Opinion
USDC #: 2:02 CV 1368 TC
May 5, 2003
ORDER
Sharon Cook filed this employment discrimination case against her employer and other individuals alleged to be agents of her employer. Plaintiff is attempting to conduct this suit as her own attorney.
Complaint, Paragraphs 1, 4, and 5.
The courtroom seems approachable to those without legal training or a license to practice law. The courts permit people to advocate in their own behalf, without a license or training. Our commitment to universal redress of rights compels the facility of pro-se filing. But in a sense, this ease of access to the courts is misleading.
Though the rules allow individuals to file and prosecute their own suits, there is no guarantee that access will lead to success. Being able to file does not mean that merit will be found. It is much easier to plead a claim than to prove one. The pro-se litigant starts with a considerable handicap that increases as the case proceeds.
It is not possible for the Court to depart from its impartial role to aid a pro-se litigant. Many pro se litigants become frustrated by the procedural rules and substantive laws they do not understand. They blame the system or a conspiracy of judges and opponents. Plaintiff has reached this state, asking (in one of the many memoranda considered in preparing this order):
Are there conversations behind the scenes involving members of this Court which involve bias [sic] comments against Plaintiff's key witness, Steven C. Davis, and his reict relationship as a prominent Church leader since 1989 with Defendants HINCKLEY, COP and GOLDHARDT?
Plaintiff's Motion to Remove Magistrate Judge David Nuffer Based on Rule 63 FRCP, etc., Docket No 62, filed April 14, 2003, pages 3-4.
The most serious handicap of the pro-se litigant is the inability to assess the merits of his or her own position. The pro-se litigant's inability to perceive the true position leads to distortions and further misunderstanding.
This preliminary observation will in part explain the disposition of the several motions treated in this order. It would not matter who made such motions; the result could not be different, because of the merits. On the other hand, a person with legal training, experience, and a license to practice law probably would not have filed these motions.
Motion to Remove Magistrate Judge
Plaintiff moved to remove me from the case based on (a) my failure to answer her personal correspondence regarding my affiliation with The Church of Jesus Christ of Latter-day Saints, a religious organization affiliated with the corporate defendant, and (b) the disqualification of all judges in the district from participation in Noyes v. Zions Bancorporation, Case No 2:99 CV 00749B. She cites Rule 63 of the Federal Rules of Civil Procedure as the basis for her motion.
Plaintiff's Motion to Remove Magistrate Judge David Nuffer Based on Rule 63 FRCP, etc., Docket No 62, filed April 14, 2003.
Rule 63 does not deal with disqualification or removal of judges, but provides for continuation of a trial or hearing if the judge becomes "unable to proceed" by reason of disability, death or other circumstance. That rule does not provide a basis for Plaintiff's motion.
More to the point, The Church of Jesus Christ of Latter-day Saints is not a party to this case, and religious affiliation is no reason for disqualification of a judge. Finally, there is no connection between the Noyes case and this one. The facts Plaintiff recites about that case show no relevance or applicability to this one.
Bryce v. Episcopal Church, 289 F.3d 648 (10th Cir. 2002).
Plaintiff presents no reason I should be removed or remove myself from this case.
Motion for Enlargement of Time
Plaintiff moved for a suspension of all time limits in this case, allowing her thirty more days to answer all motions filed since April 8, 2003; a thirty day moratorium on any filings by Defendants; and a thirty day delay before her deposition may be taken. Plaintiff has answered all pending motions, except (a) Defendants' motion to strike a letter she wrote in violation of prior court orders and (b) Defendants' motion for a general protective order. The latter motion is the only pending, non-dispositive motion remaining after this present order is entered. Plaintiff may have until June 6, 2003, to respond to Defendants' motion for a general protective order. Defendants' obligation to respond to Plaintiff's discovery served March 17, 2003, is stayed until the resolution of that motion. Plaintiffs other requests for enlargement of time (or stay) are denied.
Defendants' Motion to Strike Plaintiff's 4/21/03 letter to the Court as an Unauthorized Sur-reply Memorandum, Docket No. 75, filed April 24, 2003.
Defendants' Motion for Protective Order, Docket No. 65, filed April 1, 2003.
Motions Relating to Principal Depositions
Four motions relate to the taking of principal depositions in this case. The same essential facts pertain to all the motions.
Plaintiff's Motion for Protective Order, Docket No. 32, filed March 24, 2003; Plaintiff's Objection and Motion to Compel, Docket No. 35, filed March 24, 2003; Defendant Gordon B. Hinckley's Motion for Protective Order, Docket No. 38, filed March 26, 2003; and Defendants' Motion to Compel Deposition of Plaintiff, Docket No. 44, filed March 28, 2003.
1. On March 13, 2003, Defendants issued a notice of Plaintiff's deposition, set March 28, 2003, at 9:00 a. m. and sent a cover letter with the notice.
2. The cover letter explained that counsel for the defendant corporation (which is Plaintiff's employer) had arranged for her to have the day off to allow the deposition.
3. On March 14, 2003, Plaintiff issued a notice of deposition for Gordon B. Hinckley, a named individual defendant, and head of the corporate defendant. The deposition was set March 28, 2003, at 1:00p.m.
4. On March 20, 2003, Defendants' counsel wrote Plaintiff regarding concerns with the notice of Hinckley's deposition — that the time set on the afternoon of Plaintiff's deposition would not allow full deposition of Plaintiff and that Hinckley, while a named defendant, was subject of a motion for judgment on the pleadings, and while head of the corporate defendant, had no personal knowledge of her case. Counsel suggested that a protective order might be obtained.
5. On March 23, 2003, Plaintiff wrote Defendants' counsel requesting cooperation in permitting the deposition of Hinckley as she had set, but not responding to other issues in the March 20th letter.
6. On March 24, 2003, Plaintiff filed her motion to compel Hinckley's deposition and her motion for protective order "to protect the Plaintiff from intentional discrimination and oppressive conditions."
7. On March 25, 2003, Defendants' counsel responded to Plaintiff, notifying her of his intention to file a motion for protective order against the taking of Hinckley's deposition.
8. On March 26, 2003, Defendant Hinckley filed a motion for protective order against the taking of his deposition, and on March 28, 2003, Defendants filed their motion to compel Plaintiff's deposition.
Exhibit A to Defendants' Memorandum in Opposition to Plaintiff's Motion for Protective Order and in Support of Defendants' Motion to Compel Deposition of Plaintiff ("Defendants' Discovery Memorandum"), Docket No. 45, field March 28, 2003.
Exhibit A to Affidavit of R. Willis Orton, Docket No. 41, filed March 26, 2003.
Exhibit B to Orton Affidavit.
Exhibit D to Orton Affidavit.
Plaintiff's Motion for Protective Order, page 1.
Exhibit E to Orton Affidavit.
Discussion — Plaintiff's Deposition
The first notice of deposition given was for Plaintiff's deposition. The Plaintiff moved for a protective order to prevent abuse, and Defendants moved to compel the deposition. Plaintiff first asserted that she may only be deposed for "one hour at a time, and no more frequently than one session every three weeks . . . because Plaintiff's health and extreme emotional stress and suffering . . . will not allow for . . . long and abusive questioning." There is no evidence to support this claim of extreme and unusual inability to be deposed. In fact, Plaintiff asserts she is a graphic artist for a publication, "works full time," and has "a heavy work load." She noticed Hinckley's deposition to follow the morning of her deposition, indicating her ability to work for a full day. Defendants point out that she "maintains full-time employment . . . and has 100 hours of accrued leave/sick time." In her reply memorandum on her motion for protective order, Plaintiff admits that she "purposely set up terms and conditions of being deposed for 10 hours 1 hour at a time no more often than once every three weeks to make it unattractive and burdensome to the attorneys." It appears that the serial deposition proposal was only a tactic.There is a genuine dispute about the length of Plaintiff's deposition. Defendants proposed a ten hour deposition be taken and Plaintiff objects to this "11 hour day." It is not unreasonable that a claimant's deposition would last more than a day, but no deposition day should last more than seven hours.
She apparently reasons that lunch adds another hour to a single day of deposition. Attorney's [sic] Planning Meeting Report, Docket No. 27, filed March 12, 2003, page 5.
It is reasonable that Defendants be able to depose Plaintiff for a total of ten hours, on two separate days, in one day of not more than seven hours and a second day of the remaining hours. There should be reasonable breaks outside the deposition time, including a lunch break. Defendants' counsel shall schedule the depositions, arranging for Plaintiff's time off from her employer at a time when deadlines will not be impaired. Plaintiff shall have at least ten calendar days notice.
Plaintiff has filed numerous extraneous papers and has attached extraneous exhibits to valid pleadings and papers. If the deposition conduct of Plaintiff is similarly diffuse and unfocused, this order as to the length of her deposition may be modified on motion, and other orders may issue.
This behavior has necessitated prior intervention by Judge Campbell, by a letter dated April 9, 2003, attached to Defendants' Motion to Strike Plaintiff's 4/21/03 letter to the Court as an Unauthorized Sur-reply Memorandum, Docket No. 75, filed April 24, 2003, as Exhibit B, and by an Order, Docket No. 58, filed April 10, 2003.
The bulk of Plaintiff's arguments in her motion for protective order pertain to her need to take the deposition of Gordon B. Hinckley. Those arguments are not pertinent to the taking of her deposition. There is no reason her deposition should not be taken, and given her refusal to submit to deposition pursuant to notice, there is reason her deposition should be compelled.
Plaintiff's Memorandum in Support of Objection and Motion to Compel, Docket No. 36, filed March 24, 2003.
Deposition of Gordon B. Hinckley
Plaintiff is intent on taking the deposition of Gordon B. Hinckley because "Plaintiff absolutely needs this discovery Deposition" for the hearing set May 29, 2003, on the Motion for Judgment on the Pleadings. A motion for judgment on the pleadings will not consider any factual material beyond the allegations of the pleadings, so there is no need to take a deposition before that date. More to the point, the motion for judgment on the pleadings specifically seeks to dismiss Hinckley from the case and on review that motion does not appear to be frivolous. The complaint only alleges Hinckley is an agent of the corporate defendant, the claimed employer, and that Plaintiff sent Hinckley a letter. The complaint does not allege any action by Hinckley toward the Plaintiff. Plaintiff seeks no relief against him. Therefore, it would appear prudent to at least delay his deposition until after the motion is heard.
Plaintiff's Memorandum in Support of Objection and Motion to Compel, Docket No. 36, filed March 24, 2003, page 1.
Complaint, Paragraph 6 e, Page 4.
Complaint, Pages 10-11.
Finally, Hinckley is the head of the large corporate defendant, and the affiliated church. Affidavits filed by F. Michael Watson and counsel establish facts sufficient to bring Hinckley within the application of the so called "apex rule" preventing plaintiffs from deposing heads of large organizations. An organizational officer who has no personal knowledge of the facts of a case, has considerable responsibilities that would make deposition burdensome and does not personally participate in or review organizational litigation will not be deposed. Plaintiff should first finish discovery of persons demonstrated or admitted to have knowledge, and then if some relevance is shown, "the deposition [of the organization chief officer] may be taken on motion to the court showing justification." The rambling, disjointed memorandum filed by Plaintiff casts serious doubt on her ability to make this showing, because it does not appear she can make this analysis. At the present time, Plaintiff cannot take the deposition of Gordon B. Hinckley.
Docket No. 40, filed March 26, 2003.
Affidavit of Willis Orton, Docket No. 41, filed March 26, 2003.
Thomas v. IBM, 48 F.3d 478 (10th Cir. 1995).
Stone v. Morton International, 170 F.R.D. 498, 504 (D. Utah 1997). This opinion was written by the late United States Magistrate Judge Ronald Boyce.
Plaintiff asks for the court to rule on her ability to take Hinckley's deposition "with prejudice and on the merits," but this order will not forever preclude her. Plaintiff's Answer to Defendant Gordon B. Hinckley's Motion and Memorandum in Support of Protective Order etc., Docket No. 50, filed April 8, 2003, page 11.
ORDER
IT IS HEREBY ORDERED:1. Plaintiff's Motion to Remove Magistrate Judge David Nuffer based on Rule 63 of the Federal Rules of Civil Procedure, etc., Docket No 62, filed April 14, 2003, is DENIED.
2. Plaintiff's Motion for Enlargement of Time Pursuant to Fed.R.Civ.P. 6(b), Docket No. 72, filed April 21, 2003, is GRANTED IN PART to allow Plaintiff until June 6, 2003, to respond to Defendants' motion for a general protective order. Defendants' obligation to respond to Plaintiff's discovery served March 17, 2003, is stayed until the resolution of that motion. Plaintiff's other requests for enlargement of time (or stay) are DENIED.
Defendants' Motion for Protective Order, Docket No. 65, filed April 1, 2003.
3. Plaintiff's Motion for Protective Order, Docket No. 32, filed March 24, 2003, is DENIED. Defendants' Motion to Compel Deposition of Plaintiff, Docket No. 44, filed March 28, 2003, is GRANTED. Plaintiff shall submit to deposition for a total of ten hours, on two separate days: one day of not more than seven hours; and a second day of the remaining hours. There should be reasonable breaks outside the deposition time, including a lunch break. Defendants' counsel shall schedule the depositions, arranging for Plaintiff's time off from her employer at a time when deadlines will not be impaired. Plaintiff shall have at least ten calendar days notice.
4. Plaintiff's Objection and Motion to Compel, Docket No. 35, filed March 24, 2003, is DENIED. Defendant Gordon B. Hinckley's Motion for Protective Order, Docket No. 38, filed March 26, 2003 is GRANTED. Plaintiff may not take the deposition of Gordon B. Hinckley without leave of the Court.
5. Defendants' Motion to Strike Plaintiff's 4/21/03 letter to the Court as an Unauthorized Sur-reply Memorandum, Docket No. 75, filed April 24, 2003 is GRANTED. The Plaintiff's April 21, 2003 letter, lodged in the file is STRICKEN for purposes of consideration of any current motions. Plaintiff is admonished, again, that unauthorized filings should not be submitted.