DAVIS v. DAVIS FUNERAL SERV., INC., 2024 NCBC 20

STATE OF NORTH CAROLINA
UNION COUNTY
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
22 CVS 583
WESTON DAVIS,
Plaintiff,
v.
DAVIS FUNERAL SERVICE, INC.;
and PHILLIP TILLMAN, Vice
President (individually and as an
officer of Davis Funeral Service, Inc.),
Defendants/Third-
Party Plaintiffs,
v.
DEIDRA TEDDER,
Third-Party
Defendant.
ORDER AND
OPINION FOLLOWING
SHOW CAUSE HEARING
Brown & Associates, PLLC, by Donald Mitchell Brown, for Plaintiff
Weston Davis.
Burns, Gray & Gray, by John T. Burns and Christopher A. Gray, for
Defendants Davis Funeral Service, Inc. and Phillip Tillman.
Villmer Caudill, PLLC, by Bo Caudill, for Third-Party Defendant Deidre
Tedder.
Conrad, Judge.
1. 	Timely compliance with court orders is essential to the fair and efficient
administration of justice. 	Here, Plaintiff Weston Davis and Defendants Davis
Funeral Service, Inc. and Phillip Tillman disregarded deadlines for two mandatory
pretrial submissions, resulting in the cancellation of a scheduled jury trial. The Court
directed both sides to appear and show cause why they should not be sanctioned.
Davis v. Davis Funeral Serv., Inc., 2024 NCBC 20.

After careful consideration and following a hearing on 26 February 2024, the Court
now rules as follows.
2. 	This case arises from an employment dispute. 	Davis is Davis Funeral
Service’s past president. After the company fired him in late 2021, Davis sued it and
its officers, including Tillman, for unpaid wages and defamation. 	Davis Funeral
Service counterclaimed based on allegations that Davis breached his fiduciary duties
during his tenure as president. 	Davis Funeral Service also asserted third-party
claims against another former employee, Deidre Tedder, who then counterclaimed for
unpaid wages.
3. 	At summary judgment, the Court narrowed Davis’s claims, dismissed Davis
Funeral Service’s third-party claims against Tedder, and concluded that Davis
Funeral Service was liable to Tedder as a matter of law on her counterclaims. 	See
Davis v. Davis Funeral Serv., Inc., 2023 NCBC LEXIS 133 (N.C. Super. Ct. Oct. 25,
2023); Davis v. Davis Funeral Serv., Inc., 2023 NCBC LEXIS 79 (N.C. Super. Ct. June
12, 2023).* After these decisions, the parties jointly moved for separate trials on the
remaining issues: a jury trial on the claims and counterclaims between Davis and
Davis Funeral Service to be followed by a bench trial on the damages that Tedder is
entitled to recover from Davis Funeral Service. (See ECF No. 69.) The Court granted
that motion. (See ECF No. 70.)
* Having resolved the motions for summary judgment, the Court ordered the parties’ counsel
to confer and report by e-mail their estimate of the length of trial for the remaining claims
and counterclaims on or before 30 October 2023. 	Tedder’s counsel timely submitted an
estimate on her behalf and on Davis’s behalf. Counsel for Davis Funeral Service and Tillman
ignored the order and submitted their estimate only after receiving an inquiry from the
Court.

4. 	With counsel’s consent, the Court set the jury trial to begin on 11 March
2024. The Court also issued a pretrial scheduling order, which required the parties
(excluding Tedder) to submit their proposed pretrial order no later than 5 February
2024 and their proposed verdict forms and jury instructions no later than 19 February
2024. 	(See Pretrial Sched. Order, ECF No. 73.) 	The final pretrial hearing was to
follow on 26 February 2024.
5. 	Davis, Davis Funeral Service, and Tillman did not submit their proposed
pretrial order on time. 	Three days after the deadline expired, the Court issued an
order directing them to cure their noncompliance immediately and warning that a
further lapse may result in sanctions, including dismissal of all pending claims. (See
Order Regarding Failure to Comply with Pretrial Sched. Order, ECF No. 79.) 	Only
then did they file the proposed pretrial order.
6. 	Just days later, and despite the warning, both sides missed the deadline to
file proposed verdict forms and jury instructions. 	This second violation was one too
many. The Court canceled the pretrial hearing, canceled the trial, and directed both
sides to appear and show cause why they should not be sanctioned for disregarding
its orders. The Court also advised that it was “considering severe sanctions, including
the dismissal of Plaintiff’s claims and Defendants’ counterclaims,” and gave these
parties a chance to explain their conduct in writing. 	(Order Regarding Further
Failure to Comply with Pretrial Sched. Order ¶ 6(c), ECF No. 82.)
7. 	Strikingly, Davis Funeral Service and Tillman chose not to submit a written
statement. 	And at the hearing, their counsel offered no explanation or justification

whatsoever for having disregarded court-ordered filing deadlines. Davis’s counsel did
file a written statement to disclose a personal matter that made it harder for him to
meet the relevant deadlines. 	But he did not explain why he chose to ignore the
deadlines rather than ask to extend them, especially after having received the Court’s
warning.
8. 	Disobedience to court orders is no small matter. 	That is why the Rules of
Civil Procedure authorize trial courts to dismiss a claim or action when a party fails
to comply with “any order of court.” 	N.C. R. Civ. P. 41(b). 	Indeed, “the power to
sanction disobedient parties, even to the point of dismissing their actions or striking
their defenses, did not originate with Rule 41(b). 	It is longstanding and inherent.”
Minor v. Minor, 62 N.C. App. 750, 752 (1983); see also Red Valve, Inc. v. Titan Valve,
Inc., 2019 NCBC LEXIS 57, at *39 (N.C. Super. Ct. Sept. 3, 2019).
9. 	As federal courts have stressed, “[t]his principle applies with undiminished
force to scheduling orders.” Tower Ventures, Inc. v. City of Westfield, 296 F.3d 43, 46
(1st Cir. 2002). 	“A scheduling order is not a frivolous piece of paper, idly entered,
which can be cavalierly disregarded by counsel without peril.” Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992). “To manage a crowded calendar
efficiently and effectively, a trial court must take an active role in case management.
Scheduling orders are essential tools in that process—and a party’s disregard of such
orders robs them of their utility.” Tower Ventures, 296 F.3d at 46. Put another way,
“a court cannot effectively manage a case when its orders are viewed by counsel not
as mandates to be followed, but as suggestions to be complied with if, when and how

counsel’s judgment dictates.” 	Loop AI Labs Inc. v. Gatti, 2017 U.S. Dist. LEXIS
34109, at *44 (N.D. Cal. Mar. 9, 2017).
10. 	So it is here. 	Jury trials are demanding: they take time, tax judicial
resources, and crowd out other cases on the docket. 	One purpose of a pretrial
scheduling order is to conserve resources by ensuring that a case set for trial is ready
to proceed without delay. The parties’ repeated failures to comply with the pretrial
scheduling order in this case thwarted that purpose, necessitating the cancellation of
a trial that had been scheduled for months and forcing the Court to spend its time
policing their compliance instead of attending to other matters.
11. 	Among those other matters is the bench trial on Tedder’s damages. 	After
separating the issues for trial, the Court deferred the bench trial to accommodate the
jury trial on Davis’s dispute with Davis Funeral Service and Tillman. Now, the jury
trial is canceled, and Tedder is no closer to seeing her claims to the finish line than
she was at the time the trials were separated. Through no fault of her own, her right
to resolve her claims expeditiously has been frustrated.
12. 	Perhaps most disconcerting is the lack of any satisfying explanation. 	This
is especially true for the second missed deadline, which came on the heels of an
express warning to the parties to comply with the pretrial scheduling order or ignore
it at their peril. Davis Funeral Service and Tillman concede that they had no reason
at all, much less a good one, for defying two court-ordered deadlines. Davis pointed
to circumstances that could have supported an extension of at least one of those
deadlines if only he had asked. And there’s the rub: rather than take the simple step

of asking for relief, the parties ignored the deadline to submit verdict forms and jury
instructions 	and 	dared 	the 	Court 	to 	make 	good 	on 	its 	warning 	that 	further
noncompliance would result in sanctions.
13. 	In 	short, 	by 	repeatedly 	disregarding 	judicial 	directives, 	Davis, 	Davis
Funeral Service, and Tillman have wasted the Court’s resources, prejudiced Tedder,
and interfered with the expeditious resolution of this litigation. Their conduct merits
sanctions.
14. 	The most drastic sanction—dismissal with prejudice—would be too harsh.
Courts strive to decide cases on their merits, not on procedural lapses. 	The parties’
conduct is not so egregious that they have forfeited all right to pursue relief against
one another. See Wilder v. Wilder, 146 N.C. App. 574, 576 (2001) (stating that “claims
should be involuntarily dismissed only when lesser sanctions are not appropriate to
remedy [a] procedural violation,” given that one “underlying purpose of the judicial
system is to decide cases on their merits”).
15. 	Dismissal without prejudice, on the other hand, is a befitting and less drastic
sanction. This is a strong sanction that upholds the integrity of the judicial process
and underscores the need to comply with court orders. 	At the same time, it leaves
the parties free to litigate their claims against one another in the future. See Foy v.
Hunter, 106 N.C. App. 614, 620 (1992) (describing “dismissal without prejudice” as a
“[l]ess drastic sanction[]”); Miller v. Ferree, 84 N.C. App. 135, 137 (1987) (same).
16. 	Moreover, no other lesser sanction is up to the task. 	Most sanctions are
designed to coerce a wayward party to fulfill its obligations and to mitigate prejudice

to the other parties. What makes this case uniquely distressing is that both sides are
equally at fault, which narrows the range of suitable sanctions. Monetary sanctions,
for example, would cancel out and serve no purpose. Evidentiary sanctions (that is,
excluding witnesses or exhibits) might inequitably affect one side more than the other
and would very likely put both sides in a worse position than a dismissal without
prejudice. 	The most equitable and appropriate sanction for the parties’ mutual
disregard 	of 	court 	orders 	is 	to 	clean 	the 	slate 	and 	dismiss 	their 	claims 	and
counterclaims without prejudice.
17. 	Accordingly, in its discretion, the Court ORDERS that Plaintiff Weston
Davis’s complaint and Defendants’ counterclaims are dismissed without prejudice,
and they shall bear their own costs.
SO ORDERED, this the 15th day of March, 2024.
/s/ Adam M. Conrad
Adam M. Conrad
Special Superior Court Judge
for Complex Business Cases