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Allen v. Hardrock Hdd, Inc.

United States District Court, E.D. Michigan, Southern Division

May 24, 2018

CHARLES D. ALLEN, III, LINDSEY BLISS, MARK BILLETTE, ROBERT A. ANDERSON, RUSSELL PUBLOW, II, Plaintiffs,
v.
HARDROCK HDD, INC., a Michigan Corporation, and JEFFERY PATRICK, Jointly and Severally, Defendants.

         OPINION AND ORDER GRANTING DEFENDANT PATRICK'S MOTION TO WITHDRAW ADMISSIONS [29], DISMISSING AS MOOT PLAINTIFFS' MOTION TO STRIKE REPLY [35], DENYING PLAINTIFFS' MOTION TO QUASH PATRICK'S SUBPOENA [36], DENYING PLAINTIFFS' MOTION TO STAY COMPLIANCE WITH PATRICK'S SUBPOENA [37], AND DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT [22]

          Honorable Nancy G. Edmunds Judge

         Plaintiffs Allen, Bliss, Billette, Anderson, and Publow (collectively "Plaintiffs") filed this lawsuit, on October 31, 2016, for violation of the Fair Labor Standards Act of 1938, 29 U.S.C. §201, et seq., and for breach of contract [1]. Defendants Hardrock HDD, Inc. ("Hardrock"), and Hardrock's owner Jeffery Patrick ("Patrick"), filed an answer on January 11, 2017 [7]. In the year that followed, communication between the parties deteriorated. On June 6, 2017, Plaintiffs attempted to serve on Patrick a comprehensive set of requests for admissions pursuant to Fed.R.Civ.P. 36. He never responded. Pursuant to Fed.R.Civ.P. 36(a)(3) and (b), a party's failure to respond deems the request conclusively admitted. Patrick claims in his affidavit dated January 9, 2018 [25], he never received the admission request, nor many other attempts Plaintiff made at communication. Currently before the Court is Defendant Patrick's motion to withdraw the admissions pursuant to Fed.R.Civ.P. 36(b). The Court held a hearing on this matter on Wednesday, April 11, 2018. For the reasons stated below, Defendant Patrick's Motion to Withdraw Admissions [29] is GRANTED. Plaintiffs' Motion to Strike Defendant's Reply [35] is DISMISSED as moot. Plaintiffs' Motion for Summary Judgment [22] which relies in whole on Defendant's now withdrawn admissions is DENIED. Plaintiffs' motions to quash Patrick's subpoena [36] and to stay compliance with Patrick's subpoena [37] are also DENIED. The Court will GRANT Plaintiffs attorney fees for Patrick's failure to respond during discovery, however, as detailed below the Court needs more information in order to determine the appropriate amount.

         I. Background

         Defendant Hardrock is a directional drilling company that services construction projects. Defendant Patrick is Hardrock's owner. In August and September 2016, Hardrock was providing services to at least three projects, in Pontiac, Michigan, Livonia, Michigan, and Pinckney, Michigan. Each of the three projects were funded in part by federal funds and the general contractor on two of the projects was the company Rohl Networks, LP ("Rohl").

         According to a lawsuit between Rohl and Hardrock, in May 2015, Rohl entered into a contract with the City of Livonia to perform work on the City's 2015 DWRF Phase 2 Water Main Replacement Project ("Livonia Project"). (Rohl Counterclaim Against Hardrock, Dkt. 29-5, at 3; PgID 199.) Rohl hired Defendant Hardrock as a subcontractor, but by August 2016, Hardrock was not adequately performing their work, requiring Rohl to take corrective action to get at least one of the projects back on schedule. By August 2016, Rohl claims it was advancing funds for Hardrock payroll, paying outstanding balances owed to Hardrock suppliers, and hiring completion contractors to finish the work. (Rohl Counterclaim Against Hardrock, Dkt. 29-5, at 3-4; PgID 199-200.) Rohl officially terminated their subcontract with Hardrock on September 2, 2016.

         At issue in this case is Hardrock's alleged non-payment of wages, to Plaintiffs, for work they performed during this exact problematic time period, from August 1, 2016 -September 8, 2016 ("Contested Period"). According to Plaintiffs, who performed work during the Contested Period on all three of the Hardrock projects, in Pontiac, Livonia, and Pinckney, Hardrock was required, by law and by contract, to pay each plaintiff $54.63 per hour for "operator" work performed, and $37.70 per hour for "labor" work performed. Plaintiffs currently claim Defendants failed to pay the following amounts in wages:

a. Plaintiff Allen: $9, 772.54
b. Plaintiff Bliss: $7, 518.71
c. Plaintiff Anderson: $5, 931.29[1]
d. Plaintiff Publow: $5, 815.57
e. Plaintiff Billette: $1, 602.25

(Summary Judgment Time Sheets, Dkt. 32-2, at 2-35; PgID 253-86.)

         However, these amounts do not reflect payroll advances Hardrock did pay to most of the Plaintiffs during the Contested Period. Hardrock made the following "payroll advance[s]" which are not accounted for in Plaintiff's claims.

a. Plaintiff Allen received: $500 on 8/23/2016 Plaintiff Allen received: $2, 500 on 9/12/2016
b. Plaintiff Bliss received: $500 on 8/23/2016
c. Plaintiff Anderson received: $500 on 8/23/2016
d. Plaintiff Publow received: $500 on 8/23/2016
e. Plaintiff Billette did not receive a payroll advance.

(Hardrock Payroll Advances, Dkt. 29-4, at 2-11; PgID 187-96.)

         Also not accounted for in Plaintiff's claims are the Contested Period wages the Department of Labor ("DOL") already paid ...


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