Performance Sales & Marketing, LLC, Iredell County et al

Filing 43

ORDER denying 41 Motion for Early Court Sanctioned Discovery and for Status Conference. Signed by Magistrate Judge Dennis Howell on 12/3/2009. (cbb)

I N THE UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF NORTH CAROLINA S T A T E S V IL L E DIVISION 5 :0 7 cv 1 4 0 P E R F O R M A N C E SALES & ) M A R K E T I N G , LLC, a North Carolina L im ite d Liability Company; PSM G R O U P , INC., a North Carolina C o rp o ra tio n ; an GREG SEREY, an in d iv id u a l, P la in t if fs , V s. L O W E 'S COMPANIES, INC., D efen d an t. _______________________________

) ) ) ) ) ) ) ) ) ) ) ) ) )

ORDER

T H I S MATTER is before the court on the plaintiffs' Motion for Early Court S a n ctio n e d Discovery of Third Parties Under Local Rule 16.1 (W.D.N.C.) and for S ta tu s Conference (#41). Plaintiffs have provided the court with the following r e a s o n s for such relief: (1) th e r e has been a dispositive motion pending before the court for more th a n a year; (2 ) (3) P la in tiff Serey is gravely ill; p la in tif fs fear that evidence may not be retained by unnamed third p a rtie s ; and
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th e status conference is sought to discuss other timing and discovery is s u e s in light of the pending partially dispositive motions.

P la in tiffs ' Motion, at ¶¶ 1-14. Defendant timely filed a response to such motion o b je c tin g to the relief sought on the following grounds: (1 ) (2 ) p la in tiffs have failed to show "good cause" under Local Civil Rule 16.1; p la in tiffs have failed to identify the third-parties whom they fear will not p r es erv e evidence; (3 ) th e pending motion to dismiss seeks dismissal of 23 of plaintiffs' 30 c a u s e s of action and, if granted, there would be very little if any d is c o v e ry required from third parties; and (4) th a t a status conference would be premature until the motion to dismiss is resolved and issues join. D e fe n d a n t's Response, at ¶¶ 1-5. Plaintiffs' reply was due to be filed not later than N o v e m b e r 30, 2009; however, neither a Reply nor a notice that no reply would be f ile d were submitted to the court. See L.Cv.R. 7.1(E). H a v in g not been rebutted, defendant's arguments against permitting early d is c o v e ry under Local Civil Rule 16.1 are highly persuasive. First, plaintiffs have not id e n tifie d any third parties who they believe are engaged in destruction or deletion of re le v a n t evidence. Speculation is not sufficient to show good cause under Rule 16.1.

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S e c o n d , while the pending motion to dismiss is not before the undersigned, the court n o te s that the Complaint is a massive document of 73 pages and contains 30 causes o f action. Including exhibits, the plaintiffs' initial pleading is 183 pages in length and ta k e s up 9.1 megabytes on the court's server. The motion to dismiss, response, and re p ly thereto are correspondingly complex. As the parties are aware, the court does n o t have unlimited resources and massive filings require commitment of massive b lo c k s of court time, especially where there are hundreds of other cases pending b e fo r e each judicial officer. The undersigned notes that ECF, while a great

te c h n o lo g ic a l improvement, has enabled counsel to file unlimited numbers of exhibits a n d other unregulated pleadings with little consequential cost. As a result, the court h a s been flooded with paper, all of which must be considered prior to decision. Thus, th e time it necessarily takes the court to consider the merits of a plaintiffs' 73 page C o m p la in t and the corresponding Motion to Dismiss is not good cause for allowing e a r ly discovery. Third, while this court is not unsympathetic to Plaintiff Serey's d e te rio ra tin g health, the court has done all it can do by previously allowing the d e p o s itio n of Mr. Serey to be taken by any means allowable under the Federal Rules o f Civil Procedure. The court understands that attempt was unsuccessful due to h e a lth ; however, the court cannot see how allowing early discovery will change such c irc u m s ta n c e . The parties are reminded that a deposition may also be taken upon

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w ritte n questions, which would allow Mr. Serey the ability to answer any questions in writing and at his own pace. In summary as to the requested early discovery, the court cannot find that good c a u s e has been shown for allowing early discovery. Indeed, the pleadings would c o u n s e l against allowing early discovery inasmuch as it appears possible that the jo in e d issues may little resemble the claims of the Complaint. Finally, the court has considered the motion for status conference, which a p p e a r s to be an admixture of a request for discussions as scheduling early discovery a n d the status of the pending dispositive motion. This motion will be denied and all p a rtie s instructed that if they want to be heard on the Motion to Dismiss, they should file a separate motion for hearing which would be resolved by the district court. *** W ith those concerns addressed, the parties are advised that if they wish to e x p lo r e early mediation of this action, such a motion would be considered

ORDER

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I T IS, THEREFORE, ORDERED that plaintiffs' Motion for Early Court S a n ctio n e d Discovery of Third Parties Under Local Rule 16.1 (W.D.N.C.) and for S ta tu s Conference (#41) is DENIED.

Signed: December 3, 2009

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