Opinion
CIVIL ACTION No. 00-2394-KHV
November 25, 2002
MEMORANDUM AND ORDER
Warren K. Pyles brings employment discrimination and retaliation claims against The Boeing Company ("Boeing") under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. as amended, the Kansas Acts Against Discrimination, K.S.A. § 44-1001 et seq. and the Civil Rights Act of 1871, 42 U.S.C. § 1981 and 1983. This matter comes before the Court on plaintiff's Motion To Set Aside Pretrial Order (Doc. #199) and Motion To Re-Open Discovery And For Stay Order (Doc. #201), both filed September 24, 2002.
On February 22, 2002, the Court granted partial summary judgment in favor of defendant on plaintiff's KAAD claims (Count 4) and Title VII claims on his first discrimination charge (parts of Counts 2 and 3). See Memorandum And Order (Doc. #85). In addition, the Court limited plaintiff's Title VII claims on his second discrimination charge (parts of Counts 2 and 3) to acts that occurred from August 8, 1997 to October 7, 1998 and his Section 1981 claims (Count 1) to acts that occurred from October 22, 1997 to October 7, 1998. See id.
I. Motion To Set Aside Pretrial Order
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. #200) filed September 24, 2002 at 5. Under Rule 16(e), Fed.R.Civ.P., a pretrial order "shall be modified only to prevent manifest injustice."
Plaintiff does not contend that the pretrial order is erroneous in any way. Instead, plaintiff broadly claims that he has been denied due process as a result of 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 they prejudiced him in any way. Plaintiff also complains that Judge Waxse denied his second request for appointment of counsel. The Court, however, has already overruled plaintiff's objections to that order. See Memorandum And Order (Doc. #155) 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 in another case, Butler v. Boeing, Case No. 00-2370-KHV. Plaintiff contends that in response to Henry R. Butler's 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. Moreover, plaintiff has not shown that he was diligent in obtaining discovery — he has conducted no written discovery of his own in this case. 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. #199) 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. #201) filed September 24, 2002 be and hereby is OVERRULED.