be adequately addressed in the section of the Order that follows immediately below; and second, we are equally confident that the clearly established legal precedent in the Sixth Circuit precludes us from granting the present motion, given the well-established interpretation of Rule 15(c)(1)(C)(ii) to prohibit the addition of new defendants, as opposed to the substitution of them in cases of genuine mistake. The motion for leave to file a Sixth Amended Complaint therefore is DENIED.

The next matter that we address is the motion of the Plaintiffs to compel (DN 151). The motion itself involves a number of different but related issues all of which evolve out of the ongoing efforts of the Plaintiffs to obtain discovery. For organizational purposes, we divide the motion into three parts. The first part involves the request of the Plaintiffs for supplemental responses to their pending interrogatories and requests for production. The second part relates to the manner in which the Rule 30(b)(6) deposition of Platinum unfolded on December 14, 2017. The third part of our review involves the request of the Plaintiffs to impose sanctions on Platinum for its alleged obstructionism during its corporate deposition along with its delay in providing supplemental responses to long-pending discovery requests. Finally, we briefly address the request of the Plaintiffs for a 60-day extension of time to complete discovery and to respond to Platinum's motion to decertify the collective action.

*11 Before we may speak to any of these matters, however, we first address whether Plaintiffs have complied with the requirements of LR 37.1 and Rule 37(a)(1). Both of these Rules require that any motion to compel include with it a certification that the movant has in good faith conferred or attempted to confer with its opponent concerning its alleged failure to provide the requested discovery. Fed. R. Civ. P. 37(a)(1); L.R. 37.1. The obvious purpose of both rules is to place the onus on the parties, at least initially, to make a good faith effort to resolve their dispute without the necessity of involving the Court.

Plaintiffs point out that we have spoken to this exact issue in our prior order of October 24, 2017 (DN 146, pp. 8-11). On that occasion, we explained that:

(DN 146, p. 8).

Plaintiffs include with their motion to compel an extended Rule 37(a)(1) certification. Examination of the certification reveals it to be largely a historic document as it relates to the Plaintiffs efforts to obtain discovery. The relevant portion of the certification for our purposes includes the communications from Plaintiffs' counsel on November 13 and 20, 2017. (DN 151, pp. 4-5). Plaintiffs contacted counsel for Platinum on November 13 to specifically request that it provide an enumerated series of documents that included: responses to employee surveys; prior drafts of the Tip Pool Acknowledgment Form; templates for the Tip Pool spreadsheet; contracts executed by the Sales Manager at the Louisville restaurant; and Nancy Salon's notes concerning her investigation/analysis of the Kentucky Wage and Hour Act along with her notes of any employee complaints. (DN 151, Exh. No. 1).

On the second occasion on November 20, Plaintiffs' counsel sent to defense counsel an extended 14-page letter that contained Plaintiffs' views and concerns as to each interrogatory and request for production pending. (Id., Exh. No. 2). Indeed, the letter was organized by interrogatory and document request number. These efforts resulted in a telephone call by counsel for Platinum to Plaintiffs' counsel on November 30. While Platinum's counsel acknowledged that the language of the October 24, 2017 Order of the Court did seem to foreclose its objections to the discovery requests based on a distinction between individual and collective action discovery, counsel advised that Platinum could not within the remaining time before the Rule 30(b)(6) deposition provide the supplemental discovery requested. Platinum's counsel assured Plaintiffs that Platinum was not wrongfully withholding any responsive documents, but to the contrary was making ongoing efforts to fully respond to Plaintiffs' discovery.

*12 This type of exchange clearly appears to the Court to be satisfactory to the extent that the motion to compel rests on the adequacy and the timing of Platinum's supplemental responses to the Plaintiffs' interrogatories and document requests. See, United States v. Winsper, No. 3:08-CV-631-H, 2013 WL 5673617, at *2 (W.D. Ky. Oct. 17, 2013) (exchange of correspondence between the parties prior to the filing of discovery motion satisfied the certification requirements of LR 37.1) (“Though the parties did not engage in a traditional conference, the magistrate found”[n]o substantial violation of Rule 37(a)(1) or Local Rule 37.1 has occurred.” As the Magistrate [Judge] pointed out, the Government did communicate with opposing counsel prior to filing a motion to compel in accordance with the Rules' requirements, and the declaration of counsel confirming its correspondence with the Defendant served the “same purpose” as a “certification” styled as such.”); Slappy v. Frizzell, No. 5:14-CV-00185-GNS, 2015 WL 4067595, at *1 (W.D. Ky. July 2, 2015)(same).

Indeed, were we to hold otherwise such a ruling would fly in the face of our own prior Order, which followed the exact same reasoning to the benefit of Platinum, as Plaintiffs correctly note. Accordingly, we have no issue with the adequacy of the Plaintiffs' Rule 37.1 certification in this particular respect. Solais v. Vesuvio's II Pizza & Grill, Inc., No. 1:15CY227, 2015 WL 6110859, at *9 (M.D.N.C. Oct. 16, 2015)(“Detailed correspondence outlining the deficiencies in discovery responses and the reasons the requesting party needs the requested information can satisfy a party's Rule 37(a) conferral obligations if such correspondence permits sufficient time for the opposing party to respond.”).

Matters are not so clear on the other aspect of the motion to compel – – the Rule 30(b)(6) portion of the motion. We have reviewed the transcript of the corporate deposition. After Platinum's counsel raised numerous objections, based in part on an isolated portion of the language of our own prior October 24 order, Plaintiffs' counsel terminated the deposition over the protests of Platinum, which offered to continue the deposition to afford the Plaintiffs time to review the 5,000 or so electronic pages of documentation provided on the morning of the deposition. Plaintiffs' counsel declined and the record contains no evidence that the parties ever again spoke to the matter prior to the Plaintiffs' motion to compel filed a mere eight days later on December 22. To this extent, the certification that accompanies the motion to compel reveals no substantial efforts by Plaintiffs to obtain clarification of Platinum's interpretation of our prior Order or the continuation of the corporate deposition without the involvement of the court.

Plaintiffs argue that any such efforts would have been essentially meaningless, given the distorted reading by Platinum's counsel of the Court's October 24 order. Until a court ruling clarifying the Order could be obtained, Plaintiffs insist that simply going forward with the Rule 30(b)(6) deposition in reality would be nothing more than a repeated exercise in frustration for the Plaintiffs. We have no way of knowing that to be so, and more importantly, the parties engaged in no post-deposition discussion to confirm or refute Platinum's intransience on this issue.

For us now to adopt such reasoning would be to interject by judicial fiat a de facto “futility exception” into the clear, long-standing requirements of LR 37.1 and Rule 37(a)(1). While several other courts have cautiously accepted such an approach[3] we decline to do so. Such an exception would quickly become a self-fulling prophecy. We therefore shall exercise our broad discretion in matters involving discovery to refuse to impose monetary sanctions upon Platinum pursuant to Rule 37, while reserving our well-established right to do just that in the exercise of our own inherent judicial authority to effectively manage discovery by those who litigate in our Court. See 28 U.S.C. § 1927.

*13 A review of the case law in this and other circuits firmly supports this approach. See, United States v. Griffin, No. 12–13927, 2013 WL 1843779 at *1 (E.D. Mich. Mar. 20, 2013)(upholding the inherent authority of the Court to sanction a party for its discovery violations up to and including entry of a default judgment)(collecting cases); Shepherd v. American Broadcasting Cos., Inc., 62 F.3d 1469, 1472 (D.C.Cir.1995) (“As old as the judiciary itself, the inherent power enables courts to protect their institutional integrity and to guard against abuses of the judicial process with contempt citations, fines, awards of attorneys' fees, and such other orders and sanctions as they find necessary, including even dismissals and default judgments.”)(citing Chambers v. NASCO, Inc., 501 U.S. 32, 47–50 (1991) (discussing the broad scope of a court's inherent authority). See also, First Bank of Marietta v. Hartford Underwriters Ins. Co. 307 F.3d 501, 514 n. 11 (6th Cir. 2002)( “We are reluctant to impose a wooden requirement [that the Court first consider whether a party's conduct could be sanctioned under applicate rules or statutes] where the district court needs the discretion and flexibility to exercise its inherent authority to address various impermissible litigation practices as identified in this Circuit and other Circuits.”)(collecting cases): Metz v. Unizan Bank, 655 F.3d 485, 489-91 (6th Cir. 2011)(discussing First Bank of Marietta and the 3-part test for invoking the Court's inherent power to impose sanctions).

If Platinum's conduct during the deposition of December 14, 2017 is the result of unjustifiable obstructionism, as opposed to a good faith effort to interpret our prior Order, then we will impose sanctions on Platinum not based on the confines of Rule 37(d), but in accordance with our own inherent authority in such matters.

For the moment, we return to the dispute over the question of whether Platinum complied with its undisputed duty under the Federal Rules of Civil Procedure to supplement its prior discovery responses. See gen., Fed. R. Civ. P. 26(e)(1); Toth v. Grand Trunk R.R., 306 F.3d 335, 342-345 (6th Cir. 2002); Thomas v. McDowell, No. 2:10–cv–152, 2014 WL 305501 at *3 (S.D. Ohio Oct. 15, 2014). In this regard, we are somewhat at a disadvantage. Since the time that Plaintiffs filed their motion to compel on December 22, 2017, Platinum has supplemented its discovery responses. While Plaintiffs remain unsatisfied, we are uncertain given the status of matters which particular interrogatories and requests stand at the forefront of the dispute. The motion to compel and reply of the Plaintiffs do not “zero in” on any specific interrogatory or request for production as being the primary source of their current dissatisfaction.

Rather, Plaintiffs in their Reply focus on Platinum's continuing objections to discovery based on the distinction between individual and collective action discovery. We have put that distinction fully and finally to rest in our prior Order of October 24. Further objections on this basis are inappropriate. Platinum is put on notice that further refusal to supplement discovery based solely on this distinction is unsustainable and may result in the imposition of sanctions against it.

The other aspect of discovery that the Plaintiffs raise in their Reply is the failure of Platinum for to provide a privilege log in accordance with Rule 26(b)(5)(A). The requirements of this Rule are long-standing and clearly written. Platinum must provide a detailed privilege log to the extent that it has declined or otherwise limited its discovery responses based on a claim of privilege. Failure to comply with the requirements of the Rule in the future may constitute a waiver of the privilege. Platinum shall provide the Plaintiffs with a detailed privilege log in full compliance with Rule 26(b)(5) within 30 days from the date of entry of this order.

In reaching this result we rely substantially on the reasoning of our prior opinion in England v. Advance Stores Co., Inc. NO. 1:07CV-174-R, 2009 WL 10681546 at *4-5 (W.D. Ky. June 4, 2009).

Id at * 4-5.

The circumstances of the present case in the Court's view do not warrant sanctions based merely on the delay of Platinum in producing its privilege log, assuming that it has not already done so since the time that the Plaintiffs' filed their Reply on January 26, 2018 (DN 156). Platinum therefore will be given additional time to comply with the Rule. The Court is confident that it shall do so. If after receipt of the privilege log, Plaintiffs seek to contest the assertion of the privilege with respect to any particular document, or portion of a document, they remain entitled to do so as their current motion to compel is denied without prejudice in this regard.

Plaintiffs will have an extension of the time for the completion of discovery in which to evaluate the contents of the privilege log and may evaluate their options in this respect. Accordingly, the motion to compel to the extent that it seeks to compel supplemental discovery responses is denied without prejudice except to the extent set forth above, i.e., the requirement that Platinum produce a privilege log within the above timeframe.

We have examined the events that occurred during the December 14, 2017 deposition of Platinum corporate representative, William Vezeau. Plaintiffs have now supplied us with the transcript of that deposition. (DN 152, Vezeau Depo.) Plaintiffs are correct, and indeed Platinum does not dispute, that its counsel during the attempted Rule 30(b)(6) deposition repeatedly instructed the witness not to respond to a number of questions that on review would otherwise appear to the Court to be entirely appropriate and within the scope of the topics set forth in the 30(b)(6) deposition notice.[4]

Platinum insists that the language of our order of October 24, 2017 provided a legitimate basis on which to instruct its witness not to respond to enforce a protective order within the requirements of Rule 30(C)(2). That Rule provides that:

Fed. R. Civ. P. 30 (emphasis added). See, United States v. Carell, 2011 WL 487627 at *1 (M.D. Tenn. Feb. 7, 2011)(“The language of Rule 30(c)(2) is clear and unambiguous.”).

*16 The Rule has been interpreted by the federal courts to prohibit an attorney from instructing a deponent not to answer a question except in extremely limited circumstances. Hocstein v. Microsoft Corp., 2009 WL 261653 at*4 (E.D. Mich. August 21, 2009) (citing United States ex rel. Tiesinga v. Dianon Sys. Inc., 240 F.R.D. 40, 43 (D.Conn.2006)(“Ordinarily, it is improper for counsel to direct a witness not to answer a question posed at a deposition, even if the question is improper or beyond the scope of a deposition notice.”). Thus, our only concern is whether Platinum had a reasonable basis, given the language of our order of October 27, 2017, to repeatedly instruct Vezeau not to answer various questions, irrespective of whether the witness acknowledged that he knew the answer to the question at issue.

The Order in question is our Order of October 24, 2017 that disposes of Platinum's two motions for entry of a protective order along with a number of other pending motions. (DN 146, Order). In that Order, we addressed Platinum's efforts to obtain a protective order to limit the scope of topics to be addressed during its Rule 30(b)(6) deposition. Platinum had argued that due to the overbroad nature of the 36 topics it would be impossible for it to adequately prepare its corporate representative to testify. One of the arguments was that Plaintiffs had failed to include adequate temporal, geographic or employment-related limitations to topic no. 1.

The Court took up consideration of Platinum's objections beginning at page 26 of its prior Order. At the very outset of its discussion, the Court set forth the fundamental principle under Rule 26(b)(1) that “discovery is permitted on any nonprivileged matter relevant to any party's claim or defense.” (Id., p. 26). The Court then continued to remind the parties that “protective orders under Rule 26(c) are not the norm and stand in contravention to the principle mentioned immediately above....” (Id., p. 27). We emphasized the history of the courts “to afford significant breadth in the draftsmanship of such Rule 30(b)(6) topics ...” (Id.). We then continued to state:

(DN 146, pp. 27-28)(footnotes and citations omitted).

*17 After reading the deposition transcript, we are at a loss to appreciate how Platinum could read the above language in good faith to instruct its Rule 30(b)(6) witness not to answer a series of questions that obviously fell within the proper scope of the corporate deposition notice and the definition of relevancy set forth in Rule 26(b)(1). Only by taking the language of our order completely out of context could Platinum have conducted the deposition in the manner in which it occurred. Platinum transformed the language intended to enhance its ability to prepare it Rule 30(b)(6) representative to provide fulsome responses at its deposition into a means to frustrate the Plaintiffs efforts to obtain vital information directly related to their claims.

Below is just one such exchange during which Platinum's counsel repeatedly instructed its corporate witness not to answer. During this exchange, Plaintiffs' counsel was attempting to explore a question concerning an admitted discrepancy in the pay statements of Plaintiff Lauren Green, where her pay statements indicated payment was drawn on the Defendant Platinum, but the corporate witness testified that this was “not correct” as “the accounting functionality and payroll services are actually done through Platinum Restaurant Group Mid-America, LLC.”[5]

When Plaintiffs' counsel attempted to learn what bank accounts the related companies [Group, Platinum, Shared Services] used for employee wage payment transactions, Platinum's counsel objected “to the extent it's outside the scope of the deposition topic,” while instructing the witness, “You don't have to answer.” To quote from the transcript:

(DN 152, Supplement, Depo at pp. 9-12)

In each instance during the remainder of the corporate deposition, when Plaintiffs' counsel attempted any question that potentially involved the relationship between Platinum and its related business entities, Group and Shared Services, Platinum's counsel immediately objected that the challenged question was “outside the scope of the deposition topics” and instructed the witness not to answer the question.

The Rule 30(b)(6) witness consequently was instructed not to tell the Plaintiffs: (1) whether the Executive Group [of the related business entities] was paid by Platinum Restaurant Group until 2013, or whether the Executive Group was paid by Platinum Restaurants Shared Services, LLC; (2) whether each restaurant contributed a pro rata share to the amount necessary to fund the salaries of the Restaurant Group;[6] (3) about the reason for the discrepancy in the various versions of the Tip Pool Agreement, where the 2012-2015 revised versions of the Agreement during that period, unlike an earlier version, omitted the word “voluntary;”[7] (4) whether any other employees of other Eddie Merlot's restaurants were required to sign the same tip sharing agreement forms that the employees in Louisville restaurant were asked to sign;[8] (5) whether an employee, Shannon Lass [phonetic], who transferred from the Cincinnati Eddie Merlot restaurant to the Louisville restaurant objected to signing the Tip Pooling Agreement.[9]

*19 Soon thereafter, following a break in questioning, Plaintiffs' counsel was provided with a computer disk that contained an additional 26 files of “Excel spreadsheets that contain the tip spreadsheets.” (DN 152, p. 35). This Excel spreadsheet production was in addition to the 4,400 pages of supplemental discovery provided at the outset of the deposition several hours earlier that same morning.

This development lead Plaintiffs' counsel to advise Platinum's counsel that he was going to “shut down this deposition” so that Plaintiffs could “ask for more time from the court” and “get directives based on your objections and instructions to Mr. Vezeau not to answer questions that we think are relevant and within his personal knowledge as a [Rule] 30(b)(6) representative.” (Id, pp. 37-38). Although Platinum's counsel suggested that the Plaintiffs continue the corporate deposition, Plaintiffs' counsel declined and 8-days thereafter filed the current motion to compel.

A federal court may properly impose sanctions when counsel instructs a witness during deposition not to answer an otherwise relevant question without an adequate basis under Rule 30(d), or its predecessor Rule 30(c)(2). Toledo Metal Wheel Co. v. Foyer Brothers & Co., 223 F. 350, 358 (6th Cir. 1915). An instruction not to answer is only appropriate: (1) to preserve a privilege; (2) to enforce a limitation ordered by the court; or (3) to present a motion to terminate or limit under Rule 30(d)(3).” Doe v. Northern Kentucky University, No. 2:16-CV-28 (WOB-JGW), 2016 WL 6237510 at *2-3 (E.D. Ky. Oct. 24, 2016); Hochstein v. Microsoft Corp., 2009 WL 2616253 at*4 (E.D. Mich. Aug. 21, 2009).

While it is possible that counsel may on rare occasion inadvertently err in instructing a witness not to answer an otherwise proper question during deposition so as to make the imposition of sanctions inappropriate, First Tennessee Bank v. Federal Deposit Insurance Corp., 108 F RD 640, 641 ((E.D. Tenn. 1985), “it is well-settled that counsel should never instruct a witness not to answer question during deposition unless the question seeks privileged information or unless counsel wishes to adjourn the deposition for the purpose of seeking a protective order from what he believes is annoying, embarrassing, oppressive or bad faith conduct by adverse counsel.” Id.

Here, our protective order of October 24 in no fashion provides a reasonable basis for what occurred during the Rule 30(b)(6) deposition of Platinum. The gravamen of our Order at pages 27-28 was simply to confine the deposition topics within the broad range of relevancy found under Rule 26(b)(1). Nowhere did we state in our Order that the corporate representative of Platinum was precluded from testifying to the knowledge of that corporation concerning any of the related business entities, i.e., Group, Shared Services or Mr. Humphries. Likewise, we did not state that questioning during the Rule 30(b)(6) deposition could not touch upon any of these other related business entities to the extent that the anticipated answer, in any fashion, related to the payment dispute that now involves the Louisville Eddie Merlot employees. Questions about the payment practices of other restaurants to the extent that they relate to the disputed payment practices at the Louisville restaurant are entirely “fair game.” The fact that Mr.Vezeau was testifying in a representative capacity only as to Platinum does not mean that he could not testify to the knowledge of Platinum concerning any or all of the other related-business entities created by Mr. Humphries to operate his Eddie Merlot restaurants.

*20 It is clear to the Court that the Rule 30(b)(6) deposition of Platinum was defended in a vexatious manner in a concerted effort to disrupt the orderly progress of the litigation. The result of that improper effort is now put before the Court by way of the motions practice currently under review. We therefore exercise our inherent power under 28 U.S.C. § 1927 to impose sanctions upon Platinum for the manner in which it defended the Rule 30(b)(6) deposition. See Chambers v. NASCO, Inc., 501 U.S. 32, 46–50, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991); First Bank of Marietta v. Hartford Underwriters Ins. Co., 307 F.3d 501, 511–17 (6th Cir.2002).

Sanctions under our inherent power and that of 28 U.S.C. § 1927 “require a showing of something less than subjective bad faith, but something more than negligence or incompetence.” Royal Oak Entertainment, LLC v. City of Royal Oak, 316 Fed App 482, 487 (6th 2009). Conduct will be sanctionable when a party “ intentionally abuses the judicial process or knowingly disregards the risk that [its] actions will needlessly multiply proceedings. Id. See, Red Carpet Studios Div. of Source Advantage, Ltd. v. Sater, 465 F.3d 642, 646-47 (6th Cir. 2006)(“Section 1927 sanctions are warranted when an attorney objectively “falls short of the obligations owed by a member of the bar to the court and which, as a result, causes additional expense to the opposing party.”)(quoting Ruben v. Warren city Sch., 825 F.3d 977, 984 (6th Cir. 1987)).

When a party knows or reasonably should know that the action it is pursuing is frivolous, such conduct will fall within the realm of “vexatiously multiplying proceedings.” Id. The repeated instructions of Platinum's counsel to the witness not to respond to questions merely because those same questions tangentially involved related business entities such as Group or Shared Services easily fits within the categorization of vexatious conduct. The prior Order of this Court could not in any fashion reasonably be read to exclude such questioning.

Indeed, the entire context of the Order was simply to ensure that the broad boundaries of relevancy under Rule 26(b)(1) served to define the scope of the deposition topics, nothing more. Many of the questions that the witness was instructed not to answer ran directly to the heart of the parties' dispute. Platinum was not enforcing our prior order in good faith, but rather deliberately twisted the language of that order in an effort to distort its meaning so as to impede the ability of the Plaintiffs to obtain necessary information. The result is that a corporate deposition of Platinum now must be resumed at the additional cost and expense of the Plaintiffs and the orderly progress of the 4-year old case further delayed.

Certainly, we do not in any sense attempt to deter an attorney from zealous advocacy on the behalf of his or her client. See, In re Ruben, 825 F.2d 977, 983 (6th Cir.1987). What occurred here, however, went well beyond zealous advocacy to morph into a series of frivolous objections grounded in a highly unreasonable reading of our prior Order. These objections were then combined with repeated, unjustified instructions to the witness not to respond to obviously relevant questions that in several instances the witness acknowledged on the record that he knew the answer. We therefore are compelled to exercise our inherent authority to impose attorney's fees and costs against Platinum based on the deliberately disruptive deposition conduct that occurred at the Rule 30(b)(6) deposition on December 14, 2017. See Metz, 655 F.3d at 489-90 (discussing the 3-part test for imposing sanctions under the Court's inherent powers).

*21 Within 20 days of the date of entry of the present order, or should either party appeal, any order of the District Court that affirms the present order in this regard, Plaintiffs shall prepare a statement of the reasonable and necessary attorney fees and costs incurred with relation to the corporate deposition of December 14, as well as, the attorney's fees and costs incurred by the Plaintiffs for that portion of their motion to compel specifically related to the aborted Rule 30(b)(6) deposition. Platinum shall then have 20 days thereafter in which to file its response in objection to the fees and costs sought by the Plaintiffs. Plaintiffs may then file their reply to such response 10 days thereafter at which time the matter of sanctions shall stand submitted. During the extended period for completion of discovery, more fully discussed below, the parties shall resume the deposition of Platinum at a mutually agreeable date and time.

As earlier mentioned, Plaintiffs in their motion to compel also seek an extension of the deadline to complete discovery. They ask the Court to extend “all remaining deadlines by sixty (60) days following the Court's final ruling on this motion.” (DN 151, p. 13). After the expiration of this extended discovery deadline, Plaintiffs further ask that they be given 45 days to move for Rule 23 class certification and to respond to the pending motion of Platinum to decertify their collective class action. Plaintiffs seek these extensions in an effort to resolve their outstanding discovery issues, as well as any other such discovery issues that might arise during the continuation of the Rule 30(b)(6) deposition of Platinum.

Platinum does not oppose a limited discovery extension. It is willing to agree to an extension of the discovery deadline specifically to permit Platinum to finalize its current discovery responses and to permit the Plaintiffs to complete the Rule 30(b)(6) deposition of its corporate representative. Platinum, however, as before is opposed to a general 60-day extension for unlimited discovery, an extension which it insists is unnecessary and “would merely serve to further delay litigation of this case.” (DN 154, p. 21).

Modification of a scheduling order under Rule 16(b)(4) maybe had for good cause shown with the consent of the Court. Fed. R. Civ. P. 16(b)(4). The key determinant to measure the “good cause” standard of the Rule is the diligence of the moving party and attempting to meet the case management order deadlines. ” Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir.2002) (citing Bradford v. DANA Corp., 249 F.3d 807, 809 (8th Cir.2001)). Also potentially relevant is the possible prejudice that will be visited on the nonmovant by such an extension. Leary v. Daeschner, 349 F.3d 888, 909 (6th Cir.2003). See also Marcilis vs. Township of Redford, 693 F.3d 589, 597 (6th 2012)(same).

Here, Plaintiffs have satisfied the good cause standard of the Rule. Plaintiffs have been diligent in pursuing discovery throughout the litigation. Additionally, Platinum points to no specific, undue prejudice that would be visited upon it were the Court to grant the request for an extension in its entirety. Accordingly, that portion of the motion to compel which seeks a general extension of 60 days in which to complete discovery is granted. During this extended time for completion of discovery, Platinum shall supply the Plaintiffs with its Rule 26(b)(5) privilege log within 30 days of the date of entry of this order. Upon the completion of the full 60 day extension, Plaintiffs shall have 45 days thereafter in which to file their motion for Rule 23 class certification and to respond to the pending motion of Platinum to decertify the collective action claims. Based on the above rulings the separate motion of the Plaintiffs to stay the deadline for responding to the motion to decertify the collective action claims is DENIED as MOOT. (DN 158)

*22 The final matter that we address involves the two motions of Platinum for leave to file a surreply. (DN 161, 162). Platinum seeks leave to file a surreply in support of its response to the Plaintiffs' motion for leave to file a Sixth Amended Complaint. (DN 162). Platinum also seeks permission from the Court to file a surreply in support of its response to the Plaintiffs' motion to compel. (DN 161). Platinum acknowledges that such motions are not particularly favored in the eyes of the federal courts, but insists that new legal authority and/or arguments raised for the first time in the Plaintiffs' reply briefs compelled it to have the last word in the matter. Plaintiffs have filed a joint response in opposition to both motions, which Plaintiffs maintain are not justified in light of the nature of the Plaintiffs' reply briefs, none of which raise new case authority or new facts in the first instance.

Although the Federal Rules of Civil Procedure make no specific provision for the filing of a surreply, a surreply may be allowed in those limited instances in which “new submissions and/or arguments are included in the reply brief, and a nonmovant's ability to respond to the new evidence has been vitiated.” First Technology Capital, Inc. v. BancTec, Inc., No. 5:16-CV-138-REW, 2017 WL 2734716 at *1 (E.D. Ky. June 26, 2017) (quoting Key v. Shelby County, 551 Fed App'x to 62, 265 (6th Cir. 2014)). Nevertheless, surreplies “are highly disfavored.” Liberty Legal Found. v. Nat'l Democratic Party of the USA, Inc., 875 F. Supp. 2d 791, 797 (W.D. Tenn. 2012). Only when the contents of the Reply cite previously unmentioned, new legal authority or hitherto undiscussed, material facts that turn the outcome of the motion will this Court grant a party leave to file a surreply.

We simply do not have such circumstances here. The matters cited by Platinum as justification for its request for leave to file the two surreplies are not the type of outcome determinative, newly cited authority or dispositive facts that would compel a Court to permit a party to add an extra round of briefs. For example, the supposedly new authority of Krupski v. Cost Crociere S.p.A., 560 U.S. 538 (2010) cited by the Plaintiffs in their Reply was the primary justification for the motion of Platinum for leave to file a surreply to the Plaintiffs' motion for leave to file a Sixth Amended Complaint. Plaintiffs, however, had indeed cited Krupski in their motion for leave to amend so that the case could not be considered to be authority cited for the first time in Plaintiffs' reply.

Platinum also accused the Plaintiffs of misstating the deposition testimony of Mr. Humphries and corporate representative Vezeau in their reply filed in support of their motion to compel as the basis for its request for leave to file surreply in that instance. Platinum never explained, however, just exactly how the Plaintiffs misstated or otherwise mischaracterized that deposition testimony. In sum, we see no adequate basis on which to grant either motion for leave to file a surreply. Accordingly, both motions are DENIED.

In summary, the motion of the Plaintiffs for leave to file a Sixth Amended Complaint is DENIED where the claims against the new Defendants to be added would not relate back to the date on which the original complaint was filed.

The motion of the Plaintiffs to compel is granted to the extent that: (1) sanctions in the form of reasonable attorney fees and costs as explained above shall be imposed against Platinum for the manner in which the Rule 30(b)(6) deposition was defended by repeated, unjustifiable instructions to the corporate witness not to answer otherwise unobjectionable questions; (2) all discovery deadlines shall be extended by 60 days from the date of entry of the present order or any order that affirms this order if timely objections are filed, and the deadline for the Plaintiffs to file their Rule 23 motion for class certification and to respond to the pending motion of Platinum to decertify the collective action claims shall be extended 45 days following the end of the 60 day extension; (3) Platinum shall provide the Plaintiffs with a detailed privilege log in full compliance with Rule 26(b)(5)(A) within 30 days of the date of entry of the present order. The motions of Platinum for leave to file a surreply in support of its response to the Plaintiffs' motion for leave to file a Six Amended Complaint and motion to compel are DENIED. The motion to stay the deadline to respond to the motion to decertify is DENIED as MOOT. Appeal of the present order is subject to the terms of the time limitations of Rule 72 (a) of the Federal Rules of Civil Procedure.

*23 Cc: Counsel of Record