Niloy, Inc. d/b/a DCT Systems v. Lowe's Companies, Inc.

Filing 34

ORDER granting 31 Plaintiff's Motion For Leave To Take Early Discovery. Parties shall conduct their Initial Attorney's Conference on or before 9/2/2016. Signed by Magistrate Judge David Keesler on 8/18/2016. (kby)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL ACTION NO. 5:16-CV-029-RLV-DCK
NILOY, INC. d/b/a DCT SYSTEMS,
Plaintiff,
v.
LOWE’S COMPANIES, INC.,
Defendant.

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ORDER

THIS MATTER IS BEFORE THE COURT on “Plaintiff’s Motion For Leave To Take
Early Discovery” (Document No. 31).

This motion has been referred to the undersigned

Magistrate Judge pursuant to 28 U.S.C. § 636(b), and is ripe for disposition. Having carefully
considered the motion, the record, and applicable authority, the undersigned will grant the motion.
BACKGROUND
Plaintiff Niloy, Inc. d/b/a DCT Systems (“Plaintiff” or “DCT”) initiated this action with
the filing of its “Complaint” (Document No. 1) against “Defendant Lowe’s Companies, Inc.
(“Defendant” or “Lowe’s”) on February 18, 2016. The Complaint asserts the following claims:
suit on open account/breach of contract; breach of contract (on behalf of DCT’s subcontractors);
breach of express and implied covenant of good faith and fair dealing; unjust enrichment; unfair
and deceptive trade practices; and attorney’s fees and expenses of litigation. (Document No. 1,
pp.14-22).
“Defendant’s Partial Motion To Dismiss Plaintiff’s Complaint” (Document No. 18) was
filed on April 11, 2016. The motion to dismiss seeks dismissal of all Plaintiff’s claims except the
breach of contract claim raised in Count I. (Document No. 18, p.1). Also on April 11, 2016,

“Defendant’s Answer And Counterclaims” (Document No. 19) was filed. Defendant asserts
counterclaims for:

breach of contract;

unfair and deceptive trade practices;

negligent

misrepresentation; and fraud. (Document No. 19, pp.12-16). “Plaintiff’s Answer To Defendant’s
Counterclaim” (Document No. 26) was filed on May 19, 2016. The motion to dismiss has been
fully briefed, and the presiding District Judge, the Honorable Richard L. Voorhees will issue a
decision in due course. See (Document Nos. 27 and 30).
“Plaintiff’s Motion For Leave To Take Early Discovery” (Document No. 31) was filed on
July 15, 2016. This motion has also been fully briefed, and as noted above, is referred to the
undersigned for disposition. See (Document Nos. 32 and 33).
DISCUSSION
By the instant motion, Plaintiff argues there is good cause to allow “early discovery”
regarding its claim for breach of contract. (Document No. 31, p.1). Specifically, Plaintiff seeks
leave to serve requests for production and interrogatories limited to documentation related to the
underlying contract in this case known as the Master Professional Services Agreement (the
“MPSA”). Id. Plaintiff notes that Defendant has not moved to dismiss its claim for breach of the
MPSA; moreover, there is no motion to dismiss Defendant’s counterclaims. (Document No. 31,
p.2).
In response, Defendant argues that Plaintiff has failed to establish good cause for discovery
to begin, or that it will be irreparably harmed if discovery is further delayed. (Document No. 32).
Defendant also argues that Plaintiff’s request is not narrowly tailored. Id.
In its reply, Plaintiff notes that Defendant “does not dispute, or even address, DCT’s
primary argument for beginning discovery: the scope of discovery will not be affected by Lowe’s
pending motion to dismiss, regardless of whether it is granted or denied.” (Document No. 33, p.1).

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Plaintiff further notes that “[b]oth parties have asserted breach of contract claims, and Lowe’s has
asserted counterclaims, that are not subject to the motion to dismiss.” Id. Plaintiff contends that
beginning discovery now serves the interests of fairness and efficiency. Id.
In this instance, the undersigned agrees with Plaintiff. Answers to Plaintiff’s Complaint
and to Defendant’s Counterclaims have been filed. (Document Nos. 19 and 26). Moreover, there
is no dispute that several claims the parties have asserted are not subject to dismissal at this time
and will proceed through the litigation process at some point. In short, the undersigned finds that
process should begin now.
Under these circumstances, the Court will direct the parties to conduct their Initial
Attorney’s Conference and file a Certification of Initial Attorney’s Conference consistent with the
requirements of Fed.R.Civ.P 26 and Local Rule 16.1. The parties’ proposed discovery plan should
accommodate discovery related to the parties’ claims that are not currently subject to dismissal in
Defendant’s pending “…Partial Motion To Dismiss Plaintiff’s Complaint” (Document No. 18).
CONCLUSION
IT IS, THEREFORE, ORDERED that “Plaintiff’s Motion For Leave To Take Early
Discovery” (Document No. 31) is GRANTED, as more fully described herein. The parties shall
conduct their Initial Attorney’s Conference on or before September 2, 2016.
SO ORDERED.

Signed: August 18, 2016

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