holding party who prevailed on motion to compel discovery responses entitled to reasonable expenses where a good faith effort was made to obtain discovery and no legal authority existed for non-moving party’s refusal to produce responses
How later courts described this case
- holding party who prevailed on motion to compel discovery responses entitled to reasonable expenses where a good faith effort was made to obtain discovery and no legal authority existed for non-moving party’s refusal to produce responses
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA .
SOUTHERN DIVISION
No. 7:20-CV-85-D
JEANNIE MAE BARDEN, et al., )
Plaintiffs,
v. ORDER
_ MURPHY-BROWN LLC, et al.,
Defendants.
This matter comes before the court on Defendants’ motion to compel Plaintiffs to permit
entry onto/into land and property and for an award of fees and costs. [DE-65]. No response to the
motion was filed, and the time to do so has expired. For the reasons set forth below, Defendants’
motion to compel entry is allowed, and the fee-award issue is reserved for ruling.
Plaintiffs brought claims of trespass and negligence against Defendants, alleging that
Defendants’ hogs housed in close proximity to Plaintiffs’ properties caused airborne dust, urine, □
particles from feed, manure, dander, and other manure contaminants to enter on Plaintiffs’
properties and that flies, buzzards, and other insects scavenge on the contaminants, which impairs
Plaintiffs’ enjoyment and use of their properties. 2d Am. Compl. [DE-54] at 45-50. Defendants
contend Plaintiffs have placed their residences and properties located in Kenansville and Magnolia,
North Carolina at issue in this case by advancing claims about their homes, and Defendants assert
a compelling need to enter Plaintiffs’ residences and properties to gather information and evidence
for trial. Defs.” Mem. [DE-66] at 2.
Counsel for the parties conferred and reached an agreement that the property visits would
occur on June 8 and 9, 2022, and Defendants’ counsel issued a Rule 34(a)(2) request for entry
consistent with that agreement, to which no objection was lodged. Defs.” Mem. [DE-66] at 2;
Request for Entry, Ex. A [DE-66-1] at 5-8. Defendants’ counsel, expert and consultants, and
photographer and videographer travelled to Kenansville and Magnolia on the morning of June 8
to proceed with the property visits. Defs.’ Mem. [DE-66] at 3. Defendants’ counsel called
Plaintiffs’ counsel to advise they would be arriving shortly, and Plaintiffs’ counsel stated that
Plaintiffs had not been contacted to consent to or expect Defendants’ property visit and that
Plaintiffs’ counsel were not in Kenansville or Magnolia. Jd. at 3-4. Plaintiffs’ counsel attempted
to contact Plaintiffs that morning to arrange the property visits, but no Plaintiffs that could be
reached would permit Defendants’ group to access their properties at that time. Jd. at 4. A July 5,
2022 letter from Defendants’ counsel to Plaintiffs’ counsel regarding rescheduling the property
visits went unanswered. Id.
Rule 34(a)(2) of the Federal Rules of Civil Procedure allows a party to serve a request “to
permit entry onto designated land or other property possessed or controlled by the responding
party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the
property or any designated object or operation on it.” Rule 37(a)(3)(B)(iv) allows a party to move
to compel a site inspection. However, “[t]he court may, for good cause, issue an order to protect
a party or person from annoyance, embarrassment, oppression, or undue burden or expense... .”
Fed. R. Civ. P. 26(c)(1). Thus, “the degree to which the proposed inspection will aid in the search
for truth must be balanced against the burdens and dangers created by the inspection.” Belcher v.
Bassett Furniture Indus., Inc., 588 F.2d 904, 908 (4th Cir. 1978) (footnote omitted).
The court finds that Plaintiffs have placed their respective properties at issue in this matter
and that Defendants have shown good cause to permit entry onto Plaintiffs’ land for inspection
and other purposes consistent with Rule 34(a)(2) and upon the terms set forth in the previously
served request, [DE-66-1] at 5-8, which terms may be modified by the agreement of counsel.
Accordingly, the motion to compel is allowed. Counsel shall confer regarding two mutually
agreeable consecutive dates for the property visits, which shall be completed by no later than
October 7, 2022.
Plaintiffs are cautioned that a failure to permit entry and inspection of their
properties in conformity with this order may result in sanctions, including dismissal of their
claims for failure to comply with discovery obligations, failure to comply with the court’s
order, and failure to prosecute. Fed. R. Civ. P. 37(b)(2)(A).
Defendants also request an award of costs and fees incurred in bringing the motion to
compel and for attempting to conduct the previously scheduled June 8 and 9 property visits. Defs.’
Mem. [DE-66] at 6.
If the motion [to compel] is granted—or if the disclosure or requested discovery is
provided after the motion was filed—the court must, after giving an opportunity to
be heard, require the party or deponent whose conduct necessitated the motion, the
party or attorney advising that conduct, or both to pay the movant’s reasonable
expenses incurred in making the motion, including attorney’s fees.
Fed. R. Civ. P. 37(a)(5)(A). Courts have held that an award of reasonable expenses incurred is
appropriate where the moving party has acted in good faith, attempted to resolve the matter without
court intervention, and the non-moving party has failed to comply with its obligations under the
Federal Rules of Civil Procedure. See, e.g., Gardner v. AMF Bowling Ctrs., Inc., 271 F. Supp. 2d
732, 733-34 (D. Md. 2003) (holding defendant entitled to discovery sanction and attorney’s fees
where plaintiff failed to respond to discovery requests by due date, defendant advised plaintiff's
counsel in writing that responses were past due, and plaintiff did not respond to defendant’s letters
or to motion for sanctions); Biovail Corp. v. Mylan Labs., Inc., 217 F.R.D. 380, 382 (N.D.W.Va.
2003) (holding party who prevailed on motion to compel discovery responses entitled to
reasonable expenses where a good faith effort was made to obtain discovery and no legal authority
existed for non-moving party’s refusal to produce responses).
Plaintiffs failed to permit entry and inspection of their properties under terms to which
Plaintiffs’ counsel agreed and to which Plaintiffs lodged no objection. Defendants made good-
faith attempts to obtain entry without court intervention, and Plaintiffs failed to respond to the
motion to compel and request for fees and costs. The court finds that Defendants are entitled to
an award of fees and costs incurred in bringing the motion to compel and for attempting to conduct
the previously scheduled June 8 and 9 property visits. Accordingly, Defendants shall file by
October 12, 2022, an affidavit setting out their reasonable costs and fees and a supportive
memorandum of law, and any response shall be filed by no later than October 26, 2022. If
Plaintiffs fail to timely respond, the court will deem them to have no objection to the costs
and fees claimed by Defendants and to have waived the right to be heard.
SO ORDERED, the /# day of September, 2022.
United States Magistrate Judge