In re Terry

CourtUnited States District Courts. 4th Circuit. Middle District of North Carolina
Decision Date14 March 2017
Docket Number1:16cv256
PartiesSEAN V. TERRY, Plaintiff, v. SWIFT TRANSPORTATION, Defendant.

This case comes before the undersigned United States Magistrate Judge for a recommendation on "Defendant's Motion to Dismiss" (Docket Entry 10) (the "Motion to Dismiss"), as well as for orders on the "Motion to Amend Relief" (Docket Entry 22), the "Motion to Subpoena" (Docket Entry 16), the "Motion to Compel Discovery" (Docket Entry 26) (the "Motion to Compel"), the "Motion to Bifurcate" (Docket Entry 23), the "Motion to Strike" (Docket Entry 28), and the "Motion to Leave" (Docket Entry 17). For the reasons that follow, the Court (1) will grant the Motion to Amend Relief, (2) will deny the Motion to Subpoena, Motion to Compel, Motion to Bifurcate, Motion to Strike, and Motion to Leave, and (3) should grant in part and deny in part the Motion to Dismiss.


In March 2016, Sean V. Terry (the "Plaintiff") commenced this action against Swift Transportation (the "Defendant") in the United States District Court for the District of Columbia (the "D.C. Court"). (See Docket Entry 1.) As "[n]one of the parties appear to reside or conduct business in the District of Columbia, and it does not appear that any of the events giving rise to . . . [P]laintiff's claims occurred [t]here" (Docket Entry 3 at 1),1 the D.C. Court transferred the action to this Court (id. at 2). Thereafter, Plaintiff filed an Amended Complaint, which elaborates upon the factual allegations underlying his claims against Defendant. (Compare Docket Entry 5, with Docket Entry 1.)

Specifically, Plaintiff asserts an invasion of privacy claim regarding the alleged manner in which Defendant's "Medical Review Officer" (occasionally, the "MRO") conducted his Commercial Driver's License (the "CDL") physical "[d]uring the week of 01/27/2009," when Plaintiff "attended an orientation at [Defendant's] Greer, South Carolina Terminal." (Docket Entry 5 at 1, 3; see also Docket Entry 14 at 1 (discussing "the 2009 claim of Invasion of Privacy").) Plaintiff further maintains that Defendant defamed him by falsely reporting to at least six prospective employers that Plaintiff "failed a drug test." (Docket Entry 5 at 2.) According to Plaintiff, this "libel was last published in June 2015." (Id.) These false reports, Plaintiff contends, also violate 49 C.F.R. §§ 390.35, 390.37. (Id. at 2-3.) The former regulation prohibits the making of intentionally false statementsin records required by the Federal Motor Carrier Safety Regulations (the "FMCSR"), see 49 C.F.R. § 390.35(a), and the latter regulation provides that "[a]ny person who violates [Section 390.35] . . . may be subject to civil or criminal penalties," 49 C.F.R. § 390.37.

Additionally, Plaintiff contends that Defendant violated his rights under the Fair Credit Reporting Act (the "FCRA") when Defendant sent him home from "orientation at the Greer, South Carolina Terminal in 2014" without "provid[ing] a reason" for his termination. (Id. at 2.) Finally, Plaintiff asserts a Title VII discrimination claim against Defendant for allegedly "Black Ball[ing]" him with other employers and terminating his participation in Defendant's orientation for racial reasons. (Id.) In connection with these claims, the Amended Complaint "seeks $23 million dollars compensatory and punitive damages, and an injunction." (Id. at 3.)

Defendant moved to dismiss Plaintiff's Amended Complaint. (See Docket Entry 10.) In addition to responding to Defendant's Motion to Dismiss (see Docket Entries 14-15), Plaintiff filed multiple motions (see Docket Entries 16-17, 22-23, 26, 28), to which Defendant responded (see Docket Entries 19-20, 24-25, 27, 29).

I. Plaintiff's Motions
A. Motion to Amend Relief

Plaintiff seeks leave to add the following as requested relief in his Amended Complaint: "Plaintiff's Court costs, all Court related expenses, Court related travel fees, and, possible Attorney(s) fees." (Docket Entry 22 at 1.) At this stage of the proceedings, Plaintiff may amend his Amended Complaint "only with [Defendant's] written consent or the [C]ourt's leave." Fed. R. Civ. P. 15(a)(2). Defendant consents to the requested amendment. (See Docket Entry 25 at 2 ("Defendant does not object to the motion to the extent it identifies the damages he is seeking.").) Accordingly, the Court will grant the Motion to Amend and deem the Amended Complaint to include as requested relief "Plaintiff's Court costs, all Court related expenses, Court related travel fees, and, possible Attorney(s) fees" (Docket Entry 22 at 1).

B. Discovery Motions

Plaintiff also seeks discovery from Defendant through the Motion to Subpoena and Motion to Compel. As its name suggests, the Motion to Subpoena seeks to subpoena certain documents from Defendant. (See Docket Entry 16 at 1.) In addition, the Motion to Compel seeks to compel a response to Plaintiff's "Request for Production of Documents," which Defendant allegedly "ha[s] not responded to, nor seemed to even have acknowledge[d]." (DocketEntry 26 at 1.) Defendant opposes both motions as premature and, in regard to the Motion to Subpoena, as an improper discovery vehicle. (See generally Docket Entries 20, 27.)

The Court has not yet entered a case-management scheduling order in this action. (See Docket Entries dated Mar. 8, 2016, to present.) As such, the parties lack authorization to conduct discovery. See M.D.N.C. L.R. 16.1(a); see also Fed. R. Civ. P. 26(d)(1). Accordingly, the Court will deny as premature the Motion to Subpoena and Motion to Compel. After the Court authorizes discovery through the establishment of the case-management schedule, Plaintiff may pursue proper discovery regarding any claim that survives Defendant's Motion to Dismiss.

C. Motion to Bifurcate

Plaintiff further asks for "this Trial to be divided into two Parts, separate (Liability and Damages) proceedings." (Docket Entry 23 at 1.) Defendant opposes this request. (See Docket Entry 24.) "For convenience, to avoid prejudice, or to expedite and economize, the [C]ourt may order a separate trial of one or more separate issues . . . ." Fed. R. Civ. P. 42(b). The Court possesses considerable discretion regarding bifurcation. F & G Scrolling Mouse, L.L.C. v. IBM Corp., 190 F.R.D. 385, 387 (M.D.N.C. 1999); see also White v. Bloomberg, 501 F.2d 1379, 1385 (4th Cir. 1974) ("We hold that the district courts are free to tailor an appropriate procedure to fit the facts and the pleadings and toselect what seems best for a given case."). Nevertheless, bifurcation remains an unusual event, as generally "a single trial will be more expedient and efficient." F & G Scrolling Mouse, 190 F.R.D. at 387.

The party seeking bifurcation "bears the burden of convincing the [C]ourt that such an exercise of its discretion will (1) promote greater convenience to the parties, witnesses, jurors, and the [C]ourt, (2) be conducive to expedition and economy, and (3) not result in undue prejudice to any party." Id.; accord Toler v. Government Employees Ins. Co., 309 F.R.D. 223, 225 (S.D. W. Va. 2015). "Merely presenting some proof which supports bifurcation is not enough" to satisfy this burden. F & G Scrolling Mouse, 190 F.R.D. at 387. Here, Plaintiff presents no arguments, let alone evidence, suggesting that bifurcation would promote judicial economy and avoid undue prejudice to Defendant. (See generally Docket Entry 23.) Thus, the Court will deny the Motion to Bifurcate.

D. Motion to Strike

Plaintiff additionally moves "to strike out the Defendant's false information." (Docket Entry 28 at 1.) In so doing, Plaintiff identifies various statements in Defendant's Motion to Dismiss and supporting memorandum, but offers little explanation of the purported errors in the identified statements. (See id. at 1-3.) Rather, Plaintiff urges the Court to "[f]act check the[D]efendant's claims, and you will see why I now move to submit this Motion to Strike." (Id. at 3.)

Rule 12(f) of the Federal Rules of Civil Procedure (the "Rules") authorizes courts to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f) (emphasis added). Rule 7(a) identifies which documents qualify as pleadings in federal cases. JHRG LLC v. StormWatch, Inc., No. 1:09cv919, 2011 WL 3111971, at *5 (M.D.N.C. July 26, 2011); see also General Tire & Rubber Co. v. Watkins, 331 F.2d 192, 195-96 (4th Cir. 1964) (analyzing whether filing constituted "a pleading within the meaning of [the] Rule[s]" by reference to Rule 7(a), which "defines pleadings"). Under Rule 7(a), the complaint; any third-party complaint; answers to (1) such complaints, (2) any crossclaims, and (3) any counterclaims; and, "if the [C]ourt orders one, a reply to an answer," constitute the pleadings. Fed. R. Civ. P. 7(a). This definition does not include motions to dismiss and their supporting memoranda. See id. Therefore, the Court will deny the Motion to Strike.

E. Motion to Leave

Finally, Plaintiff requests "that, a Motion to Leave be granted for a Time Extension, of the Time barred claim of Invasion of Privacy/Intrusion of Solitude." (Docket Entry 17 at 1.) Defendant opposes the Motion to Leave on the grounds that courtslack authority to extend a statute of limitations under either North Carolina or South Carolina law. (See Docket Entry 19 at 2.)

To resolve Plaintiff's Motion to Leave, the Court must first determine the applicable law. As a general rule, when exercising either supplemental or diversity jurisdiction over state-law claims, federal courts apply the choice-of-law rules of the state in which they sit. ITCO Corp. v. Michelin Tire Corp., Commercial Div., 722 F.2d 42, 49 n.11 (4th Cir. 1983), on reh'g, 742 F.2d 170 (4th Cir. 1984); Bethel v. Federal Express Corp., No. 1:09cv613, 2010 WL 3242651, at *5 (M.D.N.C. Aug. 16, 2010). Thus, ...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT