United States District Court, E.D. Michigan, Southern Division
CHARLES D. ALLEN, III, LINDSEY BLISS, MARK BILLETTE, ROBERT A. ANDERSON, RUSSELL PUBLOW, II, Plaintiffs,
HARDROCK HDD, INC., a Michigan Corporation, and JEFFERY PATRICK, Jointly and Severally, Defendants.
AND ORDER GRANTING DEFENDANT PATRICK'S MOTION TO WITHDRAW
ADMISSIONS , DISMISSING AS MOOT PLAINTIFFS' MOTION TO
STRIKE REPLY , DENYING PLAINTIFFS' MOTION TO QUASH
PATRICK'S SUBPOENA , DENYING PLAINTIFFS' MOTION
TO STAY COMPLIANCE WITH PATRICK'S SUBPOENA , AND
DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
Honorable Nancy G. Edmunds Judge
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 . Defendants Hardrock HDD, Inc.
("Hardrock"), and Hardrock's owner Jeffery
Patrick ("Patrick"), filed an answer on January 11,
2017 . 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 , 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  is GRANTED.
Plaintiffs' Motion to Strike Defendant's Reply 
is DISMISSED as moot. Plaintiffs' Motion for Summary
Judgment  which relies in whole on Defendant's now
withdrawn admissions is DENIED. Plaintiffs' motions to
quash Patrick's subpoena  and to stay compliance with
Patrick's subpoena  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
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").
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.
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
d. Plaintiff Publow: $5, 815.57
e. Plaintiff Billette: $1, 602.25
(Summary Judgment Time Sheets, Dkt. 32-2, at 2-35; PgID
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.)
not accounted for in Plaintiff's claims are the Contested
Period wages the Department of Labor ("DOL")
already paid ...