Sirsi Corporation v. Craven-Pamlico-Carteret Regional Library System

Filing 24

Memorandum in Support re 23 MOTION to Compel Responses to its First Set of Requests for Production of Documents filed by Sirsi Corporation. (Attachments: # 1 Exhibit A- Email & SirsiDynix's First Set of Requests for Production of Documents, # 2 Exhibit B- Letter dated October 13, 2011, # 3 Exhibit C- Thompson v. NAVISTAR) (Numbers, Robert)

EXHIBIT C

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Only the Westlaw citation is currently available.
United States District Court, E.D. North Carolina,
Western Division.
Valerie THOMPSON, Plaintiff,
v.
NAVISTAR, INC., Allen Freight Co., First Transit–Wolfline, and Paschall Truck Lines, Inc., Defendants.
No. 5:10–CV–127–FL.
June 6, 2011.
Valerie Thompson, Raleigh, NC, pro se.
Kelli Goss Hopkins, Stephen D. Martin, Nelson
Mullins Riley & Scarborough, LLP, Raleigh, NC,
for Defendants.
ORDER
LOUISE W. FLANAGAN, Chief Judge.
*1 This matter is before the court on motion to
compel plaintiff to respond to discovery requests
(DE # 41) by defendant Navistar, Inc.
FN1
(“defendant”).
No response to defendant's motion was filed. In this posture, the issues raised are
ripe for review. For the reasons that follow, defendant's motion is GRANTED.
FN1. By order dated October 12, 2010, defendants Allen Freight Co. and Paschall
Truck Lines, Inc. were dismissed from this
case. Similarly, defendant First Transit–Wolfline was dismissed April 8, 2011.
Navistar, Inc. is the only remaining defendant in this action.
STATEMENT OF THE CASE
Pro se plaintiff filed her complaint on April 1,
2010, wherein she asserted a negligence claim
against defendant arising out of an alleged equipment malfunction that caused injury to plaintiff.
Defendant's motion to compel reveals that the dis-

covery process has been plagued with difficulty due
to plaintiff's failure to timely respond, or in some
instances respond at all, to defendant's discovery
requests.
On December 3, 2010, the court entered its
case management order. Pursuant to the case schedule set forth therein, and pursuant to Federal Rule
of Civil Procedure 26(a)(1), the parties were to
serve their initial disclosures by December 13,
2011. The parties were also ordered to respond to
discovery requests within thirty (30) days. Pursuant
to the case management order, the discovery period
is to close July 1, 2011.
Defendant timely served its initial disclosures
on December 13, 2010. Plaintiff served an incomplete initial disclosure one week late on December
20, 2010. In order to obtain plaintiff's complete initial disclosures, defendant found was forced to submit multiple requests to plaintiff, who submitted
two supplements before her initial disclosure was
finally made complete on January 18, 2011, thirtysix (36) days after the deadline.
On February 25, 2011, defendant served
plaintiff with its First Interrogatories and Requests
for Production of Documents (“discovery requests”) via Untied States Mail at plaintiff's address
of record, located in North Carolina. Plaintiff's
deadline for response was March 30, 2011, which
passed without response. Defendant notified
plaintiff by letter of its willingness to accept
plaintiff's responses by April 15, 2011. Plaintiff notified defense counsel on April 11, 2011, that
plaintiff had moved to Texas and had not received
FN2
the discovery requests.
Defendant agreed to
grant plaintiff an additional ten days, up to and including April 21, 2011, to respond to defendant's
discovery requests. Plaintiff again failed to respond,
causing defendant to grant yet another extension
which also passed without response. On April 25,
2011, plaintiff informed defense counsel that
plaintiff was seeking counsel, and defendant agreed

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to extend the deadline for a fourth time, up to and
including May 6, 2011. Again, the deadline passed
without response from plaintiff. Counsel entered
notice of appearance on behalf of plaintiff on May
20, 2011, but has filed no response to defendant's
motion to compel.
FN2. Previously, plaintiff relocated within
North Carolina but failed to provide a new
address to the court or defense counsel, in
violation of Local Civil Rule 83.3, under
which parties have a responsibility to
promptly notify the court of a change of
address. Plaintiff was warned in the court's
order dated October 7, 2010, that failure to
update her address in accordance with the
Local Civil Rules could result in dismissal
of the action.
DISCUSSION
A. Defendant's Discovery Requests
Rule 37(a)(3)(B) allows the filing of a motion
to compel where a party fails to answer interrogatories or fails to respond to requests for production
of documents. Fed.R.Civ.P. 37(a)(3)(B)(iii), (iv);
see also McMillan v. Carey, No. 7:09–CV–208–F,
2010 U.S. Dist. LEXIS 134636, at *2 (E.D.N.C.
Dec. 17, 2010) (“An order compelling discovery is
appropriate where a party fails to answer an interrogatory or to respond to a discovery request and
the movant certifies that he made a good faith attempt to resolve the matter without the court action.”).
*2 Here, plaintiff has wholly failed to respond
or otherwise object to defendant's discovery requests, despite defendant's attempts to amicably resolve the dispute by granting four extensions that,
taken together, permitted plaintiff a total of seventy
(70) days within which to respond. Indeed, defendant certifies that it has attempted to confer with
plaintiff in good faith in an effort to obtain responses to the discovery requests without court action.
Accordingly, defendant's motion to compel is

GRANTED. Plaintiff shall provide defendant with
complete responses to defendant's discovery requests within seven days of entry of this order. Because plaintiff has not provided the court with any
justification for her failure to respond, any objections that plaintiff may have had to the discovery
requests are deemed waived. See Fed.R.Civ.P.
33(b)(4) (stating that “any ground not stated in a
timely objection is waived unless the court, for
good cause, excuses the failure); see also Drexel
Heritage Furnishings, Inc. v. Furniture, USA, Inc.,
200 F.R.D. 255, 258 (M.D.N.C.2001) (failure to
provide specific objections to requests for production of documents under Rule 34 waives any objection).
B. Expenses
Rule 37(a)(5)(A) provides for the award of expenses where a motion to compel is granted, absent
certain specified circumstances. The rule states in
relevant part:
If the motion is granted—or if the disclosure or
requested discovery is provided after the motion
was filed—the court must, after giving an opportunity to be heard, require the party or deponent
whose conduct necessitated the motion, the party
or attorney advising the conduct, or both to pay
the movant's reasonable expenses incurred in
making the motion.
Fed.R.Civ.P. 37(a)(5)(A). Courts have held that
an award of reasonable expenses incurred is appropriate where the moving party has acted in good
faith, attempted to resolve the matter without court
intervention, and the non-moving party has failed to
comply with its obligations under the Federal Rules
of Civil Procedure. See, e.g., Gardner v. AMF
Bowling Ctrs., Inc., 271 F.Supp.2d 732, 733–34
(D.Md.2003) (finding that defendant was entitled to
discovery sanction and attorney's fees where
plaintiff failed to respond to discovery requests by
due date, defendant advised plaintiff's counsel in
writing that responses were past due, and plaintiff
did not respond to defendant's letters or to motion
for sanctions).

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

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Here, defendant afforded plaintiff four extensions of time to serve her responses to defendant's
discovery requests. Plaintiff has failed entirely to
respond to the discovery requests or to defendant's
motion to compel. Accordingly, the reasonable expenses incurred by defendant in making the instant
motion to compel, including attorney's fees, are
compensable, and defendant's request for these expenses is GRANTED.

SO ORDERED.
E.D.N.C.,2011.
Thompson v. Navistar, Inc.
Slip Copy, 2011 WL 2198848 (E.D.N.C.)
END OF DOCUMENT

Defendant shall file an affidavit setting out
such expenses, including attorney's fees, within ten
days of entry of this order. Plaintiff shall file any
response within five days after service of the affidavit. The court will thereafter enter an order setting the amount due.
C. Modification of Scheduling Order
*3 Finally, defendant requests that the court
modify the scheduling order's May 16, 2011, deadline for service of supplementations of disclosures
pursuant to Rule 26(e). Defendant requests that the
May 16, 2011, deadline be set aside as to defendant
only, and that defendant be given ten days from the
time of service of plaintiff's response to defendant's
discovery requests within which to serve defendant's supplementations of disclosures.
Rule 16(b)(4) provides that a scheduling order
may be modified only for good cause and with the
judge's consent. For good cause shown, defendant's
request to modify the scheduling order is GRANTED.
CONCLUSION
For the foregoing reasons, defendant's motion
to compel (DE # 41) is GRANTED. Plaintiff is
ORDERED to provide defendant with complete responses to defendant's discovery requests within
seven days of entry of this order. Defendant is ALLOWED ten days past the service of plaintiffs responses to file supplementations of disclosures pursuant to Rule 26(e). Plaintiff is ORDERED to pay
the reasonable expenses, including attorney's fees,
incurred by defendant in the preparation of the instant motion.

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