RDLG, LLC v. RPM Group, LLC et al
Filing
212
ORDER granting Pltf's 192 MOTION to Compel Responses to Post-Judgment Discovery Requests from Chip Leonard; parties will be heard concerning the Pltf's Motion for Attorney Fees on 9/25/2015 at 2:00 p.m. in C ourtroom #2 of the U.S. Courthouse in Asheville, NC; Pltf to file with the Court affidavits concerning Pltf's request for counsel fees and expenses as set forth in body of this Order on or before 8/25/2015; Deft allowed to respond in writing to affidavits on or before 9/08/2015. (see Order for details) Signed by Magistrate Judge Dennis Howell on 8/5/15. (Pro se litigant served by US Mail.)(ejb)
IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:10 CV 204
RDLG, LLC,
)
)
Plaintiff
)
)
v
)
)
RPM GROUP, LLC; RPM GROUP
)
BROKERAGE, LLC; FRED M. LEONARD, )
JR. a/k/a CHIP LEONARD; JESSICA LEWIS )
LEONARD; JASON BENTON; NICK JAMES;)
and DEXTER HUBBARD,
)
)
Defendants
)
ORDER
THIS MATTER is before the Court pursuant to Plaintiff’s Motion to Compel
(#192), the response of the Defendant Fred M. Leonard, Jr. (#196), and the reply of
the Plaintiff (#197). The Court now enters the following Order:
I. Background.
On January 14, 2015, based upon a jury verdict entered on January 13, 2015
(#178), this Court entered a Judgment (#179) in favor of the Plaintiff against the
Defendant Fred M. Leonard, Jr. in the amount of $500,580.36. Thereafter, on
February 4, 2015, Plaintiff served the First Set of Interrogatories for Production and
Aid of Judgment (#192) upon Defendant’s counsel. Having received no response to
either the interrogatories or the request for production of documents, on March 20,
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2015, the Plaintiff filed a Motion to Compel (#192) pursuant to Rule 37(a) and Rule
69(a)(2) of the Federal Rules of Civil Procedure requesting the Court issue an order
compelling Defendant Leonard to provide written responses to the interrogatories
and to produce the documents requested.
On April 6, 2015, Defendant Leonard filed a Motion for Extension of Time to
Respond to the Plaintiff’s Motion to Compel Responses to Post-Judgment Discovery
Requests From Chip Leonard (#194). Defendant did not file a motion to extend the
time to respond to the interrogatories or the request for production of documents.
Such time had previously expired on March 9, 2015 (#192, p. 2). The Motion to
Extend Time to Respond to the Plaintiff’s Motion to Compel was allowed. (#195)
On April 13, 2015, Defendant responded to the Motion to Compel (#196). In
the response, Defendant declined to answer the interrogatories that exceeded 25 in
number and objected to interrogatories, that being numbers 26 through 47. Plaintiff
filed a Reply (#197) in which Plaintiff contended the answers provided by Defendant
Leonard to the interrogatories numbers 1 through 25 were false and Defendant had
failed to provide the documents requested in the request for production of
documents. In a Supplemental Memorandum in Support of the Motion to Compel
(#205) filed on June 11, 2015, Plaintiff made further contentions that answers given
by the Defendant Leonard to several of the 25 interrogatories that were responded
to were false and that Leonard should be ordered to immediately make full and
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complete responses to the request for production of documents, answer all
interrogatories, and pay the Plaintiff’s fees incurred as a result of making the Motion
to Compel (#205).
II. Analysis.
(a) Standard of Review
Whether to grant or deny a motion to compel is generally left within the
District Court’s broad discretion. Lone Star Steakhouse and Salon, Inc. v. Alpha
VA., Inc., 43 F.3d 922, 929 (4th Cir. 1995)
In reviewing the Motion to Compel it appears that under the facts of this case,
Rule 69, Rule 33, and Rule 34 of the Federal Rules of Civil Procedure apply:
Rule 69. Execution
(a) In General.
(1) Money Judgment; Applicable Procedure. A money
judgment is enforced by a writ of execution, unless the court
directs otherwise. The procedure on execution---and in
proceeding supplementary to and in aid of judgment or
execution---must accord with the procedure of the state where
the court is located, but a federal statute governs to the extent it
applies.
(2) Obtaining Discovery. In aid of the judgment or execution,
the judgment creditor or a successor in interest whose interest
appears of record may obtain discovery from any person--including the judgment debtor---as provided in these rules or by
the procedure of the state where the court is located.
Rule 33 of the Federal Rules of Civil Procedure provides as follows:
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Rule 33. Interrogatories to Parties
(a) In General.
(1) Number. Unless otherwise stipulated or ordered by the
court, a party may serve on any other party no more than 25
written interrogatories, including all discrete subparts. Leave to
serve additional interrogatories may be granted to the extent
consistent with Rule 26(b)(2).
(2) Scope. An interrogatory may relate to any matter that may
be inquired into under Rule 26(b). An interrogatory is not
objectionable merely because it asks for an opinion or contention
that relates to fact or the application of law to fact, but the court
may order that the interrogatory need not be answered until
designated discovery is complete, or until a pre-trial conference
or some other time.
(b) Answers and Objections.
(1) Responding Party. The interrogatories must be answered:
(A) by the party to whom they are directed; or
(B) if that party is a public or private corporation, a
partnership,
an association, or a governmental agency, by any officer or
agent, who must furnish the information available to the
party.
(2) Time to Respond. The responding party must serve its
answers ad any objections within 30 days after being
served with the interrogatories. A shorter or longer time
may be stipulated to under Rule 29 or be ordered by the
court.
(3) Answering Each Interrogatory. Each interrogatory must,
To the extent it is not objected to, be answered separately
and fully in writing under oath.
(4) Objections. The grounds for objecting to an interrogatory
must be stated with specificity. Any ground not stated in a
timely objection is waived unless the court, for good cause,
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excuses the failure.
(5) Signature. The person who makes the answers must sign
them, and the attorney who objects must sign any
objections.
Rule 34(b)(2) of the Federal Rules of Civil Procedure provides with
respect to request for production of documents as follows:
(2)
Responses and Objections.
(A) Time to Respond. The party to whom the request is
directed must respond in writing within 30 days after being
served. A shorter or longer time may be stipulated to
under Rule 29 or be ordered by the court.
(B) Responding to Each Item. For each item or
category, the response must either state that inspection and
related activities will be permitted as requested or state an
objection to the request, including the reasons.
(C) Objections. An objection to part of a request must
specify the part and permit inspection of the rest.
(D) Responding to the Request for Production of
Electronically Stored Information. The response may
state an objection to a requested form for producing
electronically stored information. If the responding party
objects to a requested form---or if no form was specified
in the request---the party must state the form or forms it
intends to use.
(E) Producing the Documents or Electronically Stored
Information. Unless otherwise stipulated or ordered by the
court, these procedures apply to producing documents or
electronically stored information:
(i)
A party must produce documents as they are
kept in the usual course of business or must
organize and label them to correspond to the
categories in the request.
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(ii) If a request does not specify a form for
producing electronically stored information, a party
must produce it in a form or forms in which it is
ordinarily maintained or in a reasonably usable
form or forms; and
(iii) A party need not produce the same
electronically stored information in more than one
form.
(b)
The Interrogatories.
Plaintiff served upon Defendant 47 interrogatories (#192-1) Rule 33(a)(1) of
the Federal Rules of Civil Procedure states, “a party may serve on any other party
no more than 25 written interrogatories, including all discrete subparts.” F.R.C.P.
33(a)(1). The Pretrial Order and Case Management Plan (#60) entered in this matter
provides that the parties were to propound no more than 20 single part
interrogatories. In this case, however, Defendant allowed the time for answering the
interrogatories expire, and after doing so, Defendant refused to answer
interrogatories 26 through 47. In refusing to answer, the Defendant provided this
answer to interrogatories 26 through 47.
ANSWER: Defendant, Fred Mr. Leonard, Jr., objects to this
interrogatory pursuant to Rule 33(a), F.R.C.P. upon grounds that it
exceeds the number of interrogatories which may be served upon a
party in the absence of a stipulation or leave of court.
Defendant did not respond nor raise any objection in a timely manner to the
Plaintiff’s discovery request. As such, Defendant’s right to assert any objection to
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the discovery request is now waived. In the absence of an extension of time or good
cause, the failure to object to interrogatories within the time fixed by Rule 33
constitutes a waiver of any objection. National Fire Ins. Co. of Hartford v. Jose
Trucking, Corp., 264 F.R.D. 233 (W.D.N.C. 2010). The interrogatories in this case
was served by mail on February 4, 2015. The time to respond expired on March 9,
2015. On April 6, 2015, Defendant filed a Motion for Extension of Time to Respond
to the Plaintiff’s Motion to Compel (#194) but did not request an extension of time
to answer the interrogatories or to respond to the request for production of
documents. By failing to provide the responses, Defendant’s objection to answering
all the interrogatories are waived.
Additionally, the Court has determined the Defendant’s responses to the
interrogatories may have been deficient, if not completely false.
It appears
Defendant answered interrogatories 7, 8, 22(a), and 22(a)-(h) in a fashion which
indicated that he has not had nor does he have any assets. Plaintiff has now produced
bank records of Defendant from Sun Trust Bank (#205-1) and Wells Fargo Bank
(#205-3) that indicate Defendant’s answers were false. This factor is weighed in
favor of granting the Motion to Compel. Plaintiff is entitled to truthful and complete
answers to the interrogatories from the Defendant. This Court will order that
Defendant be required to answer all interrogatories, including those for which he has
provided previous answers. Defendant is cautioned that an untruthful or incomplete
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answer will not be tolerated by the Court.
(c)
The Request for Production
Defendant did not respond to the request for production of documents by
March 9, 2015. When the Defendant finally responded on April 7, 2015, the
documents requested were not produced for request four through 13, 15 through 17,
19, 22 through 25, and 27 through 29, and the response of the Defendant to those
requests was exactly the same.
RESPONSE: To the extent that I have custody of such documents, they
will be produced for inspection and copying at the office of my attorney
located at 923 N. Washington Street, Tullahoma, Tennessee at such
date and time as plaintiff requests.
The Court considers this response to the request for production of documents
to be deficient. First of all, it appears that Defendant has not provided the documents
that were requested. Second, Rule 34 of the Rules of Civil Procedure do not allow
Defendant to respond in the manner in which he has responded. The Rule states:
A party must produce documents as they are kept in the usual
course of business or must organize and label them to
correspond to the categories in the request.
Rule 34(b)(2)(E)(i)
Requiring a party in a case pending in this Court to travel to the office of an
unnamed attorney in Tullahoma, Tennessee, who, to this Court’s knowledge has
never made an appearance in this case, to obtain documents, does not comply with
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the Federal Rules of Civil Procedure. It is the obligation of the Defendant to produce
the documents as provided by the Rule.
Defendant was required to produce the documents within 30 days after service
of the request to produce. The date production was to be made was on or before
Mach 9, 2015. It has now been in excess of four months and since that date, it
appears from Plaintiff’s Supplemental Memorandum (#205), the documents have
still not been delivered by the Defendant to the Plaintiff. The Defendant will be
required by this Court to produce the documents forthwith.
For the reasons set forth above, the Plaintiff’s Motion to Compel (#192) will
be allowed. The Defendant will be ordered to provide full, complete and truthful
answers to each and every interrogatory presented to him and to provide at the office
of Plaintiff’s counsel, all documents requested as a result of the request for
production of documents.
III.
Fees
Where a Motion to Compel is granted, Rule 37(a)(5)(A) of the Fed. R. Civ. P.
provides as follows:
(5) Payment of Expenses; Protective Orders.
(A) If the Motion Is Granted (or Disclosure or Discovery Is Provided
After Filing). If the motion is granted—or if the disclosure or requested
discovery is provided after the motion was filed---the court must, after
giving an opportunity to be heard, require the party or deponent whose
conduct necessitated the motion, the party or attorney advising that
conduct, or both to pay the movant’s reasonable expenses incurred in
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making the motion, including attorney’s fees. But the court must not
order this payment if:
(i)
the movant filed the motion before attempting in good faith to
obtain the disclosure or discovery without court action;
(ii) the opposing party’s nondisclosure, response, or objection was
substantially justified; or
(iii) other circumstances make an award of expenses unjust.
(C)
If the Motion is Granted in Part and Denied in Part. If the motion
is granted in part and denied in part, the court may issue any
protective order authorized under Rule 26(c) and may, after
giving an opportunity to be heard, apportion the reasonable
expenses for the motion.
Fed. R. Civ. P. Rule 37(a)(5)(A)&(C)
The undersigned has granted the Motion to Compel in all respects. As a result,
the rule requires the undersigned to provide the Plaintiff and the Defendant an
opportunity to be heard on the issue of fees and expenses. The Plaintiff is ordered
to file by August 25, 2015 affidavits concerning the number of hours reasonably
expended on the Motion to Compel, including the hourly rate of charge. In preparing
the affidavits, the Plaintiff should address all factors as enumerated in Johnson v.
Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974) as modified by
Hensley v. Echerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed2d 40 (1983). The
Plaintiff should also address in the affidavits the concerns of the Fourth Circuit Court
of Appeals as set forth in Robinson v. Equifax Information Services, LLC, 560 F.3d
235, 243-244 (4th Cir.2009) regarding additional affidavits necessary to establish the
prevailing market rates in the relevant community and reasonableness of the amount
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of time. The Court will consider the relevant community to be the United States
District Court for the Western District of North Carolina, Asheville Division. The
Defendant shall be allowed to object in writing to the affidavits on or before
September 8, 2015. The undersigned will hear from counsel for the parties at a
hearing which will be held in Courtroom #2 of the United States Courthouse in
Asheville, North Carolina on Tuesday, September 25, 2015 at 2:00 p.m.
ORDER
IT IS, THEREFORE, ORDERED:
(1)
That the Plaintiff’s Motion to Compel (#192) is ALLOWED. It is
ordered the Defendant is to provide full, complete, truthful and sworn answers to all
of the interrogatories served upon him (#192) and to further provide full and
complete responses and all documents requested in the request for production of
documents (#192) and deliver or have delivered the documents requested to the
office of Plaintiff’s counsel on or before August 28, 2015.
(2)
The parties will be heard concerning the Plaintiff’s Motion for Attorney
Fees on September 25, 2015 at 2:00 p.m. in Courtroom #2 of the United States
Courthouse in Asheville, North Carolina.
(3)
The Plaintiff is to file with the Court affidavits concerning Plaintiff’s
request for counsel fees and expenses as set forth in the body of this Order on or
before August 25, 2015. Defendant will be allowed to respond in writing to the
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affidavits on or before September 8, 2015.
Signed: August 5, 2015
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