Underdue v. Wells Fargo Bank, N.A.
Filing
63
ORDER denying 40 Motion for Reinstatement of Employment; denying Plaintiff's 47 Motion for EmploymentRecords; denying Plaintiff's 53 Motion to Compel; denying as moot Defendant's 54 Motion for Extens ion of Time to Respond to Plaintiff's Motion to Compel (Doc. No. 54) ; granting 62 Motion to Amend the Pretrial Order and Case Management Plan. Signed by District Judge Robert J. Conrad, Jr on 8/5/2020. (Pro se litigant served by US Mail.)(brl)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:16-cv-00653-RJC
FELICIA A. UNDERDUE,
Plaintiff,
v.
WELLS FARGO BANK, N.A.,
Defendant.
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ORDER
THIS MATTER comes before the Court on Plaintiff’s motion for
reinstatement of employment, (Doc. No. 40), Plaintiff’s motion for employment
records, (Doc. No. 47), Plaintiff’s motion to compel, (Doc. No. 53), Defendant’s
motion for extension of time to respond to Plaintiff’s motion to compel, (Doc. No.
54), and the parties’ joint motion to amend the Pretrial Order and Case
Management Plan, (Doc. No. 62).
I.
BACKGROUND
Plaintiff Felicia A. Underdue (“Plaintiff”) initiated this action against
Defendant Wells Fargo Bank, N.A. (“Defendant”) with the filing of a Complaint
on September 7, 2016. (Doc. No. 1.)
On June 14, 2017, Plaintiff filed a motion to amend her complaint. (Doc. No.
25.) On July 13, 2017, the Court issued an order directing Plaintiff to file a
proposed amended complaint in connection with her motion to amend on or before
July 28, 2017. (Doc. No. 26.) On July 27, 2017, Plaintiff timely filed a proposed
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amended complaint. (Doc. No. 27.)
On September 27, 2019, the Court issued an order granting in part and
denying in part Plaintiff’s motion to amend. (Doc. No. 37.) The Court granted
Plaintiff’s motion as to Counts I and II of the proposed amended complaint for failure
to accommodate and wrongful discharge under the Americans with Disabilities Act,
and the Court denied Plaintiff’s motion as to Counts III, IV, and V. (Doc. No. 37, at
7.)
On October 25, 2019, Plaintiff filed a motion for reinstatement of employment.
(Doc. No. 40.) On November 22, 2019, Plaintiff filed a motion for employment records.
(Doc. No. 47.) On March 16, 2020, Plaintiff filed a motion to compel. (Doc. No. 53.)
On June 26, 2020, the parties filed a joint motion to amend the Pretrial Order and
Case Management Plan. (Doc. No. 62.) The motions are ripe for resolution.
II.
DISCUSSION
A.
Plaintiff’s Motion for Reinstatement of Employment
Plaintiff seeks immediate reinstatement of her employment with Defendant.
Plaintiff’s motion thus requests a preliminary injunction.
A party seeking a preliminary injunction must demonstrate all of the following:
(1) she is likely to succeed on the merits; (2) she is likely to suffer irreparable harm
in the absence of preliminary relief; (3) the balance of equities tips in her favor; and
(4) the injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555
U.S. 7, 20 (2008). “Preliminary injunctions are extraordinary remedies involving the
exercise of very far-reaching power to be granted only sparingly and in limited
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circumstances.” Sun Microsystems, Inc. v. Microsoft Corp., 333 F.3d 517, 524 (4th
Cir. 2003).
Plaintiff has failed to establish that she is entitled to a preliminary injunction.
Plaintiff has not come forward with any evidence to show that she is likely to succeed
on her claims. In addition, Plaintiff has failed to show that she will suffer irreparable
harm without immediate reinstatement of her employment. Plaintiff’s employment
with Defendant ended in October 2014, and Plaintiff did not seek immediate
reinstatement until October 2019—five years after her employment was terminated.
The Fourth Circuit has stated that a delay in seeking injunctive relief may indicate
an absence of the kind of irreparable harm required to support a preliminary
injunction. Quince Orchard Valley Citizens Ass’n v. Hodel, 872 F.2d 75, 80 (4th Cir.
1989). Here, Plaintiff’s five-year delay in seeking a preliminary injunction indicates
an absence of irreparable harm required to warrant a preliminary injunction.
Therefore, the Court denies Plaintiff’s motion for reinstatement of employment. (Doc.
No. 40.)
B.
Plaintiff’s Motion for Employment Records
Plaintiff seeks her employment records from Defendant.
(Doc. No. 47.)
Accordingly, Plaintiff’s motion is a request for discovery. Local Rule 26.2 provides
that a party shall not file any initial discovery requests unless “(1) directed to do so
by the Court; (2) the materials are needed for an in-Court proceeding; or (3) the
materials are filed to support or oppose a motion or petition.” Plaintiff’s discovery
request does not comply with Local Rule 26.2 because the Court had not directed any
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discovery requests to be filed, the discovery request was not needed for an in-Court
proceeding, and the discovery request was not filed to support or oppose a motion or
petition. Nevertheless, Defendant stated in its opposition that it would serve its
objections and responses to Plaintiff’s discovery requests.
Therefore, the Court denies Plaintiff’s motion for employment records. (Doc.
No. 47.) The Court further instructs Plaintiff that she is not to file any future
discovery requests with the Court except as provided in Local Rule 26.2.
C.
Plaintiff’s Motion to Compel
Plaintiff seeks an order compelling Defendant “to provide the Plaintiff with
any and/or all details requested by the Plaintiff, including the evidence and/or records
regarding the incidences involving the named witnesses.” (Doc. No. 53, at 2.) Under
Rule 37(a)(1) of the Federal Rules of Civil Procedure, a motion to compel “must
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). Plaintiff’s motion to compel
does not include a certification, and Plaintiff failed to confer or attempt to confer with
Defendant regarding the alleged outstanding discovery prior to filing the motion.
Therefore, the Court denies Plaintiff’s motion to compel. See Miller v. Wal-Mart, No.
1:13cv46, 2014 WL 454687, at *1 (W.D.N.C. Sept. 12, 2014) (denying pro se plaintiff’s
motion to compel where plaintiff failed to confer or attempt to confer with defendant
prior to filing the motion).
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D.
Joint Motion to Amend Pretrial Order and Case Management Plan
The parties move to extend the deadlines set forth in the Pretrial Order and
Case Management Plan by approximately three months. (Doc. No. 62.) The parties
state that due to the global COVID-19 pandemic, the parties have been unable to
conduct necessary depositions and conduct other discovery. For good cause shown,
the Court grants the motion.
(Doc. No. 62.)
The Pretrial Order and Case
Management Plan is amended as follows:
DEADLINES
Discovery Completion:
Expert Reports:
Mediation:
Dispositive Motions:
Oral Argument on MSJs:
Jury Trial:
IV.
November 12, 2020
July 28, 2020 (plaintiff)
September 28, 2020 (defendant)
November 25, 2020
December 28, 2020
On or before February 8, 2021
May 3, 2021
CONCLUSION
IT IS THEREFORE ORDERED that:
1.
Plaintiff’s motion for reinstatement of employment, (Doc. No. 40), is
DENIED;
2.
Plaintiff’s motion for employment records, (Doc. No. 47), is DENIED;
3.
Plaintiff’s motion to compel, (Doc. No. 53), is DENIED;
4.
Defendant’s motion for extension of time to respond to Plaintiff’s
motion to compel, (Doc. No. 54), is DENIED as moot; and
5.
The parties’ motion to amend the Pretrial Order and Case
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Management Plan, (Doc. No. 62), is GRANTED.
Signed: August 5, 2020
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