United States District Court, M.D. Florida, Jacksonville Division
Whetstone Industries, Inc., & Henry M. Whetstone, Jr., Plaintiffs,
Yowie Group, LTD., etc., Defendants.
PATRICIA D. BARKSDALE, UNITED STATES MAGISTRATE JUDGE.
plaintiffs bring claims for tortious interference with a
manufacturing agreement, business relationship, and license
agreement. Doc. 1. An overview of the action is in the order
denying the motion to dismiss. Doc. 57. Before the Court are
the plaintiffs' motion to strike defenses, Doc. 69,
motion to extend time limits for depositions, Doc. 76, and
motion to compel discovery, Doc. 58, and the defendants'
responses to the motions, Docs. 65, 77, 79.
plaintiffs ask the Court to strike defenses raised in the
answers, Docs. 60- 63, primarily complaining the defenses are
improper “shotgun” defenses devoid of factual
allegations. Doc. 69.
“may strike from a pleading an insufficient defense or
any redundant, immaterial, impertinent, or scandalous
matter.” Fed.R.Civ.P. 12(f). A district court has
“considerable” discretion in ruling on a motion
to strike. 5C Arthur R. Miller, et al., 5C Federal Practice
and Procedure § 1382 (3d ed.) (“FPP”).
Generally, courts view such motions with disfavor and
infrequently grant them, Operating Eng'rs Local 324
Health Care Plan v. G & W Constr. Co., 783 F.3d
1045, 1050 (6th Cir. 2015), “unless the challenged
allegations have no possible relation or logical connection
to the subject matter of the controversy and may cause some
form of significant prejudice to one or more of the parties
to the action, ” FPP § 1382. Courts sometimes call
them “time wasters.” See, e.g., Gibson v.
JetBlue Airways Corp., No. 6:18-cv-1742-Orl-40TBS, 2019
WL 3206925, at *3 (M.D. Fla. July 16, 2019) (unpublished).
differ on whether the pleading standard for claims applies to
affirmative defenses, with courts holding “no”
appearing to be in the majority. Compare, e.g., Ability
Housing of Ne. Fla., Inc. v. City of Jacksonville, No.
3:15-cv-1380-J-32PDB, 2016 WL 816586, at *1-2 (M.D. Fla. Mar.
2, 2016) (no) (unpublished); with GEOMC Co., Ltd. v.
Calmare Therapeutics Inc., 918 F.3d 92, 98 (2d Cir.
2019) (yes, but “context specific”). The
undersigned remains in the “no” camp for the
reasons explained in Ability Housing.
the plaintiffs rely on the standard for claims rather than
defenses, the motion to strike, Doc. 69, is
denied. To the extent the plaintiffs argue
the Court should strike defenses because they are not genuine
affirmative defenses, the plaintiffs show no prejudice from
including the defenses in the answers, and the undersigned
discerns no harm in allowing them to remain. See
Gibson, 2019 WL 3206925, at *3 (“Defendant's
affirmative defenses, while not an example of exemplary
pleading, suffice for litigation purposes. To the extent
Plaintiff has succeeded in pointing out deficiencies in the
defenses, those flaws are not so substantial or serious that
the defenses need to be stricken to do justice in the
to Extend Time Limits for Depositions
plaintiffs move for extensions of the time limits for the
depositions of four Australian residents associated with
defendant Yowie Group, Ltd., or its subsidiary, non-party
Yowie North America: defendant Wayne Loxton, defendant
Patricia Fields, defendant Trevor Allen, and non-party Mark
Avery. Doc. 76. The plaintiffs explain that despite the
pendency of related state cases (consolidated into one state
case) and that the depositions are for both cases, the
defendants insist on proceeding under Federal Rule of Civil
Procedure 30 and provide only four consecutive days in
November for the depositions. Doc. 76 at 2-3. The plaintiffs
emphasize the state and federal cases involve different legal
theories, the underlying events in the cases span from 2012
to 2015, the need for and duration of breaks is difficult to
predict, and counsel has to travel far-to Australia-for the
depositions. Doc. 76 at 3-5. The plaintiffs want five days
for the four depositions and the “ability to allocate
that time among the witnesses however they deem fit, even if
that means exceeding the seven-hour limit.” Doc. 76 at
defendants detail the difficulty all have had in getting the
depositions scheduled (busy lawyers, international travel),
ultimately pinpointing November 12, 13, 14, and 15 as
acceptable dates, but with the plaintiffs' counsel
insisting on including Monday, November 18, and belatedly
disclosing that Loxton's deposition on Friday, November
15, would have to start early and end by sunset for religious
reasons. Doc. 79 at 2-4. The defendants oppose the motion on
four grounds: the plaintiffs' counsel failed to comply
with Local Rule 3.01(g); the plaintiffs fail to meet their
burden of showing the time limitation needs to be extended
considering that the cases lack complexity and three of the
four deponents have little knowledge about pertinent matters;
Loxton's deposition can be set to accommodate the request
to end the deposition by sunset; and extending the
depositions into a second week (to November 18) would unduly
burden defense counsel because travel to Australia will take
twenty hours and he has to attend depositions in Arizona on
November 20, 21, and 22. Doc. 79. The defendants explain
their counsel promised to not be an “egg-timer”
at the depositions and observed the sun will not set until
after 8:00 p.m. in Australia on November 15. Doc. 79 at 4.
The defendants add that three deponents (Loxton, Allen, and
Avery) must travel from other parts of Australia for their
depositions and contend those deponents should not be made to
continue their depositions over the course of several days.
Doc. 79 at 8-9.
Rule 3.01(g) provides,
Before filing any motion in a civil case, except a motion for
injunctive relief, for judgment on the pleadings, for summary
judgment, to dismiss or to permit maintenance of a class
action, to dismiss for failure to state a claim upon which
relief can be granted, or to involuntarily dismiss an action,
the moving party shall confer with counsel for the opposing
party in a good faith effort to resolve the issues raised by
the motion, and shall file with the motion a statement: (1)
certifying that the moving counsel has conferred with
opposing counsel; and (2) stating whether counsel agree on
the resolution of the motion. A certification to the effect
that opposing counsel was unavailable for a conference before
filing a motion is insufficient to satisfy the parties'
obligation to confer. The moving party retains the duty to
contact opposing counsel expeditiously after filing and to
supplement the motion promptly with a statement certifying
whether or to what extent the parties have resolved the
issue(s) presented in the motion. If the interested parties
agree to all or part of the relief sought in any motion, the
caption of the motion shall include the word
“unopposed, ” “agreed, ” or
“stipulated” or otherwise succinctly inform the
reader that, as to all or part of the requested relief, no
Local Rule 3.01(g).
Middle District of Florida Discovery Handbook elaborates:
The term “confer” in Rule 3.01(g) means a
substantive discussion. Counsel must respond promptly to
inquiries and communication from opposing counsel. Many
potential discovery disputes are resolved (or the differences
narrowed or clarified) when counsel confer in good faith.
Rule 3.01(g) is strictly enforced. A motion that does not
comply with the rule may be summarily denied.
M.D. Fla. Discovery Handbook § I.A.2.
plaintiffs' counsel failed to comply with Local Rule
3.01(g), having moved to extend the time limits on September
26, 2019, in lieu of responding to the last line in the email
from the defendants' counsel sent on September 20, 2019:
“Please advise if you have concerns with this
approach.” Doc. 79-5 at 2. That failure alone warrants
denying the motion. Still, hesitant to leave counsel with no
resolution on logistics of depositions so far away, the Court
will address the motion with the reminder to comply fully
with Local Rule 3.01(g) next time or risk summary denial.
federal rules limit each deposition to one day of seven
hours. Fed.R.Civ.P. 30(d)(1). The time includes only time
examining the witness, not time eating lunch or taking a
break. United States ex rel. Baltazar v. Warden, 302
F.R.D. 256, 267 (N.D. Ill. 2014). A court “must allow
additional time consistent with Rule 26(b)(1) and (2) if
needed to fairly examine the deponent” and may limit the
scope and manner of a deposition as provided in Rule
26(c). Fed.R.Civ.P. 30(d)(1), (d)(3)(B). The
party seeking to change the time limitations must show good
cause. Fed.R.Civ.P. 30, Adv. Comm. Notes 2000 Amend. Those
rules should be construed by the court and the parties to
“secure the just, speedy, and inexpensive
determination” of the action. Fed.R.Civ.P. 1.
plaintiffs have shown good cause to somewhat change the time
limits given the dual purposes of the depositions, but not in
the manner they request, which would unreasonably require the
defendants' counsel to remain in Australia for three
additional days for a mere possibility that the depositions
will exceed the time limits. Considering the circumstances in
the motion and response, the motion is granted in
part and denied in part as follows. The plaintiffs
must take the four depositions in four days. Unless the
defendants' counsel stipulates otherwise, each deposition
must take place during a single day. The depositions of
Fields, Allen, and Avery may not exceed eight hours (counting
only examining time); and the deposition of Loxton may not
exceed nine hours (counting only examining time). Because the
defendants' counsel will not be using an “egg