McAfee v. Howard Baer, Inc. et al

Filing 33

ORDER GRANTING in part and DENYING in part 23 Plaintiff's MOTION for Sanctions. (See Order for details). The Court EXTENDS the discovery deadlines in this case until 11/15/2016, and the summary judgment deadline until 12/15/2016. Signed by Magistrate Judge Dennis Howell on 10/18/2016. (khm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:15cv182
MERCEDES KAMARIA POWELL
MCAFEE,

)
)
)
Plaintiff,
)
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v.
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HOWARD BAER, INC. and
)
KEITH LOVELL CAMPBELL,
)
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Defendants.
)
___________________________________ )

ORDER

Pending before the Court is the Motion for Sanctions [# 23]. Plaintiff moves
to Court to sanction Defendants for the alleged violation of this Court’s prior
discovery Order. Upon a review of the record, the parties’ briefs, the relevant legal
authority, and after the benefit of hearing oral argument on the issues, the Court
GRANTS in part and DENIES in part the Motion [# 23].
I.

Background

Plaintiff brought this action in state court on July 20, 2015. On August 12,
2015, Plaintiff served her First Set of Interrogatories and Request for Production of
Documents on Defendant Howard Baer, Inc. (“Defendant Baer”). Defendant Baer
then removed the case to this Court. On September 18, 2015, this Court entered its

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Pretrial Order. The Court directed the parties to exchange Rule 26 disclosures by
October 8, 2015. (Pretrial Order, Sept. 18, 2015, ECF No. 6.) The Court
instructed the parties that discovery closes May 1, 2016, and that Plaintiff’s expert
report was due by December 1, 2015.
On October 30, 2015, Plaintiff again served her First Set of Interrogatories
and Request for Production of Documents on Defendant Baer. The second
discovery request contained the case heading for this Court rather than the state
court from which Defendant removed this action. Defendant Baer, however, failed
to respond to Plaintiff’s discovery request. As a result, Plaintiff filed her Motion to
Compel on January 6, 2016, seeking to compel Defendant Baer to respond to
Plaintiff’s discovery request. In response to the Motion to Compel, Defendant
Baer produced a number of documents and responded to Plaintiff’s First Set of
Interrogatories on approximately January 14, 2016.
The Court then entered an Order granting Plaintiff’s Motion to Compel and
awarding Plaintiff her attorney fees in filing the Motion to Compel. (Order
Granting Mot. Compel, Jan. 28, 2016, ECF No. 15.) The Court’s Order stated:
Upon a review of the record and the relevant legal authority, the Court
finds that the imposition of sanctions is warranted in this case as a result
of Defendant Howard Baer’s failure to respond to Plaintiff’s discovery
request until after Plaintiff filed the Motion to Compel. The Court
GRANTS in part the Motion to Compel [# 8]. The Court DIRECTS
Defendant Howard Baer, to the extent it has not already done so, to
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respond fully to Plaintiff’s First Set of Interrogatories and Request for
Production of Documents within ten (10) days of the entry of this Order.
The Court finds that Defendant has also waived any objections to the
Plaintiff’s discovery request other than objections asserting any
applicable privilege.
(Id. at 4.)
Subsequently, Plaintiff filed a Motion for Sanctions. In her motion, Plaintiff
contends that Defendants have failed to comply with the Court’s prior Order and
have failed to produce all the documents responsive to Plaintiff’s prior discovery
requests. Plaintiff now requests that the Court sanction Defendants by striking
Defendants’ Answers or affirmative defenses and compelling Defendants to
provide full and complete answers. On September 28, 2016, the Court held a
hearing on the motion. Having considered the parties’ briefs and the argument of
counsel at the hearing, the motion is now before the Court for a ruling.
II.

Analysis
As a threshold matter, the Court notes that Defendant Baer acknowledges

that it inadvertently failed to produce the back side of an accident report form that
Defendant Campbell filled out and failed to include the information related to a
fourth accident that occurred in Memphis. The Court finds that both cases were
the result of unintentional oversight on the part of Defendant Baer and were not the
result of any willful failure to comply with the Court’s prior Order or a willful

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attempt to mislead Plaintiff. As a result, no sanctions are warranted against
Defendants as a result of the failure to provide these documents and information.
In fact, the only area where the Court finds that Defendant Baer failed to
comply with the Court’s Order is in response to Plaintiff’s request for production
that sought the production of “all employment documents” and the driver
qualification file of the driver of the vehicle involved in this dispute. Defendant
Baer contends that it did not produce the driver’s personnel file because it does not
fall within the purvey of the definition of “employment documents.” Defendant
Baer interpreted employment documents to be limited to the documents related to
the initial hiring of Defendant Campbell, not his entire personnel file. The Court
finds that a common sense and ordinary interpretation of the term “employment
documents” would encompass the entire personnel file, not just the documents in
the personnel file that are related to the initial hiring of Defendant Campbell.
Thus, the Court finds that Defendant Baer should have produced the entire
personnel file for Defendant Campbell. The Court DIRECTS Defendant Baer to
produce, the entire personnel file for Defendant Campbell within ten (10) days of
the entry of this Order.
Despite finding that Defendant Baer should have produced the entire
personnel file for Defendant Campbell, the Court finds that no sanctions are

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warranted in this case. The Court inquired at the hearing whether Plaintiff wanted
the Court to direct Defendants to make either Defendant Campbell or Micki Davis
available for re-deposition in light of the additional information disclosed to
Plaintiff. Counsel for Plaintiff, however, stated that he did not want to re-depose
either individual. Instead, Plaintiff has requested sanctions, such as striking the
Answer, which are completely out of line with any failure on the part of Defendant
Baer to provide the relevant information. Moreover, such sanctions would not
withstand appellate review. The Court finds that no sanctions are justified in this
case.
Finally, the Court finds that a brief extension of the discovery period is
warranted in this case. The Court EXTENDS the discovery deadline in this case
until November 15, 2016, and the summary judgment deadline until December 15,
2016.
III.

Conclusion

The Court GRANTS in part and DENIES in part the Motion for Sanctions
[# 23]. The Court GRANTS the motion to the extent it sought to compel the
production of the personnel file for Defendant Campbell. The Court DENIES the
motion to the extent it seeks additional discovery or sanctions imposed against
either Defendant. Each side shall bear its own costs associated with the Motion for

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Sanctions. The Court EXTENDS the discovery deadlines in this case until
November 15, 2016, and the summary judgment deadline until December 15,
2016. Discovery shall remain open for both Plaintiff and Defendants.

Signed: October 18, 2016

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