TILYARD v. O'REILLY AUTO PARTS, INC.
Filing
25
MEMORANDUM OPINION AND ORDER OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 3/16/2012, that Defendant's Second Motion to Compel (Docket Entry 23 ) is GRANTED in that: (1) on or before March 23, 2012, Plaintiff s hall supplement its Answers to Defendant's First Set of Interrogatories and First Request for Production of Documents to include the documents identified by Defendant in Defendant's Second Motion to Compel; (2) Plaintiff shall pay Defendant 's reasonable expenses incurred in making its Second Motion to Compel, including attorney's fees; (3) on or before March 30, 2012, Defendant shall serve Plaintiff with a statement of the reasonable expenses, including attorney's fees, arising from Defendant's Second Motion to Compel; (4) if Plaintiff contests the reasonableness of any such expenses, it shall file, on or before April 15, 2012, a memorandum of not more than five pages explaining its position along with a certif ication that Plaintiff has attempted to confer in good faith with Defendant about that subject; (5) on or before April 30, 2012, Defendant may file a response of not more than five pages to Plaintiff's foregoing memorandum; and (6) on or before May 7, 2012, Plaintiff may file a reply of not more than five pages to any such response by Defendant. FURTHER, that Defendant's Second Motion to Extend the Deadline to Complete Discovery and Mediation (Docket Entry 21 ) is GRANTED in that the Parties shall have until April 16, 2012, to complete discovery and mediation and that, as a result, the Clerk shall remove this case from the July 2012 Master Calendar and shall place it on the next available trial setting. (Lloyd, Donna)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JONATHAN D. TILYARD,
Plaintiff,
v.
O’REILLY AUTO PARTS, INC.,
Defendant.
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1:11CV236
MEMORANDUM OPINION AND ORDER
OF UNITED STATES MAGISTRATE JUDGE
The instant matter comes before the undersigned United States
Magistrate Judge for disposition of Defendant’s Second Motion to
Extend the Deadline to Complete Discovery and Mediation (Docket
Entry 21) and Defendant’s Second Motion to Compel (Docket Entry
23).
(See Docket Entries dated Mar. 1, 2012, and Mar. 6, 2012.)
For the reasons that follow, the instant Motions will be granted.
Background
Plaintiff brings an employment related dispute for slander
(Docket Entry 3, ¶¶ 13-17), sexual discrimination (id. ¶¶ 18-21),
and retaliatory discharge (id. ¶¶ 22-25) against Defendant O’Reilly
Auto Parts, Inc.
Plaintiff also claims that Defendant’s actions
caused “anxiety, depression, and other forms of mental distress.”
(Id. ¶ 24.)
In connection with these claims, Defendant served Plaintiff
with Defendant’s First Set of Interrogatories and First Request for
Production of Documents.
(See Docket Entry 14 at 1.)
Plaintiff,
however, failed to respond to Defendant’s discovery requests within
the time required.
(See id. at 2.)
After conferring with
Plaintiff regarding this deficiency (see Docket Entry 14 at 2),
Defendant filed Defendant’s Motion to Compel (“First Motion to
Compel”), asking this Court to “compel complete responses to its
First Set of Interrogatories and First Request for Production of
Documents to Plaintiff.”
Plaintiff
(Docket Entry 13 at 1.)
subsequently
filed
Plaintiff’s
Response
to
Defendant’s Motion to Compel, which noted that, on the same day
that Plaintiff filed his Response, he “served on counsel for
[D]efendant . . . answers to interrogatories and responses to
request for production of documents, without lodging any objections
or refusing to answer any of the interrogatories and requests.”
(Docket Entry 15 at 1.)
Plaintiff further suggested that such
action “should have the effect of rendering moot [D]efendant’s
[First] [M]otion to [C]ompel.”
(Id.)
Given Plaintiff’s Response,
United States Magistrate Judge P. Trevor Sharp determined that,
“[u]nder the circumstances of this case, the Court finds no reason
for action at this time. . . .”
(Docket Entry 17 at 2.)
Defendant now contends that, during the course of Plaintiff’s
deposition,
Plaintiff
identified
“documents
that
are
in
[Plaintiff’s] possession, custody and control, relevant to this
matter, and responsive to Defendant’s prior discovery requests, but
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which have not yet been produced to Defendant[.]” (Docket Entry 23
at 2.)
Said documents purportedly include: (1) “the names and
contact information of all the witnesses Plaintiff believes have
knowledge or information relating to the alleged sexual harassment
and slander of Plaintiff by Defendant” (id. at 2-3); (2) a “notepad
and/or black phonebook in which Plaintiff listed each potential
witness and their contact information and made notes about what
each particular potential witness told him they witnessed” (id. at
3); and (3) “Plaintiff’s tax returns for 2009 through 2011” (id.).
Defendant
further
contends
that,
at
Plaintiff’s
deposition,
“Plaintiff’s counsel and . . . Defendant’s counsel had an off the
record conversation in which Plaintiff’s counsel agreed to provide
[said] information and documents . . . within one week . . . .”
(Id.)
Having
not
received
those
documents,
Defendant
filed
Defendant’s Second Motion to Compel (Docket Entry 23). Defendant’s
Second Motion to Compel also requests “costs and fees associated
with this motion.”
(Id. at 4.)
Furthermore, in light of the delay
caused by Plaintiff’s nondisclosure and the current deadlines for
discovery and mediation set for January 31, 2012 having already
passed (see Docket Entry 21 at 1), Defendant also filed Defendant’s
Second Motion to Extend the Deadline to Complete Discovery and
Mediation (Docket Entry 21). Plaintiff has not filed a Response to
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either of Defendant’s instant Motions.
(See Docket Entries dated
Feb. 3, 2012, to present.)
Motion to Compel
Under this Court’s Local Rules, failure to respond to a motion
generally warrants granting the relief requested.
See M.D.N.C.
LR7.3(k) (“If a respondent fails to file a response within the time
required by this rule, the motion will be considered and decided as
an uncontested motion, and ordinarily will be granted without
further notice.”).
No grounds exist to depart from that standard
in the instant case.
Not only has Plaintiff previously been
dilatory in responding to Plaintiff’s discovery requests (see
Docket Entries 13, 15, 17), but Plaintiff has also offered no
explanation to this Court for his most recent failure to provide
Defendant with the documents requested and the record lacks any
such explanation.
In addition, the documents requested by Defendant appear
relevant to Defendant’s ability to mount a defense and thus fall
within the scope of discovery.
See Fed. R. Civ. P. 26(b)(1)
(“Parties may obtain discovery regarding any nonprivileged matter
that is relevant to any party’s claim or defense--including the
existence, description, nature, custody, condition, and location of
any documents
location
of
or
other tangible
person
who
know
of
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things
any
and the
identity
discoverable
and
matter.”).
Accordingly, the Court will grant Defendant’s Second Motion to
Compel.
Attorney’s Fees and Costs
Where, as here, a litigant files a motion to compel, “[i]f the
motion is granted--or if the disclosure or requested discovery is
provided after the motion was filed--the court must, after giving
an appropriate opportunity to be heard, require the party . . .
whose conduct necessitated the motion . . . to pay the movant’s
reasonable
expenses
attorney’s fees.”
incurred
in
making
the
motion,
including
Fed. R. Civ. P. 37(a)(5)(A) (emphasis added).
The Court may decline to award expenses in this situation under
only three scenarios:
(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.
Fed. R. Civ. P. 37(a)(5)(A).
The Court finds none of these
limitations applicable.
First, with respect to subsection (i), the Court notes that
Defendant initially addressed its concerns regarding the documents
at issue via an in-person discussion with Plaintiff’s counsel (see
Docket Entry 24 at 3) and, although Plaintiff asserted that he
would provide the documents within a week, Defendant has not
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received said documents (id.).
the
fee-shifting
request,
Second, despite having notice of
Plaintiff
has
failed
to
offer
any
objection for his nondisclosure (see Docket Entries dated Feb. 3,
2012, to present), much less an objection that the Court may
consider
“substantially
37(a)(5)(A)(ii).
justified,”
Finally,
the
Fed.
record
R.
Civ.
reflects
no
P.
other
circumstances that would make an award of attorneys’ fees “unjust.”
Fed. R. Civ. P. 37(a)(5)(A)(iii).
Accordingly, the Court finds no
reason to depart from the standard set forth in Fed. R. Civ. P.
37(a)(5)(A).
Motion for Extension of Time
As
Plaintiff
has
also
declined
to
file
a
response
to
Defendant’s Second Motion to Extend the Deadline to Complete
Discovery and Mediation (Docket Entry 21), the Court’s Local Rule
7.3(k)
again
generally
extension request.
warrants
the
granting
of
Defendant’s
Moreover, the Court finds no basis to dispute
Defendant’s assertions that “Plaintiff’s failure to provide the
identity and contact information of all [Plaintiff’s] potential
witnesses in a timely manner has greatly prejudiced and damaged
Defendant’s ability to complete its investigation of this matter
and prepare a defense prior to the current deadline for the close
of discovery” and that “mediation will be more meaningful after
discovery is completed.”
(Docket Entry 22 at 5-6.)
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Conclusion
Plaintiff has not responded to either Defendant’s Second
Motion to
Compel
or Defendant’s
Second
Motion to
Deadline to Complete Discovery and Mediation.
Extend
the
On the instant
facts, no reason exists to depart from this Court’s local rule that
a
failure
to
requested.
respond
generally
warrants
granting
the
relief
Furthermore, this Court finds no independent basis to
deny the instant Motions.
As a final matter, the Court concludes
that the current trial setting for July 2012 (see Docket Entry 12)
cannot stand in light of the necessary extension of the discovery
period.
IT IS THEREFORE ORDERED that Defendant’s Second Motion to
Compel (Docket Entry 23) is GRANTED in that:
(1) on or before March 23, 2012, Plaintiff shall supplement
its Answers to Defendant’s First Set of Interrogatories and First
Request for Production of Documents to include the documents
identified by Defendant in Defendant’s Second Motion to Compel;
(2)
incurred
Plaintiff
in
making
shall
its
pay
Defendant’s
Second
Motion
to
reasonable
expenses
Compel,
including
attorney’s fees;
(3)
on
or
before
March
30, 2012,
Defendant
shall
serve
Plaintiff with a statement of the reasonable expenses, including
attorney’s fees, arising from Defendant’s Second Motion to Compel;
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(4) if Plaintiff contests the reasonableness of any such
expenses, it shall file, on or before April 15, 2012, a memorandum
of not more than five pages explaining its position along with a
certification that Plaintiff has attempted to confer in good faith
with Defendant about that subject;
(5) on or before April 30, 2012, Defendant may file a response
of not more than five pages to Plaintiff’s foregoing memorandum;
and
(6) on or before May 7, 2012, Plaintiff may file a reply of
not more than five pages to any such response by Defendant.
IT IS FURTHER ORDERED that Defendant’s Second Motion to Extend
the Deadline to Complete Discovery and Mediation (Docket Entry 21)
is GRANTED in that the Parties shall have until April 16, 2012, to
complete discovery and mediation and that, as a result, the Clerk
shall remove this case from the July 2012 Master Calendar and shall
place it on the next available trial setting.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
Date:
March 16, 2012
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