Jdh Capital LLC v. Flowers

JDH Capital LLC v. Flowers, 2007 NCBC 31

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF MECKLENBURG 07 CVS 5354

JDH CAPITAL LLC,

Plaintiff,

v. ORDER ON MOTION TO COMPEL AND
MOTIONS FOR SANCTIONS
REBECCA D. FLOWERS, DWF
DEVELOPMENT, INC., and FLOWERS
PLANTATION FOUNDATION, INC.
f/k/a FLOWERS PLANTATION, INC. ,

Defendants.

{1} This case arises out of Plaintiff’s suit for breach of contract, unjust
enrichment, fraud, negligent misrepresentation, and unfair and deceptive trade
practices. This matter comes before the Court on Defendant Flowers’ Motion to
Compel Discovery and Motion for Sanctions and Plaintiff’s Motion for Sanctions.
{2} After considering the briefs, the Court GRANTS Defendant’s Motion to
Compel Discovery, DENIES Defendant’s Motion for Sanctions, and DENIES
Plaintiff’s Motion for Sanctions.

Johnston Allison & Hord by Robert L. Burchette, Daniel A. Merlin, and
Martin L. White for Plaintiffs.

Manning, Fulton & Skinner, PA by Michael T. Medford and William S.
Cherry III for Defendants.

Tennille, Judge.

{2} This matter is before the Court on Defendant Flowers’ Motions to Compel
Discovery and for Sanctions, dated August 31, 2007, and Plaintiff’s Motion for
Sanctions, dated September 19, 2007, in the above captioned case. Prior to the
filings of these motions, Plaintiff filed a Motion for Extension of Time to respond to
Defendant Flowers’ interrogatories with the Clerk of Mecklenburg County Superior
Court.
{3} The above captioned case was designated a Mandatory Complex Business
Case by virtue of the Notice of Designation of Action as Mandatory Complex
Business Case Under N.C. Gen. Stat. § 7A-45.4, dated April 20, 2007. This case
was assigned to the undersigned Special Superior Court Judge on April 30, 2007.
Business Court Rule 9.2 states in no uncertain terms that “all motions to extend
any of the times prescribed or allowed by these Rules, the North Carolina Rules of
Civil Procedure, or by court order, shall be directed to the Business Court Judge
assigned to the case.” BCR 9.2 (2006) (emphasis added).
{4} Plaintiff’s Motion for Extension of Time was filed with the Clerk “[a]lmost
two months” after the case was designated a Mandatory Complex Business Case
and assigned to the undersigned Special Superior Court Judge. (Def.’s Br. 3.) The
Court notes that Plaintiff has made no objection to these statements regarding the
timing and place of filing its motion. The Motion for Extension of Time was filed in
the incorrect court according to the Business Court Rules. Thus, Plaintiff’s
objection to Defendant Flowers’ interrogatories was not properly filed and will not
be considered by the Court.
{5} If Plaintiff had filed the Motion for Extension of Time in the correct court,
i.e., the Business Court, the Motion would have been improper. Business Court
Rule 9.2 requires the movant for any motion for extended time to “first consult with
any opposing party” before filing the motion. BCR 9.2. Plaintiff has not provided
any evidence that there was such a consultation before the Motion for Extension of
Time was filed in Mecklenburg County Superior Court. Thus, Plaintiff’s objection to
Defendant Flowers’ interrogatories was not properly filed.
{6} Were the Court to consider the objection on the merits, Plaintiff would still
not prevail. Plaintiff’s interpretation of the rules governing interrogatory parts is
incorrect, without merit, and unsupported by the vast majority of legal authority.
North Carolina’s rule on interrogatories states that “[i]nterrogatory parts and
subparts shall be counted as separate interrogatories for purposes of [Section 1A-1,
Rule 33 of the General Statutes of North Carolina].” N.C. Gen. Stat. § 1A-1, Rule
33(a) (2005). The Federal Rule of Civil Procedure dealing with interrogatories
states that the number of interrogatories shall not exceed twenty-five “including all
discrete subparts.” Fed. R. Civ. P. 33(a). The Federal rule was designed to stop
attorneys from “evad[ing] [the twenty-five interrogatory] limitation through the
device of joining as ‘subparts’ questions that seek information about discrete
separate subjects.” Fed. R. Civ. P. 33 advisory committee’s note (1993). The same
can be said for the North Carolina Rule of Civil Procedure addressing
interrogatories.
{7} The question for the trial court to decide is whether the interrogatory
subpart is requesting “several pieces of disparate information.” BENDER’S FORMS OF
DISCOVERY TREATISE § 3.14(1)(a); see also Safeco Ins. Co. of Am. v. Rawstron, 181
F.R.D. 441, 444–45 (1998) (discussing the flexible approach to interpreting
interrogatory subparts and reasoning that the Federal Rules of Civil Procedure
favored the flexible approach allowing the trial court discretion on when to decide if
a subpart was requesting information about discrete subjects). One heavily cited
case interpreted interrogatory “subparts” similar to the ones at issue here to count
as only one interrogatory because all of the subparts were “sufficiently related to
the primary question.” 1 Ginn v. Gemini, Inc. 137 F.R.D. 320, 322 (1991). In an
unpublished decision, the 4th Circuit cited Ginn through Kendall v. GES Exposition
Servs., 174 F.R.D. 684 (D. Nev. 1997), to find that the pertinent question was the
subject matter of the interrogatories. Am. Chiropractic Ass’n v. Trigon Healthcare,
Inc., No. 1:00CV00113, 2002 U.S. Dist. LEXIS 14327, at *3–4 (W.D. Va. 2002)
(deciding that asking the same question to five different plaintiffs was still only one

1 The Plaintiff discards cases such as Ginn which were cited by Defendant for not being North
Carolina authority, relying solely on a plain meaning interpretation of the statute. Plaintiff noted
though that there are no North Carolina cases concerning interpreting “subparts” in North Carolina
General Statute § 1A-1, Rule 33(a). (Pl.’s Br. Opp. Def.’s Mot. Compel Disc. and Pl.’s Mot. Sanctions
3.) The Court notes that the Ginn decision has been followed in the 6th, 9th, 10th, and 11th Circuits.
interrogatory). Plaintiff would have this court ignore the subject matter and focus
instead on the literal number of facts requested in the interrogatory.
{8} Plaintiff contends that an interrogatory which asks for multiple answers
must be multiple interrogatories. (Pl.’s Br. Opp. Def.’s Mot. Compel Disc. and Pl.’s
Mot. Sanctions 4–5.) The Court disagrees. Interrogatories are designed to elicit
facts in a cost-efficient manner. Plaintiff’s interpretation of the rules would
severely limit interrogatories to one-event, one-fact questions. That interpretation
is counter to the reason for using interrogatories.
{9} Based on the foregoing, it is hereby ORDERED, ADJUDGED, and
DECREED:
1. Defendant Flowers’ Motion to Compel is hereby GRANTED. Plaintiff shall
answer the interrogatories in full within twenty (20) days of today’s date.
2. Plaintiff’s Motion for Sanctions is hereby DENIED.
3. Defendant Flowers’ Motion for Sanctions is hereby DENIED.

IT IS SO ORDERED this the 12th day of October, 2007.