United States District Court, E.D. North Carolina, Western Division
Elena Coleman, on behalf of minor child, N.C. Plaintiff,
Wake County Board of Education, et al Defendant.
T. Numbers, II United States Magistrate Judge.
August 2016, Elena Coleman filed a formal complaint against
the Wake County Board of Education and the Wake County Public
School System at the North Carolina Department of Public
Instruction (“NCDPI”) on behalf of her son, N.C.,
for alleged violations of the Individuals with Disabilities
Education Improvement Act (“IDEA”), 20 U.S.C.
§ 1401 et seq. After receiving an unfavorable
ruling at the state agency, Coleman filed an appeal of the
agency's decision in the Eastern District of North
Carolina; she also added a claim for retaliation under the
Rehabilitation Act to her federal lawsuit. Rehabilitation Act
§ 504, 29 U.S.C.S. § 794. The court limited
discovery to her new retaliation and Rehabilitation Act
claims, and with that limitation in place, Coleman served
discovery requests on Wake County. Nine months after she
received responses to those requests and without first
conferring with the County, Coleman filed a motion to compel.
Coleman did not comply with the Federal Rule and Local Rule
requiring her to first confer with the County before filing
her motion to compel, the court denies her motion without
prejudice. The court will grant her leave to refile her
motion if she is unable to reach a satisfactory resolution to
her issues with the County's discovery responses through
the 2014-2015 school year, N.C. was enrolled at Root
Elementary School's special education class at due to his
autism, obsessive compulsive disorder, and severe anxiety.
Second Am. Compl. ¶¶ 2, 74, D.E. 40. Over the
course of the school year, school personnel restrained N.C.
several times after “escalations” in his behavior
such as kicking, yelling, hitting, and otherwise assaulting
teachers. Id. at ¶¶ 70-75. Coleman claims
N.C. never behaved so aggressively at his previous school and
that Root Elementary teachers were not properly trained to
apply his Individualized Education Program
(“IEP”) and Crisis Plan. Id. at
¶¶ 70, 80-103.
formal complaint from Coleman, an NCDPI ALJ held an
administrative hearing on these incidents in August and
October 2016. Id. at ¶ 5. The hearings revolved
around Coleman's IDEA claims, and those claims went
through a full discovery process. Id.; Scheduling
Order, D.E. 47. The ALJ ultimately ruled against Coleman.
months after receiving the unfavorable ruling, Coleman and
N.C. were removed from a Wake County Public School
playground, and Coleman was subsequently barred from all Wake
County Public School properties. Compl. ¶¶ 248-54.
She claims this incident was in retaliation for the NCDPI
hearing. Id. at ¶ 252.
2017, Coleman appealed the ALJ's decision to this court,
and two months later, Coleman was arrested for trespass after
chasing her son onto another Wake County elementary school
property. Id. at ¶ 255-59. Coleman alleges that
the arrest was in retaliation for her appeal in this court
and was an attempt to intimidate her into not pursuing her
case. Id. at ¶ 264.
the IDEA claims had already been through a full discovery
process in the NCDPI hearing, the court limited the scope of
discovery to the retaliation claims. Many months after Wake
County responded to Coleman's first set of discovery
requests, Coleman filed a motion to compel discovery. She
claims, among other things, that Wake County's responses
are either incomplete or vague and that all her requests are
within the scope of discovery. Wake County claims that it did
not know Coleman had any issues with its responses because
she failed to “meet and confer” as required by
Federal Rule of Civil Procedure 37 and Local Rule 7.1(c).
Rule of Civil Procedure 37 governs motions to compel. The
rule requires moving parties to include a certification that
they “in good faith conferred or attempted to confer
with the . . . party failing to make disclosure or
discovery.” Fed.R.Civ.P. 37(a)(1). Like Rule 37, Local
Rule 7.1(c) also requires moving parties to certify that they
have made a good-faith effort to resolve discovery issues
before filing motions. Local Civ. R. 7.1(c), E.D. N.C. The
purpose of these rules is to encourage parties to resolve
their disputes without court intervention. Merz N. Am.,
Inc. v. Cytophil, Inc., No. 5:15-CV-262-H-KS, 2017 WL
4274856, at *2 (E.D. N.C. Sept. 26, 2017).
cases, in addition to expressly asserting a good-faith
conferral attempt in the motion, the moving party provides
copies of communications between the parties as proof of a
good-faith effort to resolve discovery issues. This shows the
court evidence of the parties' conferral efforts.
See, e.g., BlackRock Eng'rs, Inc. v. Duke
Energy Progress, LLC, No. 7:15-CV-250-D, 2018 WL
4409377, at *4 (E.D. N.C. Sept. 17, 2018) (moving party
provided copies of emails between the parties); Davenport
v. Elks, No. 5:13-CT-3203-BO, 2015 WL 7306446, at *2
(E.D. N.C. Nov. 19, 2015) (same); Johnson v. N.C.
Dep't of Justice, No. 5:16-CV-00679-FL, 2018 WL
5831997, at *3 (E.D. N.C. Nov. 7, 2018) (same). But
production of communications alone does not prove good-faith
conferral or good-faith attempts at conferral. See, e.g.,
BlackRock Eng'rs, Inc., 2018 WL 4409377 at *5
(holding no good-faith conferral occurred even though the
moving party provided copies of emails between the parties);
Davenport, 2015 WL 7306446 at *3 (E.D. N.C. Nov. 19,
there is no definition of what constitutes a good-faith
effort to meet and confer, it is characterized as a
“meaningful opportunity to resolve . . . dispute[s]
without court intervention.” Velasquez-Monterrosa
v. Mi Casita Rests., No. 5:14-CV-448-BO, 2015 WL
1964400, at *4 (E.D. N.C. May 1, 2015). At a
minimum, there must be a record of repeated attempts to set
up a meeting. See, e.g., Johnson, 2018 WL
5831997 at *6 (finding a good-faith attempt when moving party
submitted evidence that showed repeated requests to set up a
did not certify in her motion that she engaged in a
good-faith effort to meet and confer with Wake County. Nor
did she provide evidence that she contacted Wake County
before filing her motion to compel. It is unsurprising then
that Wake County claims it had no idea that Coleman had any
complaints about its discovery responses until she filed the
motion. Resp. to Mot. to Compel at 3, D.E. 76. Based on these
facts, Coleman ...