United States District Court, E.D. North Carolina, Western Division
B. Jones, Jr. United States Magistrate Judge.
matter is before the court upon the motion of Defendant CMH
Homes, Inc. ("Defendant") to compel discovery.
[DE-17]. Plaintiff Wilton Loyd King ("Plaintiff) has not
responded to the motion and the time for doing so has
expired. Defendant's motion is ripe for decision. For the
reasons set forth below, Defendant's motion is ALLOWED.
29, 2016, the Clerk of Court entered an Order for Discovery
Plan in this matter. [DE-10]. Within the order, the Clerk of
Court directed that initial disclosures "must be made
within fourteen (14) days after the Rule 26(f) conference
unless (1) a different time is set by stipulation of parties
or court order, or (2) a party objects during the 26(f)
conference and states the objection and the response thereto
in the discovery plan." Id. at 1. The parties
were also notified that "[f]ailure to disclose
information required by Rule 26(a) or 26(e)(1) may subject
the offending party or parties to sanctions pursuant to Rule
37, F.R.Civ.P." Id.
September 12, 2016, Defendant filed its Rule 26(f) Report.
[DE-11]. Defendant filed an individual report because
Plaintiffs counsel failed to respond to certain revisions to
the proposed discovery plan by the court's deadline.
Id. at 1; [DE-12]. Defendant's report provided
in part: "Defendant proposes, and Plaintiff agrees, that
the parties will exchange by September 19, 2016 the
information required by Rule 26(a)(1)." [DE-11] at 1. On
September 20, 2016, the court ordered Plaintiffs counsel to
notify the court of Plaintiff s position as to
Defendant's Rule 26(f) Report within 14 days. [DE-12].
Plaintiffs counsel did not respond with respect to
Defendant's Rule 26(f) Report as ordered nor did
Plaintiff file a separate Rule 26(f) Report. [DE-14]. The
court entered its Scheduling Order on October 4, 2016, in
which it directed that the parties' initial disclosures
under Rule 26(a)(1) are due by October 18, 2016. Id.
at 1. Plaintiffs counsel subsequently responded acknowledging
that Defendant's Rule 26(f) Report was "acceptable
to the Plaintiff." [DE-15].
November 10, 2016, Defendant's counsel sent Plaintiffs
counsel a letter reminding him of the deadline to make
initial disclosures and advising that Defendant had not
received Plaintiffs initial disclosures. Ex. A [DE-18-1]. The
letter to Plaintiffs counsel appears to have been mailed to
an address which differs from the current record address of
Plaintiff s counsel. According to its briefing, however,
Defendant's counsel followed the letter with voice-mail
messages to Plaintiffs counsel. [DE-18] at 3-4. On February
15, 2017, Defendant's counsel wrote to Plaintiffs counsel
by e-mail and requested Plaintiff make his initial
disclosures. Ex. B [DE-18-2].
March 1, 2017, not having received Plaintiffs Rule 26(a)(1)
initial disclosures, Defendant filed its motion to compel.
[DE-17]. Plaintiff did not respond to Defendant's motion.
Rule 26(a)(1) of the Federal Rules of Civil Procedure,
"a party must, without awaiting a discovery request,
provide to the other parties" certain information
including identities of individuals with discoverable
information, copies or descriptions of relevant documents,
and a computation of alleged damages. The rule exempts
certain types of proceedings, none of which is applicable
here. See Fed. R. Civ. P. 26(a)(1)(B). The rule
provides further that "[a] party is not excused from
making its disclosures because it has not fully investigated
the case or because it challenges the sufficiency of another
party's disclosures or because another party has not made
its disclosures." Fed.R.Civ.P. 26(a)(1)(E). The
requirement of initial disclosures "seeks to accelerate
the exchange of basic information about the case and to
eliminate the paper work involved in requesting such
information." Long v Libertywood Nursing Ctr.,
No. 1:13CV315, 2014 WL 3696257, at *2 (M.D. N.C. July 23,
2014) (unpublished) (citations and quotation marks omitted).
"Voluntary disclosures streamline discovery and thereby
avoid the practice of serving multiple, boilerplate
interrogatories and document requests, which themselves bring
into play a concomitant set of delays and costs."
Id. (citations and quotation marks omitted).
Rule 37(a)(3)(A), "[i]f a party fails to make a
disclosure required by Rule 26(a), any other party may move
to compel disclosure and for appropriate sanctions."
Thus, when a party fails to make its initial disclosures, a
court may order compliance with the rule. See AMEC
Env't & Infrastructure, Inc. v. Structural Assocs.,
Inc., No. 7:13-CV-21-BO, 2014 WL 4084491 (E.D. N.C. Aug.
8, 2014) (unpublished); Pledger v. UHS-Pruitt Corp.,
No. 5:12-CV-484-F, 2013 WL 5603259 (E.D. N.C. Oct. 11, 2013)
(unpublished); Smith v. Coulter, No. 5:ll-CV-736-BO,
2013 WL 1498962 (E.D. N.C. Apr. 11, 2013) (unpublished).
Here, Plaintiff failed to make initial disclosures by the
deadline to which the parties agreed, by the court-ordered
deadline, or any time since those deadlines passed.
Additionally, it appears Defendant's counsel attempted to
confer with Plaintiffs counsel to resolve this matter without
involving the court but has received no response.
See Fed. R. Civ. P. 37(a)(1) (requiring
certification of efforts to resolve nondisclosure before
filing motion to compel). Although there appears to be a
discrepancy in the address to which counsel's November 10
letter may have been mailed, there appears to be no such
issue with counsel's several other attempts to confer.
Accordingly, Defendant's motion to compel is ALLOWED and
Plaintiff is hereby ordered to make his Rule 26(a)(1) initial
disclosures no later than April 21.2017.
also asks the court to impose financial sanctions on
Plaintiff for failure to make timely initial disclosures. In
accordance with Rule 37, "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); see
also Fed. R. Civ. P. 37(c)(1) (stating that if a party
fails to provide initial disclosures, "the court, on
motion and after giving an opportunity to be heard: (A) may
order payment of the reasonable expenses, including
attorney's fees, caused by the failure; (B) may inform
the jury of the party's failure; and (C) may impose other
appropriate sanctions"). The rule applies even "if
the disclosure or requested discovery is provided after the
motion was filed." Fed.R.Civ.P. 37(a)(5)(A).
Accordingly, Plaintiff is ordered to show cause in writing to
the court no later than April 21. 2017. why he
should not be required to pay reasonable expenses, including
attorney's fees, that Defendant has incurred in filing
the motion to compel. See Coulter, 2013 WL 1498962,
motion to compel [DE-17] is ALLOWED. Plaintiff is ORDERED to
provide his Rule 26(a)(1) initial disclosures to Defendant no
later than April 21.2017. Further, Plaintiff is
ORDERED TO SHOW CAUSE in writing to the court no later than
April 21.2017. why he should not have to pay the