Gilreath v. Cumberland County Board of Education et al

Filing 33

ORDER denying 27 Motion to Compel, denying 30 Motion to Withdraw as Attorney and granting 31 Motion for Extension of Time to Retain New Counsel. Counsel should read order in its entirety for critical deadlines and information. Signed by Magistrate Judge William A. Webb on 3/6/2013. (Marsh, K)

THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:11-CV-00627-BR
JOSEPH GILREATH,

)
)
Plaintiff,
)
)
v.
)
)
CUMBERLAND COUNTY
)
BOARD OF EDUCATION,
)
)
Defendant.
)
_________________________________ )

ORDER

This cause comes before the Court upon Defendant’s motion to compel initial
disclosures (DE-27). Also before the Court is a motion to withdraw (DE-30) filed by
Plaintiff’s attorney, Larry J. McGlothlin, and Plaintiff’s motion for extension of time to
retain new counsel (DE-31). Pursuant to 28 U.S.C. § 636(b)(1), these motions have been
referred to the undersigned. For the reasons stated herein, the motion to withdraw is
DENIED WITHOUT PREJUDICE, the motion for extension of time is GRANTED, and
Defendant’s motion to compel is DENIED WITHOUT PREJUDICE.
Under the Court’s scheduling order in this case, Plaintiff’s initial disclosures
required by Rule 26(a) of the Federal Rules of Civil Procedure, including computation of
damages, were due on or before October 12, 2012. (DE-22, DE-21). Reports from
Plaintiff’s experts were due December 28, 2012. Plaintiff has not yet served Defendant
with his initial disclosures or expert reports, despite Defendant’s good faith efforts to avoid
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court intervention. Defendant requests an award of the expenses incurred in bringing this
motion, and contends Plaintiff has now waived his right to introduce any expert reports or
testimony. Plaintiff did not respond to the motion to compel.
In the motions to withdraw and for extension of time, Mr. McGlothlin explains that
Plaintiff paid him a preliminary retainer in September 2011 with the understanding and
expectation that further funds would be paid over the course of representation. The
instant action was filed September 30, 2011.

On October 17, 2012, Plaintiff was

terminated from his position as a middle school teacher in Cumberland County. Mr.
McGlothlin is representing Plaintiff in state court on an appeal of his dismissal from the
teaching position. Plaintiff has informed Mr. McGlothlin that he cannot afford to pay the
remainder of the fee for the federal lawsuit or the appeal in state court. Mr. McGlothlin
continues to represent Plaintiff in state court with the hope of eventually recovering a fee,
but states that, as a solo practitioner, he cannot afford to fund the costs of the federal
lawsuit to its conclusion without being paid. Accordingly, Mr. McGlothlin requests that
he be allowed to withdraw, and that this action be stayed for a period of thirty to sixty days
to allow Plaintiff time to obtain substitute counsel. Plaintiff is aware of the motion to
withdraw and does not oppose it.
Plaintiff’s financial difficulties aside, Mr. McGlothlin does not explain why he
failed to serve the initial disclosures due on October 12, 2012—before Plaintiff lost his
job—or why he allowed the response time for Defendant’s motion to compel to lapse
before filing his motion to withdraw. The undersigned is moreover reluctant to allow Mr.
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McGlothlin to withdraw before substitute counsel can be secured.

The motion to

withdraw (DE-30) is therefore DENIED WITHOUT PREJUDICE at this time. The
motion for extension of time to retain new counsel (DE-31) is GRANTED. Plaintiff has
until April 8, 2013 to retain new counsel. Mr. McGlothlin may renew his motion to
withdraw once Plaintiff obtains substitute counsel, or on April 8, 2013, whichever occurs
first. If Plaintiff does not obtain substitute counsel by April 8, 2013, the motion to
withdraw will nevertheless be granted and Plaintiff will be deemed pro se in this action.
Defendant’s motion to compel (DE-27) is DENIED WITHOUT PREJUDICE at this time.
Defendant may renew the motion to compel on April 8, 2013, if Plaintiff has not served his
initial disclosures and expert reports by that time.

Plaintiff is CAUTIONED that,

irrespective of his potential pro se status, continued failure to abide by the Federal Rules of
Civil Procedure or orders of this Court will subject him to sanctions, up to and including
dismissal of this action. See Fed. R. Civ. P. 37(b) (providing sanctions for party’s failure
to comply with a court order, including discovery orders); Ballard v. Carlson, 882 F.2d 93,
96 (4th Cir. 1989) (noting that even pro se litigants are “subject to the time requirements
and respect for court orders without which effective judicial administration would be
impossible”).
DONE AND ORDERED in Chambers in Raleigh, North Carolina on Wednesday,
March 6, 2013.
____________________________________
WILLIAM A. WEBB
UNITED STATES MAGISTRATE JUDGE
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