Freudenvoll v. Target Corporation

Filing 14

DECISION & ORDER granting 12 Target's motion to compel. Freudenvoll is ordered to provide the requested authorizations and its Rule 26 disclosures by 1/3/2014. Freudenvoll is ordered to communicate with Target and to finalize selection of a m ediator by 12/17/2013. Target's motion to extend the current scheduling order is granted. Target is ordered to submit a proposed amended scheduling order to the Court by 12/17/2013. Oral Argument set for 12/5/2013 is cancelled. Signed by Hon. Marian W. Payson on 12/3/2013. (KAH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

GRETCHEN FREUDENVOLL,
DECISION & ORDER
Plaintiff,
13-CV-6197L
v.
TARGET CORPORATION,
Defendant.

Gretchen Freudenvoll (“Freudenvoll”) filed this action against Target Corporation
(“Target”) asserting claims for negligence arising from personal injuries that Freudenvoll
allegedly suffered after slipping and falling at one of Target’s retail stores. (Docket ## 1-5).
Currently pending before this Court is Target’s motion to compel Freudenvoll to provide
authorizations permitting Target to obtain certain employment and income-related documents
from non-parties. (Docket # 23-1 at ¶ 28).
Specifically, Target seeks an order compelling Freudenvoll to provide
authorizations allowing Target to obtain Freudenvoll’s employment records and other records
reflecting Freudenvoll’s income, including any disability benefits. (Id. at ¶¶ 2-3). According to
Target, Freudenvoll has not responded to repeated requests for the authorizations. (Id.). Thus,
Target seeks an order compelling Freudenvoll to provide the requested authorizations or, in the
alternative, precluding Freudenvoll from offering evidence to support her lost wages claim. (Id.
at ¶ 2). In addition, Target seeks an order compelling Freudenvoll to serve her Rule 26
disclosures and to compel Freudenvoll to finalize selection of a mediator. (Id. at ¶ 3). According

to Target, Freudenvoll failed to serve her Rule 26 disclosures by August 9, 2013, as required by
this Court’s scheduling order. (Docket # 9 at ¶ 2; # 23-1 at ¶ 7). In addition, according to Target,
despite its attempts to communicate with Freudenvoll in order to select a mediator by the October
18, 2013 deadline set forth in this Court’s scheduling order (Docket # 11 at ¶ 1(a)), Freudenvoll
has failed to respond to its communications. (Docket # 23-1 at ¶ 8). Finally, Target also requests
an extension of the current scheduling order. (Id. at ¶ 10).
On November 8, 2013, this Court issued a motion scheduling order requiring
Freudenvoll to respond to Target’s motion to compel by no later than November 22, 2013 and
scheduling oral argument for December 5, 2013. (Docket # 13). Freudenvoll did not oppose the
motion. Having received no opposition from Freudenvoll, the Court hereby cancels the oral
argument.
Failure to oppose a pending motion may be fairly construed as a lack of
opposition to the requested relief or as a waiver of the party’s right to be heard in connection with
the motion. See, e.g., TCPIP Holding Co. v. Haar Commc’ns Inc., 2004 WL 1620950, *4
(S.D.N.Y. 2004) (defendant’s failure to respond to motion was sufficient basis to grant motion by
default); Loew v. Kolb, 2003 WL 22077454, *1 (S.D.N.Y. 2003) (same). In this case, the motion
scheduling order afforded Freudenvoll sufficient time to respond to the pending motion.
Freudenvoll has failed to oppose the motion and has not contacted the Court to request an
extension of the deadline to file a response to the motion. Accordingly, Target’s motion to
compel is granted on the grounds that it is unopposed, and Freudenvoll is ordered to provide the
requested authorizations and its Rule 26 disclosures by no later than January 3, 2014. In
addition, Freudenvoll is ordered to communicate with Target and to finalize selection of a
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mediator by no later than December 17, 2013. Further, Target’s motion to extend the current
scheduling order is granted. Target is ordered to submit a proposed amended scheduling order to
the Court by no later December 17, 2013.

CONCLUSION
Accordingly, Target’s motion to compel (Docket # 12) is GRANTED.
IT IS SO ORDERED.

s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
December 3 , 2013

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