The Biltmore Company v. NU U, Inc. et al

Filing 74

ORDER denying Pltf's 67 Motion to Compel. Signed by District Judge Martin Reidinger on 1/30/17. (ejb)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:15-cv-00288-MR

THE BILTMORE COMPANY,
a Delaware corporation,

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)
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Plaintiff,
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vs.
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NU U, INC.,
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Defendant.
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________________________________ )

ORDER

THIS MATTER is before the Court on the Plaintiff’s Motion to Compel
[Doc. 67].
The Plaintiff moves the Court to compel the Defendant to produce an
un-redacted copy of a “Comprehensive Trademark Search Report” dated
June 16, 2015 from attorney Josh Gerben and any other communications on
the topic of the Defendant’s decision to use the BILTMORE BRIDE mark.
For grounds, the Plaintiff states that the requested documents are directly
responsive to the Plaintiff’s Request for Production of Documents and that
the Defendant has waived the attorney-client privilege with respect to such
documents. [Doc. 67].

Rule 37 of the Federal Rules of Civil Procedure does not specify a
specific time limit for the filing of a motion to compel. See Fed. R. Civ. P. 37;
PCS Phosphate Co. v. Norfolk Southern Corp., 238 F.R.D. 555, 558
(E.D.N.C. 2006).

Absent a specific order from the Court in the case

management order, a party must generally move to compel a party to comply
with a discovery request or to compel a deposition prior to the close of
discovery, otherwise the motion is untimely. See Days Inn Worldwide, Inc.
v. Sonia Invs., 237 F.R.D. 395, 397-98 (N.D. Tex. 2006) (collecting cases);
Synovus Bank v. Karp, Civil Case No. 1:10-cv-00172-MR, 2013 WL
4052625, at *1 (W.D.N.C. Aug. 12, 2013) (Reidinger, J.); U.S. v. $28,720.00
in United States Currency, No. 1:13-cv-00106-MR-DLH, 2014 WL 1570925,
at *1 (W.D.N.C. Apr. 17, 2014) (Howell, Mag. J.); Wellness Group, LLC v.
King Bio, Inc., No. 1:12-cv-00281-MR-DLH, 2013 WL 5937722, at *1
(W.D.N.C. Nov. 4, 2013) (Howell, Mag. J.).
Discovery in this matter, with the exception of the taking of certain
depositions, closed on December 1, 2016. [See Docs. 44, 51]. Summary
Judgment motions were due on January 10, 2017. [Doc. 54]. The Plaintiff
filed its Motion to Compel on January 27, 2017, well after the close of
discovery and the filing of dispositive motions. The Case Management Plan

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states that “[m]otions to compel must be filed within the discovery period or
they may be deemed waived.” [Doc. 20 at 6]. One of the reasons for this
rule is that filing a motion to compel after the closing of the discovery period
does not provide this Court with sufficient time to rule on the motion prior to
addressing dispositive motions. Because the Plaintiff failed to file its Motion
to Compel within the discovery period, the motion is untimely. Accordingly,
the Plaintiff’s Motion to Compel is denied.
IT IS, THEREFORE, ORDERED that the Plaintiff’s Motion to Compel
[Doc. 67] is DENIED.
IT IS SO ORDERED.

Signed: January 30, 2017

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