United States District Court, E.D. North Carolina, Western Division
E. Gates United States Magistrate Judge
case comes before the court on the motion (D.E. 32) by
plaintiff John Archie Cain ("plaintiff) for sanctions
against defendants Wal-Mart Stores, Inc., Wal-Mart Stores
East, L.P., and Wal-Mart Associates (collectively
"Wal-Mart") for Wal-Mart's alleged failure to
comply with this court's 22 March 2018 Order (D.E. 30).
For the reasons and on the terms set forth below, plaintiffs
motion will be allowed in part and denied in part.
personal injury case arises out of an incident occurring in a
Wal-Mart store in Hope Mills, North Carolina, store #2929
("the store" or "store #2929"), on 18
March 2013 ("the incident"). Compl. (D.E. 1-1)
¶¶ 5, 8. Plaintiff entered the store to purchase,
among other things, a 50-pound bag of Ol' Roy Dog Food.
Id. ¶ 10. The 50-pound bags of dog food were
piled in stacks and one stack was approximately 3 feet high.
Id. ¶ 12. When plaintiff bent down to pick up a
bag from the 3-foot-high stack, another 50-pound bag of dog
food fell from an adjacent 8- foot-high stack and landed on
plaintiffs head, neck, and back, causing severe and permanent
injury. Id. ¶¶ 14, 16.
complaint, plaintiff asserted claims for negligence
(id. ¶¶ 30-35) and unfair and deceptive
trade practices (id. ¶¶ 36-44). The claim
for unfair and deceptive trade practices was dismissed by the
court. 17 June 2016 Ord. (D.E. 13). Plaintiff seeks punitive
damages (Compl. ¶¶ 45-58) and compensatory damages
(id. at 11-12).
filed three discovery motions in this case. On 26 May 2017,
plaintiff filed his first motion to compel (D.E. 17) seeking
production of supplemental responses to various
interrogatories and production requests, responses to several
specified topics for a Rule 30(b)(6) deposition of Wal-Mart,
and extension of the deadline in the scheduling order (D.E.
15) to complete discovery. On 30 May 2017, plaintiff filed
his second motion (D.E. 18), duplicative of the relief sought
in the first motion. Wal-Mart did not file a response to
either motion by the applicable deadline. On 12 July 2017,
plaintiff filed a third motion (D.E. 21) which sought
production by Wal-Mart of initial disclosures and extension
of deadlines in the scheduling order. Wal-Mart timely
responded to plaintiffs third motion.
March 2018, the court entered an order allowing in part and
denying in part plaintiffs first motion to compel, denying
plaintiffs second motion to compel as moot, and allowing in
part and denying in part plaintiffs third motion to compel.
22 Mar. 2018 Order (D.E. 30). The 22 March 2018 Order
directed Wal-Mart to serve no later than 12 April 2018
supplemental responses to Interrogatories Nos. 1, 2, 3, 4, 5,
6, 8, 9, 10, 11, and 12, and Requests for Production of
Documents Nos. 1, 2, 3, and 4. See generally 22 Mar.
2018 Order. The court ordered that each party to bear its own
expenses incurred on the motions. Id. at 29.
undisputed that Wal-Mart did not comply with the 12 April
2018 production deadline in the 22 March 2018 Order. Defense
counsel acknowledge that two of them received the court's
CM/ECF notification of the 22 March 2018 Order, but
overlooked the notification entirely. Wal-Mart's Mem.
(D.E. 35) 3 ("Counsel admits that the Court Order to
Compel was overlooked by counsel upon its CM/ECF service. It
arrived properly in both lawyers' email boxes but was
simply missed on the day of receipt.").
May 2018, plaintiffs counsel sent a letter to defense counsel
inquiring about the status of the supplementations. 4 May
2018 Ltr. (D.E. 32-6); Pl's Mot. ¶ 8. Defense
counsel reports that receipt of this letter was overlooked as
well. Wal-Mart's Mem. 3 ("Since the lawyers did not
know exactly when the Order was issued, they were on no
special look-out and remained unaware of it until it was
pointed out by the Plaintiffs lawyer. Even then, the first
letter concerning it was missed in the crush of
May 2018, plaintiffs counsel sent a second letter to defense
counsel inquiring about the status of the production,
accompanied by copies of the 22 March 2018 Order and
plaintiffs counsel's 4 May 2018 letter. 25 May 2018 Ltr.
(D.E. 32-7); Pl's Mot. ¶ 10. Defense counsel did not
respond to the 25 May 2018 letter (Pl's Mot. ¶ 11),
although they contend that at that time they began to obtain
the materials required to be produced by that Order
(Wal-Mart's Mem. 4). At ¶ 29 May 2018 deposition,
plaintiffs counsel questioned defense counsel about the
status of the production and was not given a concrete answer.
Pl's Mot. ¶ 12.
June 2018, defense counsel emailed plaintiff with partial
responses to the discovery requests. Id. ¶ 13.
Defense counsel argues that the partial production was an
attempt to cure the situation and not an indication that
Wal-Mart did not intend to comply with all of the 22 March
2018 Order's directives. Wal-Mart's Mem. 4.
July 2018, plaintiff filed the instant motion asking the
court to: (1) order Wal-Mart to produce the discovery ordered
in the 22 March 2018 Order; (2) strike Wal-Mart's second
and third defenses in the answer to the
complaint; (3) enter a default judgment against
Wal-Mart; (4) treat Wal-Mart's failure to comply with the
22 March 2018 Order as contempt of court; and (5) order
Wal-Mart to pay the expenses incurred by plaintiff as a
result of Wal-Mart's noncompliance. Pl's Mot. 6. In
response to the motion, Wal-Mart states that all outstanding
discovery responses have now been provided and urges the
court to deny plaintiffs motion.
APPLICABLE LEGAL PRINCIPLES
Federal Rules of Civil Procedure enable parties to obtain
information by serving requests for discovery on each other,
including interrogatories and requests for production of
documents. See generally Fed. R. ...