Opinion
Case No.: 3:13-cv-402
05-29-2014
JOSEPH M. RIEGER, Plaintiff, v. GENERAL DYNAMICS INFORMATION TECHNOLOGY, INC., Defendant.
Judge Walter H. Rice
Magistrate Judge Michael J. Newman
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION TO SCHEDULE
A TELEPHONE CONFERENCE (DOC. 51).
NOTICE TO PRO SE PLAINTIFF THAT FAILURE TO COMPLY WITH COURT
ORDERS OR DISCOVERY RULES COULD RESULT IN DISMISSAL OF HIS CASE
The Court held a telephone conference with the parties on May 28, 2014 at the request of Defendant's counsel. Both parties raised multiple issues, and several additional issues merit sua sponte discussion, which the Court will address in turn.
Defendant's counsel, Robert Seidler, Esq., raised issues regarding Plaintiff's conduct towards him outside the scope of the litigation process. Specifically, Mr. Seidler advised the Court that Plaintiff sent him an email referencing a photograph Mr. Seidler posted on Facebook. Mr. Seidler further advised the Court that, in light of pro se Plaintiff's history in the criminal and civil justice system, he interpreted this as an attempt to intimidate him but that he did not consider himself to be subject to an imminent threat. Plaintiff denied these allegations.
The Court takes these allegations of cyber stalking very seriously and advised Mr. Seidler that a motion would be the appropriate procedure to raise his concerns. Given the seriousness of the allegations, it is ORDERED that expedited briefing occur if Mr. Seidler does file such a motion. Accordingly, Plaintiff shall file a memorandum in opposition within SEVEN (7) DAYS of filing.
Defendant also raised concerns regarding the approximately eighty-five exhibits Plaintiff intended to introduce during his depositions, which Plaintiff is conducting via telephone. Mr. Seidler advised the Court that Plaintiff provided only one copy of exhibits for the court reporter to present to the deponent only. Plaintiff allegedly did not provide copies for Mr. Seidler and the court reporter, and refused to permit Mr. Seidler to makes copies of the exhibits at Defendant's expense. On the record, the Court ORDERED Plaintiff to identify the specific exhibits he intends to introduce at the depositions scheduled for May 28th and 29th; that he must allow Defendant to makes copies of the exhibits for reference by Mr. Seidler and the court reporter; and that the deposition shall not commence until such copies are made.
Mr. Seidler also reiterated his concern, which he has raised to the Court multiple times before, that Plaintiff continues to abuse the discovery process. Plaintiff is REMINDED that he must attempt to confer with Defendant before filing a discovery motion, and that any such motion must be accompanied by a certification setting forth the extrajudicial means that have been attempted to resolve the dispute. See Fed. R. Civ. P. 37(a)(1); S.D. Ohio Civ. R. 37.2. The Court previously ordered that Plaintiff must submit an affidavit "explaining with particularity the precise dispute he has with Defendant's counsel and the means he and counsel have undertaken to resolve that dispute before seeking the Court's assistance." Doc. 36 at PageID 131. Plaintiff is ADVISED that the Court may strike any filing that does not meet these requirements.
During the conference call, Plaintiff alluded to a motion that he had mailed to the Clerk of Courts for docketing, but the Court had yet to receive. Subsequent to the call, Plaintiff's motion to schedule a telephone conference was docketed. Doc. 51. The motion, which is accompanied by the required affidavit, requests that the Court convene yet another telephone conference to address numerous concerns that Plaintiff has regarding Defendant's responses to his multiple requests for production of documents. Id. The motion and accompanying affidavit fail to "explain[] with particularity the precise . . . means he and counsel have undertaken to resolve that dispute before seeking the Court's assistance," see doc. 36 at PageID 131, nor do they indicate that Plaintiff has "exhausted . . . all extrajudicial means for resolving the differences," see S.D. Ohio Civ. R. 37.1, before seeking the Court's intervention. Accordingly, Plaintiff's motion to schedule a telephone conference (doc. 51) is DENIED WITHOUT PREJUDICE.
Plaintiff also filed a motion entitled "motion to notify Court that Mr. Rieger reserves the right to depose John M. Greco but is not at this time planning to depose Mr. John M. Greco." Doc. 50. As the title aptly states, the purpose of the "motion" is to notify the Court that Plaintiff does not presently have plans to depose a certain individual. Id. Plaintiff has filed several other documents apprising the Court of his discovery strategy or providing other notifications, often in the form of a motion. See docs. 24, 27, 49.
Plaintiff is DIRECTED to review the provisions of Fed. R. Civ. P. 5(d)(1) and 30(b)(1), S.D. Ohio Civ. P. 5.4, and the Guide for Pro Se Civil Litigants regarding the limited scope of discovery materials that should be filed with the Court. Fed. R. Civ. P. 5(d)(1) states that "the following discovery requests and responses must not be filed until they are used in the proceeding or the court orders filing: depositions, interrogatories, requests for documents or tangible things or to permit entry onto land, and requests for admission." The Advisory Committee's Notes to Rule 5 clarifies the scope of the Rule: "discovery requests and responses under Rules 30, 31, 33, 34, and 36 must not be filed until they are used in the action. 'Discovery requests' includes deposition notices and 'discovery responses' includes objections." Fed. R. Civ. P. 30(b)(1) provides that a notice of deposition need only be served on other parties. S.D. Ohio Civ. R. 5.4 also discusses the limited circumstances in which a party should file discovery documents. See Thatcher v. Warden, Lebanon Corr. Inst., No. 1:12-cv-470, 2012 WL 5496503, at *3 (S.D. Ohio Nov. 13, 2012) (noting that a pro se party improperly filed two discovery requests as motions and stressing "[t]he fact that Plaintiff proceeds pro se does not entitle him to ignore the procedural rules for conducting discovery" (citing McNeil v. United States, 508 U.S. 106, 113 (1993); S.D. Ohio Civ. R. 5.4(a)).
This guide is available on the Court's website at http://www.ohsd.uscourts.gov/forms/fedbar4. pdf.
The undersigned echoes the statement made in Thatcher: "Plaintiff is forewarned that if he again improperly files a discovery request in the record without serving defense counsel directly, the court will ignore that request and/or deny or strike the motion as procedurally improper." Id. at *3. Finally, the Guide for Pro Se Civil Litigants states that "[d]iscovery requests and responses may not be filed with the Court unless they are used in the proceeding or the Court so orders" and "[d]o not send copies of your discovery requests or responses to the Court unless the Court directs you to do so." A Guide for Pro Se Civil Litigants: Representing Yourself in the United States District Court for the Southern District of Ohio 15 (July 1, 2013), http://www.ohsd.uscourts.gov/forms/fedbar4.pdf.
Plaintiff has not deposed more than ten witnesses, a fact he has informed the Court multiple times during the numerous telephone conferences held, and it does not otherwise appear that he would require leave of court to depose Mr. Greco. See Fed. R. Civ. P. 30(a)(2). Plaintiff is ADVISED that subsequent extraneous filings may be striken from the docket. The Court stresses that it is in no way constraining the right of Plaintiff to file a properly-directed motion; instead, this directive applies only to filings, such as document 50, that serve only to "notify" the Court and do not seek any form of relief. The Clerk of Courts shall RE-DOCKET document 50 as a notice to the Court.
The Court is concerned by the extraordinarily large volume of discovery issues requiring the Court's intervention throughout the course of this litigation, many of which have stemmed from Plaintiff's conduct. See docs. 12, 15, 19, 26, 28, 29, 30, 31, 36, 39, 43, 47, 48. Plaintiff is ADVISED that the Federal Rules of Civil Procedure and the Local Rules proscribe a number of different sanctions for failure to comply with discovery rules. See Fed. R. Civ. P. 30(d)(3) (permitting the Court to terminate a deposition that is "conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party"); Fed. R. Civ. P. 30(d)(2) (authorizing the Court to "impose an appropriate sanction -- including the reasonable expenses and attorney's fees incurred by any party -- on a person who impedes, delays, or frustrates the fair examination of the deponent"); Fed. R. Civ. P. 37(a)(5) (requiring the Court to "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"); S.D. Ohio Civ. R. 1.1(c) ("Failure to comply with these Rules may result in the imposition of sanctions").
Plaintiff is further DIRECTED to review the provisions of Federal Rule of Civil Procedure 37(b)(2)(A), which are provided in full below, regarding failure to obey a discovery order:
If a party or a party's officer, director, or managing agent -- or a witness designated under Rule 30(b)(6) or 31(a)(4) -- fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following:Fed. R. Civ. P. 37(b)(2)(A) (emphases added). Plaintiff is ADVISED that the Court may recommend the imposition of monetary or other procedural sanctions against him. Plaintiff is FURTHER ADVISED, especially given the impediment his pro se status has on the potential to impose monetary sanctions, that the Court may also recommend dismissal of his case. Federal Rule of Civil Procedure 41(b) provides that "[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it." In evaluating whether dismissal is appropriate, the Court will apply the following four factors:
(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.
(1) whether the party's failure to cooperate in discovery is due to willfulness, bad faith, or fault; (2) "whether the adversary was prejudiced by the dismissed party's failure to cooperate in discovery"; (3) "whether the dismissed party was warned that failure to cooperate could lead to dismissal"; and (4) "whether less drastic sanctions were imposed or considered before dismissal was ordered."Smith v. Nationwide Mut. Fire Ins. Co., 410 F. App'x 891, 894 (6th Cir. 2010) (quoting Harmon v. CSX Transp., Inc., 110 F.3d 364, 366-67 (6th Cir.1997)). To be clear, Plaintiff is WARNED that continued failure to cooperate in discovery or disobey an order could result in the Court recommending that his case be dismissed.
On several occasions, Plaintiff has raised his pro se status in what appears to the Court as an attempt to justify or excuse his failure to comply with the discovery rules or behave towards opposing counsel in a professional, civil, and courteous manner. As the Sixth Circuit has stated, "while pro se litigants may be entitled to some latitude when dealing with sophisticated legal issues, acknowledging their lack of formal training, there is no cause for extending this margin to straightforward procedural requirements that a layperson can comprehend as easily as a lawyer." Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir. 1991). Plaintiff may not purposely use his pro se status in an attempt to avoid the rules or otherwise gain an advantage.
A number of specific discovery disputes were alluded to during the call. Given the presence of the parties in the courthouse for Plaintiff's deposition on June 4, the Court deferred addressing these disputes until that time. Accordingly, it is ORDERED that the parties personally appear before the undersigned in Courtroom 5 of the Dayton Federal Courthouse on Wednesday, June 4, 2014 at 9:00 a.m.
Finally, the Court advised Plaintiff of the benefits of seeking the assistance of pro bono counsel. Plaintiff may contact the Dayton Bar Association lawyer referral service at (937) 2226102 to inquire about the possibility of obtaining an attorney at no cost.
IT IS SO ORDERED.
Michael J. Newman
United States Magistrate Judge