Opinion
Civ. No. 98-2366-JWL.
March 9, 2000.
MEMORANDUM AND ORDER
This matter is before the Court on the following pleadings filed by Plaintiff: (1) "Motion the Court for extension of time" to file answers to various Orders (doc. 71); (2) "Motion the Court for a hearing on unclear issue" (doc. 75); (3) "Motion the court . . . to order this Grand Jury Investigation" (doc. 78); (3) "Motion Court For Grand Jury Investigation, against Sprint, the Courts, and Clerk Corruption" (doc. 80); and (4) "Come now the Plaintiff, before the court in reference to this case of 98cv2366JWL, has been file in the eight circuit of the Western District of Missouri, Western Division" (doc. 81). It is also before the Court on the following motions filed by Defendant: (1) Motion to Compel Plaintiff's Responses to Discovery and to Order Reimbursement of Defendant's Expenses and Fees (doc. 72); and (2) Defendant's request that the Court dismiss this action "as a result of plaintiff's continuous refusal to comply with the Court's rules and Orders" (doc. 87).
As is discussed below, some of the Plaintiff's pleadings presently before the Court do not seek any particular relief and, technically, are not "motions" within the meaning of the Federal Rules of Civil Procedures. For brevity's sake, however, the Court will refer to these various motions and pleadings as "Motions."
A. Plaintiff's Failure to Serve Defendant
As an initial matter, the Court notes that, on their face, Defendant's responses would appear to be untimely. Defendant, however, contends that Plaintiff never served Defendant with any of the these Motions and that the Motions misrepresent to the Court that they were served on Defendant. Defendant asserts that it learned of Plaintiff's Motions for the first time when Defendant's counsel contacted the Court on December 13, 1999 to check on the status of Defendant's Motion to Compel. Defendant filed and served its responses to the Motions shortly thereafter, on December 16.
Defendant states that Plaintiff has been previously warned by Judge Rushfelt about her failure to serve Defendant. Defendant urges the Court to dismiss Plaintiff's action due to her continued refusal to comply with the Court's Orders, the Federal Rules of Civil Procedure, and the District's local rules. Defendant makes a similar request for sanctions in conjunction with its Motion to Compel. The Court will address Defendant's request for dismissal in Part II. B. of this Memorandum and Order, after it has ruled on the Motion to Compel.
Plaintiff has filed no reply brief disputing or refuting Defendant's assertion that she failed to serve her Motions on Defendant. The Court therefore has no basis to disbelieve Defendant's assertion that it was never served with the Motions. The Court will therefore consider Defendant's responses timely and will take them into consideration in ruling upon the Motions.
B. "Motion the Court for extension of time" (doc. 71)
This Motion requests an extension of time to file "an answer" to Judge Rushfelt's Order of August 30, 1999 (doc. 65), which granted the motions of David Herron II and Robert Wonder as Plaintiff's counsel (doc. 38, 53), denied Plaintiff's motion to amend (doc. 48), and granted in part and denied in part Defendant's motion for sanctions and to quash service (doc. 52). The Order also directed Plaintiff, unless otherwise ordered by the Court, to refrain from serving summons on any additional parties and to refrain from filing pleadings that designate any person or entity as a defendant, other then Sprint/United Management Company, except for any proposed pleading attached to a motion to amend. Plaintiff's Motion also requests an extension of time to file "an answer" to the Court's Order of September 27, 1999 (doc. 69), which is the Scheduling Order entered by Judge Rushfelt. Plaintiff also seeks an extension of time to file "an answer" to Judge Rushfelt's Order of October 1, 1999 (doc. 70), which denied Plaintiff's motion for default (doc. 59); denied as moot the "Motion the Court, Keeping the Court Informed on Facts and Procedures of Robert Wonder (doc. 58); struck the "motion the Court, Keeping the Court Informed on Facts (doc. 61); and denied Plaintiff's "motion the Court" (doc. 62), in which Plaintiff sought default judgment.
None of the above Orders entered by Judge Rushfelt is the type of pleading to which a party is allowed to file an "answer." The Court therefore denies Plaintiff's Motion to the extent she is requesting leave to file an "answer" to those Orders. To the extent Plaintiff may be seeking an extension of one or more deadlines set forth in the Scheduling Order, the Court will also deny the motion, in that Plaintiff has failed to specify which deadline(s), if any, she may be seeking to extend.
C. "Motion the Court for a hearing on unclear issue" (doc. 75)
Nowhere in the body of this Motion does Plaintiff identify the issue or motion on which she is seeking a hearing. Plaintiff's Motion appears to be seeking default judgment against "Defendants." On October 1, 1999, Judge Rushfelt denied Plaintiff's motion for default. ( See doc. 70.) In addition, Judge Lungstrum ruled on October 18, 1999 that the only defendant named in the Second Amended complaint, i.e., Sprint/United Management Company, is not in default, and denied Plaintiff's motion for entry of default as to Sprint/United Management Company and "a host of other entities and individuals." ( See doc. 73.) The Court finds no basis, legally or factually, for finding Defendant Sprint/United Management Company or any other entity or individual in default. Furthermore, the Court finds no basis to hold a hearing to address any issues relating to the alleged default. Plaintiff's motion for hearing will therefore be denied.
D. Motions for Grand Jury Investigation (doc. 78 80)
The Court finds these two Motions to be frivolous and not grounded in law or fact. The Court will therefore deny these Motions.
E. Pleading Regarding Eighth Circuit/Western District of Missouri (doc. 81)
This pleading is not any type of pleading or motion provided for under Fed.R.Civ.P. 7. Plaintiff does not seek any type of relief nor does she move for any order through this pleading. The Court will therefore strike this pleading.
II. DEFENDANT'S MOTIONS
A. Motion to Compel Plaintiff's Responses to Discovery and to Order Reimbursement of Defendant's Expenses and Fees (doc. 72)
Defendant states in its supporting memorandum that Plaintiff has failed to provide her initial disclosures, which were due September 15, 1999. Defendant also states that Plaintiff has failed to respond to Defendant's First Interrogatories and First Request for Production of Documents, which were hand-delivered to Plaintiff on August 25, 1999. According to Defendant's memorandum, Plaintiff has represented to Defendant's counsel that she would only provide responses if ordered to do so by the Court.
Defendant seeks to compel answers to its written discovery requests and to compel Plaintiff's disclosures. It also seeks to recover the expenses and attorney fees it has incurred in connection with its efforts to obtain Plaintiff's discovery responses and disclosures. In addition, Defendant requests that the Court admonish Plaintiff for her conduct and that Plaintiff be instructed that any further violations of the Federal Rules of Civil Procedure, the District's local rules, or Orders of this Court will result in the immediate dismissal of her lawsuit.
Plaintiff has not responded to Defendant's Motion, and the Court will grant it as uncontested. Local Rule 7.4 provides that if a party fails to file a response within the time required by Rule 7.1(b), the motion will be considered and decided as an uncontested motion, and "ordinarily will be granted without further notice." D.Kan. Rule 7.4. The Court therefore orders that Plaintiff shall, within twenty days of this Order, serve her (1) answers to Defendant's First Interrogatories, (2) answers to Defendant's First Request for Production, and (3) Rule 26(a) disclosures.
Plaintiff's failure to respond to Defendant's interrogatories and requests for production constitutes a waiver of all objections Plaintiff may have had. See Hoffman v. United Telecomm. Inc., 117 F.R.D. 436, 438 (D.Kan. 1987). Plaintiff shall therefore fully respond to all of Defendant's First Interrogatories and First Request for Production and produce all documents requested by the Request for Production, without asserting any objections.
The Court now turns to Defendant's request for an award of fees and expenses incurred in connection with the Motion to Compel. Fed.R.Civ.P. 37(d) provides for the imposition of sanctions when a party fails to serve answers to interrogatories or requests for production. Pursuant to that rule, the Court "may make such orders in regard to the failure as are just, and among others it may take any action authorized under subparagraphs (A), (B), and (C) of subdivision (b)(2)" of the rule. Subparagraphs (B) and (C) allow the Court to order that the disobedient party not be allowed to support certain claims or introduce certain matters into evidence, or to order dismissal of part or all of the lawsuit. Fed.R.Civ.P. 37(b)(2)(B), (C). In addition to, or in lieu of, those sanctions, the Court may require the party failing to act to pay the reasonable expenses, including attorney fees, caused by the failure, unless the Court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
Fed.R.Civ.P. 16(f) contains a similar provision regarding an award of fees and expenses incurred due to a party's failure to comply with a scheduling order. That rule applies to a party's failure to make or supplement Rule 26 disclosures. See Heil-Winger v. St. Luke's Shawnee Mission Medical Center, No. 96-2555-EEO, 1997 WL 634342, at *2 (D.Kan. Oct. 10, 1997). No hearing is necessary for a court to assess sanctions under either Fed.R.Civ.P. 16(f) or 37(d). Id.
The Court finds just and appropriate an award of reasonable costs and expenses incurred by Defendant in preparing and filing the instant motion and in seeking Plaintiff's compliance with her discovery obligations. Plaintiff has not even attempted to demonstrate to the Court any justification for her failure to respond to the discovery requests or provide her disclosures. Moreover, her failures to respond to discovery and to make the required disclosures have unnecessarily delayed this lawsuit.
The purpose of sanctions is not merely to reimburse the wronged party or to penalize the offending party, but to deter the offending party from engaging in further misconduct and to deter other from engaging in similar misconduct. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643 (1976). The Court finds that a reasonable award to Defendant for its fees and expenses is Three Hundred Dollars ($300). An attorney's fee in that amount is hereby awarded to Defendant and assessed against Plaintiff. Said sum shall be paid to Defendant and a receipt or certificate of payment shall be filed with the Court, all within twenty days of the date of this Order.
B. Defendant's Requests for Dismissal or Warning (doc. 72 87)
Defendant requests in its Motion to Compel that the Court warn Plaintiff that any further violations of a Court Order or the Federal Rules of Civil Procedure or local rules will result in the immediate dismissal of her lawsuit. Defendant goes one step further in its response to Plaintiff's "Motion the court for extension of time" and asks the Court to dismiss the action for Plaintiff's failure to serve Defendant with the Motions ruled on in this Memorandum and Order.
The Court recognizes that Plaintiff has on numerous occasions failed to comply with this Court's Orders, the Federal Rules of Civil Procedure, and the District's local rules, and that she has a history of filing pleadings that serve no purpose and that are not grounded in law or fact. For example, in a January 8, 1999 Order (doc. 15), Judge Lungstrum noted Plaintiff's failure to file the required certificate of service with her motion requesting a "direct verdict" (doc. 10). A few months later, in a March 2, 1999, Order (doc. 32) Judge Rushfelt admonished Plaintiff for her failure to properly serve Defendant. Judge Rushfelt stated:
The court admonishes plaintiff that all pleadings, motions, and other papers filed with the court are to be served upon opposing counsel and that a certificate of such service is to be filed, all pursuant to Fed.R.Civ.P. 5 and D.Kan. Rule 5.1(g).
Despite that admonishment, Plaintiff filed yet another motion (doc. 48) without a certificate of service. Once again, the Court brought this failure to her attention. See August 30, 1999 Order (doc. 65).
A similar failure to serve has occurred with respect to the various Motions ruled upon in this Memorandum and Order. Plaintiff does not dispute that she failed to serve Defendant. Nor does she dispute the more serious allegation that her Motions misrepresent that she did serve Defendant. And even then, the purported certificates of service do not comply with D.Kan. Rule 5.1(g) in that they do not identify "the capacity in which [the] person was served" and do not state the date of service.
Other examples of Plaintiff's failure to comply with the Federal Rules of Civil Procedure and the District's local rules include Plaintiff's failure to file a brief or memorandum in support of her December 14, 1998 motion requesting a "direct verdict" (doc. 10). See Judge Lungstrum's January 8, 1999 Order (doc. 15) noting Plaintiff's failure to file brief. Several months later, Plaintiff filed a pleading entitled "Motion the Court" (doc. 62), which Judge Rushfelt struck because he found it served no purpose and sought no particular relief. See September 30, 1999 Memorandum and Order (doc. 70).
The Court is also cognizant that Judge Rushfelt found in an August 30, 1999 Order that Plaintiff was responsible for the "multiple service of summons" upon non-parties, conduct that the Court characterized as an "abuse of process" and not authorized by the Federal Rules of Civil Procedure and the District's local rules. See doc. 65. Judge Rushfelt instructed Plaintiff to refrain from filing any further pleadings designating any person or entity as a defendant, other than Sprint/United Management Company, and warned Plaintiff that a violation of the Order could result in sanctions against her, including the striking of documents filed by her and the dismissal of her case.
One month later, Judge Rushfelt struck another pleading filed by Plaintiff because he found it served no purpose and sought no particular relief. See September 30, 1999 Memorandum and Order (doc. 70), striking Plaintiff's "Motion the Court," doc. 62.
The Court also notes that Plaintiff failed to timely comply with the Court's September 27, 1999 Scheduling Order (doc. 69) requiring Plaintiff to provide her report concerning settlement. It was not until the Court issued a Show Cause Order on November 10, 1999, that Plaintiff submitted her statement.
Finally, the Court cannot ignore Plaintiff's refusal to provide her disclosures and answers to Defendant's interrogatories and request for production, and Defendant's undisputed allegation that Plaintiff told Defendant's counsel she would respond to those discovery requests only when ordered to do so by the Court.
To determine whether the above conduct of Plaintiff justifies dismissal of this action, the Court will examine the factors set forth in M. M. v. Zavaras, 139 F.3d 798, 803-804 (10th Cir. 1998). In that case, the Tenth Circuit identified various factors that it considers in determining whether a district court has abused its discretion in dismissing a case for violation of orders and court rules. Id. Those factors include the degree of prejudice to the opposing party, the amount of interference with the judicial process, the culpability of the litigant, and whether the litigant has been warned in advance of the possibility of dismissal. Id.
Applying these factors to the case at hand, the Court concludes that Plaintiff's refusal to provide disclosures and discovery responses, in addition to her other failure to comply with the local rules, Federal Rules of Civil Procedure and previous Orders of this Court, has interfered with the judicial process and has prejudiced Defendant a great deal. Defendant has received no discovery responses or disclosures from Plaintiff, even though this case has been on file since August 17, 1998. This has made it impossible for Defendant to prepare for and take Plaintiff's deposition. The December 31, 1999 discovery deadline has now passed, with Defendant having been unable to complete its discovery. In addition, Plaintiff's failure to timely provide her settlement statement has made it difficult for the Court to assess the status of settlement negotiations and to assist the parties in any early efforts to mediate or otherwise resolve the case. Furthermore, Plaintiff's filing of pleadings that seek no relief and/or that are not grounded in law and fact have caused Defendant to spend significant time and incur substantial fees in responding to them. It has also needlessly burdened the Court's already crowded docket.
The Court also finds that Plaintiff is culpable. None of the above-described failure to make disclosures and respond to discovery requests and failure to comply with the Court's Orders and rules appears to be inadvertent or the result of excusable neglect. Rather, Plaintiff's conduct appears to be in intentional disregard of the local and federal rules and the Orders of this Court.
These four factors all weigh in favor of dismissal of this action or the imposition of other serious sanctions. The Court, however, finds that the fifth and final factor, i.e., that the party has been sufficiently warned of the possibility of dismissal, has not been met here. Thus, at this point in time, the Court will decline to impose sanctions against Plaintiff (other than the Three Hundred Dollars ($300) fees and expenses imposed above in Part II. A.). The Court, however, does warn Plaintiff that any further refusal or failure to engage in discovery, provide disclosures, respond to discovery requests or cooperate in discovery, or refusal or failure to comply with any rules of this District, Federal Rules of Civil Procedure, or Orders of this Court, will result in the imposition of sanctions against Plaintiff, up to and including dismissal of her entire lawsuit.
III. SUMMARY
For the foregoing reasons, the Court denies Plaintiff's motion for extension of time (doc. 71), motion for hearing (doc. 75) and motions for grand jury investigations (doc. 78 80). The Court strikes the pleading relating to the Eighth Circuit and the Western District of Missouri (doc. 81). The Court grants Defendant's Motion to Compel Plaintiff's Responses to Discovery and to Order Reimbursement of Defendant's Expenses and Fees (doc. 72). Within twenty days of the date of this Order Plaintiff shall (1) fully answer defendant's First Interrogatories without asserting any objections; (2) fully respond to and produce all documents responsive to Defendant's First Request for Production, without asserting any objections; and (3) serve her Rule 26 disclosures. The production of documents shall take place at the offices of defense counsel, or at any other location agreed upon by the parties. The Court also imposes monetary sanctions as directed herein. The Court declines to impose any other sanctions at this time, but warns Plaintiff that any further refusals or failures to engage in discovery, provide disclosures, respond to discovery requests or cooperate in discovery, or refusal or failure to comply with any rules of this District, Federal Rules of Civil Procedure, or Orders of this Court, as more fully addressed in Part II. B. of this Memorandum and Order, will result in the imposition of sanctions against Plaintiff, up to and including dismissal of this action.
IT IS SO ORDERED.
Dated in Kansas City, Kansas on this 9th day of March 1999.
cc: All counsel and pro se parties
CIVIL DOCKET FOR CASE #: 2:98cv02366-
* Parties * * Attorneys *
VENITA DEFOE plaintiff Robert E. Wonder [term 08/30/99] [COR LD NTC] Wonder Law Offices, 7447 Holmes-Ste. 201, Kansas City, MO 64131-1664, 816-363-3933 FTS 363-2442
David E. Herron, II, [term 08/30/99] [COR LD NTC] 6901 West 50th, Pl.-#200, Mission, KS 66202 913-236-9770
Venita Defoe [COR LD NTC] [PRO SE], 6521 Georgia Ave., Kansas City, KS 66104 v.
SPRINT LONG DISTANCE defendant [term 06/10/99]
Brian J. Finucane [term 06/10/99] [COR LD NTC] James R. Holland, II [term 06/10/99] [COR LD NTC] Bioff, Singer Finucane 400 Stilwell Bldg. 104 West Ninth Street Kansas City, MO 64105 816-842-8770 FTS 842-8767 Stephany J. Newport [term 06/10/99] FTS 624-6388 913-624-6014 [COR LD NTC] Sprint Communications Company L.P. Law Department 8140 Ward Parkway Kansas City, MO 64114
RAY JARRETT, Distributed Information Technical Architecture Network System and Service defendant [term 06/10/99]
Brian J. Finucane [term 06/10/99] (See above) [COR LD NTC] James R. Holland, II [term 06/10/99] (See above) [COR LD NTC]
Stephany J. Newport [term 06/10/99] (See above) [COR LD NTC]
RON PROCTER, Director defendant [term 09/25/98]
Brian J. Finucane [term 09/25/98] (See above) [COR LD NTC] James R. Holland, II [term 09/25/98] (See above) [COR LD NTC]
Stephany J. Newport [term 09/25/98] (See above) [COR LD NTC]
KATHY EICHHOLZ, Manager defendant, [term 09/25/98]
Brian J. Finucane [term 09/25/98] (See above) [COR LD NTC] James R. Holland, II [term 09/25/98] (See above) [COR LD NTC]
Stephany J. Newport [term 09/25/98] (See above) [COR LD NTC]
VICKIE SMITH, Human Resource Manager defendant [term 09/25/98]
Brian J. Finucane [term 09/25/98] (See above) [COR LD NTC] James R. Holland, II [term 09/25/98] (See above) [COR LD NTC]
Stephany J. Newport [term 09/25/98] (See above) [COR LD NTC]
JERRY FRANKE defendant [term 09/25/98]
Brian J. Finucane [term 09/25/98] (See above) [COR LD NTC] James R. Holland, II [term 09/25/98] (See above) [COR LD NTC]
Stephany J. Newport [term 09/25/98] (See above) [COR LD NTC]
JOHN ANNINOS defendant [term 09/25/98],
Brian J. Finucane [term 09/25/98] (See above) [COR LD NTC] James R. Holland, II [term 09/25/98] (See above) [COR LD NTC]
Stephany J. Newport [term 09/25/98] (See above) [COR LD NTC]
WARREN PROCOTOR defendant [term 09/25/98]
Brian J. Finucane [term 09/25/98] (See above) [COR LD NTC] James R. Holland, II [term 09/25/98] (See above) [COR LD NTC]
Stephany J. Newport [term 09/25/98] (See above) [COR LD NTC]
SPRINT/UNITED MIDWEST MANAGEMENT SERVICES COMPANY dba Sprint Long Distance, defendant
Brian J. Finucane (See above) [COR LD NTC] James R. Holland, II (See above) [COR LD NTC]
Stephany J. Newport, (See above) [COR LD NTC]