Parlier v. Lewis et al

Filing 64

ORDER granting in part and denying without prejudice in part 63 Motion to Compel as follows: Plf to confirm current contact info by filing ntc with Court by 10/2/2015; plf to respond to discovery requests by 10/9/2015; dft may file renewed motion for atty fees and expenses on or after 10/13/2015; parties shall file, jointly if possible, by 10/9/2015 notice identifying parties' chosen mediator and mediation date. Clerk to send copy of this Order along with dcmt 63 and its attachments to plf by certified US mail, rtn rcpt requested. Signed by Magistrate Judge David Keesler on 9/21/2015. (Pro se litigant served by US Mail.)(cbb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL ACTION NO. 5:14-CV-085-RLV-DCK
JAMES LEE PARLIER, JR., d/b/a Jimmy
Parlier Horse Transport, d/b/a Parlier
Farms, d/b/a Parlier Equine Transport &
Carriages,
Plaintiff,
v.
BRENDA CASTEEN

Defendant.

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ORDER

THIS MATTER IS BEFORE THE COURT on Defendant Brenda Casteen’s “Motion
To Compel” (Document No. 63). This motion has been referred to the undersigned Magistrate
Judge pursuant to 28 U.S.C. § 636(b), and immediate review is appropriate. Having carefully
considered the motion, the record, and applicable authority, the undersigned will grant the motion.
BACKGROUND
Plaintiff James Lee Parlier, Jr. (“Plaintiff” or “Parlier”) filed a “Verified Complaint”
(Document No. 2) initiating this action on May 29, 2014. The Complaint asserts causes of action
for: (1) tortious interference with contract; (2) North Carolina defamation per se; (3) North
Carolina defamation per quod; and (4) violation of North Carolina unfair and deceptive trade
practices act. (Document No. 2, pp. 24-30).
“Defendant Brenda Casteen’s Answer And Counterclaim” (Document No. 19) was filed
on August 11, 2014. Defendant Casteen later filed an “…Answer And Amended Counterclaim”
(Document No. 35) on September 19, 2014. Defendant asserts counterclaims for: (1) claim and

delivery; (2) breach of contract; (3) implied contract / quantum meruit / unjust enrichment; (4)
conversion; (5) possession of personal property; (6) fraud; (7) unfair and deceptive trade
practices; (8) punitive damages; (9) battery; (10) assault; (11) false imprisonment; and (12)
intentional infliction of emotional distress; (Document No. 35, pp.19-25). On October 2, 2014,
Plaintiff filed his “Answer And Affirmative Defenses To Casteen’s Counterclaim” (Document No.
37).
The Court entered its “Pretrial Order And Case Management Plan” (Document No. 47) on
October 23, 2014. The Case Management Order, inter alia, set the following deadlines: discovery
completion – October 9, 2015; ADR report – November 9, 2015; dispositive motions – November
9, 2015; and trial – March 7, 2016. (Document No. 47).
On January 13, 2015, Plaintiff filed a “Stipulation Of Voluntary Dismissal Pursuant To
F.R.C.P. 41(a)(1) As To: (1) Tiffany Lewis; (2) Kansas City Premier Apartments, Inc.; (3) Jason
Stahl; (4) Maria Bogdanova Peifer; (5) Marilyn Meeker Bernstein; and (6) John and Jane Does
1-10.” (Document No. 53). As such, it appears that Brenda Casteen (“Defendant” or “Casteen”)
is the only remaining defendant in this action.
On February 26, 2015, the Court allowed “Mark W. Ishman’s Renewed Motion For
Permission To Withdrawal As Counsel For Plaintiff” (Document No. 54). (Document No. 55).
Plaintiff was advised that “he must abide by the Federal Rules of Civil Procedure, the Local Rules
of this Court, and the ‘Pretrial Order And Case Management Plan’ (Document No. 47).” Id.
Defendant Brenda Casteen’s “Motion To Compel” (Document No. 63) was filed on August
11, 2015. The pending motion requests that the Court compel Plaintiff: (1) “to provide further
suitable contact information for service of documents and correspondence;” (2) answer and
provide responses to Defendant’s First Set of Interrogatories, Requests for Production of

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Documents and Requests for Admission within thirty (30) days of service thereof;” and (3) “award
Defendant Casteen the reasonable expenses and attorney’s fees incurred.” (Document No. 63).
Plaintiff has failed to file a response, and the time to do so has lapsed.
The pending motion is now ripe for review and disposition.
STANDARD OF REVIEW
Rule 26 of the Federal Rules of Civil Procedure provides that:
Parties may obtain discovery regarding any nonprivileged matter
that is relevant to any party’s claim or defense including the
existence, description, nature, custody, condition, and location of
any documents or other tangible things and the identity and location
of persons who know of any discoverable matter. For good cause,
the court may order discovery of any matter relevant to the subject
matter involved in the action. Relevant information need not be
admissible at the trial if the discovery appears reasonably calculated
to lead to the discovery of admissible evidence.
Fed.R.Civ.P. 26(b)(1). The rules of discovery are to be accorded broad and liberal construction.
See Herbert v. Lando, 441 U.S. 153, 177 (1979); and Hickman v. Taylor, 329 U.S. 495, 507
(1947). However, a court may “issue an order to protect a party or person from annoyance,
embarrassment, oppression or undue burden or expense.” Fed.R.Civ.P. 26(c)(1).
Whether to grant or deny a motion to compel is generally left within a district court’s broad
discretion. See Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 929 (4th
Cir. 1995) (denial of motions to compel reviewed on appeal for abuse of discretion); Erdmann v.
Preferred Research Inc., 852 F.2d 788, 792 (4th Cir. 1988) (noting District Court’s substantial
discretion in resolving motions to compel); and LaRouche v. National Broadcasting Co., 780 F.2d
1134, 1139 (4th Cir. 1986) (same). A party’s failure to respond to discovery requests may
result in sanctions, including reasonable expenses caused by the failure, and/or dismissal of
the action in whole or in part. See Fed.R.Civ.P. 37(b)(2)(a) and (d).
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DISCUSSION
By the pending motion, Defendant Casteen asserts that she has attempted by certified mail
to serve discovery requests on Plaintiff at the address currently listed on the docket and provided
by Plaintiff’s former counsel, but such attempt has been returned as “not deliverable” and “unable
to forward.” (Document No. 63, p.2); see also (Document No. 54). Defendant further notes that
discovery, mediation, and motions deadlines are rapidly approaching. Id. Defendant contends she
cannot adequately prepare for these imminent deadlines if Plaintiff cannot or will not accept
service of correspondence at the address he provided the Court. As noted above, Plaintiff has
failed to file any response to the pending motion.
Based on the foregoing, the undersigned finds good cause to grant the requested relief,
except Defendant will be required to file a separate motion for the requested costs and attorney’s
fees. Plaintiff is directed to promptly respond to the pending discovery requests and this Court’s
Order.
CONCLUSION
IT IS, THEREFORE, ORDERED that Defendant Brenda Casteen’s “Motion To
Compel” (Document No. 63) is GRANTED in part, and DENIED WITHOUT PREJUDICE,
in part, as follows: Plaintiff shall confirm current contact information suitable for service of
documents and correspondence, by filing an appropriate Notice with the Court, on or before
October 2, 2015; Plaintiff shall fully respond to Defendant’s discovery requests (Document No.
63-2) on or before October 9, 2015; and Defendant may file a renewed motion for reasonable
expenses and attorney’s fees, including a detailed description of those expenses and fees related to
Document No. 63, on or after October 13, 2015.

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IT IS FURTHER ORDERED that the parties shall file a Notice with the Court, jointly if
possible, on or before October 9, 2015, identifying the parties’ chosen mediator and mediation
date.
The Clerk of Court is directed to send a copy of this Order, along with Document No. 63
and its attachments, to Plaintiff by certified U.S. Mail, return receipt requested.
SO ORDERED.

Signed: September 21, 2015

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