United States District Court, E.D. North Carolina, Southern Division
B. Jones, Jr. United States Magistrate Judge
matter comes before the court on Plaintiffs bill of costs
[DE-54], and the following pending motions: (1)
Defendant's motion to extend time to complete discovery
[DE-53], (2) Plaintiffs motion to show cause [DE-56], and (3)
Plaintiffs motion to compel [DE-57]. The matters raised
within the motions and subsequent briefing are ripe for
Defendant's Motion to Extend Time and Plaintiffs Motion
to Show Cause
December 30, 2016, Defendant moved the court to extend the
time to complete discovery to January 31, 2017. Def.'s
Mot. [DE-53]. Defendant seeks an extension of time in order
to allow Plaintiff additional time to review supplementations
to Defendant's discovery responses which were provided to
Plaintiff four days before the conclusion of discovery.
Id. Plaintiff objects to the motion and moves the
court to hold Defendant and Defendant's counsel in
contempt of the scheduling order entered in this case and
other orders of the court. Pl's Resp. [DE-55]; Pl's
Mot. [DE-56]. The basis of Plaintiff s motion to show cause
appears to be Defendant's request for additional time for
discovery and what Plaintiff contends to be outstanding
discovery requests. Pl's Mot. [DE-56].
review of Defendant's motion for an extension of time,
the court finds the motion should be allowed. However, as the
additional time sought by Defendant has elapsed,
Defendant's motion is denied as moot. While Plaintiff is
correct that the court has admonished the parties not to be
dilatory in pursuing discovery, Defendant's motion was
timely filed and appears to be supported by good cause and
not made for an improper purpose. Fed.R.Civ.P. 6(b).
Plaintiff fails to identify any order with which Defendant
has not complied that would support a finding of contempt.
See Cromer v. Kraft Foods N. Am., Inc., 390 F.3d
812, 821 (4th Cir. 2004) ("A court may impose sanctions
for civil contempt to coerce obedience to a court order or to
compensate the complainant for losses sustained as a result
of the contumacy.") (internal quotation marks and
citation omitted). To the extent Plaintiffs motion may be
construed as seeking sanctions under Rule 37, Plaintiff has
not obtained any order compelling Defendant to respond to
Plaintiffs discovery and accordingly cannot show
Defendant's noncompliance with such an order.
See Fed. R. Civ. P. 37(b). Accordingly, Plaintiffs
motion to show cause is denied.
Plaintiffs Motion to Compel
moves the court to compel Defendant to produce several
documents which Plaintiff has described in his motion.
Pl's Mot. [DE-57]. Plaintiff has neither filed a
memorandum setting forth argument in support of his motion
nor has Plaintiff included with his motion a copy of the
discovery requests at issue or Defendant's alleged
incomplete responses or objections thereto. See Id.
Local Civil Rule 7.1 specifically provides that
[n]o discovery motion will be considered by the court unless
the motion sets forth or has attached thereto, by item, the
specific question, interrogatory, etc., with respect to which
the motion is filed, and any objection made along with the
grounds supporting or in opposition to the objection.
Local Civ. R. 7.1(c)(2). Plaintiff has failed to attach to
his motion to compel any specific discovery request or any
incomplete or allegedly evasive discovery response. Rather,
Plaintiffs motion only describes in general fashion documents
he contends are outstanding. See Pl's Mot.
[DE-57]. Plaintiffs paraphrasing of his discovery requests
does not comply with the local rules. See Rocha v.
Coastal Carolina Neuropsychiatric, No. 7:12-CV-2-D, 2013
WL 1912864, at *2 (E.D. N.C. May 8, 2013) (unpublished).
Plaintiffs failure alone will support denial of the motion.
See United States v. $307, 970.00, in U.S. Currency,
156 F.Supp.3d 708, 722 (E.D. N.C. 2016); Artis v. N.C
Dep't of Health & Human Servs., No.
5:11-CV-748-BO, 2013 WL 3280240, at *3 (E.D. N.C. June 27,
on the materials the parties have submitted to the court
related to this motion, the court is unable to discern with
the necessary particularity the discovery requests that are
at issue and the grounds for seeking or objecting to such
requests. Out of an abundance of caution, the court has
reviewed the written discovery requests Plaintiff filed with
the court on September 1, 2016. Pl's Discovery Reqs.
[DE-41]. However, assuming these requests are the ones at
issue in the motion, Plaintiff has failed to provide
Defendant's alleged inadequate responses for
consideration, and the court notes that there appear to be no
document requests corresponding to several of the documents
Plaintiff describes in his motion as being outstanding.
Compare Pl's Discovery Reqs. [DE-41],
with Pl's Mot. [DE-57] at 2 ¶ 8. The court
is loathe to assume that these earlier-filed document
requests are indeed the ones at issue here, or that Defendant
has failed to provide responsive documents without asserting
acceptable grounds for doing so and should therefore be
compelled to produce the requested documents. Finally,
Defendant has responded that he either has no possession or
control of many of the requested documents or that responsive
materials have already been provided. See Def.'s
Resp [DE-59] at 2 ¶¶ 6-7. Accordingly, Plaintiffs
motion to compel is denied.
Plaintiffs Bill of Costs
has submitted a bill of costs as directed by the court after
finding that Defendant is subject to paying reasonable
expenses pursuant to Rule 37(a)(5)(A). Dec. 28, 2016 Order
[DE-52]; Pl's Mem. [DE-54]. Defendant responded in
opposition to Plaintiff s bill of costs. Def.'s Resp.
[DE-58]. The court enjoys broad discretion in imposing
sanctions for discovery violations. See Cook v.
Lewis, No. 5:12-CT-3219-D, 2014 WL 2894999, at *4 (E.D.
N.C. June 25, 2014) (unpublished); SAS Inst. Inc. v.
World Programming Ltd., No. 5:10-CV-25-FL, 2014 WL
1760960, at *4 (E.D. N.C. May 1, 2014) (unpublished);
Wilson v. ELRAC, Inc., No. 5:12-CV-660-F, 2013 WL
5592882, at *12 (E.D. N.C. Oct. 10, 2013) (unpublished).
Review of Plaintiff s bill of costs reveals that it lacks the
required specificity and supportive documentation to support
the award sought. A pro se litigant is not free from
the obligation of particularizing his costs incurred in order
to establish a basis on which the court may rely to fashion
an appropriate award of reasonable expenses. Mazza v.
District Council for N. Y., Nos. 00CV6854(CLP),
01CV6002(CLP), 2010 WL 2976674, at *2 (S.D.N.Y. July 22,
2010) (unpublished) (citations omitted). Although Plaintiff
has failed to provide the court with sufficient documentation
of the expenses for which he seeks reimbursement, the court
finds that denying Plaintiff any recovery would
"disserve the purpose of the expense-shifting provision
of Rule 37." Mazza, 2010 WL 2976674, at *3
(internal quotation marks and citations omitted). Based on a
review of the record, and the court's knowledge of the
case, the court finds that Plaintiff is entitled to an award
in the amount of $58.00. This amount will serve the policy
interests at issue, consists of the court's estimate of
the cost of round-trip car travel to the courthouse from
Plaintiffs record address in Whiteville, North Carolina, and
copy costs associated with Plaintiffs motion, for which the
Court imposed sanctions. See Id. (awarding a
reasonable estimate of costs to a. pro se plaintiff
pursuant to Rule 37 despite the plaintiffs lack of adequate
documentation). The Court declines to include any other
claimed expenses because Plaintiff has failed to provide an
adequate basis to justify such an award. Defendant shall
tender $58.00 to Plaintiff as soon as possible but no later
than May 5, 2017.
foregoing reasons, Defendant's motion to extend time to
complete discovery [DE-53] is DENIED AS MOOT, Plaintiffs
motion to show cause [DE-56] is DENIED, and ...