Norton v. Rosier et al

Filing 67

ORDER denying as moot 53 Motion for Extension of Time to Complete Discovery; denying 56 Motion for Order to Show Cause; and denying 57 Motion to Compel. Signed by US Magistrate Judge Robert B. Jones, Jr. on 4/5/2017. Copy mailed to pro se plaintiff via US Mail to PO Box 1145, Whiteville, NC 28472. (Stouch, 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 bill of costs [DE-54], and the following
pending motions: (1) Defendant's motion to extend time to complete discovery [DE-53], (2)
Plaintiffs motion to show cause [DE-56], and (3) Plaintiffs motion to compel [DE-57]. The
matters raised within the motions and subsequent briefing are ripe for decision.
A.

Defendant's Motion to Extend Time and Plaintiff's Motion to Show Cause

On December 30, 2016, Defendant moved the court to extend the time to complete
discovery to January 31, 2017. Def.'s Mot. [DE-53]. Defendant seeks an extension of time in
order to allow Plaintiff additional time to review supplementations to Defendant's discovery
responses which were provided to Plaintiff four days before the conclusion of discovery. Id.
Plaintiff objects to the motion and moves the court to hold Defendant and Defendant's counsel in
contempt of the scheduling order entered in this case and other orders of the court. PL' s Resp.
[DE-55]; PL's Mot. [DE-56]. The basis of Plaintiffs motion to show cause appears to be
Defendant's request for additional time for discovery and what Plaintiff contends to be
outstanding discovery requests. PL 's Mot. [DE-56].
Upon review of Defendant's motion for an extension of time, the court finds the motion

should be allowed. However, as the additional time sought by Defendant has elapsed,
Defendant's motion is denied as moot. While Plaintiff is correct that the court has admonished
the parties not to be dilatory in pursuing discovery, Defendant's motion was timely filed and
appears to be supported by good cause and not made for an improper purpose. Fed. R. Civ. P.
6(b). Plaintiff fails to identify any order with which Defendant has not complied that would
support a finding of contempt. See Cromer v. Kraft Foods N. Am., Inc., 390 F.3d 812, 821 (4th
Cir. 2004) ("A court may impose sanctions for civil contempt to coerce obedience to a court
order or to compensate the complainant for losses sustained as a result of the contumacy.")
(internal quotation marks and citation omitted). To the extent Plaintiffs motion may be
construed as seeking sanctions under Rule 37, Plaintiff has not obtained any order compelling
Defendant to respond to Plaintiffs discovery and accordingly cannot show Defendant's noncompliance with such an order. See Fed. R. Civ. P. 37(b). Accordingly, Plaintiffs motion to
show cause is denied.

B.

Plaintiff's Motion to Compel

Plaintiff moves the court to compel Defendant to produce several documents which
Plaintiff has described in his motion. Pl.'s Mot. [DE-57]. Plaintiff has neither filed a
memorandum setting forth argument in support of his motion nor has Plaintiff included with his
motion a copy of the discovery requests at issue or Defendant's alleged incomplete responses or
objections thereto. See id. Local Civil Rule 7.1 specifically provides that
[n ]o discovery motion will be considered by the court unless the motion sets forth or
has attached thereto, by item, the specific question, interrogatory, etc., with respect
to which the motion is filed, and any objection made along with the grounds
supporting or in opposition to the objection.

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Local Civ. R. 7.l(c)(2). Plaintiff has failed to attach to his motion to compel any specific
discovery request or any incomplete or allegedly evasive discovery response. Rather, Plaintiff's
motion only describes in general fashion documents he contends are outstanding. See Pl.' s Mot.
[DE-57]. Plaintiffs paraphrasing of his discovery requests does not comply with the local rules.

See Rocha v. Coastal Carolina Neuropsychiatric, No. 7:12-CV-2-D, 2013 WL 1912864, at *2
(E.D.N.C. May 8, 2013) (unpublished). Plaintiff's failure alone will support denial of the
motion. See United States v. $307,970.00, in US. Currency, 156 F. Supp. 3d 708, 722 (E.D.N.C.
2016); Artis v. NC. Dep't ofHealth & Human Servs., No. 5:1l-CV-748-BO,2013 WL 3280240,
at *3 (E.D.N.C. June 27, 2013) (unpublished).
Based on the materials the parties have submitted to the court related to this motion, the
court is unable to discern with the necessary particularity the discovery requests that are at issue
and the grounds for seeking or objecting to such requests. Out of an abundance of caution, the
court has reviewed the written discovery requests Plaintiff filed with the court on September 1,
2016. Pl.'s Discovery Reqs. [DE-41]. However, assuming these requests are the ones at issue in
the motion, Plaintiff has failed to provide Defendant's alleged inadequate responses for
consideration, and the court notes that there appear to be no document requests corresponding to
several of the documents Plaintiff describes in his motion as being outstanding. Compare Pl.'s
Discovery Reqs. [DE-41], with Pl.'s Mot. [DE-57] at 2 il 8. The court is loathe to assume that
these earlier-filed document requests are indeed the ones at issue here, or that Defendant has
failed to provide responsive documents without asserting acceptable grounds for doing so and
should therefore be compelled to produce the requested documents. Finally, Defendant has
responded that he either has no possession or control of many of the requested documents or that

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responsive materials have already been provided. See Def.'s Resp [DE-59] at 2 ,-r,-r 6-7.
Accordingly, Plaintiffs motion to compel is denied.

C.

Plaintiff's Bill of Costs

~laintiff has

submitted a bill of costs as directed by the court after finding that Defendant

is subject to paying reasonable expenses pursuant to Rule 37(a)(5)(A). Dec. 28, 2016 Order [DE52]; Pl.' s Mem. [DE-54]. Defendant responded in opposition to Plaintiffs bill of costs. Def.' s
Resp. [DE-58]. The court enjoys broad discretion in imposing sanctions for discovery violations.

See Cookv. Lewis, No. 5:12-CT-3219-D, 2014 WL 2894999, at *4 (E.D.N.C. June 25, 2014)
(unpublished); SAS Inst. Inc. v. World Programming Ltd, No. 5:10-CV-25-FL, 2014 WL
1760960, at *4 (E.D.N.C. May 1, 2014) (unpublished); Wilson v. ELRAC, Inc., No. 5:12-CV660-F, 2013 WL 5592882, at *12 (E.D.N.C. Oct. 10, 2013) (unpublished). Review of Plaintiffs
bill of costs reveals that it lacks the required specificity and supportive documentation to support
the award sought. A pro se litigant is not free from the obligation of particularizing his costs
incurred in order to establish a basis on which the court may rely to fashion an appropriate award
of reasonable expenses. Mazza v. District Council for NY, Nos. OOCV6854(CLP),
01CV6002(CLP), 2010 WL 2976674, at *2 (S.D.N.Y. July 22, 2010) (unpublished) (citations
omitted). Although Plaintiff has failed to provide the court with sufficient documentation of the
expenses for which he seeks reimbursement, the court finds that denying Plaintiff any recovery
would "disserve the purpose of the expense-shifting provision of Rule 37." Mazza, 2010 WL
2976674, at *3 (internal quotation marks and citations omitted). Based on a review of the record,
and the court's knowledge of the case, the court finds that Plaintiff is entitled to an award in the
amount of $58.00. This amount will serve the policy interests at issue, consists of the court's
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estimate of the cost ofround-trip car travel to the courthouse from Plaintiffs record address in
Whiteville, North Carolina, and copy costs associated with Plaintiffs motion, for which the
Court imposed sanctions. See id. (awarding a reasonable estimate of costs to a pro se plaintiff
pursuant to Rule 37 despite the plaintiff's lack of adequate documentation). The Court declines
to include any other claimed expenses because Plaintiff has failed to provide an adequate basis to
justify such an award. Defendant shall tender $58.00 to Plaintiff as soon as possible but no later
than May 5, 2017.

D.

Conclusion

For the foregoing reasons, Defendant's motion to extend time to complete discovery [DE53] is DENIED AS MOOT, Plaintiffs motion to show cause [DE-56] is DENIED, and (3)
Plaintiffs motion to compel [DE-57] is DENIED.
So ordered, the 5th day of April 2017.

Rot;f;f:;/;4 .

United States Magistrate Judge

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