Norton v. Rosier et al

Filing 52

ORDER denied without prejudice 44 Motion to Compel; denying 46 Motion to Strike. Plaintiff shall file a list of his reasonable expenses incurred in making the motion by no later than January 10,2017, and Defendant shall file any response by no l ater than January 17, 2017. Signed by Magistrate Judge Robert B. Jones, Jr on 12/28/2016. The parties are reminded to read the attached order in its entirety. Copies served on pro se plaintiff via US Mail to PO Box 1145, Whiteville, NC 28472. (Downing, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:14-CV-260-BO
CALVIN TYRONE NORTON,
Plaintiff,
V.

JEFFREY ROSIER,
Defendant.

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ORDER

This matter comes before the court on Plaintiffs motion to compel discovery [DE-44] and
motion to strike Defendant's response to the motion [DE-46]. On December 27, 2016, the court held
a hearing on the pending motions, which was attended by Plaintiff and counsel for Defendant. This
order serves to further memorialize the court's observations made during the hearing and its ruling
on the pending motions.
For the reasons articulated by the court during the hearing, Plaintiffs motion to compel is
denied without prejudice. Defendant, however, having produced the discovery responses at issue
in the motion after Plaintiff filed his motion to compel is subject to paying, after having an
opportunity to be heard, the "reasonable expenses" incurred by Plaintiff in making the motion. See
Fed. R. Civ. P. 37(a)(5)(A). Plaintiff should note that because he is proceeding prose, he is not
entitled to attorney's fees. See Cook v. Lewis, No. 5:12-CT-3219-D, 2014 WL 2894999, at *4
(E.D.N.C. June 25, 2014) (unpublished) (citing Watts v. Foster, 887 F.2d 1082, 1989 WL 117807,
at *1 (4th Cir.1989) (unpublished)); Goodman v. Praxair Servs., Inc., 632 F. Supp. 2d 494,525 (D.
Md. 2009) ("[T]he time a pro se litigant spends making a motion is not included among the
reasonable expenses contemplated by Fed. R. Civ. P. 37.") (quotingArias-Zeballos v. Tan, No. 06

Civ. 1268 GELKNF, 2007 WL 1946542, at

*1

(S.D.N.Y. June 27, 2007) (unpublished)).

Accordingly, Plaintiff shall file a list of his reasonable expenses incurred in making the motion by
no later than January 10,2017, and Defendant shall file any response by no later than January 17,
2017.

As for Plaintiffs motion to strike Defendant's response brief, the court has reviewed the
motion, which appears instead to be a reply to Defendant's response. In any case, under the
governing standards ofRule 12(f), striking Defendant's response is not supported. See Fed. R. Civ.
P. 12(f) ("The court may strike from a pleading an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter."); Melvin v. Soc. Sec. Admin., 126 F. Supp. 3d 584,596 (E.D.N.C.
20 15) (declining to strike memoranda filed in support of or in opposition to motions because the
documents were not "pleadings" as defined in Rule 7(a)); see also Waste Mgmt. Holdings, Inc. v.
Gilmore, 252 F.3d 316,347 (4th Cir. 2001) ("Rule 12(f) motions are generally viewed with disfavor

'because striking a portion of a pleading is a drastic remedy and because it is often sought by the
movant simply as a dilatory tactic."') (quoting SA Charles Alan Wright & Arthur R. Miller, Federal
Practice & Procedure§ 1380,647 (2d ed.1990)). Accordingly the motion to strike is denied.

So ordered, the 28th day of December 2016.

Robert B. Jones, Jr.
United States Magistrate Judge