United States District Court, E.D. North Carolina, Western Division
VERNIECEE WHITAKER AVENT and the ESTATE OF LUCINDA ALSTON WHITAKER, Plaintiffs,
STATE FARM FIRE AND CASUALTY COMPANY, Defendant.
E. Gates, United States Magistrate Judge
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
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).
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.
APPLICABLE LEGAL PRINCIPLES
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
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).
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))).
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.
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).
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).
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
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)).
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.
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.
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
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 ...