McCarty v. International et al

Filing 29

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 9/10/2015. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
KYM MCCARTY
:
v.

:

Civil Action No. DKC 14-3990

:
DEMOCRACY INTERNATIONAL, et al.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this case are
two motions filed by Plaintiff Kym McCarty: (1) a motion for
reimbursement of expenses (ECF No. 25); and (2) an unopposed
motion

for

voluntary

dismissal

(ECF

No.

28).

The

relevant

issues have been briefed, and the court now rules, no hearing
being deemed necessary.
reasons,

Plaintiff’s

Local Rule 105.6.

motion

to

for

For the following

reimbursement

of

expenses

will be denied, and Plaintiff’s motion for voluntary dismissal
will be granted.
I.

Background
Plaintiff commenced this action on December 23, 2014, by

filing a complaint against Defendants Democracy International,
Inc. (“Democracy International”), Eric Bjornlund, and Glen Cowan
alleging

unlawful

activities.

discharge

(ECF No. 1).

and discovery commenced.

in

retaliation

for

protected

Defendants answered on March 5, 2015
(ECF No. 6).

On

April

15,

2015,

Plaintiff

served

Defendants

with

Plaintiff’s “First Requests for the Production of Documents.”
(ECF No. 21-1 ¶ 1).

The parties entered into a Stipulated

Protective Order (ECF No. 11), which provided that:
A party may designate Discovery Material as
“Attorneys’ Eyes Only” if such Discovery
Material
contains
particularly
sensitive
confidential information that the producing
party believes in good faith cannot be
disclosed without threat of competitive
injury, because such Discovery Material
contains
proprietary
or
commercially
sensitive information.
(Id. at 2).

Furthermore:

Confidential
business
Discovery
Material
shall be so identified at the time of
service
of
such
Discovery
Material
by
including
on
each
page
the
legend
“ATTORNEYS’ EYES ONLY.”
This designation
shall be used as sparingly as possible. Any
document,
material,
or
information
designated by a party as “Attorneys’ Eyes
Only” must be reviewed by an attorney and
may not be disclosed to Plaintiff absent
written
consent
from
counsel
for
all
Defendants or an Order by this Court.
(Id. at 3).

The parties proceeded to conduct discovery, and

more than 80% of Defendants’ total document production requested
by Plaintiff (6,205 of 7,580 documents and 44,780 of 50,700
pages) was designated as “Attorneys’ Eyes Only.”
¶ 7).

(ECF No. 21-1

Plaintiff contended that Defendants’ designation “was

overbroad,

improper

and

a

Stipulated Protective Order.”

violation

of

(Id. ¶ 8).

2

the

terms

of

the

Despite exchanging

several

letters

parties

achieved

dispute.

and

holding

only

two

limited

telephonic
success

in

conferences,
resolving

the

their

(Id. ¶ 11).

On June 19, 2015, pursuant to Fed.R.Civ.P. 37(a)(3)(B)(iv)
and (a)(4), and Local Rule 104.8(a), Plaintiff served her motion
to compel discovery.

(ECF No. 21-1).

Defendants served their

opposition on July 1 (ECF No. 21-2), and Plaintiff served her
reply on July 15 (ECF No. 21-3).

On July 16, counsel for the

parties held a telephonic discovery conference pursuant to Local
Rules

104.7

and

104.8(b).

Counsel

resolved

two

of

four

substantive issues raised by Plaintiff’s motion, leaving two for
resolution by the court.

Also on July 16, Plaintiff filed her

motion to compel, accompanied by a certificate of counsel per
Local Rule 104.8(c).

(ECF No. 21).

While the briefing was in progress, Plaintiff filed both a
motion

to

extend

the

protective

order.

As

discovery
a

result

deadline
of

those

and

a

motion

motions,

the

for

court

conducted a telephone conference with counsel on July 9, 2015,
at which both motions were granted.

Additionally, the court was

advised that a motion to compel would be forthcoming, and a
hearing date was set for July 22, 2015.
provide

the

court

with

all

written

The parties were to

submissions

by

July

20.

Plaintiff concluded that the court needed to have a copy of all

3

disputed documents in advance of the hearing, so copies were
made and delivered to chambers on July 20.
At the July 22 hearing, the undersigned granted in part and
denied in part Plaintiff’s motion to compel.

(ECF No. 23).

Without finding whether any documents were improperly labelled
“Attorneys Eyes Only,” the court was able to forge a compromise,
permitting

Plaintiff’s

Plaintiff,

but

counsel

prohibiting

to

her

review

from

the

having

a

documents
copy

or

with
other

tangible rendition of the documents in her sole control.
July

24,

2015,

Plaintiff

filed

the

pending

motion

On
for

reimbursement of expenses incurred in connection with her motion
to compel.

(ECF No. 25).

August 7, 2015.
motion

for

(ECF No. 27).

voluntary

unopposed by Defendants.
II.

Defendants responded in opposition on
Plaintiff also filed the pending

dismissal

without

prejudice,

which

is

(ECF No. 28).

Plaintiff’s Motion for Reimbursement of Expenses
Plaintiff’s motion to compel discovery was granted in part

and denied in part.

(ECF No. 23).

As a result, “the court may

. . . after giving an opportunity to be heard, apportion the
reasonable expenses for the motion.”

Fed.R.Civ.P. 37(a)(5)(C).

However, expenses should not be awarded to the moving party if:
“(i) the movant filed the motion before attempting in good faith
to obtain the disclosure or discovery without court action;(ii)
the opposing party’s nondisclosure, response, or objection was
4

substantially justified; or (iii) other circumstances make an
award of expenses unjust.”

Fed.R.Civ.P. 37(a)(5)(A); see Hake

v. Carroll Cnty., Md., No. WDQ-13-1312, 2014 WL 3974173, at *10
(D.Md. Aug. 14, 2014); Morris v. Lowe’s Home Centers, Inc., No.
1:10-CV-388, 2012 WL 5347826, at *12 (M.D.N.C. Oct. 26, 2012)
(citations omitted) (“[T]he same factors that limit application
of

Rule

37(a)(5)(A)

also

constrain

cost-shifting

under

Rule

37(a)(5)(C).”).
Rule

37(a)(5)(C)

grants

courts

discretion

to

apportion

expenses, including costs incurred during, inter alia, filing,
copying, and travel.

See EEOC v. Bardon, Inc., No. RWT-08-1883,

2010 WL 989051, at *3 (D.Md. Mar. 12, 2010).

Here, Plaintiff

moves for reimbursement of expenses associated with her motion
to

compel

hearing.

discovery

and

incurred

preparing

for

the

July

22

Plaintiff’s motion for reimbursement is accompanied by

affidavits and corresponding statements of expenses.
Nos. 25-1; 25-2).

(See ECF

Defendants oppose Plaintiff’s motion, arguing

that Plaintiff did not attempt to resolve the discovery issues
in good faith, that the district court did not even reach the
issue of the “Attorneys’ Eyes Only” designations at the July 22
hearing, that Plaintiff fails to demonstrate that Defendants’
designations

were

not

“substantially

justified,”

and

that

Plaintiff will use the copies she made for the hearing elsewhere
during this litigation.

(ECF No. 27, at 1-3).
5

As

an

initial

matter,

Defendants

contend

that

Plaintiff

moved to compel discovery before conferring in good faith to
resolve the issues without court intervention, as is required by
Fed.R.Civ.P. 37(a)(5)(A)(i).

Defendants assert that they “had

already mostly resolved [Plaintiff’s motion to compel] by the
time she rushed her motion to Court.”
However,

in

addition

to

Plaintiff’s

(ECF No. 27, at 1).
certification

that

the

parties did meet and confer (ECF No. 21), Plaintiff offered
evidence

of

her

genuine

attempts

to

disputes without court intervention.

resolve

the

discovery

(See ECF No. 21-1 ¶ 11).

Through her counsel, Plaintiff made several requests to have
Defendants

review

production.

(Id.

and
at

re-designate
11,

44-48).

their
The

entire

record

document

reveals

that

Plaintiff made reasonable, good faith efforts to resolve her
discovery disputes with Defendants before filing the motion to
compel.
Defendants’ opposition details that “Plaintiff inexplicably
chose

to

file

her

Motion

[discovery]

deadline,

supplemental

discovery

motion.”

(Id. at 2).

to

and

Compel
after

responses

several
she

that

days

had

before

received

obviated

most

of

the
the
her

If good faith efforts to resolve the

dispute with the opposing party have failed, the moving party is
free to file a motion to compel and for sanctions pursuant to
Rule

37(a)(5).

See

Jayne

H.

Lee,
6

Inc.

v.

Flagstaff

Indus.

Corp.,

173

original)

F.R.D.

(“[Rule

651,
37]

656

n.13

provides,

(D.Md.

1997)

relevantly,

(emphases

that

if

a

in

party

fails to respond to a document production request by agreeing to
the production as requested, or fails thereafter to permit the
inspection

as

requested[,]

the

propounding

party

may

file

a

motion to compel with the court, accompanied by a certificate
that there have been good faith efforts to resolve the dispute
before

filing

the

motion.”);

see

also

Lane

v.

Lucent

Technologies, Inc., No. 1:04-CV-00789, 2007 WL 2079879, at *3
(M.D.N.C. July 13, 2007) (“Generally, a party must file a motion
to compel before the close of discovery in order for that motion
to be deemed timely.”).

Given that Defendants failed to produce

discovery as requested, Plaintiff reasonably prepared and filed
the motion to compel seeking access to documents shielded by
Defendants’ “Attorneys’ Eyes Only” designation.
Defendants also assert that only two of Plaintiff’s issues
remained at the time of the July 22 hearing: “(1) the propriety
of

Defendants’

Plaintiff’s
information.”

‘Attorneys’

request

for

Eyes

Only’

designations;

Defendants’

(ECF No. 27, at 1).

personal

and

(2)

financial

Defendants prevailed on the

latter issue at the hearing and contend that the former issue
was resolved before the court ruled.
note

that

Plaintiff’s

request

for

Although they correctly
Defendants’

financial

information was denied, Defendants’ argument that they “readily
7

agreed to the Court’s suggestion to allow Plaintiff to view the
‘Attorneys’ Eyes Only’ documents” under certain conditions fails
to account for the fact that they had resisted making these
documents available to Plaintiff prior to the hearing.
2).

(Id. at

Plaintiff prevailed on this issue at the hearing and, as a

result, her motion was granted in part.
Defendants next argue that “Plaintiff cannot demonstrate
that

Defendants’

justified,’”

but

designations
this

argument

were
is

not

‘substantially

unavailing.

(Id.

at

3).

“[T]o avoid the imposition of costs, ‘parties must sufficiently
argue that they were substantially justified in their actions.’”
Lynn v. Monarch Recovery Mgmt., Inc., 285 F.R.D. 350, 365 (D.Md.
2012) (quoting Kemp v. Harris, 263 F.R.D. 293, 297 (D.Md.2009)).
Here, Defendants have not done so and cannot place the burden on
Plaintiff.

Furthermore,

Defendants

assert

that

awarding

expenses to Plaintiff would finance her litigation, as she would
presumably

use

the

copies

throughout this litigation.
If

this

case

were

that

she

made

for

the

hearing

(ECF No. 27, at 3).
to

continue,

the

court

might

have

deferred resolution of expense-shifting pending completion of
discovery, to see whether other disputes merited awarding of
expenses

to

either

pending

motion

side.

voluntarily

However,
to

prejudice, which will be granted.
8

Plaintiff

dismiss

her

has

filed

case

the

without

Under that circumstance, an

award of expenses would be unjust.

As will be seen, Defendants

do not object to the dismissal without prejudice, but they have
undoubtedly incurred expenses in litigating thus far that will
not be reimbursed.

Thus, the court will exercise its discretion

to deny Plaintiff’s request for reasonable expenses pursuant to
Rule 37(a)(5)(C).
III. Plaintiff’s Motion for Voluntary Dismissal
Plaintiff
prejudice.

moves

(ECF

voluntarily

No.

28).

to

dismiss

Plaintiff

the

maintains

case

without

that

she

has

“decided not to proceed with this legal action[,]” but that her
request

“reflects

(Id. at 1).

nothing

about

the

merits

of

[her]

claims.”

For the following reasons, Plaintiff’s request to

withdraw her claims without prejudice will be granted, although
any refiling of the claims will be subject to Fed.R.Civ.P. 41(d).
As

a

general

rule,

a

“plaintiff’s

motion

for

voluntary

dismissal without prejudice under Rule 41(a)(2) should not be
denied absent substantial prejudice to the defendant.”
Versant

Corp.,

788

F.2d

1033,

1036

(4th

Cir.

Andes v.

1986).

Rule

41(a)(2) “permits the district court to impose conditions on
voluntary dismissal to obviate any prejudice to the defendants
which may otherwise result from dismissal without prejudice.

In

considering a motion for voluntary dismissal, the district court
must

focus

defendant.”

primarily

on

protecting

the

interests

of

the

Davis v. USX Corp., 819 F.2d 1270, 1273 (4th Cir.
9

1987) (citations omitted).

The decision to grant or deny a

voluntary dismissal under Rule 41(a)(2) “is a matter for the
discretion of the district court, and its order will ordinarily
not

be

reversed

except

for

an

abuse

of

assessment

of

discretion.”

Id.

(citations omitted).
The

“district

court’s

the

propriety

of

allowing a Rule 41(a)(2) dismissal” involves a “non-exclusive,
multi-factor test.”

Wilson v. Eli Lilly & Co., 222 F.R.D. 99,

100 (D.Md. 2004).

The listed factors are: (1) the opposing

party’s effort and expense in preparing for trial; (2) excessive
delay

or

lack

of

diligence

on

the

part

of

the

movant;

(3)

insufficient explanation of the need for a dismissal; and (4)
the present stage of litigation, i.e., whether a dispositive
motion is pending.

Kyte v. Coll. of S. Maryland, No. DKC-2003-

2558, 2005 WL 396306, at *1 (D.Md. Feb. 18, 2005) (citations
omitted).

Potential prejudice to the nonmoving party is a key

factor, but the United States Court of Appeals for the Fourth
Circuit has recognized that “[its] jurisprudence on the issue of
what constitutes sufficient prejudice to a nonmovant to support
denial of a motion for voluntary dismissal under Rule 41(a)(2)
is

not

free

from

ambiguity.”

Howard

v.

Inova

Servs., 302 F.App’x 166, 179 (4th Cir. 2008).

Health

Care

In determining

prejudice to Defendants, it is important to note the stage of
the litigation at which Plaintiff voluntarily seeks to dismiss.
10

Here, litigation is still in its early stages.

Plaintiff

has neither excessively delayed this case nor displayed a lack
of diligence.
date,

have

The record does not indicate that Defendants, to
expended

much

time

or

incurred

great

expense.

Furthermore, Plaintiff’s request to withdraw her claims recites
that she can no longer afford the substantial and increasing
costs related to discovery, particularly as the case enters a
more

intensive

stage

in

the

discovery

process.

(Id.

¶

2).

According to Plaintiff, her counsel “was advised that Defendants
do not object to the granting of this [m]otion.”

(Id. ¶ 6).

Moreover,

litigation,

other

than

potentially

facing

renewed

Defendants point to no prejudice from dismissal at this time.
See Lang v. Manufacturers & Traders Trust Co., 274 F.R.D. 175,
181 (D.Md. 2011) (quoting O’Reilly v. R.W. Harmon & Sons, Inc.,
124 F.R.D. 639, 639 (W.D.Mo. 1989)) (“A Rule 41(a)(2) dismissal
‘is generally granted where the only prejudice the defendant
will suffer is that resulting from a subsequent lawsuit.’”);
Davis, 819 F.2d at 1274-75 (citations omitted) (“It is well
established that, for purposes of Rule 41(a)(2), prejudice to
the defendant does not result from the prospect of a second
lawsuit” or “the possibility that the plaintiff will gain a
tactical advantage over the defendant in future litigation.”).
Accordingly, dismissal is warranted and there is no need to
consider dismissal with prejudice.
11

Defendants have not sought

costs

or

without

expenses

in

prejudice,

this

but

case

Rule

as

41(d)

a

condition

automatically

to

dismissal

makes

such

payment a possibility whenever a new suit is filed.
Considering the foregoing factors, Plaintiff’s motion for
voluntary

dismissal

without

prejudice

will

be

granted.

Plaintiff is advised that Defendants may invoke the provisions
of Rule 41(d) if she refiles the case.
IV.

Conclusion
For

the

foregoing

reasons,

Plaintiff’s

reimbursement of expenses will be denied.

motion

for

Plaintiff’s motion

for voluntary dismissal will be granted and the case will be
dismissed without prejudice.

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

12