Direct Line Corporation v. Carrington et al

Filing 142

REPORT AND RECOMMENDATION: re 120 MOTION TO RENEW MOTION TO COMPEL. For the foregoing reasons, the undersigned recommends that a default be entered against Defendant Michael L. Carrington. (See Order for details). Signed by Magistrate Judge E. Clifton Knowles on 5/18/12. (xc:Pro se party by regular and certified mail.)(afs)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

DIRECT LINE CORPORATION,
Plaintiff,

vs.

MICHAEL L. CARRINGTON,
Defendant.

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CASE NO. 3:10-0423
JUDGE TRAUGER/KNOWLES

REPORT AND RECOMMENDATION
This matter is before the Court following a Hearing on Plaintiff’s “Motion to Renew
Motion to Compel and to Deem Admitted Defendant’s Responses to Requests for Admission”
and to determine the status of discovery. Docket No. 120. The hearing was held May 1, 2012.
The instant Motion was filed September 15, 2011, but Defendant has never filed a Response to
the Motion. The following background will be helpful to an understanding of the issues
discussed herein.
The undersigned previously submitted a Report and Recommendation recommending
that a default be entered against the pro se Defendant, Michael Carrington. Docket No. 104.
While that Report and Recommendation was based upon Defendant’s failure to appear at a status
conference set by the Court, it also discussed a number of delays occasioned by the conduct of
Defendant.
Defendant filed Objections to that Report and Recommendation. Docket No. 109. Judge
Trauger subsequently entered a “Memorandum” (Docket No. 111) and an accompanying Order

(Docket No. 112) declining to adopt the Report and Recommendation. Judge Trauger’s
Memorandum stated in part, “The court will also enter additional Orders in an attempt to (1) get
discovery back on track in this case, and (2) ensure that this case is resolved on the merits.”
Docket No. 111, p. 1. The accompanying Order, inter alia, also vacated a previous Order of the
undersigned that had deemed admitted 226 Requests for Admission submitted by Plaintiff to
Defendant. Docket No. 112, p. 1. Additionally, as will be discussed in greater detail below,
Defendant had filed a previous Motion for an extension of time to answer Interrogatories that
were submitted to him by Plaintiff. Docket No. 68. In her Order, Judge Trauger granted that
Motion. Docket No. 112, p. 1. The Order stated in relevant part:
From the date of this Order [July 25, 2011], the defendant shall
have 30 days to respond to all outstanding discovery, including the
226 requests for admission. After the expiration of that 30-day
window, the plaintiff may renew any discovery objections, and the
parties shall confer with Judge Knowles regarding the status of
discovery, the entry of a new scheduling order, and a trial date.
While this matter is referred back to Judge Knowles, he should
refrain from ruling on the pending Motion to Compel (Docket No.
84) until the status of discovery becomes more clear following the
expiration of the 30-day window.
Docket No. 112, p. 1-2.
The 30-day period established by Judge Trauger ended August 24, 2011.
On September 15, 2011, Plaintiff filed the instant Motion.1 In the Motion, Plaintiff
advised the Court that, as of the date of filing of the Motion, Plaintiff had not received any
Response to its outstanding discovery requests, nor had Defendant provided his initial
disclosures. Defendant had, however, belatedly submitted Responses to Plaintiff’s Requests for

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The “Motion to Compel” referred to by Judge Trauger in her Order (Docket No. 84)
was subsequently denied as moot by Judge Trauger. Docket No. 136.
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Admissions. Plaintiff claimed, however, that a large number of Defendant’s Responses should
be deemed admitted because they did “not constitute clear or sufficient Responses.”
Additionally, Plaintiff claimed that a number of Defendant’s denials did not fairly correspond to
the substance of the matter in question.
The relief sought by Plaintiff in the Motion was as follows:
Compel Defendant to respond to Plaintiff’s Second Set of
Interrogatories and Requests for Production of Documents;
Order Defendant to provide his initial disclosure;
Order to deem admitted Plaintiff’s Request for Admissions or, in
the alternative, require Defendant to provide amended answers
clarifying “any insufficient responses”; and sanctions in the form
of attorneys fees and expenses regarding the Motion.
On October 3, 2011, Plaintiff submitted a “Discovery Status Report.” Docket No. 122.
That Motion stated that Defendant had not responded to the pending Motion, nor had he
provided any “additional” Responses to written discovery (i.e., Responses to the Second Set of
Interrogatories and Requests for Production), or any initial disclosures.2 That Notice also
discussed Defendant’s failure to respond to Plaintiff’s requests concerning a proposed
Scheduling Order.
On November 11, 2011, Plaintiff submitted a “Second Discovery Status Report.” Docket
No. 127. That Status Report noted that Defendant had provided “purported initial disclosures.”
Docket No. 127, p. 1. The Report also stated, however, that Defendant had failed to respond to
the instant Motion nor had he provided any “additional” Responses to Plaintiff’s Second Set of

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As Plaintiff later explained, however, Defendant had not provided any Responses at all
to Plaintiff’s Second Set of Interrogatories and Requests for Production of Documents.
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Interrogatories and Requests for Production of Documents.3 Docket No. 127, p. 1.
On November 16, 2011, the pro se Defendant submitted a document headed “Defendant’s
Status Report 11-14-2011 to Case Management Order No. 2.” Docket No. 129. In that Status
Report, Defendant stated:
DISCOVERY IS COMPLETE. DEFENDANT ANSWERED
ALL ADMISSIONS AND INTERROGATORIES. DEFENDANT
HAS NOT BEEN MADE AWARE OF ANY OTHER ISSUES
NEEDING FULFILLMENT.
Docket No. 129, p. 2 (caps in original).
On November 15, 2011, Plaintiff submitted a document headed “Notice.” Docket No.
128. That Notice stated in relevant part that Defendant “has misrepresented to the Court that he
has responded to Plaintiff’s Second Set of Interrogatories and Requests for Production when, in
fact, he has not.”4 Docket No. 128, p. 1. The Notice also stated that, as of the date of the filing
of the Notice, Plaintiff still had not received any response to its second set of written discovery
requests. Docket No. 128, p. 2.
On December 9, 2011, Defendant submitted a Response to a Motion to Extend the
Deadline for the Completion of Discovery previously filed by Plaintiff. Docket No. 131. In that
filing, Defendant stated in part as follows:
Comes the Defendant, Michael Carrington, and moves that this
Honorable Court recognize that I have answered all Admissions on

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As Plaintiff later explained, however, Defendant had not provided any Responses at all
to Plaintiff’s Second Set of Interrogatories and Requests for Production of Documents.
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The “Notice” submitted November 15, 2011, was docketed as Docket No. 128. For
whatever reason, the Status Report to which that Notice responds was docketed as Docket No.
129, on November 16, 2011. This discrepancy, however, is not material to any issues before the
Court.
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Court orders and Plaintiff is playing games to run up their client’s
attorney fees. I have answered all admissions to the best of my
ability and truthfully.
Docket No. 131, p. 1.
On December 15, 2011, the Court entered an Order addressing the conflicting statements
of the parties. Docket No. 132. That Order stated in relevant part as follows:
Perhaps significantly, or perhaps not, Defendant now appears to be
stating that he has answered only the “Admissions.” His latest
filing does not mention the Interrogatories or Requests for
Production of Documents.
Thus, the situation appears to be that Plaintiff contends Defendant
still has not responded to the Interrogatories or Requests for
Production of Documents that were the subject of the previous
Motion to Compel. Docket No. 84. Defendant has stated to the
Court, however, that he has done so. None of the various
accusations and/or denials, however, is in the form of a
Declaration or an Affidavit. The Court cannot determine who is
being straight with it on the basis of the papers alone.
Therefore, the Court will hold a hearing on the pending Motions
(Docket Nos. 120, 130, and, to the extent appropriate, Docket No.
84) to determine the status of discovery. In an effort to be sure that
the Hearing is set at a time when Defendant can attend, Defendant
shall contact Courtroom Deputy Holly Vila on or before January 3,
2012, to advise her of his seven earliest availabilities to attend such
a Hearing in Nashville. If Defendant is unable to reach Ms. Vila in
person, he shall leave a voicemail message regarding the available
dates. After receiving dates from Defendant, Courtroom Deputy
Holly Vila will contact Plaintiff and the Court will set the Hearing
by a separate Order.
Docket No. 132, p. 5.
On January 4, 2012, the Court entered an Order stating that Defendant had contacted
Courtroom Deputy Holly Vila and advised her that his earliest seven dates for a Hearing on the
pending Motion were April 24, 2012, and the next successive six dates thereafter. Docket No.

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134. Those dates, obviously, were approximately four months later. The Order also noted that
counsel for Plaintiff had stated his preference for having the Hearing in January or February.
Nevertheless, the Court set the Hearing on the pending Motions for May 1, 2012, at 10:00 a.m.
The Court held the referenced Hearing on May 1, 2012. Counsel for Plaintiff appeared at
the Hearing, along with the pro se Defendant. Defendant admitted that he had completely failed
to respond to Plaintiff’s Second Set of Interrogatories and Requests for Production of
Documents. He stated that he had not responded to that discovery because he thought it was
“untimely.” Defendant stated that, when he had previously filed material with the Court stating
that he had responded to Plaintiff’s discovery requests, he had intended to restrict that statement
to only discovery requests that had been timely filed. He admitted, however, that he had not
previously offered this theory as an excuse to the Court for his failure to respond.5
The undersigned observed Mr. Carrington’s demeanor at the Hearing. The undersigned
does not believe that Mr. Carrington was being truthful with the Court.
On May 1, after the Hearing, Plaintiff submitted a “Post-Hearing Memorandum.” Docket
No. 141. That Memorandum stated in part as follows:

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Defendant’s theory concerning untimeliness apparently is based on the following
circumstances. Plaintiff submitted the Second Set of Interrogatories and Requests for Production
of Documents to Defendant on February 11, 2011. At that time, the then-governing Case
Management Order provided a discovery cut-off deadline of February 28, 2011. Docket No. 26.
Defendant apparently thought the referenced discovery was untimely because it was not
submitted more than 30 days in advance of the discovery cut-off deadline. Defendant apparently
failed to recognize that, on February 10, 2011, Plaintiff had filed a Motion to Extend the
Discovery Cut-off Deadline. Docket No. 60. Defendant filed a Response in Opposition to the
Motion accusing Plaintiff of attempting to circumvent the Court’s initial Scheduling Order.
Docket No. 63. On March 15, 2011, the Court entered an Order granting the Motion to Extend
the Discovery Cut-off Deadline until May 31, 2011. Docket No. 65. Thus, the Second Set of
Interrogatories and Requests for Production of Documents was not untimely.
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No. 4. Despite Plaintiff’s efforts Mr. Carrington has repeatedly
ignored and disobeyed this Court’s prior orders and has managed
to drag this case out for over two years all the while increasing
[Plaintiff’s] damages and avoiding a trial date. Therefore,
[Plaintiff] respectfully requests a default judgment be entered
against Carrington. In the alternative, DLC seeks the relief set
forth in its Motion to Renew Motion to Compel and Deem
Admitted Defendant’s Responses to Requests for Admission (Doc
120) and Motion to Extend Deadline to Complete Discovery (Doc
130).
Docket No, 141, p. 2.
Moreover, Plaintiff’s Second Set of Interrogatories and Requests for Production of
Documents was submitted to Defendant more than a year ago, on February 11, 2011. See
Docket No. 84. On March 28, 2011, Defendant filed a “Motion for 45 Day Extension of Time to
Answer Untimely Interrogatories.” Docket No. 68. That Motion stated in part:
Plaintiff served upon Defendant Interrogatories that were time
barred by the Court’s scheduling order. Defendant requests a 45
day extension to answer the interrogatories. This Motion is not to
intentionally delay but Plaintiff did not request the Court’s
permission to file untimely discovery and Defendant has
commitments for the next 25 days that require all his available
time.
Docket No. 68, p. 1.
Thus, Defendant plainly did not argue that he should not be required to answer the
allegedly “untimely” discovery at all; he argued only that he needed an extension of time to
respond. Furthermore, the referenced Motion sought an extension of time for Defendant to
answer the very discovery at issue here. That Motion for Extension was granted by Judge
Trauger in her Order entered July 25, 2011. In other words, Judge Trauger granted Plaintiff an
additional 30 days from the entry of her Order (to August 24, 2011) in which to respond to the
Second Set of Interrogatories and Requests for Production of Documents.
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For Defendant now to claim that he did not respond to Plaintiff’s Second Set of
Interrogatories and Requests for Production of Documents because they were untimely is
nothing short of absurd.
To make a long story short, this action was filed April 28, 2010. Defendant has
attempted to delay the proceedings at essentially every turn. Approximately 10 months ago,
Judge Trauger ordered Defendant to respond to “all outstanding discovery” on or before August
24, 2011. When Plaintiff reported to the Court that Defendant had not so responded, Defendant
told the Court that he had so responded. When the Court sought to hold a Hearing on this issue,
Defendant stated that he could not be available for approximately 4 months. When he did show
up at the Hearing, he gave an outrageous excuse for not responding to the Second Set of
Interrogatories and Requests for Production of Documents. Insofar as the record shows, as of the
date of the submission of this Report and Recommendation, Defendant still has not responded to
the Second Set of Interrogatories and Requests for Production of Documents.
The Court has previously discussed the appropriate standards for sanctions in such a
situation, and that discussion will not be repeated here. Docket No. 104. Defendant has
completely failed to comply with Judge Trauger’s Order entered July 25, 2011. Furthermore, he
misrepresented to the Court that discovery was complete and that he “answered all Admissions
and Interrogatories.” When called upon to explain his actions in open Court, he told a
completely unbelievable story.
For the foregoing reasons, the undersigned recommends that a default be entered against
Defendant Michael L. Carrington.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14)

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days after service of this Report and Recommendation in which to file any written objections to
this Recommendation with the District Court. Any party opposing said objections shall have
fourteen (14) days after service of any objections filed to this Report in which to file any
response to said objections. Failure to file specific objections within fourteen (14) days of
service of this Report and Recommendation can constitute a waiver of further appeal of this
Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L. Ed. 2d 435 (1985),
reh’g denied, 474 U.S. 1111 (1986); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.

E. Clifton Knowles
United States Magistrate Judge

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