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
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