United States District Court, E.D. North Carolina, Northern Division
TERRENCE W. BOYLE, CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on plaintiffs' motions asking
the Court to reconsider its October 5, 2019 order, which
sanctioned plaintiffs for failure to comply with an earlier
Court order by dismissing their lawsuit with prejudice.
Plaintiffs' invoke Rule 40 of the Federal Rules of
Appellate Procedure as well as Rules 59 and 60 of the Federal
Rules of Civil Procedure. [DE 57, 58].
Court dispenses with a full recitation of the case and
adopts, as if fully set forth herein, the factual and
procedural background that the Court provided in its order on
January 7, 2019. [DE 37]. Relevant here is the Court's
June 11, 2019 order requiring plaintiffs to permit an
inspection of their property by an engineer retained by
defendant Service Insurance Company (''Service")
no later than June 25. No inspection was allowed, and on
defendant's motion for sanctions [DE 49], the Court
dismissed plaintiffs' lawsuit. [DE 54]. On October 11,
2019, defendant's counsel notified the Court that,
apparently, the motion for sanctions was never delivered to
plaintiffs despite the Certificate of Service certifying that
service via U.S. Mail had been accomplished. Plaintiffs,
therefore, did not have an opportunity to respond to the
Court dismissed the suit for plaintiffs' failure to
comply with the June 11, 2019 order requiring them to permit
an inspection of their house by June 25. In the June 11
order, the Court explicitly stated that any party violating
its terms would be subject to sanctions.
overriding reason that plaintiffs did not comply with the
inspection order was that, in their view, the order was not
sufficiently accommodating of rescued cats that live in the
first floor of their home. Plaintiffs were concerned the
inspection would disturb the cats and put them at risk of
harm. DE 49-3.
their motions for reconsideration [DE 57, 58], plaintiffs
reiterate that they did not permit the home inspection
because the Court's order did not include sufficient
protections for the cats during the inspection. For instance,
they state "[p]laintiffs acknowledged they would like to
comply with the order for discovery via the engineer's
inspection, but the Court would have to put into place some
protections for the abused cats living in that section of the
home that the magistrate judge negligently overlooked."
DE 57 ¶ 2. They go on to say that "Plaintiffs tried
to give notice to the Court that they would be willing to
comply but only if the Court understood the conditions that
would be necessary to keep the cats safe." Id.
There are other statements to the same effect. Elsewhere,
plaintiffs contend that they needed a definition from the
Court as to what constituted an "enclosure below an
elevated building," and that, depending on the
definition, plaintiffs might change their settlement
position. DE 57 ¶ 3; DE 58 ¶ 2.
their motion invoking Rules 59 and 60, plaintiffs state that
were the Court to allow them to respond to the motion for
sanctions, the response would include the arguments outlined
above-specifically, the need for additional conditions to
protect the cats and a request for a definition of the term
"enclosure below an elevated building." DE 58 at 1
('"Should the Court also grant plaintiffs the
privilege of responding to defendants Motion for Sanctions,
our response will include the items listed below which will
make Plaintiffs position on inspection clear.'').
motions and arguments support the Court's dismissal order
and reaffirm the need for sanctions in this case. The
Court's June 11 order was not a suggestion inviting
additional negotiations over the conditions of the
inspection. It was a legally binding order requiring good
faith compliance with its terms and scope.
the Court regrets that plaintiffs did not have a chance to
respond to the motion for sanction initially, the Court is
satisfied, based on plaintiffs' subsequent filings, that
its decision would remain the same. Plaintiffs previewed
their arguments for what they would have included in their
response to defendant's motion for sanctions. The reasons
provided are insufficient to warrant alteration of or relief
from the Court's October 5 order.
reasons discussed above, plaintiffs' motions [DE ...