Jones v. Dead Zero Shooting LLC
Jones v. Dead Zero Shooting LLC
2023 WL 6064298 (E.D. Tenn. 2023)
March 23, 2023
Steger, Christopher H., United States Magistrate Judge
Summary
The plaintiff filed a motion to compel discovery against the defendants for alleged violations of the Fair Labor Standards Act. The court granted the motion and ordered the defendants to fully respond to the discovery requests by a certain date. The defendants' objections to the requests were deemed waived and they were ordered to pay the plaintiff's expenses.
David JONES, individually and on behalf of all other similarly situated individuals, Plaintiff,
v.
DEAD ZERO SHOOTING LLC, a Tennessee Limited Liability Company, d/b/a Dead Zero Shooting Park; Dead Zero, a Tennessee Limited Liability Company, d/b/a Dead Zero Shooting Park; Justin David Whaley; Scott Victor; and Russel Theurer, Defendants
v.
DEAD ZERO SHOOTING LLC, a Tennessee Limited Liability Company, d/b/a Dead Zero Shooting Park; Dead Zero, a Tennessee Limited Liability Company, d/b/a Dead Zero Shooting Park; Justin David Whaley; Scott Victor; and Russel Theurer, Defendants
No. 4:22-cv-00022-CLC-CHS
United States District Court, E.D. Tennessee, Winchester Division, at Winchester
Filed March 23, 2023
Counsel
Andre Sean Greppin, Moore, Rader, Fitzpatrick and York, P.C., Cookeville, TN, for Plaintiff.Michael E. Lord, Scott E. Simmons, Miller & Martin, PLLC, Chattanooga, TN, for Defendants.
Steger, Christopher H., United States Magistrate Judge
ORDER
*1 This matter is before the Court upon Plaintiff's Motion to Compel Discovery [Doc. 33]. The Court conducted a hearing on this motion on March 22, 2023. Attorney Andre Greppin appeared on behalf of Plaintiff. Attorney Scott Simmons appeared on behalf of Defendants. For reasons that follow, the referenced motion [Doc. 33] will be GRANTED to the extent specifically set forth herein.
By way of background, Plaintiff's complaint against Defendants alleges violations of the Fair Labor Standards Act, 29 U.S.C. §§ 206 and 207. The Honorable United States District Judge Curtis L. Collier entered a Scheduling Order [Doc. 30] on October 12, 2022, in which he established the following relevant scheduling deadlines:
• Joinder of Parties/Amendment of Pleadings – May 6, 2023[1]
• Discovery Deadline - October 31, 2023
• Dispositive Motions – January 31, 2024
• Trial – May 6, 2024
Plaintiff served the following discovery requests upon Defendants on August 30, 2022: (1) Plaintiff's First Set of Interrogatories and Requests for Production to Defendants Dead Zero Shooting LLC and Dead Zero; (2) Plaintiff's First Set of Interrogatories and Requests for Production to Defendant Justin David Whaley; (3) Plaintiff's First Set of Interrogatories and Requests for Production to Defendant Russel Theurer; and (4) Plaintiff's First Set of Interrogatories and Requests for Production to Defendant Scott Victor (collectively, “Plaintiff's Discovery Requests”). Responses to these discovery requests would have been due on September 29, 2022. Plaintiff's counsel and Defendants’ counsel conferred and agreed to a number of extensions to the date by which Defendants would furnish responses to Plaintiff's Discovery Requests. The parties last agreement in this regard was memorialized by Plaintiff's counsel in correspondence to Defendants’ counsel dated February 9, 2023, which provided in relevant part:
This will confirm that you have agreed to provide full and complete responses to Plaintiff's written discovery requests originally served on August 30, 2022 on or before February 24, 2023.
* * * * *
As we discussed, if I have not received full and complete responses ... by February 24, 2023, I will proceed to file a motion to compel without further notice.
Despite multiple extensions and a final extension to February 24, 2023, Defendants did not submit responses to any of Plaintiff's Discovery Requests by February 24, 2023, or indeed, by February 27, 2023, when Plaintiff filed the instant motion to compel. In fact, the Defendants did not submit any discovery responses to Plaintiff's counsel until a very short time in advance of the March 22, 2023 hearing on the motion to compel, and even then, the responses—which Plaintiff's counsel characterizes as “incomplete”—were not verified or signed by Defendants.
At the hearing on this motion, Defendants’ counsel did not dispute the characterization of events set forth above. He explained that delays had been occasioned because of difficulties in procuring requested information from his clients, as well as his own challenge of juggling responsibilities in different cases. The Court appreciated Defendants’ counsel's candor in this regard and his integrity in accepting responsibility for some of the delays.
*2 The Court takes notice that this case involves a potential collective action under the Fair Labor Standards Act. Plaintiff David Jones asserts this cause of action not only on behalf of himself, but potentially on behalf of other employees of Defendants who also may have been injured by alleged wage and hour violations. Because this is a putative class action, it is particularly important for discovery to be conducted in a timely manner so that Plaintiff's counsel can determine whether there is a factual basis for a collective action on behalf of other employees of Defendants, and so that the issue of class certification can be brought before the Court in advance of the dispositive motion deadline and the trial date. Given that the deadline for Joinder of Parties and Amendment of Pleadings is May 6, 2023, Defendants’ delay in responding to Plaintiff's Discovery Requests may already have interfered with Plaintiff's ability to meet such deadline.
For the foregoing reasons, the Court finds that Plaintiff's motion to compel is well taken, and it is hereby ORDERED that:
1. Plaintiff's Motion to Compel Discovery [Doc. 33] is GRANTED to the extent set forth below.
2. Defendants shall fully respond to Plaintiff's Discovery Requests by March 29, 2023. Pursuant to Fed. R. Civ. P. 33(b)(5), “[t]he person who makes the answers must sign them, and the attorney who objects must sign any objections.”
3. Pursuant to Fed. R. Civ. P. 37(a)(5), the Court finds that Defendants’ conduct necessitated Plaintiff's motion to compel, Plaintiff's counsel attempted in good faith to obtain the requested discovery without court action, and Defendants’ failure to respond to discovery in a timely manner was not substantially justified. Consequently, Defendants (and/or their counsel) shall pay Plaintiff's reasonable expenses incurred in making the motion to compel, including attorney's fees. To that end, Plaintiff's counsel shall calculate his fees (at a rate of $325 an hour) in connection with preparation of the motion to compel, the time required to travel to and from Chattanooga for oral argument on the motion, and the time required to prepare a statement of his fees and expenses. Plaintiff's counsel shall submit such statement of fees and expenses to Defendants’ counsel for payment within two weeks of receipt thereof. If Defendants have objections to Plaintiff's counsel's statement of fees and expenses, counsel for the parties shall bring such matter to the attention of the undersigned promptly and the Court will decide the matter.
4. Defendants’ counsel's objections to Plaintiff's Discovery Requests are presumptively waived as untimely; however, the Court will entertain argument from Defendants as to any objections to discovery requests that clearly exceed the scope of Fed. R. Civ. P. 26(b)(1).
SO ORDERED.
Footnotes
This scheduling deadline was amended to this date by the Court's Order dated November 14, 2022 [Doc. 32].