Summary
denying pro se plaintiff's motion for summary judgment because he failed "to provide the court with any factual basis—other than the bald assertions in his motions and memoranda—upon which to determine whether there is any genuine issue of material fact" and failed to "cite to any pleading, deposition, answer to interrogatories, admission, or affidavit which supports his view of the facts"
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Civil Action No. 00-2405-CM.
January 17, 2001.
MEMORANDUM AND ORDER
This matter is before the court on numerous filings by the pro se plaintiff, Patrick Wesley MacCormack. The plaintiff filed objections to orders of the U.S. Magistrate Judge (Docs. 15, 26, 47, 49). On December 6, 2000, the plaintiff filed a Motion for Judgment in Response to Defendant's Motion to Amend Answer to Complaint (Doc. 24). Plaintiff's motion requested; (1) summary judgment, (2) default judgment, and (3) a meeting with the district court judge. Finally, on December 20, 2000, plaintiff filed A Respondent Motion to Dismiss Defendant's Rule 26(f) Report / Request for Default Judgment / or Disqualify District Judge (Doc. 38), in which plaintiff requests the court to (1) strike the defendant's Rule 26(f) report and (2) enter default judgment against the defendant, or (3) disqualify the undersigned district court judge. Defendant, City of Prairie Village, responded to the plaintiff's motions and filed a motion for an extension of time (Doc. 30) to respond to the summary judgment motion. Because the defendant subsequently filed a timely memorandum in opposition to plaintiff's motion for summary judgment, the court determines that defendant's motion is moot.
Plaintiff's response to defendant's motion to amend was referred to the magistrate judge. The plaintiff's motion to strike defendant's Rule 26(f) report shall be referred to the magistrate judge also. For the reasons stated herein, plaintiff's objections are overruled and plaintiff's motions for summary judgment, for default judgment, for a meeting with the district court judge, and for the district court judge to disqualify himself are denied.
Objections to the Magistrate Judge's Orders
When the pro se plaintiff filed his complaint, he also filed a Declaration to Clerk of Court (Doc. 2) in which he stated he would "refuse any attempt to direct any matter in this case to a magistrate judge." (Pl.'s "Declaration" at 1). As is the courts routine procedure, the undersigned district court judge assigned the matter to Magistrate Judge David J. Waxse for all pretrial proceedings.
Objections Based Upon Assignment of Magistrate Judge
On November 7, 2000, plaintiff filed his objections to the planning and scheduling order entered on October 26, 2000. Plaintiff objected to a magistrate judge handling any matters in this case and argued that a conflict of interest exists between him and Magistrate Judge Waxse. In an opinion filed November 30, 2000, MacCormack v. Prairie Village, Civil Action No. 00-2405-CM, slip op. at 2-3 (D.Kan. Nov. 30, 2000) (Doc. 22), the undersigned U.S. District Court Judge overruled the plaintiff's objection and denied plaintiff's request that Magistrate Judge Waxse be disqualified.
On November 14, 2000, plaintiff filed an objection (Doc. 15) to an order filed on October 31 in which the magistrate judge denied as moot plaintiff's motion for a scheduling conference. Plaintiff, in this objection, made the same arguments as in the objection filed November 7. On December 6, plaintiff filed an "objection to the order issued by the U.S. Magistrate Judge David J. Waxse on November 30, 2000." (Pl.'s Objection at 1) (Doc. 26). Plaintiff's objection filed December 6 is essentially identical to his objection filed November 14 except that the plaintiff offers additional argument based upon 28 U.S.C. § 455 to justify recusal of the magistrate judge.
The docket in this case discloses no order issued by the magistrate judge on November 30. The undersigned district court judge signed the opinion of November 30 discussed above. Therefore, the court construes the pro se plaintiff's Objection to Order filed on December 6 as a motion for reconsideration and analyzes the filing as both an objection to a magistrate's order and a motion for reconsideration.
Each of the plaintiff's arguments was considered in the court's earlier opinion. The court held that it is not required to obtain the parties' consent to refer pretrial matters which are not dispositive of the claims or defenses of the parties to a magistrate judge for determination. MacCormack, slip op. at 1-2; see also 28 U.S.C. § 636(c)(1); Blair v. Sealift, Inc., 848 F. Supp. 670, 675 (E.D.La. 1994); United States v. Raddatz, 447 U.S. 667, 677-684 (1980). The court also held that the plaintiff failed to establish grounds to justify the recusal of Magistrate Judge Waxse. The court's analysis will not be repeated here. Plaintiff's objections filed November 14 and December 6 (Docs. 15, 26) are without merit and, therefore, overruled.
The court also construes plaintiff's objection filed on December 6 as a motion for reconsideration of the court's November 30 Memorandum and Order. A motion for reconsideration must be based upon "(1) an intervening change in controlling law, (2) the availability of new evidence, or (3) the need to correct clear error or prevent manifest injustice." D. Kan. R. 7.3(b). The plaintiff makes no attempt to show how the court's November 30 opinion must be corrected based upon the requirements of the local rule. Because the plaintiff asserts no new evidence or change in the controlling law (and the court finds none), plaintiff's arguments can be construed only to assert a need to correct clear error or to prevent manifest injustice. However, the plaintiff's new arguments, based upon 28 U.S.C. § 455, do not show that the court's analysis was clearly erroneous or manifestly unjust. The mere fact that the statute is self-enforcing and that a judge must disqualify himself in a proceeding in which his impartiality might reasonably be questioned or if he has personal bias or prejudice, or personal knowledge of disputed evidentiary fact, does not establish that in any particular case a judge should be disqualified. As noted in the court's opinion filed November 30, the plaintiff presents no evidence other than his own bald assertions that the magistrate judge is biased or that his impartiality might reasonably be questioned. Therefore, finding no clear error or manifest injustice, the court denies the plaintiff's motion for reconsideration.
Objection to Scheduling Order
On January 2, 2001, plaintiff filed his objections (Doc. 49) to the scheduling order entered by the magistrate judge (Doc. 35). Plaintiff argues that the defendant filed an untimely report of the parties' Rule 26(f) planning meeting, that, pursuant to Rule 16, the magistrate judge was required to have defendant's report of the parties planning meeting before conducting the scheduling conference and, therefore, the scheduling conference was premature and the scheduling order must be "dismissed."
The district judge is required to "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). Rule 16(b) provides that the magistrate judge shall enter a scheduling order "after receiving the report from the parties under Rule 26(f) or after consulting with the attorneys for the parties and any unrepresented parties." Fed.R.Civ.P. 16(b) (emphasis added). The scheduling order entered in this case recites, "[a]fter consultation with the parties, the Court now enters the following Scheduling Order in this case." MacCormack v. Prairie Village, No. 00-2405, slip op., at 1, (D.Kan. December 20, 2000). The magistrate judge is not required by rule to receive the parties' report of the parties' planning meeting before entering a scheduling order. He is required to consult with the parties before entering a scheduling order if he is not in receipt of the report. The magistrate judge fulfilled his obligation under the rules. The district court judge has reviewed the scheduling order, finds it to be neither clearly erroneous nor contrary to law, and denies the plaintiff's motion for reconsideration.
Plaintiff's December 6 "Motion for Judgment"
In a motion filed December 6, the plaintiff addresses: (1) his opposition to defendant's motion to amend, (2) a motion for summary judgment, (3) a motion for default judgment, and, (4) a motion for a meeting with the district court judge. The defendant's motion to amend is not a dispositive motion and was referred to the magistrate judge along with the plaintiffs arguments in opposition to the motion. The magistrate judge, in an order filed December 20 (Doc. 33), mistakenly granted the defendant's motion as an unopposed motion. The magistrate judge subsequently discovered the mistake and amended that order in an Order Nunc Pro Tunc (Doc. 59). Before the magistrate judge amended the order granting the motion to amend (Doc. 47), the plaintiff filed an objection to the order. Because the magistrate judge amended his order, the court finds that plaintiff's objection is moot. In this opinion, therefore, the court considers only the dispositive matters addressed in the plaintiff's motion.
Motion for Summary Judgment
Plaintiff argues that summary judgment is proper because: (1) defendant failed to timely file a report of the parties' planning meeting pursuant to Rule 26(f), (2) defendant has filed frivolous pleadings in this case, (3) defendant has not provided evidentiary support for its defense, and (4) defendant has failed to cooperate in settlement discussions with the plaintiff. Defendant filed a motion for extension of time (Doc. 31) to respond to the summary judgment motion on December 11. Subsequently, defendant filed timely Suggestions in Opposition to Plaintiff's Request for Summary Judgment. Therefore, the court deems the defendant's motion for extension moot.
Defendant's Response
Plaintiff filed an "objection" and a supporting memorandum (Docs. 45, 46) in which he asserts that the defendant's suggestions in opposition to the plaintiff's motion for summary judgment should be "dismissed." Plaintiff argues that the suggestions in opposition are not accompanied by a memorandum and must, therefore, be summarily denied in accordance with local rules. The plaintiff misunderstands the meaning of "motion" and the application of the local rules.
Federal Rule of Civil Procedure 7(b)(1) establishes that a motion is "[a]n application to the court for an order." A party making a motion is required to file a brief or memorandum along with the motion except for certain circumstances not applicable here. D. Kan. Rule 7.1(a). A response to a motion is not an application to the court for an order and requires a brief or memorandum to be filed only if appropriate. D. Kan. Rule 7.1(a b). The local rule contemplates that a reply, in all cases, shall be by reply memorandum. Id. at 7.1(b). Because the plaintiff appears pro se, the court construes his objection and memorandum in support thereof as a reply memorandum and will not strike either filing.
Plaintiff filed a motion for summary judgment and defendant filed its response. Defendant's response is "a concise statement of [defendant's] opposition to the motion." Id. The plaintiff does not suggest, and the court does not find any compelling reason that an additional memorandum is required of the defendant to explain its response. Therefore, the court has considered, and will not strike, defendant's "suggestions."
Analysis
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Plaintiff, however, fails to provide the court with any factual basis-other than the bald assertions in his motions and memoranda-upon which to determine whether there is any genuine issue of material fact. The plaintiff fails to cite to any pleading, deposition, answer to interrogatories, admission, or affidavit which supports his view of the facts. The affidavit which the plaintiff provides with his motion merely asserts his opinion that damages are liquidated at $1,010,000. Therefore, the court is unable to determine whether there is a genuine issue as to any material fact, and summary judgment is denied.
Furthermore, were the court to assume that each "fact" asserted by the plaintiff was true, summary judgment would not be proper because the plaintiff has shown no legal basis to justify summary judgment. The issue to be decided in this case is whether the defendant has violated the plaintiff's civil rights under the Constitution of the United States and certain Civil Rights Acts of 1866 and 1871 as amended. (Complaint at 1, 2-5, ¶¶ 1, 5-7). The "facts" presented in plaintiff's motion for summary judgment do not establish violation of the rights asserted in plaintiff's complaint. Moreover, plaintiff cites no legal authority to justify summary judgment as a sanction for any or all of the alleged procedural defects in the defendant's case. At this time, the court finds no legal justification for summary judgment, and plaintiff's motion for summary judgment is denied.
Motion for Default Judgment
Plaintiff argues that the defendant's failure to timely file a report of the parties' planning meeting constitutes a failure to plead or defend and justifies default judgment against the defendant under Rule 55. The defendant argues that the plaintiff misunderstands the requirements of Rule 55, that the defendant has filed an answer to the plaintiff's complaint and a motion to amend the answer, and that the answer and motion to amend constitute sufficient defense to preclude default judgment under Rule 55. The court agrees with the defendant.
Rule 55 provides for entry of default and subsequent judgment of default where the opposing party has failed to plead or otherwise defend. Fed.R.Civ.P. 55; Koch Engineering Co. v. Currieo, Civ. A. No. 86-1849-T, 1989 WL 39501 (D.Kan. March 20, 1989). The rule requires that a party respond to a complaint with some action to defend pursuant to the Federal Rules of Civil Procedure. Fed.R.Civ.P. 55; see also Brooks v. Graber, No. 00-2262-DES, 2000 WL 1679420, at *2 (D.Kan. Nov. 6, 2000) (the rule "contemplates a complete failure of a party to address or confront a pending complaint"); Koch Engineering, 1989 WL 39501 at *1 (motion to dismiss fulfills obligation to otherwise defend, but failure to file answer for two years after the motion to dismiss has been denied is grounds for entry of default and default judgment). In this case the defendant pled by filing a timely answer. It cannot be said that the defendant "has failed to plead or otherwise defend." Fed.R.Civ.P. 55(a). Therefore, entry of default is not proper in this case, and the plaintiff's motion for default judgment is denied.
Motion for a Meeting with the District Court Judge
Plaintiff asserts under Rule 56(d) that, if the court does not grant judgment to the plaintiff on his motions for default judgment or summary judgment, "the District Court Judge has an obligation to examine the pleadings and evidence before him, interrogate counsel and ascertain what material facts are actually in good faith controverted." (Pl.'s Mot. for Judgment, at 7). Therefore the plaintiff requests a personal meeting with the district court judge to determine what facts are uncontroverted.
Plaintiff's request misconstrues Rule 56(d). Rule 56(d) provides, " If on [summary judgment] motion . . . judgment is not rendered upon the whole case . . ., the court . . . by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted." Fed.R.Civ.P. 59(d) (emphasis added).
The rule does not require the court to determine which facts are established in every case where the court denies summary judgment. Rather, the rule merely allows the court to specify those facts which cannot in good faith be controverted. The court retains the power to adjudicate all aspects of the case at one time. See Colasanto v. Life Ins. Co. of N. Am., 100 F.3d 203, 210 (1st Cir. 1996) (quoting 10A Charles Alan Wright, Arthur R. Miller Mary Kay Kane, Federal Practice and Procedure § 2737 (2d ed. 1983)). If the court determines that identifying the uncontroverted facts will not materially expedite the case, it is not required to do so. 10B Charles Alan Wright, Arthur R. Miller Mary Kay Kane, Federal Practice and Procedure § 2737 (3d ed. 1998).
A judge may not participate in an ex parte meeting with a plaintiff relative to the merits of a case before that judge. Code of Conduct for United States Judges, Canon 3A(4). Without a hearing, the court could not determine which facts are uncontroverted. The plaintiff provides no citation for the facts which he alleges are established, the defendant controverts the narrative "facts" presented by the plaintiff, and the court finds no independent basis to determine which facts may not be controverted. Additionally, since discovery is just beginning, it would be impracticable and unproductive to attempt to hold a hearing to ascertain which facts are uncontroverted. This is especially true because the defendant does not agree with the "facts" asserted by the plaintiff. Plaintiff's motion for a personal meeting with the undersigned judge is denied.
Plaintiff's December 20 "Respondent Motion"
On December 20, 2000, the plaintiff filed A Respondent Motion to Dismiss Defendant's Rule 26(f) Report / Request for Default Judgment / or Disqualify District Judge (Doc. 38) along with a memorandum in support thereof. In the motion, the plaintiff makes three "claims for relief;" (1) a motion to "dismiss" the defendant's untimely report of the parties' planning meeting filed on December 6, 2000, (2) another motion for default judgment, and (3) a motion for the undersigned district court judge to disqualify himself if the court denies the plaintiff's motion for default judgment. On December 27 defendant responded with its suggestions in opposition to plaintiff's motion.
A report of the parties' planning meeting is required pursuant to Rule 26(f). The plaintiff does not provide, nor is the court aware of, any legal authority to "dismiss" a report required by the Federal Rules of Civil Procedure. The court, in construing the pro se plaintiff's motion liberally, deems the filing to be a motion to strike the defendant's report of the parties' planning meeting pursuant to the court's inherent powers to control proceedings before it or pursuant to its authority to sanction a party pursuant to Rules 16, 26 or 37 of the Federal Rules of Civil Procedure. A motion to strike or for sanctions is within the scope of the referral to the magistrate judge. Fed.R.Civ.P. 72(a); D. Kan. R. 72.1.1(c). Therefore, plaintiff's motion to strike shall be referred to the magistrate judge for decision.
The plaintiff's arguments for default judgment here are essentially identical to the arguments he made in his "Motion for Judgment" filed December 6. The court denies plaintiff's motions for default judgment for the reasons stated in the analysis above and will not repeat that analysis here.
Motion for District Court Judge to Disqualify Himself
Plaintiff's "Third Request for Relief" is a motion for the undersigned district court judge to disqualify himself, "[i]f, for any reason, the District Court Judge denies the plaintiff a Judgment by Default." (Pl.'s "Respondent Motion," at 3, ¶ 9). Plaintiff argues that 28 U.S.C. § 455 requires a judge to disqualify himself any time his impartiality might reasonably be questioned, when the judge has personal bias or prejudice or personal knowledge of disputed evidentiary facts concerning the case at issue, or when the judge is likely to be a material witness in the proceeding. Plaintiff's argues that the statute is self-executing, and therefore the undersigned should disqualify himself.
The plaintiff's statement of the law is correct. See 28 U.S.C. § 455; Idaho v. Freeman, 507 F. Supp. 706, 720 (D.Idaho 1981). Because the statute is self-executing, the court has established procedures whereby each case on its docket is reviewed to determine potential grounds which would disqualify the judge. Those procedures have been applied in this case, and have revealed no reason for the judge to disqualify himself. Although the plaintiff has not made a motion for recusal under 28 U.S.C. § 144, the court will analyze the issue under both statutes.
As stated in the court's Memorandum and Order filed November 30:
To prevail on a motion to recuse a judge under 28 U.S.C. § 144, the litigant must file a timely and sufficient affidavit establishing that the judge has a personal bias or prejudice. Green v. Branson, 108 F.3d 1296, 1305 (10th Cir. 1997). Similarly, to obtain disqualification under 28 U.S.C. § 455, a movant must show that a reasonable person knowing all the circumstances, would harbor doubts about the judge's impartiality. Id. Mere "rumor, speculations, opinions and the like do not suffice." Id. (citing United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993)).
MacCormack, slip op. at 2-3.
As with his attempt to disqualify the magistrate judge, plaintiff's motion to disqualify the district judge is wholly insufficient to meet the legal standards. Plaintiff makes no showing that the undersigned is biased or prejudiced, nor does the plaintiff show any reasonable basis to doubt this judge's impartiality. Plaintiff simply asserts no facts from which one might infer a basis to disqualify the undersigned. The undersigned judge and his staff, in independent review, have found no basis for disqualification. Therefore, plaintiff's motion for the judge to disqualify himself is denied.
Deposition of District Court Judge as a Material Witness
In a final matter, the court must address an issue noted by the plaintiff in the "Respondent Motion," that "if the District Court Judge does not grant the plaintiff a Judgment by Default and fails to recuse himself in this case, he will be deposed by the plaintiff as a material witness in this case." (Pl.'s Respondent Motion, at 4, ¶ 12).
To the extent that the pro se plaintiff believes that the undersigned judge may be a material witness in this case, the court, in its review pursuant to 28 U.S.C. § 455, determined that the undersigned does not have "personal knowledge of disputed evidentiary facts concerning this proceeding." Therefore, the judge is not a material witness. To the extent that the attempt to depose the district court judge may be an attempt to gain de facto that which could not be achieved by motion (recusal of the district court judge), the court notes that "[o]ral examination of a judicial or quasi-judicial officer as to matters within the scope of his adjudicative duties should be permitted only upon a strong showing of bad faith or improper behavior." United States v. Ianniello, 740 F. Supp. 171, 187 (S.D.N.Y. 1990)(rev'd on other grounds sub nom. United States v. Salerno, 937 F.2d 797 (2d Cir. 1991)). Finally, to the extent that the plaintiff's statement may be an attempt to impose improper pressure on the court, the court chooses to ignore that irrelevant material and does not consider it in making the court's decision. The court reminds the pro se litigant that he is responsible to maintain appropriate decorum in his conduct before the court, he is responsible to follow the Federal Rules of Civil Procedure, and may be held liable in contempt of court or be sanctioned for a breach of the rules if a violation is found.
Summary
Plaintiff's objections to orders based upon assignment of the magistrate judge are overruled because the issues presented were previously decided in the court's Memorandum and Order filed in this case on November 30, 2000. Because the plaintiff's objection filed on December 6 addresses the district court judge's opinion filed November 30, the court also construes the objection as a motion for reconsideration pursuant to local rule 7.3(b). Finding no clear error or manifest injustice, the court denies plaintiff's motion for reconsideration.
Plaintiff's objection to the scheduling order entered by the magistrate judge is overruled because plaintiff has not shown that the order is clearly erroneous or contrary to law.
Plaintiff filed a "Motion for Judgment" on December 6 which presented four issues to be decided by the court. (1) Plaintiff's response to defendant's motion to amend answer was referred to the magistrate judge. Plaintiff's objection to the magistrate judge's order granting the defendant's motion to amend is deemed moot because the magistrate judge has amended the erroneous order. (2) The court finds that the plaintiff has provided no uncontroverted facts or legal authority upon which the court could grant summary judgment. Therefore, plaintiff's motion for summary judgment is denied. (3) The court finds that the defendant has pled by filing a timely answer. Therefore, entry of default is not proper, and plaintiff's motion for default judgment is denied. (4) Plaintiff's motion for a meeting with the district court judge is denied because, in the present posture of this case, it is impracticable to ascertain what material facts exist without substantial controversy and because an ex parte meeting with the plaintiff would violate Canon 3A(4) of the Code of Conduct for United States Judges.
Plaintiff filed "A Respondent Motion" on December 20 making three "claims for relief." (1) Plaintiff's motion to dismiss the defendant's report of the parties' planning meeting is construed as a motion to strike the defendant's report. As such, the plaintiffs motion shall be referred to the magistrate judge for determination. (2) Plaintiff's motion for default judgment is denied for the same reasons his previous default judgment motion was denied. (3) Plaintiff's motion for the district court judge to disqualify himself is denied because it is insufficient to meet the legal standards, and fails to show any facts from which one might reasonably infer a basis, for disqualification.
Orders
IT IS THEREFORE ORDERED that plaintiff's objections (Docs. 15, 26) are overruled.
IT IS FURTHER ORDERED that plaintiff's objection (Doc. 49) to the scheduling order is overruled.
IT IS FURTHER ORDERED that plaintiff's objection (Doc. 47) to the magistrate judge's order granting the defendant's motion to amend is moot.
IT IS FURTHER ORDERED that plaintiff's motion for reconsideration (Doc. 26) is denied.
IT IS FURTHER ORDERED that plaintiff's motion for summary judgment, motion for default judgment and motion for meeting with the district court judge (Doc. 24) is denied.
IT IS FURTHER ORDERED that plaintiff's motion for default judgment and motion for the district court judge to disqualify himself (Doc. 38) is denied.
IT IS FURTHER ORDERED that plaintiff's motion to strike defendant's rule 26(f) report (Doc. 38) shall be referred to Magistrate Judge David J. Waxse for decision.
IT IS FURTHER ORDERED that defendant's motion for an extension of time (Doc. 30) is moot.
Dated this day of January 2001, at Kansas City, Kansas.