Morales et al v. LMK Baton Rouge Construction, LLC et al

Filing 90

ORDER granting 69 Motion to Compel, with the exception that the parties shall bear their own costs. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 6/28/2016. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
BRENDA MORALES, ET AL.

CIVIL ACTION

VERSUS

NO. 15-639-SDD-RLB

LMK BATON ROUGE
CONSTRUCTION, ET AL.
ORDER
Before the Court is defendant Crouch & Western, Inc.’s (“C&W”) Motion to Compel
Discovery Responses (R. Doc. 69) filed on April 18, 2016. C&W represents that the named
Plaintiffs did not timely respond to interrogatories (R. Doc. 69-2) and requests for production (R.
Doc. 69-3) propounded on March 11, 2016. Among other things, C&W notes that the named
Plaintiffs did not seek, and the Court did not issue, a stay of discovery pending resolution of the
motions to dismiss. (R. Doc. 69-1 at 4).
Plaintiffs initially opposed the motion. (R. Doc. 76). Plaintiffs subsequently filed a
Supplemental Opposition representing that on May 27, 2016, the six named Plaintiffs responded
to the outstanding discovery requests. (R. Doc. 83).
If a party fails to respond fully to discovery requests made pursuant to Rules 33 and 34 in
the time allowed by the Federal Rules of Civil Procedure, the party seeking discovery may move
to compel disclosure and for appropriate sanctions under Rule 37. There is no dispute that the
named Plaintiffs did not timely provide discovery responses within the time allowed by Rule 33
and Rule 34. The sole issue remaining before the Court is whether to award the expenses
incurred by C&W for bringing the instant motion.
Rule 37 provides that if a motion to compel “is granted--or if the disclosure or requested
discovery is provided after the motion was filed--the court must, after giving an opportunity to be

heard, require the party or deponent whose conduct necessitated the motion, the party or attorney
advising that conduct, or both to pay the movant’s reasonable expenses incurred in making the
motion, including attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(A). The Court must not order this
payment, however, if “(i) the movant filed the motion before attempting in good faith to obtain
the disclosure or discovery without court action; (ii) the opposing party's nondisclosure,
response, or objection was substantially justified; or (iii) other circumstances make an award of
expenses unjust.” Id.
The named Plaintiffs bring this action as a purported collective action pursuant to the Fair
Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”). Prior to the filing of the instant motion,
the named Plaintiffs moved for a protective order that would limit discovery in this action to the
six named Plaintiffs and a limited representative sample of 10% of certain opt-in Plaintiffs. (R.
Doc. 67). That motion remains pending. Although there appears to have been no dispute as to
the appropriateness of discovery directed to the named Plaintiffs, in light of the unresolved scope
of allowable discovery in this action the Court concludes that it would be unjust to award
expenses with regard to the instant motion. Further orders of the Court will address the manner,
timing and scope of additional discovery.
For the foregoing reasons,
IT IS ORDERED that Defendants Motion to Compel (R. Doc. 69) is GRANTED, with
the exception that the parties shall bear their own costs.
Signed in Baton Rouge, Louisiana, on June 28, 2016.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

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