Opinion
No. 98-4180-SAC
May 14, 2001
MEMORANDUM AND ORDER
The case comes before the court on the plaintiff's objections (Dk. 121) to the magistrate judge's orders filed February 27, 2001, (Dk. 118) and March 20, 2001 (Dk. 120). The plaintiff also has filed a motion for default judgment (Dk. 124). There is also the long-pending motion to dismiss filed by the individual defendants. (Dk. 14). The court takes up these pending matters seriatim.
OBJECTIONS TO MAGISTRATE JUDGES' ORDERS STANDARD OF REVIEW
The district judge shall consider objections to a magistrate judge's order on nondispositive pretrial matters and "shall modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law." Fed.R.Civ.P. 72(a); see 28 U.S.C. § 636(b)(1)(A); Hutchinson v. Pfeil, 105 F.3d 562, 566 (10th Cir.), cert. denied, 522 U.S. 914 (1997). "The clearly erroneous standard requires the district court to affirm the magistrate judge's order unless it has the definite and firm conviction from all the evidence that error has occurred." Continental Bank, N.A. v. Caton, 136 F.R.D. 691, 693 (D.Kan. 1991) (citations omitted); see also Smith v. MCI Telecommunications Corp., 137 F.R.D. 25, 27 (D.Kan. 1991) ("Because a magistrate is afforded broad discretion in the resolution of nondispositive discovery disputes, the court will generally grant the magistrate great deference and overrule the magistrate's determination only if this discretion is clearly abused.") Because the plaintiff's objection requests review of the magistrate judge's determination of discovery matters, the court applies that standard here.
Order of February 27, 2001 (Dk. 118)
The defendants moved the magistrate judge for a protective order excluding a non-party witness, Dr. Cynthia Annett, from attending the plaintiff's deposition. The magistrate judge granted the defendants' motion finding exceptional circumstances created by a prior agreed protective order that limited the plaintiff's disclosure of confidential information regarding non-parties. (Dk. 112). The presence of Dr. Annett at the deposition would foreclose the defendants from questioning the plaintiff about the confidential information subject to that agreed protective order. "Such a situation could impede any or all of the parties' ability to obtain the necessary facts to prosecute or defend this case." (Dk. 112, p. 3).
On February 20, 2001, the plaintiff requested reconsideration of the protective order that excluded Dr. Annett from his deposition. The plaintiff argued that the magistrate judge interpreted the prior protective order erroneously giving it a scope broader than that provided in its terms. The magistrate judge denied the request for reconsideration as "unwarranted" and rejected the plaintiff's argument for the reasons stated in the defendants' responsive memorandum. (Dk. 118, p. 2). It is this order denying his request for reconsideration to which the plaintiff now objects pursuant to Fed.R.Civ.P. 72(a). (Dk. 121).
As the rules of this court provide, "[a] motion to reconsider shall be based on (1) an intervening change in controlling law, (2) availability of new evidence, or (3) the need to correct clear error or prevent manifest injustice." D.Kan. Rule 7.3. "A motion to reconsider is not a second chance for the losing party to make its strongest case or to dress up arguments that previously failed." Voelkel v. General Motors Corp., 846 F. Supp. 1482, 1483 (D.Kan.), aff'd, 43 F.3d 1484 (10th Cir. Dec. 21, 1994) (Table). The decision whether to grant or deny a motion to reconsider is committed to the court's sound discretion. Hancock v. City of Oklahoma City, 857 F.2d 1394, 1395 (10th Cir. 1988).
Having reviewed the arguments advanced in favor of the plaintiff's request for reconsideration, the district court finds that the magistrate judge did not clearly err in denying the request as unwarranted. The magistrate judge's reading and application of the prior protective order is fair and reasonable on its face. The plaintiff's objection to the magistrate judge's order is overruled.
Order of February 27, 2001 (Dk. 118)
On February 6, 2001, the plaintiff filed a motion to compel the defendants to produce documents requested in his first request for production. Referencing two specific requests, the plaintiff argued that he was entitled to receive "annual affirmation action plans and/or reports" and related records kept as supportive data for the affirmative action program. The magistrate judge denied the motion to compel upon finding that it was untimely and that it failed to show the defendants' production had not been reasonably responsive.
The plaintiff objects that his motion is timely, because the defendants have defaulted on their ongoing duty to supplement discovery responses. The plaintiff further objects that he has identified documents which federal law requires the defendants "to compile and maintain" and that the defendants have refused to produce the same for him.
The court finds no clear error in the magistrate judge's ruling. The record plainly shows the dispute over the adequacy of the defendants' responses is due principally to the plaintiff's evolving position on what is due under them. While represented by counsel, the plaintiff necessarily accepted the defendants' general responses to what must be labeled as overbroad production requests. Now representing himself, the plaintiff no longer is satisfied with those responses and now seeks additional documents as pertaining to these same overbroad requests. Rather than making technical objections to the plaintiff's belated requests for more documents, the defendants have made what appears to be a genuine effort at satisfying the plaintiff's requests. The district court fully concurs with the magistrate judge's assessment that "it is impossible for the Court to referee the parties' dispute at this point." (Dk. 120, p. 4). The court, however, does encourage the defendants to continue their laudable efforts at satisfying the plaintiff's pending document inquiries, and it further encourages both sides to work at maintaining a spirit of cooperation and cordiality as the final pretrial preparations are completed. In sum, the court finds nothing clearly erroneous in the magistrate judge's order and overrules the plaintiff's objection to it.
MOTION FOR DEFAULT JUDGMENT
The plaintiff seeks default judgment as a discovery sanction pursuant to Fed.R.Civ.P. 37(c)(1) and Fed.R.Civ.P. 37(b)(2)(C). The plaintiff identifies five items or records that the defendant did not disclose pursuant to Rule 26(a)(1)(B) or in response to his requests for production. The plaintiff contends these items "would establish the discriminatory climate for minority employees in the Defendants' workplace" and "would have revealed previous violations of federal civil rights mandates." (Dk. 124, ¶¶ 3 and 9). The plaintiff concludes "[t]he evidence would likely be probative of a pattern and practice of discrimination in this workplace." (Dk. 124, ¶ 9).
These five items or records were the subject of the plaintiff's motion to compel that was denied by the magistrate judge in the order filed February 27, 2001, (Dk. 118), to which the plaintiff's objection pursuant to Fed.R.Civ.P. 72(a) was overruled above. Consequently, the plaintiff can point to no court order regarding discovery of these matters that the defendants failed to obey. By its own terms, Fed.R.Civ.P. 37(b)(2) permits sanctions only when a party disobeys a court's order that provides or permits discovery. There being no order compelling discovery that the defendants did not comply with, the plaintiff cannot seek sanctions under this provision.
The particular sanctions authorized under Fed.R.Civ.P. 37(b)(2)(B) also may be imposed when "[a] party . . . without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2), . . ., unless such failure is harmless." See Salgado v. General Motors Corp., 150 F.3d 735, 742 n. 6 (7th Cir. 1998) ("the sanction of exclusion is automatic and mandatory unless the sanctioned party can show that its violation of Rule 26(a) was either justified or harmless.").
The plaintiff's sweeping assertions do not establish that these five items or records are matters "that are relevant to disputed facts alleged with particularity in the pleadings." Fed.R.Civ.P. 26(a)(1)(B) (1999). The plaintiff's first amended complaint does not allege with particularity any theories or claims based on a pattern and practice of discrimination. Rather, the plaintiff alleges disparate treatment claims that focus on specific employment actions taken against him by the individual defendants, who served as deans of the journalism school at the University of Kansas. The relevance of these documents to the claims that have been alleged with particularity here is a debatable proposition, at best. The harm to the plaintiff, who now possesses these documents, is largely speculative.
Assuming for the sake of argument that these documents were relevant and that the plaintiff had been harmed by the defendants' failure to make a timely Rule 26(a) disclosure, the court concludes the circumstances here simply would not warrant the extreme sanction of default judgment. Dismissal is a harsh sanction reserved for "willfulness, bad faith, or [some] fault of" the party. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 640 (1976). The five factors in Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992), when evaluated on the record utterly fail to support a sanction of default judgment. The plaintiff has not been significantly prejudiced, because the relevance of these records, if any, is collateral to the specific allegations of discrimination made here. The delays in this case are not attributable to the defendant's failure to produce these documents. The culpability of the defendants does not favor any serious sanction. The defendants received no judicial warning about the necessity of disclosing these documents. these disclosures. Not convinced that the defendants' conduct even warrants a sanction, the court cannot rule out the efficacy of lighter sanctions. For all these reasons, the court denies the plaintiff's motion for default judgment.
MOTION TO DISMISS
The individual defendants filed a motion to dismiss early in this case. The plaintiff responded by memorandum and by filing a motion for leave to file an amended complaint. The magistrate judge granted leave to the plaintiff, and he amended complaint addresses the grounds on which the individual defendants sought dismissal. Instead of filing a new motion to dismiss, the individual defendants filed their answer to the amended complaint. For these reasons, the court denies the individual defendants' motion to dismiss the original complaint as moot.
IT IS THEREFORE ORDERED that the plaintiff's objections (Dk. 121) to the magistrate judge's orders filed February 27, 2001, (Dk. 118) and March 20, 2001 (Dk. 120) are overruled;
IT IS FURTHER ORDERED that the plaintiff's motion for default judgment (Dk. 124) is denied;
IT IS FURTHER ORDERED that the individual defendants' motion to dismiss (Dk. 14) is denied as moot.