2020 WL 435367

United States District Court, D. New Mexico.
David LEESON and Lucy Leeson, individually and as Parents and Next-Friends of Niamh Leeson, a minor child and Ruby Leeson, a minor child, Plaintiffs,
v.
The WRIGHT TRUCKING COMPANY INC., a foreign corporation, DW Expediting Inc., a foreign corporation, and Christopher Puerto, Defendants.
CV 19-0086 WJ/JHR
|
Filed 01/28/2020
Attorneys and Law Firms
Michael Patrick Doyle, Patrick Dennis, Doyle LLP, Houston, TX, Dathan Weems, Dathan L. Weems Attorney at Law, Albuquerque, NM, for Plaintiffs.
Allison M. Beaulieu, Raul P. Sedillo, Butt Thornton & Baehr PC, Albuquerque, NM, for Defendants.

MEMORANDUM OPINION AND ORDER
JERRY H. RITTER, U.S. MAGISTRATE JUDGE
*1 This matter comes before the Court on Defendants’ (sic) DW Expediting and Christopher Puerto’s Emergency Motion for Protective Order [Doc. 34], filed October 22, 2019.1 Plaintiffs’ response brief was due November 5, 2019, but was not filed until November 15, 2019, seven days after the Court ordered the parties to file a notice of completion of briefing because the time for filing a response had elapsed. [See Docs. 38, 39]; see also D.N.M.LR-Civ. 7.4(a) (requiring a response to be filed within fourteen calendar days after service of the motion); D.N.M.LR-Civ. 7.1(b) (stating that “[t]he failure of a party to file and serve a response in opposition to a motion within the time prescribed for doing so constitutes consent to grant the motion.”). In their reply brief, Defendants confirm the Court’s suspicion that no extension to respond to the Motion was sought or granted. [See Doc. 44, p. 1]. For this reason alone, the Court could grant Defendants’ Motion. See Smith v. Ford Motor Co., 626 F.2d 784, 796 (10th Cir. 1980) (stating that Local Rules “have the force and effect of law, and are binding upon the parties and the court which promulgated them until they are changed in appropriate manner.”); see, e.g., Yazzie v. Gurley Motor Co., CV 14-0555 JAP/SCY, 2015 WL 12868073, at *1 (D.N.M. June 10, 2015) (Yarbrough, Mag. J.) (unpublished) (applying Local Rule 7.1(b) to grant a motion).

The Court will not do so in this instance. The Court has the authority to waive the Local Rules, including the time limits they set forth, “to avoid injustice.” D.N.M.LR-Civ. 1.7. The Local Rules encourage the Court to construe them “consistently with the Federal Rules of Civil Procedure[,]” D.N.M.LR-Civ. 1.4, which are themselves to “be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1. Additionally, “courts prefer to decide cases on their merits rather than technicalities[.]” Ecologic Sols., LLC v. Bio-Tec Envtl., LLC, CV 10-1220 JCH/LFG, 2011 WL 13289848, at *4 (D.N.M. Mar. 22, 2011) (Herrera, J.) (unpublished). Therefore, while Plaintiffs and their counsel are admonished to comply with the Local Rules, the Court will decide the Motion on its merits.

At issue in the Motion is whether Plaintiffs must travel to New Mexico to give their depositions in light of Plaintiffs’ place of residence (the United Kingdom), Plaintiff Lucy Leeson’s claimed injuries resulting from the crash underlying this case, and the electronic alternatives to in-person examination available to Defendants. While the general rule appears to be that nonresident plaintiffs ordinarily (and quite reasonably) submit to certain inconveniences, such as appearing for hearings, depositions and trial, in the district where they file suit, the rule is not without its exceptions. For the reasons that follow, the Court denies Defendants’ Motion and orders them to at least attempt to coordinate and take Plaintiffs’ depositions via videoconference.

I. BACKGROUND
*2 Plaintiffs filed their Complaint for Personal Injury [Doc. 1] on January 30, 2019.2 Factually, they assert that on April 7, 2017, Defendant Puerto was driving eastbound through New Mexico on Interstate 40 when the tractor-trailer he was driving had a tire blow-out near mile marker 241. [Doc. 1, p. 3]. After the blow-out Defendant Puerto allegedly lost control of the tractor-trailer, swerved into the westbound lane, and crashed into the front of the 2016 Nissan operated by David Leeson and containing his wife, Lucy, and their children, Niamh and Ruby. [Id.]. “As a result of the collection (sic) [collision] Plaintiffs suffered serious bodily and emotional injuries[,]” resulting in “damages including, but not limited to their pain and suffering, past medical expenses, emotional distress, future medical expenses, future pain and suffering and lost wages for David Leeson and Lucy Leeson.” [Id.]. Based on these facts, Plaintiffs bring negligence and negligence per se claims against all Defendants.3

Plaintiffs are domiciled in the United Kingdom. [Doc. 1, p. 1]. However, they filed suit in the United States, and venue is proper in this district, because the collision occurred in New Mexico. See 28 U.S.C. § 1391(b)(2) (2018). Despite this, “[o]n October 16, 2019, Plaintiffs’ [counsel] served Defendants with a Notice of Deposition for Plaintiff Lucy Leeson … to take place on October 24, 2019, in Manchester, United Kingdom, at 1:00 PM GMT, which is approximately 6:00 AM MST.” [Doc. 34, p. 1]. Due to Plaintiffs’ failure to coordinate the deposition with Defendants and serve timely notice under this Court’s Local Rules, Defendants seek a protective order precluding Lucy’s deposition. [Id., pp. 1-2]. More precisely, Defendants seek an order requiring Plaintiffs, including Lucy, to travel to New Mexico for their depositions. [Id., p. 2]. Defendants argue that they will be prejudiced if they are denied the opportunity to examine Lucy, and Plaintiffs generally, in person. [Id.].

Substantively, Plaintiffs respond that they should not be required to travel to New Mexico from their home in Manchester. [See Doc. 39]. They point out that the burden on Lucy, in particular, would be unwarranted because her “injures are serious enough that such travel will impose a significant physical burden on her.” [Id., p. 2]. Lucy apparently “suffered a burst fracture of her L1 vertebrae in the incident and underwent a seven-level fusion (T10-L4) and three-level laminectomy (T12-L2) operation as part of her acute treatment to avoid permanent paralysis.” [Id., pp. 2-3]. David and Lucy also argue that they cannot leave Niamh and Ruby, who are in school, for an extended period to travel to New Mexico for their depositions. [Id.]. Finally, Plaintiffs offer to cover the cost of the live video conference needed to secure their virtual depositions and point out that similar methods have already been used to depose five fact witnesses in this case, including a treating physician. [Id., p. 2].

*3 In their Reply, Defendants argue that Lucy is not as injured as Plaintiffs allege as, “according to the individuals already deposed in this matter, Ms. Leeson has traveled to Cyprus, Greece, twice, to the Cannery (sic?) Islands, along with other trips since the time of the accident.” [Doc. 44, p. 1]. Defendants further counter Plaintiffs’ reliance on the depositions already taken in this case because, they assert, Lucy’s deposition will require referring to documents (whereas none of the others apparently had to refer to documents during their depositions). [Id., p. 2]. Defendants also point out that the time difference between New Mexico and Manchester makes coordinating depositions more difficult. [Id.]. Defendants conclude by pointing out that Plaintiffs chose to file in New Mexico and asserting that travel to the United Kingdom to take the depositions in person would be prejudicially expensive. [Id.]. Most importantly, Defendants posit that video depositions of Plaintiffs in this case will be “insufficient.” [Id.].

II. ANALYSIS
Federal Rule of Civil Procedure 30 governs depositions by oral examination. Pertinent here, Rule 30(b)(1) states that a notice of deposition must state the time and place of the deposition, the logical inference being that the party issuing the notice sets the date, time and location. See Fed. R. Civ. P. 30(b)(1); see also Federal Civil Rules Handbook, 852 (2020) (“For a party deponent, the noticing party may select any location for the deposition….”) (citation omitted). Under this logic Plaintiffs, as the issuer of Lucy’s deposition notice, have unilateral authority to set its location. However, parties (ordinarily through counsel) must stipulate to depositions and, at least in this district, confer in good faith as to their timing before serving the notice, which must precede the deposition by at least fourteen (14) days. See Fed. R. Civ. P. 30(a)(2)(A); D.N.M.LR-Civ. 30.1. Thus, in these circumstances, Defendants are entitled to an order vacating Lucy’s deposition because Plaintiffs failed to confer in good faith as to its timing and served the notice within fourteen days of the deposition. Plaintiffs do not disagree with this result and vacated Lucy’s deposition before it was held. [See Doc. 39, p. 1]. Of course, this does not end the parties’ dispute.

Turning to the heart of the matter – whether Plaintiffs must travel to New Mexico to be deposed – the Court finds that Defendants are not entitled to the protective order they seek. The Court is authorized to issue a protective order under Federal Rule of Civil Procedure 26(c), specifically Rule 26(c)(1)(B-C), which permits the Court to specify the terms for discovery (including the time and place and allocation of expenses), and to prescribe a discovery method other than the one selected by the party seeking discovery where the movant has shown that the proposed discovery will result in annoyance, embarrassment, oppression, or undue burden or expense. See id. However, the general rule is that plaintiffs will be required to travel to the district where the suit is pending for their depositions, whereas defendants can have their depositions taken where they work or live. Federal Civil Rules Handbook, 852 (citation omitted). Thus, there is a presumption in favor of requiring Plaintiffs to travel to New Mexico for their depositions.

There are exceptions to the general rule. See, e.g., Shockey v. Huhtamaki, Inc., 280 F.R.D. 589 (D. Kan. 2012). In Shockey the Kansas district court relied on the general rule to deny the out-of-state plaintiffs’ motion to require the defendant to bear their travel costs if it insisted on taking the plaintiffs’ depositions in Kansas. See id. at 601. However, the court found persuasive the plaintiffs’ alternative request – to permit their depositions by videoconference. See id. at 601-602. The court reasoned that the cost of traveling to Kansas outweighed the value of the claims at issue, and that a deposition by videoconference would permit the defendant to observe the deponents’ nonverbal responses and demeanor. Id. Additionally, the court pointed out – in 2012 – that depositions by video conference were becoming more routine and were in fact being encouraged in some other districts as a means to reduce travel costs and to permit the jury “to make credibility evaluations not available when a transcript is read by another.” Id. at 602 (quoted authority omitted).

*4 The Court finds Shockey’s reasoning to be sound. Moreover, it is rooted in the Federal Rules. As Shockey pointed out, Rule 30(b)(4) permits the parties to stipulate to a deposition by telephone “or other remote means.” Fed. R. Civ. P. 30(b)(4). The Rule also permits the Court to order a deposition to be held by remote means on motion by a party. Id. “Generally, leave to take depositions by remote means will be granted liberally.” Federal Civil Rules Handbook, 855 (citation omitted).

In light of the foregoing, the Court grants Plaintiffs’ request to be deposed by remote means, and orders Defendants to employ videoconference technology to take Plaintiffs depositions, at least initially. The Court is convinced that the nature of Lucy’s injuries and the cost of travel to bring all four Plaintiffs back to New Mexico for their depositions present burdens that are not outweighed by Defendants’ preference to observe Plaintiffs’ demeanor in person. While Defendants’ concerns about the extent of Lucy’s claimed injuries are valid, the Court would be more sympathetic if Defendants were restricted to deposing Plaintiffs by telephone. Modern videoconferencing should alleviate most, if not all, of Defendants’ concerns regarding Plaintiffs’ posture, demeanor and nonverbal responses. Additionally, while the Court acknowledges that video depositions may be logistically more difficult, these difficulties can be cured fairly easily. For example, Defendants need only email the documents they wish to question Lucy about during her deposition and have her print the same prior to it, as they will be able to identify the document for Lucy and the record by holding it up to the camera. In sum, the Court rejects Defendants’ position that a video deposition will be “insufficient.” If, after their depositions, Defendants continue to have concerns about Plaintiffs’ nonverbal responses and demeanor, they may return to court with a video of the deposition in hand for the Court to review and renew their request.

Plaintiffs, of course, will be required to bear the cost and burdens of coordinating and arranging the videoconference and court reporter in the United Kingdom (see Fed. R. Civ. P. 28(b)). The parties should also work cooperatively and in good faith to select a time and date that is mutually convenient.

III. ORDER
In sum, the Court denies Defendants’ Motion for a Protective Order [Doc. 34] because it finds that the burden of requiring Plaintiffs to travel from their home in the United Kingdom to New Mexico for their depositions is outweighed by the benefit obtainable via use of videoconference and other electronic means. The parties shall work in good faith to coordinate Plaintiffs’ depositions in accordance with the provisions of this Order and the applicable Federal Rules. If Defendants continue to have concerns after the depositions, they may re-file their motion and submit a copy of the video recording at issue.

SO ORDERED.

All Citations
Slip Copy, 2020 WL 435367

Footnotes

1
The Court notes that Defendants requested a hearing on their Motion. [See Doc. 47]. Because the issue raised by the Motion can be decided on the briefs, the Court will not hold oral argument. See D.N.M.LR-Civ. 7.6(a).

2
“Although [no] party has challenged [this Court’s] jurisdiction … it has long been recognized that a federal court must, sua sponte, satisfy itself of its power to adjudicate in every case and at every stage of the proceedings.” State Farm Mut. Auto. Ins. Co. v. Narvaez, 149 F.3d 1269, 1270–71 (10th Cir. 1998) (quoted authority omitted); see also Grupo Dataflux v. Atlas Glob. Group, L.P., 541 U.S. 567, 593 (2004) (“[B]y whatever route a case arrives in federal court, it is the obligation of both district court and counsel to be alert to jurisdictional requirements.”) (Ginsburg, J., dissenting). Plaintiffs’ Complaint is silent as to the basis for this Court’s jurisdiction over their claims. [See Doc. 1]. The Civil Coversheet Plaintiffs submitted asserts jurisdiction pursuant to 28 U.S.C. § 1332(d) (2018). [Doc. 1-1]. However, that portion of the diversity statute discusses federal jurisdiction over class action lawsuits. See 28 U.S.C. § 1332(d). Defendants do not clarify the matter in their answers, referring broadly to Section 1332 as the basis for this Court’s diversity jurisdiction. [See Docs. 6, 11]. The Court has independently examined its jurisdiction over this case and finds that, assuming the truth of the allegations in the Complaint, it has jurisdiction over Plaintiffs’ claims pursuant to 28 U.S.C. § 1332(a).

3
While Defendants DW Expediting, Inc. and Puerto answered and denied Plaintiffs’ claims, Defendant Wright Trucking Company, Inc. (“Wright Trucking”) did not. [See Doc. 30]. Chief District Judge Johnson has deferred ruling on Plaintiffs’ Motion for Default Judgment against Wright Trucking [Doc. 24] until Plaintiffs have taken their case to trial against Defendants or have otherwise resolved the matter. [Doc. 30, p. 5].

Neutral As of: February 21, 2020 3:30 PM Z
Pineda Transp., LLC v. FleetOne Factoring, LLC
United States District Court for the Middle District of Tennessee, Nashville Division
February 3, 2020, Filed
Case No. 3:18-cv-00089

Reporter
2020 U.S. Dist. LEXIS 17787 *; 2020 WL 529231

PINEDA TRANSPORTATION, LLC, and PINEDA INVESTMENT GROUP, LLC, Plaintiffs, v. FLEETONE FACTORING, LLC, And WEX BANK, Defendants.

Prior History: Pineda Transp., LLC v. FleetOne Factoring, LLC, 2018 U.S. Dist. LEXIS 78215 (M.D. Tenn., May 9, 2018)

MEMORANDUM
FleetOne Factoring, LLC (“FleetOne”) and Wex Bank (“Wex”) have filed an Application for Fees and Expenses (Docket No. 71), to which the Pineda Transportation, LLC and Pineda Investment Group, LLC (collectively, “Pineda”) and have filed no response. FleetOne and Wex have also filed a Supplemental Motion for Summary Judgment (Docket No. 73), to which Pineda has filed a Response (Docket No. 81), and FleetOne and Wex have filed a Reply (Docket No. 83). For the reasons set out herein, both motions will be granted.

I. BACKGROUND
Pineda is a trucking company. FleetOne and Wex are affiliated companies engaged in the business of factoring, a type of third-party collection of accounts receivable. Factoring, as the parties have described it, involves a company selling its invoices to a third party who immediately pays a [*2] percentage of the invoices and then invoices the company’s customers and collects the funds. Each of the plaintiffs alleges that it had a contract with the defendants under which the defendants bought the plaintiffs’ invoices for a percentage of their face value. The plaintiffs allege that the defendants failed to invoice the plaintiffs’ customers, failed to pay out reserve amounts collected on invoices to the plaintiffs, failed to process and post payments made by the plaintiffs’ customers to the plaintiffs’ accounts, and charged back invoices for amounts greater than were due. In the First Amended Complaint, Pineda alleged breach of contract (alternatively, breach of the duty of good faith and fair dealing) and fraud (alternatively, constructive fraud), and violations of civil RICO. (Docket No. 31.)
On March 15, 2018, Wex and FleetOne filed a Motion to Dismiss. (Docket No. 38.) On May 9, 2018, the court granted the motion in part and denied it in part, dismissing the plaintiffs’ civil RICO claims and claims for declaratory relief, which left only Pineda’s fraud and breach of contract claims pending. (Docket No. 44 at 1.) On June 13, 2018, the court entered an Initial Case Management [*3] Order (“ICMO”). (Docket No. 49.) The ICMO set a deadline of June 26, 2018, for the parties to exchange initial disclosures pursuant to Fed. R. Civ. P. 26(a)(1) and a deadline of February 16, 2019 for the completion of all written discovery and depositions. (Id. at 2.)
The plaintiffs did not produce initial disclosures by the June 26 deadline. On July 15, 2018, counsel for the defendants sent counsel for the plaintiffs an e-mail requesting the disclosures. (Docket No. 57-1.) The defendants received no disclosures and, on August 2, 2018, counsel for the defendants sent counsel for the plaintiffs another e-mail, asking, this time, whether it would be necessary for the defendants to file a motion to compel the disclosures. (Docket No. 57-2.) The defendants received no response, and, on August 22, 2018, counsel for the defendants sent a letter, apparently transmitted via e-mail as a scanned document, demanding that the disclosures be made within the next two days, or else the defendants would be forced to file a motion to compel. (Docket No. 57-3.)
The plaintiffs eventually served the defendants with initial disclosures on September 5, 2018, before any motion to compel was filed. (Docket No. 57 ¶ 4.) The next day, counsel [*4] for the defendants responded with a deficiency letter. (Docket No. 57-4.) The letter identified a number of ways in which the plaintiffs’ disclosures were incomplete and required supplementation. Gary C. Shockley, one of the defendants’ attorneys, filed a May 1, 2019 Declaration with this court stating that, as of that date, the defendants had received no response to the deficiency letter. (Docket No. 57 ¶ 5.)
On November 21, 2018, the defendants served their First Set of Interrogatories and First Request for Production of Documents on the plaintiffs. (Docket No. 57-5.) Counsel for the defendants sent follow-up communications on January 3, 2019 and March 5, 2019, seeking responses to the discovery requests and the deficiency letter. (Docket Nos. 57-6, -7.) Finally, on April 10, 2019, counsel for the defendants and counsel for the plaintiffs met in person. At the inperson meeting, the parties agreed that the plaintiffs would file their responses to the outstanding discovery requests on April 19, 2019, and the Rule 30(b)(6) depositions of the plaintiffs would be completed on May 6 and 7. (Docket No. 57 ¶ 9; Docket No. 58 ¶ 2.) On April 11, 2019, the parties filed a joint motion to extend the deadlines [*5] for completing discovery and filing dispositive motions, in light of the plaintiffs’ failures to provide the required information and documents. (Docket No. 53.) The court granted the motion. (Docket No. 54.)
As the close of business on the April 19, 2019 deadline approached, the plaintiffs had not yet provided the promised responses. Shockley sent an e-mail inquiring about the status of the discovery to the plaintiffs’ attorney, John Tennyson. Tennyson did not respond until April 22, 2019, when he sent a response e-mail, apologizing and explaining that he was still working with Pineda on the responses. (Docket No. 57-8.) As of the May 1, 2019 Shockley Declaration, the plaintiffs had still failed to provide the responses. (Docket No. 57 ¶ 9.) The plaintiffs had also failed to serve any interrogatories, requests for document production, requests for admissions, or notices of deposition of their own, nor did the plaintiffs disclose any experts by their expert disclosure deadline in the ICMO. (Docket No. 57 ¶¶ 11-13.)
On April 26, 2019, the court held a discovery dispute telephone conference with the parties, as required by the ICMO before the defendants could file a motion to compel or [*6] for sanctions. (See Docket No. 49 at 2-3.) On May 1, 2019, FleetOne and Wex filed a motion seeking sanctions against the plaintiffs based on their failures to provide the required and agreed-to materials. (Docket No. 55.) FleetOne and Wex requested, first, that the plaintiffs’ claims be dismissed. In the alternative, they requested that the court hold that the plaintiffs are precluded from relying on any evidence that would have been responsive to the discovery obligations that they violated. Finally, the defendants argued that, if the court did not dismiss the plaintiffs’ claims or order preclusion of evidence, the court should at least compel the plaintiffs to produce the relevant materials immediately and award attorney’s fees to FleetOne and Wex. On May 8, 2019, FleetOne and Wex filed a Supplemental Declaration from Shockley stating that, although the parties had agreed for Rule 30(b)(6) depositions to begin on May 6, 2019, no one from plaintiff’s side had showed up to the agreed location on that date. After waiting thirty minutes, Shockley dismissed the court reporter and videographer. (Docket No. 58 ¶¶ 1-4.)
The plaintiffs filed a Response on May 15, 2019, along with Declarations by Tennyson [*7] and Tennyson’s co-counsel, James Wiggington, offering various unconvincing explanations for their failure to cooperate with required discovery. (Docket Nos. 62-64.) On the same day, FleetOne and Wex filed a Motion for Summary Judgment. (Docket No. 59.) The plaintiffs filed a short, minimally responsive Response on June 5, 2019. (Docket No. 66.) The only evidence that the plaintiffs cited in support of their claims were two Declarations by the companies’ principal, Guadalupe “Vicky” Pineda, filed in January and February of 2018. (Docket Nos. 6-1, 21 (hereinafter, “First Vicky Pineda Declaration” and “Second Vicky Pineda Declaration”).) In the First Vicky Pineda Declaration, Ms. Pineda described, in general terms, what she believed was nonperformance by FleetOne and Wex under the parties’ factoring contracts. Ms. Pineda, however, did not provide details of any particular accounts that would be sufficient to support a verdict in Pineda’s favor. (Docket No. 6-1.). The Second Vicky Pineda Declaration consisted of a single paragraph, in which Ms. Pineda stated that, based on her personal information, knowledge, and belief, the facts in the original Complaint—which had since been superseded [*8] as the operative complaint in this case—were true and correct. (Docket No. 21.)
On June 24, 2019, the court filed a Memorandum and Order granting both motions in part and denying them both in part. (Docket Nos. 69-70.) The court granted summary judgment to the defendants with regard to all the plaintiffs’ breach of contract claims that were addressed in the analysis of the defendants’ expert, Terra Dolby, as well as all claims of fraud. Dolby convincingly explained why the behavior by FleetOne and Wex in the covered transactions had been legal and appropriate, propositions that Pineda did not meaningfully refute. In light of the plaintiffs’ behavior in discovery and their minimally responsive pleading regarding summary judgment, the court probably could have granted summary judgment to FleetOne and Wex with regard to all of the plaintiffs’ claims (or dismissed the claims as a discovery sanction), but, in the interests of justice, the court denied summary judgment with regard to transactions identified in the original Complaint and vouched for by the Second Vicky Pineda Declaration that the court was unable to identify as having been addressed by Dolby. The court, however, extended the [*9] dispositive motion deadline to allow the defendants to file another motion for summary judgment regarding those transactions. The court also granted to the defendants attorney’s fees and costs related to their attempts to enforce Pineda’s discovery obligations and instructed the defendants to file documentation sufficient for an award of reasonable fees and costs. (Docket No. 69 at 14-15.)
On July 12, 2019, the defendants filed an Application for Attorney’s Fees and Expenses, accompanied by documentation of the claimed fees and expenses. Altogether, they seek $11,044.35. (Docket No. 71 at 1.) On July 22, 2019, the defendants filed a Supplemental Motion for Summary Judgment, accompanied by additional documentation and analysis by Dolby. (Docket No. 73 at 2; Docket No. 75.) Pineda never responded to the Motion for Attorney’s Fees and Expenses. On August 9, Pineda filed a four-page Response to the Supplemental Motion for Summary Judgment. (Docket No. 81.) In violation of the Local Rules, Pineda failed to file a separate response to the defendants’ Supplemental Statement of Undisputed Material Facts. See L.R. 56.01(c). Pineda conceded, however, that none of the facts that the defendants asserted were [*10] disputed. (Docket No. 81 at 2.) The next day, August 10, 2019, Pineda filed a Supplemental Declaration of Vicky Pineda (“Third Vicky Pineda Declaration”), purporting to support its Response. (Docket No. 82.)

II. LEGAL STANDARD

A. Summary Judgment
Rule 56 requires the court to grant a motion for summary judgment if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). If a moving defendant shows that there is no genuine issue of material fact as to at least one essential element of the plaintiff’s claim, the burden shifts to the plaintiff to provide evidence beyond the pleadings, “set[ting] forth specific facts showing that there is a genuine issue for trial.” Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). “In evaluating the evidence, the court must draw all inferences in the light most favorable to the non-moving party.” Moldowan, 578 F.3d at 374 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)).
At this stage, “‘the judge’s function is not . . . to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.'” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). But “[t]he mere existence of a scintilla of evidence in support of the [non-moving party’s] position will be insufficient,” and [*11] the party’s proof must be more than “merely colorable.” Anderson, 477 U.S. at 249, 252. An issue of fact is “genuine” only if a reasonable jury could find for the non-moving party. Moldowan, 578 F.3d at 374 (citing Anderson, 477 U.S. at 252).

B. Attorney’s Fees
The party seeking attorney’s fees has two main obligations: (1) to provide the court with “evidence supporting the hours worked and rates claimed” and (2) to demonstrate that the requested fee award is “reasonable.” Perry v. AutoZone Stores, Inc., 624 F. App’x 370, 372 (6th Cir. 2015); Lance Coal Corp. v. Caudill, 655 F. App’x 261, 262 (6th Cir. 2016). The starting point for determining the reasonableness of a requested fee is the “lodestar” analysis, whereby the requested fee is compared with the amount generated by multiplying the number of hours reasonably worked on the litigation by a reasonable hourly rate. Minor v. Comm’r of Soc. Sec., 826 F.3d 878, 881 (6th Cir. 2016). In determining whether a requested hourly rate is reasonable, the court looks to the “prevailing market rate in the relevant community” and considers the skill, experience, and reputation of the attorneys involved in the litigation. Adcock-Ladd v. Sec’y of Treasury, 227 F.3d 343, 350 (6th Cir. 2000). If the requested fee is essentially in line with the “lodestar,” then there is a strong presumption that the requested fee is reasonable and recoverable. Id.
In addition to the lodestar analysis, the court should also consider any relevant “Johnson” factors and whether some adjustment to the award [*12] is required under those factors. See Reed v. Rhodes, 179 F.3d 453, 471 (6th Cir. 1999) (citing Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974)). Those factors are: (1) the time and labor required by a given case; (2) the novelty and difficulty of the questions presented; (3) the skill needed to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Id. The Sixth Circuit has recognized that, often, these factors are naturally blended into the reasonableness analysis. Paschal v. Flagstar Bank, 297 F.3d 431, 435 (6th Cir. 2002).

III. ANALYSIS

A. Application for Attorney’s Fees
The defendants’ Application for Attorney’s Fees requests attorney and paralegal fees in the following amounts, based on the work by the personnel listed:
Go to table1
(Docket No. 72-1.) The defendants also seek $985 in court reporter and videographer expenses for the deposition that Pineda failed to attend, for a total of $12,029.35. (Docket No. 71 at 2.) The defendants submitted a Declaration by Shockley, explaining the process of compiling the relevant billing information. (Docket No. 72.) Shockley states that the hourly rates charged “represent a market rate in Nashville and are well within the range of reasonable fees.” (Id. ¶ 5.) Shockley also states that he believes that the hours billed represent a conservative figure, with at least some time spent on discovery-related tasks omitted. (Id. ¶ 7.) The Shockley Declaration is accompanied by a detailed log of time entries, including descriptions of tasks, as well as attorney biographies and relevant expense receipts. (Docket Nos. 72-1 to -3.)
Pineda failed to file any response to the defendants’ Application for Attorney’s Fees and Expenses. However, “[e]ven with an unopposed motion for attorney’s fees, courts must . . . determine whether the requested fee is reasonable.” Justus v. Colvin, No. 3:11-CV-148-PLR-CCS, 2014 U.S. Dist. LEXIS 91302, 2014 WL 3051384, at *2 (E.D. Tenn. July 3, 2014) (citing Gisbrecht v. Barnhart, 535 U.S. 789, 807, 122 S. Ct. 1817, 152 L. Ed. 2d 996 (2002)). The court, [*14] accordingly, must perform a sua sponte review of the hours and rates claimed.
The court finds the hours billed to be reasonable. In many situations, it would be questionable to bill so many more hours of a shareholder’s time relative to an associate’s, rather than leaving most tasks to the less expensive attorney. The court acknowledges, however, that an opposing party’s intransigence in discovery is an obstacle that may require senior-level attention, in part to communicate the seriousness of the situation to opposing counsel. The total hours billed, moreover, are relatively low.
The rate requested for Shockley’s work approaches the high end of rates typically approved in this court. However, Shockley’s level of experience and the complexity of the business practices underlying this litigation justify a significant rate of compensation. The court therefore finds Shockley’s rate to be reasonable. Climo’s rate is reasonable as well. However, Kroll’s rate is significantly above what this court has typically approved as reasonable for paralegals, and the defendants have not justified so significant a departure. The court, accordingly, will reduce Kroll’s rate to $120 per hour. The resulting [*15] approved fees are as follows:
Go to table2
The court finds the $985 in costs requested to be reasonable and justified. The court, accordingly, will award the defendants $11,717.80 in attorney’s fees and costs.

B. Motion for Summary Judgment
The defendants have filed a Supplemental Declaration of Terra Dolby, in which Dolby states that she “ha[s] reviewed the remaining invoices in Plaintiffs’ original Complaint that were not addressed in [her] prior declaration.” (Docket No. 75 ¶ 4.) Dolby then sets forth her conclusions regarding those transactions. Dolby’s analysis of the remaining transactions is similar to her analysis of the transactions that she considered in her first Declaration; in short, Dolby concludes that the various discrepancies that Pineda alleged to have been improper either did not exist, reflected the defendants’ appropriately crediting Pineda’s funds against its liabilities, or were rectified in a timely manner. (Id. ¶¶ 5-26.) In conformance [*16] with the Local Rules, the defendants filed a Supplemental Statement of Undisputed Material Facts, incorporating Dolby’s conclusions, in support of its motion. (Docket No. 74.) Pineda has conceded those facts and, by extension, Dolby’s conclusions. (Docket No. 81 at 2.)
In its Response, Pineda states, in a conclusory fashion, that “[t]he Amended Complaint, and allegations contained therein, and discovery materials provided to the Defendants support Plaintiffs’ claims of breach of contract.” (Docket No. 81 at 2.) Pineda also claims, in the Response, to be “currently in the process of reviewing” a “substantial amount of documentation” that, Pineda assures the court, will “align with the Plaintiffs’ allegations.” (Id.) Pineda then generally reiterates its allegations against the defendants, which the defendants have devoted a substantial amount of briefing—and, no doubt, a substantial amount of resources—to persuasively refuting in detail. (Id. at 3.) Finally, Pineda closes its argument as follows:
Moreover, if this Court decides that the Defendants have provided enough to shift the burden on the breach of contract claim for the purposes of summary judgment, the Plaintiffs will provide evidence [*17] beyond the pleadings setting forth specific facts showing that there is a genuine issue for trial in their forthcoming filings. In the present case, there is a genuine issue for trial: whether the Defendants breached their agreements with the Plaintiffs by failing to invoice the customers of the Plaintiffs. Ms. Pineda is filing an additional declaration with this Court on August 10, 2019, which counsel for the Defendants anticipates will contain allegations sufficient to show genuine issues of material fact.
(Id.)
The Third Vicky Pineda Declaration, however, provides Pineda no help, because Pineda failed to properly raise the allegations in the Declaration as grounds for denying to the defendants’ motion. Other than Ms. Pineda’s vague repetition of the plaintiffs’ original claims, the Third Vicky Pineda Declaration adds only one allegation, a cursory description of the alleged mishandling of a single invoice. That allegation was not one of the ones previously raised or addressed, at any point, by either party. A plaintiff seeking to defeat a motion for summary judgment based on a fact that is not included in the movant’s statement of undisputed facts must either (1) cite to the additional [*18] fact as part of its response to the statement of undisputed facts or (2) file its own statement of additional undisputed facts. L.R. 56.01(c). Pineda did neither. That additional invoice, therefore, is not appropriately before the court. Even if Pineda had appropriately cited the invoice, moreover, it would need more than Ms. Pineda’s conclusory and self-serving account in order to support a claim based on that invoice, particularly in the face of the defendants’ detailed explanation of how Pineda has misunderstood every other situation raised so far.
Moreover, insofar as Pineda is promising some further future support of its claims in addition to the Third Vicky Pineda Declaration, Pineda has misunderstood its burden. A plaintiff’s response to a motion for summary judgment cannot be just a promise to respond adequately later. The time to “set forth specific facts showing that there is a genuine issue for trial,” Moldowan, 578 F.3d at 374, was contemporaneously with the response. Pineda, moreover, has already been granted significantly more leeway than it was actually entitled to in responding to the defendants’ arguments. A party can only keep litigation going for so long based on promises that its case will come together [*19] tomorrow, particularly where any delays have been the fault of that party in the first place. The court will grant the defendants summary judgment in full.

IV. CONCLUSION
For the foregoing reasons, the defendants’ Application for Fees and Expenses (Docket No. 71) and Supplemental Motion for Summary Judgment (Docket No. 73) will be granted.
An appropriate order will enter.
/s/ Aleta A. Trauger
ALETA A. TRAUGER
United States District Judge

ORDER
For the reasons explained in the accompanying Memorandum, the Application for Fees and Expenses (Docket No. 71) and Supplemental Motion for Summary Judgment (Docket No. 73) filed by FleetOne Factoring, LLC and Wex Bank are both hereby GRANTED. Pineda Transportation, LLC, and Pineda Investment Group, LLC are hereby ORDERED to pay the defendants $11,717.80 in attorney’s fees and costs.
Entry of this Order shall constitute final judgment in this case pursuant to Federal Rule of Civil Procedure 58.
It is so ORDERED.
/s/ Aleta A. Trauger
ALETA A. TRAUGER
United States District Judge
Table1 (Return to related document text)
Biller Position Rate Hours Total
Gary C. Shockley Shareholder $454.50/hour 0.4 $181.80
(9/16/18)
Gary C. Shockley Shareholder $472.50/hour 19.4 $9,166.50
(all other dates)
Mary Climo Associate [*13] $225.00/hour 4.5 $1,012.50
Lea Kroll Paralegal $220.50/hour 3.1 $683.55
$11,044.35
Table1 (Return to related document text)

Table2 (Return to related document text)
Biller Position Rate Hours Total
Gary C. Shockley Shareholder $454.50/hour 0.4 $181.80
(9/16/18)
Gary C. Shockley Shareholder $472.50/hour 19.4 $9,166.50
(all other dates)
Mary Climo Associate $225.00/hour 4.5 $1,012.50
Lea Kroll Paralegal $120.00/hour 3.1 $372.00
$10,732.80
Table2 (Return to related document text)