Seay v. Fulcher's Red Fox Stables, LLC
Seay v. Fulcher's Red Fox Stables, LLC
2023 WL 4485325 (W.D.N.C. 2023)
February 1, 2023

Metcalf, W. Carleton,  United States Magistrate Judge

Third Party Subpoena
Possession Custody Control
Exclusion of Evidence
Failure to Produce
Dismissal
Initial Disclosures
Cost Recovery
Sanctions
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Summary
The court found that Plaintiff had violated his discovery obligations and/or the directions of the Court by failing to produce ESI in a timely manner. The court recommended that the Motion be granted with respect to the exclusion of certain documents and that Plaintiff be directed to pay Defendants' expenses associated with filing the Motion. The court also warned that any future violations would likely result in more severe sanctions, including the dismissal of his claims with prejudice.
Additional Decisions
CLANT M. SEAY, Plaintiff,
v.
FULCHER'S RED FOX STABLES, LLC, JESSE RYAN CAHOON, GREGORY WAYNE MOONINGHAM, Defendants
1:21-cv-00344-MR-WCM
United States District Court, W.D. North Carolina
Filed February 01, 2023

Counsel

Douglas J. Tate, Law Firm of Douglas J. Tate, Greenville, SC, for Plaintiff.
Clant M. Seay, Oxford, MS, Pro Se.
Kayla Nicole McDaniel, Russell Marcoux Racine, Cranfill Sumner & Hartzog LLP, Charlotte, NC, for Defendants.
Metcalf, W. Carleton, United States Magistrate Judge

MEMORANDUM AND RECOMMENDATION

*1 This matter is before the Court on Defendants' Motion to Exclude Plaintiff's Late Produced Evidence and for Sanctions (the “Motion to Exclude Late Evidence,” Doc. 63). Because the Motion pertains to materials that are related to Defendants' Motion for Partial Summary Judgment, Doc. 45, which is pending before the presiding District Judge, the undersigned has addressed the Motion to Exclude Late Evidence pursuant to 28 U.S.C. § 636 through the entry of a memorandum and recommendation.
I. Background Regarding the Motion to Exclude Late Evidence[1]
The Pretrial Order and Case Management Plan (Doc. 19) originally established September 13, 2022 as the deadline to complete court-enforceable discovery and October 13, 2022 as the deadline to file motions, if any.
On September 21, 2022, the deadline for the completion of court-enforceable discovery was extended through and including October 28, 2022 and the deadline for the filing of dispositive motions was extended through and including November 11, 2022. Doc. 30.
On November 11, 2022, Defendants filed their Motion for Partial Summary Judgment. Through that motion, Defendants seek the dismissal of all claims against Defendant Fulcher's Red Fox Stables, LLC (the “Stables”) and argue that Defendant Wayne Mooningham (“Mooningham”) was not an employee of the Stables at the time of the incident that forms the basis of this litigation and, even assuming that he was, the Stables could not be liable for Mooningham's acts since those acts were not taken in the furtherance of the Stables' business. Defendants also seek summary judgment with regard to Plaintiff's claims for intentional infliction of emotional distress and negligent infliction of emotional distress.
The deadline for Plaintiff to respond to the Motion for Partial Summary Judgment was November 28, 2022. That day, Plaintiff, who was appearing pro se by that time, filed a “Motion for 30 Day Extension of Time for Plaintiff pro se to Respond to Defendant's Motion for Partial Summary Judgment” (the “First Motion for Extension,” Doc. 48). In that filing, Plaintiff stated, among other things, that he learned of the filing of the Motion for Partial Summary Judgment on November 14, that he contacted opposing counsel regarding a 30 day extension of time to respond, that defense counsel would not consent to such an extension, that defense counsel had previously agreed Plaintiff could take the deposition of Garland Fulcher[2] on November 30, 2022, and that Plaintiff had requested that “Chrissy Fulcher”[3] also be produced for deposition on November 30. Plaintiff submitted a declaration in support of the First Motion for Extension in which Plaintiff stated that “[a]t this point in the proceedings” he could not “present facts that are essential to justify and/or approve” an agency relationship between Mooningham and the Stables but that he believed the depositions, “along with other discovery,” would provide facts that would be “essential” for him to oppose the Motion for Partial Summary Judgment. Doc. 48-1.
*2 On December 5, 2022, Plaintiff filed a “Motion for 30 Day Extension of Time from December 12, 2022 for Plaintiff pro se to Respond to Defendant's Motion for Partial Summary Judgment” (the “Second Motion for Extension,” Doc. 53). By that Motion, Plaintiff requested an additional extension, this one being 30 days from December 12, or through and including January 11, 2023, to respond to the Motion for Partial Summary Judgment.
On December 7, 2022, Plaintiff filed a declaration to which he purported to attach the exhibits from the depositions taken on November 30, 2022.[4] The declaration stated that Plaintiff was asking for an additional 30 days from December 12, 2022 to be able to obtain documents, through subpoenas issued by the Clerk of Court, pertaining to the agency relationship Plaintiff believed existed between Mooningham and the Stables. Doc. 55.
By Order entered on December 12, 2022, the undersigned denied the First Motion for Extension, granted the Second Motion for Extension in part, and extended Plaintiff's deadline to respond to the Motion for Partial Summary judgment through and including December 16, 2022. Doc. 56.
On December 16, 2022, Plaintiff filed his response in opposition (the “Response”) to the Motion for Partial Summary Judgment. Doc. 61. To that filing, Plaintiff attached approximately 33 pages of additional materials.
The Response internally references Exhibits A through E. However, the documents that are attached are not labeled with exhibit markers, nor have they been filed as individual Exhibits to the Response. In addition, while some of the documents appear to be the same as some of the deposition exhibits, other documents have also been included. In other words, not all of the documents attached to the Response are also included in the group of documents Plaintiff represented in his declaration as being the Exhibits to the depositions.
On December 22, 2022, Defendants replied and also filed the Motion to Exclude Late Evidence. Docs. 62, 63. Defendants request an Order “excluding documents produced by Plaintiff and relied upon by him in the Response to Defendants' Motion for Partial Summary Judgment ....” Doc. 63 at 1. Defendants also request that sanctions be issued “for Plaintiff's continued defiance of this Court's orders and the Rules of Civil Procedure.” Id. at 1-2.
The deadline for Plaintiff to respond to the Motion to Exclude Late Evidence was January 5, 2023. Plaintiff did not file a specific response, though in a Motion to Continue filed on January 6, 2023, Plaintiff asked the Court to “retroactively extend the deadlines that have expired since mid – October 2022, that [Plaintiff] was not able to comply with due to [his] health.”
On January 17, 2023, Plaintiff telephoned the Clerk's Office and stated that he had been admitted to the hospital with COVID and was not able to file a document at the time.
On January 23, 2023, Plaintiff again telephoned the Clerk's Office and stated that he remained in the hospital and was unable to file any documents.
II. The Subject Documents
*3 An initial issue here is identifying the specific documents Defendants seek to exclude. After a close review of the Motion to Exclude Late Evidence, the undersigned construes the Motion as pertaining specifically to the documents Plaintiff submitted with his Response, as opposed to the set of documents Plaintiff submitted with his declaration that purported to be the deposition exhibits (though, as noted, there is some overlap between those two groups of documents). See Doc. 63 at 11 (stating that, in the alternative the Court “should not consider the documents Plaintiff included with his Response in Opposition to Defendants' Motion for Partial Summary Judgment...”).
In that regard, the following materials appeared to be included in or attached to Plaintiff's Response:
• Excerpts from deposition testimony of Christina Ann Fulcher-Cahoon (Doc. 61 at 4-8);
• A document subpoena issued by the Clerk of this Court on December 9, 2022 (the “Subpoena”) with associated service information (Doc. 61-1) and an Entry Form for the Tennessee Walking Horse National Celebration. (the “Entry Form,” Doc. 61-2 at 1-2), which the Response states was obtained in response to the Subpoena;
• Advertisements or flyers (Doc. 61-2 at 3, 8-11, 29-31);
• Social Media Postings (Doc. 61-2 at 4, 12-28);
• An Annual Report for the Stables (Doc. 61-2 at 5); and
• A copy of the Affidavit of Garland Fulcher which was submitted previously by Defendants (the “Fulcher Affidavit,” Doc. 61-2 at 6-7).
III. Defendants' Position
Defendants contend that they filed their Motion for Partial Summary Judgment in compliance with the Court's pretrial schedule, but that Plaintiff disregarded the pretrial deadlines by producing during the November 30, 2022 depositions multiple documents that had not been produced in discovery. Defendants further state that Plaintiff served the Subpoena on December 13, 2022 on a third-party but did not provide advance notice to Defendants.
Defendants contend that, as a result, this case should be dismissed with prejudice but that, at a minimum, Plaintiff's late produced discovery should not be considered for any purpose and should be excluded.
IV. Discussion
A. Deposition Transcript Excerpt and Fulcher Affidavit
Because the parties' submissions indicate that the November 30 deposition of Christina Ann Fulcher-Cahoon was conducted voluntarily and as Defendants' Motion to Exclude Late Evidence does not reference the deposition transcript excerpt itself, the undersigned is not persuaded that the excerpt should be excluded.[5]
Similarly, Defendants do not explain why Plaintiff should be prohibited from using the Fulcher Affidavit, since Defendants themselves filed that document in support of their Motion for Partial Summary Judgment.
B. The Other Documents
1. The Entry Form
According to the Response, Plaintiff obtained the Entry Form through the Subpoena.
Local Civil Rule 45.2 directs that, absent a contrary agreement between the parties or order of the Court, a notice of the issuance of a document subpoena to a non-party and a copy of the subpoena, as required by Fed. R. Civ. P. 45(a)(4), must be served on all other parties at least three (3) calendar days before the date on which the subpoena is served on the non-party.
Here, the record indicates that Plaintiff did not provide prior notice of the Subpoena to Defendants, such that they could lodge an objection, nor did he secure Defendants' agreement or permission from the Court to deviate from the notice requirement.
In addition, the Pretrial Order stated that counsel were “directed to initiate discovery requests and notice or subpoena depositions sufficiently in advance of the discovery completion deadline so as to comply with this Order” and advised that discovery requests that sought responses or to schedule depositions after the discovery completion deadline were not enforceable except by order of the Court for good cause shown. Doc. 19 at 4. However, the Subpoena was issued by the Clerk at Plaintiff's request on December 9, 2022, over a month after the conclusion of the extended court-enforceable discovery period (October 28, 2022).
2. Advertisements, Social Media Postings, and Annual Report
*4 With regard to the remaining documents, Defendants argue that the materials relied on by Plaintiff “are mostly comprised of documents which were in the possession, custody or control of Plaintiff but were not produced until well after the close of discovery.” Doc. 63 at 4.
Rule 26(a) requires parties to make certain disclosures, including initial disclosures, disclosures concerning expert testimony, and pretrial disclosures. Relevant here is section (a)(1)(A)(ii) which directs that a party provide as part of its initial disclosures “a copy – or a description by category and location – of all documents, electronically stored information, and tangible things that [it] has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment.”
In addition, section (e) requires “a party who has made a disclosure under Rule 26(a)—or who has responded to an interrogatory, request for production, or request for admission” to supplement or correct its disclosure or response:
(A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or
(B) as ordered by the court.
Further, Rule 37(c) provides:
(c) Failure to Disclose, to Supplement an Earlier Response, or to Admit.
(1) Failure to Disclose or Supplement. If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard:
(A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure;
(B) may inform the jury of the party's failure; and
(C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).[6]
In this case, Defendants' Answer, which was filed on December 22, 2021, included a defense pertaining to the issue of agency. See Doc. 13 at 22 (Tenth Affirmative Defense – “Plaintiff's claims against one or more Defendants fail as a matter of law as the Defendants were not acting as an employee, agent, or other authorized representative of any other Defendant at the time of the alleged incident.”).
Further, the Pretrial Order set a deadline of February 14, 2022 for the parties to make their initial Rule 26(a) disclosures and stated that supplementations under Rule 26(e) were required on an ongoing basis. Doc. 19 at 5.
*5 The record also reveals that Defendants served written discovery requests on Plaintiff and that Plaintiff responded on August 26, 2022. See Doc. 28-2 at 11 (Request 13 seeking the production of “all other documents of any kind which you contend substantiates your claims for liability and damages” not previously produced); Doc. 28-4.
As noted, Defendants contend that Plaintiff had the additional documents but did not produce them during discovery and instead waited until the voluntary depositions on November 30, just over a month after the close of the extended court-enforceable discovery deadline, before disclosing them.
Plaintiff has made no substantive response to this argument. For example, he has not contended that the materials were solely intended for impeachment (and therefore did not have to be produced as part of his initial disclosures), that they were not reasonably covered by Defendants' written discovery requests, or that his failure to produce them previously was justified or harmless. See Wilkins v. Montgomery, 751 F.3d 214, 222 (4th Cir. 2014) quoting Wilson v. Bradlees of New England, Inc., 250 F.3d 10, 21 (1st Cir. 2001) (“’It is the obligation of the party facing sanctions for belated disclosure to show that its failure to comply with Rule 37(c)(1) was either justified or harmless.’ ”)).
While Plaintiff did state briefly in the First Motion for Extension that he believed the November 30 depositions, “along with other discovery,” would provide facts with which he could oppose the Motion for Partial Summary Judgment, and did suggest in his December 7, 2022 declaration that he would be seeking to obtain documents, through subpoenas issued by the Clerk of Court, pertaining to the agency relationship Plaintiff believed existed between Mooningham and the Stables, Plaintiff did not request leave of court to conduct additional document discovery or obtain an agreement with Defendants to engage in such discovery voluntarily. Plaintiff has provided the Court with no information as to when or how Plaintiff actually obtained the additional documents.[7]
Therefore, the undersigned concludes that Plaintiff has failed to provide these documents as required by Rule 26(a) and (e).
3. Appropriate Sanctions
The final issue is a determination of the appropriate sanction for this conduct.
As described above, Defendants argue that Plaintiff's claims should be dismissed or at a minimum that the additional evidence should be excluded and Plaintiff barred from using it.
Defendants are correct that Plaintiff has, on more than one occasion in this case, run afoul of his discovery obligations and/or the directions of the Court, and the undersigned believes that this further violation requires some response. Plaintiff himself is an attorney and has been representing himself since his counsel's withdrawal. Defendants' frustration with Plaintiff's production of the new documents, both at the depositions to which Defendants submitted voluntarily approximately one month after the close of an extended court-enforceable discovery period and in response to a previously filed motion for partial summary judgment, is understandable.
*6 On the other hand, the undersigned is not persuaded that the newly produced information and the circumstances of its production require the complete dismissal of Plaintiff's claims.
Therefore, the undersigned will recommend that the Motion be granted with respect to exclusion of the Entry Form, the Advertisements, the Social Media Posts, and the Annual Report of the Stables and that Plaintiff be directed to pay Defendants' expenses associated with filing of the Motion to Exclude Late Evidence.
Given Plaintiff's previous conduct in this case, the undersigned has strongly considered whether to recommend that additional sanctions, such as monetary sanctions, be imposed against him. The undersigned has decided not to recommend further sanctions at this time, but will recommend that Plaintiff be admonished that he must abide by the Federal Rules of Civil Procedure, this Court's local rules and any orders entered in this matter and advised that any future violations will likely result in the imposition of more severe sanctions, including but not limited to the dismissal of his claims with prejudice.
V. Recommendation
For the reasons set forth herein, the undersigned respectfully RECOMMENDS that Defendants' Motion to Exclude Plaintiff's Late Produced Evidence and for Sanctions (Doc. 63) be GRANTED IN PART AND DENIED IN PART as follows:
1. That the Motion be granted with respect to the Entry Form (61-2 at 1-2), the Advertisements (Doc. 61-2 at 3, 8-11, 29-31), the Social Media Postings (Doc. 61-2 at 4, 12-28), and the Annual Report of the Stables (Doc. 61-2 at 5), that these materials not be considered in relation to Defendants' Motion for Partial Summary Judgment, and that Plaintiff otherwise be prohibited from using these materials in connection with any motion, at a hearing, or at trial in accordance with Rule 37(c)(1).
2. That Plaintiff be directed to pay Defendants' reasonable expenses associated with filing of the Motion to Exclude Late Evidence.
3. That Plaintiff be admonished that he must abide by the Federal Rules of Civil Procedure, this Court's local rules and any orders entered in this matter and advised that any future violations will likely result in the imposition of more severe sanctions, including but not limited to the dismissal of his claims with prejudice.
Signed: January 31, 2023
Time for Objections
The parties are hereby advised that, pursuant to Title 28, United States Code, Section 636, and Federal Rule of Civil Procedure 72(b)(2), written objections to the findings of fact, conclusions of law, and recommendation contained herein must be filed within fourteen (14) days of service of same. Responses to the objections must be filed within fourteen (14) days of service of the objections. Failure to file objections to this Memorandum and Recommendation with the presiding District Judge will preclude the parties from raising such objections on appeal. See Thomas v. Arn, 474 U.S. 140, 140 (1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984).

Footnotes

Additional information regarding the procedural history of this matter appears in the undersigned's Order addressing other pending motions, which is being filed simultaneously herewith.
Garland Christopher “Chaz” Fulcher II was originally named as a defendant but the claims against were later dismissed by stipulation on October 24, 2022. Doc. 41.
From other portions of the record, it appears that this individual is Christina Ann Fulcher-Cahoon.
It is not clear that these materials constitute all of the exhibits to the November 30 depositions. Twenty (20) documents were attached to the declaration, but the internal exhibit markers on those documents suggest some exhibits may be missing, or that exhibits were not introduced in chronological order. For example, Exhibit 16 to the declaration appears to be Exhibit 19 to the deposition, and deposition Exhibits 16, 17, 18, 20, and 23 are not attached to the declaration.
The undersigned is nonetheless compelled to note, with disapproval, the heated exchange between Plaintiff and defense counsel during this deposition. See Doc. 61 at 5-8.
The sanctions referenced in Rule 37(b)(2)(A)(i)-(vi), specifically, are:
(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party;
Perhaps Plaintiff could have obtained the Advertisements from open sources on the Internet, the Social Media postings from the associated platforms if those postings were publicly available, and the Annual Report for the Stables from the public records of the North Carolina Secretary of State. However, Plaintiff has not explained any of these issues.