Johnson v. Wal-Mart Stores East, L.P.

Filing 108

ORDER denying as moot 106 Consent MOTION for Leave to File; Set/Reset Deadlines as to 107 MOTION to Deny Summary Judgment Under Rule 56(d).(Responses due by 2/15/2013); 93 Motion for Summary Judgment, and 107 Motion to Deny Summary Judgment are CALENDARED for hearing on February 20, 2013, at a time to be noticed by the Clerk of Court. Signed by District Judge Max O. Cogburn, Jr on 1/28/2013. (eef)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:10cv659
SYLVESTER C. JOHNSON,

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Plaintiff,
Vs.
WAL-MART STORES EAST, L.P.,
Defendants.
_______________________________

ORDER

THIS MATTER is before the court on plaintiff’s “Motion for Leave” to file his
response to defendant’s Motion for Summary Judgment one day out of time and “Motion
to Deny Summary Judgment Under Rule 56(d).”
As to the request for additional time, plaintiff states that the response was due on
Monday, January 21, 2013, a National holiday, which prevented him from filing the
response on that day. The request is moot inasmuch as where a deadline lands on a day
the court is not open, to wit, a federal holiday, a party has until the next day to file the
pleading. See Rule 6(a)(1)(C). Thus, plaintiff’s response was timely when filed on
January 22, 2013.
The court has also conducted a preliminary review of plaintiff’s “Motion to Deny
Summary Judgment Under Rule 56(d).” The thrust of such Rule 56(d) motion is that
defendant has failed to provide plaintiff with sufficient discovery responses, which has
resulted in plaintiff being able to adequately oppose the summary judgment motion. Rule
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56(d) is not, however, a substitute for a timely and well-reasoned Motion to Compel
discovery.

Indeed, Judge Keesler recently addressed plaintiff’s Motion to Compel,

holding as follows:
The undersigned notes that “Plaintiff’s Motion To Compel…” states
that all of Defendant’s responses have been “wholly incomplete and
deficient;” however, the “Memorandum In Support Of Plaintiff’s Motion
To Compel…” seems to only address Defendant’s response to Document
Request No. 1 in “Plaintiff’s First Request For Production Of Documents”
(Document No. 76-1), and certain other responses to “Plaintiff’s Second Set
Of Interrogatories” and “Plaintiff’s Second Request For Production Of
Documents” (Document No. 76-2). (Document No. 77). Moreover,
Plaintiff’s briefing on the instant motion provides that Defendant’s
supplementation of its responses has been ongoing, including: (1)
“approximately 4,300 new documents in response to Plaintiff’s deficiency
letter . . . undoubtedly relevant to the case” and (2) “approximately 6,000
pages . . . dated November 13th.” (Document No. 77, p.3; Document No.
86, p.9). “These documents were among the exact types of documents that
the Plaintiff has repeatedly sought. . . . Only after Plaintiff repeatedly stated
his objections on the record at depositions and after he filed his motion to
compel, did the Defendant finally start producing more fully.” (Document
No. 86, p.9) (emphasis in original).
Based on the foregoing representations by Plaintiff, it is apparent
that a significant amount of information has been produced by Defendant
since Plaintiff’s motion was filed. Id. Moreover, according to Plaintiff, such
production included “the exact types of documents” Plaintiff has been
seeking. Id. Plaintiff’s briefs do not, however, address with adequate
specificity whether this supplemental production by Defendant satisfied any
or all of the production Plaintiff seeks in the pending motion to compel.
Presumably, if Defendant has provided an additional 6,000 pages of the
“exact types of documents” Plaintiff sought, some, or perhaps even all, of
Plaintiff’s motion to compel is moot.
Under the circumstances, the undersigned finds that the briefing on
the instant motion to compel is inadequate to reach a decision that
appropriately reflects the current status of the case. As such, “Plaintiff’s
Motion To Compel…” will be denied without prejudice to re-file.
If Plaintiff files a renewed motion to compel, it shall include: (1)
indication that the parties have conferred specifically regarding the new
motion and attempted to resolve areas of disagreement regarding the issues
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and/or items in that motion; (2) a specific, item-by-item identification of
those discovery requests for which Plaintiff alleges it lacks full responses,
how each request is relevant to the remaining claims in this lawsuit, and
how Defendant’s response(s) to those requests, to date, are deficient; and
(3) a concise discussion of the facts and authority that support the motion.
If a new motion is filed, it will be briefed on an abbreviated schedule,
neither the motion or response shall exceed a total of twenty (20) pages,
and no reply should be filed without leave of the Court. Plaintiff’s failure to
abide by these terms may result in any renewed motion being summarily
denied.
Order (#98) at 4-5. Judge Keesler entered such decision January 17, 2013, and rather than
file the renewed Motion to Compel and supporting documentation anticipated by such
Order, plaintiff has filed the instant “Rule 56(d) Motion,” which does not provide the
specifics Judge Keesler identified as necessary for decision.
Even though such Order has not been followed, the court will hear plaintiff on
such Rule 56(d) motion at the time of the summary judgment hearing; however, the
information which was necessary for decision by Judge Keesler is no less necessary for
decision by this court, and counsel for plaintiff will be required to file a supplemental
brief no later than February 8, 2013, providing the following:
(1)
indication that the parties have conferred specifically regarding the
new motion and attempted to resolve areas of disagreement regarding the
issues and/or items in that motion;
(2)
a specific, item-by-item identification of those discovery requests for
which Plaintiff alleges it lacks full responses, how each request is relevant
to the remaining claims in this lawsuit, and how Defendant’s response(s) to
those requests, to date, are deficient argue the merits of summary judgment
motion, and
(3)
a concise discussion of the facts and authority that support the
motion.
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If such is accomplished by such date, all parties should be prepared to argue the Rule
56(d) motion at the February 20, 2013, Summary Judgment hearing. If the court finds the
Rule 56(d) meritorious, the court would stay further hearing of the Motion for Summary
Judgment to allow for additional discovery; however, if the motion lacks merit (or if
plaintiff fails to comply with the February 8 requirements), all counsel should be
prepared to argue at that time why defendant’s Motion for Summary Judgment should not
be granted.

ORDER
IT IS, THEREFORE, ORDERED that
(1) the Motion for Leave (#106) to file his response to defendant’s Motion for
Summary Judgment one day out of time is DENIED as moot;
(2) plaintiff’s further briefing of the Motion to Deny Summary Judgment (#107) as
outlined above shall be filed by February 8, 2013;
(3) defendant shall have until February 15, 2013, to respond to the Motion to Deny
Summary Judgment (#107) and the supplemental briefing by plaintiff, and there will be
no reply; and
(4) defendant’s Motion for Summary Judgment (#93) and the Motion to Deny
Summary Judgment are CALENDARED for hearing on February 20, 2013, at a time to
be noticed by the Clerk of Court.

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Signed: January 28, 2013

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