Opinion
Case No. 2:01CV0490
November 3, 2003
MEMORANDUM OPINION AND ORDER
Before the Court is defendant's motion for partial summary judgment. Also before the Court are plaintiffs motion to strike, plaintiffs motion for reconsideration, defendant's second motion to compel discovery and for sanctions and defendant's motion for award of attorney's fees. Having considered the parties' briefs and the applicable law, the Court issues the following Memorandum Opinion and Order.
I. BACKGROUND
In 1999, Plaintiff Scott Whatcott was prosecuted by defendant for violating Provo City's Telephone Harassment Ordinance. Provo City Revised Ordinance, § 9/76-9-201. Plaintiff was convicted by a jury of violating the ordinance and was sentenced to serve ten days in jail.
The predicate action by plaintiff consists of his calling the home of Anne Nielson and her roomate, Kathryn Convey, and leaving the following message on their answering machine:
I've got this boil on my testicle that just keeps oozing consistently and constantly and it's painful and it's red. It's either that or a third testicle. And I was wondering if like Kathy or Ann[e], if one of you could help me out here, if either one of you could like grab my crotch and just like fondle that third testicle of mine. It's just oozing all over the place, to get their hands kind of greasy. If you have any advice, please, give me a call. You know the number. Thanks. Bye. Provo City v. Whatcott, 1 P.3d 1113, 1114 (Utah CtApp. 2000),
Kathryn Convey was extremely upset by plaintiffs phone message, calling it obscene, lewd and lascivious. Id. at 1114. Her complaint led to Provo City's prosecution of plaintiff and his ultimate conviction.
Plaintiff appealed his conviction to the Utah Court of Appeals arguing that the Provo City Ordinance was unconstitutional pursuant to the First and Fourteenth Amendments. The Utah Court of Appeals overturned plaintiffs conviction, declaring the Provo City Ordinance to be unconstitutional in violation of the First Amendment both on its face and as applied to plaintiff,
Plaintiff was prosecuted under Provo City Revised Ordinance § 9/76-9-201. The specific language of the Ordinance is as follows;
(1) A person is guilty of telephone harassment and subject to prosecution in the jurisdiction where the telephone call originated or was received if with intent to annoy, alarm another, intimidate, offend, abuse, threaten, harass, or frighten any person at the called number or recklessly creating a risk thereof, the person:
(a) makes a telephone call, whether or not a conversation ensues;
(d) makes a telephone call and uses any lewd or profane language or suggests any lewd or lascivious act; or
(2) Telephone harassment is a class B misdemeanor. Utah Code Ann. § 76-9-201 (1999)
The Utah Court of Appeals focused solely on sections (a) and (d) as being the only two sections applicable to plaintiffs constitutional challenge. All other sections were not reviewed for constitutionality. For this reason the Court only lists the challenged sections.
The Utah Court of Appeals illustrated numerous examples of protected First Amendment conduct that would violate the Provo City Ordinance. The Court of Appeals found that "the overbreadth of subsections (a) and (d) is real and substantial, as they "`"sweep[ ] within [their] ambit other activities that in ordinary circumstances constitute an exercise of freedom of speech."'" Logan City v. Huber, 786 P.2d 1372, 1375 n. 10 (Utah CtApp. 1990). (quoting Waters v. McGuriman, 656 F. Supp. 923, 925 (ED.Pa. 1987) (citation omitted)). The Court of Appeals thus held that subsections (a) and (d) of section 76-9-201 were unconstitutionally overbroad."
When the ruling of the Utah Court of Appeals was issued in March 2000, plaintiff was enrolled as a law student at Georgetown Law School, He had completed his second year of study, and during the summer months of 2000 was employed as a summer associate with the Los Angeles law firm of Kirkland Ellis.
Plaintiff alleges that the Utah Court of Appeals* Opinion made it into the hands of certain persons employed at Kirkland Ellis and caused his summer employment with the firm to be terminated. Plaintiff proffers in his affidavit that he was called to the office of one of the partners at Kirkland Ellis who had a copy of the Opinion, told he was no longer employed with Kirkland Ellis and then was handed a check for approximately $10,000,00. This amount is what plaintiff would have earned if allowed to continue through the duration of his summer employment.
After the Utah Court of Appeals' decision, plaintiffs conviction was expunged from his record pursuant to state law. Plaintiff brings this suit pursuant to 42 U.S.C. § 1983, arguing that defendant deprived him of his constitutional rights under the First and Fourteenth Amendments to the United States Constitution by prosecuting him on the basis of an unconstitutional ordinance. This Court earlier held that defendant had violated plaintiffs rights under the First and Fourteenth Amendments and granted plaintiffs Motion for Partial Summary Judgment relating to liability on August 21, 2002. The only issue remaining is damages.
Plaintiff seeks a variety of damages, including damages for his dismissal from Kirkland Ellis, and for long term damages for his inability to practice law thereafter. After his summer experience at Kirkland Ellis, plaintiff completed his course work at Georgetown in 2001. He then took, and apparently passed, the California Bar Examination. There is no evidence that plaintiff has, to date, sought admission to any state bar.
Defendant concedes that plaintiff is entitled to certain damages, which include special damages that can be proven, nominal damages for the constitutional violation, damages relating to lost wages for the time plaintiff was incarcerated, and some general damages related thereto. With respect to plaintiffs attempt to seek long term damages due to his alleged inability to earn income as a lawyer, defendant claims plaintiff has failed to produce sufficient evidence to present that issue to a jury.
Defendant has attempted to conduct discovery related to plaintiffs claim of long term damages and has been unsuccessful on numerous attempts to obtain the requested information. Specifically, defendant has requested that plaintiff produce evidence regarding his attempts to apply for admission to any state bar and whether plaintiff has, in addition to the Utah expunged conviction, any other criminal convictions or expunged convictions. Plaintiff has refused to comply with these requests, filing a variety of objections and excuses, which has caused the defendant to file two motions to compel discovery. Defendant has also been able to discover, through its own investigation, evidence indicating that plaintiff has other expunged convictions and possibly one misdemeanor conviction for harassment of a witness which, defendant asserts, plaintiff would be required to disclose on many state bar applications.
II. DISCUSSION A. Defendant's Motion for Partial Summary Judgment
Summary judgment is proper "[i]f the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." See FED. R. OF CIV. P. 56(c). In considering whether genuine issues of material fact exist, the Court determines whether a reasonable jury could return a verdict for the nonmoving party in the face of all the evidence presented. See Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 249 (1986); Clifton v. Craig, 924 F.2d 182, 183 (10th Cir. 1991). The moving party need not negate the nonmoving party's claims, but need only point out that "there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986), For purposes of this motion, the Court construes all facts and reasonable inferences in the light most favorable to plaintiff. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Wright v. Southwestern Bell Tel Co., 925 F.2d 1288, 1292 (10th Cir 1991).
Defendant argues that plaintiff has failed to meet his burden of proof regarding long term damages and therefore summary judgment should be granted in its favor on that issue. Specifically, defendant moves for dismissal of plaintiff's claims for all long term damages, including diminution of earning capacity, loss of income and ongoing emotional distress. Defendant asserts that plaintiff has failed to put forth any evidence showing (1) that his conviction was the proximate cause of his termination at Kirkland Ellis and (2) that his conviction will prevent him from obtaining employment as an attorney.
Defendant's first argument, that there is no proof that plaintiff was terminated from Kirkland Ellis because of his conviction, is unavailing. In connection with his Memorandum in Opposition to defendant's Motion, plaintiff submitted his own affidavit. Portions of that affidavit contain inadmissible hearsay and may not be considered by the Court. Thomas v. IBM, 48 F.3d 478, 485 (10th Cir. 1995) ("hearsay testimony that would be inadmissible at trial may not be included in an affidavit to defeat summary judgment.") However, the Court finds that the admissible portions of the affidavit establish that there is a genuine issue of material fact regarding the circumstances surrounding plaintiffs termination at Kirkland Ellis.
Plaintiffs affidavit explains that plaintiff was a "summer associate" at Kirkland Ellis in the summer of 2000. One day during his summer employment he was summoned to a partner's office, That partner was holding a copy of the Utah Court of Appeals' Opinion. Plaintiff was fired and given a check for approximately $10,000, the amount he would have made had he remained for the last month of his summer employment. When he returned to his office his phone and email were disconnected. He gathered his belongings and as he left he noticed that many of his co-workers were in possession of copies of the Utah Court of Appeals' Opinion.
These admissible allegations contained in plaintiffs sworn affidavit "offer evidence of specific facts" to create a triable issue and thereby prevent entry of summary judgment. BankOklahoma Mortgage Corp. v. Capital Title Co., Inc., 194 F.3d 1089, 1097-98 (10th Cir. 1999), Plaintiff has not "rest[ed] upon mere allegations or denial of his pleadings," but, plaintiff has put forth affirmative evidence refuting defendant's claim that there is no admissible evidence to support his claim for damages, if any can be shown, related to his loss of employment at Kirkland Ellis. Id.
Defendant's second argument, that plaintiff has failed to provide evidence of causation that would entitle him to long term damages, is persuasive. Defendant argues that plaintiff has not produced prima facie evidence regarding his entitlement to long term damages. Specifically, defendant has challenged the plaintiff to show how its actions caused plaintiffs alleged inability to practice law.
Causation in a section 1983 case requires that the injury be a natural consequence of the defendant's actions. Sheets v. Salt Lake County, 45 F.3d 1383, 1389 (10th Cir. 1995). For the injury to be a natural consequence of the defendant's actions it must be reasonably foreseeable. Miller v. City of Mission, Kan., 705 F.2d 368, 375 (10th Cir. 1983). Plaintiff argues that his unconstitutional conviction produced the reasonably foreseeable natural consequence that he would thereafter not be able to practice law.
As evidentiary support for his causation argument plaintiff has produced the following evidence: (1) a list of states that require applicants to reveal expunged convictions on bar applications; (2) plaintiffs own testimony through affidavit proffering that he was fired from one law firm, Kirkland Ellis, because of the Utah Court of Appeals' Opinion; (3) the expert report of James E, Fox, Esq., relating to how plaintiffs expunged conviction will affect his future ability to gain employment as an attorney; (4) plaintiffs own attempt to certify himself as an expert witness in the hiring practices of law firms in order to testify about how the expunged conviction prevents him from being hired as an attorney; and (5) numerous rejection letters sent by law firms and received by plaintiff in September, October and November of 2000.
The Court takes in turn each evidentiary proffer made by plaintiff. First, plaintiff has provided the Court with a list of states that would require him to list expunged convictions on his bar application. Plaintiff, it appears, assumes that if he were to list the Utah expunged conviction he would be disqualified from being admitted to practice law in the respective states on his list. There is no additional evidence whatsoever to support this assumption and the Court cannot find that the list produced by plaintiff creates a genuine issue of material fact sufficient to present to a jury.
Plaintiff also provided the Court with an affidavit indicating that he was fired from Kirkland Ellis for causes related directly to the Utah Court of Appeals' Opinion in which it reversed plaintiffs conviction. Plaintiff apparently believes that because one law firm fired him allegedly because of the expunged Utah conviction, no law firm would thereafter hire him because of the same expunged conviction. The Court is not willing to make the same leap in logic on such limited evidence, especially where plaintiff has apparently made no attempt to seek admittance to any state bar and has not offered any evidence that plaintiff has sought employment in the legal field and has been rejected because of the expunged Utah conviction. To practice law one must first seek admission to the bar in the state in which one seeks to practice. If plaintiff had attempted admission and was denied on the basis of the expunged Utah conviction, his argument would, perhaps, have merit. Furthermore, if plaintiff applied for admission to a state bar and was admitted and thereafter, was then unable to find work due in whole or in part to his expunged Utah conviction, plaintiffs argument would possibly have merit.
Plaintiff has provided the Court with an expert report, prepared by James E. Fox, Esq. Mr. Fox is an attorney who has been practicing law in Los Angeles for the past 23 years. Mr. Fox's expert testimony, if permitted, would indicate that plaintiff is extremely intelligent and capable and would be, if hired by a law firm, one of the best and brightest attorneys in the firm. Mr. Fox would also seek to testify that plaintiff has been, and will continue to be, overlooked in the legal employment field because of his expunged Utah conviction, Mr. Fox overlooks the obvious first step in obtaining employment as an attorney. This first step is to gain admission to a state bar. It is also readily apparent that Mr. Fox and plaintiff overlook the possibility of previous criminal activities, expunged or not, which would require disclosure by plaintiff and which also create possible impediments to the plaintiffs ability to practice law. Mr., Fox and plaintiffs attempt to pinpoint his expunged Utah conviction as the sole cause of plaintiff's alleged future inability to practice law is unavailing on the state of the present record. It is unduly speculative and does not create a genuine issue of material fact sufficient to overcome defendant's Summary Judgment Motion.
Plaintiff attempted to qualify himself as an expert witness in the area of the hiring practices of law firms. This attempt was made in order to testify regarding the detrimental effects the expunged Utah conviction would have on plaintiffs ability to practice law. However, the Court has not recognized plaintiff as an expert in the area of law firm hiring practices.
Regarding plaintiffs responses to defendant's discovery requests, plaintiff has been unhelpful and unwilling to comply with almost all of the discovery requests made by defendant. Defendant has submitted two motions to compel discovery requesting plaintiff be forced to answer interrogatories and provide requested documentation relating to the claims of long term damages and diminution in earning capacity. Plaintiff has been unwilling to reveal information relating to previous expunged convictions and possible convictions, arguing they are irrelevant and inadmissible. Similarly, plaintiff has failed to provide answers to questions about his efforts to seek admission to a state bar, or to seek employment in the legal field. This is done in an attempt to focus solely on the expunged Utah conviction in the case at bar. Plaintiffs refusal to comply with discovery related to significant issues in the area of damages and criminal history and his own attempt to qualify himself as an expert in an area in which he has insufficient experience to qualify as an expert underscore plaintiffs lack of evidence to support his claim for long term damages.
Plaintiff also seeks to support his claim for long term damages by providing numerous rejection letters from various law firms located across the country. The rejection letters were written in September, October and November of 2000, presumably during plaintiffs final year of law school at Georgetown. The rejection letters do not support plaintiffs argument for long term damages, however. First, the rejection letters do not list plaintiffs expunged Utah conviction as the reason for declining to offer him an associate position. Many of the letters indicate that plaintiff is very qualified and will have success in the legal field, but that because of the competitive nature of the legal profession the particular firm was not able to make plaintiff an offer of employment, The rejection letters do not give any indication that the expunged Utah conviction played a part in the respective law firm's decision not to make an offer of employment to plaintiff.
Furthermore, the letters were received at the beginning of plaintiffs third year of law school. The timing of the receipt of the rejection letters does not support plaintiffs argument for long term damages. Plaintiff, at the time of receipt, was not able to apply for admission to a state bar because, presumably, he had to graduate from law school first. If after graduating, plaintiff had passed a state bar examination, only to be rejected by law firms because of the expunged Utah conviction, plaintiffs argument could have merit. However, the Court finds that the rejection letters do not of themselves support plaintiffs argument for long term damages. Nor do the rejection letters, when combined with the whole of plaintiff's evidence give rise to a genuine issue of material fact sufficient to overcome defendant's Summary Judgment Motion.
Plaintiff ultimately attempts to support his case for long term damages based on the present limited state of the record by citing to case law from other courts. Plaintiff attempts to show by analogy the similarity of his position with that of three accident victims: a stay-at-home mother, an injured high school student, and a second year law student, all of whom were the victims of serious physical injuries, Each of the aforementioned accident victims was allowed to argue loss of future earning capacity. Plaintiffs case is not similar to these cases. The physical injuries suffered by the individuals in the personal injury cases cited by plaintiff were obvious and clearly rendered the plaintiffs unfit and unable to perform useful work in the future. The plaintiff in the case at bar was injured to the extent that he was wrongfully prosecuted on the basis of an unconstitutional ordinance and spent ten days in jail. However, plaintiff has not provided sufficient evidence to show that such "injury" will prevent him from being gainfully employed in the future as an attorney, Without providing this Court with information that he has, in fact, applied for admission to any state's bar and that said state bar rejected him based, in some part, on his expunged conviction, plaintiff cannot satisfy the requirements of summary judgment, At present the Court finds that the evidence submitted by plaintiff regarding his claim for long term damages is too speculative for submission to a jury. Sunward Corp. v. Dun Bradstreet. Inc., 811 F.2d 511, 540-41(10th Cir. 1987).
Midway Nat. Bank of St. Paul v. Estate of Bollmeier, 504 N.W.2d 59 (Minn Ct.App. 1993) A Minnesota stay-at-home mother was allowed to argue loss of future earnings and was awarded $2.4 million.
Murray v. Sanford, 487 S.E.2d 135 (Ga.Ct.App. 1997). A high school student injured in car crash was allowed to argue loss of earning capacity even though she had not been employed up to that point.
Kenton v. Hyatt Hotels Corp., 693 S.W.2d 83 (Mo. 1985). A second year law student was crushed by a sky-walk and was allowed to argue future earning capacity, which assumed that she would have graduated from law school, passed the bar and would have found gainful employment.
Therefore, this Court DENIES in part the defendant's Motion for Partial Summary Judgment. There is sufficient evidence to argue that the expunged Utah conviction was the proximate cause of his termination at Kirkland Ellis. The Court GRANTS in part the defendant's Motion for Partial Summary Judgment. Plaintiff has not produced sufficient facts to support his claim for long term damages, including diminution of earning capacity, loss of income and ongoing emotional distress related thereto.
B. Motion for Reconsideration
Also before the Court is plaintiffs motion for reconsideration of this Court's May 30, 2003 Order granting defendant's first motion to compel. Plaintiff argues that his motion to reconsider should be granted because the Court failed to consider his and his attorney's affidavits before making its ruling. Those affidavits stated that defendant failed to comply with the "meet and confer" requirements of Federal Rule of Civil Procedure 37. However, the Court did not disregard either of those affidavits. Instead the Court relied upon defendant's counsel, who certified to the Court that he had spoken with plaintiff and written a letter to plaintiffs attorney "requesting the specific information omitted in plaintiffs responses" (Mem. Supp. Def.'s Mot. Compel at 1).
Plaintiffs three previous attorneys have since withdrawn from this case.
Because plaintiffs affidavits were not in accord with defendant's certification, the Court was forced to make a determination of credibility. In light of plaintiff's failure to comply with the straightforward and simple interrogatory requests at issue in that motion, the Court found defendant's certification to be credible and persuasive. Moreover, in light of plaintiff's continued refusal to comply with defendant's discovery requests, as is evidenced by defendant's second motion to compel discussed below, the Court DENIES plaintiffs Motion to Reconsider.
C. Motion to Compel Discovery and for Sanctions
Defendant's Motion to Compel Discovery is the second such motion filed by defendant. The Court granted defendant's first Motion to Compel on May 30, 2003. In its Reply Memorandum in Support of its motion, defendant points out that the majority of plaintiff's arguments in opposition to this second motion were addressed in that order. However, to the extent that any issues in this motion remain outstanding, the Court GRANTS defendant's second Motion to Compel pursuant to Federal Rule of Civil Procedure 37(a). The Court finds that plaintiffs arguments are without merit and that his continued refusal to respond to discovery requests is improper. The Court DECLINES defendant's request to sanction the plaintiff by dismissing plaintiffs claim for economic damages.
D. Motion for Attorneys Fees
Pursuant to this Court's May 30, 2003 Order in which the Court granted defendant's first Motion to Compel, the Court adopts its reasoning in the previous Order and therefore GRANTS defendant's Motion for Award of Attorney's Fees.
E. Motion to Strike
Lastly, before the Court is plaintiffs Motion to Strike an exhibit included in defendant's Memorandum in Support of its Motion for Partial Summary Judgment, Plaintiff argues that the exhibit came from an expunged presentencing report and that such information is inadmissible.
Defendant does not oppose plaintiffs motion, Because the Court finds that the information in that exhibit was extracted from an expunged presentence report, the Court orders that it be STRICKEN.
III. CONCLUSION
In summary, the Court finds that plaintiff has put forth sufficient admissible evidence to establish a genuine issue of material fact regarding his claim for being terminated by Kirkland Ellis, but has failed to provide sufficient evidence regarding his claim for long term damages. Therefore, defendant's Motion for Partial Summary Judgment [72-1] is DENIED in part and GRANTED in part, as explained in this opinion. Defendant's second Motion to Compel Discovery [74-1] and its Motion for Attorney's Fees [85-1] are GRANTED. Defendant's Motion for Sanctions [74-2] is DENIED. Plaintiffs Motion to Reconsider [89-1] is DENIED. Finally, plaintiffs Motion to Strike [79-1] is GRANTED. IT IS SO ORDERED.