Golden Grove, Inc. v. Ware

Filing 35

ORDER granting 29 Motion to Compel. Signed by US Magistrate Judge Robert T. Numbers, II on 1/25/2018. Counsel is reminded to read this order in its entirety for important deadlines and information. Copy mailed to pro se defendant via US Mail to 2221 Asheford Place Lane, Charleston, SC 29414. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:16-CV-00064-BO
Golden Grove, Inc.,
Plaintiff,
v.
Order
National Fumigation, LLC d/b/a
Bradley Ware also known as R. Brad
Ware d/b/a National Fumigation,
Defendant.

Plaintiff Golden Grove, Inc., pursuant to Rules 26 and 37 of the Federal Rules of Civil
Procedure and Local Rules 7.1 and 26.1, moves the court to compel Defendant Brad Ware to make
his initial disclosures, including any and all insurance agreements under which an insurer may be
liable to satisfy all or part of a possible judgment. The court so orders Ware to make his initial
disclosures and asks Golden Grove to submit its costs and Ware to demonstrate why he should not
be required to pay them.
I. Background
Golden Grove filed its initial complaint on April 7, 2016, alleging among other things that
Ware failed to properly fumigate peanuts that were to be shipped overseas. The purchaser rejected
the peanuts because, upon arrival, they were infested with various creatures. Golden Grove seeks
substantial monetary damages to compensate it for the rejected shipments.
Under the Court’s Scheduling Order, the parties were to make their Rule 26(a)(1)
disclosures no later than May 31, 2017. D.E. 26. Among the items parties must disclose under Rule
26(a)(1) are “any insurance agreement under which an insurance business may be liable to satisfy

all or part of a possible judgment in the action or to indemnify or reimburse for payments made to
satisfy the judgment.” Fed. R. Civ. P. 26(a)(1)(A)(iv). According to Golden Grove, Ware did not
make any of the initial disclosures required by Rule 26.
In November 2017, Golden Grove asked Ware by mail and email for a copy of any
insurance policies that may provide coverage for its claims. D.E. 29–1. After Ware failed to
respond, Golden Grove moved the court in early December 2017, to compel Ware “to make [his]
Rule 26(a)(1) initial disclosures, including, but not limited to, any and all insurance agreements.”
D.E. 29.
Well after the deadline to respond to the motion to compel passed, Ware filed a response
stating that he made the disclosures required by Rule 26(a)(1) orally during the parties Rule 26(f)
conference in April 2017. D.E. 31. Further, he pointed out that he had already submitted his
Certificate of Liability Insurance in February 2017 and asserted that Golden Grove had contacted
his insurance company and requested his policy from it even before the 26(f) conference. Id.; see
D.E. 21–2. Ware also claims that he authorized his insurance carrier to provide Golden Grove with
any information it requested. D.E. 31. Ware alleges that Golden Grove’s November 2017 letter
was the first time Golden Grove had attempted to contact him since May 2017. Id. He interpreted
this letter to be requesting his current insurance policies rather than his 2015 policy. Id.
On January 10, 2018, this court ordered both parties to attend a hearing on Golden Grove’s
motion on January 23, 2018. D.E. 30. Golden Grove attended, but Ware failed to appear. At the
hearing, Golden Grove confirmed that it had reached out to Ware’s insurer, but was and has been
unable to get the policy.

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II. Discussion
Rule 26(a)(1) requires parties to litigation to disclose four categories of information: the
name and contact information of those with information that is likely to be discoverable, a copy of
all documents that the party has and may use in its case, a computation of damages the party claims
(if any), and any insurance agreements under which an insurance company may be liable to satisfy
all or part of a judgment. Every such disclosure must be written and signed either by the attorney
or by the party himself, if he is unrepresented. Rule 26(g)(1). This court ordered this information
be disclosed by May 31, 2017. D.E. 26. Ware has yet to do so.
When one party fails to make his Rule 26(a) disclosures, the other party may move to
compel disclosure and may request appropriate sanctions. Rule 37(a)(3)(A). The evidence shows
that Ware failed to provide the disclosure required by Rule 26(a)(1) in writing within the time
specified by the Scheduling Order. Thus, the motion to compel shall be granted.
Under Rule 37(a)(5), if a court grants a motion to compel, “the court must, after giving an
opportunity to be heard, require the party … whose conduct necessitated the motion … to pay the
movant’s reasonable expenses incurred in making the motion, including attorney’s fees.” Fed. R.
Civ. P. 37(a)(5)(A). The only exception to this rule is if the party who failed to comply with their
discovery obligations can show that “(i) the movant filed the motion before attempting in good
faith to obtain the disclosure or discovery without court action; (ii) the opposing party’s
nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make
an award of expenses unjust.” Id. at Rule 37(a)(5)(A)(i)-(iii).
Accordingly, Golden Grove shall file an affidavit setting out the reasonable attorney’s fees
and other expenses it claims, along with a supporting memorandum and any other supporting
documents no later than February 8, 2018. Ware may file a response to Golden Grove’s filing

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within 14 days after it is served, but in no event later than February 22, 2018. He may address in
his response not only the reasonableness of the expenses claimed by Golden Grove, but also any
grounds upon which he contends expenses should not be awarded against him. If Ware does not
file a response by that date, the court will deem him to have no objection to the fees and other
expenses claimed by Golden Grove. The court will thereafter enter an order setting the amount
due and the deadline for payment.
III. Conclusion
In light of the foregoing, the court grants Golden Grove’s Motion to Compel and orders
the following:
1.

Within fourteen days of entry of this order, Ware shall make his initial disclosures

to Golden Grove pursuant to Rule 26(a)(1) in writing and signed according to Rule 26(g).
2.

Further, within fourteen days of entry of this order, in addition to the Certificate of

Liability Insurance he disclosed in February 2017 (D.E. 21–2), he shall either a) provide counsel
for Golden Grove with a copy of any insurance agreements which may provide coverage for the
claims raised in Golden Grove’s pleadings or b) authorize his insurance carrier in writing to
disclose any insurance agreements which may provide coverage for the claims raised in Golden
Grove’s pleadings to counsel for Golden Grove and provide Golden Grove’s counsel with a copy
of the authorization.
3.

Golden Grove’s requests for fees and expenses will be ruled on after the briefing

described above has been completed.
Dated: January 25, 2018
Dated: January 25, 2018
Robert T. Numbers, II
______________________________________
United States Magistrate
Robert T. Numbers, II Judge
United States Magistrate Judge

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