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Avent v. State Farm Fire and Casualty Co.

United States District Court, E.D. North Carolina, Western Division

June 20, 2017



          James E. Gates, United States Magistrate Judge

         This case comes before the court on the motion (D.E. 39) filed by defendant State Farm Fire and Casualty Company ("defendant") to deem admitted requests for admission it served on plaintiffs Verniecee Whitaker Avent ("Avent") and the estate of Lucinda Alston Whitaker ("the Estate") (collectively "plaintiffs") and to compel discovery responses. No opposition to the motion has been filed. For the reasons set forth below, the motion will be allowed in part and denied in part.

         I. BACKGROUND

         This case arises out of a fire on 15 April 2013 at a home located at 707 Hammond Street in Rocky Mount, North Carolina ("707 property"). Am. Compl. (D.E. 19) 1-3 ¶¶ 1-3. Defendant insured the home and plaintiffs claim that defendant has failed to fully compensate them for the loss of dwelling, personal property, and living expenses incurred. Id. at 3 ¶ 5. Plaintiffs contend that they are owed $28, 492.61 in replacement costs for personal property, $78, 578.00 for repairs, and $29, 400.00 in living expenses. Id. at 10, Claim #6. Defendant contends that its payments to plaintiffs in an amount totaling $224, 969.47 fully compensated plaintiffs for their losses. See generally Def.'s Ans. (D.E. 21).

         On 24 January 2017, defendant served Avent with its first set of interrogatories, first requests for production of documents, and first requests for admission. Mot. ¶ 1; Disc. Reqs. (D.E. 39-1). Pursuant to Fed.R.Civ.P. 5(b)(2)(C), 6(d), 33(b)(2), 34(b)(2)(A), and 36(a)(3), Avent's responses to the discovery requests were required to be served by 27 February 2017. Mot. ¶ 3. On 27 February 2017, Avent filed with the court her responses to the interrogatories served by defendant (D.E. 34), but did not respond to the requests for production of documents or requests for admission. On 3 March 2017, defendant's counsel sent Avent a letter advising her of alleged deficiencies in her interrogatory answers and that it had not received responses to its requests for admission or requests for production of documents. 3 Mar. 2017 Ltr. (D.E. 39-2). Avent did not respond to the letter. Mot. ¶ 4. On 20 April 2017, defendant filed the instant motion. Plaintiffs did not respond to the motion.


         The Federal Rules of Civil Procedure enable parties to obtain information by serving requests for discovery on each other, including interrogatories, requests for production of documents, and requests for admission. See generally Fed. R. Civ. P. 26-37. Rule 26 provides for a broad scope of discovery:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1).

         The district court has broad discretion in determining relevance for discovery purposes. Seaside Farm, Inc. v. United States, 842 F.3d 853, 860 (4th Cir. 2016); Watson v. Lowcountry Red Cross, 974 F.2d 482, 489 (4th Cir. 1992). The party resisting discovery bears the burden of establishing the legitimacy of its objections. Eramo v. Rolling Stone LLC, 314 F.R.D. 205, 209 (W.D. Va. 2016) ("[T]he party or person resisting discovery, not the party moving to compel discovery, bears the burden of persuasion." (quoting Kinetic Concepts, Inc. v. ConvaTec Inc., 268 F.R.D. 226, 243 (M.D. N.C. 2010))); Brey Corp. v. LQMgmt, L.L.C, No. AW-11-cv-00718-AW, 2012 WL 3127023, at *4 (D. Md. 26 Jul. 2012) ("In order to limit the scope of discovery, the 'party resisting discovery bears the burden of showing why [the discovery requests] should not be granted."' (quoting Clere v. GCServs., LP., No. 3:10-cv-00795, 2011 WL 2181176, at *2 (S.D.W.Va. 3 June 2011))).

         Rule 33 governs interrogatories. Fed.R.Civ.P. 33. It provides that "[u]nless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts." Fed.R.Civ.P. 33(a)(1). Rule 33 requires that a party served with interrogatories answer each fully under oath to the extent that the party does not object to the interrogatory. A/. (b)(3). Objections not made timely are waived, subject to the court excusing the untimeliness for good cause. Id. (b)(4).

         Rule 34 governs requests for production of documents. A party asserting an objection to a particular request "must specify the part [to which it objects] and permit inspection of the rest." Fed.R.Civ.P. 34(b)(2)(C).

         Requests for admission served pursuant to Rule 36 are designed to narrow the range of issues for trial, and the rule provides that a party may serve any other party with a request for the admission of the truth of any relevant matter that relates to statements, opinions of fact, or the application of law to fact. Fed.R.Civ.P. 36(a)(1); Erie Ins. Prop. & Cas. Co. v. Johnson, 272 F.R.D. 177, 183 (S.D. W.Va. 2010) ('"Rule 36(a)'s primary purposes are to facilitate proof with respect to issues that cannot be eliminated from the case, and secondly, to narrow the issues by eliminating those that can be."' (quoting Frontier-Kemper Constructors, Inc. v. Elk Run Coal Co. 246 F.R.D. 522, 531 (S.D. W.Va. 2007) (internal citations omitted))). Rule 36 specifies the consequences of not serving timely responses:

A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney. A shorter or longer time for responding may be stipulated to under Rule 29 or be ordered by the court.

Fed. R. Civ. P. 36(a)(3).

         When a party withholds information on the basis of privilege, including work-product protection, he must expressly assert the privilege objection in response to the particular discovery request involved. Fed.R.Civ.P. 26(b)(5)(A). In addition, the party must serve with its discovery responses a privilege log in conformance with Rule 26(b)(5)(A). See id.

         Rule 37 allows for the filing of a motion to compel discovery responses. See Fed. R. Civ. P. 37(a)(3)(B). Rule 37 requires that a motion to compel discovery "include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action." Id(a)(1). Similarly, Local Civil Rule 7.1(c), E.D. N.C. requires that "[c]ounsel must also certify that there has been a good faith effort to resolve discovery disputes prior to the filing of any discovery motions." Local Civ. R. 7.1(c), E.D.N.C; see Jones v. Broadwell, No. 5:10-CT-3223-FL, 2013 WL 1909985, at *1 (E.D. N.C. 8 May 2013) (denying motion to compel which did not state that party complied with Rule 37(a) or Local Civil Rule 7.1(c)).

         In addition, Rule 37 requires that the moving party be awarded expenses when a motion to compel discovery is granted absent, among other circumstances, when the opposing party's opposition to the discovery was substantially justified or other circumstances would make an award of expenses unjust. Fed.R.Civ.P. 37(a)(5)(A). If a motion to compel is denied, expenses must be awarded to the person opposing the motion absent the foregoing circumstances. Id., (a)(5)(B). If a motion to compel is allowed in part and denied in part, the court may apportion the expenses for the motion. Id. (a)(5)(C).


         By its motion, defendant seeks an order deeming its requests for admission admitted and compelling plaintiffs to serve responses to the document production requests and supplemental answers to interrogatories. As an initial matter, because all of the discovery requests that are the subject of the motion were directed to Avent, and not to both Avent and the Estate collectively, the motion is DENIED to the extent it is directed to the Estate, and the Estate need not respond to the discovery requests.[1]

         Defendant has duly certified that it attempted to resolve this matter without court intervention (see Mot. ¶ 4), in addition to detailing its efforts to resolve the matter, as noted.

         Having failed to respond to defendant's motion, Avent does not contest the relief defendant seeks or the grounds advanced by defendant for it. Irrespective of the unopposed nature of the motion, the court finds that Avent has failed to comply with her discovery obligations under Rules 26, 33, 34, and 36. The court has reviewed defendant's discovery requests and cannot say, subject to the two exceptions noted below, that they are outside the permissible ...

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