Performance Sales & Marketing, LLC, Iredell County et al

Filing 213

ORDER denying 176 & 204 Motions for Extension of Time To Complete Discovery; denying 174 & 206 Motions for Sanctions; denying 168 & 207 Motions to Compel the Testimony of 30(b)(6) Witness. Discovery in this case is closed. The Court directs Plaintiffs to respond to Defendant's Motion for Summary Judgment 180 within 30 days of the entry of this Order. Signed by Magistrate Judge Dennis Howell on 10/22/12. (smj)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:07cv140
PERFORMANCE SALES &
MARKETING, LLC, a North Carolina
Limited Liability Company; PSM
GROUP, INC., a North Carolina
Corporation; an GREG SEREY, an
individual,
Plaintiffs,
v.
LOWE’S COMPANIES, INC.,
Defendant.
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ORDER

Previously, the Court granted Plaintiffs’ Motion to Compel the depositions
of three executives employed by Defendant. (Order, Nov. 9, 2011.) Pursuant to
Rule 72(a) of the Federal Rules of Civil Procedure, Defendant filed objections to
the Court’s Order [# 171]. In addition, Plaintiffs filed a Motion for Sanctions and
to Hold Defendant Lowe’s Companies, Inc. in Contempt of Court [# 174].
Subsequently, the Court stayed discovery in the case pending a ruling from the
District Court on Defendant’s objections. (Order, Nov. 28, 2011.) In that Order,
the Court also indicated that the Court would issue a ruling on the pending
discovery motions upon the entry of an order from the District Court.
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Accordingly, the Court denied with leave to renew the motions [# 161, # 168,
# 174, and # 176] and granted the parties five (5) days from the entry of an Order
by the District Court on Defendant’s Objection [# 171] to renew these motions.
(Order, July 6, 2012.)
On September 14, 2012, the District Court entered an Order sustaining
Defendant’s objection to this Court’s Order granting Plaintiff’s Motion to Compel.
(Order, Sept. 14, 2012.)

The District Court denied the Plaintiffs Motion to

Compel [# 149]. (Id.) Subsequently, on September 21, 2012, Plaintiff moved to
renew its Motion for Sanctions [# 174], Motion for Extension of Time [# 176], and
Motion to Compel [# 168]. The Court DENIES the renewed motions.
I.

Analysis1

As a threshold matter, after reviewing the entire record in this case, the
Court finds that Plaintiff is not entitled to an order finding Defendant in contempt
or an order sanctioning Defendant. On November 9, 2011, the Court entered an
Order compelling the deposition testimony of three of Defendant’s employees.
Plaintiff then noticed the deposition of the employees to be taken on November 17,
2011, and November 21, 2011. On November 15, 2011, counsel for Defendant

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The Court notes that the Plaintiff failed to renew the motions within the five day time
period set forth in the Court’s prior Order, and the motions could be denied for that reason alone.
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informed Plaintiff that Defendant intended to appeal the Court’s Order and would
not participate in the depositions. Defendant appealed the Court’s Order on
November 16, 2011. The witnesses, however, did not appear for the noticed
depositions. As a result, Plaintiff brought a motion for contempt and for sanctions.
Although the Court finds that Defendant should have, in an abundance of
caution, moved the Court to stay this Court’s Order pending resolution of the
discovery issue by the District Court, the Court finds that the facts of this case do
not warrant a finding of contempt or other sanctions. Defendant timely appealed
the Court’s discovery Order, and the District Court found that it was clear error for
this Court to compel the depositions at issue. The Court finds that neither
sanctions nor a contempt order is warranted based on the facts of this case. The
Court DENIES the Motion for Sanctions [# 174 & # 206].
Moreover, in light of the District Court’s September 14, 2012, Order finding
that the Court’s prior Order was in clear error, that the record in this case is fully
developed, and that discovery is closed, and after a review of the record in this
case and the parties’ briefs, the Court DENIES the Motion to Compel [# 168 &
# 207] and Motion for Extension of Time [# 176 & # 204]. Discovery in this case
is closed, and the Court DIRECTS Plaintiff to respond to Defendant’s Motion for
Summary Judgment [# 180] within thirty (30) days of the entry of this Order.

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II.

Conclusion

The Court DENIES the Motion for Sanctions [# 174 & # 206], the Motion
to Compel [# 168 & # 207], and Motion for Extension of Time [# 176 & # 204].
The Court DIRECTS Plaintiff to respond to Defendant’s Motion for Summary
Judgment [# 180] within thirty (30) days of the entry of this Order.

Signed: October 22, 2012

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