Johnson et al v. MNK Holdings LLC et al
Filing
66
ORDER granting 59 Motion to Compel and orders MNK Holdings, LLC and Michelle Koch to participate in depositions by December 23, 2020 or any date agreed upon by the parties. The court DENIES Plaintiffs' Motion for Teleconference (ECF No. 59) as MOOT. Signed by Honorable J Michelle Childs on 11/23/2020.(asni, )
3:19-cv-01129-JMC
Date Filed 11/23/20
Entry Number 66
Page 1 of 6
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Charles Johnson and Randy Watson
Holdings, LLC,
)
)
)
Plaintiff,
)
)
v.
)
)
Reginal Barner, The Barner Group, LLC, )
MNK Holdings, LLC, and Michelle Koch )
)
Defendants.
)
____________________________________)
Civil Action No. 3:19-cv-01129-JMC
ORDER
This matter is before the court on Plaintiffs Charles Johnson’s and Randy Watson
Holdings, LLC’s (“Plaintiffs”) Motion to Compel and Motion for Teleconference. (ECF No. 59.)
Plaintiffs seek an order compelling Defendants MNK Holdings, LLC (“MNK Holdings”) and
Michelle Koch (“Koch”) (collectively, “Koch Defendants”) to participate in depositions as well as
a teleconference on the Motion. (Id. at 1, 3.) For the reasons set forth below, the court GRANTS
Plaintiffs’ Motion to Compel and DENIES Plaintiffs’ Motion for Teleconferences as MOOT.
(Id.)
I.
RELEVANT BACKGROUND
Plaintiffs filed their original Complaint on April 17, 2019. (ECF No. 1) On March 3, 2020,
Plaintiffs filed their Second Amended Complaint, alleging causes of action for breach of fiduciary
duty, negligence, and conversion against the Koch Defendants, Reginal Barner, and The Barner
Group, LLC. (ECF No. 32.)
The Amended Scheduling Order entered on September 10, 2019 required the parties to
complete discovery by July 24, 2020. (ECF No. 24 at 2.) In an effort to depose the Koch
Defendants before the close of discovery, Plaintiffs served a Notice for a Rule 30(b)(6) Deposition
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of MNK Holdings set for April 29, 2020 on April 17, 2020. (ECF No. 60-1.) The April 29, 2020
deposition did not occur because the Koch Defendants filed a Motion to Stay Discovery (ECF No.
43) on April 27, 2020 that was granted on May 1, 2020. (ECF No. 45.)
The stay was lifted on June 15, 2020, prompting Plaintiffs to serve a second Notice for a
Rule 30(b)(6) Deposition of MNK Holdings set for July 7, 2020. (Id., ECF No. 60-2.) However,
the July 7, 2020 deposition did not occur. The second notice was “effectively withdrawn” after
Plaintiffs requested a new scheduling order on June 30, 2020. (ECF Nos. 60 at 5, 47.) On August
17, 2020, the court entered a new scheduling order extending the deadline for the amendment of
pleadings to December 31, 2020 and the discovery deadline to July 26, 2021. (ECF No. 54 at 1,
2.)
Plaintiffs’ Counsel contacted Defense Counsel on August 14 and 27 to schedule the
depositions of MNK Holdings and Koch. (ECF No. 59-1 at 1, 2.) On August 27, 2020, Defense
Counsel notified Plaintiffs’ Counsel that he would “not agree to the scheduling of any depositions
until the issues are joined by your replies to the counterclaims and crossclaims our client has served
on you, and until we’ve had the opportunity to serve written discovery and you’ve promptly replied
to that discovery.” (Id. at 1.) Defense Counsel claimed that the depositions were “premature”
because “discovery does not conclude until July 26, 2021. (Id.)
On September 10, 2020, Plaintiffs’ and Defense Counsel exchanged emails to schedule
depositions of the Koch Defendants. (ECF No. 60-3.) Plaintiffs’ Counsel asked to schedule the
depositions in October 2020 but Defense Counsel opposed the “expedited scheduling of
depositions.” (Id.) Plaintiffs filed the instant Motion to Compel the same day. (ECF No. 59).
Defendant subsequently filed a Response (ECF No. 60) on September 11, 2020 and Plaintiff
submitted a Reply (ECF No. 61) on September 14, 2020.
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II.
Entry Number 66
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LEGAL STANDARD
Under Federal Rule of Civil Procedure 26(b)(1), 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[.]” Fed. R. Civ. P. 26(b)(1). Relevance is construed broadly to include any
matter that bears on, or reasonably could lead to other matter that could bear on, any issue that
may be in the case. See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 350-51 (1978) (footnote
omitted) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)) (discussing relevance to a claim or
defense, although decided under 1978 version of Rule 26 that authorized discovery relevant to the
subject matter of the action). Whether a discovery request is proportional is determined by
“considering the importance of the issues at stake in the action, the amount in controversy, the
parties’ relative access to the 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.” Fed. R. Civ. P. 26(b)(1). Information within the scope of discovery
“need not be admissible in evidence to be discoverable.” Id.
The Federal Rules of Civil Procedure recognize depositions as an accepted method of
discovery. See Fed. R. Civ. P. 30(a)(1) (“[a] party may, by oral questions, depose any person,
including a party, without leave of court except as provided in Rule 30(a)(2)”). A party may name
an organization as a deponent. Fed. R. Civ. P. 30(b)(6).
“District courts enjoy nearly unfettered discretion to control the timing and scope of
discovery and impose sanctions for failures to comply with its discovery orders.” Hinkle v. City
of Clarksburg, W.Va., 81 F.3d 416, 426 (4th Cir. 1996). Rule 26(d)(3) states that “methods of
discovery may be used in any sequence[.]” Fed. R. Civ. P. 26(d)(3).
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Federal Rule of Civil Procedure 37 provides that if a party fails to respond to discovery,
the party seeking discovery may move for an order compelling production. Fed. R. Civ. P. 37.
The decision to grant or to deny a motion to compel discovery rests within the broad discretion of
the trial court. See Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 929
(4th Cir. 1995) (“This Court affords a district court substantial discretion in managing discovery
and reviews the denial or granting of a motion to compel discovery for abuse of discretion.”);
LaRouche v. Nat’l Broad. Co., 780 F.2d 1134, 1139 (4th Cir. 1986) (“A motion to compel
discovery is addressed to the sound discretion of the district court.”).
III.
ANALYSIS
Plaintiff seeks an order compelling the Koch Defendants to participate in depositions
because “Defense counsel has stated that they will refuse to participate in this discovery until an
undisclosed time after they feel that sufficient written discovery has been exchanged.” (ECF No.
59 at 1.) The Koch Defendants oppose the Motion, claiming that it is barred by Local Civil Rule
37.01 and premature. (ECF No. 60.)
Local Civil Rule 37.01 requires motions to compel discovery to be filed within twenty-one
(21) days of receipt of the disputed discovery. Local Civ. Rule 37.01(a) (D.S.C.). However, South
Carolina district courts have “discretion to consider an untimely motion to compel if the movant
offers an acceptable explanation for the motion’s tardiness.” United Prop. & Cas. Ins. v. Couture,
No. 2:19-cv-01856-DCN, 2020 WL 2319086, at *3 (D.S.C. May 11, 2020) (citing U.S. ex rel.
Becker v. Westinghouse Savannah River Co., 305 F.3d 284, 290 (4th Cir. 2002)). The Koch
Defendants contend that the instant Motion is “untimely under Local Rule 37.01(A), as it is filed
in excess of two (2) months after the deposition date specified in the last deposition notice served
by the Plaintiffs, and no other notices have been served on MNK Holdings.” (ECF No. 60 at 7.)
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The court finds that Local Civil Rule 37.01 does not bar Plaintiffs’ Motion to Compel.
First, Local Civil Rule 37.01 does not apply to this discovery dispute. Here, Plaintiffs are not in
“receipt of the disputed discovery[.]” Local Civ. Rule 37.01(a) (D.S.C.). Procedural circumstances
precluded the April and July depositions and the Koch Defendants have affirmatively stated that
they will not make their clients available for depositions. (ECF No. 60-3.) The court will not
interpret the rule to disadvantage Plaintiffs when the instant discovery dispute is a result of the
Koch Defendants’ refusal to cooperate. Second, even if Plaintiffs’ Motion was considered
untimely, the court would exercise its discretion to consider it because Plaintiffs offered an
acceptable explanation for the Motion’s tardiness. Plaintiffs did not immediately file a Motion to
Compel after the failed April and July depositions because they expected to negotiate a rescheduled
deposition date in good faith with the Koch Defendants. The court will not penalize Plaintiffs for
attempting to solve a discovery dispute in good faith without the court’s intervention. As a result,
the court will consider the Motion to Compel on its merits.
Contrary to the Koch Defendants’ assertions, Plaintiffs’ Motion to Compel is not
premature. Plaintiffs seek discovery that is within the scope of the Federal Rules of Civil
Procedure. The depositions at issue are highly relevant and proportional to the needs of the case
because they will allow Plaintiffs to learn about the conduct at issue from the alleged tortfeasors
themselves. Information gleaned from the depositions may enable Plaintiffs to add new claims
and parties or discover new evidence. Depositions of parties and organizations are also clearly
authorized by Rule 30. Given that the requested discovery is permissible, the Koch Defendants
cannot delay Plaintiffs’ ability to conduct such crucial discovery until further discovery is
conducted. Under Rule 26(d)(3), “methods of discovery may be used in any sequence[.]” Fed.
R. Civ. P. 26(d)(3).
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Moreover, there is no reason to further delay this case. Plaintiffs should be able to take
party depositions nineteen months after the case was filed. They should also be allowed to conduct
critical depositions before the deadline for amending pleadings in order to fully prosecute their
claims.
After a thorough review of the parties’ submissions, the court grants Plaintiffs’ Motion to
Compel and orders the Koch Defendants to participate in depositions by December 23, 2020 or
any date agreed upon by the parties. The court also denies Plaintiffs’ Motion for Teleconference.
“[A] case is moot when ‘[a court’s] resolution of an issue could not possibly have any practical
effect on the outcome of the matter.’” Catawba Riverkeeper Found. v. N.C. Dep’t of Transp., 843
F.3d 583, 588 (4th Cir. 2016) (quoting Norfolk S. Ry. Co. v. City of Alexandria, 608 F.3d 150, 161
(4th Cir. 2010)). Because the court has already resolved Plaintiffs’ Motion to Compel, a hearing
on the matter would be ineffectual.
IV.
CONCLUSION
In conclusion, the court GRANTS Plaintiffs’ Motion to Compel (ECF No. 59) and orders
MNK Holdings, LLC and Michelle Koch to participate in depositions by December 23, 2020 or
any date agreed upon by the parties. The court DENIES Plaintiffs’ Motion for Teleconference
(ECF No. 59) as MOOT.
IT IS SO ORDERED.
United States District Judge
November 23, 2020
Columbia, South Carolina
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