Wilson v. ELRAC, INC. et al

Filing 36

ORDER denying without prejudice the 30 Motion to Compel; granting 32 Motion to Compel. Counsel is reminded to read the order in its entirety for detailed information. Signed by US Magistrate Judge William A. Webb on 5/20/2013. (Edwards, S.)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:12-CV-00660-F
WANDA WILSON,
Plaintiff,
v.
ELRAC, INC., ELRAC, LLC, THE
GOODYEAR TIRE & RUBBER
COMPANY d/b/a JUST TIRES,
Defendants.
_______________________________________

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ORDER

This cause comes before the Court upon a motion to compel (DE-30) by Defendant
Goodyear Tire & Rubber Company d/b/a Just Tires (“Just Tires”) and a motion to compel (DE32) by Defendant ELRAC, LLC (“ELRAC”) (collectively, “Defendants”).

Plaintiff has

responded (DE-34, DE-35) and, accordingly, the motions to compel are ripe for adjudication. In
accordance with 28 U.S.C. § 636(b)(1), the motions to compel are referred to the undersigned.
For the reasons stated herein, Just Tires’ motion to compel (DE-30) is denied without prejudice.
ELRAC’s motion to compel (DE-32) is granted.
A. Just Tires’ Motion to Compel, DE-30
Just Tires served its first set of interrogatories and requests for production of documents
on Plaintiff on January 11, 2013. Ex. A, DE-30-1. However, Plaintiff failed to provide any
response to the discovery requests. On March 15, 2013, Just Tires sent Plaintiff a letter inquiring
about the failure to respond. Ex. B, DE-30-2. Further correspondence between the parties
indicates that, as of April 16, 2013, Plaintiff had not yet responded to Just Tires’ discovery
requests. Ex. C, DE-30-3. Just Tires requests the Court enter an order compelling Plaintiff to

respond to the discovery requests within fourteen days and “order such sanctions as [the Court]
deems just and proper.” Def.’s Mem. Supp. Mot. Compel 4, DE-31.
In response, Plaintiff states that her medical condition has impaired her ability to respond,
but that, as of May 14, 2013 (the date of her response), she has served responses to Just Tires’
discovery requests. She requests “that the Court enter an Order requiring complete and full
responses in 21 days and impose sanctions if [she] fails to comply.” Pl.’s Resp. 2, DE-34.
While not expressly stated, implicit in Just Tires’ motion to compel is also a request to
amend the scheduling order to reopen discovery. Discovery in this case concluded on March 30,
2013. Scheduling Order, DE-23. Just Tires did not inquire about Plaintiff’s failure to respond to
discovery until March 15, 2013, just two weeks before discovery closed, and did not file its
motion to compel discovery until April 30, 2013, four weeks after the close of discovery. A
scheduling order may be modified “only for good cause and with the judge’s consent.” Fed. R.
Civ. P. 16(b). In its motion, Just Tires does not address the delay in seeking an order compelling
discovery and ignores the issue of good cause altogether.

See Scheduling Order, DE-23

(cautioning counsel “not to be dilatory in pursuing discovery” as “[m]otions for extensions of
[the March 30, 2013 discovery completion deadline] are not favored if they would require a
continuance of the trial”). Dispositive motions are due in this case by June 15, 2013, and trial is
scheduled for November 4, 2013.
Because Just Tires fails to offer any explanation of its delay in seeking to compel
discovery, and because it appears that Plaintiff has now responded to the discovery requests, the
motion to compel (DE-30) is DENIED WITHOUT PREJUDICE. If Just Tires chooses to renew
its motion, it should inform the Court as to the additional time needed to complete discovery in
this case and file an appropriate motion to amend the scheduling order.

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B. ELRAC’s Motion to Compel, DE-32
The motion to compel by ELRAC presents a somewhat different case. ELRAC served its
first set of interrogatories and requests for production of documents on Plaintiff on December 12,
2012. Exs. 1-2, DE-32-1, DE-32-2. Plaintiff responded to the discovery via e-mail on January
28, 2013. Ex. 3, DE-32-3. Counsel for ELRAC contacted Plaintiff on January 29, 2013 about
the e-mailed interrogatory responses, noting that the responses were only “a redlined version and
unsigned” and that he “assume[d] the final version [was] in the mail.” Ex. 5, DE-32-5. On
March 14, 2013, counsel for ELRAC sent a letter to opposing counsel outlining the deficiencies
in Plaintiff’s discovery responses and noting that, as of that date, Plaintiff had not yet provided
“any final, signed discovery responses, any additional documents that the responses stated were
going to be sent, any available dates to depose Ms. Wilson, or any available deposition dates or
materials for any experts.” Ex. 6, DE-32-6. Plaintiff appeared for deposition on April 8, 2013.
ELRAC states that, although Plaintiff provided additional responsive documents on
March 26, 2013 and April 8, 2013, Plaintiff has not yet provided signed responses to its
discovery requests, and has not yet produced the documents requested by ELRAC’s Requests for
Production Nos. 6-8, 10, 15, 16, 21, 30, 37, and 39. ELRAC now seeks an order compelling
complete, signed responses to the interrogatories and production of the requested documents
within fourteen days, without objection.
In response, Plaintiff again cites her medical condition as a contributing factor in the
delay of her discovery responses. Plaintiff also notes that the documents sought by ELRAC in
the above-listed Requests for Production are not in her personal possession, and that some of the
requested documents do not exist.

For example, Plaintiff reports that she does not have

“representative photographs of herself each year for the last ten years” as requested by ELRAC

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in its Request for Production No. 39, and that “Sprint has indicated telephone records from seven
years ago may no longer exist” as sought by ELRAC’s Request for Production No. 6. Pl.’s Resp.
¶ 6, DE-35. Plaintiff notes she “has recently signed additional releases to expedite the delivery
of the missing documents” id. at ¶ 3, and “will provide a notarized verification of her responses.”
Id. at ¶ 5. She requests the Court enter an order requiring full and complete responses within
twenty-one days “and impose sanctions if [she] fails to comply.”
Like Just Tires, ELRAC does not explain why it waited until four weeks after discovery
closed in this case to seek an order compelling discovery. Nevertheless, the evidence before the
Court tends to show that ELRAC has been considerably more diligent in pursuing discovery than
Just Tires, and that, unlike Plaintiff’s complete failure to respond to Just Tires’ discovery
requests, Plaintiff has provided discovery to ELRAC, however incomplete.

Moreover, as

Plaintiff provided additional discovery responses on March 26th and April 8th, counsel for
ELRAC had reasonable grounds to believe that a motion to compel would prove unnecessary.
Plaintiff does not dispute the merits of ELRAC’s motion to compel, other than to note that two of
the requested documents do not exist, and to request additional time to provide her full and
complete responses. However, Plaintiff has already had more than adequate time to fulfill her
discovery obligations, and given the dispositive motions deadline of June 15, 2013, twenty-one
additional days is an unreasonable amount of time to complete the discovery that was due on
March 30, 2013. ELRAC’s motion to compel (DE-32) is therefore GRANTED.
Plaintiff has ten (10) days from entry of this order to provide ELRAC with full and
complete, signed and verified responses to ELRAC’s first set of interrogatories and first set of
requests for production, without objection, with the exception of Request for Production Nos. 6
and 39.

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Failure by Plaintiff to provide ELRAC with full and complete, signed and verified
responses to ELRAC’s first set of interrogatories and first set of requests for production within
ten days from entry of this order will result, upon motion by ELRAC, in the imposition of
sanctions pursuant to Rule 37 of the Federal Rules of Civil Procedure.
DONE AND ORDERED in Chambers at Raleigh, North Carolina on Monday, May 20,
2013.
_______________________________________
WILLIAM A. WEBB
UNITED STATES MAGISTRATE JUDGE

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