The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:17-CV-00295-FL
Elena Coleman, on behalf of minor child,
N.C.
Plaintiff,
Order
v.
Wake County Board of Education, et al
Defendant.
In 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.
Because 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 conferral.
I. Background
During 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.
Upon a 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.
Several 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.
In June 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.
Because 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).
II. Discussion
Federal 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).
In most 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, 2015) (same).
Although 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
meeting).
Coleman 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 failed to comply with Rule 37’s
meet and confer requirement, and, as a result, her motion is dismissed without prejudice.
III. Conclusion
Coleman has not provided Wake County a meaningful opportunity to resolve her disputes
with its discovery responses because she did not inform Wake County that there were any
deficiencies with its discovery responses. And Coleman has not produced any contradictory
proof that she made them aware of any problems before she filed her motion to compel.
Because she did not attempt to resolve her discovery issues before filing her motion to
compel, the court dismisses Coleman’s motion to compel without prejudice. If Coleman wishes
to pursue her motion, she shall set up a time to discuss her concerns with Wake County’s
attorneys. If Coleman is still dissatisfied with the discovery responses after discussing the matter
with Wake County, she may refile her motion to compel (which must include the certification
required by Rule 37).
Dated: July 8, 2019 JS
RobertT.Numbers, I
United States Magistrate Judge