Montgomery v. The Anson County Board of Education
ORDER denying 40 Motion for Extension of Time re: Discovery ; denying 43 Motion to Amend/Correct; granting 29 Motion to Compel; denying 31 Motion to Dismiss for Lack of Prosecution. Signed by Senior Judge Graham Mullen on 11/29/17. (mga)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
THE ANSON COUNTY BOARD OF
This matter is before the Court upon Defendant’s Motion to Compel (Doc. No. 29) and
Motion to Dismiss for Failure to Prosecute (Doc. No. 31), as well as Plaintiff’s Motion to Extend
Discovery (Doc. No. 40) and Motion to File Second Amended Complaint (Doc. No. 43). These
motions have been fully briefed and are ripe for disposition.
Plaintiff, a former teacher employed by the Defendant, originally filed this action alleging
that she was retaliated against for exercising her First Amendment rights in violation of 42
U.S.C. § 1983, and that Defendant failed to promote her based upon her age and race. In
response to Defendant’s Motion to Dismiss, the Court dismissed Plaintiff’s §1983 claim but
allowed her to amend her complaint to address its deficiencies with regard to her failure to
promote claims. Plaintiff filed her Amended Complaint on November 3, 2016 and the Court
denied a second motion to dismiss.
Defendant served basic discovery requests on Plaintiff on March 9, 2017 and Plaintiff
responded to such requests on April 24. On May 4, in the course of Plaintiff’s deposition, the
Defendant discovered that Plaintiff had not produced, or even completed searching for,
responsive documents. On June 26, 2017, Plaintiff’s counsel moved to withdraw and stay the
action to allow the Plaintiff to secure new counsel. The Court allowed the motion to withdraw
and stayed all proceedings until July 28, 2017 to allow Plaintiff a reasonable opportunity to find
new counsel. The Order also extended the mediation and discovery deadlines to October 31,
2017. In the Order, the Court cautioned Plaintiff that by July 28, she “must be prepared to
proceed, either with new counsel or pro se, on the schedule” the court set out. (See Doc. No. 27).
On August 1, 2017, new counsel appeared on behalf of Plaintiff.
Except for the brief period during which this matter was stayed, Defendant has repeatedly
sought production of the missing documents as well as a signed Medical Release form, and
Plaintiff has either ignored such requests or promised delivery of the documents and signed
Release on a certain date and then allowed the date to pass with no explanation. The long history
of these efforts is laid out in the Affidavit of Robert J. King III, submitted with Defendant’s
motion. (Doc. No. 36). Plaintiff makes no explanation for her failure to produce the missing
documents. It does appear that Plaintiff has now submitted the signed Release and appeared for
another deposition prior to the discovery cutoff. The Court will grant Defendant’s Motion to
Compel to the extent Plaintiff has any remaining documents that have not been turned over to the
Plaintiff seeks to once again amend her Complaint to add another claim for retaliation
based upon a second EEOC charge, filed after Plaintiff was terminated from her job. Defendant
has vigorously objected to this motion on the grounds of futility, undue delay, and undue
prejudice. Before the Court could rule on this motion however, Plaintiff filed a new action based
upon her retaliation claim. Accordingly, her motion to amend is now moot.
Plaintiff also seeks to extend the discovery deadline to December 31, 2017, primarily to
initiate new discovery based upon her proposed retaliation claim. The Court denies such request.
It appears to the Court that the Plaintiff has made little effort to prosecute her claims or comply
with her discovery obligations. Plaintiff has had ample time to conduct any discovery she may
need on her present claims and the Court has already extended the discovery deadline once.
Moreover, as she has filed a new lawsuit asserting her retaliation claim, there is no need for
additional discovery as to that claim in this lawsuit.
IT IS THEREFORE ORDERED that Defendant’s Motion to Compel is GRANTED and
if she has not already done so, Plaintiff is hereby directed to turn over any outstanding
responsive documents to the Defendant within 7 days. Defendant may submit an Affidavit as to
its fees and expenses in connection with filing the Motion to Compel as well as the reconvening
and completion of Plaintiff’s deposition;
IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss for Failure to
prosecute is hereby DENIED; and
IT IS FURTHER ORDERED that Plaintiff’s Motion to Amend and Motion to Extend
Discovery are hereby DENIED.
Signed: November 29, 2017
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