Hinton et al v. MDM Restaurants, Inc.

Filing 49

ORDER GRANTING as Unopposed Plaintiff's 35 Motion to Compel. Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JESSA HINTON, et al.,
Plaintiffs,
v.

Case No. 2:17-cv-14036
District Judge Nancy G. Edmunds
Magistrate Judge Anthony P. Patti

MDM RESTAURANTS,
INC.,
Defendant.
_________________________/
ORDER GRANTING AS UNOPPOSED PLAINTIFFS’ MOTION TO
COMPEL NON-PARTY ACCUFORM BUSINESS SYSTEMS, INC. TO
COMPLY WITH SUBPOENA (DE 35) AND CANCELLING HEARING
NOTICED FOR NOVEMBER 2, 2018 (DE 38)
Currently before the Court is Plaintiffs’ September 28, 2018 motion to
compel non-party Accuform Business Systems, Inc. to comply with subpoena,
which has been referred to me. (DEs 35, 36.) This motion initially was set for
hearing on November 2, 2018 at 2:00 p.m. (DE 38.) However, pursuant to E.D
Mich. LR 7.1(f)(2), this motion will be determined without oral argument. (DE
45.)
According to the motion, which is supported by attached email
correspondence, counsel for Plaintiffs issued and served an amended record
subpoena to non-party Accuform Business Systems, Inc. (Accuform) on June 20,
2018 to produce six categories of documents. (DEs 35, 35-1 at 5-14.) On June 28,

2018, attorney Brian Daley contacted Plaintiffs’ counsel, stated that he had been
retained to represent non-party Accuform in relation to the subpoena, and
requested an extension of time until July 27, 2018 to respond to the subpoena. (DE
35-1 at 16-17.) However, non-party Accuform never objected to the subpoena
pursuant to Fed. R. Civ. P. 45, or otherwise responded to it. Counsel for Plaintiffs
contacted Mr. Daley by email on August 1 and August 12, 2018 regarding the
status of non-party Accuform’s response to the subpoena, and left a voicemail for
Mr. Daley on August 16, 2018, but he never received a response. (DEs 35 at ¶ 9,
35-1 at 16.)
Plaintiffs filed the instant motion to compel on September 28, 2018, seeking
an order compelling non-party Accuform to comply with the subpoena and
produce responsive documents. (DE 35.) “A response to a nondispositive motion
must be filed within 14 days after service of the motion.” E.D. Mich. LR
7.1(e)(2)(B). Thus, in the absence of a scheduling order stating otherwise,
Accuform’s response to Plaintiffs’ September 28, 2018 motion (DE 35) would
have been due on or about October 15, 2018. See Fed. R. Civ. P. 6(a), 6(d). To
date, Accuform has not responded to Plaintiffs’ motion.
The local court rules of the Eastern District of Michigan required Accuform
to file a response if it wished to oppose Plaintiffs’ motion to compel. See E.D.
Mich. LR 7.1(c)(1) (“A respondent opposing a motion must file a response,
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including a brief and supporting documents then available.”) (emphasis added).
Opposition to a motion is deemed waived if the responding party fails to respond
or otherwise oppose the motion. See Humphrey v. United State Attorney General’s
Office, 279 F. App’x 328, 331 (6th Cir. 2008). Because Accuform has not
responded to Plaintiffs’ motion to compel it to comply with the subpoena,
Plaintiffs’ motion can and will be construed as unopposed.
Accordingly, Plaintiffs’ motion to compel non-party Accuform Business
Systems, Inc. to comply with subpoena is GRANTED as unopposed as follows:
1. Nonparty Accuform Business Systems, Inc. is ORDERED to respond to
Plaintiffs’ amended subpoena and produce the requested documents to
Plaintiffs by MONDAY, NOVEMBER 12, 2018. All objections are
deemed waived.
2. Counsel for Plaintiffs shall serve a copy of this Order on counsel for nonparty Accuform Business Systems, Inc. forthwith by email and overnight
courier, and file proofs of service for the same with the Court.
In addition, the hearing noticed for November 2, 2018 (DE 38) is
CANCELLED.
IT IS SO ORDERED.
Dated: November 2, 2018

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE
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Certificate of Service
I hereby certify that a copy of the foregoing document was sent to parties of record
on November 2 , 2018, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

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