White v. Caterpillar, Inc.

Filing 60

ORDER granting #50 Motion for Protective Order and denying #53 Motion to Compel. The parties should read the order in its entirety for details. Signed by Magistrate Judge Robert B. Jones, Jr. on 9/3/2014. Copy sent to plaintiff via US Mail. (Grady, B.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No: 5:13-CV-684-F
ANTHONY E. WHITE,
Plaintiff,
v.
CATERPILLAR LOGISTICS INC.,
Defendant.

)
)
)
)
)
)
)
)
)

ORDER

This matter comes before the court on Defendant's motion for protective order [DE-50],
Plaintiffs revised motion to compel discovery [DE-53], and Defendant's response in opposition
[DE-55]. For the reasons set forth below, Defendant's motion for protective order is granted and
Plaintiffs motion to compel discovery is denied.
I. BACKGROUND
On September 30, 2013, Plaintiff Anthony White ("Plaintiff') initiated this action against
Defendant Caterpillar Logistics Inc. ("Defendant") by filing a motion for leave to proceed in forma
pauperis and a proposed complaint alleging Title VII claims for employment discrimination based

on race and retaliatory termination. [DE-1-1] at 2-3. On October 7, 2013, the court granted
Plaintiffs motion and the clerk filed the complaint. [DE-3,-4]. On December 31,2013, the court
entered an order [DE-22] granting Plaintiffs motion to amend the complaint [DE-13] filed
November 25, 2013.
The parties each filed a separate proposed discovery plan on December 13, 2013 [DE-14,
-15], and Plaintiff filed an amended proposed discovery plan on December 16, 2013 [DE-16].
Plaintiff proposed a discovery deadline ofF ebruary 14, 2014, [DE-16] at 2, and Defendant proposed

a discovery deadline of April30, 2014, [DE-14] at 2. On April25, the court conducted a telephonic
scheduling conference to discuss the proposed discovery plans [DE-43], then issued a scheduling
order that same day specifying critical discovery and motion deadlines [DE-44]. Per the court's
order, all discovery was to be completed no later than July 31, 2014, and all potentially dispositive
motions were to be filed by September 2, 2014. Id. at 1.
On July 5, 2014, 1 Plaintiff served "Plaintiffs Request for Interrogatories and Production of
Documents from Defendants" ("Pl.'s Discovery Request") on the Defendant by mail. [DE-50, Ex.
A] at 9. Plaintiffs discovery request contained 16 interrogatories, some with as many as 19 subparts,
and 13 requests for production. Pl.'s Discovery Request at 1-6. Plaintiffs requests for production
generally asked for all documents supporting Defendant's interrogatory responses. !d.

II. DISCUSSION
Defendant seeks a protective order excusing Defendant from responding to Plaintiffs
interrogatories and requests for production. [DE-50] at 1. Specifically, Defendant argues that the
Plaintiffs discovery requests were untimely served and Defendant's responses would be due after
the end of the discovery period. [DE-51] at 2. In response, Plaintiff contends that Defendant has
known about the discovery request since January 2014, and that Defendant has delayed in responding
throughout Plaintiffs case. [DE-53] at 1. As such, Plaintiff asks the court to compel Defendant's
response to the discovery requests. Id.
The Federal Rules of Civil Procedure provide that a responding party has 30 days to provide
a written response after being served with a request for production or an interrogatory. Fed. R. Civ.

1

Plaintiffs Certificate of Service lists the date as July 3, 2014, but the postage receipt on
the envelope received by the Defendant shows the date mailed as July 5, 2014. Def.'s Mot., Ex.
A [DE-50-1] at 8-9.
2

P. 33(b)(2); 34(b)(2). Pursuant to Rule 6, when service is made by mail, "3 days are added after the
period would otherwise expire." Fed. R. Civ. P. 6(d). Local Civil Rule 26.1(b) provides that "[a]ll
discovery shall be served so as to allow the respondent sufficient time to answer prior to the time
when discovery is scheduled to be completed." Thus, while a discovery request might be filed before
the discovery deadline, it may be barred as untimely if it does not allow for a response before the
deadline and the court may properly grant a protective order excusing the receiving party's response.
See Homes & Land Affiliates, LLC v. Homes & Loans Magazine, LLC, No. 6:07 -CV -1051, 2008 WL

4186989, at *1-2 (M.D. Fla. Sept. 8, 2008) (denying defendant's motion to compel production of
documents and noting that the request was untimely because it did not allow time for a response
prior to the discovery deadline); see also Hartz and Co., Inc. v. Prod. Control Info. (PC!) Ltd., No.
93-2500, 1995 WL 678484, at *5 (4th Cir. Nov. 15, 1995) (per curiam) (unpublished) (affirming
protective order excusing defendants from responding to plaintiffs discovery requests "which
exceeded the scope of permissible discovery ... [and] were a month later than promised" where
there was no injury or prejudice to the plaintiffs "discovery activities"); Jefferson v. Biogen !DEC
Inc., No. 5:11-CV-00237-F, 2012 WL 1150415, at* 1-2 (E.D.N.C. Apr. 5, 2012) (granting protective

order excusing defendant from responding to plaintiffs requests for admissions and quashing
subpoenas where both were served after the discovery deadline).
Here, the court's scheduling order set the discovery deadline for July 31, 2014. [DE-44] at
1. While Plaintiff may have issued the discovery request within the discovery period, it is untimely
since any response would necessarily fall outside the discovery period. See Local Civil Rule 26.1 (b);
Homes, 2008 WL 4186989, at *1-2. Although White asserts Defendant has been aware of those

requests since January 2014, he fails to explain or support this assertion and provides no reason for
3

the delay in serving the requests where the court provided ample time for discovery. Additionally,
it appears that most of the information Plaintiff seeks in his discovery request has already been
provided through initial disclosures or will be provided during preparation of the joint pretrial order.
Accordingly, there will be little prejudice to Plaintiffs "discovery activities." Hartz, 1995 WL
678484, at* 5. Even though Plaintiff is prose and is entitled to some leniency, "this does not exempt
Plaintifffrom adherence to the Court's orders." Huggins v. NC. Dep't. OfAdmin., No. 5:10-CV00414-FL, 2012 WL 600966, at *5 (E.D.N.C. Jan. 30, 2012). The Supreme Court has stated, '"[W]e
have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to
excuse mistakes by those who proceed without counsel."' Khan v. Chevrolet, No. 5:10-CV-33-F,
2010 WL 5477268, at *4 (E.D.N.C. Dec. 30, 2010) (quotingMcNeilv. United States, 508 U.S. 106,
113 (1993)). Accordingly, Plaintiffs motion to compel is denied, and Defendant's motion for
protective order is granted.

III. CONCLUSION
For the foregoing reasons, Defendant's Motion for Protective Order [DE-50] is GRANTED,
and Plaintiffs Revised Motion to Compel [DE-53] is DENIED.
So ordered, the .3 day of September, 2014.

L/:::::H

United States Magistrate Judge

4