MOORE v. DAN HOLDINGS, INC. et al

Filing 21

MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 10/18/2012; that Defendants' Motion for Extension of Time (Docket Entry 16 ) is GRANTED and Defendants shall have until November 14, 2012, to answer Plaintiff's Fi rst Set of Interrogatories and Plaintiff's First Set of Requests for Production of Documents. FURTHER that Plaintiff and her counsel, including in particular Nicholas J. Sanservino, Jr., of The Noble Law Firm, PLLC, are PLACED ON NOTI CE that any further failure to behave cooperatively and courteously in connection with discovery, any further violation of the spirit and purpose of the discovery rules, and any further submission of materials to the Court that have any imprope r purpose or that lack a proper legal or factual basis will result in action by the Court, including the consideration of any and all available sanctions. FURTHER that the Court reserves the right to consider all of the matters documented in this Order in assessing what, if any, action to take in the event cause again arises to examine the conduct of Plaintiff and/or Plaintiff's counsel in this or any other case. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

FELISHA RICH MOORE,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
DAN HOLDINGS, INC., et al.,
Defendants.

1:12CV503

MEMORANDUM OPINION AND ORDER
This case comes before the Court on Defendants’ Motion for
Extension of Time (Docket Entry 16).
11, 2012.)

(See Docket Entry dated Oct.

For the reasons that follow, the Court will grant the

instant Motion and will caution Plaintiff’s counsel, Nicholas J.
Sanservino, Jr., of The Noble Law Firm, PLLC, in particular, to
take a more measured and civil approach in cases before this Court.
BACKGROUND
With the instant Motion, Defendants seek “a 30-day extension
of time [from October 15, 2012, to November 14, 2012,] to answer
Plaintiff’s First Set of Interrogatories and Plaintiff’s First Set
of

Requests

Requests’).”

for

Production

of

(Docket Entry 16 at 1.)

Documents

(the

‘Discovery

As grounds for such relief,

the instant Motion asserts that “additional time is needed to
gather the information and documents necessary to respond to the
Discovery Requests.”

(Id. at 2.)

It further represents that

“Defendants are working to gather information and documents, but
need a thirty (30) day extension of time to respond to the
Discovery Requests.” (Id.) The instant Motion also observes that,
“because this case is still in the very early stages, there will be
no prejudice to Plaintiff as a result of the requested thirty (30)
day extension.”

(Id.)1

Finally, it reports that “Defendants have

consulted with Plaintiff’s counsel regarding this request for an
extension.

Plaintiff’s counsel, however, objects to a thirty-day

extension of time.”

(Id. (emphasis added).)

In response, Plaintiff filed an Opposition to Defendants’
Motion for Extension of Time, for the purpose of “correct[ing]
certain misstatements and/or omissions contained in Defendants’
[instant Motion].”

(Docket Entry 17 at 1 (emphasis added).)

Attorney Sanservino electronically signed said Opposition (id. at
2), the entire substance of which consists of the following:
1. On October 9, 2012, Defendants advised Plaintiff
for the first time that they desired a 30-day extension
of time to respond to Plaintiff’s [Discovery] Requests.
2. By email dated October 10, 2012, Plaintiff’s
counsel
advised
Defendants’
counsel
that
given
Defendants’ recent conduct (which Plaintiff believes does
not comply with the good-faith discovery obligations
imposed by the procedural rules), Plaintiff could not
consent to a 30-day extension of time.
However,
Plaintiff’s counsel offered to consent to a 15-day
extension of time -- to October 30, 2012 -- for
Defendants to serve their discovery responses. A true

The Scheduling Order in this case sets a discovery deadline
of February 27, 2013. (See Text Order dated Aug. 27, 2012.)
1

-2-

and accurate copy of the October 10, 2012 email is
attached as Exhibit A.
3. Defendants’ [instant Motion] makes no reference
to the October 10, 2012 email or to Plaintiff’s
good-faith offer to consent to a 15-day extension of
time.
(Id. at 1-2 (emphasis added).)
The email attached to Plaintiff’s Opposition as Exhibit A (the
“Sanservino October 10 Email”)2 begins as follows:

“With respect

to Defendants’ [request] for an extension of time, it has been my
practice to extend professional courtesies to opposing counsel and
consent to such motions provided that discovery has otherwise
proceeded

in

good-faith.

As

I

have

explained

in

prior

correspondence, I have reservations about whether that has occurred
here.”

(Docket Entry 17-1 at 2 (emphasis added).)

Next, said

email describes various events that allegedly justify Attorney
Sanservino’s “reservations” about whether Defendants have conducted
discovery in “good-faith.”

(Id.)

It then concludes:

Given the above, and in an effort to reach a good-faith
compromise on the issue, Plaintiff will consent to an
approximately two-week extension of time -- to October
30, 2012 -- for Defendants to serve their discovery
responses, provided that Defendants agree to make

The Sanservino October 10 Email identifies Attorney
Sanservino as the sender, Defendants’ counsel as the recipient, and
Attorney Sanservino’s co-counsel, Laura Noble, as a courtesy-copy
recipient. (Docket Entry 17-1 at 2.) Attorney Noble also appears
to have received courtesy copies of other emails material to the
matters at issue in this Order.
(See Docket Entry 18-2 at 2;
Docket Entry 18-3 at 2, 6-10.) She thus cannot disclaim knowledge
of the manner in which Attorney Sanservino has comported himself.
2

-3-

[Defendant William] Ziefle available for deposition by no
later than November 16, 2012.
I believe this is an
acceptable compromise to Defendants’ purported need for
an extension of time.
(Id. (emphasis added).)
Defendants thereafter replied and therein “den[ied] that they
have engaged in any inappropriate conduct regarding discovery or
otherwise in this case and den[ied] that the issues raised by
Plaintiff in [the Sanservino October 10 Email] are relevant in the
first place to Defendants’ [instant] [M]otion . . . .”
Entry 18 at 2.)

(Docket

In addition, Defendants attached “some of the

prior communications between counsel relating to [matters addressed
in the Sanservino October 10 Email] . . . [to] show that Defendants
and their counsel are proceeding in good faith . . . .”
3.)

(Id. at 2-

Defendants concluded by acknowledging that “Plaintiff offered

to agree to a fifteen (15) day extension of time, with certain
conditions” (id. at 3), but reiterating that “Defendants believe
they need an additional thirty (30) days to gather information and
respond to the Discovery Requests” (id.).
DISCUSSION
Relevant Standards
Litigants generally have 30 days to respond to interrogatories
and/or document requests, but the parties may stipulate to a longer
period and the Court may extend the period.

See Fed. R. Civ. P.

33(b)(2), 34(b)(2); see also Fed. R. Civ. P. 6(b)(1) (“When an act
-4-

may or must be done within a specified time, the [C]ourt may, for
good cause, extend the time . . . if the [C]ourt acts, or if a
request is made, before the original time or its extension expires
. . . .”); M.D.N.C. LR6.1(a) (“All motions for an extension of time
. . . must comply with Fed. R. Civ. P. 6(b) and show prior
consultation with opposing counsel and the views of opposing
counsel.”).

“By Local Rule, this Court has directed ‘counsel to

conduct discovery in good faith and to cooperate and be courteous
with each other in all phases of the discovery process.’”

Kinetic

Concepts, Inc. v. ConvaTec Inc., 268 F.R.D. 226, 242 (M.D.N.C.
2010) (quoting M.D.N.C. LR26.1(b)(1)) (original emphasis omitted)
(emphasis added).

This Local Rule (like all others) “shall be

interpreted and applied to foster civility in the practice of law
before this Court . . . .”

M.D.N.C. LR1.1 (emphasis added).

Moreover, “[i]f an attorney or a party fails to comply with a
[L]ocal [R]ule of this [C]ourt, the [C]ourt may impose sanctions
against the attorney or party, or both.”

M.D.N.C. LR83.4(a).

Additionally, litigants have “an affirmative obligation to
engage in pretrial discovery in a responsible manner that is
consistent with the spirit and purposes of Rules 26 through 37 [of
the Federal Rules of Civil Procedure].”

Fed. R. Civ. P. 26

advisory comm.’s notes, 1983 Amend., Subdiv. (g) (emphasis added).
“[T]he spirit of th[ose] rules is violated when advocates attempt
to use discovery tools as tactical weapons . . . .”
-5-

Fed. R. Civ.

P. 26 advisory comm.’s notes, 1983 Amend. (emphasis added).

For

example, “[i]f [a party’s] counsel believes that [the opposing side
has not met discovery obligations], his remedy is to file a
[m]otion [seeking relief from the Court].
. . . .”

He may not retaliate

Jayne H. Lee, Inc. v. Flagstaff Indus. Corp., 173 F.R.D.

651, 657 (D. Md. 1997) (internal footnote omitted) (emphasis
added).

If a litigant engages in abusive retaliation, the Court

has authority to enter a protective order and to order that
litigant (and/or that litigant’s counsel) to pay the opposing
side’s related expenses (including reasonable attorney fees).

See

Fed. R. Civ. P. 26(c)(1) and (3), 37(a)(5).
Similarly, the Court “may impose an appropriate sanction on
any attorney, law firm, or party that violate[s] [Federal] Rule [of
Civil Procedure] 11(b),” Fed. R. Civ. P. 11(c)(1), which requires,
inter alia, that all filings made with the Court:
1) “not be[] presented for any improper purpose, such as to
harass . . . or needlessly increase the cost of litigation,” Fed.
R. Civ. P. 11(b)(1);
2) contain only “legal contentions [that] are warranted by
existing

law

or

by

a

nonfrivolous

argument

for

extending,

modifying, or reversing existing law or for establishing new law,
Fed. R. Civ. P. 11(b)(2);
3) include only “factual contentions [that] have evidentiary
support

or,

if

specifically

so
-6-

identified,

will

likely

have

evidentiary support after a reasonable opportunity for further
investigation,” Fed. R. Civ. P. 11(b)(3); and
4) offer only “denials of factual contentions . . . warranted
on the evidence or, if specifically so identified, . . . reasonably
based on belief or a lack

of information,” Fed. R. Civ. P.

11(b)(4).3
“Despite the[se] unambiguous dictates . . . that require
attorneys to conduct discovery in a cooperative fashion, courts
continue to find that ‘hardball discovery is still a problem in
some cases.’” Kinetic Concepts, 268 F.R.D. at 243 (quoting Network
Computing Servs. Corp. v. Cisco Sys., Inc., 223 F.R.D. 392, 395
(D.S.C. 2004)) (internal brackets and ellipses omitted).

Such

conduct “is costly to our system and consumes an inordinate amount
of judicial resources.”

Network Computing, 223 F.R.D. at 395.

Accordingly, the Court will not tolerate tactics of this sort, but
instead will employ all authorized means to stop and to deter them.

“The sanction may include nonmonetary directives; an order
to pay a penalty into court; or, if imposed on motion and warranted
for effective deterrence, an order directing payment to the movant
of part or all of the reasonable attorney’s fees and other expenses
directly resulting from the violation.” Fed. R. Civ. P. 11(c)(4).
Further, by statute, “[a]ny attorney . . . who so multiplies the
proceedings in any case unreasonably and vexatiously may be
required by the [C]ourt to satisfy personally the excess costs,
expenses, and attorneys’ fees reasonably incurred because of such
conduct.” 28 U.S.C. § 1927.
3

-7-

Analysis
Attorney Sanservino’s handling of this and related matters
appears to have contravened the foregoing standards in a number of
respects.

First, notwithstanding this Court’s directive that

counsel should cooperate with and should show courtesy to opposing
counsel

during

discovery,

see

M.D.N.C.

LR26.1(b)(1),

and

the

mandate that all court filings have a basis in law and fact, see
Fed. R. Civ. P. 11(b)(2)-(4), Attorney Sanservino has opposed
Defendants’ requested 30-day extension (and has filed a document in
this Court doing so) without any legitimate justification. In this
regard, Attorney Sanservino has failed to show any ground for the
Court to question the representations by Defendants’ counsel, an
officer of the Court, that she and her clients have begun gathering
information and documents necessary to answer Plaintiff’s Discovery
Requests, but that they require more time to complete that work.4

Nor (unsurprisingly, given the early stage of the discovery
period at which the instant Motion comes) has Attorney Sanservino
articulated any prejudice Plaintiff would suffer from the requested
extension. (See Docket Entry 17 at 1-2.) The Sanservino October
10 Email did assert that “an extension of time to mid-November
prejudices Plaintiff as it relates to [an] October 29 deposition
[of Defendant Ziefle that Attorney Sanservino noticed on October
4]” (Docket Entry 17-1 at 2); however, the Sanservino October 10
Email also acknowledges that said deposition could not proceed as
noticed in any event because Defendant Zeifle would be out of the
country on the date in question, a fact Attorney Sanservino
apparently did not know when he noticed the deposition because he
failed to consult Defendants’ counsel about deposition dates (see
id.). Even more troubling, Attorney Sanservino’s lack of prior
consultation on that occasion came after Defendants’ counsel had
objected to Attorney Sanservino’s failure to consult about dates
4

(continued...)

-8-

Moreover, the Court regularly receives extension requests of
this sort and the undersigned cannot recall a single occasion in
nearly three years of handling such matters in which an attorney
has opposed a first 30-day extension of time to respond to written
discovery requests. Other courts also view motions of this sort as
routine matters unworthy of contest.

See, e.g., Martin Eng’g Co.

v. CVP Grp., Inc., No. 06C4687, 2006 WL 3541777, at *1-2 (N.D. Ill.
Dec. 7, 2006) (unpublished) (citing judicial condemnations of “the
practice of refusing reasonable requests for extensions of time,”
observing that “[t]he plaintiff d[id] not dispute the accuracy of
the representations [by the defendant as to the need for more time
to answer discovery],” and ruling that “the request [for extension
of time] was reasonable, and the plaintiff’s response (and ensuing

4

(...continued)

for the deposition of another witness. (See Docket Entry 18-3 at
6.) Other courts have labeled such “Notice First” approaches to
deposition scheduling discourteous. See, e.g., Kingston v. Nelson,
No. 2:04CV156-DB-PMW, 2007 WL 2985046, at * 8 (D. Utah Oct. 11,
2007) (unpublished) (describing fact that “Plaintiffs’ counsel made
no effort to contact Defendants’ counsel before sending out the
deposition
notice”
as
having
“demonstrate[d]
[Plaintiffs’
counsel’s] lack of courtesy”); Imperial Chems. Indus., PLC v. Barr
Labs., Inc., 126 F.R.D. 467, 471 (S.D.N.Y. 1989) (observing that
even witnesses affiliated with parties “are entitled to the minimal
courtesy of consultation concerning deposition dates convenient to
them”). Attorney Sanservino’s behavior in this regard thus appears
to have violated this Court’s requirement that counsel pursue
discovery in a courteous manner. See M.D.N.C. LR26.1(b)(1). It
also seems in significant tension with the Scheduling Order in this
case, which provides that “[t]he parties should cooperate with each
other with regard to scheduling of depositions.” (Docket Entry 10
at 5; see also Text Order dated Aug. 27, 2012 (adopting said
portion of Docket Entry 10).)
-9-

written objection) quite the opposite [because it] needlessly
required

the

expenditure

of

time

that

could

have

been

more

profitably utilized”); Scotch Game Call Co. v. Lucky Strike Bait
Works, Ltd., 148 F.R.D. 65, (W.D.N.Y. 1993) (“As is not unusual in
this district, Defendant was unable to respond to the discovery
requests within the time allowed under the rules.”); Freshman,
Mulvaney, Comsky, Kahan & Deutsch v. Superior Ct., 218 Cal. Rptr.
533, 541 (Cal. Ct. App. 1985) (“Lengthy requests for admission
and/or interrogatories quite often require requests for extension
of time to respond . . . and such reasonable requests for extension
of time should be freely granted by counsel . . . .”).5
Regrettably, Attorney Sanservino’s opposition to Defendants’
extension request involves additional aggravating circumstances in
that, beyond having no valid reason to deny consent (e.g., lack of
need or prejudice), he appears to have acknowledged an improper
motive for his action.

Specifically, in the Sanservino October 10

Email, after manifesting an appreciation that consenting to an

Indeed, courts have sanctioned attorneys for such unwarranted
opposition to reasonable extension requests.
See, e.g., Scotch
Game, 148 F.R.D. at 67-68 (explaining rationale for imposition of
monetary sanctions under 28 U.S.C. § 1927 as follows: “There can
be no serious question that Plaintiff’s attorneys’ conduct here
unreasonably multiplied the proceedings and was in bad faith.
Plaintiff’s counsel refused what the record shows to be a
reasonable request for an extension of time, forced opposing
counsel to file a motion for an extension, opposed the motion
without making any effort whatsoever to justify or explain its
position, . . . and forced the court to rule on an unnecessary
motion. Such conduct cannot be condoned.”).
5

-10-

opponent’s extension requests of this kind constitutes a matter of
“professional
Sanservino

courtes[y]”

stated

that

he

(Docket
opted

Entry
to

17-1

at

withhold

2),

consent

Attorney
to

the

requested extension in this instance because he had “reservations”
about whether Defendants had “proceeded in good-faith” in other
aspects of the litigation (id.).6

Retaliatory tactics of this sort

violate the spirit of the discovery rules.

See generally Fed. R.

Civ. P. 26 advisory comm.’s notes, 1983 Amend.; Jayne H. Lee, 173
F.R.D. at 657.

If Plaintiff had legitimate grievances regarding

Defendants’ prior discovery conduct, he had the option of seeking
judicial intervention; he had no right, however, to engage in selfhelp retaliation in other areas of discovery.

See id.

In yet further aggravation, Attorney Sanservino’s accusations
of lack of “good-faith” against Defendants (and their counsel)
(which he tendered to the Court) cannot withstand scrutiny (at
least on the record before the Court). For example, the Sanservino
October 10 Email charges that Defendants’ counsel “demanded that
Plaintiff serve amended Initial Disclosures even though Plaintiff’s

In the just over three hours between his sending of the
Sanservino October 10 Email (on “October 10, 2012 [at] 12:36:09 PM”
(Docket Entry 17-1 at 2)) and his filing of Plaintiff’s Opposition
(“on 10/10/2012 at 3:45 PM” (Docket Entry 17, Notice of Elec.
Filing)), Attorney Sanservino’s “reservations” about whether
Defendants had conducted discovery in “good-faith” (Docket Entry
17-1 at 2) hardened into a “belie[f]” that their “recent conduct
. . . d[id] not comply with the good-faith discovery obligations
imposed by the procedural rules” (Docket Entry 17 at 1).
6

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original disclosures were timely and properly served in accordance
with the procedural rules.”

(Docket Entry 17-1 at 2.)

Attorney

Sanservino neither quoted language used by Defendants’ counsel nor
appended documentation to support this assertion.
also Docket Entry 17.)

(See id.; see

However, emails submitted by Defendants

reflect that, far from gratuitously “demand[ing]” that Plaintiff
amend

proper

Initial

Disclosures

(Docket

Entry

17-1

at

2),

Defendants’ counsel politely pointed out specific deficiencies in
Plaintiff’s Initial Disclosures (with quotations to the applicable
rule)

and

then

“request[ed]”

and

supplement her Initial Disclosures.

“ask[ed]”

that

Plaintiff

(Docket Entry 18-3 at 2.)

Moreover, Defendants’ counsel invited further discussion.

(Id.)

Attorney Sanservino simply has shown no failure by Defendants or
their counsel to act in good-faith as to Initial Disclosures.
Next,

the

Sanservino

October

10

Email

complains

that

Defendants’ counsel “attempted to insist that [the] deposition [of
a

witness

apparently

affiliated

with

Defendants]

occur

at

[Defendants’ counsel’s] offices even though Defendants had no right
to do so . . . .”

(Docket Entry 17-1 at 2.)

Again, Attorney

Sanservino failed either to quote from or to attach copies of
materials to substantiate his characterization in this regard (see
id.; see also Docket Entry 17), but an email supplied by Defendants
shows that their counsel merely stated that they “would like to
have th[at] deposition in [their counsel’s] Greensboro office”
-12-

(Docket Entry 18-3 at 9). Further, Defendants’ counsel promised to
“extend [Attorney Sanservino] the same courtesy [i.e., of allowing
him to host] when [Defendants] take the deposition of Plaintiff and
Plaintiff’s

witnesses.”

(Id.)

To

label

frivolous

Attorney

Sanservino’s suggestion that such conduct represents a failure by
Defendants’ counsel to approach discovery in “good-faith” would
understate things considerably.
The

Sanservino

October

10

Email

further

grouses

that

Defendants’ counsel “objected to the original deposition date [of
that same witness] without providing a legitimate reason for why
Defendants could not produce him on the original date.”
Entry 17-1 at 2.)

Once more, Attorney Sanservino provided no

documentation to validate this allegation.
Docket Entry 17.)

(Docket

(See id.; see also

Defendants, however, filed copies of emails

reflecting that Attorney Sanservino noticed the deposition in
question for the disputed date without consulting Defendants’
counsel7 and that Defendants’ counsel had previously-scheduled
court obligations that made Attorney Sanservino’s self-selected

Courts view the noticing of depositions without prior
consultation as discourteous. See, e.g., Kingston v. Nelson, No.
2:04CV156-DB-PMW, 2007 WL 2985046, at * 8 (D. Utah Oct. 11, 2007)
(unpublished); Imperial Chems. Indus., PLC v. Barr Labs., Inc., 126
F.R.D. 467, 471 (S.D.N.Y. 1989). Discourteous conduct in discovery
violates this Court’s Local Rules. See M.D.N.C. LR26.1(b)(1).
7

-13-

date unworkable.

(See Docket Entry 18-3 at 6, 9.)8

Attorney

Sanservino’s charge of lack of good-faith by Defendants as to this
issue thus also falls flat or, more accurately, boomerangs in a
manner

that

reveals

Attorney

Sanservino

actually

employed

litigation tactics indicative of bad faith.
Finally, the Sanservino October 10 Email includes serious but
entirely unsupported accusations.

More specifically, without any

citation or documentation, Attorney Sanservino:

1) asserted that

a witness apparently affiliated with Defendants “repeatedly failed
to provide responsive and truthful answers to deposition questions”
(Docket Entry 17-1 at 2); and 2) implied that Defendants have a
“strategy” of delaying this case and the discovery process (id.).
The

following

observations

by

then-Magistrate

Judge

and

now-

District Judge Max O. Cogburn well capture the Court’s reaction to
Attorney Sanservino’s approach in this regard:

“[Counsel] are

expected to treat one another with civility, especially in the
public environs of the court. . . .

[C]ounsel for [one party]

accuses counsel for [the opposing side] of ‘continued misconduct in

To make matters still worse, even after Attorney Sanservino
knew Defendants’ counsel objected to that unilaterally-imposed
date, Attorney Sanservino impliedly claimed an entitlement to
“court intervention as to Defendants’ refusal to appear” thereon.
(Docket Entry 18-3 at 10.) This approach appears to conflict with
the Local Rules’ requirement of cooperation and courtesy in
discovery, see M.D.N.C. LR26.1(b)(1), as well as the Scheduling
Order’s provision mandating cooperation in deposition scheduling
(Docket Entry 10 at 5; see also Text Order dated Aug. 27, 2012
(adopting in relevant part Docket Entry 10)).
8

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handling this matter.’

Subjective speculation in public documents

is a dangerous thing . . . .”

McBrayer v. Living Ctrs.-Se., Inc.,

No. 4:98CV199, 1999 WL 33315673, at *2 (W.D.N.C. Apr. 30, 1999)
(unpublished).

To put matters more pointedly, the Court declines

to give any credence to Attorney Sanservino’s unsupported (and
thus, for current purposes, unjustified) attacks on Defendants,
their

witness,

and/or

their

counsel

and

cautions

Attorney

Sanservino to refrain from littering the record of this Court with
conclusory allegations (or insinuations) of wrongdoing.
The Court also rejects the assertion in Plaintiff’s Opposition
that Defendants and their counsel made “misstatements” in the
instant

Motion

Sanservino’s

Sanservino

statement

in

Defendants’

represent

Attorney

Entry

accusation

demonstrated
accurately

(Docket

from

the

17

an

1),

email

counsel’s
record”

apparently

Defendants’

at

that

well

the

(Docket

Entry

these

Motion:

as

Attorney

instant

“continued

based

instant

as

Motion

inability
18-2

charges

at

to
2).

on

this

“Defendants

have

consulted with Plaintiff’s counsel regarding this request for an
extension.

Plaintiff’s counsel, however, objects to a thirty-day

extension of time.” (Docket Entry 16 at 2.) Attorney Sanservino’s
allegations of misrepresentation lack merit because, as Defendants’
counsel succinctly put it, the instant Motion “simply indicated
that [Attorney Sanservino] did not agree to the requested 30 day
extension, which is accurate.”

(Docket Entry 18-2 at 2.)

-15-

The

Court urges Attorney Sanservino in the strongest possible terms to
avoid falsely accusing others of making “misstatements” or of
failing to “accurately represent the record.”

Such false charges

amount to “misstatements” by him and reflect a failure on his part
to “accurately represent the record,” conduct which (by his own
words) Attorney Sanservino recognizes as wrongful.
Nor

does

the

Court

find

persuasive

the

contention

that

Defendants acted improperly by failing to include within the
instant Motion the fact that Attorney Sanservino:
to

consent

to

“reservations”

the

requested 30-day extension

about

whether

Defendants

had

1) had refused
because

approached

he

had

other

discovery issues in “good-faith”; and 2) had “offered to consent to
a 15-day extension of time.”

(Docket Entry 17 at 1.)

Simply put,

the applicable Local Rule requires a litigant to report the “views
of opposing counsel” about the requested extension (e.g., “they
object”), not the rationale for those “views” or any counterproposals. See M.D.N.C. LR6.1(a). A contrary construction of said
Local Rule inevitably would lead to satellite disputes about
whether the moving party accurately characterized the opposing
party’s motivation or bargaining efforts.9

The Court further notes that, in the course of criticizing
Defendants for omitting information from the instant Motion,
Attorney Sanservino omitted from the body of Plaintiff’s Opposition
the seemingly material fact that he conditioned his “offer” to
consent to a 15-day extension upon Defendants agreeing to a
9

(continued...)

-16-

As a final matter, the Court admonishes Attorney Sanservino
for the condescending and sarcastic tone he has taken in some
communications with Defendants’ counsel.

(See, e.g., Docket Entry

18-3 at 7 (beginning email by stating “[u]nfortunately, I do not
believe you adequately reviewed my September 11 cover letter,” then
quoting at length from said letter, before stating:

“If you need

me to send you another copy of the September 11 letter, I’m happy
to do so.”); see also id. at 7-8 (lecturing about “standard
practice” for deposition noticing).)
when

emotions

civilly.

run

high

in

Even (or perhaps especially)

litigation,

attorneys

must

behave

See, e.g., United States v. Venable, 666 F.3d 893, 904

n.4 (4th Cir. 2012) (condemning directing of “sarcastic[]” remarks
at opposing counsel as “disrespectful and uncivil”); Smith v. Bank
of Stanly, No. 1:09CV951, 2011 WL 627625, at *31 n.53 (M.D.N.C.
Feb. 11, 2011) (unpublished) (recommending entry of show cause
order to address, inter alia, attorney’s sarcasm toward opposing
counsel

during

deposition),

recommendation

adopted,

slip

op.

(M.D.N.C. Mar. 31, 2011); McBrayer, 1999 WL 33315673, at *1 (“If
attorneys work together, critics of the legal profession who argue
that civility is no longer present in civil law can be silenced.”).

9

(...continued)

particular date for a deposition. (Compare Docket Entry 17 at 1-2,
with Docket Entry 17-1 at 2.) Inconsistencies of that sort tend to
undermine one’s credibility.
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CONCLUSION
Defendants have shown good cause for the requested extension
of time.

In addition, the record reflects that, as to this and

related matters, Plaintiff’s counsel has fallen short of the
standards set by the applicable rules.
IT IS THEREFORE ORDERED that Defendants’ Motion for Extension
of Time (Docket Entry 16) is GRANTED and Defendants shall have
until November
Interrogatories

14,
and

2012,

to

answer Plaintiff’s

Plaintiff’s

First

First

Set

Set

of

Requests

Plaintiff

and

her

of
for

Production of Documents.
IT

IS

FURTHER

ORDERED

that

counsel,

including in particular Nicholas J. Sanservino, Jr., of The Noble
Law Firm, PLLC, are PLACED ON NOTICE that any further failure to
behave cooperatively and courteously in connection with discovery,
any further violation of the spirit and purpose of the discovery
rules, and any further submission of materials to the Court that
have any improper purpose or that lack a proper legal or factual
basis

will

result

in

action

by

the

Court,

including

the

consideration of any and all available sanctions.
IT IS FURTHER ORDERED that the Court reserves the right to
consider all of the matters documented in this Order in assessing
what, if any, action to take in the event cause again arises to

-18-

examine the conduct of Plaintiff and/or Plaintiff’s counsel in this
or any other case.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
October 18, 2012

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