Loney v. RMB of North Carolina, Inc. et al

Filing 13

ORDER granting in part 11 Motion to Compel: Plaintiff's responses to defendant's interrogatories and requests for production of documents are due no later than June 30, 2014; Defendant shall file an affidavit setting out the fees and ot her expenses associated with the filing of the motion to compel no later than June 23, 2014; and Plaintiff shall respond to Defendant's request for fees and expenses no later than June 30, 2014, and show cause why the court should not grant Def endant's request. Plaintiff is cautioned that a failure to comply with this order may result in sanctions, including dismissal of this action, pursuant to Rule 37. Signed by Magistrate Judge Robert B. Jones, Jr. on 6/16/2014. Copy mailed to pro se plaintiff. (Lee, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No.: 7:13-CV-228-H
HAROLD LONEY,
Plaintiff,

v.
RMB OF NORTH CAROLINA, INC.
and DOES 1-10,
Defendants.

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ORDER

This matter comes before the court upon the motion of Defendant RMB of North Carolina,
Inc. ("Defendant") to compel discovery and for attorney's fees. [DE-12]. No response to the motion
has been filed by the pro se Plaintiff Harold Loney ("Plaintiff') and the matter is ripe for decision.
For the reasons set forth below, Defendant's motion is allowed in part.

BACKGROUND
On October 24, 2013, Defendant removed this action from Brunswick County District Court.
[DE-l]. Plaintiff asserts federal claims pursuant to the Fair Debt Collection Practices Act, 15
U.S.C. § 1692 et seq., the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., and the Telephone
Consumer Protection Act, 47 U.S.C. § 227 et seq., as well as state law claims under the North
Carolina Debt Collection Act, N.C. Gen. Stat.§ 75-50 et seq., invasion of privacy, and defamation.
Compl. [DE-1-2]. On December 12, 2013, the court entered a Scheduling Order, which provided,
among other things, for discovery to be completed by May 31, 2014. 1 [DE-9]. On March 5, 2014,
Defendant served Plaintiff with interrogatories and requests for production of documents. [DE-11-1]

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The court notes that the dispositive motions deadline is June 30, 2014, and no motion to continue that deadline
has been filed.

at 5-20. On April 11, 2014, Defendant's counsel sent Plaintiff a letter requesting that Plaintiff
provide responses to the discovery requests no later than April25, 2014. [DE-11-1] at 22. Plaintiff
did not respond to the discovery requests or to the correspondence of Defendant's counsel. [DE-111] at 3 ~~5-6. On May 12, 2014, Defendant filed the instant motion to compel Plaintiffto respond
to Defendant's interrogatories and request for production of documents and also seeking attorney's
fees associated with the filing ofthe motion. [DE-ll] at 3.

DISCUSSION
A.

Interrogatories and Document Requests
The Federal Rules of Civil Procedure enable parties to obtain information by serving requests

for discovery upon each other, including interrogatories and requests for production of documents.

See generally Fed. R. Civ. P. 26-37. Rule 37 allows for the filing of a motion to compel where a
party fails to respond to written discovery requests. Fed. R. Civ. P. 37(a)(3)(B).
Rule 26 provides for a broad scope of discovery:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party's claim or defense .... For good cause, the court may order discovery of
any matter relevant to the subject matter involved in the action. Relevant information
need not be admissible at the trial if the discovery appears reasonably calculated to
lead to the discovery of admissible evidence.
Fed. R. Civ. P. 26(b)(I). The rules of discovery, including Rule 26, are to be given broad and liberal
construction. Herbert v. Lando, 441 U.S. 153, 177 (1979); Nemecekv. Bd. a/Governors, No. 2:98CV-62-BO, 2000 WL 33672978, at *4 (E.D.N.C. Sept. 27, 2000). While Rule 26 does not define
what is deemed relevant for purposes of the rule, relevance has been '"broadly construed to
encompass any possibility that the information sought may be relevant to the claim or defense of any
party."' Equal Emp't Opportunity Comm'n v. Sheffield Fin. LLC, No. 1:06CV889, 2007 WL
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1726560, at *3 (M.D.N.C. June 13, 2007) (quoting Merrill v. Waffle House, Inc., 227 F.R.D. 467,
473 (N.D. Tex. 2005)); see also Mainstreet Collection, Inc. v. Kirkland's, Inc., 270 F.R.D. 238,240
(E.D.N.C. 2010) ("During discovery, relevance is broadly construed 'to encompass any matter that
bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may
be in the case."') (quoting Oppenheimer Fund., Inc., v. Sanders, 437 U.S. 340, 351 (1978)). The
district court has broad discretion in determining relevance for discovery purposes. Watson v.
Lowcountry Red Cross, 974 F.2d 482,489 (4th Cir. 1992).
Plaintiff failed to respond to Defendant's discovery requests and failed to seek an extension
of time within which to do so. Counsel for Defendant has filed the requisite certification pursuant
to Local Civil Rule 7.l(c). [DE-11-1] at 2. Further, Plaintiffs prose status does not excuse
participation in discovery or compliance with the requirements of the Federal Rules. 2 See Pledger
v. UHS-PruittCorp., No. 5:12-CV-484-F, 2013 WL 5603259, at *3 (E.D.N.C. Oct. 11, 2013)(citing
Loftin v. Nationwide Mut. Ins. Co., No. 7:09-CV-118-F, 2010 WL 4117404, at *3 (E.D.N.C. Oct.
18, 2010)). Accordingly, the court finds that Plaintiff has failed to comply with his discovery
obligations in this case. The court has reviewed Defendant's discovery requests and finds them to
be within the permissible scope of discovery.

Therefore, Plaintiff shall serve responses to

Defendant's interrogatories and requests for production no later than June 30, 2014.
Because Plaintiff did not respond to Defendant's discovery requests in a timely manner, any

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Plaintiff has litigated several cases prose in this court. See Loney v. Piedmont Advantage Credit Union, No.
7:13-CV-226-H (E.D.N.C. Oct. 23, 2013) (case removed from state court); Loneyv. DataMaxCorp., No. 7:13-CV-227H (E.D.N.C. Oct. 23,2013 (case removed from state court); Loneyv. Receivable Performance Mgmt., No.7: 12-CV-185H (E.D.N.C. Jan. 1, 2013) (dismissing case on stipulation of the parties); Loney v. First Source Advantage, LLC, No.
7: I 1-CV-273-H (E.D.N.C. July 13, 2012) (dismissing case on stipulation ofthe parties); Loneyv. Diversified Consultants
Inc., No. 7:1 1-CV-272-H (E.D.N.C. Mar. 24, 2012) (dismissing case on Plaintiff's motion after parties reached a
settlement).

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objections he may have to their relevance or scope are waived. See Fed. R. Civ. P. 33(b)(4) ("Any
ground not stated in a timely objection is waived unless the court, for good cause, excuses the
failure."); Loftin, 2010 WL 4117404, at *3; see Bazzi v. M'Bai, No. 5:11-CV-353-H, 2013 WL
3818144, at *3 (E.D.N.C. Jul. 22, 2013). However, the court will permit Plaintiff to assert any valid
claim privilege in response to the interrogatories and document production requests. Plaintiff is
cautioned that in order to validly claim a privilege, Plaintiff must expressly assert it in response to
the particular discovery request involved and serve with the discovery responses a privilege log in
conformity with Rule 26(b)(5)(A). Failure to timely serve a duly signed privilege log meeting the
requirements ofRule 26(b)(5)(A) shall be deemed a waiver ofthe privilege otherwise claimed.

B.

Expenses and Attorney's Fees
Rule 37(a)(5)(A) provides that, absent certain specified circumstances, the moving party be

awarded expenses when a motion to compel discovery is granted. The rule states in relevant part:
lfthe motion [to compel] is granted-or if the disclosure or requested discovery is
provided after the motion was filed-the court must, after giving an opportunity to
be heard, require the party or deponent whose conduct necessitated the motion, the
party or attorney advising that conduct, or both to pay the movant's reasonable
expenses incurred in making the motion, including attorney's fees.
Fed. R. Civ. P. 37(a)(5)(A). Accordingly, Defendant shall file no later than June 23, 2014, an
affidavit setting out such fees and other expenses incurred in the filing of the instant motion to
compel, and Plaintiff shall respond no later than June 30, 2013, and show cause why the court
should not grant Defendant's request for expenses and attorney's fees. In order to avoid an award
of expenses and attorney's fees, Plaintiff must show the court why his failure to respond to
Defendant's discovery requests was "substantially justified" or why "other circumstances make an
award of expenses unjust." /d.
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CONCLUSION
For the reasons set forth above, Defendant's motion to compel [DE-12] is ALLOWED IN
PART as follows:

( 1) Plaintiff shall serve responses to Defendant's interrogatories and requests for production
of documents no later than June 30, 2014;
(2) Defendant shall file an affidavit setting out the fees and other expenses associated with
the filing of the motion to compel no later than June 23, 2014; and
(3) Plaintiff shall respond to Defendant's request for fees and expenses no later than June

30,2014, and show cause why the court should not grant Defendant's request.
Plaintiff is cautioned that a failure to comply with this order may result in sanctions,
including dismissal of this action, pursuant to Rule 37.
SO ORDERED, this the 16th day of June 2014.

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RobertBTonif~
United States Magistrate Judge

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