Church v. Home Fashions International, LLC

Filing 17

ORDER denying 13 Amended Motion to Compel Discovery; granting with modification as described in this Order 14 Motion for Extension of Discovery. Dispositive motions may be filed on or before 1/30/2012. This matter will be set for trial during the undersigned's civil term beginning 4/9/2012. Signed by Magistrate Judge David Keesler on December 8, 2011. (cbb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL ACTION NO. 5:10-CV-133-DCK
KENNETH E. CHURCH and KEN E.
CHURCH ENTERPRISES, LLC,
Plaintiffs,
ORDER
v.
HOME FASHIONS INTERNATIONAL, LLC,

Defendant.

THIS MATTER IS BEFORE THE COURT on Defendant’s amended “Notice Of
Motion To Compel Discovery” (Document No. 13) and “Notice Of Motion To Extend
Discovery” (Document No. 14) filed November 2, 2011. “Plaintiffs’ Objections To Defendant’s
Motion To Compel And Motion To Extend Discovery” (Document No. 16) was filed in response
to the pending motions on November 14, 2011. Defendant has failed to file a reply and the time
to do so lapsed on November 28, 2011.1
The parties have consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. §
636(c), and the motions are ripe for disposition. Having carefully considered the motions and
the record, the undersigned will deny the motion to compel, and grant the motion to extend
discovery, with modification.
This action was filed on August 11, 2010 in the Superior Court of Caldwell County,
North Carolina, asserting claims for breach of contract and violation of the North Carolina Wage

1

“The filing of a reply brief is not mandatory. . . . If the party making the motion does not
wish to file a reply brief, it must so inform the Court and opposing counsel promptly in an electronically
filed notice.” Local Rule 7.1(E).

and Hour Act. (Document No. 2-1). Defendant filed a “Notice Of Removal” (Document No. 2)
and thus removed the action to this Court on September 9, 2010. The undersigned issued a
“Pretrial Order And Case Management Plan” (Document No. 7) on October 18, 2010. The
“Pretrial Order...” among other things set important case deadlines, including: Discovery - July
13, 2011; Mediation - August 1, 2011; Motions - August 15, 2011; and Trial - the first civil
term after January 1, 2012. (Document No. 7).
On July 26, 2011, a timely report on the results of the parties’ mediation was filed and
indicated that the parties had reached an impasse. (Document No. 11). Then, on November 2,
2011, nearly four (4) months after the discovery deadline and nearly three (3) months after the
motions deadline, Defendant filed the pending motions. (Document Nos. 13 and 14).
Defendant’s counsel states that he inadvertently entered September 13, 2011, as the
discovery end date instead of July 13, 2011. (Document No. 13-1, p.1). Apparently, Defendant
served its First Set of Interrogatories and First Requests To Produce to Plaintiffs on or about
August 31, 2011. (Document No. 14-1, pp.1-2). Even if Defendant thought September 13, 2011
was the discovery deadline, serving discovery requests on August 31, 2011 did not allow
Plaintiffs adequate time to respond.

See (Document No. 7, p.3).

Defendant offers no

explanation for why it waited until November 2011 to seek to extend the time for discovery.
According to Defendant’s motion, Plaintiffs served their First Set of Interrogatories and
Request for Production of Documents to Defendant on or about February 24, 2011, and
Defendant provided answers and documents on or about March 15, 2011. (Document No. 14-1,
p.1). Plaintiffs even served additional discovery requests on or about June 23, 2011, and the
parties mediated on July 25, 2011, and still Defendant did not serve any discovery requests or
seek additional time to conduct discovery. Id.

Plaintiffs object to the pending motions and argue that they have been attempting to
collect commissions and salary from Defendant for over two (2) years. (Document No. 16).
Plaintiffs believe any extension of the discovery schedule will delay trial in this matter. Id.
Under the circumstances, the undersigned will deny Defendant’s motion to compel, but
allow an extension of time for limited discovery. Specifically, Defendant may serve Plaintiffs
with a total of no more than ten (10) single part interrogatories; ten (10) requests for admission;
and ten (10) requests for production, on or before December 15, 2011. Plaintiffs shall provide
appropriate responses on or before January 15, 2012.
IT IS THEREFORE ORDERED that Defendant’s amended “Notice Of Motion To
Compel Discovery” (Document No. 13) is DENIED; and Defendant’s “Notice Of Motion To
Extend Discovery” (Document No. 14) is GRANTED, with modification as described herein.
IT IS FURTHER ORDERED that dispositive motions may be filed on or before
January 30, 2012. This matter will be set for trial during the undersigned’s civil term beginning
April 9, 2012.
SO ORDERED.
Signed: December 8, 2011