Miller v. Wal-Mart

Filing 58

ORDER denying 50 Motion to Compel. Signed by Magistrate Judge Dennis Howell on 09/12/14. (Pro se litigant served by US Mail.)(emw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:13cv46
MARK KEVIN M ILLER

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Plaintiff,
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v.
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WAL-MART,
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Defendant.
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___________________________________ )

ORDER

Pending before the Court is Plaintiff’s Motion to Compel [# 50]. Plaintiff,
who is proceeding pro se, moves to compel Defendant to produce additional
documents in response to his First Request for Production of Documents.
Defendant contends that it has produced all responsive documents in its
possession. Upon a review of the record and the relevant legal authority, the Court
DENIES the Motion to Compel [# 50].
I.

Legal Standard

Generally speaking, parties are entitled to discovery regarding any nonprivileged 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

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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); Billips v.
Benco Steel, Inc., No. 5:10cv95, 2011 WL 4005933 (W.D.N.C. Sept. 8, 2011)
(Keesler, Mag. J.).
II.

Analysis

As a threshold matter, Rule 37 of the Federal Rules of Civil Procedure
requires that a party filing a motion to compel “include a certification that the
movant has in good faith conferred or attempted to confer with the person or party
failing to make disclosure or discovery in an effort to obtain it without court
action.” Fed. R. Civ. P. 37(a)(1). This rule is separate and distinct from the
requirement of consultation contained in the Court’s Local Rules. See LCvR
7.1(b). Here, Plaintiff failed to file a certification with his motion and failed to

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consult or attempt to confer with Defendant regarding the alleged outstanding
discovery prior to filing this motion. Accordingly, the Court DENIES the motion
[# 50].
Moreover, upon the Court’s review of the pleadings in this case, the exhibits
in the record, and the relevant legal authority, it appears that Defendant has
complied with its discovery obligations and produced the relevant documents in
response to Plaintiff’s discovery requests. Finally, as Defendant correctly points
out in response to the motion, Plaintiff’s request No. 15 is incomprehensible and
Defendant need not respond to the request as drafted.
III.

Conclusion

The Court DENIES the motion [# 50].

Signed: September 12, 2014

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