Opinion
Civil Action No. 01-2493-KHV
December 19, 2002.
MEMORANDUM AND ORDER
Wei-Kang Zhou filed suit against his employer, Pittsburg State University ("PSU"), for breach of contract and discrimination and retaliation in violation of Title VII, 42 U.S.C. § 2000e et seq. This matter comes before the Court on plaintiff's Motion For Requesting The Judge To Review Magistrate Judge's Ruling (Doc. #92) filed December 13, 2002 ("Motion For Review"). For reasons stated below, plaintiff's motion is overruled.
Standards For Review Of A Magistrate Order Regarding Discovery
A party may object to a magistrate judge's order pertaining to a discovery matter. See Fed.R.Civ.P. 72(a). Upon objection, the district court may "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); see 28 U.S.C. § 636(b)(1)(A). Under this standard, the district court must affirm the magistrate's rulings "unless it on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988) (citation and quotation omitted). "Because a magistrate is afforded broad discretion in the resolution of non-dispositive discovery disputes, the court will overrule the magistrate's determination only if this discretion is abused." Comeau v. Rupp, 762 F. Supp. 1434, 1450 (D.Kan. 1991).
Factual Background
PSU employed plaintiff as an assistant music professor from August of 1997 through June of 2000. Plaintiff alleges that defendant discriminated against him because of race and that when he attempted to complain of race discrimination, PSU terminated his employment. See Amended Complaint (Doc. #27) filed July 9, 2002.
The scheduling order required the parties to complete all discovery by October 31, 2002. See Scheduling Order (Doc. #10) at 3. On September 6, 2002, after the parties were unable to agree on a date and time for plaintiff's deposition, defense counsel noticed plaintiff's deposition for October 1 in Pittsburg, Kansas. See Notice Of Deposition (Doc. #53) filed September 9, 2002. On September 26, plaintiff notified defense counsel by fax that he would not participate in the deposition unless defense counsel traveled to Los Angeles, California. See Exhibit 4 to defendant's Motion To Compel Discovery And Memorandum In Support Thereof (Doc. #63) filed October 2, 2002. On October 2, defendant filed a motion to compel plaintiff to appear in Kansas for his deposition. See id. On October 30, Judge Waxse held a hearing on defendant's motion. He noted that defendant's motion to compel was moot because plaintiff had agreed to come to Kansas City for his deposition. See Order (Doc. #78) filed November 1, 2002 at 1. At the hearing, Judge Waxse extended the deadline for discovery until November 29. See id. at 2. On November 15, after the parties again were unable to agree on a date and time for plaintiff's deposition, defendant noticed plaintiff's deposition for November 26 in Lenexa, Kansas (a suburb of Kansas City). See Certificate Of Service (Doc. #80) filed November 18, 2002. On November 25, plaintiff faxed to defense counsel his objection to the deposition. See Certificate Of Service And Mailing (Doc. #82) filed November 27, 2002. He did not appear for his deposition the following day.
Defense counsel states that he had left for Kansas City before plaintiff faxed his objection.
On November 29, plaintiff filed a motion to compel and extend the discovery deadline. See plaintiff's Motion To Compel And Motion For Continuing The Discovery Cutoff Date (Doc. #83) ("Motion To Compel"). In particular, plaintiff asked the Court to compel defendant to provide (1) the class rosters of the faculty members in the music department for academic years 1996-97 and 2000-01 (the years immediately before and after plaintiff's employment); (2) a release so that plaintiff could obtain the faculty work report which defendant had submitted to the National Association of Schools of Music ("NASM") in the fall of 1999; (3) student evaluations for the fall semester of 2002; and (4) documents relating to the annual salaries of faculty members in the music department. See id. at 6-8; Amend To Motion To Compel And Motion For Continuing The Discovery Cutoff Date (Doc. #85) filed December 10, 2002 at 1. Plaintiff also asked the Court to (1) require PSU administrators to appear in Kansas City for depositions; (2) allow plaintiff to depose by telephone certain faculty members in the music department (including plaintiff's predecessor and successor as violin professor); and (3) extend the discovery deadline until January 13, 2003. See Motion To Compel at 8-11.
On December 11, 2002, Magistrate Judge David J. Waxse held a pretrial conference which addressed plaintiff's motion to compel and the pretrial order. Judge Waxse sustained plaintiff's motion as to documents relating to the annual salaries of faculty members employed in the music department when plaintiff was also employed and the release relating to the faculty work report which defendant had submitted to the NASM. See Order (Doc. #90) filed December 12, 2002 at 1. Judge Waxse also extended the discovery deadline until December 26, 2002. See id. at 2. Judge Waxse overruled plaintiff's other requests. See id.
No official transcript of the telephone hearing was prepared. The Court has relied on the certified audio recording of the hearing.
On December 13, 2002, plaintiff filed a motion to review Judge Waxse's rulings. Because the discovery deadline is December 26, 2002 and to help the parties in scheduling discovery over the next eight days, the Court has reviewed plaintiff's motion without the benefit of an opposition brief.
Analysis
Initially, the Court addresses plaintiff's allegation that Judge Waxse has been unfair and has some connection with PSU. See Motion For Review at 1-2. In support, plaintiff states only that defendant proposed language in the pretrial order which would have stated that the parties were prepared to consent to trial by a magistrate judge. See id. at 1. The fact that one party consents to trial by a magistrate judge does not suggest any impropriety, or appearance of impropriety, by the magistrate judge. In addition, the mere fact that a magistrate judge rules in favor of one party does not suggest any reasonable appearance of partiality.
I. Depositions
Judge Waxse ordered that any depositions of PSU administrators must occur in Pittsburg, Kansas, where they work. Plaintiff argues that because he resides in Los Angeles, California and defendant has a Kansas City satellite location which is close to a major airport, the Court should require PSU administrators to appear in Kansas City. See Motion For Review at 2-3; Motion To Compel at 8-9. Absent exceptional or unusual circumstances, when a deponent resides at a substantial distance from the deposing party's residence, the deposing party is required to take the deposition where the deponent resides, even if the deponent is a party. Metrex Research Corp. v. United States, 151 F.R.D. 122, 125 (D.Colo. 1993); see Moore v. Pyrotech Corp., 137 F.R.D. 356, 357 (D.Kan. 1991) (citing 8 Wright Miller, Federal Practice and Procedure: Civil § 2103, at 374-75 (2d ed. 1970)). The record does not reflect where the PSU administrators reside, but they work in Pittsburg, Kansas — some 120 miles from Kansas City, Kansas. Judge Waxse's ruling that plaintiff must depose defendant's administrators in Pittsburg, Kansas is not clearly erroneous.
The Court notes that Judge Waxse gave plaintiff the option of deposing these individuals by telephone.
Plaintiff next objects that Judge Waxse overruled his request to depose by telephone the current violin professor at PSU. See Motion For Review at 3. Judge Waxse ruled that plaintiff had not shown that the current violin professor's testimony is relevant. Plaintiff argues that the testimony may show that defendant treated him different from other faculty members. See id. To the extent plaintiff argues that the current violin professor is similarly situated, he has failed to articulate the basis for such a conclusion. The fact that the current professor holds the same position plaintiff previously held is insufficient by itself to show that his testimony is relevant or reasonably calculated to lead to the discovery of admissible evidence. Moreover, in the draft pretrial order, PSU states that it gave plaintiff poor evaluations, disciplined him and terminated his employment because (1) he illegally recruited a student which put the accreditation of the music department in jeopardy and (2) he did not adequately fulfill his job duties. Plaintiff did not show why the current violin professor would have relevant information on these or other issues in the case. Judge Waxse did not abuse his discretion by overruling plaintiff's request to depose by telephone the current violin professor.
In his motion for review, plaintiff does not challenge Judge Waxse's ruling as to the depositions of other faculty members including his predecessor as violin professor. See Motion For Review at 3. In any event, plaintiff has not shown why these other individuals would have information that is relevant or reasonably calculated to lead to the discovery of admissible evidence.
II. Scope Of Document Discovery
Judge Waxse ruled that as to class rosters, student evaluations and faculty salary information, plaintiff was entitled to information concerning the three years when he worked at PSU, but that information beyond that period was irrelevant. Plaintiff argues that he should be allowed discovery for the academic years immediately before and after his employment.
In the fall of 1999, defendant submitted a faculty work report to the NASM. Defendant submits a similar report every five years. Plaintiff asked the Court to compel defendant to give him a release so that he could get the report from the NASM. See Motion To Compel at 6-7. Judge Waxse sustained plaintiff's motion on this issue, and plaintiff does not challenge that portion of Judge Waxse's ruling.
A. Class Rosters
Judge Waxse ruled that plaintiff should be limited to class rosters of classes taught when he worked at PSU. Plaintiff argues that PSU should also produce the class rosters of the former and current violin professors. Plaintiff alleges that he had the heaviest teaching load in the music department. See Amended Complaint (Doc. #27) filed July 9, 2002, ¶ 2; Motion To Compel at 4. To support his allegation, plaintiff can rely on the rosters of classes taught when he worked at PSU. At the hearing on his motion to compel, plaintiff did not show that the class rosters of the former and current violin professors would be relevant or would likely lead to the discovery of admissible evidence. Judge Waxse did not abuse his discretion by limiting discovery of class rosters to classes taught when plaintiff worked at PSU.
B. Student Evaluations
Defendant does not retain student evaluations beyond the current semester and it refuses to produce student evaluations from November of 2002. Plaintiff states that evaluations by current students will give the jury a general picture of "average" student evaluations in the music department. See Motion To Compel at 7-8. Judge Waxse overruled plaintiff's request because plaintiff had not shown that the present student evaluations were relevant. This ruling is not clearly erroneous because too many variables govern the "average" student evaluation in a particular class or year. Plaintiff has not shown that such a comparison would provide the jury any useful information in deciding the issues in this case. The Court therefore overrules plaintiff's motion on this issue.
C. Faculty Salary Information
Plaintiff asked defendant to produce documents relating to the annual salaries of the faculty members in the music department. Defendant produced a computer spreadsheet with such information, but it did not provide underlying documentation. Plaintiff now requests the underlying documentation. See Motion To Compel at 8. Judge Waxse ordered that to the extent defendant has underlying documentation regarding faculty salaries when plaintiff was employed, it must produce such information by December 26, 2002. Judge Waxse overruled plaintiff's request for information on faculty salaries for faculty members during the academic years immediately before and after his employment. Again, at the hearing on his motion to compel, plaintiff did not show that the requested salary information would be relevant to the issues of this case or would likely lead to the discovery of admissible evidence. The Court therefore affirms Judge Waxse's ruling on this issue.
III. Extension Of Time For Discovery
As explained above, the original discovery deadline was October 31, 2002, but Judge Waxse extended it to November 29, 2002. At the pretrial conference, Judge Waxse ruled that the parties shall complete all discovery by December 26, 2002. Plaintiff argues that he needs until January 13, 2003 to complete discovery because defendant continues to hide evidence. See Motion For Review at 5; Motion To Compel at 11. Plaintiff asks the Court to set a deadline for defendant to submit information, and extend the deadline for plaintiff to complete discovery. The Court has elsewhere addressed plaintiff's specific discovery concerns. Plaintiff has not shown any other areas of discovery which would require an extension beyond December 26, 2002. Accordingly, Judge Waxse's ruling is not clearly erroneous.
IV. Objections To Pretrial Order
Plaintiff argues that he is not ready for a pretrial order because he has not received certain documents from defendant. The deadline for discovery is December 26, 2002 and the Court has now ruled on plaintiff's request for additional discovery. Moreover, the purpose of the pretrial order is merely to frame the issues in the case including the parties' claims and defenses. Entry of the pretrial order is not contingent on completion of all discovery. For these reasons, plaintiff's objection to the entry of the pretrial order is overruled.
Plaintiff asks the Court to review Judge Waxse's ruling on plaintiff's Motion For More Jury Trial Days (Doc. #84) filed December 2, 2002. At the pretrial hearing, Judge Waxse sustained plaintiff's motion and increased from five to seven the estimated maximum number of days for trial stated in the pretrial order. See Order (Doc. #90) at 1. Plaintiff has not explained why Judge Waxse's ruling, which sustained plaintiff's request, is erroneous.
V. Defendant's Motion To Dismiss
On December 12, 2002, defendant filed a motion to dismiss based on plaintiff's failure to cooperate in discovery and comply with a court order relating to his deposition. See Motion To Dismiss And Memorandum In Support (Doc. #88). The motion is not ready for ruling, but the Court notes that it will not tolerate any further delay of plaintiff's deposition. At the pretrial conference, Judge Waxse ordered plaintiff to appear in Lenexa, Kansas for his deposition on or before December 26, 2002. If plaintiff again fails to appear for his deposition by the court-imposed deadline, the Court likely will impose sanctions, up to and including dismissal of the case with prejudice. The filing of further objections or motions on this issue will not operate to extend or stay the deadline.
IT IS THEREFORE ORDERED that plaintiff's Motion For Requesting The Judge To Review Magistrate Judge's Ruling (Doc. #92) filed December 13, 2002 be and hereby is OVERRULED.
IT IS FURTHER ORDERED that Judge Waxse's Order (Doc. #90) filed December 12, 2002 is AFFIRMED.