Bohn v. Black,
2018 NCBC 48.
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
TRANSYLVANIA COUNTY 17 CVS 228
MATT BOHN and wife, LAURIE
BOHN,
Plaintiffs,
v.
ORDER AND OPINION
JUDITH BLACK; NANCY BLACK; ON PLAINTIFFS’ MOTION
SCOTT HATTER; JEANNE
HATTER; BLACK FOREST FAMILY TO CLARIFY AND RECONSIDER
CAMPING RESORT, INC.; and a
certain unnamed De Facto North
Carolina General Partnership, a/k/a
the BLACK FOREST
PARTNERSHIP,
Defendants.
1. Pending before the Court is Plaintiffs’ Motion to Clarify and Reconsider
Order on Motion to Modify Case Management Order. For the following reasons, the
Court DENIES the motion.
Whitfield-Cargile Law, PLLC, by Davis A. Whitfield-Cargile, for
Plaintiffs.
Fisher Stark, P.A., by Brad A. Stark, W. Perry Fisher, II, and Megan N.
Silver, for Defendants.
Conrad, Judge.
I.
BACKGROUND
2. This lawsuit arises out of a deteriorating family relationship between
Defendant Judith Black and her daughter Laurie Bohn and son-in-law Matt Bohn
(“Plaintiffs” or “the Bohns”). Among other things, the parties dispute the ownership
of the Bohns’ home and what, if any, interest the Bohns possess in Black Forest
Family Camping Resort, Inc.
3. The Bohns initiated this action on May 12, 2017. (V. Compl., ECF No. 1.)
On May 15, 2017, the Honorable Judge Jeff P. Hunt granted the Bohns’ motion for a
temporary restraining order preventing Defendants from blocking the Bohns’ access
to their home, from cutting off water to the home, and from assessing rent. (TRO,
ECF No. 2.)
4. Following entry of the temporary restraining order, the case was then
designated as a mandatory complex business case by order of the Chief Justice of the
North Carolina Supreme Court, (ECF No. 4), and assigned to the undersigned by
order of Chief Business Court Judge James L. Gale, (ECF No. 5). Following
assignment, this Court entered a preliminary injunction in favor of Plaintiffs. (See
ECF No. 24.)
5. On August 31, 2017, pursuant to Rule 9 of the General Rules of Practice and
Procedure for the North Carolina Business Court (“BCR” or “Business Court
Rule(s)”), the Court entered a Case Management Order governing, among other
things, the discovery deadlines in this case. (Case Mgmt. Order, ECF No. 25
[“CMO”].) The parties agreed to an extended seven-month period, ending March 31,
2018, in which to conduct general discovery, followed by an additional ninety days for
expert discovery. (See CMO § IV.A.2.) Plaintiffs’ deadline to make expert disclosures
was March 1, 2018, and Defendants’ deadline is June 1, 2018. (CMO § IV.A.6.)
6. Plaintiffs conducted essentially no discovery for the next six months. Their
deadline to make expert disclosures came and went without any action. They also
failed to serve any discovery requests before March 2018, the final month of general
discovery. When Plaintiffs first served written discovery requests on March 6 and
March 23, 2018, the deadlines for Defendants’ objections and responses were after
the March 31, 2018 close of general discovery. (See Pls.’ Br. Supp. Mot. to Modify
Case Mgmt. Order 2–3, ECF No. 32 [“Br. Supp. Mot. to Modify”]; Pls.’ Reply Br. Supp
Mot. to Modify Case Mgmt. Order 3 n.2, ECF No. 39 [“Reply Supp. Mot. to Modify”].)
7. Having painted themselves into a corner, on March 15, 2018, Plaintiffs
moved to extend the period for general discovery until June 31, 2018, followed by
ninety days for expert discovery. (Mot. to Modify Case Mgmt. Order 1, ECF No. 31
[“Mot. to Modify”].) Plaintiffs also sought to extend the deadlines for expert
disclosures to June 1, 2018 for the party bearing the burden of proof on an issue and
to September 1, 2018 for the opposing party. (Mot. to Modify 1.) Plaintiffs argued
that good cause and excusable neglect existed to support their motion because a series
of illnesses, bad weather, vacations, and calendar software errors interfered with
their counsel’s ability to comply with the existing discovery deadlines. (Br. Supp.
Mot. to Modify 1–3.) Defendants opposed the motion.
8. After full briefing and a hearing by teleconference, the Court denied the
motion (“April 17 Order”). (See Order on Mot. to Modify Case Mgmt. Order, ECF No.
40 [“Order”].) The Court concluded that Plaintiffs had not “‘pursued discovery
diligently’” but had instead “made a strategic decision not to conduct any discovery
before November 2017, when they retained additional counsel.” (Order ¶ 7 (quoting
BCR 10.4(a)).) In addition, “[t]he fact that counsel experienced adverse personal
events during the last few months of the discovery period [did] not excuse the failure
to conduct any discovery whatsoever during the ten months since this case was filed
or to seek timely relief from the Court.” (Order ¶ 9.) Finally, the Court concluded
that the requested extension would substantially prejudice Defendants but that “any
prejudice to Plaintiffs resulting from the motion’s denial [was] entirely self-inflicted.”
(Order ¶ 10.)
9. On April 23, 2018, Plaintiffs moved for reconsideration pursuant to Rules
54(b) and 60(b)(6) of the North Carolina Rules of Civil Procedure. (ECF No. 41 [“Mot.
to Reconsider”].) The motion has been fully briefed and is ripe for determination. By
statute, this Court is required to issue a written opinion in connection with all orders
granting or denying relief under Rule 60. See N.C. Gen. Stat. § 7A-45.3. The Court
elects to do so without a hearing. See BCR 7.4.
II.
ANALYSIS
10. The Business Court Rules clearly state that “[e]ach party is responsible for
ensuring that it can complete discovery within the time period in the Case
Management Order.” BCR 10.4(a). In this case, the Court adopted the extended
discovery schedule proposed jointly by the parties. Despite the extended schedule,
Plaintiffs elected not to start, much less complete, discovery until it was too late.
When they sought to revive deadlines that had already passed, the Court denied relief
and enforced the deadlines stated in the Case Management Order. See, e.g., In re
Pedestrian Walkway Failure, 173 N.C. App. 254, 265,
618 S.E.2d 796, 804 (2005)
(affirming trial court’s enforcement of case management deadlines); see also United
States v. Golden Elevator,
27 F.3d 301, 302 (7th Cir. 1994) (“Time limits coordinate
and expedite a complex process.”); United States ex rel. Tyson v. Amerigroup Ill., Inc.,
230 F.R.D. 538, 545 (N.D. Ill. 2005) (“Complex cases . . . must have enforceable
discovery deadlines.”).
11. Plaintiffs now ask the Court to reconsider. Among other things, Plaintiffs
request that the Court eliminate the existing period for expert discovery in the Case
Management Order, reopen the period for general fact discovery, and require
Defendants to respond to the discovery requests served in March 2018. For the
following reasons, the Court denies the motion.
A. Rule 60(b)
12. Plaintiffs do not seek appropriate relief under Rule 60(b)(6) because the
Court’s April 17 Order was interlocutory, rather than final. Our appellate courts
have repeatedly held that, “[b]y its express terms, Rule 60(b) only applies to final
judgments, orders, or proceedings; it has no application to interlocutory orders.” Pratt
v. Staton, 147 N.C. App. 771, 775,
556 S.E.2d 621, 624 (2001); see also Sink v. Easter,
288 N.C. 183, 196,
217 S.E.2d 532, 540 (1975); Rupe v. Hucks-Follis, 170 N.C App.
188, 191,
611 S.E.2d 867, 869 (2005). “A final judgment is one which disposes of the
cause as to all the parties, leaving nothing to be judicially determined between them
in the trial court.” Pentecostal Pilgrims & Strangers Corp. v. Connor,
202 N.C. App.
128, 132,
688 S.E.2d 81, 83–84 (2010) (quoting Veazy v. Durham,
231 N.C. 357, 361,
57 S.E.2d 377, 381 (1950)).
13. The Court’s April 17 Order dealt solely with enforcing the parties’ agreed-to
discovery deadlines and did not dispose of any claim as to any party. See id.; see also
Sharpe v. Worland,
351 N.C. 159, 162,
522 S.E.2d 577, 579 (1999) (“[T]he trial court’s
discovery order is interlocutory because it does not dispose of the case, but instead
leaves it for further action by the trial court in order to settle and determine the entire
controversy.” (citation and quotation marks omitted)). Accordingly, the Court denies
the motion to reconsider under Rule 60(b)(6).
B. Rule 54(b)
14. Plaintiffs also seek relief under Rule 54(b) (although the motion
inadvertently refers to Rule 54(a)). Interlocutory orders are “subject to revision at
any time before the entry of judgment adjudicating all the claims and the rights and
liabilities of all the parties.” N.C. R. Civ. P. 54(b). “Although the North Carolina
courts have not formulated a standard to guide trial courts in considering a motion
to amend an interlocutory ruling under Rule 54(b), federal case law addressing
similarly worded portions of Federal Rule 54(b) provides useful guidance.” W4
Farms, Inc. v. Tyson Farms, Inc., 2017 NCBC LEXIS 99, at *4–5 (N.C. Super. Ct. Oct.
19, 2017) (citation and quotation marks omitted).
15. The purpose of a motion to reconsider “is not to present a better and more
compelling argument that the party could have presented in the original briefs.”
Madison River Mgmt. Co. v. Bus. Mgmt. Software Corp.,
402 F. Supp. 2d 617, 619
(M.D.N.C. 2005). Rather, the motion 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.” Pender v. Bank of Am. Corp.,
2011 U.S. Dist. LEXIS 1838, at *7
(W.D.N.C. Jan. 7, 2011) (citing Akeva L.L.C. v. Adidas Am., Inc.,
385 F. Supp. 2d 559,
565 (M.D.N.C. 2005)); see also Official Comm. of Unsecured Creditors of Color Tile,
Inc. v. Coopers & Lybrand, L.L.P.,
322 F.3d 147, 167 (2d Cir. 2003); United States v.
Duke Energy Corp.,
218 F.R.D. 468, 474 (M.D.N.C. 2003); W4 Farms,
2017 NCBC
LEXIS 99, at *5. These circumstances “rarely arise and the motion to reconsider
should be equally rare.” DirecTV, Inc. v. Hart,
366 F. Supp. 2d 315, 317 (E.D.N.C.
2004) (quoting Harsco Corp. v. Zlotnicki,
779 F.2d 906, 909 (3d Cir. 1985)). A motion
pursuant to Rule 54(b) is within the trial court’s discretion. Akeva,
385 F. Supp. 2d
at 565; W4 Farms,
2017 NCBC LEXIS 99, at *5.
16. Plaintiffs have not identified any new evidence, intervening changes in the
law, or manifest injustice in need of correction. Instead, Plaintiffs renew their
attempt to show good cause or excusable neglect by “incorporat[ing] the previously
filed motion, brief and arguments of counsel.” (Pls.’ Br. Supp. Mot. to Clarify &
Reconsider 3, ECF No. 42 [“Br. Supp. Mot. to Reconsider”].) Because the Court has
considered and rejected these arguments, they are not appropriate grounds for
reconsideration.
17. Plaintiffs also make a new argument: that the Court should convert the
expert discovery period into an additional period of fact discovery and then require
“Defendants to answer the written discovery requests served by Plaintiffs on March
6, 2018 and March 23, 2018.” (Br. Supp. Mot. to Reconsider 2; see also Pls.’ Reply Br.
Supp. Mot. to Clarify & Reconsider 2, ECF No. 46 [“Reply Supp. Mot. to Reconsider”].)
Plaintiffs contend this modification would “facilitate the completion of fact discovery”
without prejudicing Defendants or requiring the extension of any other case
management deadlines, while also furthering “the important goals of pre-[trial]
discovery to narrow and sharpen the basic issues and facts.” (Br. Supp. Mot. to
Reconsider 2–3; see also Reply Supp. Mot. to Reconsider 5.)
18. The Court disagrees. Plaintiffs’ argument is one it “could have presented in
[its] original [motion and] briefs.” Madison River Mgmt.,
402 F. Supp. 2d at 619.
Plaintiffs filed their motion to modify two weeks after the deadline to disclose experts
had lapsed, but by that time had made no expert disclosure. (See Mot. to Modify 1.)
Plaintiffs knew then that their motion was untimely. They were also aware that
Defendants objected to a three-month extension of the fact and expert discovery
deadlines because it would impose on them substantial prejudice. (See Defs.’ Mem.
Opp’n to Pls.’ Mot. to Modify Case Mgmt. Order 7–11, ECF No. 33.) Nothing
prevented Plaintiffs from seeking the extension they request now.
19. Contrary to Plaintiffs’ argument, “the interests of justice” do not “favor”
reopening the period for general fact discovery and requiring Defendants to provide
discovery responses. (Reply Supp. Mot. to Reconsider 4.) Plaintiffs initiated this
action; sought and received a preliminary injunction against Defendants; agreed to
an extended discovery period; and then did virtually nothing. Having failed to
“pursue[] discovery diligently,” Plaintiffs are not entitled to yet more time so that
they can begin to do so now. BCR 10.4(a).
20. Furthermore, as the Court explained in its April 17 Order, Defendants “had
a right to expect that having been set,” the case management deadlines would “be
honored.” Amerigroup Ill.,
230 F.R.D. at 545. Reopening fact discovery as Plaintiffs
request would require Defendants to provide full discovery responses on a condensed
schedule—all to accommodate Plaintiffs’ delay. This would not be an equitable
outcome.
21. In short, the Court discerns no manifest injustice that would result from
enforcing the discovery deadlines. The parties agreed that Plaintiffs may depose
Defendants, and the April 17 Order allows those depositions to proceed. Any other
prejudice to Plaintiffs resulting from their tardy discovery efforts “is entirely self-
inflicted.” (Order ¶ 10.)
22. Accordingly, the Court denies the motion to reconsider under Rule 54(b).
C. Clarification
23. Plaintiffs also seek clarification of the April 17 Order. Plaintiffs first request
that the Court clarify (1) “whether Defendants will be required to identify any expert
they intend to rely on at trial” and (2) “whether Defendants will be required to provide
to Plaintiffs documents and things upon which Defendants intend to rely at trial.”
(Mot. to Reconsider 1.) These points require no clarification because they are
governed by the Case Management Order and Business Court Rule 12.
24. In addition, Plaintiffs seek authorization to notice Defendants to bring
documents to depositions they have agreed to hold after the discovery period. (Mot.
to Reconsider 1.) This is not a request for clarification. It is instead, as Defendants
correctly observe, “a back-door attempt to obtain documents to which they are not
entitled” pursuant to the April 17 Order. (Defs.’ Mem. Opp’n to Pls.’ Mot. to
Reconsider 6, ECF No. 45 [“Mem. Opp’n”].) Defendants assert, and Plaintiffs do not
deny, that the deposition notices served by Plaintiffs “did not include requests
pursuant to Rule 34 for production of documents and tangible things.” (Mem. Opp’n
7.) The Court denies Plaintiffs’ belated request for the production of documents.
III.
CONCLUSION
25. For these reasons, the Court DENIES the motion.
This the 16th day of May, 2018.
/s/ Adam M. Conrad
Adam M. Conrad
Special Superior Court Judge
for Complex Business Cases
