Channing v. Equifax, Inc.
Filing
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ORDER denying 25 Motion to Compel; 26 Motion to Compel; and, 27 Motion to Compel - Defendant's request for reasonable expenses, including attorneys' fees, is GRANTED. Defendant is ORDERED is file with the Court no later than 12:00 p.m. on April 20, 2012, evidence of the reasonable expenses it incurred in responding to Plaintiff's motions. Plaintiff may respond to Defendant's submission no later than 12:00 p.m. on May 4, 2012. An order awarding reasonable expenses to Defendant will thereafter issue. Signed by Magistrate Judge William A. Webb on 04/11/2012. (Baker, C.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:11-CV-00293-FL
VICTOR CHANNING,
Plaintiff,
v.
EQUIFAX, INC.,
Defendant.
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ORDER
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This cause comes before the Court upon three motions characterized as motions to compel
by pro se Plaintiff. (DE-25, DE-26, DE-27). Defendant opposes the motions, which are ripe for
adjudication. (DE-30). Pursuant to 28 U.S.C. § 636, the motions have been referred to the
undersigned. For the reasons stated herein, Plaintiff’s motions are denied and Defendant’s
request for reasonable expenses is granted.
BACKGROUND
Plaintiff filed his complaint against Defendant in Superior Court, Wake County, on May
11, 2011. (DE-1-2). In his complaint, Plaintiff alleges, inter alia, that Defendant failed to use
reasonable care and committed fraud with regard to his consumer credit report, thereby violating
the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681 et seq. Defendant, a consumer
reporting agency, removed the case to this Court on June 10, 2011. (DE-1, p.2).
On October 26, 2011, the Court granted Defendant’s motion requiring Plaintiff to cease his
improper communications with employees of Defendant and denied Plaintiff’s motion for
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sanctions. (DE-18). The Court observed that Plaintiff’s “allegations in support of his motion for
sanctions . . . consist of attacks against defendant and its business practices as well as attacks
against counsel that do not appear supported by the record” and that “[t]he majority of plaintiff’s
Rule 11 motion appears to be an attempt to litigate the merits of this case, specifically the manner
and means of what plaintiff contends are defendant’s unreasonable business practices in credit
reporting.” (DE-18, p.4). While the Court declined to award requested attorneys’ fees to
Defendant, the Court “put [Plaintiff] on notice that his pro se status will not protect him from
future Rule 11 sanctions if such are warranted.” (DE-18, p.6).
In accordance with the case management order entered by the Court, discovery in this case
concluded on February 17, 2012. (DE-10). Defendant moved for summary judgment on March
16, 2012. (DE-23). That motion is currently pending. Plaintiff filed his first motion to compel
on March 16, 2012 (DE-25) and the second and third motions to compel on March 19, 2012.
(DE-26, DE-27). Plaintiff also filed a memorandum in support of his motions. (DE-28).
DISCUSSION
Plaintiff’s first and second motions (DE-25, DE-26) are strikingly similar. The bulk of
these two motions are devoted to general complaints about Defendant, its business practices, and
its counsel, whom Plaintiff accuses of openly defrauding the Court. The third motion (DE-27)
seeks to compel the appearance of seven witnesses at trial.
To the extent that Plaintiff’s motions, like his previous unsuccessful motion for sanctions,
consist of baseless “attacks against counsel that do not appear supported by the record” and
“attempt to litigate the merits of this case,” they will not be considered or addressed. Plaintiff also
contends that the Court’s October 26, 2011 order denying his motion for sanctions is “overly broad
and bias[ed] against the pursuit of equity and fairness,” DE-26, p.2, and he asks the Court to nullify
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the order. This request is denied.
The undersigned notes that none of the three motions to compel contains a certification that
Plaintiff has conferred with Defendant as required by Fed. R. Civ. P. 37(a)(1). “A motion to
compel must include a certification that the movant has in good faith conferred or attempted to
confer with the person or party failing to make disclosure or discovery in an effort to obtain it
without court action.” McMillian v. North Carolina Cent. Prison, No. 5:10-CT-3037-FL, 2012
U.S. Dist. LEXIS 942, at *10 (E.D.N.C. Jan. 4, 2012) (citing Fed. R. Civ. P. 37(a)(1)); accord
Local Civil Rule 7.1(c). Plaintiff’s motions may be denied on this ground alone.
For its part, Defendant asks the Court to award costs and attorneys’ fees it has incurred in
responding to what is contends are utterly frivolous motions. (DE-30).
Motions to Compel (DE-25, DE-26)
Plaintiff complains that Defendant have refused to participate in scheduled depositions.
Plaintiff claims that he “scheduled a deposition hearing five different times and each time the
Defendant’s Attorney Love objected not only to the date proposed for the deposition hearing, but
having a hearing altogether.” (DE-25, p.3; DE-26, p.4).
Sanctions may be imposed on a party who fails to appear for a deposition if that party has
been served with “proper notice.”
Fed. R. Civ. P. 37(d)(1)(A)(i).
Proper notice requires
“reasonable written notice . . . . stat[ing] the time and place of the deposition” and the method for
recording testimony. Fed. R. Civ. P. 30(b)(1), (3)(A). Plaintiff does not support his assertions
regarding the scheduled depositions with an affidavit, copies of deposition notices, or any other
evidence demonstrating that he properly served Defendant with deposition notices. In fact,
Defendant avers that it has never received a written deposition notice from Plaintiff for any of the
individuals identified in Plaintiff’s motions, or for anyone else. (DE-30-1).
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Similarly, Plaintiff seeks production of “frozen scans of the Plaintiff’s consumer credit
reports for the last five years, prior to June 2011.” (DE-25, p.1, DE-26, p.2). However, Plaintiff
does not allege, nor does he provide evidence, that he previously requested “frozen scans” from
Defendant. Defendant indicates that Plaintiff has “never served [Defendant] with any formal
discovery requests—no requests for admissions, no interrogatories, no requests for document
production.” (DE-30, p.13; DE-30-1, p.1). Nor is it clear what relevance, if any, such “frozen
scans” might have in the instant case.
In accordance with the case management order entered by the Court, discovery in this case
concluded on February 17, 2012.
(DE-10).
Inasmuch as Plaintiff failed to seek timely
discovery, he will not be allowed now, under the guise of a motion to compel, to attempt to reopen
discovery in order to depose witnesses or discover documents he neglected to pursue during the
nearly eight-month discovery period.
The motions to compel (DE-25, DE-26) are accordingly DENIED.
Third Motion to Compel (DE-27)
By his third motion to compel, Plaintiff seeks an order compelling certain witnesses to
appear at trial. The production of witnesses at trial is not a proper subject for a motion to compel
discovery, however. To the extent Plaintiff’s motion may be construed as a request for trial
subpoenas, trial of this case is scheduled for the Court’s July 16, 2012 term. Plaintiff’s request is
therefore premature. Plaintiff’s motion to compel (DE-27) is DENIED.
Attorneys’ Fees and Costs
Defendant seeks the reasonable expenses it incurred in opposing Plaintiff’s motions,
including attorneys’ fees, in accordance with Fed. R. Civ. P. 37(a)(5)(B). (DE-30, p.18). This
Court has already warned Plaintiff that his pro se status would not protect him from future
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sanctions if such were warranted. The undersigned finds that an award of reasonable expenses in
this case is appropriate and necessary to deter Plaintiff from further baseless filings. Defendant
should therefore submit, no later than 12:00 p.m. on April 20, 2012, evidence of the reasonable
expenses it incurred in responding to Plaintiff’s motions, including attorneys’ fees. To support an
award of attorneys’ fees, Defendant should also submit evidence regarding the factors this Court
must consider, including the prevailing market rates for similar legal work in the relevant
community. See, e.g., Robinson v. Equifax Info. Servs., LLC, 560 F. 3d 235, 243 (4th Cir. 2009).
Plaintiff may respond to Defendant’s submission no later than 12:00 p.m. on May 4, 2012, and an
order awarding reasonable expenses to Defendant will follow thereafter.
CONCLUSION
Plaintiff’s motions to compel (DE-25, DE-26, DE-27) are DENIED. Defendant’s request
for reasonable expenses, including attorneys’ fees, is GRANTED. Defendant is ORDERED is
file with the Court no later than 12:00 p.m. on April 20, 2012, evidence of the reasonable expenses
it incurred in responding to Plaintiff’s motions. Plaintiff may respond to Defendant’s submission
no later than 12:00 p.m. on May 4, 2012. An order awarding reasonable expenses to Defendant
will thereafter issue.
DONE AND ORDERED in Chambers at Raleigh, North Carolina this 11th day of April,
2012.
_______________________________
WILLIAM A. WEBB
UNITED STATES MAGISTRATE JUDGE
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