Carolina First Bank v. Stambaugh et al
Filing
25
ORDER denying 16 Motion to Compel; denying 19 Motion to Compel. Signed by Magistrate Judge Dennis Howell on July 12, 2011. (jhg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:10cv174
CAROLINA FIRST BANK,
)
)
Plaintiff,
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v.
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CHARLES STAMBAUGH; and
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CAMILLA STAMBAUGH,
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Defendants.
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___________________________________ )
ORDER
Pending before the Court are Defendants’ Motions to Compel [#16 & #19].
Plaintiff brought this case to collect over $300,000.00 it contends Defendants owe on
a loan. Defendants borrowed these funds to finance a real estate development project
in North Carolina. Defendants assert laches as an affirmative defense, as well as a
Counterclaim for breach of contract. Defendants now move to compel Plaintiff to
respond to three interrogatories.1 The Court DENIES the motions [#16 & #19].
I.
Analysis
Generally speaking, parties are entitled to discovery regarding any non1
The Court notes that Defendants failed to comply with the Court’s Local Rules, which
require a party to either file a reply brief or notify “the Court and opposing counsel promptly in
an electronically filed notice” that the party does not intend to file a reply brief. LCvR 7.1(E).
Defendants neither filed a reply brief as to either motion nor filed an electronic notice of their
intention not to file a reply. Going forward, the Court may strike any motion that does not
comply with the Court’s Local Rules or the Federal Rules of Civil Procedure.
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privileged matter that is relevant to any claim or defense. Fed. R. Civ. P. 26(b)(1).
“Relevant information need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence.” Id. Where a
party fails to respond to an interrogatory or a request for production of documents, the
party seeking discovery may move for an order compelling an answer to the
interrogatories or the production of documents responsive to the request. Fed. R. Civ.
P. 37(a)(3)(B).
“Over the course of more than four decades, district judges and
magistrate judges in the Fourth Circuit . . . have repeatedly ruled that the party or
person resisting discovery, not the party moving to compel discovery, bears the
burden of persuasion.” Kinetic Concepts, Inc. v. ConvaTec Inc., 268 F.R.D. 226, 243
(M.D.N.C. 2010) (collecting cases); Mainstreet Collection, Inc. v. Kirkland’s, Inc.,
270 F.R.D 238, 241 (E.D.N.C. 2010).
Defendants submitted the following interrogatories to Plaintiff:
Interrogatory No. 10
During the time in question, January 1, 2007 to the present, how many
commercial loans secured by mortgages have been executed by the Plaintiff,
and of those, how many subsequently went into default.
Interrogatory No. 11
For each loan in default in No. 10 above, list each legal step, no matter how
often repeated, and respective effective date, Plaintiff attempted in pursuing
ultimate resolution. For example:
Loan #1:
default
foreclosure
xx/xx/xxxx
xx/xx/xxxx
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foreclosure sale date
Sale cancelled
Foreclosure sale date
Sale canceled
Foreclosure dismissed
Filed suit on the note
Resolution (define)
xx/xx/xxxx
xx/xx/xxxx
xx/xx/xxxx
xx/xx/xxxx
xx/xx/xxxx
xx/xx/xxxx
xx/xx/xxxx
Interrogatory No. 12
During the time in question, January 1, 2007 to the present, how many
commercial loans secured by mortgages were in force when Plaintiff granted
a principal reserve allowing repayment of principal directly from bank loan
funds during the term of the note?
In response to each of these interrogatories, Plaintiff objected on the grounds that the
interrogatories were not relevant and not reasonably caclucated to lead to admissible
evidence and are unduly burdensome.
Neither of the three interrogatories at issue are relevant to Plaintiff’s claim or
Defendants’ defense of laches or counterclaim for breach of contract. The undersigned
is of the opinion the information requested is not reasonably calculated to lead to the
discovery of admissible evidence. The pertinent issue in this dispute is whether a
valid and enforceable contract exists between the parties and whether Plaintiff
breached the contract. Information related to other loans issued by Plaintiff has no
bearing on the claims and defenses of either party in this dispute. Put simply, there
are no allegations in this case that place at issue Plaintiff’s conduct related to other
loans.
Finally, Defendants’ cursory argument that such information is relevant
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because it seeks to verify or explain a potential ambiguity or define a material term
of the contract between the parties is insufficient to warrant requiring Plaintiff to
respond to these interrogatories. Based on the allegations in the Complaint and
Counterclaim, the information sought in Interrogatories 10-12 is not “relevant to any
party’s claim or defense.” See Fed. R. Civ. P. 26(b)(1). Accordingly, the Court
DENIES Defendants’ Motions to Compel.
II.
Fees
Rule 37(a)(5)(B) provides as follows:
If the Motion Is Denied. If the motion is denied, the court may issue
any protective order authorized under Rule 26(c) and must, after giving
an opportunity to be heard, require the movant, the attorney filing the
motion, or both to pay the party or deponent who opposed the motion its
reasonable expenses incurred in opposing the motion, including
attorney’s fees. But the court must not order this payment if the motions
was substantially justified or other circumstances make an award of
expenses unjust.
In accordance with the Rule, the court will direct Defendants to show cause in
writing, within seven (7) days of the entry of this Order, why the Court should not
award Plaintiff their costs, including Plaintiff’s attorney fees, pursuant to Rule
37(a)(5)(A). The written response shall be no greater than ten (10) pages in length.
The Plaintiff shall then be allowed to respond no later than seven (7) days after the
filing of Defendant’s writing. The Plaintiff’s response shall be no greater than ten
(10) pages. Plaintiff should also submit affidavits setting forth the number of hours
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counsel reasonably expended filing the response to the Motions to Compel, the hourly
rate charged and the prevailing market rate in the relevant community. See Robinson
v. Equifax Information Servs., LLC, 560 F.3d 235, 243-244 (4 th Cir. 2009).
Defendants shall then have seven (7) days after that response to file specific objections
to the expenses requested by Plaintiff. The affidavit concerning time is not subject to
the page limitation. If fees are allowed the Court will then calculate the award of
attorney fees by multiplying the number of reasonable hours expended by counsel
times the reasonable hourly rate. Robinson, 560 F.2d at 243. In determining what
constitutes a reasonable number of hours and rate, the Court shall consider:
(1) the time and labor expended; (2) the novelty and difficulty of the
questions raised; (3) the skill required to properly perform the legal
services rendered; (4) the attorney’s opportunity costs in pressing the
instant litigation; (5) the customary fee for like work; (6) the attorney’s
expectations at the outset of the litigation; (7) the time limitations
imposed by the client or circumstances; (8) the amount in controversy
and the results obtained; (9) the experience, reputation and ability of the
attorney; (10) the undesirability of the case within the legal community
in which the suit arose; (11) the nature and length of the professional
relationship between attorney and client; and (12) attorneys’ fees awards
in similar cases.
Id. At 243-44 (quoting Barber v. Kimbrell’s Inc., 577 F.2d 216, 266 n.28 (4 th Cir.
1978)).
The parties may certainly see if they can agree in regard to the resolution of the
issue of fees and expenses.
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III.
Conclusion
1. The Court DENIES Defendants’ Motions to Compel [#16 & #19];
2. The undersigned further enters a Protective Order as set forth under Rule
26(c) of the Federal Rules of Civil Procedure ordering that the Plaintiff not be
required to respond to interrogatories #10, #11 and #12 as set forth herein;
3. Defendants are ordered to show cause in writing as set forth above as to why
the Court should not order Defendants to pay Plaintiff’s reasonable costs, including
attorney fees, as a result of Defendants’ Motions to Compel.
Signed: July 12, 2011
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