BEASLEY V. NOVANT HEALTH, INC.
Filing
18
MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 08/19/2016; that the Motion to Compel (Docket Entry 15 ) is GRANTED as set out and that if Novant timely serves a statement of expenses, Beasley shall file, on or before Sept ember 16, 2016, either a Notice or a Memorandum of no more than five pages as set out and that on or before September 23, 2016, Novant may file a Response as set out to any Memorandum timely filed and that on or before October 7, 2016, Beasley may file a Reply as set out and that upon completion of the foregoing briefing or the time period for such briefing the Clerk shall refer this matter back to the undersigned Magistrate Judge for further action. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MYTRIS M. BEASLEY,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
NOVANT HEALTH, INC., d/b/a
FORSYTH MEDICAL CENTER,
Defendant.
1:15cv946
MEMORANDUM OPINION AND ORDER
This case comes before the Court on “Defendant’s Motion to
Compel
Initial
Disclosures
and
Discovery
Responses
Sanctions” (Docket Entry 15) (the “Motion to Compel”).
and
for
For the
reasons that follow, the Court will grant the Motion to Compel as
specified herein.
BACKGROUND
Seeking to recover for alleged discrimination and associated
torts, Plaintiff Mytris M. Beasley (“Beasley”) commenced this
action against her former employer, Novant Health, Inc. d/b/a
Forsyth Medical Center (“Novant”).
(Docket Entry 6.)1
Although
initially represented by counsel, Beasley consented to her lawyers’
withdrawal and elected to proceed pro se at a hearing before the
1
Novant maintains that “Forsyth Memorial Hospital, Inc.
d/b/a Novant Health Forsyth Medical Center” constitutes the proper
defendant in this matter. (See, e.g., Docket Entry 15 at 1 n.1.)
(Citations herein to Docket Entry pages utilize the document’s
internal pagination if unified internal pagination exists. In the
absence of such pagination, the Docket Entry page citations utilize
the CM/ECF footer’s pagination.)
Court on January 25, 2016.
(See Minute Entry dated Jan. 25, 2016;
see also Docket Entry 14 at 1.)
Following this election, Beasley
and Novant’s counsel conferred regarding a proposed discovery
schedule for this case.
(See Minute Entry dated Jan. 25, 2016; see
also Text Order dated Jan. 26, 2016 (the “Scheduling Order”).)
With the parties’ input, the Court established a discovery schedule
that
elongated
the
normal
Beasley’s new pro se status.
discovery
period
in
deference
to
(See Text Order dated Jan. 26, 2016.)
Pursuant to this Scheduling Order, the discovery period concludes
on October 3, 2016.
(See id.)
On February 23, 2016, Novant served interrogatories (Docket
Entry 16-1 at 3-17 (the “Interrogatories”)) and requests for
production of documents (id. at 18-32 (the “Production Requests”))
(collectively, the “Discovery Requests”) upon Beasley. (See Docket
Entry 16 at 2; Docket Entry 16-1 at 2, 17, 32.)
Novant’s counsel
sent
a letter
to
On April 14, 2016,
Beasley, which
stated,
in
relevant part:
We have not received responses to Defendant’s First
Set of Interrogatories to Plaintiff and First Request for
Production of Documents, which were served upon you on
February 23, 2016.
Your responses are now overdue.
Please provide responses to our discovery requests no
later than May 2, 2016.
(Docket Entry 16-2 at 2 (emphasis in original).)
Beasley received
this letter on April 19, 2016.
On May 5, 2016,
(Id. at 3.)
Novant’s counsel sent a second letter to Beasley, which stated:
2
We have not received your responses to our discovery
requests. Your responses were due March 27, 2016. On
April 14, 2016, we sent correspondence requesting you
provide responses by May 2, 2016.
On May 2, 2016, I
received a voicemail message from you stating that you
are still seeking an attorney to represent you in this
matter. I attempted to reach you by telephone on May 3,
2016, and left a voicemail message. I have not heard
back from you.
When you consented to your original counsel’s
withdraw [sic] from this matter, [the Court] informed you
that you would be expected to comply with the Federal
Rules of Civil Procedure regardless of whether you
obtained subsequent representation. Under the Federal
Rules of Civil Procedure, you must respond to our
discovery requests whether you retain counsel or continue
to represent yourself.
This letter will serve as notice that [Novant] will
move the Court to compel your responses if you do not
provide them by May 16, 2016. [Novant] will seek its
costs associated with moving the [C]ourt to compel your
responses.
Additionally, your Rule 26(a) initial disclosures
were due on February 27, 2016. As of the date of this
letter, we have not received your initial disclosures.
Please provide your disclosures by May 16, 2016.
(Docket Entry 16-3 at 2.) FedEx delivered this letter to Beasley’s
residence on April 6, 2016.
(Id. at 3.)
On June 1, 2016, Novant filed the Motion to Compel.
Entry 15.)
Beasley’s
Through this
Federal
Rule
of
motion,
Civil
Novant
seeks
Procedure
(Docket
production of
26(a)(1)
initial
disclosures, responses to its Discovery Requests, and recovery of
its “reasonable costs and fees incurred in bringing this motion.”
(Docket Entry 16 at 7; see also Docket Entry 15 at 1.)
3
Beasley
failed to respond to the Motion to Compel.
(See Docket Entries
dated June 1, 2016, to present.)
DISCUSSION
I.
Discovery Standards
“The purpose of discovery is to provide a mechanism for making
relevant information available to the litigants.”
26
advisory
committee’s
notes,
1983
Fed. R. Civ. P.
Amendment.
Accordingly,
“[u]nless otherwise limited by court order, the scope of discovery
is
as
follows:
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[] . . . .”
R. Civ. P. 26(b)(1).
Fed.
However, “the simple fact that requested
information is discoverable . . . does not mean that discovery must
be had.
On its own initiative or in response to a motion for
protective order under [Federal Rule of Civil Procedure] 26(c), a
district court may limit [discovery] . . . .”
Int’l,
Inc.,
373
F.3d
537,
543
(4th
Cir.
Nicholas v. Wyndham
2004).
As
such,
“[d]istrict courts enjoy nearly unfettered discretion to control
the timing and scope of discovery.”
Hinkle v. City of Clarksburg,
W. Va., 81 F.3d 416, 426 (4th Cir. 1996); accord Cook v. Howard,
484 F. App’x 805, 812 (4th Cir. 2012) (observing that “[d]istrict
courts are afforded broad discretion with respect to discovery”).
Moreover, the Federal Rules of Civil Procedure (the “Rules”)
authorize litigants to bring discovery disputes before the Court
4
through, inter alia, a motion to compel discovery.
See Kinetic
Concepts, Inc. v. ConvaTec Inc., 268 F.R.D. 226, 243 (M.D.N.C.
2010).
Prior to bringing a motion to compel, a litigant must make
a good-faith effort to resolve the discovery dispute without
judicial intervention.
See Fed. R. Civ. P. 37(a)(1) (“The motion
must 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.”).
Subject to certain exceptions, if it grants a
motion to compel discovery, “the [C]ourt 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); see also Fed. R. Civ. P. 37(c)(1)(A)
(permitting expense-shifting where party fails to make required
disclosures); Fed. R. Civ. P. 37(d)(1)(A)(ii) & (3) (generally
mandating
expense-shifting
where
party
fails
to
respond
to
interrogatories and/or document requests).
II.
Analysis of Motion to Compel
Beasley failed to respond to the Motion to Compel.
Docket Entries dated June 1, 2016, to present.)
(See
By failing to
timely respond, Beasley waived her right to oppose the Motion to
Compel.
See M.D.N.C. LR 7.3(k).
Moreover, under this Court’s
Local Rules, “[i]f a respondent fails to file a response within the
5
time required by this rule, the motion will be considered and
decided as an uncontested motion, and ordinarily will be granted
without further notice.” Id. Finally, by failing to timely object
to the Interrogatories and Production Requests, Beasley waived any
objection she possessed to the Discovery Requests.
See Fed. R.
Civ. P. 33(b)(4) (“The grounds for objecting to an interrogatory
must be stated with specificity.
Any ground not stated in a timely
objection is waived unless the [C]ourt, for good cause, excuses the
failure.”);
Fed.
R.
Civ.
P.
34(b)(2)(B)
(“For
each
item
or
category, the response must either state that inspection and
related activities will be permitted as requested or state with
specificity the grounds for objecting to the request, including the
reasons.”); see also Kinetic Concepts, 268 F.R.D. at 247 (“By
failing to present valid objections to these discovery requests,
Plaintiffs waived any legitimate objection [they] may have had.”
(internal
quotation
marks
omitted;
alteration
in
original));
Phillips v. Dallas Carriers Corp., 133 F.R.D. 475, 477 (M.D.N.C.
1990) (“It is well settled that the failure to make a timely
objection in response to a Rule 34 request results in waiver.”).
Nevertheless,
pursuant
to
Local
Rule
83.4(b),
the
Court
exercises its discretion to review the merits of the Motion to
Compel and the appropriateness of the Discovery Requests. See Fed.
R. Civ. P. 26(b)(2)(C) (recognizing that the Court may act sua
sponte to curtail discovery that exceeds “the scope permitted by
6
Rule
26(b)(1)”);
Amendment,
invoked,
Rule
Subdivision
the
actual
26,
advisory
(b)(1)
scope
(“When
of
committee’s
judicial
discovery
notes,
2000
intervention
should
be
is
determined
according to the reasonable needs of the action.”); see also Rule
26, advisory committee’s notes, 2015 Amendment (“The parties and
the [C]ourt have a collective responsibility to consider the
proportionality of all discovery and consider it in resolving
discovery disputes.”).
In conducting this analysis, the Court
first addresses the initial disclosures and Discovery Requests
before considering Novant’s request for expense-shifting.
A.
Initial Disclosures
Unless excused by the Court, agreement of the parties, or
Rule
26(a)(1)(B),
parties
must
disclose
certain
specified
information to the other parties in the litigation within 14 days
of their Rule 26(f) conference.
Fed. R. Civ. P. 26(a)(1)(C).
Rule
26(a)(1)(B)
(Compare Docket
See Fed. R. Civ. P. 26(a)(1)(A);
This case does not fit any of the
exemptions
Entry
6, with
from
Fed.
initial
R.
Civ.
P.
disclosure.
26(a)(1)(B).)
Similarly, neither the Court nor the parties have altered the
default disclosure obligations specified in Rule 26(a)(1).
generally
Docket
Accordingly,
Entries
Beasley
bore
dated
the
Nov.
12,
obligation
2015,
of
to
(See
present.)
disclosing
the
information specified in Rule 26(a)(1)(A) to Novant within 14 days
of the parties’ Rule 26(f) discovery conference on January 25,
7
2016, making her disclosure deadline February 8, 2016. See Fed. R.
Civ.
P.
26(a)(1)(C).
As
evidenced
by
Novant’s
May
letter
requesting these disclosures and its June Motion to Compel, Beasley
failed to comply with her disclosure obligations.
(See Docket
Entry 16-3 at 2; see also Docket Entry 16 at 2 (“To date, [Beasley]
has not served any Rule 26(a) disclosures.”).)
Thus, pursuant to
Rule 37(a)(3)(A), the Court will order Beasley to provide her Rule
26(a)(1)(A) disclosures.
B.
Discovery Requests
On February 23, 2016, Novant mailed the Discovery Requests to
Beasley.
(Docket Entry 16-1 at 2, 17, 32.)
As such, Monday, March
28, 2016, constituted Beasley’s deadline for responding to the
Discovery Requests.
See Fed. R. Civ. P. 33(b)(2) (requiring
response within 30 days of service); Fed. R. Civ. P. 34(b)(2)(A)
(same); see also Fed. R. Civ. P. 6(d) (extending deadline by three
days
where
service
accomplished
by
mail);
Fed.
R.
Civ.
P.
6(a)(1)(C) (extending deadline to first non-holiday weekday where
period ends on weekend or holiday).
On April 14, 2016, Novant
notified Beasley of her failure to timely respond to the Discovery
Requests and extended her period for answering the Discovery
Requests to May 2, 2016.
(Docket Entry 16-2 at 2.)
Beasley did
not provide her responses by this extended deadline.
(See Docket
Entry 16-3 at 2.)
On May 5, 2016, Novant again sought Beasley’s
compliance with the Discovery Requests, informing her that if she
8
failed to provide her responses by May 16, 2016, Novant would
pursue the Motion to Compel.
(Id.)
On June 1, 2016, because
Beasley again failed to respond to the Discovery Requests, Novant
filed the Motion to Compel.
(See Docket Entry 16 at 3 (“As of the
date of this filing, 90[ ]days after initial service of [Novant’s]
Discovery Requests to [Beasley], the undersigned has not received
any responses from [Beasley].”).)
Under these circumstances, the
Court will order Beasley to comply with the Discovery Requests as
specified herein.
See Fed. R. Civ. P. 37(a)(3)(B).
Having reviewed the Discovery Requests, the Court concludes
that the Production Requests warrant certain modifications.
To
begin with, Production Requests 16, 17, and 18 require modified
time periods.
As propounded, Production Request 16 and Production
Request 18 lack any time limitation, and Production Request 17
seeks information “since [Beasley] attain[ed] the age of eighteen.”
(Docket Entry 16-1 at 26-27.)2
According to the Complaint, Beasley
2
Production Request 16 seeks “[a]ny and all documents
relating to charges of discrimination, hostile work environment,
. . . or other unlawful treatment, [Beasley] ha[s] filed with any
federal, state, or local agency . . . against any of [her] prior or
current employers.” (Docket Entry 16-1 at 26.) Production Request
17 seeks “[a]ny and all documents[] . . . relating to any lawsuit
[Beasley] may have filed, or was filed against [Beasley], since
attaining the age of eighteen (18), including, but not limited to,
lawsuits against any of [Beasley’s] prior or current employers.”
(Id.)
Finally, Production Request 18 seeks “[a]ll documents,
memoranda, or notes of any kind containing information relevant to
any and all settlements or severance arrangements [Beasley] reached
with [her] prior employers upon separation from each employer.”
(Id. at 27.)
9
possesses a birthday of June 20, 1950 (Docket Entry 6 at 2, ¶ 5),
and worked for Novant from November 2007 to July 2014 (id. at 2,
¶ 6; 3, ¶ 24).
Thus, Beasley reached age eighteen nearly fifty
years ago, approximately forty years before she began work at
Novant.
The Court concludes that any information from so long ago
would possess, at best, minimal relevance to the parties’ claims
and defenses, and that the effort of obtaining such material would
be disproportionate to the needs of this routine employment case.
See generally Fed. R. Civ. P. 26(b)(1) (limiting the scope of
discovery to relevant, proportional, nonprivileged materials).
Accordingly, the Court imposes a twenty-five-year time limitation
on Production Requests 16, 17, and 18.
This curtailed duration,
which commences more than sixteen years before Beasley began
working
for
Novant,
strikes
an
appropriate
balance
between
permitting discovery of relevant matters and avoiding undue and
disproportionate discovery burdens.
In
addition,
certain
require clarification.
aspects
of
the
Production
Requests
Novant represents that “[a] true and
correct copy of [the] Discovery Requests [that Novant served on
Beasley in February 2016] is attached as Exhibit ‘A’” to its
memorandum in support of its Motion to Compel.
2 (emphasis in original).)
(Docket Entry 16 at
Exhibit A consists of 32 pages (see
Docket Entry 16-1), fifteen of which constitute the Production
Requests (see id. at 18-32).
Based on internal pagination and
10
references, it appears that the Discovery Requests lack an intended
twelfth page of the Production Requests and first page of an
“Authorization for Release of Information directed to the North
Carolina Department of Commerce, Division of Employment Security”
(the “DES Authorization”). (See id. at 28 (bearing page number 11,
and requesting execution of the DES Authorization), 29 (bearing
page number 2 of an “authorization [to] . . . the DES”), 30-31
(medical record disclosure authorization form not referenced in
Exhibit A), 32 (Production Requests’ certificate of service bearing
page number 13).) This omission necessitates three clarifications.
First,
the
Court
will compel
Beasley
to
respond
to
the
Production Requests only through the first sentence of Production
Request 23, as the remainder of Production Request 23 and any
subsequent Production Requests do not appear in the Discovery
Requests that Novant represents it served on Beasley.
28-32.)
(See id. at
Second, the Court will not compel Beasley to execute the
medical record disclosure authorization form found on pages 30 and
31 of the Discovery Requests, as none of the existing Production
Requests asks for completion of that authorization.
22-32.)
(See id. at
Finally, the Court will not compel Beasley to execute the
incomplete DES Authorization found in the Discovery Requests. (See
id. at 29.)3
3
Nothing in this Order precludes Novant from pursuing
additional document production requests or authorizations before
discovery closes in October.
11
C.
Request for Expense-Shifting
Due to Beasley’s failure to provide her initial disclosures
and respond to its Discovery Requests, Novant seeks an order
“[r]equiring [Beasley] to pay [Novant’s] reasonable costs and fees
incurred in bringing this [M]otion [to Compel].”
at 7; see also id. at 6.)
(Docket Entry 16
The Rules not only provide for such
expense-shifting in most cases where (as here) a party prevails on
a motion to compel, see Fed. R. Civ. P. 37(a)(5)(A), but also
explicitly authorize an even broader range of expense-shifting when
a party fails to provide its initial disclosures, see Fed. R. Civ.
P. 37(c)(1)(A), and generally require this broader expense-shifting
when a party fails to respond to properly served interrogatories
and
document
production
requests,
see
Fed.
R.
Civ.
P.
37(d)(1)(A)(ii) & (3).4
4 Specifically, the failure to respond to interrogatories and
document requests generally subjects the non-responding party to
payment of “the reasonable expenses, including attorney’s fees,
caused by the failure,” Fed. R. Civ. P. 37(d)(3); see also Fed. R.
Civ. P. 37(c)(1)(A) (stating that, “[i]f a party fails to provide
information or identify a witness as required by Rule 26(a),” the
Court “may order payment of the reasonable expenses, including
attorney’s fees, caused by the failure”), which would encompass not
only the expenses “incurred in making [a] motion [to compel],” Fed.
R. Civ. P. 37(a)(5)(A), but also expenses incurred prior to making
a motion to compel, like those expenses Novant incurred while
demanding compliance (as described in the Background section).
(See Docket Entries 16-2, 16-3.) Because Novant has requested only
expense-shifting as to “reasonable costs and fees incurred in
bringing this [M]otion to [C]ompel” (Docket Entry 16 at 7), the
Court will consider only such expense-shifting.
12
Beasley declined to respond to the Motion to Compel, and thus
does
not
seek
to
discovery process.
present.)
excuse
her
failures
to
participate
in
the
(See Docket Entries dated June 1, 2016, to
By failing to respond to the Motion to Compel, Beasley
relinquished any argument she may have possessed that her failures
qualify as “substantially justified” or that “other circumstances
make an award of expenses unjust,” Fed. R. Civ. P. 37(d)(3); see
also
Fed.
R.
Civ.
P.
37(a)(5)(A).
See
M.D.N.C.
LR
7.3(k).
Moreover, in light of Beasley’s voicemail message to Novant (see
Docket Entry 16-3 at 2), the Court notes that — as Novant explained
in attempting to secure Beasley’s discovery responses (see id.) —
Beasley’s pro se status does not excuse her from complying with
discovery obligations or, in and of itself, render an award of
expenses unjust.
See, e.g., Crisp v. Allied Interstate Collection
Agency, No. 1:15cv303, 2016 WL 2760363, at *7 (M.D.N.C. May 12,
2016) (recognizing that “pro se status does not exempt litigants
from compliance with discovery obligations” and ordering pro se
plaintiff “to show cause as to why he should not be required to pay
[the defendant’s] reasonable attorney’s fees arising from [the
plaintiff’s]
failure
[to
fulfill
discovery
obligations]”).
Accordingly, the Court concludes that Beasley should bear the
reasonable expenses associated with the Motion to Compel.
13
CONCLUSION
Without justification, Beasley failed to timely provide her
initial disclosures and respond to Novant’s Discovery Requests. As
such, Novant has established grounds for relief under Rule 37.
IT IS THEREFORE ORDERED that the Motion to Compel (Docket
Entry 15) is GRANTED as specified below.
IT IS FURTHER ORDERED that, on or before September 2, 2016,
Beasley must respond to Novant’s Interrogatories (Docket Entry 16-1
at 3-17).
Failure to comply with
this Order may result in
dismissal of this case.
IT IS FURTHER ORDERED that, on or before September 2, 2016,
Beasley must respond to Novant’s Production Requests (Docket Entry
16-1 at 18-32) as follows:
(i) Beasley must respond to Production
Requests 1 through 15, 19, 21, and 22 as written; (ii) Beasley must
respond to Production Requests 16, 17, and 18, as limited to the
time period since January 1, 1991; (iii) Beasley must respond to
Production Request 20 as written, except that Beasley need not
execute the DES Authorization form (see id. at 29); (iv) Beasley
must respond to the first sentence of Production Request 23; and
(v)
Beasley
need
not
execute
the
medical
record
disclosure
authorization form (see id. at 30-31). Failure to comply with this
Order may result in dismissal of this case.
IT IS FURTHER ORDERED that, on or before
Novant shall
serve
Beasley
with
14
a
September 2, 2016,
statement setting
out
the
reasonable
expenses,
including
attorney’s
incurred in making the Motion to Compel.
fees,
that
Novant
Failure by Novant to
comply with this Order will result in denial of any related
expense-shifting.
IT IS FURTHER ORDERED that, if Novant timely serves such a
statement of expenses, Beasley shall file, on or before September
16, 2016, either:
(i) a Notice indicating agreement to pay the
claimed expenses; or (ii) a Memorandum of no more than five pages
explaining why Beasley contests the reasonableness of the claimed
expenses,
along
with
a
certification
that
the
parties
have
attempted in good faith to resolve any disagreement over the
reasonableness of the claimed expenses.
Failure by Beasley to
comply with this Order may result in the Court ordering, upon the
filing
of
a
Notice
by
Novant
of
its
reasonable
expenses
as
contained in the statement it served upon Beasley, the payment of
such expenses by Beasley.
IT IS FURTHER ORDERED that, on or before September 23, 2016,
Novant may file a Response of no more than five pages to any
Memorandum timely filed by Beasley contesting the reasonableness of
the claimed expenses.
Failure by Novant to comply with this Order
will result in denial of any expenses contested by Beasley as
unreasonable.
IT IS FURTHER ORDERED that, on or before October 7, 2016,
Beasley may file a Reply of no more than three pages to any
15
Response timely filed by Novant regarding the reasonableness of the
claimed expenses.
IT IS FURTHER ORDERED that, upon completion of the foregoing
briefing or the time period for such briefing, the Clerk shall
refer this matter back to the undersigned Magistrate Judge for
further action.
This 19th day of August, 2016.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
16
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