United States District Court, W.D. North Carolina, Charlotte Division
IRIS K. PRITCHARD, and JOSEPH P. PRITCHARD, Plaintiffs,
THE AUTOMOBILE INSURANCE COMPANY OF HARTFORD CONNECTICUT, Defendant.
MEMORANDUM AND RECOMMENDATION AND ORDER
C. Keesler United States Magistrate Judge.
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.
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).
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,
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).
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.
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.
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
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
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).
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.
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).
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).
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).
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.
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,
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 ...