Opinion
CIVIL ACTION No. 01-2433-KHV
November 25, 2002
MEMORANDUM AND ORDER
Henry F. Butler brings employment discrimination and retaliation claims against The Boeing Company ("Boeing") under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. as amended ("Title VII"), the Kansas Acts Against Discrimination ("KAAD"), K.S.A. § 44-1001 et seq., and the Civil Rights Act of 1871, 42 U.S.C. § 1981 and 1983. On October 4, 2001, the Court granted partial summary judgment in favor of defendant on plaintiff's Title VII and KAAD claims (Counts 2, 3 and 4). See Memorandum And Order (Doc. #71). In light of the partial summary judgment ruling, plaintiff's only remaining claim is for racial discrimination under Section 1981 (Count 1), which the Court has limited to acts that occurred after October 21, 1997. See id. This matter comes before the Court on plaintiff's Motion To Set Aside Pretrial Order (Doc. #169) and Motion To Re-Open Discovery And For Stay Order (Doc. #171), both filed September 24, 2002.
On December 10, 2002, the Court overruled plaintiff's motion to reconsider the partial summary judgment ruling. See Memorandum And Order (Doc. #89).
I. Motion To Set Aside Pretrial Order
Plaintiff asserts that at the pretrial conference Magistrate Judge Waxse improperly dismissed several of plaintiff's claims without giving him an opportunity to respond. Plaintiff asks the Court to set aside the pretrial order and schedule another pretrial conference. See Memorandum In Support Of Motion To Set Aside Pretrial Order (Doc. #170) filed September 24, 2002 at 6. Under Rule 16(e), Fed.R.Civ.P., a pretrial order "shall be modified only to prevent manifest injustice."
Plaintiff complains that the pretrial order should contain the following: (1) a claim of failure to promote; (2) a retaliation claim; and (3) a claim under Section 1981 which includes events that occurred after January 21, 1999. See Affidavit Of Henry F. Butler (Doc. #159) filed August 15, 2002 at 6-7. As an initial matter, the Court notes that the pretrial order already includes allegations of failure to promote and violations of Section 1981 after January 21, 1999. Specifically, the pretrial order alleges discriminatory events which occurred from 1993 to the present, including failure to promote. See Pretrial Order (Doc. #149) filed August 7, 2002 at 2-8. Therefore, plaintiff's only apparent complaint is that Judge Waxse should have allowed him to include a retaliation claim.
Specifically, plaintiff states:
Defendant . . . inform[ed] Judge Waxse that he would omit the failure to promote claim on the basis of it being time-barred, the retaliation claim would be omitted because it was not pled in the complaint, and the 1981 claim would be limited to events occurring before January 21, 1999, because of a second lawsuit in which plaintiff is one of the parties. Plaintiff understood that Judge Waxse somewhat agreed with defendant . . . [but] plaintiff did not hear Judge Waxse specifically instruct defendant to omit these claims. Plaintiff's contention is that all of the claims should remain intact because the original complaint states that plaintiff is alleging continuing violation and the documentation submitted in this case support [sic] these claims. . . . Judge Waxse has improperly assisted defendant Boeing by authorizing the removal of the retaliation claim from the pretrial order, despite the fact that it is clearly set forth in plaintiff's complaint, as well as allowing defendant to omit the failure to promote allegation and placing limitations on the scope of plaintiff's [Section] 1981 claim.
Affidavit Of Henry F. Butler (Doc. #159) filed August 15, 2002 at 6-7.
Plaintiff cites no basis for including a retaliation claim in the pretrial order. Count 1 of plaintiff's complaint — the only claim which remains after the Court's partial summary judgment ruling — does not assert a claim for retaliation. In asking the Court to set aside the pretrial order, plaintiff makes broad assertions regarding alleged improprieties by Magistrate Judge Waxse. None of his allegations provide a basis for setting aside the pretrial order. The Court therefore overrules his motion to do so.
Plaintiff contends that the magistrate judge repeatedly ruled on plaintiff's motions before the time to respond had expired. Plaintiff provides no specific details regarding these alleged rulings, however, and he cites no facts which suggest that the rulings prejudiced him in any way. Plaintiff's affidavit refers to facts which occurred in another case, Pyles v. Boeing, 00-2394. See Affidavit Of Henry F. Butler (Doc. #159) filed August 15, 2002 at 3-4. Plaintiff also complains that Judge Waxse denied his second request for appointment of counsel before his time to reply had expired. See id. at 5. The Court, however, has already overruled plaintiff's objections to that order. See Memorandum And Order (Doc. #129) filed June 21, 2002. In sum, plaintiff incorrectly concludes that adverse rulings by Judge Waxse constitute grounds for recusal. See Willner v. Budig, 848 F.2d 1032, 1035 (10th Cir. 1988) (adverse rulings alone insufficient grounds for recusal).
II. Motion To Re-Open Discovery And For Stay Order
Plaintiff asks the Court to re-open discovery and stay further proceedings in the case. In support of his motion, plaintiff states that defendant has concealed evidence. Specifically, plaintiff contends that in response to his request for production of documents in April of 2001, defendant should have produced internal affirmative action surveys. See Memorandum In Support Of Motion To Re-Open Discovery And For Stay Order (Doc. #172) filed September 24, 2002 at 2. To support his claim that defendant has such surveys, plaintiff cites allegations in a class action complaint and a related press release. See id. at 3.
Defendant contends that it has been unable to identify any non-privileged surveys.
The Court exercises discretion in deciding whether to reopen discovery. See SIL-FLO, Inc. v. SFHC, Inc., 917 F.2d 1507, 1514 (10th Cir. 1990). In making its decision, the following factors are relevant: "(1) whether trial is imminent; (2) whether the request is opposed; (3) whether the non-moving party would be prejudiced; (4) whether the moving party was diligent in obtaining discovery within the guidelines established by the court; (5) the foreseeability of the need for additional discovery in light of the time allowed for discovery by the district court; and (6) the likelihood that the discovery will lead to relevant evidence." Id. (quoting Smith v. United States, 834 F.2d 166, 169 (10th Cir. 1987)).
In this case, all factors weigh against re-opening discovery. First, trial is scheduled to begin in two months, on January 21, 2003. Given the posture of the case — discovery has closed and defendant has filed a summary judgment motion — defendant would be prejudiced if discovery were re-opened. Defendant responded to plaintiff's production request more than 18 months ago. Plaintiff did not file a motion to compel, and he does not argue that he did not know or could not have known about the class allegations at that time. Finally, plaintiff has not shown that additional discovery will likely lead to relevant evidence. Indeed, the mere fact that class action plaintiffs have alleged the existence of such surveys does not prove that they exist. Based on the foregoing analysis, the Court overrules plaintiff's request to re-open discovery and stay further proceedings in the case.
IT IS THEREFORE ORDERED that plaintiff's Motion To Set Aside Pretrial Order (Doc. #169) filed September 24, 2002 be and hereby is OVERRULED.
IT IS FURTHER ORDERED that plaintiff's Motion To Re-Open Discovery And For Stay Order (Doc. #171) filed September 24, 2002 be and hereby is OVERRULED.