Brown v. Winman et al

Filing 72

ORDER denying 48 Motion to Amend; denying as moot 49 Motion to Strike; denying 56 Motion to Compel; denying 69 Motion to Compel. Plaintiff is DIRECTED to file his response to defendants motion for summary judgment within twenty-one (21) days of the date of entry of this order. Signed by District Judge Terrence W. Boyle on 12/15/2016. Certified copy of order sent to pro se plaintiff via US Mail to Donald Brown 505 W 150th St., Apt. #1, New York, NY 10031. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:15-CV-59-BO
DONALD BROWN,
Plaintiff,
v.
GEORGE WINMAN, III
Defendant.

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ORDER

This matter is before the Court on plaintiff’s motion to amend [DE 48], motion to strike
[DE 49], June 8, 2016 motion to compel [DE 56], motion for an extension of time [DE 66], and
September 9, 2016 motion to compel [DE 69]. The motions have been fully briefed and are ripe
for ruling. For the reasons discussed below, plaintiff’s motions to amend, strike and compel are
denied, and plaintiff’s motion for an extension of time is granted in part and denied in part.
BACKGROUND
Plaintiff filed his original complaint in the Southern District of New York; the matter was
transferred to this Court by order entered February 5, 2015. [DE 3]. Plaintiff alleges that
defendant has taken possession of his land located in Beaufort County, North Carolina, and
blocked him from having access to it because of his race. Plaintiff alleges that the events
underlying the complaint began in 2008 and lasted until at least October 15, 2012.
Following transfer, defendant moved to dismiss the corrected complaint pursuant to Rule
12(b)(6). [DE 19]. Subsequent to defendant’s motion to dismiss, plaintiff moved to amend his
corrected complaint in order to withdraw his original claims and to assert claims pursuant to 42
U.S.C. § 1982 and for violation of the Thirteenth Amendment. [DE 25, 25-1]. The Court entered
an order on October 6, 2015 granting plaintiff leave to amend his complaint to assert a claim

pursuant to 42 U.S.C. § 1982, but denying as futile plaintiff’s motion for leave to assert a claim
for relief under the Thirteen Amendment. [DE 28]. Plaintiff thereafter filed his first amended
complaint on November 9, 2015. [DE 29]. On November 16, 2015, defendant filed an answer to
plaintiff’s amended complaint, denying the substantive allegations. [DE 31]. With leave of the
court, defendant filed an amended answer to plaintiff’s amended complaint on March 8, 2016, in
which defendant withdrew his abatement defense and set forth additional factual grounds in
support of his statute of limitations defense. [DE 47].
On April 20, 2016, plaintiff filed an additional motion to amend and a motion to strike
defendant’s expert witness. [DE 48, 49]. Plaintiff subsequently filed two motions to compel and
a motion requesting an extension of time. [DE 56, 66, 69].
DISCUSSION
Motion to Amend
Plaintiff seeks leave to amend his complaint for a third time in order to add a new claim
under the Fair Housing Act, 28 U.S.C. § 3601 et. seq. Leave to amend a pleading “shall be freely
given when justice so requires.” Fed. R. Civ. P. 15(a). Although leave to amend a complaint
should be freely given under Rule 15, this standard must be read in light of Rule 16 which states
that the “schedule may be modified only for good cause and with the judge’s consent.” Fed. R.
Civ. P. 16(b)(4). Therefore, “after the deadlines provided by a scheduling order have passed, the
good cause standard must be satisfied to justify leave to amend the pleadings.” Nourison Rug
Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir. 2008). The “good cause” standard is nebulous
and largely in the discretion of the Court, but at a minimum requires “the party seeking relief [to]
show that the deadlines cannot reasonably be met despite the party’s diligence.” See 6A Charles

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Alan Wright, Arthur R. Miller, and Mary Kay Kane, Federal Practice and Procedure Civ.3d
§ 1522.2 (3d ed. 2010) (collecting cases).
The Court finds that good cause does not exist to allow plaintiff leave to amend his
complaint. According to the scheduling order entered December 30, 2015, plaintiff’s deadline to
amend his complaint was February 16, 2016. [DE 41]. Plaintiff claims he did not receive notice
of this deadline until March 2016. Even still, plaintiff did not move to amend until April 20,
2016. Additionally, notice was sent to plaintiff of the scheduling order by U.S. mail [DE 41] and,
even if he did not receive it, defendant was actively engaging in discovery requests throughout
this period and so plaintiff should have realized a scheduling order had been entered. Moreover,
even accepting plaintiff’s contention that he did not receive the scheduling order as true, the
exercise of minimal diligence would have permitted him to learn of entry of the scheduling order
and the requisite deadline to file an amended complaint. Plaintiff’s argument that good cause
exists to explain his delay of several months is not plausible. Finally, plaintiff’s proposed new
claim is from the same factual basis as his original claims and so it could have been brought in
any of his prior complaints. Plaintiff has not offered any explanation as to why this claim could
not have been included in any of the prior versions of his complaint. Therefore, because the
Court finds that plaintiff’s motion for leave to amend is both untimely and without merit, it will
be denied.
Motions to Compel
Plaintiff filed a motion to compel on June 8, 2016, contending that defendant failed to
provide sufficient responses to certain requests for production of documents and that defendant
failed to provide adequate responses to certain interrogatories. [DE 56]. Defendant, in reply,
demonstrated that plaintiff’s requests for production of documents were never actually served by

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plaintiff on defendant. Defendant additionally supplemented certain interrogatory responses and
demonstrated that he adequately responded to other interrogatories, rendering plaintiff’s requests
moot. Therefore, the Court finds that plaintiff’s June 8, 2016 motion to compel should also be
denied.
Plaintiff also filed a second motion to compel on September 9, 2016, requesting an order
compelling defendant to (1) file a copy of plaintiff’s June 9, 2016 deposition transcript; (2) file a
copy of plaintiff’s June 9, 2016 deposition transcript with the Court; (3) file a copy of
defendant’s marriage license; and (4) file a copy of defendant’s firearm permits. [DE 69].
Plaintiff interprets the Rules of Civil Procedure and the Local Civil Rules of Practice and
Procedure for the Eastern District of North Carolina as entitling him to a copy of his deposition
transcript at no cost. Plaintiff’s request is without merit. Rule 30(f)(3) of the Federal Rules of
Civil Procedure provides that a party is entitled to obtain a copy of any transcript directly from
the Court Reporter after paying a reasonable charge. Local Rule 26.1(a) specifically provides
that discovery materials “are not to be filed unless by Order of the Court or for use in the
proceedings.” Defendant has filed relevant portions of the deposition transcript as used in his
motions, the Court has not ordered that the transcript in full be filed, and plaintiff is not entitled
to obtain a copy for free by circumventing the Rules of Civil Procedure and requesting a copy
directly from defendant. See Schroer v. U.S., 250 F.R.D. 531, 537 (D. Colo. 2008) (“The general
rule, established by the Federal Rules of Civil Procedure, is that a party must obtain copies of
deposition transcripts directly form the court reporter upon the payment of a reasonable charge,
and not from opposing counsel or the court.”); Brant v. Principal Life and Disability Ins. Co.,
195 F. Supp. 2d 1100, 1108 (N.D. Iowa 2002) (plaintiff was not entitled to a copy of his

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deposition transcript from defendant, but rather, plaintiff was obligated to purchase a copy from
the court reporter).
Plaintiff may obtain a copy of the deposition transcript directly from the Court Reporter.
In recognition of plaintiff’s pro se status and in an abundance of caution in response to
allegations of missed communications, defendant is directed to provide to plaintiff by U.S. mail
the name, employer, and phone number of the Court Reporter who transcribed plaintiff’s
deposition.
Plaintiff also seeks an order compelling the production of defendant’s marriage license
and gun permits. The deadline for completion of discovery expired on June 15, 2016. [DE 53].
Defendant has demonstrated that plaintiff requested these documents during the course of
discovery, but then subsequently withdrew such requests by email to defendant’s counsel. [DE
70]. Additionally, plaintiff confirmed on the record during his deposition of defendant’s wife that
he was not making a request for copies of defendant’s marriage certificate or gun permits. Id.
Plaintiff did not file another request for defendant’s marriage license or firearm permits before
the expiration of the discovery deadline, but he now seeks through a motion to compel, more
than three months later, to obtain those very same documents. Although plaintiff argues he
“reserve[d] the right to request the production of documents at later date” [DE 71], plaintiff
offers no explanation for why he could not have requested such documents within the time
allowed for discovery. The Court has substantial discretion to manage discovery, Lone Star
Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 929 (4th Cir. 1995), and the Court
sees no reason to allow defendant to circumvent the already extended discovery deadlines to now
obtain documents he previously requested but then declined. As such, plaintiff’s motions to
compel are denied.

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Motion to Strike
Plaintiff submitted a motion seeking to strike the testimony of Stephen F. Horne, II,
defendant’s expert witness. [DE 49]. Subsequently, defendant sent notice to the Court that Mr.
Horne had unexpectedly died. [DE 63]. Defendant stated that “all pending Motions related to Mr.
Horne’s Expert Report and potential testimony are moot,” [DE 63], which the Court takes to
mean that defendant will no longer seek to rely on or offer Mr. Horne’s expert report for any
purpose. Accordingly, plaintiff’s motion to strike is denied as moot.
Motion for an Extension of Time
Finally, plaintiff submitted a motion which requested an extension of time to file a
response to defendant’s motion for summary judgment and which reiterated his motion to
compel production of his deposition transcript [DE 66]. Defendant filed a response which
opposed the motion to compel but which also indicated that he does not oppose plaintiff’s
request for an additional 21 days in which to file a response to his motion for summary
judgment. [DE 67]. Accordingly, and for good cause shown, plaintiff’s motion for an extension
of time shall be granted in part and denied in part.
CONCLUSION
For the foregoing reasons, plaintiff’s motion to amend [DE 48], June 8, 2016 motion to
compel [DE 56], and September 9, 2016 motion to compel [DE 69] are DENIED. Defendant is
DIRECTED to provide to plaintiff by U.S. mail the name, employer, and phone number of the
Court Reporter who transcribed plaintiff’s June 9, 2016 deposition. Plaintiff’s motion to strike
[DE 49] is DENIED as moot. Plaintiff’s motion for an extension of time [DE 66] is GRANTED
in part and DENIED in part. Plaintiff is DIRECTED to file his response to defendant’s motion

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for summary judgment within twenty-one (21) days of the date of entry of this order. The Clerk
is DIRECTED to serve a copy of this order on plaintiff by U.S. Mail at the address ofrecord.

SO ORDERED, this

_j£ day of December, 2016.

RRENCE W. BOYLE
UNITED STATES DISTR

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