ALLEN L. MCMURRAY, on behalf of himself and all others similarly situated, Plaintiff, v. FORMEL D, Defendant Case No.: 2:19-cv-00548-AMM United States District Court, N.D. Alabama, Southern Division Filed September 04, 2020 Counsel Charity Gilchrist-Davis, Law Office of Gilchrist-Davis LLC, Birmingham, AL, Lee David Winston, Roderick Twain Cooks, Winston Cooks, LLC, Birmingham, AL, for Plaintiff. Josh C. Harrison, Morgan Pike Epperson, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Birmingham, AL, Stephen E. Giles, Pro Hac Vice, Employers Law SC, LLC, Simpsonville, SC, Thomas A. Bright, Pro Hac Vice, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Greenville, SC, for Defendant. Manasco, Anna M., United States District Judge ORDER ON DEFENDANT FORMEL D'S MOTION TO COMPEL DISCOVERY *1 This case is before the court on defendant Formel D's Motion to Compel Discovery. Doc. 68. For the reasons explained below, Formel D's motion to compel is GRANTED in part and DENIED in part. I. BACKGROUND Plaintiff Allen L. McMurray, on behalf of himself and others similarly situated, asserts claims under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., alleging that defendant Formel D intentionally failed to compensate employees for overtime work. Doc. 1. On October 10, 2019, the court granted Mr. McMurray's motion for conditional class certification, giving members of the class the opportunity to opt in the lawsuit. Doc. 35. The court then approved the parties' joint motion regarding their proposed notice and consent forms, which authorized Mr. McMurray “to provide notice to all additional putative opt-in collective action plaintiffs.” Doc. 43. Approximately forty individuals have since filed opt-in forms. Doc. 64, ¶ 7. After being reassigned the case, the undersigned held a status conference on July 8, 2020, in which the parties discussed the status of discovery and proposed litigation deadlines. The court entered a Scheduling Order, which provides that discovery is due to be completed by January 19, 2021. Doc. 66. The following day, the court denied Formel D's unopposed motion to dismiss the claims of opt-in plaintiff Ray Mann because the court “has not entered an order compelling Mr. Mann to participate in discovery, the violation of which might implicate Rule 37.” Doc. 67. On July 29, 2020, Formel D filed its pending motion to compel discovery pursuant to Federal Rule of Civil Procedure 37, requesting that the court order (1) twenty-eight opt-in plaintiffs (the “Opt-In Plaintiffs,” specifically named below) to respond fully to Formel D's written discovery requests on or before August 7, 2020, and (2) that each request for admission issued to opt-in plaintiff Charlie Vance be deemed admitted. Doc. 68. The motion to compel has been fully briefed—plaintiffs' response was filed on August 13, 2020, and Formel D's reply was filed on August 24, 2020. Doc. 73; Doc. 75. In the parties' subsequent briefing on the motion to compel, they agreed to an August 27, 2020 deadline for plaintiffs to respond to the outstanding discovery requests. See id. On the morning of September 3, 2020, the court held a hearing on Formel D's motion to compel. Doc. 76; Doc. 77. During that hearing, the parties agreed that the following five opt-in plaintiffs have not responded to any of Formel D's written discovery: Plaintiff's Name Ray C. Mann, Jr. Christopher Williams Shelica Green Damien Gaines Kelvin Lewis Date of Discovery Request 12/06/2019 01/30/2020 01/30/2020 01/31/2020 04/21/2020 Discovery Response Deadline 01/20/2020 03/16/2020 03/16/2020 03/16/2020 06/05/2020 See Doc. 68-2; Doc. 75-1. The parties also agree that on August 7, 2020, counsel for plaintiffs served responses to Formel D's requests for production, as well as unsigned responses to its interrogatory requests, on behalf of the following twenty-three opt-in plaintiffs: *2 Clarence Ashley, III LeeAnn King James W. Vickery Charles Blake Hubka Jerry Mayhand Paul Jacob Erwin Demetrius Meeks Doric Smith Reggie Bernard Ray Mokonde Hales, Sr. Derrick Barnes Muhammad Hassan Tashiro Dean Taylor Tommie Carnal Taylor Cedric Spencer Jeffrey Lamar Ramsey John Michael Williams William Walden, Jr. Willis Black, II Joseph Beal Jamal Royal Samuel Anderson Isaac Teal, Jr. See Doc. 73, ¶ 2; Doc. 75, ¶ 2. Each of these twenty-three plaintiffs were served with Formel D's discovery requests on April 21, 2020, and were due to respond by June 5, 2020. Doc. 68-2. Plaintiffs' counsel reported on August 13, 2020 that he “expect[s] to receive executed interrogatories within 7 to 14 days.” Doc. 73, ¶ 2. The parties agreed that, as of the September 3, 2020 hearing on the motion to compel, Formel D had received approximately seven executed interrogatory responses. Formel D argues that these discovery responses are deficient, as the interrogatories are unexecuted and plaintiffs have not produced any documents. Doc. 75, ¶ 2. During the hearing on September 3, 2020, Formel D's counsel further informed the court that they served their requests for admission on opt-in plaintiff Charlie Vance on June 12, 2020, see Doc. 68-3, because they contend that Mr. Vance did not work enough hours to have a viable claim against Formel D. Although counsel for Mr. Vance was unable to reach Mr. Vance to discuss the requests for admission, counsel timely served responses on behalf of Mr. Vance to the requests for admission on July 11, 2020. Doc. 68-4. In the responses, “[t]he answering party” claims to “lack[ ] knowledge of [each] alleged fact and ... cannot admit or deny its truthfulness until they have made reasonable inquiry into it.” Doc. 68-5. Formel D claims that plaintiffs' counsel improperly responded to Mr. Vance's requests for admissions, thus rendering them nonresponsive, and requests that the court enter an order “that each request ... is deemed admitted.” Doc. 68, at 2, 6–8. Mr. Vance's counsel claims that, “having not been able to reach him, [they] merely endeavored to preserve any claim [Mr. Vance] may have had.” Doc. 73, ¶ 4. Plaintiffs' counsel also conceded that opt-in plaintiff Charlie Vance has not responded to Formel D's interrogatories and requests for production. See Doc. 73, ¶ 3. II. LEGAL STANDARD Under Federal Rule of Civil Procedure 37, “[a] party seeking discovery may move for an order compelling an answer, designation, production, or inspection ... if ... a party fails to answer an interrogatory submitted under Rule 33; or ... a party fails to produce documents ... as requested under Rule 34.” Fed. R. Civ. P. 37(a)(3)(B). Rule 37 further provides that “an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” Fed. R. Civ. P. 37(a)(4). III. ANALYSIS A. Waiver of the Right to Object to Discovery Requests Defendant Formel D moves to compel the Opt-In Plaintiffs to respond to the outstanding written discovery requests without any objections. Doc. 68. Formel D asserts that these plaintiffs either failed to provide any responses to discovery requests, or provided untimely and insufficient responses to its discovery requests. See Doc. 68-2; Doc. 75-1. Formel D claims that, by failing to timely respond, these twenty-eight plaintiffs waived their right to make any objections to the outstanding discovery requests. *3 Federal Rule of Civil Procedure 33 governs interrogatory requests and provides that “[t]he responding party must serve its answers and any objections within 30 days after being served with the interrogatories.” Fed. R. Civ. P. 33(b)(2). The grounds for objecting to an interrogatory “must be stated with specificity[,]” and “[a]ny ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.” Fed. R. Civ. P. 33(b)(4). The Advisory Committee Notes to Rule 33 provide that this provision “[was] added to make clear ... that unstated or untimely grounds for objection ordinarily are waived.” Likewise, Federal Rule of Civil Procedure 34 governs the production of documents and provides that “[t]he party to whom the request is directed must respond in writing within 30 days after being served[.]” Fed. R. Civ. P. 34(b)(2)(A). The Advisory Committee has noted that “[t]he procedure provided in Rule 34 is essentially the same as that in Rule 33[(b)], as amended, and the discussion in the note appended to that rule is relevant to Rule 34 as well.” See Fed. R. Civ. P. 34(b). Therefore, if the responding party fails to timely object to production requests, that party waives any objections to those requests unless the court excuses such failure. See Burch v. P.J. Cheese, Inc., No. 2:09-cv-1640-SLB, 2011 WL 13233427, at *2 (N.D. Ala. Jan. 21, 2011). Of the twenty-eight plaintiffs identified in Formel D's motion to compel, one plaintiff had a response deadline of January 1, 2020, which is over eight months ago; three plaintiffs had response deadlines of March 16, 2020, which is almost six months ago; and the remaining twenty-four plaintiffs had response deadlines of June 5, 2020, which is three months ago. Because each of the twenty-eight plaintiffs failed to timely respond to Formel D's interrogatories and requests for production, the court finds that each of those plaintiffs have waived any objections to Formel D's discovery requests. See Burch, 2011 WL 13233427, at *2. Formel D's motion to compel the overdue responses to its discovery requests without any objections from the Opt-In Plaintiffs is GRANTED. Those plaintiffs are ORDERED to serve their overdue discovery responses without any objections on or before September 28, 2020. Service of draft, unexecuted, and/or noncompliant discovery responses will not comply with this order – the responses must be rule-compliant and served by the court's deadline. B. Responses to Requests for Admission Deemed Admitted Defendant Formel D argues that each request for admission issued to opt-in plaintiff Charlie Vance should be deemed admitted because, although his attorneys timely responded on his behalf, Mr. Vance did not himself respond within thirty days. Doc. 68. Defendant Formel D further argues that each request should be deemed admitted because plaintiffs' counsel responded without speaking to Mr. Vance, thus failing to satisfy their obligation to perform a reasonable inquiry under Rule 36(a)(4). Id. 1. Formel D's requests for admissions are not deemed admitted by Mr. Vance. Under Rule 36, “[a] matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney.” Fed. R. Civ. P. 36(a)(3). The Advisory Committee Notes to Rule 36 provide that “[t]he requirement that the answer to a request for admission be sworn is deleted, in favor of a provision that the answer be signed by the party or by his attorney” and that “[t]he provisions of Rule 36 make it clear that admissions function very much as pleadings do.” *4 Formel D admits that Mr. Vance's attorneys timely responded to Formel D's requests for admissions, but argue that they improperly answered on behalf of their client. See Doc. 75. Plaintiffs' counsel claims that they answered the requests for admission without speaking to Mr. Vance because they are currently unable to reach him and wanted to preserve any claims he may have. Doc. 73. Formel D has not provided any case law to support a finding that it was inappropriate for Mr. Vance's attorneys to sign on behalf of their client, nor any precedent suggesting that under these circumstances, Mr. Vance should be found to have admitted Formel D's requests for admissions. Accordingly, Formel D's motion is DENIED. 2. Mr. Vance's responses to Formel D's requests for admissions must be amended. “If a matter is not admitted, ... [t]he answering party may assert lack of knowledge or information as a reason for failing to admit or deny only if the party states that it has made reasonable inquiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny.” Fed. R. Civ. P. 36(a)(4). The requesting party can “move to determine the sufficiency of an answer” and “[o]n finding that an answer does not comply with [Rule 36], the court may order either that the matter is admitted or that an amended answer be served.” Fed. R. Civ. P. 36(a)(6). The court may deny a party's request for a “deemed admitted” sanction when “the requests for admission address a dispositive issue in this case; thus, the presentation of the merits of the case will be severely undermined should this Court deem them admitted” and when the requesting party “has failed to show prejudice.” Gauf v. Liebherr-Am., Inc., No. 6:05-CV-2419-UWC, 2008 WL 11381519, at *2 (N.D. Ala. Mar. 6, 2008) (citing Perez v. Miami-Dade County, 297 F.3d 1255 (11th Cir. 2002)). Formel D argues that Mr. Vance's responses are deficient and should be deemed admitted because they fail to state that he made a reasonable inquiry, as is required under Rule 36(a)(4). Doc. 68. Each of the responses served on behalf of Mr. Vance state that “[t]he answering party lacks knowledge of this alleged fact and therefore cannot admit or deny its truthful until they have made reasonable inquiry into it.” Doc. 68-5. Mr. Vance's responses do not state whether he and his counsel “made [a] reasonable inquiry” or that “the information [they] know[ ] or can readily obtain is insufficient to enable [them] to admit or deny.” Fed. R. Civ. P. 36(a)(4). Because Mr. Vance's responses fail to state whether he made the requisite inquiry, the court finds that the responses do not comply with Rule 36. But a “deemed admitted” sanction is not the court's only option under the rules. If the court finds that an answer does not comply with the requirements under Rule 36, then it may order “either that the matter is admitted or that an amended answer be served.” Fed. R. Civ. P. 36(a)(6). The court finds that, at this time, an order directing Mr. Vance to serve an amended answer is a more appropriate sanction for his deficient responses to Formel D's requests for admission because the presentation of the merits of any case Mr. Vance may have would be severely undermined should the court deem the requests for admissions admitted. Moreover, during the motion hearing on September 3, 2020, Formel D's counsel informed the court that they served their requests for admission on opt-in plaintiff Charlie Vance on June 12, 2020, see Doc. 68-3, because they contend that Mr. Vance did not work enough hours to have a viable claim against Formel D. If Formel D's assertion is correct, Formel D will suffer no prejudice as a result of Mr. Vance's opportunity to file an amended answer. *5 Formel D's request that each request for admission issued to Mr. Vance be deemed admitted is DENIED. Mr. Vance is ordered to serve rule-compliant amended answers to Formel D's requests for admission, as well as any other outstanding, overdue discovery responses, on or before September 28, 2020. IV. CONCLUSION The court's Scheduling Order requires that all discovery be completed by January 19, 2021. Doc. 66. Plaintiffs have had at least three months, and in some cases between six and eight months, to respond to Formel D's discovery requests, but have failed to do so. In the light of the approaching discovery deadline and plaintiffs' lengthy delays in responding to Formel D's discovery requests, the Opt-In Plaintiffs' overdue discovery responses must be served on or before September 28, 2020. The court likely will not grant any further extensions of time for the Opt-In Plaintiffs to respond to Formel D's outstanding discovery requests. Failure to timely and adequately comply with this order will expose those plaintiffs to the possibility of sanctions under Federal Rule of Civil Procedure 37. For the reasons stated above, Formel D's Motion to Compel Discovery, Doc. 68, is GRANTED in part and DENIED in part. DONE and ORDERED this 4th day of September, 2020.