Opinion
CIVIL ACTION No. 01-2493-KHV
January 29, 2003.
MEMORANDUM AND ORDER
Wei-Kang Zhou filed suit against his former 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 is before the Court on defendant's Motion To Dismiss And Memorandum In Support (Doc. #88) filed December 12, 2002 and plaintiff's Motion For Requesting The Judge To Review Magistrate Judge Waxse's Ruling (Doc. #102) filed December 24, 2002. For reasons set forth below, the Court sustains defendant's motion in part and overrules plaintiff's motion.
I. Defendant's Motion To Dismiss
A. Factual Background
On May 17, 2002, the Court entered a scheduling order which directed that all discovery be commenced or served in time to be completed by October 31, 2002. See Scheduling Order (Doc. #10) at 3. On September 18, 2002, plaintiff asked the Court to continue the discovery deadline to January 29, 2003. See Motion For Continuing The Discovery Cut-off Date (Doc. #55). Plaintiff argued that the extension was necessary because he did not receive the EEOC investigation file relating to his case until September 4, 2002. Based on the fact that eight weeks remained for discovery when plaintiff received the EEOC file, Judge Waxse ruled that plaintiff had not shown good cause for an extension of the discovery deadline. See Order (Doc. #69) filed October 9, 2002.
In part, the delay was due to the fact that defendant had filed a motion for protective order to ensure that plaintiff did not reveal confidential information to non-parties. On August 14, 2002, the Court sustained defendant's motion for protective order. Plaintiff received the EEOC file shortly thereafter, on September 4, 2002. See Order (Doc. #48).
On September 6, 2002, defense counsel noticed plaintiff's deposition for October 1 in Pittsburg, Kansas. See Notice Of Taking Deposition (Doc. #53) filed September 9, 2002. On September 26, plaintiff faxed a letter to defense counsel, objecting to the location of the deposition. See Exhibit 4 to defendant's Motion To Compel Discovery And Memorandum In Support Thereof (Doc. #63) filed October 2, 2002. Plaintiff requested that defense counsel take his deposition near Los Angeles, California (where plaintiff resides), and notified counsel that he preferred to communicate by mail instead of telephone. See id. On October 2, defendant filed a motion to compel plaintiff to appear in Kansas for his deposition. On October 30, Judge Waxse held a hearing on defendant's motion but overruled it as moot because plaintiff had agreed to come to Kansas City for his deposition. See Order (Doc. #78) filed November 1, 2002 at 1. Judge Waxse also extended the discovery deadline from October 31 to November 29. See id. at 2.
Although the place for plaintiff's deposition was thus agreed, the parties could not agree on a date for plaintiff's deposition. Therefore, on November 15, 2002, defense counsel noticed plaintiff's deposition for November 26 in Lenexa, Kansas (a suburb of Kansas City). See Notice Of Deposition, attached as Exhibit 5 to defendant's Motion To Dismiss And Memorandum In Support (Doc. #88) filed December 12, 2002. Plaintiff received the notice by mail on November 18. See Exhibit 6 to Motion To Dismiss (Doc. #88). On November 20, plaintiff faxed defense counsel a letter stating that he would fly to Kansas City for the deposition, but that three PSU administrators should travel to Kansas City on the same day so that plaintiff could take their depositions. See Exhibit EE to plaintiff's Response to Defendant's Motion To Dismiss And Memorandum In Support (Doc. #95) filed December 17, 2002. Plaintiff did not propose alternative dates for his deposition and did not indicate how the parties could meet the discovery deadline of November 29 if the depositions did not commence on November 26. See id. On November 25, plaintiff faxed to defense counsel his formal response to the deposition notice. See Exhibit FF to plaintiff's Response to Defendant's Motion To Dismiss And Memorandum In Support (Doc. #95) filed December 17, 2002. In that response, plaintiff stated that he would not appear in Kansas City for his deposition on November 26 because defendant had not agreed to produce the three PSU administrators in Kansas City for depositions on the same day. Defense counsel was traveling to Kansas City on November 25, so he did not receive plaintiff's fax. Therefore, on November 26, he appeared for plaintiff's deposition. Plaintiff, as promised, did not appear.
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). Plaintiff asked the Court to (1) require PSU administrators to appear in Kansas City for depositions; and (2) extend the discovery deadline to January 13, 2003. See id. at 8-11.
Plaintiff also asked the Court to compel defendant to produce certain information which is not relevant for purposes of defendant's motion to dismiss.
On December 11, 2002, Magistrate Judge David J. Waxse held a pretrial conference which addressed plaintiff's motion to compel and the preparation of a pretrial order. Judge Waxse overruled plaintiff's motion to require PSU administrators to be deposed in Kansas City, but he extended the discovery deadline to December 26, 2002. See Order (Doc. #90) filed December 12, 2002. Immediately after the pretrial conference on December 11, defense counsel called plaintiff and talked to him for approximately one hour. See Exhibit 1 to defendant's Reply To Plaintiff's Response to Defendant's Supplemental Memorandum in Support Of Motion To Dismiss (Doc. #111) filed January 14, 2003. Later on December 11, defense counsel sent plaintiff a letter, asking plaintiff to contact him so that they could schedule dates for plaintiff's deposition in the Kansas City area and depositions of PSU administrators in Pittsburg, Kansas. See Exhibit 1 to defendant's Reply To Plaintiff's Response And Supplemental Memorandum In Support Of Motion To Dismiss (Doc. #105) filed December 31, 2002. On December 16, plaintiff faxed a letter to defense counsel explaining that he would not respond to defendant's request because he did not yet have a copy of Judge Waxse's order or the district court's order on his appeal of Judge Waxse's order. See Exhibit 1 to plaintiff's Response To Defendant's Supplemental Memorandum In Support Of Motion To Dismiss (Doc. #108) filed January 8, 2003. On December 16, defense counsel noticed plaintiff's deposition for December 23. See Notice Of Deposition, attached as exhibit 2 to defendant's Reply To Plaintiff's Response And Supplemental Memorandum In Support Of Motion To Dismiss (Doc. #105) filed December 31, 2002. Defense counsel sent the deposition notice to plaintiff by certified mail. The U.S. Postal Service attempted to deliver that notice to plaintiff on December 19 but plaintiff was not at his residence. The Postal Service left a notice which stated that plaintiff could pick up a certified letter from Pittsburg State University after 9:00 a.m. on December 20.
No official record of the telephone hearing has been transcribed. The Court has relied on the certified audio recording of the hearing.
Defense counsel states that plaintiff hung up after one hour. Plaintiff denies that he hung up, but telephone records for defense counsel reflect that immediately after a telephone call which lasted nearly one hour, defense counsel called back and placed a total of eight additional calls to plaintiff that day. The telephone records reflect that defense counsel made repeated efforts to contact plaintiff on December 16.
Defense counsel states that he also left a voice mail message for plaintiff explaining that unless plaintiff responded by the end of the day, he was going to notice plaintiff's deposition for December 23 in the Kansas City area. Plaintiff denies that defense counsel left such a message, but telephone records for defense counsel confirm that he called plaintiff on December 16 and that the call lasted 40 seconds.
On December 19, this Court affirmed Judge Waxse's rulings on plaintiff's motion to compel. See Memorandum Order (Doc. #97). As to the depositions of PSU administrators, the Court stated:
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.
Id. at 4-5. As to the extension of the discovery deadline, the Court affirmed Judge Waxse's ruling that all discovery be completed by December 26, 2002. See id. at 8. On December 12, 2002, defendant had 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) filed December 12, 2002. Although that motion was not ready for ruling at the time of the Court's order, the Court noted that it would "not tolerate any further delay of plaintiff's deposition." Memorandum Order (Doc. #97) at 9. The Court also cautioned: " 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." Id. (emphasis in original). The next morning, December 20, the Clerk faxed to plaintiff and defense counsel a copy of the Court's Memorandum And Order. On December 23, defense counsel appeared for plaintiff's deposition but plaintiff again failed to appear.
Defendant seeks dismissal with prejudice as a sanction for plaintiff's failure to attend three scheduled depositions and failure to provide defense counsel information for the proposed pretrial order.
B. Analysis
The Court affords a pro se plaintiff some leniency and must liberally construe the complaint. See Oltremari v. Kan. Soc. Rehab. Servs., 871 F. Supp. 1331, 1333 (D.Kan. 1994). While pro se complaints are held to less stringent standards than pleadings drafted by lawyers, pro se litigants must follow the same procedural rules as other litigants. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992), cert. denied, 507 U.S. 940 (1993). The Court may not assume the role of advocate for a pro se litigant. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Defendant asks the Court to sanction plaintiff under Rules 37(b) and 41(b), Fed.R.Civ.P., for his failure to attend three scheduled depositions and submit information for the proposed pretrial order. A district court may impose sanctions for a party's failure to attend a deposition, including any of the sanctions provided in Rule 37(b)(2)(B), (C), and (D), and for a party's failure to comply with the federal rules or a court order, Rule 41(b). The Court has considerable discretion when it comes to imposing sanctions under Rules 37(b) and 41(b). See Nat'l Hockey League v. Metro. Hockey Club. Inc., 427 U.S. 639, 642 (1976). In determining which sanctions should be imposed, the Court must consider the purposes to be served by the imposition of sanctions. In White v. Gen. Motors Corp., Inc., 908 F.2d 675 (10th Cir. 1990), cert. denied, 498 U.S. 1069 (1991), the Tenth Circuit outlined those purposes as including (1) deterring future litigation abuse, (2) punishing present litigation abuse, (3) compensating victims of litigation abuse, and (4) streamlining court dockets and facilitating case management. 908 F.2d at 683. The primary goal of sanctions is to deter misconduct. See Cooter Gell v. Hartmarx Corp., 496 U.S. 384, 398 (1990). In considering the imposition of sanctions, the Court must consider on a case-by-case basis whether a party's failure was substantially justified or whether other circumstances make the imposition of sanctions inappropriate. In re Westinghouse Elec. Corp. Uranium Contracts Litig., 563 F.2d 992, 997 (10th Cir. 1977) (citing Societe Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197 (1958)).
While White involved sanctions under Rule 11, its principles apply equally to sanctions under Rule 37. See Parker v. Hous. Auth. of Kansas City, Kan., 1990 WL 126816, at *1 (D.Kan. 1990).
Default judgment for failure to comply with court orders should be restricted to situations which are the result of willfulness, bad faith, or fault, rather than inability to comply. M.E.N. Co. v. Control Fluidics, Inc., 834 F.2d 869, 872 (10th Cir. 1987) (quoting Nat'l Hockey League, 427 U.S. at 640); see Toma v. City of Weatherford, 846 F.2d 58, 60 (10th Cir. 1988). In this context, willful failure is "intentional failure as distinguished from involuntary noncompliance." In re Standard Metals Corp., 817 F.2d 625, 628-29 (10th Cir. 1987). Before entering default judgment as a discovery sanction, the Court must consider the following factors:
(1) the degree of actual prejudice to the opposing party;
(2) the amount of interference with the judicial process;
(3) the culpability of the litigant;
(4) whether the Court gave advance warning that dismissal of the action would be a likely sanction for noncompliance; and
(5) whether a lesser sanction would be effective.
Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992). Dismissal of an action with prejudice or its equivalent should be used as "a weapon of last, rather than first, resort." Meade v. Grubbs, 841 F.2d 1512, 1520 n. 6 (10th Cir. 1988); Maggette v. Dalsheim, 709 F.2d 800, 803 (2d Cir. 1983). Default judgment is usually appropriate only where a lesser sanction would not serve the interest of justice. See Ehrenhaus, 965 F.2d at 918.
Initially, the Court notes that by itself plaintiff's failure to submit information for the proposed pretrial order would not warrant a sanction. Although plaintiff objected to numerous portions of the pretrial order (including many boilerplate provisions), Judge Waxse was able to finalize a pretrial order based on the draft order which defendant submitted. Plaintiff's failure to submit additional information to defendant at an earlier date, though not in compliance with the Court's scheduling order, did not significantly delay the entry of the pretrial order or prejudice defendant.
On the other hand, plaintiff's failure to attend three scheduled depositions warrants some sanction.
The first factor, prejudice to PSU, weighs in favor of sanctions. Based on plaintiff's failure to attend the scheduled depositions, PSU missed the deadline to file a dispositive motion. Also, on three separate occasions, PSU has been forced to incur attorney's fees and expenses to bring this matter to the attention of the Court, attempt to resolve the matter with plaintiff and attend the scheduled depositions.
Plaintiff's conduct has significantly interfered with the judicial process. Plaintiff's failure to attend his scheduled depositions has delayed the completion of discovery by more than two months, has led to additional hearings and motions for the magistrate and district court, and has delayed the dispositive motion deadline. This case is one of the oldest cases on the Court's docket and further delays would disrupt the Court's docket management. See In re Baker, 744 F.2d 1438, 1441 (10th Cir. 1984) (docket management is critical matter).
Of approximately 119 non-prisoner civil cases which are assigned to this judge, only seven were filed before this case.
The culpability of plaintiff also favors some sanction. The Tenth Circuit has noted that a willful failure is "any intentional failure as distinguished from involuntary noncompliance. No wrongful intent need be shown." M.E.N. Co., 834 F.2d at 872-73. This record reveals no suggestion that plaintiff's non-compliance was involuntary. When plaintiff failed to attend the deposition noticed for October 1, he did not assert an inability to attend but merely asserted that he should not have to travel from California to Kansas to be deposed.
Plaintiff also failed to appear for a deposition that was properly noticed for November 26. Plaintiff was apparently quite capable of attending the deposition on November 26 but elected not to do so for strategic reasons, because defendant would not agree to produce three PSU administrators for depositions in Kansas City on the same day.
Finally, plaintiff failed to appear for a deposition that was properly noticed for December 23. At least by Friday, December 20, plaintiff knew that the deposition was scheduled for December 23 and that the discovery deadline was December 26. Instead of attending his deposition on December 23, plaintiff unilaterally attempted to re-schedule his deposition for December 26. Plaintiff's only excuse is that it was impossible to get a plane ticket on such short notice during the Christmas season. See plaintiff's Response To Defendant's Supplemental Memorandum In Support Of Motion To Dismiss (Doc. #108) at 7. This excuse, however, is not credible or persuasive. First, given the discovery deadline of December 26 and plaintiff's knowledge of defendant's plan to notice his deposition for December 23, plaintiff should have made travel plans well before December 20. Plaintiff created his transportation problem by failing to schedule his trip to Kansas at an earlier date and insisting that he receive a copy of certain court corders before he would discuss deposition dates. Plaintiff also ignored the obvious problem that his deposition and three others could not be completed in a single day. Second, plaintiff does not claim that he actually tried to buy a plane ticket to attend his deposition on December 23; he merely makes the blanket assertion that it was impossible to do so. In the circumstances, the Court cannot accept plaintiff's claim that it was "impossible" to travel to Kansas City by plane on less than three days' notice. More to the point, plaintiff could have reached Kansas City in less than three days by train, bus or car — and he does not claim that these modes of transportation were unavailable. In sum, plaintiff intentionally refused to attend his deposition on December 23 for no reason except that he wanted to give his deposition on December 26, the last day of discovery. Plaintiff's intentional failure to attend three scheduled depositions reflects culpable conduct under Ehrenhaus.
Plaintiff likely knew of his deposition before December 20. See plaintiff's Response To Defendant's Supplemental Memorandum In Support Of Motion To Dismiss (Doc. #108) filed January 8, 2003 at 8 (plaintiff informed defense counsel "again and again by faxes and telephone on and before Friday, December 20, 2002 that the Plaintiff would not be available on Monday, December 23, 2002 in Kansas City") (emphasis added).
The Court recognizes that time deadlines were tight by December 20, but plaintiff created this urgency by his own conduct. Defendant had attempted to schedule plaintiff's deposition on several prior occasions, but plaintiff insisted on certain conditions on the deposition. In September, plaintiff maintained that his deposition must be conducted in the Los Angeles area, even though he had filed suit in Kansas and defense counsel was in Kansas. In November, plaintiff refused to be deposed unless he was allowed to depose three PSU administrators on the same day in Kansas City. Judge Waxse essentially rejected plaintiff's conditions on both occasions, but each time gave plaintiff another opportunity to comply. This Court affirmed Judge Waxse's ruling on the second occasion, but also made it clear that further objections and continuances would not be granted.
Plaintiff repeatedly asks the Court to consider the great distance between where he resides near Los Angeles and the courthouse and PSU. Plaintiff chose to file suit in federal court in Kansas, however, and to represent himself pro se after counsel withdrew from his case. The hardship of litigating a case from California cannot excuse plaintiff's refusal to permit his deposition or seek appropriate relief before the scheduled depositions. Moreover, plaintiff can meet deadlines when he wants to. For example, one day after Judge Waxse had ruled on several issues at the pretrial conference, plaintiff filed by facsimile a motion to review Judge Waxse's rulings. On another occasion, plaintiff called the Clerk's office and chambers to obtain a copy of an order which was faxed to him. Finally, to the extent that distance has delayed mail from defendant, plaintiff invited such delay by insisting that defendant communicate only by mail, and not telephone.
The Court previously warned plaintiff of the potential consequences if he did not appear for his next scheduled deposition. On December 19, 2002, the Court stated:
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.
Memorandum And Order (Doc. #97) at 9 (emphasis in original). Plaintiff arguably could have read the Court's order to mean that so long as he appeared for his deposition by "the Court-imposed deadline" for discovery, December 26, the Court would not dismiss the case. Even though plaintiff does not claim to have misread the Court's order, a sanction of dismissal is not appropriate in view of this potential ambiguity. At the same time, the Court's order notified plaintiff of the importance of complying in discovery so that the parties could meet the December 26 deadline. It also advised that it "[would] not tolerate any further delay of plaintiff's deposition." This factor weighs in favor of sanctions.
The final factor, the efficacy of lesser sanctions, favors some meaningful sanction, though not dismissal. Some sanction is necessary to deter this type of misconduct. On three separate occasions, instead of complying with a valid deposition notice or filing a timely objection, plaintiff simply refused to attend. Plaintiff's failure to attend the depositions scheduled for November 26 and December 23 also reflects his disregard of the Court's scheduling orders. See Order (Doc. #78) filed November 1, 2002 at 1 (stating plaintiff's agreement to come to Kansas City and requiring that discovery be completed by November 29); Order (Doc. #90) filed December 12, 2002 at 2 (on or before December 26, plaintiff shall present himself in Kansas City to be deposed). To effectively deter plaintiff and others from unilaterally imposing unwarranted conditions on their depositions, without seeking appropriate relief from the Court such as a protective order, some sanction is required. In addition, a sanction is required to punish present litigation abuse, compensate the victim of litigation abuse, and streamline court dockets and facilitate case management. See White, 908 F.2d at 683.
Having combed the record for reasons to excuse plaintiff's conduct, the Court is convinced that plaintiff fully understood the significance of the deposition schedule yet willfully ignored it to obtain strategic tactical advantages to which he was not entitled under federal discovery rules. In this regard, the Court notes that plaintiff is highly intelligent and well educated see Pretrial Order (Doc. #103) at 3 (plaintiff received Doctor of Musical Arts degree from University of Southern California), and that his refusal to honor three consecutive deposition notices reflects a conscious and deliberate strategy to manipulate the discovery process and try to outmaneuver defense counsel — not an innocent mistake regarding his obligation to permit discovery. If nothing else, plaintiff understood the importance of the December 23 deposition notice in light of the Court's admonition that it would not tolerate any further delay of his deposition and that "[t]he filing of further objections or motions on this issue will not operate to extend or stay the deadline." Memorandum And Order (Doc. #97) filed December 12, 2002 at 9. To ignore the scheduled deposition without filing an objection reflects a flagrant disregard of the Federal Rules of Civil Procedure and the Court's order. Accordingly, to not award sanctions would simply allow plaintiff additional opportunities to thwart valid requests by defendant and the Court.
Applying the above factors to this case, the Court finds that plaintiff should be required to pay all expenses which defendant incurred because of his misconduct. The Court therefore awards defendant as a sanction against plaintiff all fees and expenses which defendant incurred because of plaintiff's failure to attend the three scheduled depositions. The procedure set forth in D. Kan. Rule 54.2 shall apply to this issue, except that the time deadlines shall be as follows. On or before February 7, 2003, defendant shall file a fee application which itemizes all fees and costs for which it seeks reimbursement. If the parties reach agreement regarding the fee request, they shall file an appropriate stipulation on or before February 14, 2003, along with a certificate that plaintiff has paid the agreed fees. If they are unable to agree, on or before February 19, 2003, defendant shall file the required statement of consultation and supporting memorandum. Plaintiff may respond on or before February 26, 2003 and defendant may reply on or before March 3, 2003. The parties shall serve all motions and briefs on the issue of attorneys' fees by fax and by overnight delivery, in addition to regular mail.
These costs may include (for example) the fees which defendant incurred in filing its Motion To Compel Discovery And Memorandum In Support Thereof (Doc. #63) filed October 2, 2002; its Motion To Dismiss And Memorandum In Support (Doc. #88) filed December 12, 2002; its Reply To Plaintiff's Response And Supplemental Memorandum In Support Of Motion To Dismiss (Doc. #105) filed December 31, 2002; and its Reply To Plaintiff's Response to Defendant's Supplemental Memorandum in Support Of Motion To Dismiss (Doc. #111) filed January 14, 2003, the fees and expenses which defendant incurred in traveling to and attending the scheduled depositions; and any additional expense which may be required to obtain an expedited copy of plaintiff's deposition to make up for lost time.
If plaintiff agrees to the amount of defendant's fee required but does not pay it in full by February 14, 2003 so that the issue is resolved and the case is prepared to move forward, the Court will dismiss plaintiff's case with prejudice. Given the upcoming trial date and rapidly approaching dates for dispositive motions and other pretrial filings, no other remedy will suffice to prevent plaintiff from inflicting further irremediable harm on defendant and the Court.
As to plaintiff's deposition, plaintiff is ordered to appear for his deposition on Thursday, February 6, 2003 at 8:30 a.m. at Pittsburg State University, Kansas City Metro Center, 12345 W. 95th Street, Suite 204, Lenexa, Kansas. If plaintiff fails to appear, the Court will impose further sanctions, up to and including dismissal with prejudice. Any change to the time and place of this deposition must be agreed to by defendant and approved by the Court in advance of the scheduled deposition. The filing of further objections or motions on this issue will not operate to extend or stay the deposition.
Because defendant missed the dispositive motion deadline based on plaintiff's misconduct, the Court grants defendant leave to file a motion for summary judgment on or before February 18, 2003. In addition to regular service by mail, defendant must serve a copy of the motion without exhibits by facsimile, and one copy with exhibits by overnight delivery. On or before March 3, 2003, plaintiff may file an opposition brief. In addition to regular service by mail, plaintiff must serve a copy of the brief without exhibits by facsimile, and one copy with exhibits by overnight delivery. On or before March 7, 2003, defendant may file a reply. Because trial is set for April 1, 2003, these deadlines will not be extended or otherwise modified.
Plaintiff has not requested additional time to file summary judgment motions and this extended deadline applies only to defendant.
II. Plaintiff's Motion For Review
Standards For Review Of A Magistrate Order Regarding Discovery
A.
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).
B. Analysis
On December 11, 2002, Magistrate Judge David J. Waxse extended the discovery deadline until December 26, 2002. See Order (Doc. #90) filed December 12, 2002 at 2. On December 20, plaintiff noticed the depositions of three PSU administrators — Dr. Tom Bryant, (PSU President), Dr. Robert Ratzlaff (PSU Vice President) and Dr. Orville Brill (former Dean of the College of Arts and Sciences). On December 23, defendant filed a motion to quash the deposition notices. Plaintiff filed an opposition brief by fax later on the morning of December 23. That afternoon, Judge Waxse construed defendant's motion to quash as a motion for a protective order and sustained it. See Order (Doc. #101). Judge Waxse reasoned that the notices were procedurally defective for failing to include the date, time or location of the depositions and that the notices did not provide reasonable notice of the depositions. See id. at 2-3. Plaintiff appeals Judge Waxse's ruling.
Rule 30(b)(1) of the Federal Rules of Civil Procedure provides that "[a] party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action." D. Kan. Rule 30.1 provides that reasonable notice for the taking of depositions shall be five days. After weekends and Christmas are excluded under Rule 6(a), Fed.R.Civ.P., plaintiff's deposition notices did not provide adequate notice under D. Kan. Rule 30.1. Plaintiff does not dispute that Judge Waxse properly interpreted the local rules. Rather, plaintiff maintains that the ruling is unfair and unreasonable given the circumstances of this case, particularly the limited time for discovery before the December 26 deadline. Plaintiff ignores the fact that he filed this case on October 9, 2001, and he had many months to depose PSU administrators. See supra text part I. Even after Judge Waxse extended the discovery deadline to December 26, plaintiff waited until December 20 to notice the depositions — only three business days before the discovery deadline. Judge Waxse did not abuse his discretion by ruling that the deposition notices did not provide reasonable notice.
IT IS THEREFORE ORDERED that defendant's Motion To Dismiss And Memorandum In Support (Doc. #88) filed December 12, 2002 be and hereby is SUSTAINED in part. The Court awards defendant as a sanction against plaintiff all the fees and expenses which defendant incurred because of plaintiff's failure to attend three scheduled depositions. The procedure set forth in D. Kan. Rule 54.2 shall apply to this issue, except that the time deadlines shall be as follows. On or before February 7, 2003, defendant shall file a fee application which itemizes all fees and costs for which it seeks reimbursement. If the parties reach agreement regarding the fee request, they shall file an appropriate stipulation on or before February 14, 2003, along with a certificate that plaintiff has paid the agreed fees. If they are unable to agree, on or before February 19, 2003, defendant shall file the required statement of consultation and supporting memorandum. Plaintiff may respond on or before February 26, 2003 and defendant may reply on or before March 3, 2003. The parties shall serve all motions and briefs on the issue of attorneys' fees by fax and by overnight delivery, in addition to regular mail.
IT IS FURTHER ORDERED that plaintiff appear for a deposition on Thursday, February 6, 2003 at 8:30 a.m. at Pittsburg State University, Kansas City Metro Center, 12345 W. 95th Street, Suite 204, Lenexa, Kansas.
IT IS FURTHER ORDERED that on or before February 18, 2003, defendant may file a motion for summary judgment. In addition to regular service by mail, defendant must serve a copy of the motion without exhibits by facsimile, and one copy with exhibits by overnight delivery. On or before March 3, 2003, plaintiff may file an opposition brief. In addition to regular service by mail, plaintiff must serve a copy of the brief without exhibits by facsimile, and one copy with exhibits by overnight delivery. On or before March 7, 2003, defendant may file a reply.
IT IS FURTHER ORDERED that plaintiff's Motion For Requesting The Judge To Review Magistrate Judge Waxse's Ruling (Doc. #102) filed December 24, 2002 be and hereby is OVERRULED. Judge Waxse's Order (Doc. #101) filed December 23, 2002 is AFFIRMED.
IT IS FURTHER ORDERED that the status conference scheduled for March 3, 2003 is continued to March 25, 2003 at 9:30 a.m.
The Clerk is directed to mail and fax a copy of this Memorandum and Order to plaintiff and defense counsel.