Aramark Uniform & Career Apparel, LLC v. Hernandez
Filing
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ORDER granting in part and denying in part 20 Motion to Compel. The portion of plaintiff's motion seeking to compel responses to its first set of requests for production of documents is DENIED. The portion of plaintiff's motion seeking to have its requests for admission deemed admitted is DENIED. The portion of plaintiff's motion seeking an award of expenses is preliminarily ALLOWED. Signed by Magistrate Judge James E. Gates on 1/31/2018. (Creasy, L.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
7:16-CV-336-BR
ARAMARK UNIFORM & CAREER
APPAREL, LLC,
Plaintiff,
v.
DAVID A. HERNANDEZ,
Defendant.
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ORDER
This case comes before the court on the motion (D.E. 20) by plaintiff Aramark Uniform &
Career Apparel, LLC (“plaintiff”) to compel defendant David A. Hernandez (“defendant”), who
is proceeding pro se, to respond to plaintiff’s requests for production of documents, to deem its
requests for admission admitted, and to award it the expenses it incurred on its motion. For the
reasons set forth below, the motion will be denied in part and allowed in part.
I.
BACKGROUND
This case arises from defendant’s alleged breach of his employment agreement with
plaintiff. See generally Compl. (D.E. 1). Specifically, plaintiff alleges that while employed with
it, defendant accepted a position with one of plaintiff’s competitors without notifying plaintiff. Id.
¶¶ 17-18. Following termination of his employment agreement, defendant signed a severance
agreement entitling him to a severance payment, reaffirming non-disclosure restrictions, and
agreeing to noncompete provisions. Id. ¶¶ 28, 31, 32. Plaintiff contends that defendant breached
the terms of the severance agreement. Id. ¶¶ 30, 34.
In its complaint, plaintiff asserts claims for breach of contract for violation of the
employment agreement (id. ¶¶ 35-38); breach of contract for violation of the severance agreement
(id. ¶¶ 39-42); breach of fiduciary duty (id. ¶¶ 43-48); breach of implied covenant of good faith
and fair dealing (id. ¶¶ 49-53); unjust enrichment (id. ¶¶ 54-59); constructive fraud (id. ¶¶ 60-63);
fraud (id. ¶¶ 64-69); fraudulent inducement (id. ¶¶ 70-77); and violations of the North Carolina
Unfair and Deceptive Trade Practices Act, N.C. Gen. Stat. § 75.1-1 et al. (id. ¶¶ 78-81). Defendant
denies the material allegations of the complaint. See generally Ans. (D.E. 11).
On 24 February 2017, plaintiff served on defendant its first requests for production of
documents (D.E. 21-1), and on 7 March 2017, it served on defendant its first set of requests for
admission (D.E. 21-2). The discovery requests were returned to plaintiff as undeliverable, and on
22 May 2017, plaintiff’s counsel contacted defendant by email and provided additional copies of
the discovery requests. Mot. ¶ 4. As of the date the instant motion was filed, 19 July 2017,
defendant had not responded to the requests for production of documents or requests for admission.
Id. ¶ 9. On 24 July 2017, defendant filed with the court his answers to the requests for admission
(D.E. 24) and on 22 August 2017, he filed his responses to the requests for production of
documents (D.E. 26). On 27 October 2017, he filed an amended response to the requests for
production of documents (D.E. 27).
II.
APPLICABLE LEGAL PRINCIPLES
The Federal Rules of Civil Procedure enable parties to obtain information by serving
requests for discovery on each other, including requests for production of documents and requests
for admission. See generally Fed. R. Civ. P. 26-37. 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 and proportional to the needs of the case, considering
the importance of the issues at stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and whether the burden or
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expense of the proposed discovery outweighs its likely benefit. Information within
this scope of discovery need not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1).
The district court has broad discretion in determining relevance for discovery purposes.
Seaside Farm, Inc. v. United States, 842 F.3d 853, 860 (4th Cir. 2016); Watson v. Lowcountry Red
Cross, 974 F.2d 482, 489 (4th Cir. 1992). The party resisting discovery bears the burden of
establishing the legitimacy of its objections. Eramo v. Rolling Stone LLC, 314 F.R.D. 205, 209
(W.D. Va. 2016) (“[T]he party or person resisting discovery, not the party moving to compel
discovery, bears the burden of persuasion.” (quoting Kinetic Concepts, Inc. v. ConvaTec Inc., 268
F.R.D. 226, 243 (M.D.N.C. 2010))); Brey Corp. v. LQ Mgmt., L.L.C., No. AW-11-cv-00718-AW,
2012 WL 3127023, at *4 (D. Md. 26 Jul. 2012) (“In order to limit the scope of discovery, the
‘party resisting discovery bears the burden of showing why [the discovery requests] should not be
granted.’” (quoting Clere v. GC Servs., L.P., No. 3:10-cv-00795, 2011 WL 2181176, at *2 (S.D.
W. Va. 3 June 2011))).
Rule 34 governs requests for production of documents. A party asserting an objection to a
particular request “must specify the part [to which it objects] and permit inspection of the rest.”
Fed. R. Civ. P. 34(b)(2)(C).
Requests for admission served pursuant to Rule 36 are designed to narrow the range of
issues for trial, and the rule provides that a party may serve any other party with a request for the
admission of the truth of any relevant matter that relates to statements, opinions of fact, or the
application of law to fact. Fed. R. Civ. P. 36(a)(1); Erie Ins. Prop. & Cas. Co. v. Johnson, 272
F.R.D. 177, 183 (S.D.W. Va. 2010) (“‘Rule 36(a)’s primary purposes are to facilitate proof with
respect to issues that cannot be eliminated from the case, and secondly, to narrow the issues by
eliminating those that can be.’” (quoting Frontier-Kemper Constructors, Inc. v. Elk Run Coal Co.
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246 F.R.D. 522, 531 (S.D.W. Va. 2007) (internal citations omitted))). Rule 36 specifies the
consequences of not serving timely responses:
A matter is admitted unless, within 30 days after being served, the party to whom
the request is directed serves on the requesting party a written answer or objection
addressed to the matter and signed by the party or its attorney. A shorter or longer
time for responding may be stipulated to under Rule 29 or be ordered by the court.
Fed. R. Civ. P. 36(a)(3).
Rule 37 allows for the filing of a motion to compel discovery responses. See Fed. R. Civ.
P. 37(a)(3)(B). Rule 37 requires that a motion to compel discovery “include a certification that
the movant has in good faith conferred or attempted to confer with the person or party failing to
make disclosure or discovery in an effort to obtain it without court action.” Id.(a)(1). Similarly,
Local Civil Rule 7.1(c) requires that “[c]ounsel must also certify that there has been a good faith
effort to resolve discovery disputes prior to the filing of any discovery motions.” Local Civ. R.
7.1(c), E.D.N.C.; see Jones v. Broadwell, No. 5:10-CT-3223-FL, 2013 WL 1909985, at *1
(E.D.N.C. 8 May 2013) (denying motion to compel which did not state that party complied with
Rule 37(a) or Local Civil Rule 7.1(c)).
In addition, Rule 37 requires that the moving party be awarded expenses when a motion to
compel discovery is granted except when the movant filed the motion without attempting in good
faith beforehand to obtain the discovery without court intervention, the opposing party’s
opposition to the discovery was substantially justified, or other circumstances would make an
award of expenses unjust. Fed. R. Civ. P. 37(a)(5)(A). If a motion to compel is denied, expenses
must be awarded to the person opposing the motion except when the motion was substantially
justified or other circumstances would make an award of expenses unjust. Id.(a)(5)(B). If a motion
to compel is allowed in part and denied in part, the court may apportion the expenses for the
motion. Id.(a)(5)(C).
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III.
DISCUSSION
A.
Requests for Production
As indicated, plaintiff seeks, in part, a directive compelling defendant to serve a response
to its first set of requests for production. Plaintiff, though, has already obtained this relief. As
indicated, since the filing of plaintiff’s motion, defendant has served his response to the production
requests. His response contains a response to each individual production request, otherwise meets
the requirements of Rule 34(b)(2)(B)-(E), and is duly executed pursuant to Rule 26(g)(1).
Therefore, the portion of plaintiff’s motion seeking to compel a response to its first set of requests
for production of documents is DENIED AS MOOT.
B.
Requests for Admission
Plaintiff has also failed to show its entitlement to an order deeming its first set of requests
for admission admitted. While Rule 36 provides that a request for admission is admitted if a party
fails to timely serve a written answer or objection to it, a court has discretion to find such a request
not to be admitted, which may be especially warranted in cases involving pro se litigants. See
Wright v. Thomas, 5:14-cv-85-BO, 2016 WL 44090631, at *1 (E.D.N.C. 24 Aug. 2016) (deferring
ruling on motion to deem requests for admission admitted to allow pro se plaintiff an additional
opportunity to respond with a warning of consequences for failure to comply); Simmons-Blount v.
Guilford Cty. Bd. of Educ., No. 1:06-CV-944, 2009 WL 962266, at *4 (M.D.N.C. 7 Apr. 2009)
(“Where pro se litigants are involved, however, courts have been reluctant to grant summary
judgment upon a failure to respond to requests for admission without first giving the pro se litigant
notice and an opportunity to be heard on the issue.”); Jones v. Jack Henry & Assocs., Inc., No.
3:06cv428, 2007 WL 4226083, at *2 (W.D.N.C. 30 Nov. 2007) (declining to deem unanswered
requests admitted where there was no evidence in the record that pro se plaintiff was ever notified
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of the consequences of failing to respond); see also In re Savage, 303 B.R. 766, 773 (D. Md. 2003)
(“Federal Rule of Civil Procedure 36 was not intended to be used as a technical weapon to defeat
the rights of pro se litigants to have their cases fairly judged on the merits.”). In light of defendant’s
service of answers to the requests for admission, there being no evidence that defendant was aware
of the consequences of a failure to timely respond, and the interest in allowing the case to proceed
on the merits, the court declines to deem the admission requests admitted. See Anderson v.
Crandell’s Enters., Inc., No. 5:15-cv-272-BO, 2017 WL 657461, at *1 (E.D.N.C. 16 Feb. 2017)
(declining to deem admission requests admitted due, in part, to the interest in resolving disputes
on the merits). The portion of plaintiff’s motion seeking to have its first set of requests for
admission deemed admitted is therefore DENIED.
C.
Expenses
The final element of relief plaintiff seeks is the award of the reasonable expenses, including
attorney’s fees, incurred in filing its motion to compel. The record as currently developed shows
that plaintiff is entitled to the award. While the substantive relief plaintiff sought by his motion is
being denied, there is no question that plaintiff was justified in filing the motion. At the time the
motion was filed, defendant had not responded to either plaintiff’s production requests or
admission requests in clear violation of his obligations under Rules 34 and 36. Moreover, plaintiff
made a good faith effort to resolve the matter before filing its motion to compel. In addition, it
was only after plaintiff had filed its motion that defendant produced the requisite responses. Lastly,
defendant did not respond to plaintiff’s motion, signifying that he does not contest the award of
expenses.
The court therefore preliminarily ALLOWS plaintiff’s request for expenses. Nonetheless,
before making a final determination on awarding plaintiff expenses, the court will provide
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defendant an additional opportunity to be heard with respect to the award. At the same time, the
court will require submission of information by plaintiff on the amount of expenses it seeks.
Accordingly, plaintiff shall file by 14 February 2018 an affidavit setting out the reasonable
attorney’s fees and other expenses it claims, along with a supporting memorandum and any other
supporting documents. Defendant may file a response to plaintiff’s submission within 14 days
after the submission is filed.
Defendant may address in his response not only the
reasonableness of the expenses claimed by plaintiff, but also any grounds upon which he
contends expenses should not be awarded to plaintiff. If defendant does not timely file a
response to plaintiff’s submission, the court will deem him to have no objection to either the
court awarding plaintiff expenses on its motion to compel or the amount of expenses plaintiff
claims. The court will thereafter enter an order setting the amount due and the deadline for
payment.
IV.
CONCLUSION
In summary, for the reasons and on the terms set forth above, IT IS ORDERED as follows:
1.
The portion of plaintiff’s motion seeking to compel responses to its first set of
requests for production of documents is DENIED.
2.
The portion of plaintiff’s motion seeking to have its requests for admission deemed
admitted is DENIED.
3.
The portion of plaintiff’s motion seeking an award of expenses is preliminarily
ALLOWED.
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FOR GOOD CAUSE SHOWN, the Motion is ALLOWED. The Clerk is directed to release
the Bond placed on Dr. EI-Gamal's property.
SO ORDERED.
SO ORDERED, this 31st day of January 2018.
This the ~ day of June, 2011.
_________________________
James E. Gates
United States Magistrate Judge
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