Cain v. Wal-Mart Stores, Inc.

          ORDER

          James E. Gates United States Magistrate Judge

         This 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"^[1]) 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.

         I. BACKGROUND

         This 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.

         In his 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).

         Plaintiff 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.

         On 22 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.

         It is 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.").

         On 4 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 business.").

         On 25 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.

         On 20 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.

         On 17 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^[2]; (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.

         II. APPLICABLE LEGAL PRINCIPLES

         The 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. ...