N.C. Mut. Life Ins. Co. v. Stamford Brook Capital, LLC
N.C. Mut. Life Ins. Co. v. Stamford Brook Capital, LLC
2020 WL 13303324 (M.D.N.C. 2020)
December 16, 2020

Peake, Joi Elizabeth,  United States Magistrate Judge

Cooperation of counsel
Proportionality
Failure to Produce
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Summary
The Court denied the Motion to Compel, Motion for Reconsideration, and Emergency Motion to Stay or Limit Depositions, but granted the Motion to Extend Discovery Deadlines. The deadline for completion of discovery was extended to February 5, 2021, and the deadline for submission of dispositive motions to March 8, 2021. The trial was also continued to the October 2021 Trial Calendar.
Additional Decisions
NORTH CAROLINA MUTUAL LIFE INSURANCE COMPANY, Plaintiff,
v.
STAMFORD BROOK CAPITAL, LLC, et al., Defendants
1:16CV1174
United States District Court, M.D. North Carolina
Filed December 16, 2020

Counsel

Lauren E. Fussell, Michael Keith Kapp, Williams Mullen, Raleigh, NC, Andrew O. Mathews, Lauren W. Waller, Turner A. Broughton, Williams Mullen, Richmond, VA, for Plaintiff.
Christopher Terry Graebe, Morningstar Law Group, Raleigh, NC, for Defendant Port Royal Reassurance Company Spc, Ltd.
Forefront Capital Holdings, LLC, Pro Se.
Stamford Brook Capital, LLC, Pro Se.
Bradley Carl Reifler, New York, NY, Pro Se.
Michael Flatley, Pro Se.
David A. Wasitowski, Ringoes, NJ, Pro Se.
Forefront Capital Services, LLC, Pro Se.
Peake, Joi Elizabeth, United States Magistrate Judge

ORDER

*1 This matter is before the Court on a Motion to Compel [Doc. #224], Motion for Reconsideration [Docs. #227, #231] and Emergency Motion to Stay Depositions [Doc. #232] filed by Defendant Bradley Reifler, as well as a Motion to Extend Discovery Deadlines [Doc. #230] filed by Plaintiff North Carolina Mutual Life Insurance Company (“NC Mutual”). NC Mutual has responded to Defendant's motions, and the issues are ripe for this Court's review.
 
Mr. Reifler first moves the Court to compel discovery responses to his Requests for Production. On September 30, 2020, Defendant requested NC Mutual produce a wide range of documents, including “[c]opies of all communications” between NC Mutual and various individuals who may have information related to the case, as well as “[c]opies of all documents or written discovery responses received” by NC Mutual in connection with this action or the related bankruptcy proceeding. (Def.’s Requests for Production [Doc. #224-1] at 5-6.) On October 30, NC Mutual responded that subject to a series of objections, it would “make non-privileged documents responsive to this request available that were not previously in Reifler's possession, custody, and control.” (Pl.’s Discovery Response [Doc. #226-2] at 2-10.) Plaintiff asserts that it has turned over some documents, and that it intends to continue production on a rolling basis as it reviews potentially responsive material. (Pl.’s Br. [Doc. #226] at 2-3.) Five days later, without conferring with Plaintiff in advance, Mr. Reifler filed the present motion.
 
A motion to compel “must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” Fed. R. Civ. P. 37(a). This Court “will not consider motions and objections related to discovery unless moving counsel files a certificate that after personal consultation and diligent attempts to resolve differences, the parties are unable to reach an accord.” Local Rule 37.1(a). These rules are intended to ensure that Parties endeavor to cooperate in the discovery process and resolve disputes to the extent possible without involving court resources. Mr. Reifler's pro se status does not absolve him of the duty to comply with the Court's rules. See Crisp v. Allied Interstate Collection Agency, No. 1:15CV303, 2016 WL 2760363, at *7 (M.D.N.C. May 12, 2016). Defendant has provided no indication that he attempted to discuss his concerns with Plaintiff's counsel. Moreover, given that Plaintiff has provided and is continuing to provide documents in response to Mr. Reifler's requests, it appears that the Parties may well be able to resolve this dispute on their own consistent with the process outlined in the Local Rules. Because such a good faith attempt at engagement has not yet been made, the Court will deny Defendant Reifler's Motion to Compel at this time, without prejudice to re-filing if the Parties are unable to resolve the dispute after good faith efforts consistent with the obligations noted above. To facilitate this process, Plaintiff should promptly complete its production and response and, as required by Rule 34, “[any] objection must state whether any responsive materials are being withheld on the basis of that objection.”
 
*2 Mr. Reifler next moves the Court to reconsider its Order denying his motion to quash the depositions of Margaret Leszczynska, David Wasitowski, Mike Flatley, Meade Rudasill, Steve Fickes, and himself [Docs. ##227, 231].[1] In his Motion, Defendant asserts that the action here is the same case as the adversary bankruptcy proceeding between the Parties in New York, so Federal Rule of Civil Procedure 30(a)(2) should operate to bar the deposition of any person who was deposed in that action. This is the same argument that Defendant raised and the Court considered in its prior Order [Doc. #225 at 5-6]. Courts in this Circuit “have routinely looked to the standards governing the reconsideration of final judgments under Rule 59(e) in considering a motion for reconsideration of an interlocutory order under Rule 54(b).” See RF Micro Devices, Inc. v. Xiang, 1:12CV967, 2016 WL 3199506, at *1 (M.D.N.C. June 8, 2016) (collecting cases). Under that standard, a motion for reconsideration is “appropriately granted only in narrow circumstances: (1) the discovery of new evidence, (2) an intervening development or change in the controlling law, or (3) the need to correct a clear error or prevent manifest injustice.” Id. (quoting Pender v. Bank of Am. Corp., No. 3:05-CV-238, 2011 WL 62115, at *1 (W.D.N.C. Jan. 7, 2011)). Defendant has raised no new arguments or evidence here that were not present in his original motion, and the Court has reviewed its prior Order and sees no clear errors or resultant injustice.
 
Moreover, even considering the additional arguments raised by Mr. Reifler, the Court finds that it is appropriate to allow the depositions to be conducted in this case at this time by Plaintiff's counsel. Allowing these six depositions (which Plaintiff intends to conduct remotely) would not be unduly burdensome and would be proportional to the needs of the case given the importance of the issues at stake in this action, the amount in controversy, and the importance of the discovery in resolving the issues. In the circumstances, allowing the depositions in this case, even though previously deposed in the adversary proceeding, would not be unreasonably cumulative or duplicative, and the Court finds good cause to allow the requested depositions to proceed. Therefore, even if the matter were further considered as requested by Mr. Reifler, the Court in its discretion concludes that allowing the contested depositions would be within the scope of permissible discovery under Federal Rule of Civil Procedure 26.[2]
 
Turning next to Defendant's Emergency Motion to Stay [Doc. #232], his request that depositions be stayed pending a ruling on his Motion for Reconsideration is moot based on the rulings in this Order. Defendant alternatively requests that the Court limit those depositions to topics that were not addressed in the bankruptcy proceeding. A party or the deponent may move to limit the scope of a deposition “on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party.” Fed. R. Civ. P. 30(d)(3). However, the Court finds no bad faith on the part of NC Mutual, and no unreasonable annoyance, embarrassment, or oppression involved in asking deponents to answer relevant questions to the best of their knowledge and memory, even if the events in question occurred several years ago. As such, Defendant's Motion to Stay or Limit Depositions will be denied.
 
*3 Finally, Plaintiff has moved the Court to extend the upcoming deadline to complete discovery [Doc. #230]. The discovery deadline is currently set for December 18, 2020. Due to the time involved in addressing Defendant Reifler's efforts to quash depositions, Plaintiff contends that it will be unable to complete discovery by the current deadline. For good cause shown, the Court will extend the deadline for completion of discovery to February 5, 2021, and the deadline for dispositive motions to March 8, 2021. In light of this extension, the trial will be continued to the October 2021 Trial Calendar, in order to allow time for consideration of dispositive motions prior to trial.
 
IT IS THEREFORE ORDERED that Defendant Bradley Reifler's Motion to Compel [Doc. #224], Motion for Reconsideration [Docs. #227, #231] and Emergency Motion to Stay or Limit Depositions [Doc. #232] are DENIED as set out above.
 
IT IS FURTHER ORDERED that Plaintiff NC Mutual's Motion to Extend Discovery Deadlines [Doc. #230] is GRANTED, and the deadline for completion of discovery is extended to February 5, 2021, and the deadline for submission of dispositive motions is extended to March 8, 2021, and the trial is continued to the October 2021 Trial Calendar.
 
This, the 16th day of December, 2020.
 
Footnotes
Defendant submitted two separate filings [Doc. #227 and #231], but they appear to be identical motions. As such, the Court will take NC Mutual's response [Doc. #229] as a response to both motions, and will consider them jointly.
The Court notes that Mr. Reifler has newly asserted that NC Mutual is attempting to take more than the ten depositions allowed by Federal Rule of Civil Procedure 30(a)(2)(A). However, he asserts no facts to support this contention, and it appears that he may be including depositions that occurred in the bankruptcy proceeding as part of his count (See Pl.’s Br. [Doc. #229] at 6 n.1 (contending that Plaintiff has only noticed seven non-expert depositions in this case, and thus is within the requirements of Rule 30.)) To the extent Defendant relies on depositions taken in the bankruptcy proceeding as part of his contention here, the Court will not count the depositions taken in the adversary proceeding in determining the number of depositions allowed in this case.