NuVasive, Inc. v. Absolute Med., LLC
NuVasive, Inc. v. Absolute Med., LLC
2021 WL 7186136 (M.D. Fla. 2021)
August 20, 2018
Kelly, Gregory J., United States Magistrate Judge
Summary
The court granted a motion to compel better responses to requests for production filed by Plaintiff NuVasive, Inc. against Defendants Greg Soufleris and Absolute Medical Systems, LLC (AMS). The court also granted a motion to strike the response filed by Soufleris and AMS for not complying with the court's Standing Discovery Order and being filed more than seven days after the motion to compel was filed. The court emphasized the importance of timely and specific responses to requests for production and the consequences of not complying with court orders and deadlines in the discovery process.
Additional Decisions
NUVASIVE, INC., Plaintiff,
v.
ABSOLUTE MEDICAL, LLC; Absolute Medical Systems, LLC; Greg Soufleris; Dave Hawley; and Ryan Miller, Defendant
v.
ABSOLUTE MEDICAL, LLC; Absolute Medical Systems, LLC; Greg Soufleris; Dave Hawley; and Ryan Miller, Defendant
Case No. 6:17-cv-2206-CEM-GJK
United States District Court, M.D. Florida, Orlando Division
Signed August 20, 2018
Counsel
Christopher W. Cardwell, Pro Hac Vice, Marshall Thomas McFarland, Pro Hac Vice, Mary Taylor Gallagher, Pro Hac Vice, Gullet Sanford Robinson & Martin PLLC, Nashville, TN, Diana Nicole Evans, Robert Craig Mayfield, Bradley Arant Boult Cummings LLP, Tampa, FL, for Plaintiff.Bryan E. Busch, Pro Hac Vice, Busch Slipakoff Mills & Slomka, PLLC, Atlanta, GA, Christopher Young Mills, Busch Mills & Slomka LLP, West Palm Beach, FL, Stephen D. Milbrath, Accel IP Law, PLLC, Cocoa, FL, for Defendant.
Kelly, Gregory J., United States Magistrate Judge
ORDER
*1 This cause came on for consideration without oral argument on the following motions:
MOTION: NUVASIVE, INC.’S MOTION TO COMPEL BETTER RESPONSES (Doc. No. 302)
FILED: June 30, 2021
THEREON it is ORDERED that the motion is GRANTED IN PART AND DENIED IN PART.
MOTION: NUVASIVE, INC.’S MOTION TO STRIKE DEFENDANTS’ RESPONSE TO MOTION TO COMPEL (Doc. No. 307)
FILED: July 16, 2021
THEREON it is ORDERED that the motion is GRANTED.
On June 30, 2021, Plaintiff NuVasive, Inc. filed a motion to compel better responses to its requests for production (the “Motion to Compel”) to Defendants Greg Soufleris and Absolute Medical Systems, LLC (“AMS”). Doc. No. 302. On July 14, 2021, Soufleris and AMS filed their response to the Motion to Compel (the “Response”). Doc. No. 306. On July 16, 2021, NuVasive filed a motion to strike (the “Motion to Strike”) the Response, arguing that it fails to comply with the undersigned's Standing Discovery Order, in that it was filed more than seven days after the Motion to Compel was filed and it exceeds the word limitation. Doc. No. 307. Soufleris and AMS did not file a response to the Motion to Strike.
If they were not previously aware of the undersigned's Standing Discovery Order, the Motion to Compel put Soufleris and AMS on notice of it, Doc. No. 302 at 1, and they were obligated to review it and comply with it. Additionally, Soufleris and AMS should be aware of the consequences of not timely responding to a motion filed against them. On May 4, 2021, the Court struck Defendants Dave Hawley, Ryan Miller, and AMS's response to NuVasive's motion for partial summary judgment because it was untimely filed. Doc. No. 290 at 23-25. Regarding the Motion to Strike itself, Soufleris and AMS failed to file any response to it; therefore, the Court considers it unopposed and grants the Motion to Strike. Local Rule 3.01 (“If a party fails to timely respond, the motion is subject to treatment as unopposed.”).
In the Motion to Compel, NuVasive asks the Court to compel Soufleris and AMS to respond to specific requests to produce, stating that they “provided boilerplate, nonspecific objections that are without basis except to delay discovery, and they produced no documents.” Doc. No. 302 at 1 (emphasis in original). NuVasive requested documents from Soufleris responsive to the following requests to produce:
1. Please produce all tax returns, including any accompanying worksheets, that you filed in calendar years 2015 through 2021.
2. Please produce all financial statements you have submitted to a bank, lending institution, and/or other third party since January 1, 2015.
3. Please produce records sufficient for NuVasive to determine the monies you received from Absolute Medical, LLC and Absolute Medical Systems, LLC from January 1, 2015, to the present.
4. Please produce all correspondence you sent to and/or received from the following individuals from July 1, 2017 to the present:
(a) Pat Miles;(b) Craig Hunsaker;(c) Paul Sawin;(d) Dave Hawley;(e) Ryan Miller;(f) Mark Ojeda;*2 (g) Cesar Toro; and(h) Margarita Toro.
5. Please produce all correspondence you sent to and/or received from any spine surgeon and/or medical facility in Florida.
6. Please produce all records which relate to your capitalization of Absolute and/or AMS.
7. Please produce all corporate records, including but not limited to, formation documents, operating agreements, shareholder agreements, agendas and minutes of annual meetings, stock and/or membership ledgers, annual reports, etc. since December 1, 2017, for the following entities:
(a) Absolute Ortho, LLC;(b) The Absolute Group, Inc.[;](c) Spinal Solutions Group, LLC[;](d) Blackfin Assets LLC;(e) Blackfin Funds Inc.;(f) Durastat South East LLC;(g) Innovative Ancillary Solutions LLC; and(h) JHS Sales Consulting, LLC.
8. Please produce all records related to real property purchased or owned by you, including any entity owned, controlled, or managed by you, since December 1, 2017.
Doc. No. 302-1 at 2-6.
Request to Produce No. 5, asking for all correspondence Soufleris sent to and/or received from any spine surgeon and/or medical facility in Florida is not proportional to the needs of this case. Soufleris began communicating with Alphatec, Inc., NuVasive's competitor, in October 2017. Doc. No. 290 at 6. Thus, although the Motion to Compel is considered unopposed due to the striking of the Response, Request to Produce No. 5 is narrowed to apply only to correspondence from January 1, 2017, to the present, sent to and/or received from any spine surgeon and/or medical facility in Florida.
Regarding AMS, NuVasive served it with the following requests to produce:
2. Please produce all Communications between you and any Company that competes with NuVasive since December 1, 2017.
4. Please produce all communications you sent to or received from Dr. Paul Sawin since December 1, 2017.
5. Please produce all state and federal income tax returns, including K1s you issued, that you filed or caused to be filed since December 1, 2017.
6. Please produce all of your profit and loss statements that were generated since December 1, 2017.
7. Please produce all of your balance sheets that were generated since December 1, 2017.
8. Please produce all of your payroll records since December 1, 2017.
9. Please produce all records related to distributions made to your members, shareholders, owners, etc. since December 1, 2017.
10. Please produce all records related to any loans, promissory notes, or other debts of any kind made by or with or owed by or to you since December 1, 2017.
12. Please produce all of your data from QuickBooks (or other financial reporting software) since December 1, 2017.
13. Please produce all check registers you created, modified, or otherwise inputted data since December 1, 2017.
14. Please produce all of your credit card statements since December 1, 2017.
15. Please produce all of your bank statements since December 1, 2017.
16. Please produce all requests for expense reimbursement you have received or submitted since December 1, 2017.
18. Please produce all records of all payments you have received from Alphatec or any other participant in the spine industry (other than NuVasive) since December 1, 2017.
*3 19. Please produce all commission statements you have received from Alphatec or any other participant in the spine industry (other than NuVasive) since December 1, 2017.
23. Please produce all records related to real property purchased or owned by you since December 1, 2017.
24. Please produce al[l] records related to payments, transfers of funds, etc. by you to or from the following entities since December 1, 2017, including any records related to AMS’ authorization to make the payment, transfer of funds, etc.:
(a) Absolute;(b) Absolute Ortho, LLC;(c) The Absolute Group, Inc.;(d) Spinal Solutions Group, LLC;(e) Blackfin Assets LLC;(f) Blackfin Funds Inc.;(g) Durastat South East LLC;(h) Innovative Ancillary Solutions LLC; and(i) JHS Sales Consulting, LLC.
25. Please produce all:
(a) By-laws;(b) Corporate formation documents (including articles of organization, articles of incorporation, etc.);(c) Operating agreements;(d) Stock and/or membership ledgers;(e) Records, including minutes, from the initial and annual meetings of directors and officers; and(f) Annual reports you submitted[.]
Doc. No. 302-2 at 3-13, 15-17. The Motion to Compel as to the requests to produce directed to AMS is granted in full.
Accordingly, it is ORDERED as follows:
1. The Motion to Compel (Doc. No. 302) is GRANTED IN PART AND DENIED IN PART as follows:
a. On or before August 26, 2021, Soufleris must produce documents responsive to Request to Produce No. 5, as limited to documents from January 1, 2017, to the present, and to Requests to Produce Nos. 1–4 and 6–8, and AMS must produce documents responsive to Request to Produce Nos. 2, 4, 5–10, 12–16, 18, 19, and 23–25;b. In all other respects, the Motion to Compel is DENIED; and
2. The Motion to Strike (Doc. No. 307) is GRANTED, and the Response, Doc. No. 306, is STRICKEN.
DONE and ORDERED in Orlando, Florida, on August 20, 2021.