Buckner v. United Parcel Service, Inc.

Filing 87

ORDER denying 73 Motion to Compel. Signed by Magistrate Judge David W. Daniel on 4/4/2012. (Marsh, K)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

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No. 5:09-CV-00411-BR
CHRISTOPHER EUGENE BUCKNER,
Plaintiff,

v.
UNITED PARCEL SERVICE, INC.,

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Defendant.

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ORDER

This matter is before the Court on pro se Plaintiff s Motion to Compel [DE-73] and
Declaration in Response to Court Order Dated February 23,2012 [DE-75]. Defendant has responded
to Plaintiffs motion [DE-81],. and the matters are ripe for decision.
BACKGROUND
Plaintiff is an employee of Defendant, United Parcel Service, Inc. Plaintiff initially alleged
violations of the National Labor Relations Act, the North Carolina Wage and Hour Act, the Labor
Management Relations Act, the Fair Labor Standards Act ("FLSA"), and some federal and state
administrative code sections.

However, the Court subsequently dismissed several of Plaintiffs

claims, and only his overtime claim under the FLSA, 29 U.S.C. § 207, remains. [DE-28 & 36.]
On June 20,2011, Plaintifffiled his first motion to compel [DE-49], which sought responses
to a number of Rule 34 document requests served on Defendant on March 19, 2011. The Court
denied the first motion to compel without prejudice for Plaintiff to refile after Defendant made its
document production and the parties attempted in good faith to resolve the remaining disputed
issues. [DE-51.] On August 5,2011, Plaintiff filed his second motion to compel [DE-55], which

sought responses to the same Rule 34 document requests that were the subject of the first motion to
compel, and on September 15,2011, Defendant filed a motion to compel and for an extension ofthe
discovery deadline [DE-59]. On December 22,2011, the Court granted in part and denied in part
Plaintiffs motion, granted Defendant's motion, and extended the discovery deadline to January 30,
2012, "to allow the parties to effectuate the directives of [the] order." [DE-65.] On January 6,2012,
Plaintifffiled a motion for reconsideration of the Court's December 22, 2011 Order [DE-66], which
was subsequently denied [DE-69].
On January 13, 2012, Plaintiff served his first set of interrogatories, second request for
production ofdocuments, and first set ofrequests for admissions on Defendant. PI.'s Mot. ~ 1, Ex.l­
3 [DE-73 to 73-3]. On February 13,2012, Defendant served its responses, in which it asserted
various objections, including that Plaintiffs discovery requests were untimely. PI.'s Decl., Ex. 1,
3 & 6 [DE-74-l, 74-3 & 74-6]. After attempting to resolve the dispute with Defendant, Plaintiff
filed the instant motion to compel and also filed a Declaration in Response to Court Order Dated
February 23,2012, which appears to be a response to the Court's order denying Plaintiffs motion
for reconsideration.
DISCUSSION
I.

Plaintiff's Motion to Compel [DE-73].

Defendant contends that the Court should deny Plaintiffs motion because it was untimely.
Plaintiff served the discovery requests at issue on January 13, 2012. Under the March 2, 2011
Amended Scheduling Order, all discovery was to be completed by August 2,2011. [DE-46.] On
August 3, 2011, the Court, on Defendant's motion, extended the time to complete discovery to
September 16, 2011. [DE-54.] In the Court's December 22, 2011 Order on Plaintiffs second

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motion to compel and Defendant's motion to compel and for extension of time to complete
discovery, the Court extended the discovery deadline "to allow the parties to effectuate the directives
of [the] order." [DE-65.] The Court ordered the parties to respond to the discovery requests, in
conformity with the order, by January 6, 2012, and ordered that all discovery be completed by
January 30, 2012. Id. This was not a general extension ofthe discovery deadline and was explicitly
for the purpose of effectuating the directives of the order. However, even if it was reasonable to
interpret the extension as allowing new discovery, Plaintiffs discovery requests would still be
untimely, as they were not served "so as to allow the respondent sufficient time to answer prior to
the time when discovery is scheduled to be completed." Local Civil Rule 26.1 (b). While the Court
is cognizant ofPlaintiffs pro se status, he has been instructed previously to familiarize himselfwith
the Court's Local Rules. Dec. 22,2011 Order at n.l [DE-65]. Furthermore, Plaintiff has had ample
time to complete discovery, and the Court sees no reason why his January 13, 2012 discovery
requests could not have been timely served. Finally, the Court notes that dispositive motions have
now been filed by both parties, and this case is set for trial in two months. Accordingly, because
Plaintiffs discovery requests were untimely, his motion to compel is DENIED.

II.

Plaintiff's Declaration in Response to Court Order Dated February 23, 2012 [DE-75].
On February 23,2012, the Court entered an order denying Plaintiffs motion to reconsider

the Court's December 22, 2011 Order. [DE-65.] In Plaintiffs Declaration with respect to the
February 23,2012 Order, he presents what appears to be additional evidence in the form of various
payroll related reports that he would like the Court to consider. Plaintiff appears to believe that this
proves that Defendant maintains these reports in the ordinary course of business, but has failed to
produce them as requested by Plaintiff. Pl.'s Decl.
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4 [DE-75].

The Court found in its December 22, 2011 Order that Defendant had fully responded to
Plaintiff s request for his payroll history by producing Plaintiff s payroll records from November 4,
2006 through June 25, 2011. Dec. 22, 2011 Order at 4 [DE-65]. As the Court explained in its
February 23,2012 Order, Defendant need not create documents (i.e., recreate historical reports) that
it does not keep in the ordinary course of its business. Feb. 23, 2012 Order [DE-69]. It does not
necessarily follow that because a report was generated in the past, that it was maintained and can be
readily produced in discovery. Furthermore, the Court is satisfied that Defendant has received his
complete payroll history, albeit not necessarily in the format that he anticipated. That being said, in
its December 22,2011 Order, the Court concluded that because Plaintiffhad alleged that Defendant
made alterations to his electronic time record depriving him of the appropriate pay for overtime
worked, to the extent that Defendant maintained other reports not produced that contained Plaintiffs
payroll related information, such reports may be relevant to show discrepancies and should be
produced. Dec. 22, 2011 Order at 6-7.
It appears, based on Plaintiff s Declaration, that no additional reports were produced by

Defendant in response to the Court's Dec. 22, 2011 Order. PI's Decl.

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3. It would be reasonable

to conclude, based on Defendant's prior position that it does not maintain such reports in the
ordinary course of business, that Defendant did not produce any reports for that reason. However,
in an abundance of caution and in an attempt to clarify the issue for the pro se Plaintiff, Defendant
is ORDERED, within seven (7) days of the date ofthis order, (1) to produce any additional payroll
reports not previously produced for the relevant time frame that contain Plaintiff s payroll
information (excluding information of other employees or reports that relate only to Plaintiffs rate
of pay (Pl.'s Decl., Ex. 8-9), which the court has found to be irrelevant); or (2) to certify to Plaintiff
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that the requested reports are not maintained by Defendant in the ordinary course of business.

CONCLUSION
Plaintiffs motion to compel [DE-73] is DENIED, and Defendant shall comply with the
Court's directive herein with respect to Plaintiffs Declaration in Response to Court Order Dated
February 23, 2012 [DE-75].
This '-1 \-1....day of Apri12012.

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DAVID W. DANIEL \ United States Magistrate Judge

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