Bachman et al v. Bachman et al

Filing 122

ORDER Defendants' Motion for Protective Order (Filing No. 108 ) and Plaintiffs' Motion to Compel (Filing No. 115 ) are resolved as follows: Defendants' Motion for Protective Order is granted as to Plaintiffs' First or Second Set of Requests for Admission, and accordingly, Plaintiffs' Motion to Compel answers to those requests is denied. Defendants' Motion for Protective Order is denied as to Plaintiffs' Interrogatory Nos. 4-8, and accordingly, Plaintiff s' Motion to Compel answers to those interrogatories is granted. On or before December 17, 2020, Defendants shall provide supplemental responses to Plaintiffs' Interrogatory Nos. 4-8, as outlined herein. Plaintiffs' Motion to Compel responses to Plaintiffs' Requests for Production Nos. 1, 4 and 5 is granted. To the extent Defendants have failed to respond to Plaintiffs' Requests for Production of Documents Nos. 1, 4, or 5, Defendants shall answer or object to those requests by December 17, 2020. To the extent Defendants have answered those requests but not produced responsive documents, Defendants must make that production by December 17, 2020. The parties are required to informally attempt resolution of an y additional discovery dispute. If informal resolution cannot be achieved, the parties shall contact the chambers of the undersigned magistrate judge on or before January 19, 2021 to schedule a telephonic discovery conference. No additional discov ery motion shall be filed absent consent of the court. Plaintiffs' Motion to Strike their Motion to Compel (Filing No. 118 ) is denied as moot. Defendants' Motion for Leave to Amend (Filing No. 111 ) is granted. Defendants shall file their amended answer, a copy of which is attached to their motion, on or before November 24, 2020. Ordered by Magistrate Judge Cheryl R. Zwart. (LRM)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JAMES E. BACHMAN, ADELLA A.
BACHMAN, ERIC J. BACHMAN,
RACHEL A. BACHMAN, MATTHEW R.
BACHMAN, and C. ANDREW
BACHMAN,

8:19CV276

MEMORANDUM AND ORDER
Plaintiffs,
vs.
JOHN Q. BACHMAN, and LEAF
SUPREME PRODUCTS, LLC, A
Nebraska Limited Liability Co.;
Defendants.
This case is before the court of the parties’ cross discovery motions (Filing
Nos. 108 and 115). Defendants Leaf Supreme Products, LLC and John Q.
Bachman (hereafter “Defendants”) have moved for a protective order limiting the
scope of the Requests for Admission (“RFAs”) and Interrogatories previously
served by the Plaintiffs. Plaintiffs James E. Bachman, Adella A. Bachman, Eric J.
Bachman, Rachel A. Bachman, Matthew R. Bachman and C. Andrew Bachman
(hereafter “Plaintiffs”) then filed a competing motion to compel – asking the court
to require Defendants to respond to the RFAs, Request for Production of
Documents (“RFPs”), and Interrogatories as requested. Also before the court is
Defendants’ Motion to Amend (Filing No. 111), which requests leave of court to
amend their answer to assert additional claims and defenses.

Being fully advised, the court will grant in part and deny in part the motions
for protective order and to compel and will grant the motion for leave to amend.

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BACKGROUND

Defendant Leaf Supreme is a Nebraska limited liability company. It
manufactures a type of “guard” meant to alleviate clogging (from leaves and other
debris) in rain gutters. Defendant John Q. Bachman is a member and majority
owner of Leaf Supreme. Plaintiffs have been Leaf Supreme’s only employees.
They claim that, from October 1, 2016 to the present, they have not been paid any
wages, in violation of federal law. Neither Plaintiffs nor Leaf Supreme kept records
of Plaintiffs’ hours worked. (See generally, Filing No. 101).
Plaintiffs’ federal claims arise under the Fair Labor Standards Act (“FLSA”),
29 U.S.C. § 201 et seq.1 Plaintiffs originally moved for summary judgment on the
FLSA claims on August 6, 2019. (Filing No. 27). The court denied that motion,
without prejudice to reassert after sufficient discovery. 2 (Filing No. 55). Later,
during the initial planning conference, Defendants asserted this court lacked
federal question jurisdiction. Specifically, Defendants question whether there is
evidence supporting the FLSA requirements set forth in 29 U.S.C.A. § 206. The
court allowed limited discovery on the jurisdictional issue and set a deadline for
dispositive motions addressing the issue of federal subject matter jurisdiction.
(Filing Nos. 58 and 59).

The parties conducted their limited discovery, and Defendants moved for
summary judgment on jurisdictional grounds. (Filing No. 76). The court found that
federal jurisdiction was proper under the FLSA and denied the motion. (Filing No.
101). Concurrently, Plaintiffs filed motions to dismiss and for partial summary
1

There are ancillary state law claims alleged. However, because the relief and f actual basis is largely
duplicative of the FLSA claims discussed here, the court need not substantively address the state law
claims further in order to render an order on these discovery and pleading issues.
2
In addition to the early summary judgment motion, the court has also previously denied seven motions for
injunctive relief (requesting for both temporary restraining orders or preliminary injunctions) f iled by the
various Plaintiffs, (See Filing Nos. 2, 7, 8, 9, 14, 16, and 51).

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judgment, (Filing Nos. 82 and 84), claiming that Defendants’ affirmative defenses
were improper. The court denied those motions as premature, pending discovery
on the merits. (Filing No. 101).

After the court resolved the above dispositive motions, the undersigned
conducted another discovery planning conference with the parties. Thereafter, the
court set progression deadlines and the parties began full discovery. (Filing Nos.
103 and 104).

Defendants’ have not responded to, or have lodged general

objections to, certain of Plaintiffs’ discovery requests. Defendants move for a
discovery protective order, (Filing No. 108), and Plaintiffs have filed a
corresponding motion to compel, (Filing No. 115).
Defendants argue that Plaintiffs’ First and Second Sets of Requests for
Admission are overbroad and harassing. Defendants assert a blanket objection to
these requests and ask the court for an order relieving them from the duty to
provide specific admissions or denials to the 299 requests propounded. (Filing No.
108). Plaintiffs objected to Defendants’ request for protective order and filed a
motion to compel their response to the RFAs. (Filing Nos. 112 and 115). There is
also a dispute regarding Defendants’ responses to certain Interrogatories and
Requests for Production. While not entirely clear, it appears that the Interrogatories
currently in dispute are Nos. 4-8, and Plaintiffs demand a supplemental response
to RFP Nos. 1, 4, and 5. (Filing No. 115).

In addition to the discovery motions, Defendants seek leave of court to
amend their answer to the First Amended Complaint. (Filing No. 111). Plaintiffs
oppose the request, arguing that the proposed additional counterclaims and
defenses are legally impermissible in this FLSA action.

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ANALYSIS

I.

Cross Motions to Compel and for Protective Order 3

Given the dual discovery motions, this case presents an unusual standard
of review. On their motion for protective order, Defendants, as the moving parties,
“bear[ ] the burden to ‘show the necessity of [the protective order's] issuance, which
contemplates a particular and specific demonstration of fact, as distinguished from
stereotyped and conclusory statements.’” Kozlov v. Associated Wholesale
Grocers, Inc., 2014 WL 4534787, at *2 (D. Neb. Sept. 11, 2014) (quoting Gen.
Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1212 (8th Cir.1973)). “Rule 26(c)
confers broad discretion on the trial court to decide when a protective order is
appropriate and what degree of protection is required.” Seattle Times Co. v.
Rhinehart, 467 U.S. 20, 36 (1984).

On the motion to compel, Plaintiffs are the moving parties and must make a
threshold showing that requested information is relevant to the claims or defenses
alleged. ACI Worldwide Corp. v. Mastercard Techs., LLC, 2015 WL 4249760, at
*1 (D. Neb. July 13, 2015). If they do so, the burden shifts to Defendants, as the
responding parties, to prove their “objections are valid by providing specific
explanations or factual support as to how each discovery request is improper.”
Whittington v. Legent Clearing, LLC, 2011 WL 6122566, * 3 (D. Neb. Dec. 8, 2011).

In opposition to Plaintiffs’ motion to compel, Defendants argue that Plaintiffs’ motion should be denied for
f ailure to comply with this court’s rules regarding discovery disputes. While Def endants are correct that
Plaintiffs did not certify that they had attempted to resolve this issue and did not contact the court to confer
on these issues prior to formal motion practice, Defendants also failed to seek a court conference prior to
moving f or a protective order. More importantly, based on past conferences in this case, the court is not
convinced a discovery conference would have resolved all or even part of the issues raised. So, in the
interest of judicial economy, the court will take up the substantive issues presented on these motions even
though the parties failed to comply with the court’s procedures.
3

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The standards will be applied as appropriate to each set of discovery
requests.

a. Requests for Admission
Fed. R. Civ. P. 36 allows a party to serve a written request to admit “the truth
of any matters within the scope of 26(b)(1) relating to facts, the application of law
to fact, or opinions about either.” Fed. R. Civ. P. 36(a)(1). “Requests for admissions
are not principally discovery devices.” Safeco of America v. Rawstron , 181 F.R.D.
441, 445 (C.D.Ca.1998) (citation omitted). In theory, Rule 36 “presupposes that
the party proceeding under it knows the facts or has the document and merely
wishes its opponent to concede their genuineness.” Id. The rule was “designed as
a device by which at least some of the material facts of a case could be established
without the necessity of formal proof at the trial.” Brentwood Equities, Inc. v. Taco
Maker, Inc., 2015 WL 5883325, at *1 (D. Utah Oct. 8, 2015) (internal citation
omitted).
“[T]he Federal Rules of Civil Procedure ... [do not set] a presumptive limit on
the number of requests for admission that may be propounded by a party.” Wilson
v. Jackson Nat'l Life Ins. Co., 2017 WL 10402569, at *2 (M.D. Fla. Feb. 13, 2017)
(quoting Layne Christensen Co. v. Purolite Co., 2011 WL 381611, at *4 (D. Kan.
Jan. 25, 2011)). However, “admissions should not be of such great number and
broad scope as to cover all the issues [even in] a complex case, and [o]bviously ...
should not be sought in an attempt to harass an opposing party.” Wilson, 2017 WL
10402569, at *2 (quoting Wigler v. Elec. Data Sys. Corp., 108 F.R.D. 204, 206–07
(D. Md. 1985) (citations and quotations omitted). Requests are improper if they
amount to “an attempt to pick every nit that a squad of lawyers could possibly
see[.]” U.S. v. Medtronic, Inc., 2000 WL 1478476, at *4–5 (D. Kan. July 13, 2000)
(quotations omitted).

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Both parties agree that the RFAs at issue can be bifurcated into two
categories: Request Nos. 1-55 and Request Nos. 56-299. In their brief in support
of the motion to compel, Plaintiffs claim that Request Nos. 1-55 are “standard
requests, relating directly to the facts of the case or defenses raised by the
Defendants.” (Filing No. 116 at CM/ECF p. 1). Request Nos. 56-299, Plaintiffs
assert, “relate to funds the Plaintiffs contributed to Leaf Supreme Products, LLC.”
(Id.) (emphasis added).

Defendants make no argument, either in their brief in support of their request
for protective order or in opposition to the motion to compel, that addresses the
substance of Request Nos. 1-55.4 Defendants’ blanket objection to those requests
is that Defendants should not have to answer any RFAs because Plaintiffs abused
Rule 36 by serving a harassing number of requests, in total. And other than making
conclusory statements that their requests are substantively relevant and proper in
scope/number, Plaintiffs also do not specifically address Request Nos. 1-55.

As to Request Nos. 56-299, Defendants posit the following specific
grievances (in addition to their general numerosity objection):

1) Requests 5[6] through 299 read primarily like depositions
questions as each request asks Defendants to refer to
documents sent with the requests. Thereafter, there are followup requests once the document is identified. These begin at
Request for Admission 66 and continue th roughout until
Request 298.
2) Several of the requests deal with documents and issues that
are not relevant to the issues of this case. For example,
Request no. 64, 297, 31, 32 reference an "MOU", its execution
4

There are two exceptions: Request Nos. 31 and 32, which Defendants lump into their relevancy argument
related to Request Nos. 64 and 297.

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and its enforceability. There is no MOU attach ed to the
Requests and there is no explanation of what Plaintiffs mean.
Defendants are aware of an "MOU" (Memorandum of
Understanding") that is the subject of litigation pending in the
District Court of Nebraska, Leaf Supreme Products, LLC v.
James and Adella Bachman, CI 19 - 4497. Such is not relevant
to these proceedings.
3) A number of requests refer to documents that are heavily
redacted. Requests following these heavily redacted records
stem from those records. It is not possible to answer these
requests without being able to read the unredacted
documents. (See Ex. F, Aranza Declaration). The redacted
documents are found at IOE 58, 61, 63, 126, and 127. Even
with those records that are not redacted, it is impossible to
answer Requests 55 through 299 with out being able to read
and understand the redacted documents. As long as portions
of these records are redacted, these requests cannot be
answered.
4) Almost all of the Requests from number 56 through 299 cannot
be answered as Plaintiffs were in possession of the records of
Defendant Leaf Supreme throughout the time that Leaf
Supreme was conducting business. In fact, it was necessary
for Defendant John Bachman and Leaf Supreme to obtain an
injunction to take possession of the business and of the
premises. (Aranza declaration, Ex. E). All of these checks were
written by either James, Adella, or Eric Bachman. It will be
necessary to conduct discovery with them before these
requests can be answered.
(Filing No. 109 at CM/ECF pp. 2-3). Plaintiffs claim that Request Nos. 56-299 are
proper because they seek admissions related to monetary amounts contributed by
Plaintiffs to Leaf Supreme. Plaintiffs claim that the amount contributed is relevant
because it undercuts Defendants’ theory that Plaintiffs made unauthorized
withdrawals from Leaf Supreme in an amount that exceeded Plaintiffs’ monetary
contributions. Plaintiffs do not address Defendants’ contentions about the MOU,
the redactions, or access to the documents.

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Under some circumstances, 299 RFAs may be permissible. Courts in other
districts have allowed parties to propound RFAs in similar numbers. See, e.g.,
Sommerfield v. City of Chicago, 251 F.R.D. 353, 354 (N.D. Ill. 2008). However, as
other courts have uniformly made clear, the number of RFAs must be reasonably
proportionate to the needs of the litigation. Stokes v. Interline Brands Inc., 2013
WL 6056886, at *2 (N.D. Cal. Nov. 14, 2013) (number of requests propounded was
unreasonable); Murray v. U.S. Dep't of Treasury, 2010 WL 3464914, at *2 (E.D.
Mich. Sept. 1, 2010) (same).

The court is unconvinced that 299 requests are necessary here, given the
fairly limited issues remaining in this case. Although the extensive, previous motion
practice might tell a different story, this case is a basic FLSA wage and hour
dispute.

The court has reviewed all of Plaintiffs’ RFAs, and they run the spectrum:
some are reasonable, but many others ask for admission of insignificant, minor
details or call for pure conclusions of law. See Mitchell v. Yeutter, 1993 WL 139218,
at *1 (D. Kan. Jan. 12, 1993) (disallowing RFAs that “focus on small details, and
not on major factual issues” of the case); Vernet v. Serrano-Torres, 2013 WL
12350557, at *3 (D.P.R. Jan. 30, 2013) (collecting cases that hold that RFAs may
not be used to establish conclusions of law).

Requests for admission cannot be a complete substitute for formal and
informal discovery in a case. Yeutter, 1993 WL 139218, at *1. Many of Plaintiffs’
requests appear to be just that. For example, “First Set of Admissions, Request 5)”
asks Defendants to “[a]dmit that the Defendants knew th at Plaintiffs were entitled
by law to be paid pursuant to the FLSA or showed reckless disregard that the
Plaintiffs were not eligible to be paid pursuant to the FLSA.” (Filing No. 115-3 at

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CM/ECF p. 2). This type of request is fundamentally flawed. First, it does not seek
an admission of fact or the application of a fact to the law – it improperly calls for
a pure conclusion of law. Lakehead Pipe Line Co. v. American Home Assur. Co.,
177 F.R.D. 454, 458 (D. Minn. 1997) (“a request for admission which involves a
pure matter of law, that is, requests for admissions of law which are related to the
facts of the case, are considered to be inappropriate.”). Moreover, this request
essentially asks Defendants to concede the core disputed point in this lawsuit.
That too is an improper use of Rule 36. Asarco LLC v. Union Pac. R.R. Co., 2016
WL 1755241, at *12 (D. Idaho May 2, 2016) (“requests for admission should not
be used to establish facts which are obviously in dispute”).
Many of the requests in the first group – Request Nos. 1-55 – are similarly
flawed. For example, Request Nos. 5, 9, 10, 13-14, 24-30, 40-42 call explicitly for
legal conclusions. And that listing is demonstrative, not exhaustive. RFAs that
simply parrot the complaint, or call for disputed conclusions of law, are improper
under Rule 36. Asarco, 2016 WL 1755241, at *12.

In addition to requests for legal conclusions, some requests call for
admissions related to information that this court has previously addressed and
determined to be irrelevant. The parties have previously disputed the relevancy of
information related to a certain “Memorandum of Understanding” or “MOU” that
forms the basis of a separate, state court action between some of these parties.
This court observed then that: “Plaintiffs insist, however, that the MOU is somehow
determinative of Plaintiffs’ FLSA claims. Plain tiffs have failed to provide any
evidence or explanation as to how the MOU affected their employment status or
their entitlement to wages previously earned.” (Filing No. 23 at CM/ECF p. 5). The
court is aware of no newly presented evidence that would alter that previous
observation. Requests for Admission related to the MOU (see Request Nos. 31,

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32, 64, 65, 66, 67, 73 and 297) would thus appear irrelevant to the claims currently
pending in this forum.

Other documents attached to the RFAs are very heavily redacted. (See, e.g.,
Filing Nos. 115-4 at CM/ECF p. 1 and 115-5 at CM/ECF p. 40). Defendants argue
that they cannot effectively admit or deny requests stemming from those
documents if they cannot effectively review them first. (Filing No. 109 at CM/ECF
pp. 2-3). The court agrees.
Moreover, the majority of the second grouping of requests – Request Nos.
56-299 – appear to be requests for Defendants to admit actions taken by Plaintiffs.
Nearly all these requests deal with purported deposits into Leaf Supreme’s
accounts made by various Plaintiffs. The court is not convinced that is a proper
use of Rule 36.5 And requests that Defendants characterize the payments as
“loans” likewise seems improper. None of the records attached to the RFAs appear
to reflect the purpose behind any deposit. The lion’s share of the documents
attached are standard deposit slips and/or copies of checks, which provide no
context. (See generally, Filing No. 115-4).

For clarity, the court is not determining whether the records of financial
transactions attached to the RFAs are irrelevant. The court finds that even
assuming the documents are relevant, the RFAs are improper. The court further
notes that given the volume of financial documents at issue, discussions aimed at
stipulating to foundation and authenticity of the financial documents would be both
the common practice in this forum, and the most expedient and inexpensive course
of action. Unfortunately, the litigation history in this case has been blighted by what,

Plaintiffs’ briefing in support of this argument is predominantly a discussion of the FLSA and its application
and history. It does not explain why Defendants should be compelled to respond to Plaintiffs’ voluminous
discovery.
5

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at times, appears to be personal animus rather than sound strategy. Plaintiffs’
copious requests appear to be a symptom of that ongoing malady. When faced
with similar case history and voluminous requests for admission, one court
recognized:
[t]he synergy of this litigation, as indicated by these pleadings, borders
more on brinksmanship and sharp practice than anything else. Surely,
judicial and litigation economy and efficiency, the intended and vital
purpose of Requests to Admit, were not promoted by these parties.
Henry v. Champlain Enterprises, Inc., 212 F.R.D. 73, 82 (N.D.N.Y. 2003). The
same is true here. Given all the foregoing defects in the Requests as drafted, and
the fact that the volume of Requests served is disproportionate to the needs of this
case, the court will grant Defendants a protective order as it relates to the RFAs.

b. Interrogatories
Plaintiffs’ motion to compel seeks an order compelling responses to
Interrogatory Nos. 4-8. (Filing No. 115). Defendants argue that Plaintiffs exceeded
the allowable number of interrogatories, and no additional response is therefore
required. In essence, Defendants claim that when a party believes too many
interrogatories were served, that responding party can raise a general objection,
unilaterally pick and choose which interrogatories to answer, and refuse to answer
the rest. The court is not persuaded. “When a party believes that another party has
asked too many interrogatories, the party to which the discovery has be[en]
propounded should object to all interrogatories or file a motion f or protective order.
The responding party should not answer some interrogatories and object to the
ones to which it does not want to respond. By answering some and not answering
others, the [party] waived this objection.” Allahverdi v. Regents of Univ. of New
Mexico, 228 F.R.D. 696, 698 (D.N.M. 2005). Defendants answered and objected
to the interrogatories prior to seeking a protective order. Defendants responded to

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Interrogatory Nos. 2-3 and objected to the balance (including Interrogatory No. 1).
That tactic is impermissible.

The court has reviewed the remainin g interrogatories, and except as to
Interrogatory No. 1 (which the parties agree is overbroad and impermissible),
Defendants must answer and/or object to each interrogatory individually. If a
dispute arises related to th ose individual responses, the parties must attempt to
resolve their dispute informally, and if they cannot resolve the dispute through
good faith discussions, they must participate in a discovery dispute conference
before undersigned magistrate judge before engaging in formal motion practice.

c. Requests for Production
Finally, Plaintiffs’ motion to compel requests supplemental response to RFP
Nos. 1, 4, and 5. Defendants do not address the RFPs either in their brief in support
of their request for protective order or in opposition to the motion to compel.

Plaintiffs filed a copy of their document production requests, (Filing No. 1151). However, the copy provided to the court does not include Defendants’
responses to those requests. Presumably, because Plaintiffs only request
additional responses to Request Nos. 1, 4 and 5, Defendants previously provided
sufficient responses or produced documents sufficient to satisfy the other requests.
However, because the parties have not provided the court with Defendants’
objections to the RFPs in question, and have not sufficiently briefed the issues,
any issues with the RFPs are not properly before the court.

That said, if Defendants have not objected, but also have not produced the
documents, they must do so immediately. If Defendants have failed to respond to
those requests altogether, they must do so immediately. If Defendants have lodged

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objections to those requests, and the parties disagree as to the validi ty of those
objections, the parties must contact the court for a discovery dispute conference
to discuss those objections and attempt to resolve those issues.

II.

Motion for Leave to Amend

Defendants seek leave to amend their answer to the First Amended
Complaint to assert additional defenses and counterclaims. (Filing No. 111)
Because the request is made prior to the pleading amendment deadline in the
scheduling order (Filing No. 104), the request is governed by the liberal standard
in Fed. R. Civ. P. 15.
Under Rule 15(a), “absent a good reason for denial—such as undue delay,
bad faith or dilatory motive, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the non -moving party, or futility of
amendment—leave to amend should be granted.” Kozohorsky v. Harmon, 332
F.3d 1141, 1144 (8th Cir. 2003). Plaintiffs claim that Defendants’ proposed
pleading amendment is futile– alleging that an FLSA case cannot be expanded to
include ancillary employment related claims and must be confined to evaluation of
the wage payments in dispute. (Filing No. 112 at CM/ECF p. 2) (citing Tennessee
Coal Iron & R. Co. v Muscoda Local No. 123, 321 U.S. 590, 602 (1944)).

Futility is a valid basis for denying leave to amend. U.S. ex rel. Lee v.
Fairview Health Sys., 413 F.3d 748, 749 (8th Cir. 2005) (citing Moses.com
Securities, Inc. v. Comprehensive Software Sys., Inc., 406 F.3d 1052, 1065 (8th
Cir.2005)). An amendment is futile if it is clearly insufficient or frivolous on its face.
See, e.g., Perez v. World Fin. Grp., 2019 WL 6698178, at *1 (D. Ariz. Dec. 9,
2019) (“[L]eave to amend should be denied as futile only if no set of facts can be
proved under the amendment to the pleadings that would constitute a valid and

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sufficient claim or defense.”); In re Senior Cottages of Am., LLC, 482 F.3d 997,
1001 (8th Cir. 2007) (“when a court denies leave to amend on the ground of futility,
it means that the court reached a legal conclusion that the amended complaint
could not withstand a Rule 12 motion”).

The court will not reach the merits of the futility arguments here and declines
to make a legal determination as the sufficiency of the additional claims. Plaintiffs
have previously moved to strike (and for summary judgment on) Defendants’
affirmative defenses based on similar reasoning. This court, when denying that
request in Plaintiffs’ most recent motion for summary judgment, n oted that there
are fact questions that need to be resolved prior to a determination as to which
defenses are proper in this case. The court determined that
[i]t is true “that FLSA rights cannot be abridged by contract or
otherwise waived because this wou ld ‘nullify the purposes’ of the
statute and thwart the legislative policies it was designed to
effectuate.” Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S.
728, 740 (1981). Accordingly, if Defendants argue that Plaintiffs
waived rights under the FLSA to which they were otherwise entitled,
such a defense would be invalid. However, in certain circumstances,
courts have allowed defendants to assert equitable defenses in FLSA
actions. See Bailey v. TitleMax of Georgia, Inc., 776 F.3d 797, 804
(11th Cir. 2015). Absent discovery on these issues, the Court cannot
determine whether such defenses are applicable.
(Filing No. 101 at CM/ECF pp. 13-14). Discovery might also clarify whether, on
the specific facts presented here, Defendants can assert certain counterclaims.
Other courts have noted instances where similar counterclaims have been
allowable in an FLSA action. Ahle v. Veracity Research Co., 641 F. Supp. 2d 857,
863 (D. Minn. 2009); Lombardi v. City of Cornersville, 2007 WL 190324, at *1–2
(M.D.Tenn. Jan. 22, 2007).

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Perhaps Plaintiffs will, after the close of discovery, have a valid basis for
dismissal of Defendants’ addition al claims. But those questions are better suited
for full briefing on a substantive motion. This is underscored by the court’s previous
admonishment to Plaintiffs to desist with the piecemeal litigation of Defendants’
claims and defenses, to finish discovery, and to litigate those issues on a
consolidated motion. (Filing No. 101 at CM/ECF p. 14).

Aside from the futility argument addressed above, n one of the other Rule 15
bases for denying Defendants’ motion for leave are present in this case. The
Eighth Circuit has acknowledged that prejudice may be present “when late
tendered amendments involve new theories of recovery and impose additional
discovery requirements...[.]” Bell v. Allstate Life Ins. Co., 160 F.3d 452, 454 (8th
Cir.1998). Even still, the court must determine whether allowing the amendment
would require “significant additional resources [for] discovery and trial preparation”
or would “significantly delay resolving the dispute.” Jewish Fed'n of Lincoln, Inc. v.
Rosenblatt, 2018 WL 6171816, at *1 (D. Neb. Nov. 26, 2018) (citing Long v.
Wilson, 393 F.3d 390, 400 (3rd Cir. 2004)) (emphasis added). No such prejudice
or delay exists here.

The court will allow Defendants to amend their answer as requested.

Accordingly, IT IS ORDERED:

1)

Defendants’ Motion for Protective Order (Filing No. 108) and Plaintiffs’
Motion to Compel (Filing No. 115) are resolved as follows:

a. Defendants’ Motion for Protective Order is granted as to
Plaintiffs’ First or Second Set of Requests for Admission , and
accordingly, Plaintiffs’ Motion to Compel answers to those
requests is denied.

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b. Defendants’ Motion for Protective Order is denied as to
Plaintiffs’ Interrogatory Nos. 4-8, and accordingly, Plaintiffs’
Motion to Compel answers to those interrogatories is granted.
On or before December 17, 2020, Defendants shall provide
supplemental responses to Plaintiffs’ Interrogatory Nos. 4-8, as
outlined herein.
c. Plaintiffs’ Motion to Compel responses to Plaintiffs’ Requests
for Production Nos. 1, 4 and 5 is granted. To the extent
Defendants have failed to respond to Plaintiffs’ Requests for
Production of Documents Nos. 1, 4, or 5, Defendants shall
answer or object to those requests by December 17, 2020. To
the extent Defendants have answered those requests but not
produced responsive documents, Defendants must make that
production by December 17, 2020.
d. The parties are required to informally attempt resolution of any
additional discovery dispute. If informal resolution cannot be
achieved, the parties shall contact the chambers of the
undersigned magistrate judge on or before January 19, 2021
to schedule a telephonic discovery conference. No additional
discovery motion shall be filed absent consent of the court.
2)

Plaintiffs’ Motion to Strike their Motion to Compel (Filing No. 118) is
denied as moot.

3)

Defendants’ Motion for Leave to Amend (Filing No. 111) is granted.
Defendants shall file their amended answer, a copy of which is
attached to their motion, on or before November 24, 2020.

Dated this 18th day of November, 2020.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge