Swan Racing Company, LLC v. XXXtreme Motorsport, LLC et al

Filing 43

ORDER that Defendants shall SHOW CAUSE on or before the 4/25/16, why counsel's 42 Renewed And Amended Motion To Withdraw should not be allowed. Defendants shall file a response to 38 Joint MOTION to Compel Discovery on or before 5/2/2016. The Clerk shall send this Order to Defendants at the address provided in document no. 42 by certified mail, return receipt requested. Signed by Magistrate Judge David Keesler on 4/7/16. (smj)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL ACTION NO. 5:14-CV-155-RLV-DCK
SWAN RACING COMPANY, LLC,
Plaintiff,
v.
XXXTREME MOTORSPORT, LLC, and
JOHNATHAN COHEN,
Defendants / Third-Party Plaintiffs,
v.
BRANDON DAVIS,
Third-Party Defendant.

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ORDER

THIS MATTER IS BEFORE THE COURT sua sponte regarding the status of the case.
The undersigned observes that two motions are pending before the Court: “Plaintiff Swan Racing
Company, LLC’s And Third-Party Defendant Brandon Davis’s Joint Motion To Compel
Discovery” (Document No. 38) filed March 18, 2016; and Defendants’ counsel’s “Renewed And
Amended Motion To Withdraw” (Document No. 42) filed April 7, 2016. These motions have
been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b), and immediate
review is appropriate.
Defendants’ counsel seeks withdrawal based on Defendants’ failure to “fully compensate”
counsel for services rendered or to provide “a retainer to cover the fees and expenses.” (Document
No. 42, p.1). In addition, Defendants’ counsel contends that it has been unable to respond to the
pending motion to compel “because Defendants are unwilling or unable to provide . . . the
information sought by the discovery.” (Document No. 42, p.2).

The undersigned observes that a response to the pending motion to compel was due by
April 4, 2016, and that discovery in this matter is due to be completed by April 30, 2016.
Defendants’ alleged failure to participate in their defense or cooperate with their counsel appears
to be causing unnecessary delays in this litigation. The Court advises Defendants that they are
required to cooperate in the discovery process.
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 and proportional to
the needs of the case, considering the importance of the issues at
stake in the action, the amount in controversy, the parties’ relative
access to relevant information, the parties’ resources, the importance
of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit.
Information within this scope of discovery need not be admissible
in evidence to be discoverable.
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, “[t]he court may, for good cause, 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 provide or permit discovery may result
in sanctions including the following: reasonable expenses caused by the failure; default

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judgment against the disobedient party; or treating as contempt of court the failure to obey
any order. See Fed.R.Civ.P. 37(b)(2)(a) and (d); see also, (Document No. 35, p.8).
Based on the foregoing, the undersigned will allow Defendants a brief extension of time to
respond to the pending motion to compel. In addition, Defendants shall take appropriate steps to
retain existing counsel, or find new counsel. Defendants’ failure to abide by this Order will likely
result in sanctions.
IT IS, THEREFORE, ORDERED that Defendants shall SHOW CAUSE on or before
the April 25, 2016, why counsel’s “Renewed And Amended Motion To Withdraw” (Document
No. 42) should not be allowed.
IT IS FURTHER ORDERED that Defendants shall file a response to “Plaintiff Swan
Racing Company, LLC’s And Third-Party Defendant Brandon Davis’s Joint Motion To Compel
Discovery” (Document No. 38) on or before May 2, 2016.
The Clerk of Court is directed to send a copy of this Order to Defendants at the address
provided in Document No. 42 by certified U.S. mail, return receipt requested.
SO ORDERED.

Signed: April 7, 2016

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