Opinion
CIVIL ACTION NO: 01-3842.
April 2, 2002
HEARING ON MOTIONS
APPEARANCES: Submitted on briefs
MOTIONS:
MOTION TO THE JUDGE (Filed on March 21, 2002)
The Clerk has not assigned a record documents number to any of these motions.
DENIED
MOTION FOR APPOINTMENT OF COUNSEL AND IMMEDIATE MEDIATION (Filed on March 21, 2002)
DENIED
MOTION TO REVIEW RECORDS AND OBJECTION (Filed on March 22, 2002)
DENIED
APPLICATION FOR APPOINTMENT OF COUNSEL PURSUANT TO 42 U.S.C. § 2000E-5 (Filed on March 22, 2002)
DENIED
PROCEDURAL BACKGROUND
On July 26, 2001 Kenneth Battie ("Battie"), the plaintiff, filed a complaint in proper person and named his employer and three of its employees as defendants. Battie alleged a violation of Title VII resulting in a wrongful suspension from his employment for five days. This action is captioned "Kenneth Battie v. Freeman Decorating, et al," CA 01-2282"K" (1), and is sometimes referred to as "Battie I." See Battie I at Rec. doc. 1. Battie made an application for an appointment of counsel pursuant to 42 U.S.C. § 2000e-5 (f)(1). Battie I at Rec. doc. 2. There was a status conference before the undersigned and Battie's application was denied. Battie I at Rec. doc. 4.The three employees moved to dismiss Battie's complaint (Battie I at Rec. doc. 12) and the undersigned issued a report and recommendation that their motion be granted. Battie I at Rec. doc. 13. Although Battie objected to the report and recommendation (Battie I at Rec. doc. 16), United States District Judge Duval ordered the dismissal of Battie's complaint against these three employees. Battie I at Rec. doc. 17. The remaining defendant, Freeman Decorating Company ("Freeman"), filed a motion for summary judgment. Battie I at Rec. doc. 34. The undersigned issued a report and recommendation that its motion be granted. Battie I at Rec. doc. 37. Battie objected (Battie I at Rec. doc. 39), and the matter is pending before Judge Duval.
On December 24, 2001 Battie filed a second complaint and named only Freeman as a defendant. This action is captioned "Kenneth Battie v. Freeman Decorating," Civil Action No. 01-3842"K"(1) and is sometimes referred to as Battie II. Battie alleges that Freeman wrongfully issued him a written warning on September 6, 2001 in retaliation for filingBattie I. Battie was granted leave to proceed in forma pauperis. Battie II at Rec. doc. 2. Battie filed a motion for an appointment of counsel, but no action was taken on the motion. Battie II at Rec. doc. 3. United States Magistrate Judge Wilkinson issued a report and recommendation thatBattie II be transferred to Section K for possible consolidation withBattie I. Battie II at Rec. doc. 4. Battie II was not consolidated withBattie I as the report and recommendation had already issued. There was an automatic referral of Battie II to the undersigned, and Battie and Freeman Decorating consented, pursuant to 28 U.S.C. § 636 (c), to trial before the undersigned. Battie II at Rec. doc. 11. On March 19, 2002 there was a telephone preliminary conference. Battie II at Rec. doc. 5. A pretrial conference was set for September 18, 2002 and the trial was set for October 3, 2002. On March 20, 2002, Freeman filed a motion for summary judgment. Battie II at Rec. doc. 12.
BATTIE'S MOTIONS
Battie has filed four motions. The first motion is described as a "Motion to the Judge." This motion is handwritten and appears to be as follows:
On the _______ 6th date, 2002, I Kenneth Battie signed a consent form for case #01-3842"K". Upon receiving a phone call on 3/19/02 I see where confusion between this case and another may cause confusion. I would like to ask the Court to reconsider my signature on this documentation and allow me the right to proceed under regular circumstances and appoint me counsel to represent myself and to notify Freeman Decorating if possible. Please inform me of your decision.
See Freeman's "Motion to the Judge" filed on March 21, 2002. The undersigned will treat this motion as seeking the following relief: (1) permitting Battie to withdraw his consent to trial before the undersigned; and (2) appointing counsel to represent Battie.
The second motion is described was a "Motion for Appointment of Counsel and Immediate Mediation." The second motion seeks the following relief: (1) appointing counsel to represent Battie; (2) continuing the pretrial conference set for September 18, 2002 and the trial set for October 3, 2002; and (3) mediation. See Freeman's "Motion for Appointment of Counsel and Immediate Mediation" filed on March 21, 2002.
The third motion is described as a "Motion to Review Records and Objection." The motion refers to three exhibits attached to it. Exhibit A is a copy of a pleading filed by Battie on January 18, 2002 that was treated as an objection to Magistrate Judge Wilkinson's report and recommendation that Battie II be transferred to Judge Duval. United States District Judge Lemmon overruled this objection and adopted the recommendation that Battie II be transferred. Battie II at Rec. doc. 7. Exhibit B is copy of 42 U.S.C. § 12203. Exhibit C is a copy of Battie's application for the appointment of counsel filed on January 9, 2002. See Battie's "Motion to Review Records and Objection" filed on March 22, 2002. This motion will be treated as seeking: (1) an order rescinding the transfer of Battie II to Section K; and (2) an order appointing counsel to represent him. See Battie's "Motion to Review Records and Objection" filed on March 22, 2002.
42 U.S.C. § contains the prohibition against retaliation and coercion.
The fourth motion is an application for appointment of attorney pursuant to 42 U.S.C. § 2000e-5(f)(1). See Battie's "Application for Appointment of Attorney" filed on March 22, 2002.
Battie's four motions seek the following relief:
1. Permitting Battie to withdraw his consent to trial before the undersigned;
2. Appointing counsel to represent Battie pursuant to 42 U.S.C. § 2000e-5(f)(1);
3. Rescinding the transfer of Battie II to Section K;
4. Continuing the pretrial conference set for September 18, 2002 and the trial set for October 3, 2002; and
5. Mediation.
WITHDRAWAL OF CONSENT
In Carter v. Sea Land Services, 816 F.2d 1018 (5th Cir. 1987), the plaintiff appealed an adverse judgment rejecting her discrimination claims against the defendant and the denial of her motion to withdraw her consent to trial before a magistrate pursuant to 28 U.S.C. § 636 (c). The plaintiff and the defendant signed the requisite consent form and an order of reference was issued. After a motion to continue the trial was denied, the plaintiff moved to withdraw her consent to trial by a magistrate on the ground that she signed the consent form when she was unaware of its significance. The plaintiff did not challenge the validity of her consent but only the denial of her alleged right to withdraw consent. Id. at 1020. The Fifth Circuit said:
[T]oday we make clear that consent to trial before a magistrate waives the right to a trial before an article III judge. Once a right, even a fundamental right, is knowingly and voluntarily waived, a party has no constitutional right to recant at will.Id. at 1021. The Fifth Circuit held there was no absolute right to withdraw a validly given consent to trial before a magistrate and a motion to withdraw consent could only be granted for good cause shown.Id. at 1021. See also United States v. Muhammad, 165 F.3d 327, 330-31 (5th Cir. 1999), and Nugent v. Board of Commissioners of the East Jefferson Levee District, 1998 WL 726261, *3 (E.D.La.).
The consent form at issue shows it was executed by Mr. Battie on March 6, 2002. Battie was appearing in proper person at the time he signed the consent. Battie has not presented good cause in support of his motion to withdraw consent, so it must be denied.
MOTION TO APPOINT COUNSEL
In Battie II the plaintiff alleges that he notified his superiors at Freeman of his need to go to a doctor for his diabetic condition. Baffle alleged that Freeman wrote him up in retaliation for his filing Battie I. Battie alleges that prior to his medical appointment he informed Freeman that he would miss work because of the appointment. When he returned to Freeman the day after his appointment there was a yellow card sitting on the desk of one of his supervisors. Freeman alleges that when he saw the yellow card on the desk he asked why he was written up for missing work when he notified Freeman that he needed to be out for a medical appointment. Battie alleges that he always provided Freeman with advance notification a medical appointment before missing work. Battie II Rec. doc. 1. Battie filed an EEOC charge on October 6, 2001. The particulars of that charge are described as follows:
I was hired as a carpet laborer on September 23, 1999. I was given a written warning on September 6, 2001.
Chad Corregon (one of the persons named as a defendant in Battie I), supervisor, gave me a written warning for a doctor's appointment which I had given prior notification of my absence.
I believe that I was discriminated against in violation of Title VII of the Civil Rights Act of 1964 as amended, in retaliation for filing a previous charge, 270 A1 0224, in October 2000 and filing suit (Battie I) in Federal District Court on July 26, 2001.
See attachment to Battie II Rec. doc. 1.
Baffle's application shows that he is unable to obtain counsel, because he is unable to pay the retainer fee required by the lawyers. See application filed in Battie II on March 22, 2002. These are the same circumstances that Battie described in Battie I. See Battie I Rec. doc. 4.
A litigant has no right to counsel in a civil case. Caston v. Sears Roebuk Co., 556 F.2d 1305, 1309 (5th Cir. 1977). The court has discretion to appoint counsel in "such circumstances as the court may deem just," Id. at 13089, after consideration of relevant information regarding the claim including: (1) the merits of plaintiffs claims of discrimination; (2) the efforts taken to obtain counsel; and (3) the plaintiffs financial ability to retain counsel. Gonzales v. Carlin, 907 F.2d 573, 580 (5th Cir. 1990). The undersigned does not find that Battie's claim in Battie II has sufficient merit under Title VII to warrant appointment of counsel by the court. Considering the factors enumerated by Gonzalez, I find that plaintiffs motion must be denied.
TRANSFER OF BATTIE II TO SECTION K
L.R.3.1 of the Local Rules of the Eastern District of Louisiana describes a collateral matter in part as a civil matter that involves subject matter that comprises all or a material part of the subject matter or operative facts of another civil action then pending before this court. Magistrate Judge Wilkinson correctly concluded that Battie's alleged cause of action in Battie II was related to and involved the same parties as Battie I. L.R.3.1.1E requires that in such circumstances Battie II be transferred to the section where Battie I was pending. Battie's only explanation for seeking to rescind the transfer is to have Battie II treated separately from Battie I. This is being done, as there was no order issued consolidating the two cases. Battie's motion to rescind the transfer to Battie II to Section K is denied.
REQUEST FOR CONTINUANCE OF PRETRIAL CONFERENCE AND TRIAL DATE
At the preliminary conference on March 19, 2002 the pretrial conference was scheduled for September 18, 2002 and the trial was set for October 3, 2002. Battie does not present good cause for continuing these dates. His complaint in Battie II is straightforward and there is ample time to prepare for a trial in the beginning of October 2002. Battie's motion to continue the pretrial conference and trial are denied.
MEDIATION
Battie requests immediate mediation. It is not the practice in the Eastern District of Louisiana to assign a case for mediation until discovery has been completed and the parties are about to begin their trial preparations. It is premature to assign Battie II for mediation. However, a settlement conference will be scheduled in the event that the currently pending motion by the defendant is denied.
IT IS ORDERED that the following motions filed by Battie are DENIED as provided in this minute entry: (1) Motion to the Judge; (2) Motion for Appointment of Counsel and Immediate Mediation; (3) Motion to Review Records and Objection; and (4) Application for Appointment of Attorney Pursuant to 42 U.S.C. § 2000e-5 (f)(1).