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Pritchard v. Automobile Insurance Company of Hartford Connecticut

United States District Court, W.D. North Carolina, Charlotte Division

February 3, 2017



          David C. Keesler United States Magistrate Judge.

         THIS MATTER IS BEFORE THE COURT on Defendant's “Renewed Motion For Sanctions For Failure To Appear For Depositions…” (Document No. 41); and what the Court construes as pro se Plaintiff J.P. Pritchard's “Motion To Withdraw Consent To Magistrate Judge Jurisdiction” (Document No. 52). The parties have consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(b), and these motions are ripe for disposition. See (Document Nos. 11 and 13). Having carefully considered the motions and the record, the undersigned will grant the motion for sanctions, and recommend that the motion to withdraw consent be denied by a District Court Judge.


         This lawsuit's origin involves a “severe storm of wind and rain” that occurred on April 16, 2011. (Document No. 1-1, p.2). As a result of the storm, Plaintiff Iris K. Pritchard (“Mrs. Pritchard”) and Plaintiff Joseph P. Pritchard (“Mr. Pritchard” or “J.P. Pritchard”) (together “Plaintiffs” or “Pritchards”) suffered significant damage to their property in Charlotte, North Carolina, including an exterior stairwell system, front porch, roof, portions of the exterior of the building, personal property on or around the porch and grounds, and bushes and shrubs. (Document No. 1-1, p.2). Plaintiff Iris Pritchard promptly gave notice of the damages to Defendant The Automobile Insurance Company Of Hartford, Connecticut (“Defendant” or “AIC”). (Document No. 1-1, p.4). Defendant is a wholly owned subsidiary of The Travelers Companies, Inc., which issued Iris Pritchard a homeowners' insurance policy (the “Policy”) effective June 1, 2004, allegedly insuring the property damaged in the storm. (Document No. 1-1, p.3). The Policy was in full force and effect at the time of the damage on April 16, 2011. (Document No. 1-1, p.4).

         Based on the foregoing, Plaintiffs filed a “Verified Complaint” (Document No. 1-3, 3:14-CV-177-RJC-DCK) in the Superior Court of Mecklenburg County, North Carolina, on or about March 13, 2014, against The Travelers Companies, Inc. (“Travelers”) and AIC. The Complaint appears to assert claims for breach of contract/failure to pay insurance proceeds, and unfair and deceptive trade practices. (Document No. 1-3, 3:14-CV-177-RJC-DCK). The original action was removed to this Court on or about April 11, 2014, based on complete diversity of the parties and an amount in controversy exceeding $75, 000.00. (Document No. 1, 3:14-CV-177-RJC-DCK).

         Following multiple joint motions for extensions of time related to Plaintiffs' age and poor health, Plaintiffs ultimately filed a “Stipulation of Dismissal Without Prejudice” in the original action on May 1, 2015. See (Document Nos. 30-36, 3:14-CV-177-RJC-DCK).

         On or about July 29, 2015, Plaintiffs filed another “Verified Complaint” in the Superior Court of Mecklenburg County, North Carolina, which is very similar to the original Complaint. (Document No. 1-1). However, the new Complaint only names AIC as Defendant. Id. Defendant again removed the action to this Court based on diversity. (Document No. 1). After removal, this case was originally assigned to Chief Judge Frank D. Whitney and Magistrate Judge David C. Keesler on August 31, 2015. The instant action has involved the same attorneys, and essentially the same parties and claims, as the prior action before this Court.

         On October 14, 2015, the parties' “Certification And Report Of F.R.C.P. 26(f) Conference And Discovery Plan” (Document No. 11) was filed. The “Certification …” states that the “lawsuit is fairly straight-forward and primarily involves the amount payable under Mrs. Pritchard's policy relating to a cast iron stairwell that was damaged by a falling tree as well as the reason for delays in AIC's payment of the undisputed portion of the Pritchards' claim.” (Document No. 11, p.1). Notably, the parties proposed thirty (30) hours of oral deposition per party (excluding expert depositions), but did not describe any anticipated difficulties completing discovery. (Document No. 11). The parties stipulated to Magistrate Judge jurisdiction. (Document Nos. 11, 13).

         On October 26, 2015, a “Pretrial Order And Case Management Plan” (Document No. 15) was issued by the Court. The “…Case Management Order” included the following deadlines: discovery completion - April, 8, 2016; ADR report - April 22, 2016; motions deadline - May 6, 2016; and trial - October 24, 2016. (Document No. 15). Similar to the parties' original action before this Court, there have been multiple requests for extension of time allowed due to Plaintiffs' alleged difficulties related to age and/or health. See (Document Nos. 17, 18, 19, 20, 21, and 22).

         Notably, Plaintiff J.P. Pritchard sent an ex parte communication to the Honorable Robert J. Conrad, Jr., on or about March 31, 2016, requesting that Plaintiffs be excused from participating in mediation or depositions. (Document No. 37, 3:14-CV-377-RJC-DCK). Mr. Pritchard's letter referenced the original case, but was construed by the undersigned as seeking relief in the instant action. See (Document No. 38, 3:14-CV-377-RJC-DCK). The undersigned issued an Order on April 14, 2016, advising Mr. Pritchard that “[b]arring extraordinary circumstances, it is unlikely Plaintiffs will be excused from the Court's mediation requirement and/or from cooperating fully in the discovery process.” Id. The Court's Order also advised Mr. Pritchard that if he sought relief in the current action “he should file an appropriate motion with the assistance of his counsel in accordance with the Federal Rules of Civil Procedure and the Local Rules of this Court.” Id. The Court noted that important deadlines in this case were “imminent.” Id.

         Defendant scheduled depositions and retained a court reporter for April 29, 2016; however, neither the Pritchards nor their counsel appeared. (Document No. 24, pp.2-3).

         On May 23, 2016, the undersigned granted Plaintiffs' “Motion For Extension Of Deadlines” (Document No. 21), and the case deadlines were extended as follows: discovery completion - June 27, 2016; mediation report - June 27, 2016; and dispositive motions - June 27, 2016. (Document No. 22). Despite the extensions, neither dispositive motions nor a mediation report were timely filed, and the parties failed to complete anticipated depositions.

         On July 11, 2016, a mediation report was finally docketed indicating that the parties had participated in a mediation on June 30, 2016, but failed to resolve their dispute. (Document No. 23).

         On July 19, 2016, Defendant filed a “Motion For Sanctions For Failure To Appear For Depositions” (Document No. 24) regarding Plaintiffs failure to appear for the depositions scheduled for April 29, 2016. By its motion, Defendant argued that Plaintiffs will never voluntarily sit for depositions, and therefore, this action should be dismissed and Plaintiffs should be ordered to pay the expenses for a missed deposition and the pending motion. (Document No. 24). On August 3, 2016, Plaintiffs' filed a “Motion For Protective Order As To Depositions” (Document No. 28) and a “Motion For Protective Order As To Plaintiffs' Exhibits” (Document No. 30). These motions were fully briefed, except Plaintiffs failed to file reply briefs in support of the motions, or notices of intent not to reply, as required by Local Rule 7.1 (E).

         Following careful review of the motions for sanctions and for protection, the Court issued an Order (Document No. 36) on September 7, 2016 that: denied without prejudice Defendant's “Motion For Sanctions For Failure To Appear For Depositions” (Document No. 24); denied Plaintiffs' “Motion For Protective Order As To Depositions” (Document No. 28); and granted Plaintiffs' “Motion For Protective Order As To Plaintiffs' Exhibits” (Document No. 30). Regarding Plaintiff's “Motion For Protective Order As To Depositions” (Document No. 28) the undersigned provided the following observations and direction.

Plaintiffs primarily assert that they are both in poor health and that providing testimony will be difficult. Nowhere, however, have Plaintiffs suggested that they are unable or unwilling to attend a jury trial of this matter which they expect to last three (3) days. In fact, Plaintiffs' motion for protective order acknowledges the unusual situation before the Court of Plaintiffs who contend they should be protected from deposition testimony even though they are expected to testify as witnesses at trial. (Document No. 28, p.3).
After careful review of the pending motions and the history of this litigation, the undersigned will deny Plaintiffs' “Motion For Protective Order As To Depositions” (Document No. 28). The undersigned agrees the motion is untimely, and not well-supported. As such, the Court will require Plaintiffs to participate in at least one (1) deposition; however, the undersigned directs Defendant to allow for reasonable accommodations as it has suggested in responding to the motion for protection. See (Document No. 35, p.5). Such accommodations may include taking the depositions at a certain time of day, at the Pritchards' home or attorney's office, and over multiple days. Id. The undersigned further encourages Defendant to only seek to depose Mr. Pritchard, unless it can identify significant prejudice it will suffer if unable to depose Mrs. Pritchard. If Mrs. Pritchard is not deposed, she should not expect to testify at trial. . . .
If appropriate, Defendant may file a renewed motion at a later date and the Court may reconsider both costs and fees, as well as dismissal, if Plaintiffs fail to participate fully in the remainder of this litigation. The undersigned respectfully advises Plaintiffs that their refusal to be deposed, and their failure to abide by certain deadlines in the case and the rules of this Court, all suggest a lack of good faith in pursuing this lawsuit. Further failures to abide by the Rules will likely lead to sanctions.

(Document No. 36, pp.6-7). The Court then ordered that deposition testimony be completed by September 30, 2016, and that the parties be prepared to attend a final pretrial conference on October 13, 2016. (Document No. 36, p.7).

         On September 29, 2016, two (2) weeks before the scheduled final pretrial conference, Plaintiffs' counsel, Fenton T. Erwin, Jr., filed a “Motion To Be Allowed to Withdraw As Counsel” (Document No. 37). That same day, the undersigned held a telephone conference regarding the status of the case, the motion to withdraw, and discovery issues. As a result, the undersigned issued an Order on September 29, 2016 ordering that Plaintiffs and counsel for both parties appear for a Status and Motions Hearing on October 5, 2016. (Document No. 38) (emphasis added). The Court noted that “discovery, including deposition testimony, is due to be completed on or before September 30, 2016, ” and that this matter was scheduled for a final pretrial conference on October 13, 2016, and a trial on or about October 24, 2016. Id.

         On October 4, 2016, Defendant's “Renewed Motion For Sanctions For Failure To Appear For Depositions…” (Document No. 41) was filed seeking costs and fees and dismissal based on Plaintiffs second failure to appear for depositions, on September 30, 2016.

         A Status and Motions Hearing was held on October 5, 2016, and attended by counsel for both sides; however, Plaintiffs failed to appear. Mr. Pritchard did send a fax to the Court on or about October 4, 2016, stating that the hearing conflicted with a medical appointment and he would not be present. (Document No. 45). Later, Mr. Pritchard submitted a letter to the undersigned which states in most pertinent part that his counsel, Mr. Erwin, had offered on October 4, 2016 to pick up Mr. Pritchard and his wife and take them to the hearing on October 5th. (Document No. 49, p.2). That letter suggests that Plaintiffs were unwilling to attend the hearing, not unable to attend. Id. Moreover, Plaintiffs failed to ever respond to ...

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