DURAND v. CHARLES

Filing 50

MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 09/15/2017, that the Discovery Motion (Docket Entry 39 ), Supplement (Docket Entry 42 ), and Reply (Docket Entry 48 ) are DENIED. (Garland, Leah)

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

RAYBORN J. DURAND,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
ANTHONY G. CHARLES, M.D.,
Defendant.

1:16cv86

MEMORANDUM OPINION AND ORDER
This case comes before the Court for an order on Plaintiff’s
“Motion for Production of Documents by Subp[oe]na” (Docket Entry
39) (the “Discovery Motion”), the “Supplement to Plaintiff[’]s
Request

to

issue

Subpeona’s”

[sic]

(Docket

Entry

42)

(the

“Supplement”), and Plaintiff’s “Reply to Defendant[’]s Opposition”
(Docket Entry 48) (the “Reply”).

For the reasons that follow, the

Court will deny the Discovery Motion, Supplement, and Reply.
BACKGROUND
Alleging that Anthony G. Charles, M.D. (the “Defendant”)
committed

acts

and/or

omissions

amounting

to

deliberate

indifference to his serious medical needs in February 2013, Rayborn
J. Durand (the “Plaintiff”) initiated this lawsuit in February
2016.

(See Docket Entry 2.)

Following denial of Defendant’s

dismissal motion in January 2017 (see Docket Entry 25), the Court
entered an order adopting a “case-management schedule” for this
matter (Text Order dated Jan. 30, 2017 (the “Scheduling Order”)).
The Scheduling Order established a six-month discovery period and

directed “the parties [to] complete all discovery by 07/31/2017.”
(Id.) In May 2017, Plaintiff moved to compel production of certain
risk management documents (the “Care Request”) and North Carolina
Medical Board (the “Medical Board”) inquiry documents (the “Inquiry
Request”) from Defendant.

(See generally Docket Entry 36 (the

“Discovery Order”) (analyzing motion to compel).)1
that

motion,

Defendant

clarified

that,

aside

In response to
from

documents

responsive to the Inquiry Request, he possessed only attorneyclient

privileged

documents

responsive

to

the

Care

Request.

(See id. at 2, 4-5.)
In June 2017, the Court granted Plaintiff’s request to compel
documents responsive to the Inquiry Request, ordering that “on or
before July 14, 2017, Defendant shall produce to Plaintiff all
documents pertaining to the . . . Medical Board inquiry initiated
by Plaintiff.”

(Id. at 9.)

The Discovery Order further provided:

If, upon receipt and review of the produced
discovery, Plaintiff concludes in good faith that
information contained therein warrants exploration via
further discovery, he may file a motion, on or before
August 4, 2017, requesting leave to conduct such
discovery, notwithstanding the discovery deadline of July
31, 2017. Any such motion shall describe in detail the

1 The Care Request asks “[t]hat Defendant provide Plaintiff
with a true copy of . . . any and all documents relating to any
type of risk management or other inquiry(s) pertaining to
Plaintiff’s care at the U.N.C. Medical Center,” and the Inquiry
Request asks “[t]hat Defendant provide Plaintiff with a true copy
of[] . . . any and all documents pertaining to the . . . Medical
Board inquiry initiated by Plaintiff.” (Docket Entry 36 at 3-4
(internal quotation marks omitted).) [Citations herein to Docket
Entry pages utilize the CM/ECF footer’s pagination.]
2

specific additional discovery Plaintiff would conduct and
the nature and source of information from the discovery
produced by Defendant in response to th[e Discovery]
Order that led Plaintiff to seek further discovery.
(Id. at 9 n.6.)

On August 1, 2017, Plaintiff submitted the

Discovery Motion (see Docket Entry 39 at 5-6), which the Court
received on August 3, 2017 (see id. at 1).

On August 7, 2017,

pursuant to Local Rule 56.1, Defendant provided notice of his
intent to file a motion for summary judgment (see Docket Entry 40
at 1), which filing occurred on August 29, 2017 (see Docket Entry
43 at 1-2). On August 14, 2017, Plaintiff submitted the Supplement
(see Docket Entry 42 at 5-6), and, on August 30, 2017, he submitted
the Reply (see Docket Entry 48 at 6-7).

The Discovery Motion,

Supplement, and Reply seek extensions of the discovery deadline and
leave to conduct additional discovery (see Docket Entries 39, 42,
48), which Defendant opposes (see Docket Entries 41, 46-47).
DISCUSSION
The “[C]ourt enjoy[s] 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”).
Nevertheless, in exercising this discretion, the Court remains
mindful that the Federal Rules of Civil Procedure (the “Rules”)
generally require issuance of a scheduling order early in each
case, see Fed. R. Civ. P. 16(b), and that “[t]he drafters of the
3

Rules intended [the scheduling] order to control the subsequent
course of the action so as to improve the quality of justice
rendered in the federal courts by sharpening the preparation and
presentation of cases, tending to eliminate trial surprise, and
improving,

as

well

as

facilitating,

the

settlement

process,”

Forstmann v. Culp, 114 F.R.D. 83, 84-85 (M.D.N.C. 1987) (internal
quotation marks omitted).

As such, the discovery “schedule may be

modified only for good cause and with the [Court’s] consent.” Fed.
R. Civ. P. 16(b)(4).

“[T]he touchstone of ‘good cause’ under Rule

16(b) is diligence.”

Marcum v. Zimmer, 163 F.R.D. 250, 255 (S.D.

W. Va. 1995); see also Fed. R. Civ. P. 16 advisory committee’s
note, 1983 Amendment Subdivision (b) (“[T]he court may modify the
schedule on a showing of good cause if it cannot reasonably be met
despite

the

diligence

of

the

party

seeking

the

extension.”

(emphasis added)).
Through the Discovery Motion, Supplement, and Reply, Plaintiff
seeks

leave

nonparties.
“an

to

discovery

from

Defendant

(See Docket Entries 39, 42, 48.)

extension

discovery.”

obtain

of

time

in

which

to

and

three

He further requests

conduct

this

additional

(Docket Entry 39 at 1; see also Docket Entry 42 at 4

(asking “[t]hat the time allot[t]ed for discovery be enlarged”).)
More specifically, the Discovery Motion “requests that subpeona’s
[sic] be issued” to (i) the Medical Board for “all documents in
[its] possession . . . relating to the inquiry initiated by

4

Plaintiff

concerning Defendant”

(the

“Medical

Board

Request”)

(ii) “U.N.C. Health” and the North Carolina Department of Public
Safety (the “N.C.D.P.S.”) for risk management documents, including
a “Mortality Review[,] . . . related to Plaintiff[’]s medical care
while at the U.N.C. Medical Center or while in the care of the
N.C.D.P.S.,” and (iii) N.C.D.P.S. for “[a]ll invoices and DC-702
Forms that were generated by Plaintiff[’]s stay and treatment at
the U.N.C. Hospital” (the “Damages Request”).
1-3.)

(Docket Entry 39 at

The Supplement provides recipient information for the

Medical Board and N.C.D.P.S. subpoenas (see Docket Entry 42 at 2-3)
and “enclose[s a] Second Set of Interrogatories” (id. at 4-5) to
Defendant

(see

soliciting

Docket

information

Entry

42-1

“concerning

(the
the

“Interrogatories”))
U.N.C.

Management records sought” (Docket Entry 48 at 5).

Health

Risk

Finally, the

Reply attaches a “5th Request for Documents” (Docket Entry 48-1 (the
“Document Request”)) that Plaintiff served on Defendant “[o]n
August 18, 2017[,] . . . [for] two depositions taken by the
Defendant” (Docket Entry 48 at 6).
In regard to the Medical Board Request, the Discovery Motion
states that “Plaintiff should have asked that a subpoena be issued
for these documents rather than make a document request to the
[D]efendant.”

(Docket Entry 39 at 2.)

The Discovery Motion

further maintains that Defendant’s answer to the Medical Board
inquiry

“revealed

information

not

5

previously

reported

in

Plaintiff[’]s medical record and as such the complete Medical Board
findings deserve a look.”

(Id. at 4-5.)

Although the Discovery

Order directed Plaintiff to “describe in detail . . . the nature
and source of information from the discovery produced by Defendant
in response to th[e Discovery] Order that led Plaintiff to seek
further discovery” (Docket Entry 36 at 9 n.6), the Discovery Motion
provides

no

other

information

regarding

evidence (see generally Docket Entry 39).

this

newly

produced

However, Plaintiff’s

August 30th Reply reflects that the “information not previously
reported” (id. at 4-5) consists of asserted variations between the
description of Plaintiff’s second surgery in Defendant’s letter to
the Medical Board and Plaintiff’s medical records (see Docket Entry
48 at 2-3).
Even accepting this belated explanation, the Court finds that
Plaintiff failed to establish the “good cause” necessary for
amending the Scheduling Order to permit this discovery.

Most

significantly, Plaintiff has not displayed sufficient diligence in
seeking the Medical Board’s records, as he has known that these
materials existed since he initiated his Medical Board complaint
against Defendant in November 2015 (see Docket Entry 41-1 at 4-12).
As such, neither the specified variations nor the fact that he now
believes that he “should have asked that a subpoena [to the Medical
Board] be issued for these documents” rather than requesting them
from Defendant (Docket Entry 39 at 2) justifies the requested

6

extension.

Moreover, Plaintiff indicates that the Medical Board

concluded that “there was no violation of the Medical Practice
[A]ct in this instance.”

(Docket Entry 42 at 2; see also Docket

Entry 39 at 2 (“The Medical Board found [Defendant] innocent of any
wrong doing.”).) Thus, notwithstanding the asserted discrepancy in
surgical descriptions, any suggestion that “a closer look” at the
Medical Board materials (Docket Entry 48 at 3) would yield useful
information for Plaintiff represents sheer speculation.

Indeed,

given the North Carolina statutes discussed in the Discovery Order,
it remains at best questionable whether a subpoena to the Medical
Board would yield any new materials for use in this matter.
(See Docket Entry 36 at 7 n.5 (examining a North Carolina statute
that “protects materials in the [Medical Board’s] possession from
. . . compelled production from the Medical Board” (emphasis
omitted)).)

Under the circumstances, the Court declines to extend

the discovery period to enable issuance of a subpoena to the
Medical Board for “the complete Medical Board findings” (Docket
Entry 39 at 5).
Plaintiff likewise fails to establish good cause for the risk
management discovery.

In regard to the risk management subpoenas,

Plaintiff maintains that “this discovery should be allowed as a
matter of course due to the nature of the findings which is to
review possible negligent care.”

(Id.)

He further asserts that

these “records as pertaining to Plaintiff[’]s case deserve a look.”

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(Docket Entry 48 at 3.)

In addition, Plaintiff contends that

U.N.C.

to

Health’s

refusal

provide

contact

information

for

accepting service of the subpoena necessitates the Interrogatories.
(Id. at 5-6.)

He does not, however, explain why he waited two

months after receiving notice that Defendant did not possess such
materials (see Docket Entry 36 at 2-5) to request subpoenas to the
N.C.D.P.S. and U.N.C. Health. (See Docket Entries 39, 42, 48.)

In

light of this delay, Plaintiff fails to establish good cause for
the requested discovery extension.
Plaintiff similarly has not shown good cause regarding the
Damages Request and Document Request.

In regard to the Damages

Request, Plaintiff states that he received billing information from
“[D]efendant but the documents rec[ei]ved were not useful for
Plaintiff[’]s desired use which is to help set damages.”
Entry 39 at 4.)

(Docket

Plaintiff offers no other information regarding

his pursuit of damages information, such as when he “requested and
rec[ei]ved” this billing information from Defendant.

(Id.)

As

such, he has not established that he acted with diligence in
pursuing the Damages Request.

Plaintiff also fails to offer any

explanation for why he waited until August 18, 2017, to serve the
Document Request on Defendant and until August 30, 2017, to request
leave for such discovery.

(See Docket Entry 48 at 6.)

Given that

the relevant depositions occurred on or before July 31, 2017 (see
Text Order dated Jan. 30, 2017), this unexplained delay precludes

8

a finding that Plaintiff acted diligently regarding the Document
Request. Plaintiff therefore fails to establish good cause for the
requested discovery extensions.2
CONCLUSION
Plaintiff

has

not

shown

good

cause

for

modifying

the

Scheduling Order, as required by Rule 16(b)(4).
IT IS THEREFORE ORDERED that the Discovery Motion (Docket
Entry 39), Supplement (Docket Entry 42), and Reply (Docket Entry
48) are DENIED.
This 15th day of September, 2017.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge

2
Plaintiff does not argue that the discovery Defendant
produced pursuant to the Discovery Order prompted his Damages
Request or Document Request. (See Docket Entry 39 at 3-5; Docket
Entry 48 at 6.) Accordingly, because Plaintiff waited until after
the discovery deadline to seek these extensions, he would also need
to satisfy the demanding “excusable neglect” standard set by Rule
6(b)(1)(B). See Tyndall v. Maynor, 288 F.R.D. 103, 109 (M.D.N.C.
2013). Given his failure to explain his delay in requesting these
extensions, as well as the threat that allowing these extensions
would pose to the Court’s and Defendant’s interest in adhering to
the case-management deadlines for this matter, including the August
30, 2017, dispositive motions’ deadline, see M.D.N.C. LR 56.1(b),
the Court concludes that Plaintiff has also failed to establish
excusable neglect. See Tyndall, 288 F.R.D. at 109-10 (discussing
“excusable neglect” factors identified in Pioneer Investment
Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S.
380, 395 (1993)).
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