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Whetstone Industries, Inc. v. Yowie Group, Ltd.

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

October 11, 2019

Whetstone Industries, Inc., & Henry M. Whetstone, Jr., Plaintiffs,
Yowie Group, LTD., etc., Defendants.



         The 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.

         Motion to Strike

         The 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.

         A court “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 July 16, 2019) (unpublished).

         Courts 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 Mar. 2, 2016) (no) (unpublished); with GEOMC Co., Ltd.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.

         Because 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 case.”).

         Motion to Extend Time Limits for Depositions

         The 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 5-6.

         The 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.

         Local 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 opposition exists.

Local Rule 3.01(g).

         The 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.

         The 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.

         The 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”[1] and may limit the scope and manner of a deposition as provided in Rule 26(c).[2] 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.

         The 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 timer, ...

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