USA Trouser, S.A. de C.V. v. International Legwear Group, Inc. et al

Filing 51

ORDER Overruling re 42 Plaintiff's Objections to Magistrate Judge Howell's Order and Affirming 38 Magistrate Judge's Order. Signed by District Judge Martin Reidinger on 08/27/2012. (Pro se litigant served by US Mail.)(thh)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:11cv244

USA TROUSER, S.A. de C.V.,

)
)
Plaintiff,
)
)
vs.
)
)
INTERNATIONAL LEGWEAR
)
GROUP, INC.; WILLIAM SHEELY;
)
JOHN SANCHEZ; and SCOTT
)
ANREWS,
)
)
Defendants.
)
_______________________________ )

ORDER

THIS MATTER is before the Court on the Plaintiff's Objections to
Magistrate Judge Howell’s Order Denying Plaintiff’s Motion for Extension of
Time and Appeal to District Judge [Doc. 42].
I.

PROCEDURAL BACKGROUND
On September 6, 2011, the Plaintiff USA Trouser, S.A. de C.V.,

commenced this action in the Burke County General Court of Justice,
Superior Court Division, against International Legwear Group, Inc. (“ILG”) and
three former officers of ILG, William Sheely (“Sheely”), John Sanchez
(“Sanchez”), and Scott Andrews (“Andrews”). [Complaint, Doc. 1-1]. In the
Complaint, the Plaintiff asserts various causes of action against the

Defendants,

including

claims

for

breach

of

contract,

misrepresentation, and unfair and deceptive trade practices.

fraudulent
[Id.].

The

Defendants removed the action to this Court on September 21, 2011. [Doc.
1].
Shortly after removal, on October 14, 2011, the Plaintiff filed a motion
seeking immediate discovery from the Defendants. For grounds, the Plaintiff
argued that immediate discovery was necessary to preserve assets as well
as material evidence. [Doc. 5]. On November 9, 2011, the Honorable Dennis
L. Howell, United States Magistrate Judge, granted the Plaintiff’s motion for
early discovery and directed the Defendants to respond to the Plaintiff’s
requests for production of documents within forty-five (45) days. [Doc. 10].
On December 29, 2011, Judge Howell entered a Pretrial Order and
Case Management Plan setting deadlines of August 1, 2012 for the
completion of discovery and September 1, 2012 for the filing of dispositive
motions. [Doc. 18]. The case was scheduled for trial during the first civil term
occurring on or after January 14, 2013. [Id.].
In the meantime, counsel for the Defendants moved to withdraw from
representation of ILG. [Doc. 17]. The Court granted the motion to withdraw
on January 11, 2012, and directed ILG to retain new counsel within ten (10)

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days. [Doc. 20]. When ILG failed to comply with the Court’s Order, the Court
ordered ILG’s Answer to be stricken from the record, and for default to be
entered against ILG. [Doc. 23]. The Clerk entered default against ILG on
February 2, 2012. [Doc. 24].
On May 4, 2012, the Plaintiff filed a motion to compel ILG to comply fully
with the Plaintiff’s requests for the production of documents, which were the
subject of the Order permitting early discovery. [Doc. 31]. On June 11, 2011,
Judge Howell denied the Plaintiff’s motion without prejudice for failing to
comply with the briefing requirements set forth in Local Rule 7.1. [Doc. 32].
More than thirty (30) days later, on July 13, 2012, the Plaintiff renewed
its motion to compel against ILG. [Doc. 34]. At the same time, the Plaintiff
filed a motion seeking an extension of the discovery deadline, from August 1,
2012 to February 1, 2013. [Doc. 33].
On July 19, 2012, Judge Howell entered an Order denying the Plaintiff’s
Motion for Extension of Time to Complete Discovery. [Doc. 38]. The Plaintiff
objects to that Order and has appealed the Magistrate Judge’s ruling to this
Court. [Doc. 42].

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II.

STANDARD OF REVIEW
Pursuant to Rule 72(a) of the Federal Rules of Civil Procedure, a party

may submit objections to a Magistrate Judge’s ruling on a non-dispositive
pretrial motion and seek that the Order be set aside in whole or in part if its
“clearly erroneous or contrary to the law.” 28 U.S.C. § 636(b)(1)(A); Fed. R.
Civ. P. 72(a). Under this standard, “[a] finding is ‘clearly erroneous’ when
although there is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been
committed.” United States v. U.S. Nat’l Gypsum Co., 333 U.S. 364, 395, 68
S.Ct. 525, 92 L.Ed. 746 (1948); Walton v. Johnson, 440 F.3d 160, 173-74 (4th
Cir. 2006).
III.

DISCUSSION
The Plaintiff argues that it has been the Defendants who have been

dilatory in responding to discovery in this case and that the Magistrate Judge’s
Order rewards their dilatory tactics. The discovery responses that were the
subject of the Plaintiff’s motion, however, were served on December 23, 2011.
Counsel waited until May 5, 2012 to file a motion to compel. The Plaintiff’s
delay of some five months in pursuing this discovery is not adequately
explained by the record. Apparent reliance on the Defendants’ promised

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cooperation [see Doc. 42] is not sufficient to justify Plaintiff’s inaction during
this time.
Because it failed to comply with the Local Rules, the Magistrate Judge
properly denied the motion to compel without prejudice.

The Plaintiff’s

renewed motion, however, was not filed until over a month later. Counsel
argues that this delay was caused by counsel’s need to prepare for a state
court trial, which ended on June 13, 2012 and subsequently required postjudgment motions, and to prepare an appellate brief in another federal matter.
[See Doc. 42 at 7]. These other professional obligations, however, do not
justify the excessive delay that counsel incurred in renewing the motion to
compel, especially where the refiling required at most some simple reformatting of the document.
While the Plaintiff repeatedly complains that the delay in discovery has
been caused by ILG’s failure to cooperate in discovery, the Court notes that
default was entered against ILG in January 2012. The Plaintiff has not shown
that any of the individual Defendants who remain in this action have failed to
cooperate in discovery or have otherwise impeded the progress of this case.
If they have, the Plaintiff certainly has not moved in a timely manner to compel
their compliance.

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The extension requested by Plaintiff would have impacted not only the
filing of dispositive motions but the trial date as well.1 The Court agrees with
the Magistrate Judge that the Plaintiff has not shown good cause for such a
dramatic alteration of the deadlines in this case.
Having carefully reviewed the record, the submission of the parties, and
the Magistrate Judge’s Order, the Court determines that the Magistrate
Judge’s factual findings are not clearly erroneous and that his legal
conclusions are not contrary to law. Specifically, the Magistrate Judge did not
clearly err in finding that the Plaintiff has had ample time to conduct discovery
in this matter and that the problems encountered by the Plaintiff in completing
discovery are largely a result of counsel’s delay in filing appropriate motions
to compel.

Accordingly, the Plaintiff’s Objections are overruled, and the

Magistrate Judge’s Order denying an extension of time to complete discovery
is affirmed.
IV.

CONCLUSION
IT IS, THEREFORE, ORDERED that the Plaintiff's Objections to

Magistrate Judge Howell’s Order [Doc. 42] are OVERRULED, and the

1

In its motion [Doc. 33], the Plaintiff sought a five-month extension of the
discovery period. It is not lost on the Court that this five-month period matches the five
months the Plaintiff delayed in pursuing the discovery at issue.
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Magistrate Judge’s Order [Doc. 38] denying the Plaintiff’s request for an
extension of the discovery deadline is AFFIRMED.
IT IS SO ORDERED.
Signed: August 27, 2012

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