United States District Court, W.D. North Carolina, Statesville Division
DAVID C. KEESLER, Magistrate Judge.
THIS MATTER IS BEFORE THE COURT on "Defendant's Motion To Compel Discovery Responses" (Document No. 43), and the "Third Party Defendant's Motion To Amend The Pleadings" (Document No. 44). These motions have been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b), and are ripe for disposition. Having carefully considered the motions, the record, and, applicable authority, the undersigned will grant the motion to compel and deny the motion to amend.
Marx Industries, Inc. ("Plaintiff" or "Marx") initiated this action on August 31, 2011, with the filing of a "Complaint" (Document No. 1-1) in the Superior Court of Caldwell County, North Carolina. Chestnut Ridge Foam, Inc. ("Defendant" or "CRF") timely removed the action to this Court on September 30, 2011. (Document No. 1). "Defendant's Motion To Dismiss Pursuant To Fed.R.Civ.P. 12(b)(2) And 12(b)(6)" (Document No. 3) was filed on October 7, 2011. Following the completion of some early discovery, the Honorable Richard L. Voorhees issued a "Memorandum and Order" (Document No. 21) denying "Defendant's Motion To Dismiss..." on October 12, 2012.
"Defendant's Answer Affirmative Defenses And Counterclaims To Complaint" (Document No. 22) were filed on October 26, 2012. Defendant's Counterclaims included claims against Third Party Defendant MTJ American, LLC ("MTJ" or collectively with Marx, "Plaintiffs"). (Document No. 26, pp.13-31). Third Party Defendant MTJ is an affiliate of Marx, and the two entities share common ownership, office space and management. (Document No. 22, p.15). "Third Party Defendant's Motion To Dismiss, Answer To Counterclaims And Affirmative Defenses" (Document No. 29) was filed on January 15, 2013.
The Court issued a "Pretrial Order And Case Management Plan" (Document No. 31) on February 20, 2013. In pertinent part the "Pretrial Order..." provided that:
All discovery shall be complete no later than September 15, 2013. Counsel are directed to initiate discovery requests and notice or subpoena depositions sufficiently in advance of the discovery completion deadline so as to comply with this Order. Discovery requests that seek responses or schedule depositions after the discovery completion deadline are not enforceable except by order of the court for good cause shown. The parties may consent to extensions of the discovery completion deadline so long as any such extension expires not later than ten (10) days prior to scheduled trial time.
(Document No. 31, pp.2-3). The "Pretrial Order..." also set October 15, 2013 as the deadline for dispositive motions and mediation, and stated that a trial will be scheduled for the "Statesville Trial Term beginning March 2014." (Document No. 31, pp.3-4).
On June 3, 2013, the day Plaintiff's expert witness report was due, Plaintiff filed a motion seeking an additional sixty (60) days to file its expert report. Noting Defendant's consent, the undersigned granted that motion with modification, allowing an additional thirty (30) days. (Document No. 34). The undersigned also advised the parties that "further adjustment of the case deadlines is unlikely, barring extraordinary circumstances." Id.
Plaintiff's "... Motion For Extension To Complete Discovery" (Document No. 35) was filed on Friday, September 13, 2013, two (2) days prior to the September 15, 2013 discovery deadline. Plaintiff's motion failed to allege or describe any "extraordinary circumstances" supporting an extension of the discovery deadline. See (Document Nos. 34 and 35). According to Plaintiff's motion, Plaintiff waited until August 15, 2013 to serve "Document Production Requests to Defendant Chestnut Ridge, " and Defendant "served discovery requests on Plaintiffs dated August 16, 2013." (Document No. 35, p.2). As such, both parties waited until nearly the latest date possible to serve discovery requests that could be completed by the September 15, 2013 discovery deadline.
On September 20, 2013, the undersigned issued an "Order" (Document No. 39) granting in part and denying in part "Plaintiff And Third Party Defendant's Motion For Extension To Complete Discovery" (Document No. 35) - the request to conduct depositions beyond the September 15, 2013 discovery deadline was denied; but the request to compel materials "properly sought sufficiently in advance of the discovery deadline" was allowed. (Document No. 39, p.7). In addition, the undersigned specifically ordered "that to the extent either party has not provided full and complete responses to discovery requests served on or about August 15-16, 2013, such responses shall be completed and/or supplemented on or before September 25, 2013." Id . (emphasis added). The undersigned also extended the dispositive motion deadline to October 22, 2013. (Document No. 39, p.8).
"Defendant's Motion To Compel Discovery Responses" (Document No. 43) was filed on October 7, 2013, and "Third Party Defendant's Motion To Amend The Pleadings" (Document No. 44) was filed on October 15, 2013. Both these motions have been fully briefed and are now ripe for disposition. In addition, the parties' cross motions for summary judgment were timely filed on October 22, 2013, and are also now ripe for disposition. (Document Nos. 48, 50, 52 and 54).
STANDARD OF REVIEW
Motion To Compel
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).
If the motion is granted - or if the disclosure or requested discovery is provided after the motion was filed - the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.
Fed.R.Civ.P. 37(a)(5)(A). Likewise, if a motion is denied, the Court may award reasonable expenses, including attorney's fees, to the party ...