GRUBB v. NORFOLK SOUTHERN RAILROAD COMPANY
Filing
31
MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 2/2/2018. Defendant's Motion for Extension of Time to Complete Discovery and Mediation, and for the Filing of Dispositive Motions (Docket Entry 25 ) is DENIED. Pursuant to F ederal Rules of Civil Procedure 16(f)(1) and 37(b)(2)(A) (iii), Defendants Answer (Docket Entry 9 ) is STRICKEN. As a result, the Clerk shall enter a default against Defendant under Federal Rule of Civil Procedure 55(a). Plaintiff shall file a mot ion for default judgment under Federal Rule of Civil Procedure 55(b)(2) on or before February 16, 2018. Pursuant to Federal Rule of Civil Procedure 16(f)(2), Defendant and its counsel shall pay the reasonable expenses, including attorney's fees, incurred by Plaintiff in connection with the pretrial conference on December 22, 2017 as set out herein. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
GRAY GRUBB,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
NORFOLK SOUTHERN RAILROAD
COMPANY,
Defendant.
1:17CV62
MEMORANDUM OPINION AND ORDER
This case comes before the Court for imposition of sanctions
on the Court’s motion under Federal Rule of Civil Procedure 16(f)
in connection with the pretrial conference on December 22, 2017
(see Minute Entry dated Dec. 22, 2017), as well as for resolution
of Defendant’s Motion for Extension of Time to Complete Discovery
and Mediation, and for the Filing of Dispositive Motions (Docket
Entry 25 (“Extension Motion”)).
For the reasons that follow, the
Court will deny the Extension Motion and will sanction Defendant by
striking its Answer and ordering expense-shifting.
BACKGROUND
After Plaintiff commenced this action (Docket Entries 1, 4),
Attorneys Nicole A. Crawford and Justin Nathaniel Outling (both of
Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P. (“Brooks,
Pierce”)) appeared for Defendant (Docket Entries 5, 6).
Defendant
then answered (Docket Entry 9) and the parties filed a Joint Rule
26(f) Report proposing a discovery and mediation deadline of
October 31, 2017 (Docket Entry 12 at 2), which the Court adopted
(Text Order dated May 8, 2017).
Based on that discovery deadline,
the Clerk (via Notice dated June 19, 2017) set the case for trial
on July 9, 2018.
(Docket Entry 14.)
Plaintiff, in turn, diligently pursued discovery, serving
interrogatories and document requests on Defendant on May 30, 2017.
(Docket Entries 24-3, 24-4.) On June 30, 2017, Plaintiff’s counsel
e-mailed
this
message
to
Crawford:
discovery responses were due yesterday.
receive them?”
responded:
2017].
think
[Defendant’s]
When can we expect to
(Docket Entry 18-1 at 2.)
Crawford promptly
“I have a tickler notice that they are due on [July 3,
I will double check with my associate when I get to the
office this afternoon.
2017].”
“I
In any event it is in progress for [July 3,
(Id. at 3 (emphasis added).)
Defendant, however, did not serve discovery responses by July
3, 2017; instead, on July 21, 2017, Crawford e-mailed counsel for
Plaintiff as follows: “Sorry for the delay in getting back to youI’ve been out since July 5.
We’re wrapping up responses but need
your response on the protective order.
The client feels very
strongly that we have the order entered.
Please let me know your
position.”
(Id. at 4 (emphasis added).)
Two business days later,
counsel for Plaintiff agreed to Defendant’s proposed protective
order.
(Id.)
On July 27, 2017, the parties filed a Joint Motion
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for Protective Order (Docket Entry 15) and, the next day, the Court
entered their proposed Consent Protective Order (Docket Entry 16).
Despite the removal of that identified impediment to service
of the (overdue) discovery responses and repeated inquiries from
Plaintiff’s counsel, Defendant still did not serve its responses.
(See Docket Entry 18-1 at 5 (setting forth e-mail from Plaintiff’s
counsel to Crawford on August 18, 2017, reporting that “[s]omeone
from [Crawford’s] office called and promised [Plaintiff’s counsel]
discovery responses – but [he] still d[id]n’t have them” and asking
Crawford
to
“let
[him]
know
where
[they]
stand
please”),
6
(reflecting that, on August 29, 2017, Plaintiff’s counsel re-sent
e-mail from August 18, 2017, and requested that Crawford “[p]lease
respond”), 7 (documenting that, on September 6, 2017, in an e-mail
to Crawford, Plaintiff’s counsel complained that he “ha[d] emailed
and called [her] repeatedly and still [he] ha[d] no reply”).)
Nearly two months after entry of the Consent Protective Order,
Crawford e-mailed Plaintiff’s counsel, “[t]hank[ing him] for [his]
patience”
and
“propos[ing]”
[r]esponses” by “9/19/17.”
to
serve
“[w]ritten
[d]iscovery
(Id. at 8.)
When Defendant did not follow through on that commitment,
Plaintiff’s
counsel
e-mailed
Crawford
seeking an explanation.
(See id. at 9.)
an
indicating
automated
response
that
on
September
25,
2017,
Upon evidently receiving
Crawford
“[wa]s
out,”
Plaintiff’s counsel immediately forwarded to Outling the e-mail
-3-
just sent to Crawford, along with a request that Outling “let
[Plaintiff’s counsel] know the status.”
acknowledged
receiving
that
e-mail
(Id. at 10.)
and
Outling has
understanding
that
it
“inquir[ed] of [him] about the status of discovery,” but taking no
action other than “provid[ing] the communication to [] Crawford for
her to respond to Plaintiff’s counsel.”
On
September
26,
Plaintiff’s counsel:
2017,
(Docket Entry 19-1 at 3.)
Crawford
sent
this
e-mail
to
“My client reviewed the materials last night
and I need to make revisions to the discovery responses we drafted.
We are at . . . a corporate training opportunity until tomorrow
afternoon and I’ve sent the material changes to my paralegal for
execution.”
(Docket Entry 18-1 at 11 (emphasis added).)
After
three more weeks passed without service of the discovery responses,
on October 18, 2017, Plaintiff’s counsel again requested them from
Crawford, who answered:
“I’m still waiting for files from carrier
– right now am only working off what the first firm passed on from
OSHA investigation.
My paralegal is finalizing batesing those and
sending them today.”
(Id. at 13 (emphasis added).)
Again,
however, Plaintiff received no discovery responses, notwithstanding
his counsel’s persistent efforts to obtain voluntary compliance.
(See id. at 18 (documenting e-mails from Plaintiff’s counsel to
Crawford on November 14 and 15, 2017, stating “Please give me a
status update on your end re discover [sic] responses” and “I am
trying to continue to be gracious, but I feat [sic] that it is
-4-
going to be at the expense of [Plaintiff],” respectively); Docket
Entry 18-2 at 2 (reproducing e-mail from Plaintiff’s counsel to
Crawford on December 4, 2017, with this message:
“On October 20,
2017 we talked at length . . . about what needed to happen in the
event that the case did not settle the next Monday, October 23,
2017. We discussed the discovery owed by [Defendant] that was long
long overdue as well as the witnesses that I asked to depose.
Then, the mediation did not go forward, and despite my additional
requests and follow-up, I have no discovery, no deposition dates
and have not heard anything from you.”).)1
Ultimately, Plaintiff’s counsel sought judicial intervention
on December 6, 2017.
(Docket Entry 18.)
The next day, the Court
“set[] this case for a pretrial conference . . . for the purpose of
‘controlling and scheduling discovery’ and ‘facilitating in other
ways the just, speedy, and inexpensive disposition of the action.’”
(Text Order dated Dec. 7, 2017 (quoting Federal Rule of Civil
Procedure 16(c)(2)(F) and (P)).) That Text Order took note of “the
apparent failures of Defendant to meet its litigation obligations”
and, “[g]iven the circumstances, . . . require[d] the presence of
all counsel of record at th[e] pretrial conference.”
1
(Id.)
During that time-frame, Defendant moved (with Plaintiff’s consent) for
an extension of the discovery and mediation deadlines to December 30 or 31, 2017.
(Docket Entry 17.) That motion cited as its basis “protracted health issues of
Defendant’s counsel and a family emergency during the discovery period, which
counsel for the Plaintiff graciously accommodated . . . .” (Id. at 1.) The
Court granted the motion and re-set the discovery deadline (and, by implication,
the mediation deadline) to January 2, 2018 (the first business day after December
30 or 31, 2017). (Text Order dated Oct. 31, 2017.)
-5-
When the pretrial conference convened on December 13, 2017,
Crawford (but not Outling) appeared for Defendant.
(See Minute
Entry dated Dec. 13, 2017;2 see also Text Order dated Dec. 13, 2017
(requiring “Outling to show cause in writing . . . as to why he
failed (A) to attend the Pretrial Conference held this day or (B)
to
seek
leave
not
to
attend”).)
In
addressing
Defendant’s
delinquency in serving discovery responses, Crawford made the
following representations of note:
1) “I’ve had the perfect storm personally and professionally
this year, with personal health issues, health issues for my
daughter, [and] health issues for my senior partner who used to
handle these [kinds of] cases for [Defendant].”
2) “I have not been able to attend to this case the way I
should have.”
3) “I’ve had different internal counsel at [Defendant]. Three
different internal counsel and I’m not the normal counsel.
My
senior partner is.”
4) “I’ve been moved into a . . . relationship position with
[Defendant] that I’m not familiar with and that [Defendant is] not
familiar with because [Defendant] has transitioned counsel.”
2
The Clerk’s Office audio-recorded the pretrial conference on December 13,
2017, as well as its continuation on December 22, 2017. (See Minute Entry dated
Dec. 13, 2017; Minute Entry dated Dec. 22, 2017.) In preparing this Memorandum
Opinion, the undersigned Magistrate Judge used those recordings to confirm
exactly what transpired, including (in some instances) by writing down verbatim
quotations. The description that follows above includes some such quotations
(with emphasis added) in order to provide as full a picture of the material facts
as possible without delaying matters to obtain a transcript.
-6-
5) “I have talked with [Defendant] about it and am able to
. . . get our discovery out by Friday [December 15, 2017].”
6)
“I
have
encouraged
[Defendant]
to
move
forward
with
settlement in this case, but I have not received a response on that
and we’ve discussed amounts and what would be needed to try to
settle this case, but I cannot make a representation today that the
case will settle before we move into dispositive motions.”
Plaintiff’s counsel, in turn, expressed empathy for Crawford’s
health-related issues and agreed to work with Defendant and the
Court to try to get necessary pretrial work done in advance of the
July 2018 trial date, if possible;3 however, he also stated:
It appears to me that this is as much of a client problem
as it is a health problem.
The files were not
transmitted to Ms. Crawford as late as September by my
review of her e-mails to me when the discovery responses
were due in June. And so, if this is a client problem,
my view of the world is very different.
In light of Crawford’s commitment that (based on prior consultation
with Defendant) Plaintiff would receive discovery responses by
December 15, 2017, as well as the willingness of Plaintiff’s
counsel to immediately review those responses to decide what
further
discovery
Defendant’s
Plaintiff
responses,
the
would
Court
want
to
continued
take
the
in
light
of
conference
to
December 22, 2017, to assess (at that point) whether necessary
follow-up discovery by Plaintiff could occur in a manner that did
3
Plaintiff’s counsel theorized that, after receiving Defendant’s discovery
responses, Plaintiff likely would serve additional written discovery and would
notice multiple depositions, which would require at least two months to complete.
-7-
not threaten the long-set trial date. (See Minute Entry dated Dec.
13,
2017;
Text
Order
dated
Dec.
13,
2017.)
Further,
given
Crawford’s comments regarding Defendant’s failure to respond to her
inquiries about settlement, the Court “expand[ed] the purposes of
the conference to include settling the case. . . .
In addition,
the Court require[d] that a representative of Defendant with
authority to settle this case be present . . . to consider possible
settlement.”
(Text Order dated Dec. 13, 2017 (internal brackets,
citation, ellipses, and quotation marks omitted) (quoting Federal
Rule of Civil Procedure 16(c)(1) & (2)(I)).)4
The afternoon before the scheduled resumption of the pretrial
conference, Defendant (through Crawford) filed a Motion for Leave
Not to Appear and for Continuance.
recited
that,
earlier
that
day,
(Docket Entry 20.)
Crawford
“was
That motion
seen
at
Duke
University Medical Center and scheduled for an emergency medical
procedure at Durham Regional Hospital on December 22, 2017.”
at 1.)
(Id.
An attachment to that motion, entitled “DukeHealth Visit
Summary” confirms a “Hospital Visit” by Crawford on December 21,
2017, with this “Follow-up Information”:
“You are released to
return to work and normal physical activities today, 12/21, 2017,
and scheduled for surgery on 12/22, 2017 at 11:30 A.M. at Durham
4
Crawford asked that the conference not resume until some time in January
2018, because her daughter only recently returned home from an extended hospital
stay. Although sympathetic to Crawford, the Court rejected that request and made
it clear that, if personal demands precluded her appearance on December 22, 2017,
she must seek leave not to appear and Outling or some other attorney from Brooks,
Pierce must come to the conference prepared to move the case forward.
-8-
Regional Hospital.”
(Docket Entry 20-1 at 1.)
Based on that
circumstance, Crawford sought “leave not to appear at the continued
Pre-Trial Conference on December 22, 2017.”
1.)
(Docket Entry 20 at
“Additionally, [Defendant] request[ed] a continuance of the
Pre-Trial Conference set for December 22, 2017 in this matter
because of the inability of [Crawford] to attend the Pre-Trial
Conference
and
perceived
failure
of
[Crawford]
represent [Defendant’s] interests in this matter.”
to
adequately
(Id.; see also
id. at 2 (“[Defendant] very respectfully requests a continuance of
the Pre-Trial Conference to January 8, 2018, or such approximate
date thereafter as is convenient for Plaintiff’s counsel, in order
for
[Defendant]
to
assess
the
case
and
obtain
representation in this matter before the Court.”).)
Plaintiff d[id] not consent to th[at m]otion.”
appropriate
“Counsel for
(Id. at 2.)
The Clerk referred the motion to the Court shortly before the
time set for the conference to reconvene (see Motions Referred
Entry dated Dec. 22, 2017) and the Court “oral[ly] order[ed] on the
record during the continued pretrial conference held th[at] day
[the] grant[] in part and den[ial] in part [of the motion].
To the
extent [it] sought leave for [] Crawford not to appear . . . due to
a medical issue, the Court granted [the m]otion and excused [her]
from appearing.
To the extent [it] sought a continuance of the
conference . . . because of [] Crawford’s unavailability and
Defendant’s desire to assess the case and obtain appropriate
-9-
representation, the Court denied [the m]otion.”
(Text Order dated
Dec. 22, 2017 (internal quotation marks omitted).)
At the resumed conference on the morning of December 22, 2017,
Outling
appeared
“as
counsel
for
[D]efendant.
[However,
r]epresentative from [Defendant] failed to appear.”
dated Dec. 22, 2017.)
a
(Minute Entry
As to the cause for that failure, Outling
could report only that “Crawford explained to [Outling] that
[Crawford’s] client representative for [Defendant wa]s out as of
[the] week [ending December 15, 2017,] and w[ould] be out through
the
beginning
of
the
new
year.”
The
Court
expressed
its
dissatisfaction with that explanation and indicated that it would
recess the conference until the afternoon for Outling to gather
more information about what and when Defendant knew about its
obligation to appear.
When Outling voiced reservations about
whether he could obtain any such information due to his lack of any
direct point-of-contact with Defendant and the reported absence
from the office of Defendant’s designated representative for this
case,
the
Court
encouraged
Outling
to
seek
out
more
senior
attorneys at Brooks, Pierce who maintained relationships with
Defendant and to attempt (with the assistance of those attorneys)
to reach employees of Defendant with supervisory authority over its
designated representative for this case.
Following that recess, Outling advised the Court that, instead
of enlisting more senior Brooks, Pierce attorneys in an effort to
-10-
communicate directly with Defendant, he contacted Crawford at the
hospital.
According to Outling:
Crawford advised that immediately after the hearing on
the 13th [of December], she contacted [Defendant]. The
following day, [] Crawford became unavailable due to
medical reasons until Tuesday of th[e present] week
[December 19, 2017]. On [that day], she was informed
that her contact at [Defendant] . . . would be out of the
office until the beginning of [2018]. Further, [Crawford
was informed] that, given that this hearing was the
Friday before Christmas, there would not be another
person who could fill in that person’s place.
In addition, the Court learned that, contrary to the commitment
made at the conference on December 13, 2017, Defendant did not
serve its discovery responses on December 15, 2017 (and indeed
those responses still remained unserved, with Outling now promising
that he would take steps to get Plaintiff “the discovery that [he]
require[s] as soon as possible after the holiday, Christmas, on
Monday
[December
25,
2017],”
although
he
denied
any
present
knowledge about the facts of the case).
Given those circumstances, on its own motion under Federal
Rule of Civil Procedure 16(f), the “Court conclude[d D]efendant
[wa]s in violation of [the] Text Order entered [December 13, 2017,
continuing
settlement,
the
and
conference,
requiring
expanding
a
its
purposes
representative
of
to
include
Defendant
with
authority to settle to appear at the continued conference,] and
that sanctions [we]re warranted.”
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(Minute Entry dated Dec. 22,
2017.)5
As a result, the Court ordered Defendant “to file [a]
memorandum . . . regarding the appropriate sanctions . . . .”
(Id.; see also id. (allowing Plaintiff to reply).)
Defendant submitted its sanctions-related memorandum (Docket
Entry 22), along with a Declaration from the Managing Partner of
Brooks, Pierce (Docket Entry 23), and Plaintiff replied (Docket
Entry 24).
Subsequently, on January 17, 2018, Defendant filed its
Extension Motion.
(Docket Entry 25.)
not consent to [the Extension Motion].”
“Plaintiff’s counsel does
(Id. at 3.)
DISCUSSION
The Extension Motion asks the Court “to (1) extend the close
of the discovery period to February 28, 2018; (2) extend the
deadline to complete mediation to March 7, 2018; and (3) extend the
time within which the parties may file dispositive motions to March
26, 2018.”
(Id. at 1.)
As the Extension Motion acknowledges (and
the Background section documents), “[t]he period for the completion
of discovery in this case ended on January 2, 2018.
The time for
completion of mediation ha[d] also expired [on January 2, 2018].”
5
During the conference, the Court expressly found, “on its own motion,”
grounds for sanctions under all three paragraphs of Federal Rule of Civil
Procedure 16(f)(1) (i.e., failure by a party to appear at a pretrial conference,
substantial unpreparedness of a party and its attorney to participate in a
pretrial conference, and failure to obey a pretrial order). Plaintiff’s counsel
asked that the Court “strike [Defendant’s] Answer” and “enter default.” Outling
argued that Defendant should not face sanctions and that the Court instead should
sanction only Crawford (or “perhaps Brooks, Pierce”). The Court explained that
any argument attributing culpability for the violation(s) at issue solely to
Crawford (or Brooks, Pierce) “would require taking evidence.”
-12-
(Id.)
Defendant, however, did not file the Extension Motion until
(See id. at 3.)6
January 17, 2018.
Moreover, Defendant failed to file a brief with its untimely
Extension Motion.
present.)
(See Docket Entries dated Jan. 17, 2018, to
“All motions, unless made during a hearing or at trial,
. . . shall be accompanied by a brief except as provided in section
(j) of [Local Rule 7.3].”
referenced
section
does
not
M.D.N.C. LR 7.3(a).
exempt
out-of-time
The crossmotions
for
extension of time from the brief-filing requirement, but rather
only
motions
“for
extension
of
time
.
.
.
made
before
the
expiration of the period originally prescribed or as extended by
previous orders[.]”
M.D.N.C. LR 7.3(j).
“A motion unaccompanied
by a required brief may, in the discretion of the Court, be
6
By Local Rule, “dispositive motions and supporting briefs must be filed
and served within 30 days following the close of the discovery period.” M.D.N.C.
LR 56.1(b). Given the discovery deadline of January 2, 2018, the dispositive
motions deadline in this case fell on February 1, 2018. That deadline thus had
not passed when Defendant filed the Extension Motion. However, “[a]ny party who
intends to file a motion for summary judgment, or any other dispositive motion,
must file and serve notice of intention to file a dispositive motion within 14
days following the close of the discovery period.”
M.D.N.C. LR 56.1(a).
Defendant filed no such notice by the applicable deadline of January 16, 2018;
accordingly, at the time Defendant filed its Extension Motion, it needed to
obtain belated relief from the dispositive motions notice deadline in order to
file a proper dispositive motion. The analysis that follows above regarding the
implications of the briefing requirement of Local Rule 7.3(a) and the excusable
neglect standard in Federal Rule of Civil Procedure 6(b)(1) therefore applies not
only to Defendant’s request to extend the discovery and mediation deadlines, but
also to its request to extend the dispositive motions deadline. Furthermore, the
Extension Motion would have the Court extend the dispositive motions deadline
based solely upon Defendant’s requested extensions of the discovery and mediation
deadlines. (See Docket Entry 25 at 2 (“In view of the proposed extension of the
time to complete discovery and mediation, [Defendant] requests that the deadline
[for dispositive motions] be moved to March 26, 2018.”).) Because the Court will
not extend the discovery and mediation deadlines, good cause does not exist under
Federal Rule of Civil Procedure 6(b)(1) for the requested extension of the
dispositive motions deadline (even if the briefing requirement of Local Rule
7.3(a) and the excusable neglect standard in Federal Rule of Civil Procedure
6(b)(1) do not apply to that particular request).
-13-
summarily denied.”
M.D.N.C. LR 7.3(k).
In this instance, the
Court exercises its discretion to summarily deny the Extension
Motion pursuant to Local Rule 7.3(k).
Alternatively, the Court denies the Extension Motion for
failure to make the requisite showing under the Federal Rules of
Civil Procedure.
Specifically, “[w]hen an act may or must be done
within a specified time, the [C]ourt may, for good cause, extend
the time . . . on motion made after the time has expired if the
party failed to act because of excusable neglect.”
6(b)(1) (emphasis added).
Fed. R. Civ. P.
Although this Rule nominally requires a
showing of both “good cause” and “excusable neglect,” in this
context, the United States Court of Appeals for the Fourth Circuit
effectively has collapsed those requirements into a single inquiry.
See Lovelace v. Lee, 472 F.3d 174, 203 (4th Cir. 2006) (“A district
court has discretion to grant an enlargement of time ‘upon motion
made after the expiration of the specified period where the failure
to act was the result of excusable neglect.’ Fed. R. Civ. P. 6(b).
We find no abuse of discretion here.
The district court had a
reasonable basis for finding good cause (or excusable neglect)
. . . .” (internal ellipsis omitted)).
That approach makes sense
because, whereas courts have described the “good cause” standard as
“non-rigorous,” Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253,
1259 (9th Cir. 2010), “liberal,” Coon v. Grenier, 867 F.2d 73, 76
(1st
Cir.
1989),
and
“not
.
.
-14-
.
particularly
demanding,”
Stark–Romero v. National R.R. Passenger Co., 275 F.R.D. 544, 547
(D.N.M. 2011), the Fourth Circuit has declared that “‘[e]xcusable
neglect’ is not easily demonstrated,” Thompson v. E.I. DuPont
Nemours & Co., Inc., 76 F.3d 530, 534 (4th Cir. 1996).
Accordingly, the Court will focus on determining whether
Defendant has shown “excusable neglect,” an inquiry the United
States Supreme Court has described as “at bottom an equitable one,
taking
account
of
all
relevant
circumstances
surrounding
the
party’s omission,” Pioneer Inv. Servs. Co. v. Brunswick Assocs.
Ltd. P’ship, 507 U.S. 380, 395 (1993).
“These include . . . [1]
the danger of prejudice to the [opposing party], [2] the length of
the delay and [3] its potential impact on judicial proceedings, [4]
the reason for the delay, including whether it was within the
reasonable control of the movant, and [5] whether the movant acted
in good faith.”
Id.
In reviewing these factors, the Court must
consider not only Defendant’s conduct, but also “whether [its]
attorney[s], as [its] agent[s], did all [they] reasonably could to
comply with the [deadline].”
Id. at 396; see also id. at 396–97
(taking note of prior decisions, “[i]n other contexts, . . .
[holding] that clients must be held accountable for the acts and
omissions of their attorneys” in declaring that, “in determining
whether [a party’s] failure to [meet a deadline] was excusable, the
proper focus is upon whether the neglect of [the party] and [its]
counsel was excusable” (emphasis omitted)).
-15-
Considering the Pioneer factors in the context of this case,
the Court first observes that Defendant’s showing as to the reason
for its request to extend the discovery and dispositive motions
deadlines (the most important factor, see Thompson, 76 F.3d at 534)
weighs against relief.
In that regard, the Extension Motion
acknowledges that Defendant “failed to comply with its discovery
obligations” (Docket Entry 25 at 2) and asserts in conclusory
fashion that “[t]he fault for such failure lies with counsel and
not [Defendant]” (id.).
Even if the Court accepted that latter
bald assertion (which the Court does not), the Fourth Circuit has
held that “run-of-the-mill inattentiveness by counsel” does not
support a finding of excusable neglect, Thompson, 76 F.3d at 535.
Further,
extending
the
discovery
and
dispositive
motions
deadlines as Defendant has requested would deprive the Court of a
reasonable amount of time to resolve any dispositive motions before
the long-standing trial date and related final pretrial filing
deadlines.
Specifically, under Defendant’s proposal, dispositive
motion briefing would extend through May 9, 2018, see M.D.N.C. LR
56.1(d) (allowing 30 days after filing of summary judgment motions
for filing of response briefs and 14 days thereafter for filing
reply briefs),
leaving
the
Court
only two
months
to
resolve
dispositive motions before the scheduled trial (and even less time
before the final pretrial disclosure deadlines imposed by Federal
Rule of Civil Procedure 26(a)(3)(B) and Local Rule 40.1(c)).
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The Court (per United States District Judge Catherine C.
Eagles) recently well-explained the impropriety of such extensions:
The Local Rules are designed to give the parties time to
brief and the Court time . . . to decide any summary
judgment motions before the disclosure requirements of
[Federal] Rule [of Civil Procedure] 26(a)(3) and [Local
Rule] 40.1(c) come into play. . . . [The proposed
discovery extension] means the summary judgment briefing
would not be complete until . . . only two months before
pretrial disclosures are due. . . . [T]his time frame
places undue time pressures on the Court and makes it
likely that the parties w[ould have to] begin serious
trial preparation before it is known that a trial will
happen or whether the issues will be narrowed by summary
judgment rulings. As often happens when the discovery
period is extended, one or both parties may seek a
continuance to avoid that result. If the trial has to be
continued, the delay harms all parties. If the case is
not continued, the parties will prepare for trial without
the benefit of a summary judgment decision.
Qayumi v. Duke Univ., No. 1:16CV1038, 2017 WL 6626193, at *3
(M.D.N.C.
Dec.
28,
2017)
(unpublished).
In
other
words,
Defendant’s proposed extension of the discovery and dispositive
motions
deadlines
portends
possible
serious
prejudice
to
Plaintiff’s interest in maintaining an agreed-upon and judicially
sanctioned end-point for this case, as well as an adverse impact on
the
Court’s
proceedings,
and
thus
constitutes
a
delay
of
unreasonable length under the circumstances, particularly given the
absence of an acceptable reason for such delay (even if the Court
assumed Defendant acted in good faith – a questionable assumption
to make given the excessive delay in providing basic discovery).7
7
The Extension Motion notes that, “[a]t the December 13, 2017 hearing in
this matter, before the expiration of the discovery period, the parties and the
Court discussed a potential extension of the discovery period to late February
-17-
Simply put, Defendant has not met its burden under Federal
Rule of Civil Procedure 6(b)(1) to obtain the requested extensions
of the discovery and dispositive motions deadlines.
Nor has
Defendant shown excusable neglect so as to permit the Court to
extend the mediation deadline.
Again, Defendant has not tendered
a reason for the delay in conducting mediation that would support
relief, as its Extension Motion once more merely declares without
support that “the fault for [Defendant’s] failure [to submit to
mediation
in
a
timely
manner]
[Defendant]” (Docket Entry 25 at 2).
lies
with
counsel
and
not
See Thompson, 76 F.3d at 535
(ruling that “run-of-the-mill inattentiveness by counsel” does not
advance
excusable
mediation
now
–
neglect
after
argument).
(as
the
In
addition,
Background
section
requiring
details)
Defendant’s representative failed to appear at the continuation of
the pretrial conference to discuss settlement (as ordered after
or early March 2018.” (Docket Entry 25 at 2.) The Extension Motion fails to
mention, however, that such discussion rested on the premise that Defendant would
serve its overdue discovery responses by December 15, 2017, that Plaintiff’s
counsel would review those responses by December 22, 2017, to determine what
additional discovery Plaintiff would need to take, and that (at the continuation
of the pretrial conference on December 22, 2017) the parties and the Court would
assess whether such discovery reasonably could occur within the approximate 60day period that Plaintiff forecast as the minimum time needed, as well as whether
allowing discovery to extend that far (at that point, to late February or early
March 2018) would imperil the July 2018 trial date. Of course, Defendant did not
serve its discovery responses by December 15, 2017; instead, according to
Defendant, its “delinquent discovery responses were provided to Plaintiff on
January 5, 2018” (id.). Even if Plaintiff’s counsel could have reviewed those
responses in a week, discovery would have had to extend to at least mid-March
2018 to allow Plaintiff the 60 days or more he reasonably predicted he would need
to conduct follow-up discovery. A discovery deadline extension of that sort
(particularly if coupled with Defendant’s request for a related extension of the
dispositive motions deadline) would leave the Court only about a month between
the conclusion of dispositive motion briefing and the trial date. For reasons
outlined above, the Court deems such an arrangement untenable.
-18-
Crawford
reported
recommendation
that
that
it
Defendant
pursue
had
not
settlement)
responded
–
would
to
her
prejudice
Plaintiff by forcing him to spend more time and money chasing the
illusive
prospect
that
Defendant
would
engage
in
settlement
discussions. Finally, given that the Court previously extended the
mediation
deadline,
the
further
delay
qualifies as unreasonable in length.
proposed
by
Defendant
With those three factors
weighing against a finding of excusable neglect, even if the
request to extend time for mediation would not negatively impact
judicial proceedings and the Court somehow deemed Defendant’s prior
failure to mediate a mere good-faith mistake, the Pioneer factors,
on balance, tip decidedly against Defendant’s position.
All of the foregoing considerations compel the Court to deny
the Extension Motion.
Turning to the issue of sanctions:
[O]n its own, the [C]ourt may issue any just orders,
including those authorized by [Federal] Rule [of Civil
Procedure] 37(b)(2)(A)(ii)-(vii), if a party or its
attorney:
(A) fails to appear
pretrial conference;
at
a
scheduling
(B) is substantially unprepared
. . . in the conference; or
to
or
other
participate
(C) fails to obey a scheduling or other pretrial
order.
Fed. R. Civ. P. 16(f)(1) (emphasis added).
As set out in the
Background section, the Court found, on its own motion, that
-19-
sanctions
should
attach
under
all
three
of
the
above-quoted
paragraphs of Federal Rule of Civil Procedure 16(f)(1), because
Defendant did not appear at the pretrial conference on December 22,
2017, Defendant and its attorney were substantially unprepared to
participate in the pretrial conference on December 22, 2017, and
Defendant failed to obey the Court’s Text Order dated December 13,
2017, requiring a representative with settlement authority to
appear at the conference on December 22, 2017.
Regarding the range of sanctions generally available in this
context,
the
provisions
of
Federal
Rule
of
Civil
Procedure
37(b)(2)(A) cross-referenced in Federal Rule of Civil Procedure
16(f)(1) identify these options:
(ii) prohibiting the disobedient party from
supporting or opposing designated claims or defenses, or
from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is
obeyed;
(v) dismissing the action or proceeding in whole or
in part;
(vi) rendering a
disobedient party; or
default
judgment
against
the
(vii) treating as contempt of court the failure to
obey any order except an order to submit to a physical or
mental examination.
Fed. R. Civ. P. 37(b)(2)(A) (emphasis added); see also Fed. R. Civ.
P. 16(f)(2) (“Instead of or in addition to any other sanction, the
court must order the party, its attorney, or both to pay the
-20-
reasonable expenses – including attorney’s fees – incurred because
of any noncompliance with this rule, unless the noncompliance was
substantially justified or other circumstances make an award of
expenses unjust.” (emphasis added)).
Defendant “requests that any sanctions be limited to an award
of the fees and expenses incurred by Plaintiff in attending the
December 22, 2017 hearing, and that such sanctions be imposed
solely on either [] Crawford or on the Brooks Pierce law firm.”
(Docket Entry 22 at 6; see also id. (“Such an award (together with
an extension of the discovery period [to February 28, 2018]) would
remedy any harm suffered by Plaintiff.”).)
The Fourth Circuit
“ha[s] instructed district courts to apply a four part test when
determining appropriate sanctions under [Federal Rule of Civil
Procedure] 37(b) [as incorporated into Federal Rule of Civil
Procedure 16(f)(1)]:
‘(1) whether the noncomplying party acted in
bad faith; (2) the amount of prejudice [its] noncompliance caused
[its] adversary; (3) the need for deterrence of the particular sort
of
noncompliance;
and
(4)
the
effectiveness
of
less
drastic
sanctions.’” Young Again Prods., Inc. v. Accord, 459 F. App’x 294,
301 (4th Cir. 2011) (ellipsis omitted) (emphasis added) (quoting
Mutual Fed. Sav. and Loan Ass’n v. Richards & Assoc., Inc., 872
F.2d 88, 92 (4th Cir. 1989)).
Application of that test to the
record facts leads the Court to order as the proper sanction in
this instance, in addition to expense-shifting, the striking of
-21-
Defendant’s Answer (which will require the Clerk to enter a default
under Federal Rule of Civil Procedure 55(a), which then will allow
Plaintiff to move for a default judgment and to request a hearing
on damages under Federal Rule of Civil Procedure 55(b)(2)).8
To begin, the Court finds that, in addition to the fact that
Outling came the pretrial conference on December 22, 2017, totally
unprepared
to
address
any
of
the
objects
of
the
conference
identified in the Text Orders dated December 7 and 13, 2017 (i.e.,
controlling and scheduling discovery, facilitating a proper and
efficient disposition, and settling the case), Defendant willfully
failed to send a representative with settlement authority to the
conference, in direct contravention of the Court’s Text Order dated
December 13, 2017.
In that regard, as detailed in the Background
8
As set forth in Footnote 5, when the Court raised the issue of sanctions
at the conference on December 22, 2017, Plaintiff’s counsel did not request entry
of a default judgment, but rather only asked that the Court “strike [Defendant’s]
Answer” and “enter default.”
Plaintiff’s Memorandum regarding Imposing
Sanctions, in contrast, asserts that “sanctions other than striking the answer
and entry of default judgment would not be effective.” (Docket Entry 24 at 4
(emphasis added).) The entry of default constitutes a pretrial matter that does
not dispose of a claim; as a result, courts have treated motions pertaining to
entry of default as subject to adjudication by a magistrate judge under 28 U.S.C.
§ 636(b)(1)(A). See, e.g., Bailey v. United Airlines, 279 F.3d 194, 204 (3d Cir.
2002); L & M Cos., Inc. v. Biggers III Produce, Inc., No. 3:08CV309, 2010 WL
1439411, at *8 & n. 3 (W.D.N.C. Apr. 9, 2010) (unpublished). Conversely, “[a]
motion for default judgment is a dispositive motion for purposes of the
Magistrate Judges Act.” Baltimore Line Handling Co. v. Brophy, 771 F. Supp. 2d
531, 534 (D. Md. 2011). Moreover, upon entry of default, because Plaintiff’s
Complaint does not seek “a sum certain or a sum that can be made certain by
computation,” Fed. R. Civ. P. 55(b)(1), Plaintiff “must apply to the [C]ourt for
a default judgment,” Fed. R. Civ. P. 55(b)(2), and the Court “may conduct
hearings or make referrals – preserving any federal statutory right to a jury
trial – when, to enter or effectuate judgment, it needs to . . . determine the
amount of damages,” id. Under these circumstances, the undersigned Magistrate
Judge elects to construe his own motion (which serves as the basis for imposition
of sanctions) to extend only so far as to permit the striking of Defendant’s
Answer (resulting in the entry of default) and not to the final step of entry of
a default judgment (which should await further application by Plaintiff (in the
form of a motion) and any hearing on damages deemed necessary).
-22-
section, on December 22, 2017, after the Court took an extended
recess for the specific purpose of allowing Outling (and/or other
Brooks, Pierce attorneys) to inquire directly of Defendant as to
exactly when and what it knew about its obligation to attend the
conference that day, Outling chose to report to the Court only
that, according to Crawford:
1) on December 13, 2017, Defendant received notice of the
Court’s directive requiring an appearance by a representative of
Defendant at the conference on December 22, 2017; and
2) on December 19, 2017, Defendant informed Crawford that it
would not to send anyone to the conference on December 22, 2017,
because (A) the employee with responsibility for this case took off
from work in mid-December 2017 and would not return to the office
until early
January
2018,
and
(B)
none of
Defendant’s
other
employees would attend a proceeding on the Friday before Christmas.
Defendant’s Memorandum regarding Imposition of Sanctions seeks
to avoid the foregoing concession of willfulness by stating that,
“[t]o the extent that statements have been made to the Court that
[Defendant] was aware prior to December 27[, 2017] . . . that it
had been ordered to appear on December 22, 2017, such statements
were incorrect.”
prior
unambiguous
confirming
that
(Docket Entry 22 at 3 n.1.)
statements
Defendant
(from
Crawford
consciously
chose
In place of the
through
not
to
Outling)
send
a
representative to the conference, Defendant now has offered this
-23-
equivocal statement:
[Brooks,
Pierce’s
“Based on all information available to
General
Counsel
and
its]
Managing
Partner,
[Defendant] itself was unaware . . . that it had been ordered to
appear at the December 22, 2017 hearing prior to December 27, 2017
when [] Crawford met with [Defendant’s] General Counsel.”
(Id. at
2-3 (internal footnote omitted) (emphasis added).) The Court deems
that statement insufficient to establish an absence of bad faith,
particularly given that, on December 22, 2017, the Court expressly
advised Outling that any argument seeking to attribute culpability
for Defendant’s failure to appear at the conference that day solely
to Crawford (or Brooks, Pierce) “would require taking evidence.”
Notably,
Crawford
Defendant
(much
representations
less
to
has
not
evidence
the
submitted
from
Court
any
Crawford
(through
evidence
from
disavowing
her
Outling)
about
her
communications with Defendant on December 13 and 19, 2017); nor has
Defendant come forward with evidence from any of its own employees.
(See id. at 1-8.)9
Instead, by way of evidence, Defendant has
offered only the Declaration of Reid L. Phillips (Brooks, Pierce’s
Managing Partner).
(Docket Entry 23.)
In pertinent part, that
Declaration relates the following:
1) “[a]fter 5:00 pm on the afternoon of December 22, 2017, []
Outling came to [Phillips’s] office and reported to [Phillips], for
the first
time,
that
[Brooks,
Pierce]
9
had
failed
to
provide
Defendant also did not request an evidentiary hearing to present such
evidence. (See Docket Entry 22 at 1-8.)
-24-
discovery in this case, that sanctions had been imposed [against
Defendant’s counsel under the Court’s Local Rules in connection
with the pretrial conference on December 13, 2017], and that a
brief was due on December 29, 2017 relating to the potential for
additional
sanctions
[under
Federal
Rule
of
Civil
Procedure
16(f)(1), in connection with the pretrial conference on December
22, 2017]” (id. at 2);
2) “[Phillips] immediately informed [Brooks, Pierce’s] General
Counsel [Robert King]” (id.);
3) “[King] and [Phillips] then investigated the circumstances
that led to the current situation” (id.);
4) “[Phillips] ha[s] communicated several times with Roger
Petersen, the General Counsel for [Defendant]” (id. at 3);
5) “[Phillips] understand[s] that [] Crawford met with []
Petersen on Wednesday, December 27, [2017,] apologized for her
mistakes, and took full responsibility for the circumstances” (id.
at 4; see also id. (“I confirmed this in a conversation with Mr.
Petersen later on the 27th.”));
6) “Crawford has acknowledged that the failings in this case
– including . . . to arrange for a representative of [Defendant] to
attend the December 22, 2017 hearing – were her own” (id.); and
7) “[Phillips] understand[s] that [Defendant] was unaware of
. . . the need to attend the December 22, 2017 hearing until []
Crawford so informed [] Petersen on December 27, 2017” (id.; see
-25-
also id. (“I have confirmed with Mr. Petersen that December 27,
2017 was the first time that he learned of these issues.”)).
None of those statements by Phillips (including his second- or
third-hand recounting of Crawford taking “full responsibility for
the circumstances” and acknowledging that the failure “to arrange
for a representative of [Defendant] to attend the December 22, 2017
hearing [was] her own” or of Petersen’s denial of prior personal
knowledge of Defendant’s duty to appear on December 22, 2017)
directly contradicts Crawford’s earlier representation to the Court
(through Outling) that, on December 13, 2017, Crawford notified
someone
from
Defendant
about
its
obligation
to
send
a
representative to the conference on December 22, 2017, and that, on
December 19, 2017, someone from Defendant notified Crawford that it
would not send anyone, because its designated representative for
this case had taken leave from work until January 2018 and no other
employee would attend a conference on the Friday before Christmas.
With Crawford’s initial account of those specific matters
effectively unrebutted, the Court finds that the first and third
factors relevant to sanctions (i.e., “whether the noncomplying
party acted in bad faith . . . [and] the need for deterrence of the
particular sort of noncompliance,” Young Again, 459 F. App’x at 301
(internal quotation marks omitted)), strongly favor the imposition
of a heavy sanction against Defendant.
See, e.g., id. at 303
(“[The Fourth Circuit] ha[s] previously found that ‘stalling and
-26-
ignoring
the
direct
orders
of
the
court
with
impunity’
is
‘misconduct’ that ‘must obviously be deterred.’” (quoting Mutual
Fed., 872 F.2d at 93)); D’Orazio v. OSD Holdings, Inc., No.
5:16CV11D,
2017
WL
888225,
at
*2
(E.D.N.C.
Mar.
6,
2017)
(unpublished) (finding “bad faith” where party “willfully refus[ed]
to participate”); Plant v. Merrifield Town Ctr. Ltd. P’ship, Nos.
1:08CV374(TSE/JFA), 1:08CV566, 2009 WL 6082878, at *6 (E.D. Va.
Dec. 23, 2009) (unpublished) (“In this circuit, bad faith includes
willful conduct, where [a party] ‘clearly should have understood
his duty to the court’ but nonetheless ‘deliberately disregarded’
it. . . .
If the court were to fail to [impose a serious sanction]
at this juncture, it would send the wrong message to recalcitrant
parties and their counsel:
that defiance goes unpunished.
Thus,
the need to deter this type of behavior is great.” (quoting Rabb v.
Amatex Corp., 769 F.2d 996, 1000 (4th Cir. 1985))), adopted in
relevant part, 711 F. Supp. 2d 576, 584-88 (E.D. Va. 2010).10
10
The Court thus has found, based on the existing record, that Defendant
bears direct responsibility for noncompliance with the Court’s directives
regarding the pretrial conference on December 22, 2017. To the extent Crawford,
Outling, and/or Brooks, Pierce also share responsibility for such noncompliance:
There is certainly no merit to the contention that [imposition of a
severe sanction against Defendant] because of [its] counsel’s
unexcused conduct imposes an unjust penalty on the client.
[Defendant] voluntarily chose th[ese] attorney[s] as [its]
representative in the action, and [Defendant] cannot now avoid the
consequences of the acts or omissions of [its] freely selected
agent.
Any other notion would be wholly inconsistent with our
system of representative litigation, in which each party is deemed
bound by the acts of [its] lawyer-agent and is considered to have
“notice of all facts, notice of which can be charged upon the
attorney.”
Link v. Wabash R.R. Co., 370 U.S. 626, 633-34 (1962) (quoting Smith v. Ayer, 101
U.S. 320, 326 (1879)); see also id. at 634 n.10 (“[I]f an attorney’s conduct
-27-
Likewise, the remaining two factors, i.e., “the amount of
prejudice [Defendant’s] noncompliance caused [its] adversary . . .
and [] the effectiveness of less drastic sanctions,” Young Again,
459 F. App’x at 301 (internal quotation marks omitted), also
require more than simply expense-shifting and an extension of the
discovery period.
At most, “[a]n award of monetary sanctions to
cover
expended
the
costs
[by
Plaintiff]
in
dealing
with
[Defendant’s] violations would simply place the parties close to
where they stood [monetarily] had the violation not occurred. Such
an award would not account for the time lost in the case or the
cost to the [C]ourt, nor would it provide a deterrent effect.
additional sanction is necessary.”
An
Beach Mart, Inc. v. L & L
Wings, Inc., 302 F.R.D. 396, 415 (E.D.N.C. 2014).
Finally, the
Court rejects Defendant’s suggestion that, along with expenseshifting, “an extension of the discovery period . . . would remedy
any harm suffered by Plaintiff” (Docket Entry 22 at 6).
For
reasons discussed above in connection with the Extension Motion,
any such extension not only would imperil the trial date, but also
would deprive Plaintiff of sufficient time to conduct necessary
follow-up
discovery
(given
that
Defendant
did
not
serve
its
delinquent discovery responses until January 5, 2018).
falls substantially below what is reasonable under the circumstances, the
client’s remedy is against the attorney in a suit for malpractice.
But
[withholding significant sanctions against a party] merely because [it] should
not be penalized for the omissions of [its] own attorney would be visiting the
sins of [that party’s] lawyer upon the [opposing party].”).
-28-
In
sum,
the
Court’s
review
establishes
that
Defendant’s
violations under Federal Rule of Civil Procedure 16(f)(1) demand
the imposition of significant sanctions, specifically the striking
of its Answer, as well as expense-shifting.11
CONCLUSION
Defendant’s Extension Motion does not comply with Local Rule
7.3 and does not satisfy Federal Rule of Civil Procedure 6(b)(1).
Moreover, Defendant’s “fail[ure] to appear at [the December 22,
2017] pretrial conference,” Fed. R. Civ. P. 16(f)(1)(A), the fact
that Defendant and its counsel were “substantially unprepared to
participate
16(f)(1)(B),
.
.
and
.
in
th[at]
Defendant’s
conference,”
“fail[ure]
to
Fed.
obey
R.
[the
Civ.
P.
Court’s
December 13, 2017] pretrial order,” Fed. R. Civ. P. 16(f)(1)(C),
all warrant the striking of Defendant’s Answer (Docket Entry 9),
pursuant to Federal Rule of Civil Procedure 16(f)(1) (and, by
incorporation, Federal Rule of Civil Procedure 37(b)(2)(A)(iii)),
and require entry of an order that Defendant and its counsel “pay
the reasonable expenses – including attorney’s fees – incurred [by
Plaintiff] because of [Defendant’s] noncompliance with [Federal
Rule of Civil Procedure 16],” Fed. R. Civ. P. 16(f)(2).
11
To the extent Defendant has argued that the exceptions in Federal Rule
of Civil Procedure 16(f)(2) should insulate it (as opposed to its counsel) from
expense-shifting, the Court rejects that argument for the same reasons the Court
deemed expense-shifting alone an insufficient sanction.
-29-
IT IS THEREFORE ORDERED that Defendant’s Motion for Extension
of Time to Complete Discovery and Mediation, and for the Filing of
Dispositive Motions (Docket Entry 25) is DENIED.
IT IS FURTHER ORDERED that, pursuant to Federal Rules of Civil
Procedure 16(f)(1) and 37(b)(2)(A)(iii), Defendant’s Answer (Docket
Entry 9) is STRICKEN.
As a result, the Clerk shall enter a default
against Defendant under Federal Rule of Civil Procedure 55(a).
IT IS FURTHER ORDERED that Plaintiff shall file a motion for
default judgment under Federal Rule of Civil Procedure 55(b)(2) on
or before February 16, 2018.
IT IS FURTHER ORDERED that, pursuant to Federal Rule of Civil
Procedure
reasonable
16(f)(2),
expenses,
Defendant
and
including
its
counsel
attorney’s
shall
fees,
pay
incurred
the
by
Plaintiff in connection with the pretrial conference on December
22, 2017.
To establish the amount of such expenses:
(1) On or before February 16, 2018, Plaintiff shall serve
Defendant with a statement of the reasonable expenses, including
attorney’s fees, Plaintiff incurred in connection with the pretrial
conference on December 22, 2017.
Failure by Plaintiff to comply
with this order will result in the denial of any such expenseshifting.
(2) If Plaintiff timely serves Defendant with such a statement
of reasonable expenses, Defendant shall file, on or before March 2,
2018, EITHER (A) a notice that Defendant and its counsel consents
-30-
to the reasonableness of the expenses claimed in the statement
served by Plaintiff (with a copy of that statement attached), OR
(B) a brief of not more than five pages (excluding attachments)
setting forth any argument challenging the reasonableness of the
claimed expenses, along with a certification that Defendant has
conferred in good faith with Plaintiff in an attempt to resolve
that dispute.
Failure by Defendant to comply with this order will
result in the granting of expense-shifting to Plaintiff, as claimed
in the statement of reasonable expenses served on Defendant, upon
Plaintiff’s filing of that statement with the Court.
(3)
If
Defendant
timely
files
a
brief
contesting
the
reasonableness of Plaintiff’s claimed expenses, Plaintiff shall
file, on or before March 9, 2018, a brief of not more than five
pages (excluding attachments) responding to Defendant’s brief.
Failure by Plaintiff to comply with this order will result in
denial of expense-shifting to the extent contested by Defendant.
(4) If Plaintiff timely files such a response brief, Defendant
may file, on or before March 16, 2018, a reply brief of not more
than three pages (excluding attachments).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
February 2, 2018
-31-
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