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Hicks v. Deepwater Global Distribution, Inc.

United States District Court, M.D. Florida, Orlando Division

July 16, 2018

BRADLEY HICKS, Plaintiff,
v.
DEEPWATER GLOBAL DISTRIBUTION, INC., RICHARD GILLILAND and LINDA GILLILAND, Defendants.

          ORDER

          THOMAS B. SMITH, UNITED STATES MAGISTRATE JUDGE

         This case comes before the Court without oral argument on the following motions:

• Plaintiff's Motion for an Order Compelling Responses to Plaintiff's First Request for Production of Documents (Doc. 21);
• Plaintiff's Motion for an Order Compelling Responses to Plaintiff's First Set of Interrogatories to (Doc. 22); and
• Plaintiff's Motion for an Order Compelling Responses to Plaintiff's First Set of Interrogatories to Defendant Linda Gilliland (Doc. 23).

         All three motions are GRANTED.

         I. Background

         On August 10, 2017, Plaintiff Bradley Hicks sued his former employer, Defendant Deepwater Global Distribution, Inc. and its principals, Richard Gilliland and Linda Gilliland, for failing to pay overtime wages in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. (Doc. 1). Deepwater Global is a Florida corporation that is an “online aquarium parts distribution business that sells and ships aquarium products” (Doc. 1 ¶¶ 8-9). Plaintiff worked for Deepwater Global from October 1, 2013 to June 13, 2017 as an hourly paid employee (Id. at ¶ 20). He was primarily responsible for “receiving inventory, stocking inventory, locating products, packing and preparing orders for shipment, unloading and loading boxes of inventory, counting inventory and otherwise following [the] directions of his supervisors” (Id. at ¶ 24). Plaintiff claims that within the last three years, he worked in excess of 40 hours per week for numerous weeks, yet he was not compensated for his overtime at the appropriate statutory rate (Id. at ¶ 27). Defendants deny Plaintiff's allegations and assert several affirmative defenses (Doc. 11). On February 28, 2018, the Court entered a Case Management and Scheduling Order that established November 22, 2018 as the date all discovery is expected to be completed (Doc. 19).

         Plaintiff has motioned the Court to compel Defendants to provide appropriate responses to his discovery requests. Defendants failed to respond to Plaintiff's first two motions and the time within to do so has expired. When a party fails to respond, that is an indication that the motion is unopposed. Foster v. Coca-Cola Co., No. 6:14-cv-2102-Orl-40TBS, 2015 WL 3486008, at *1 (M.D. Fla. June 2, 2015) (citing Jones v. Bank of Am., N.A., 564 Fed.Appx. 432, 434 (11th Cir. 2014)); Strykul v. PRG Parking Orlando, L.L.C., Case No. 6:14-cv-211-Orl-31GJK, 2015 WL 789199, at *2 (M.D. Fla. Feb. 24, 2015); cf. Barns v. Butch, No. 5:10-cv-426 (MTT), 2011 U.S. Dist. LEXIS 131500, at *2 (M.D. Ga. Nov. 15, 2011); Kramer v. Gwinnett Cnty., Ga., 306 F.Supp.2d 1219, 1221 (N.D.Ga. 2004) (“[A] party's failure to respond to any portion or claim in a motion indicates such portion, claim or defense is unopposed.”); Hudson v. Norfolk S. Ry. Co., 209 F.Supp.2d 1301, 1324 (N.D.Ga. 2001) (“When a party fails to respond to an argument or otherwise address a claim, the Court deems such argument or claim abandoned.”). Based upon Defendants' failure to respond to Plaintiff's averments, I treat the motions at Docket Entries 21 and 22 as unopposed.

         Defendant Linda Gilliland, through her counsel, filed a response to the motion at Docket Entry 23 almost one week after the July 6th deadline[1] had expired (Doc. 24). Plaintiff has not sought leave of the Court to file her response out of time, nor has she argued that good cause prevented her from complying with the deadline. Therefore, Linda Gilliland's response in opposition to the motion to compel is STRICKEN as untimely. See ReNu Medical, Inc. v. Hygia Health Services, Inc., CV 05-B-0949-S, 2007 WL 9712215, at *6 (N.D. Ala. Mar. 21, 2007) (“ReNu's Opposition was untimely filed, and it did not seek leave of the court to file its Opposition after the deadline. Therefore, the court will sua sponte strike plaintiff's Response …”); Keith v. Naglich, Civil Action Number 5:17-cv-01437-AKK, 2018 WL 513344, at *1 n.1 (N.D. Ala. Jan. 23, 2018). Accordingly, the Court also treats as unopposed Plaintiff's motion at Docket Entry 23.

         II. Discussion

         The Federal Rules of Civil Procedure “strongly favor full discovery whenever possible.” Farnsworth v. Proctor & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985). Federal Rule of Civil Procedure 26(b)(1) allows parties to “obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” Relevance is “construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351(1978). A discovery request “should be considered relevant if there is any possibility that the information sought may be relevant to the subject matter of the action.” Roesberg v. Johns-Manville Corp., 85 F.R.D. 292, 296 (E.D. Pa. 1980); see also Deitchman v. E.R. Squibb & Sons, Inc., 740 F.2d 556 (7th Cir. 1984) (If Court is in doubt concerning the relevancy of requested discovery the discovery should be permitted.).

         Federal Rule of Civil Procedure 33 allows parties to serve on each other interrogatories which relate to any matter that may be inquired into under Rule 26(b). Rule 33 directs that each interrogatory be answered "separately and fully in writing under oath." Fed.R.Civ.P. 33(b)(3). Similarly, Rule 34 states in part that a request for production “must describe with reasonable particularity each item or category of items to be inspected.” Fed.R.Civ.P. 34(b)(1)(A). An opposing party must state its grounds for objection with specificity. See id. at (b)(4).

         Objections to discovery must be “plain enough and specific enough so that the court can understand in what way the [discovery is] alleged to be objectionable.” Panola Land Buyers Assoc. v. Shuman, 762 F.2d 1550, 1559 (11th Cir. 1985) (quoting Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981)). The court may compel a party to answer interrogatories and produce documents. See Fed.R.Civ.P. 37(a)(3)(B)(iii). If a motion to compel is granted, the court must direct the party whose conduct necessitated the motion, “or the attorney advising that conduct, or both, ” to compensate the movant for “reasonable expenses incurred in making the motion, including attorney's fees, ...


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