Applya Corporation v. TBG Tech Co. LLC et al

Filing 128

ORDER granting 82 Motion for Extension of Time; denying 82 Motion for Protective Order. Signed by Chief Magistrate Judge Edwin G. Torres on 1/7/2025. See attached document for full details. (MJS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 23-21290-CIV-GAYLES/TORRES
APPLYA CORPORATION,
Plaintiff,
v.
TBG TECH CO. LLC and
JOHANNES FLOE,
Defendants.
___________________________________________/
ORDER ON DEFENDANT’S
MOTION FOR EXTENSION OF TIME AND PROTECTIVE ORDER
This cause comes before the Court on Defendant Johannes Floe’s Motion for
Extension of Time and for Protective Order against Plaintiff. [D.E. 82]. Plaintiff
timely responded to the Motion [D.E. 83], to which Mr. Floe replied. [D.E. 86]. The
motion, therefore, is ripe for disposition. 1 After careful review of the briefing and
relevant authorities, and for the reasons set forth below, Mr. Floe’s Motion is
GRANTED in part and DENIED in part.

1 On October 30, 2024, the Honorable Darrin P. Gayles referred all pretrial matters

to the Undersigned Magistrate Judge for disposition. [D.E. 99].
1

I.

BACKGROUND

This action was brought on April 4, 2023, against Mr. Floe and TBG Tech Co.
LLC (“TBG Tech”). On August 2, 2024, TBG Tech was found to be in default for its
repeated failure to retain counsel despite ample Court warnings. [D.E. 78]. On the
same day, a Final Default Judgment was entered on all five counts brought against
TBG Tech. [D.E. 79].
On August 14, 2024, Mr. Floe filed a motion to vacate TBG Tech’s default
judgment; Mr. Floe was the Manager of the now-defunct TBG Tech and was coDefendant for four of the five counts upon which TBG Tech defaulted. On the same
day, Mr. Floe filed the pending Motion, which seeks an extension of time to respond
to discovery (which was propounded on July 15, 2024), and a protective order
insulating Mr. Floe from responding to discovery until his motion to vacate the
default is decided. As cause, Mr. Floe contends that his responses to Plaintiff’s
discovery requests may be impacted depending on whether TBG Tech’s default is
vacated.
II.

ANALYSIS

First, we will assess Mr. Floe’s request for a discovery extension before
determining whether a protective order is appropriate.
A.

Discovery Extension

“District judges are accorded wide discretion in ruling upon discovery motions,
and appellate review is accordingly deferential.” Iraola & CIA, S.A. v. Kimberly-Clark
Corp., 325 F.3d 1274, 1286 (11th Cir. 2003) (quoting Harris v. Chapman, 97 F.3d 499,

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506 (11th Cir. 1996), cert. denied, 520 U.S. 1257, 117 S.Ct. 2422, 138 L.Ed.2d 185
(1997)). In exercising that wide discretion, we find good cause to extend the discovery
deadline. To be clear, we do not condone Mr. Floe’s decision to wait until the last
possible day (i.e., the day before the discovery deadline) to request an extension of
time. Throughout this litigation, Mr. Floe has exhibited a pattern of dragging his feet.
Nonetheless, we do find that the default judgment entered against TBG Tech, while
it should not have come as a surprise to Mr. Floe, does present minimal good cause
to permit an extension of time to respond to discovery.
Further, we also note that Plaintiff did not serve its discovery requests—upon
a then-pro se defendant—until roughly one month before the discovery period lapsed.
Thus, both parties have run against the discovery deadline in this case. And while
this situation is not the ideal picture of a diligent litigant seeking one last extension
to honestly comply with discovery demands, we do find good cause to extend the
discovery deadline rather than deem Mr. Floe’s non-responses as case-ending
admissions. See Perez v. Wells Fargo N.A., 774 F.3d 1329, 1342 (11th Cir. 2014) (“This
Circuit expresses a strong preference that cases be heard on the merits and strive[s]
to afford a litigant his or her day in court, if possible.”); see also Rocket Real Est., LLC
v. Maestres, No. 15-62488-CIV, 2016 WL 4468286, at *3 (S.D. Fla. Aug. 24, 2016)
(denying motion to strike the plaintiff’s untimely discovery responses because of “the
preference of the Court to decide factual issues on their merits and the fact that a
three-week extension of time [to respond to discovery] would not have been
prejudicial to Defendant”).

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Consequently, we also recommend that the scheduling order be amended to
extend the dispositive motion deadline and trial date. Plaintiff, therefore, would
suffer no prejudice from the extension of the discovery deadline, would be permitted
to re-file its motion for summary judgment, 2 and would have ample time to prepare
for trial with its newly-received discovery. Mr. Floe shall fully respond to the pending
discovery requests by January 21, 2025.
B.

Protective Order

As to Mr. Floe’s requested protective order, however, Mr. Floe’s Motion is
denied. Essentially, Mr. Floe seeks a protective order which would insulate him from
participating in discovery until the Court rules on his Motion to Set Aside TBG Tech’s
Default Judgment. [D.E. 81]. But Mr. Floe makes no showing, and provides no
authority that, simply because he filed a motion to vacate a co-Defendant’s default
judgment, Mr. Floe can indefinitely pause discovery. That course of action would be
inefficient and unfair to Plaintiff, nor has Mr. Floe even attempted to establish good
cause to support such a peculiar action. See Baratta v. Homeland Housewares, LLC,
242 F.R.D. 641, 642 (S.D. Fla. 2007) (denying motion for protective order because the
movant “bears the burden of establishing good cause for the protective order” and
“f[ell] short of demonstrating good cause”); Houston v. 7-Eleven, Inc., No. 2:14-CV441-FTM-29CM, 2015 WL 412523, at *2 (M.D. Fla. Jan. 30, 2015) (denying motion

Plaintiff’s pending Motion for Summary Judgment is largely premised on the
assumption that Mr. Floe’s failure to respond to discovery constituted admissions.
Thus, to avoid any prejudice, it would be appropriate to extend the dispositive motion
deadline and permit Plaintiff to re-file its Motion for Summary Judgment with the
benefit of Mr. Floe’s discovery.
2

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for protective order because “delaying discovery until the Court rules on the Motion
to Dismiss will cause Plaintiff harm, and his case should go forward”).
III.

CONCLUSION

For the reasons set forth above, Mr. Floe’s Motion to extend the discovery
deadline is GRANTED in part and DENIED in part. To the extent Mr. Floe seeks
a protective order, his Motion is denied. But to the extent Mr. Floe seeks an extension
of time to respond to Plaintiff’s discovery requests, Mr. Floe’s Motion is granted
through and including January 21, 2025.
As a result, we recommend that the Court enter an Amended Scheduling Order
to extend the discovery deadline, dispositive motion deadline, and trial date.
DONE and ORDERED in Chambers at Miami, Florida this 7th day of
January, 2025.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge

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