United States District Court, E.D. North Carolina, Northern Division
E. Gates, United States Magistrate Judge.
case comes before the court on a motion (D.E. 38) by
defendant Service Insurance Company ("Service") to
compel entry on and inspection of land pursuant to
Fed.R.Civ.P. 34. Plaintiffs Daniel Felix and Christine Hutten
(collectively "plaintiffs") filed a response (D.E.
39), objecting in part to Service's motion. The motion
was referred to the undersigned for determination. D.E. 40.
For the reasons stated below, Service's motion will be
allowed in part and denied in part.
commenced the instant litigation on 10 July 2018, relating to
a flood insurance policy obtained by plaintiffs from Service.
Compl. ¶ 1. Plaintiffs' claim under the flood
insurance policy arose from damages to plaintiffs' home
in October 2016 resulting from flooding due to Hurricane
Matthew. Id. ¶ 5. Plaintiffs reported a loss of
$62, 389.51 to Service, but allege that Service paid out a
total of only $21, 284.33, relying on the purportedly
erroneous conclusion that the first floor of the home was not
above the area's base flood level. Id. ¶ 5.
assert claims for full payment of flood damages to their home
and allege that Service has engaged in fraudulent practices
depriving them of their rights under the policy. Id.
¶ 7. Service denies the material allegations in
plaintiffs complaint. See generally Service's
Ans. (D.E. 16). On 7 January 2019, the court granted
plaintiffs leave to amend their complaint to add damages
claims arising from the denial of the flood insurance claim
(D.E. 37), but no amended complaint has been filed.
RELEVANT CASE HISTORY
court entered a Scheduling Order (D.E. 36) on 7 January 2019.
The Scheduling Order provided for the completion of all fact
discovery by 6 May 2019 and expert discovery by 8 July 2019.
Sch. Ord. ¶ 3. It also contemplated inspection of
plaintiffs' property and provided that "[a]bsent
stipulation by the parties pursuant to Fed.R.Civ.P. 29(b),
defendant shall seek to inspect the premises at issue in this
case by a request pursuant to Fed.R.Civ.P. 34(a)(2), subject
to subsequent motion practice, if necessary."
Id. ¶ 4.
March 2019, Service requested that plaintiffs permit an
inspection of the home by an engineer to opine whether the
home should be classified as an elevated or non-elevated
building. 12 Mar. 2019 Email (D.E. 38-7). Plaintiffs
requested that certain conditions be met before allowing the
inspection, which Service would not agree to. Service
responded by filing the instant motion.
APPLICABLE LEGAL STANDARDS FOR INSPECTION
Federal Civil Rules enable parties to obtain information by
serving requests for discovery on each other, including
requests to permit entry on land to "inspect, measure,
survey, photograph, test, or sample the property or any
designated object or operation on it." Fed.R.Civ.P.
34(a)(2); see generally Fed. R. Civ. P. 26-37. Rule
26(b) provides for a broad scope of discovery:
Unless otherwise limited by court order, the scope of
discovery is as follows: 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