LEWIS v. ALAMANCE COUNTY DEPARTMENT OF SOCIAL SERVICES, ET AL.
Filing
28
MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 05/06/2015. This case comes before the Court on Plaintiff's Motion to Expedite Discovery. (Docket Entry 10 .) For the reasons stated herein, Plaintiff's Motion to Expedite Discovery is DENIED. (Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DONNA JEFFERSON LEWIS,
Plaintiff,
v.
ALAMANCE COUNTY DEPARTMENT
OF SOCIAL SERVICES, et al.,
Defendants.
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1:15CV298
MEMORANDUM OPINION AND ORDER
This case comes before the Court on Plaintiff’s Motion to
Expedite Discovery.
(Docket Entry 10.)
For the reasons that
follow, the Court will deny the instant Motion.
BACKGROUND
Plaintiff’s Complaint alleges, inter alia, that Defendants
violated her due process rights under both the United States and
North Carolina Constitutions by suspending her state license to
operate a rest home.
Complaint,
Plaintiff
(Docket Entry 1 at 10-16.)
also
filed
(and
amended)
Upon filing her
a
Motion
for
Temporary Restraining Order, Preliminary Injunction, and Permanent
Injunction.
(Docket Entries 2, 4.)
The Court (per United States
District Judge Loretta C. Biggs) denied that Motion as to its
request for a temporary restraining order, but did not resolve the
requests for preliminary or permanent injunctions.
7.)
(Docket Entry
Plaintiff now endeavors to conduct expedited discovery in
connection with her pending Motion for Preliminary Injunction.
(Docket Entry 10 at 1.)
Specifically, Plaintiff seeks to serve
requests for production of documents on Defendants Alamance County
Department
of
Social
Services
(“ACDSS”)
and
North
Carolina
Department of Health and Human Services (“NCDHHS”) and to depose
Defendants Morrow-Jennings and Lewis-McCall (both employees of
Defendant ACDSS).
(Id. at 1-2.)
Defendants ACDSS and NCDHHS
responded in opposition (Docket Entries 24, 25) and Plaintiff
replied (Docket Entry 27).
DISCUSSION
The Federal Rules of Civil Procedure generally provide no
access to discovery until the parties have conducted an initial
pretrial conference and established a plan for such discovery.
Fed. R. Civ. P. 26(d)(1) (citing Fed. R. Civ. P. 26(f)).
“[c]ourts
have
granted
circumstances exist.”
4:11CV88,
2011
WL
expedited
discovery
However,
when
unusual
ForceX, Inc. v. Technology Fusion, LLC, No.
2560110,
at
*4
(E.D.
Va.
June
(unpublished) (internal quotation marks omitted).
27,
2011)
“A specific
standard for evaluating expedited discovery requests is not set out
in the Federal Rules of Civil Procedure nor has [the Fourth
Circuit] established such a standard.”
L’Occitane, Inc. v. Trans
Source Logistics, Inc., No. WMN-09-CV-2499, 2009 WL 3746690, at *2
(D. Md. Nov. 2, 2009) (unpublished).
-2-
In evaluating such requests,
district courts in the Fourth Circuit have followed two approaches:
one looks to the reasonableness of the request, taking into account
the totality of the circumstances, and the other follows a modified
form of the preliminary injunction test.
ForceX, 2011 WL 2560110,
at *5.
The United States District Court for the Eastern District of
North
Carolina
adopted
the
reasonableness
test
for
expedited
discovery in 2005. Dimension Data N. Am., Inc. v. NetStar-1, Inc.,
226 F.R.D. 528, 531 (E.D.N.C. 2005).
Under that test, a court
facing a motion for expedited discovery in connection with a
request for preliminary injunction may consider the timing of the
motion, whether the party seeking discovery has narrowly tailored
its requests to gather information relevant to a preliminary
injunction determination, and whether the requesting party has
shown a likelihood of irreparable harm without access to expedited
discovery.
Id. at 531-32.
However, since that adoption by the
Eastern District of North Carolina, the United States Supreme Court
endorsed
a
stricter
standard
for
obtaining
a
preliminary
injunction, which requires a clear showing by the party seeking the
injunction “‘[1] that [s]he is likely to succeed on the merits, [2]
that [s]he is likely to suffer irreparable harm in the absence of
preliminary relief, [3] that the balance of equities tips in h[er]
favor, and [4] that an injunction is in the public interest.’”
Rebel Debutante LLC v. Forsythe Cosmetic Grp., Ltd., 799 F. Supp.
-3-
2d 558, 568 (M.D.N.C. 2011) (Schroeder, J.) (quoting Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)).1
In light of that development, the United States District Court
for
the
Eastern
District
of
Virginia
“disagree[d]
that
the
reasonableness standard is in line with the reasoning of the
Supreme Court and the Fourth Circuit when it sought to curtail
emergency relief, and provide such relief only in unusual or
extraordinary circumstances.”
ForceX, 2011 WL 2560110, at *5.
That court reasoned that “[t]he balancing of hardships [as to
preliminary injunctions] has been discounted by the Supreme Court
in favor of proof on each of the four elements, and emphasis placed
on a strong showing of success on the merits of the action by the
[p]laintiff, and a showing that irreparable harm is ‘likely’ and
not simply ‘possible.’”
Id.
Accordingly, that court denied
expedited discovery on the basis that the moving party had not
adequately shown (1) a likelihood of success on the merits of the
case or (2) irreparable harm in the absence of expedited discovery.
Id. at *6-7.
1
The previous test in the Fourth Circuit for a preliminary
injunction relied on similar concerns, but required courts to
perform a factors-based balancing of hardships between the parties
- as opposed to necessitating a clear showing by the moving party
as to all elements. See generally Real Truth About Obama, Inc. v.
Federal Election Comm’n, 575 F.3d 342, 345-46 (4th Cir. 2009),
vacated on other grounds, 559 U.S. 1089 (2010), restated in
relevant part on remand, 607 F.3d 355 (4th Cir. 2010).
-4-
In
the
instant
matter,
Plaintiff
reasonableness test should apply.
Entry 27 at 9.)
asserts
that
the
(Docket Entry 11 at 5-6; Docket
Defendant NCDHHS appears to agree with Plaintiff
(see Docket Entry 26 at 3-4), whereas Defendant ACDSS asserts that
Plaintiff “cannot satisfy either standard” (Docket Entry 24 at 4).
Ultimately, the Court need not determine which test to apply,
because it agrees with Defendant ACDSS that Plaintiff has failed to
satisfy either standard.
Specifically, the Court notes that under either test, the
moving party must show a likelihood of irreparable harm without
access to early discovery.
Compare ForceX, 2011 WL 2560110, at *7
(modified preliminary injunction test), with Dimension Data, 226
F.R.D. at 532 (reasonableness test).
In that regard, Plaintiff
contends:
Last, in weighing the potential prejudice or hardship to
[Defendants] as against the harm to [Plaintiff] in not
being able to discover and introduce evidence of these
Defendants’ improper activities in support of her request
for
preliminary
injunctive relief,
the
harm
to
[Plaintiff] substantially outweighs any burden the
Defendants may assert in having to respond to such
limited discovery in a lawsuit that arose from its
earlier refusal to provide [Plaintiff] a hearing.
(Docket Entry 11 at 9-10.)2
circular
fashion
that,
Plaintiff thus appears to argue, in a
should
the
Court
deny
her
access
to
expedited discovery, she would suffer the harm of not having access
2
Pin citations to this document refer to the page numbers in
the footer appended upon filing via the CM/ECF system.
-5-
to expedited discovery.
(See id.)
Plaintiff’s instant filings
otherwise fail to address the issue of irreparable harm as it
concerns access to expedited discovery, or even the broader issue
of
whether
Plaintiff
will
suffer
irreparable
harm
without
a
preliminary injunction. (See Docket Entry 11 at 1-11; Docket Entry
27 at 1-11.)
As Defendant NCDSS observed, the only apparent,
ongoing harm suffered by Plaintiff is the loss of revenue due to
the suspension of her license, and such financial injury does not
qualify as irreparable harm. (Docket Entry 26 at 6 (citing Sampson
v. Murray, 415 U.S. 61, 90 (1974)).)
Such circumstances alone
cannot support Plaintiff’s requests to conduct depositions and
serve document requests outside the ordinary discovery schedule,
even under the reasonableness test. See Dimension Data, 226 F.R.D.
at 531 (finding ongoing loss of revenue insufficient to satisfy
irreparable harm finding necessary to support access to early
discovery).
Nor do Plaintiff’s discovery requests appear targeted at
gathering information relevant to showing irreparable harm, or
otherwise tailored toward obtaining a preliminary injunction.
In
that regard, Plaintiff seeks to discover all communications between
Defendants
(as
Department)
pertaining
facility
and,
well
as
communications
to
their
further,
to
investigations
depose
concerning those communications.
with
two
the
of
individual
Sheriff’s
Plaintiff’s
Defendants
(See Docket Entry 11 at 10-11.)
-6-
Beyond the fact that these communications may bear relevance to the
ultimate merits of Plaintiff’s case (and thus might plausibly
support a likelihood of success on the merits under the preliminary
injunction standard), they do not appear specifically relevant to
obtaining a preliminary injunction. See Dimension Data, 226 F.R.D.
at 532 (rejecting expedited discovery request which “could be more
narrowly tailored to focus on information believed to be probative
to the preliminary injunction analysis”).
Simply put, without, at
minimum, some showing of irreparable harm - or the ability to prove
such harm with access to expedited discovery - Plaintiff must wait
until the parties have adopted a scheduling order to obtain such
discovery.
CONCLUSION
Plaintiff has failed to demonstrate unusual circumstances to
support expedited discovery.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Expedite
Discovery (Docket Entry 10) is DENIED.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
May 6, 2015
-7-
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