Chester v. Adams Auto Wash

Filing 61

ORDER adopting in part and denying in part 56 Memorandum and Recommendation - Signed by District Judge Louise Wood Flanagan on 02/03/2015. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:13-CV-75-FL

JACKIE LEE CHESTER,
Plaintiff,
v.
ADAMS AUTO WASH, INC.,
Defendant.

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ORDER

With benefit of a memorandum and recommendation from the magistrate judge, this matter
comes before the court upon various issues presented which include: 1) propriety of an award of
costs and expenses to plaintiff upon defendant’s failure to attend scheduling conference and hearing
before the magistrate judge; 2) necessity for any amended case schedule; and 3) address of issues
concerning representation of defendant.
BACKGROUND
The court has had occasion already in this case to comment upon defendant’s litigation
failings. See 8/14/14 Order. The court denied therein defendant’s unsupported motion for summary
judgment (DE 47), without prejudice. The court also referred plaintiff’s motion for miscellaneous
relief (DE 46) to a magistrate judge for hearing. Plaintiff complained of the failure of defendant to
comply with mandated obligation to make initial disclosures and to respond in discovery. The court
noted said motion sounded as one to compel, and for sanctions, and also an attempt to articulate a
set of discovery requests where plaintiff, proceeding pro se, interposed in the motion requests for
production of documents. The court read the motion also as one seeking more time to conduct

discovery in the case where that deadline expired May 30, 2014, because of difficulties encountered
in plaintiff’s attempts to address defendant in this regard.
In its motion for summary judgment filed August 12, 2014, defendant complained that
plaintiff has not contacted its counsel, participated in the preparation of any scheduling order, nor
attempted to conduct discovery, which statements directly contradicted matters of record in the case.
As stated by plaintiff repeatedly in his filings, plaintiff has been diligent in this regard.
Upon its denial of defendant’s motion for summary judgment, and allowance of plaintiff’s
motion for extension of the deadline for discovery, in order entered August 14, 2014, the court
postured the matter for hearing before the magistrate judge where it:
[H]olds in abeyance any ruling on request for sanctions, pending
hearing and Rule 16 conference before a magistrate judge, for the
purposes of 1) developing the truth as to the parties contradictory
representations concerning contact between plaintiff and defendant in
response to the court’s initial order; 2) the status of any Rule 26(a)(1)
initial disclosures which must be provided without any written
discovery request unless otherwise ordered; 3) and establishing a time
frame for certain pretrial activities, including discovery, the deadline
for filing dispositive motions, and any other pretrial deadlines deemed
necessary to be decided. The magistrate judge will enter appropriate
order on a new case schedule after conference with the parties, and
find such facts upon hearing as may be necessary in order to decide
the request for sanctions.
August 14, 2014, Order at p. 3.
The matter was set for hearing before Magistrate Judge Swank at Greenville on September
18, 2014. Defendant requested continuance in light of conflict with counsel’s hearing before the
North Carolina State Bar, which request the magistrate judge allowed. Hearing was reset upon
defendant’s request for October 28, 2014. On that date, neither counsel nor a party representative

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showed on behalf of defendant for hearing, attended by plaintiff, a long distance truck driver, at
considerable personal expense and effort.
The magistrate judge received plaintiff’s sworn testimony, detailing many efforts to engage
in discovery planning, repeatedly thwarted by defendant. Plaintiff’s attempts to comply with this
court’s scheduling order are reported, as well as his efforts to obtain discovery. The magistrate judge
also noted adverse ruling against counsel for defendant November 13, 2014, by the North Carolina
State Bar, requiring him to tender his law license by December 15, 2014, on which date his practice
was ordered to be wound down.
In response to the memorandum and recommendation of the magistrate judge, defendant’s
counsel filed December 15, 2014, (but failed to serve) an omnibus notice in this case (and others)
asserting continuation of his license to practice in light of a stay of the suspension order, entered by
the North Carolina Court of Appeals December 12, 2014, now dissolved upon adverse ruling.
Defendant entirely failed to address the merits of the magistrate judge’s submission, nor has its
former counsel filed any notice of withdrawal or any new counsel for the corporate defendant arisen.
COURT’S DISCUSSION
In this ungainly posture the court takes up the issues presented which include award of fees
and expenses to plaintiff upon defendant’s failure to attend scheduling conference before the
magistrate judge, necessity for any amended case schedule, and issues concerning representation of
defendant where it is well-established that a corporation cannot proceed pro se.
The court accepts the magistrate judge’s factual findings including that plaintiff was credible
and reliable in his testimony. The court adopts them as its own. Defendant’s failures in discovery

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planning and responsiveness border on the egregious. Its lawyer untruthfully represented that status
of plaintiff’s efforts in this regard in filing with this court.
The court allows plaintiff his reasonable costs and expenses of or relating to the October 28,
2014, hearing before the magistrate judge. Plaintiff filed January 20, 2015, his statement in response
to court order detailing costs and expenses, to which defendant will be given opportunity to respond,1
pending final ruling.
Defendant is allowed 14 days to obtain new counsel who shall file notice of appearance.
Defendant is allowed a total of 28 days from this date within which to respond to plaintiff’s
statement of costs and expenses. Thereafter the court will enter such order as it deems appropriate
concerning that award. It will also consider necessity for any amendment to the case schedule in
effect. The clerk shall serve a copy of this order together with plaintiff’s response at DE 3 59 on
Kyeung-Guk Calvin Min, Registered Agent for Adams Auto Wash, Inc., 334 N. Spence Avenue,
Goldsboro, NC 27530
CONCLUSION
The court ADOPTS in part and DENIES in part the magistrate judge’s memorandum and
recommendation, as set forth above.
SO ORDERED, this the 3rd day of February, 2015.

_____________________________
LOUISE W. FLANAGAN
United States District Judge

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In light of issues presented, plaintiff reports he has not served this filing upon defendant and seeks the
court so to do. The court will in this instance direct the clerk to serve his response upon the corporate defendant.

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