United States District Court, E.D. North Carolina, Northern Division
B. Jones, Jr. United States Magistrate Judge.
matter is before the court on Defendants' motion
for protective order and notice of nonappearance [DE-77],
Plaintiffs second motion to extend discovery deadlines and
modify the scheduling order [DE-79], and Plaintiffs amended
motion to compel Bobbie J. Banner and Charles R. Kinsey III
to attend deposition and extend discovery and dispositive
motions deadlines [DE-83]. Responsive briefing is complete
[DE-84, -85, -86, -87], and the motions are referred to the
undersigned for decision [DE-88]. For the reasons that
follow, Defendants' motion for protective order and
Plaintiffs motion to extend time are allowed and Plaintiffs
motion to compel is denied.
Defendants' Motion for Protective Order [DE-77] and
Plaintiffs Motion to Extend Case
Scheduling Order in this matter initially provided for
discovery to close on February 1, 2019. [DE-71]. The court,
on Plaintiffs consent motion, extended the case deadlines by
60 days, and the discovery deadline was continued to April 2,
2019. [DE-73 ]. On March 8, 2019, Plaintiffs counsel
contacted Defendants' counsel regarding scheduling
depositions, including that of Bobbie Hayden. PL's Mot.
[DE-79] at 1-2. Defendants' counsel was initially unable
to contact Ms. Hayden to discuss scheduling her deposition,
and Plaintiff attempted to serve Ms. Hayden at her last known
addresses in North Carolina and Virginia with a subpoena and
deposition notice for March 29, 2019 in Ahoskie, North
March 28, 2019, Defendants filed the instant motion for
protective order and notice of non-appearance indicating
that, after several attempts to contact Ms. Hayden,
Defendants' counsel finally received a response on March
25, 2019, stating that Ms. Hayden had not received the
deposition notice and subpoena by mail. Defs.' Mot.
[DE-77] at 3. Ms. Hayden now resides in Virginia at a
different address from the one Plaintiff used to attempt
service, and Defendants seek a protective order setting the
location for the deposition near her workplace in Portsmouth,
Virginia. Id. at 5. Plaintiff has indicated a
willingness to take Ms. Hayden's deposition in Virginia
and requests a 30-day extension of the discovery period
within which to do so. PL's Mot. [DE-79] at 3. Defendants
oppose any extension of the discovery deadline and assert
that Plaintiff has not shown the requisite good cause and
diligence. Defs.' Resp. [DE-84] at 4-5.
schedule may be modified only for good cause and with the
judge's consent." Fed.R.Civ.P. 16(b)(4). The court
finds that the inability to locate Ms. Hayden until late in
the discovery period, despite the efforts of counsel,
establishes good cause to extend the discovery period and
other case deadlines for the purpose of completing Ms.
Hayden's and other outstanding depositions. Accordingly,
Defendants' motion for protective order [DE-77] is
allowed, and Ms. Hayden shall be deposed in Virginia at a
location near her workplace in Portsmouth on a date agreed
upon by counsel; and Plaintiffs motion to extend case
deadlines [DE-79] is allowed, and the case deadlines are
extended as follows: discovery and mediation shall be
completed no later than June 14, 2019, and
dispositive motions shall be filed no later than July
Plaintiffs Motion to Compel [DE-83]
is Plaintiffs amended motion to compel with respect to the
deposition of Charles R. Kinsey III. [DE-83]. Mr. Kinsey is an
attorney and a nonparty. Plaintiff contends Mr. Kinsey was
served on March 19, 2019 with a notice of deposition and
subpoena for April 2, 2019. PL's Mot. [DE-83] at 2. The
subpoena also required Mr. Kinsey to produce at the
deposition client files, documents, emails, and other
correspondence and records related to Plaintiff. [DE-83-4] at
1. Mr. Kinsey did not appear on April 2, 2019, and Plaintiff
seeks to compel Mr. Kinsey to appear for deposition and to
produce the requested documents. PL's Mot. [DE-83] at
3-A. Defendants, in opposing Plaintiffs motion, note
there is a typographical error in the address on Mr.
Kinsey's deposition notice's certificate of service,
calling into question whether Mr. Kinsey received the
deposition notice. Defs.' Resp. [DE-85] at 2-3.
issued to nonparties are governed by Fed.R.Civ.P. 45. When
considering the propriety of enforcing a subpoena, a trial
court should consider "the relevance of the discovery
sought, the requesting party's need, and the potential
hardship to the party subject to the subpoena."
Id. (quoting Heat & Control, Inc. v. Hester
Indus., 785 F.2d 1017, 1024 (Fed. Cir. 1986)). "A
party or attorney responsible for issuing and serving a
subpoena must take reasonable steps to avoid imposing undue
burden or expense on a person subject to the subpoena,"
and the court "must quash or modify a subpoena that
subjects a person to undue burden." Fed.R.Civ.P.
45(d)(1), (d)(3)(iv). "In the context of evaluating
subpoenas issued to third parties, a court 'will give
extra consideration to the objections of a non-party,
non-fact witness in weighing burdensomeness versus
SmithklineBeechamCorp., 233 F.R.D.451, 453 (E.D. N.C.
2005) (quotingIndem. Ins. Co. of N. Am. v. Am. Eurocopter
LLC, 227 F.R.D. 421, 426 (M.D. N.C. 2005)).
"Nonparties are 'strangers' to the litigation,
and since they have 'no dog in [the] fight,' they
have 'a different set of expectations' from the
parties themselves, Cusumanov. Microsoft Corp.,
162F.3d708, 717(lstCir. 1998)"; therefore, nonparties
"should not be drawn into the parties' dispute
without some good reason, even if they have information that
falls within the scope of party discovery...." Va.
Dep 't of Corr. v. Jordan, No. 17-7594, 2019 WL
1562312, at *5 (4th Cir. Apr. 11, 2019).
certificate of service attached to Plaintiffs motion to
compel indicates only that Defendants' counsel was served
with the motion, and there is no indication Mr. Kinsey
received notice of the motion to compel. [DE-83] at 5.
Furthermore, given the apparent discrepancy, noted by
Defendants, in Mr. Kinsey's address listed on the
deposition notice's certificate of service, the court
lacks confidence that Mr. Kinsey received any notice of the
deposition. Plaintiff has requested a broad range of
documents from a nonparty, and the court declines to enforce
the subpoena where there is uncertainty that Mr. Kinsey has
been given notice and an opportunity to object. Accordingly,
the motion to compel is denied without prejudice.
 The defendant referred to as
"Bobbie J. Banner" in the complaint now uses the
name "Bobbie J. Hayden," Defs.' Mot. [DE-77]
n.l, and the court will refer to her ...