Summary
noting that in order to be denied an accommodation, the student must have first requested the accommodation
Summary of this case from Young v. Ariz. Summit Law Sch. LLCOpinion
No. C 97-04500 CRB
August 17, 2001
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Now before the Court is the defendants' motion for summary judgment, the plaintiffs cross-motion to strike, and several other motions filed by the plaintiff Having carefully considered the parties' papers, and with the benefit of oral argument on August 17, 2001, the defendants' motion for summary judgment is hereby GRANTED, and the plaintiffs motions are DENIED or VACATED as indicated in this Order.
BACKGROUND
I. FACTUAL BACKGROUND
The plaintiff Gene Colombini enrolled in the Empire College School of Law ("Empire" or "the school") in April 1991. At that time, he did not indicate to Empire officials that he suffered from any type of disability. At the end of the 1992-1993 academic year, Empire dismissed Colombini since his grades were below the required level. Colombini told Empire officials that he believed that his poor handwriting was responsible for his low grades and asked Empires Dean to conduct an independent review of his examinations. After reviewing the plaintiff's exams, Empire's Dean told Colombini that Empire would not change Colombini's disqualification status. However, Empire gave Colombini the option of re-enrolling in the school, provided that he repeat his first year courses and pass the First Year Law Students Examination ("FYLSX").
The Court will use the term "Empire" to refer collectively to the school and its relevant officials except where otherwise noted.
Empire then re-admitted Colombini for the 1993-1994 academic year as a first-year law student. Colombini in completed his first-year courses in the spring of 1994 hut requested to postpone the FYLSX until the fall due to his mother's medical condition. ire granted that request pending the outcome of Colombini's spring grades, but his grades for the year again fell below the permissible threshold, so in June 1994, Empire informed the plaintiff that he was again academically disqualified from the school.
After Colombini's second dismissal. the plaintiffs psychiatrist. Dr. Albert Lerner, contacted Empire and asked the school to give Colombini two hours per question to take his examinations (as opposed to the typical one hour per question), to let him take his exams in a separate room, and to permit him to use a transcriber. Empire initially only agreed to give Colombini one hour and thirty minutes per question, but Colombini expressed concern about how long it would take to print his answers. Dr. Lerner sent another letter to Empire's Dean in which he indicated that a smaller amount of time — such as one hour and thirty-nine minutes plus eleven minutes for printing for a total of one hour and fifty minutes per question — would be sufficient for Colombini if the plaintiff were able to take his exams on a computer. Empire then agreed to give Colombini one hour and thirty-nine minutes plus eleven minutes for printing for a total of one hour and fifty minutes per question. Empire also requested, however, that Colombini obtain a second opinion from another doctor at Empire's cost to verify that Colombini's requested accommodation was necessary and appropriate. Colombini refused to obtain a second opinion.
Then, in October' 1996, Empire distributed a memorandum outlining Empire's new Americans with Disabilities Act ("ADA") policy. The policy required students who were then receiving accommodations to re-establish their need for the accommodation ruins each year before mid-term exams. The policy also established an outside ADA Committee so that officials independent from Empire could evaluate students' requests. Colombini then requested a time accommodation for each exam from Patty Wegman, the Coordinator of the Disability Resources Department at Santa Rosa Junior College. Wegman did not perform an evaluation of the plaintiffs alleged disability, but she did recommend to Empire that Colombini receive a time-and-a-half accommodation, and the school modified his accommodation accordingly. Colombini, however, objected to Empire's new time accommodation, insisting that he should continue to receive one hour and fifty minutes per question instead. When Empire notified Colombini that it intended to adopt Wegman' s one hour and thirty minute per question recommendation, Colombini withdrew from all his classes.
Empire asked Colombini to reconsider his withdrawal and requested that he take his examinations under the one hour and thirty minute per question time limit so that Empire could evaluate the results of the accommodation. Empire advised Colombini that he could re-take the examinations with the one hour and fifty minute per question limit if he could find a specialist who would recommend that he needed the extra time. Colombini again refused and did not take any of his mid-term exams.
In January 1997, Colombini filed a disability discrimination complaint against Empire with the U.S. Department of Education's Office for Civil Rights ("the OCR"). The OCR eventually conducted a mediation between the parties, and Empire reinstated Colombini's one hour and fifty minute per question limit. Empire also delayed or waived altogether several of Colombini's mid-term exams, waived the five-year school graduation requirement, altered the school's ADA policy so that students only had to re-establish their need for accommodations every three years, agreed to provide Colombini with a recording device to tape lectures, and agreed to provide class notes or commercial outlines to Colombini. As a result of those concessions, many of which Empire had made on its own initiative well before the OCR's involvement, the OCR closed Colombini's complaint. The OCR also found that Empire had not discriminated or retaliated against Colombini as a result of his disability. Colombini then re-enrolled and eventually graduated from the school.
II. PROCEDURAL HISTORY
This case has what can only be politely characterized as an unusual history, the highlights of which the Court will review here to provide a sense of the litigation. The plaintiff tiled his initial complaint under seal with ten causes of action on December 10, 1997, including claims for disability discrimination under the ADA and the Rehabilitation Act, claims under analogous state statutes, and claims for negligent and intentional infliction of emotional distress. He did not serve his complaint on the various defendants until over eighteen months later. Once the plaintiff finally served the defendants (with the assistance of the United States Marshals), the defendants then filed their answer to the complaint on August 2, 1999. At a status conference on August 13, 1999, the Court removed the sealing order on the case with the exception of information concerning the plaintiff's alleged disabilities. The Court also ordered discovery to proceed.
On October 15, 1999, the defendants moved to dismiss the original complaint. On October 29, 1999, the plaintiff filed his first of many motions seeking injunctive relief. At a hearing on November 5, 1999, the Court denied the plaintiff's motion for an injunction and noted that discovery should commence. The plaintiff then filed a First Amended Complaint ("FAC") on November 18, 1999, one day before the hearing on the defendants' motion to dismiss the original complaint. At the hearing on November 19, the Court again noted that discovery should be proceeding and invited the defendants to file a renewed motion to dismiss the plaintiffs FAC. In an order issued on December 2, 1999, the Court ordered discovery to proceed once again, noting that discovery had been open in the case since August 13, 1999. The Court also required the plaintiffs' counsel to provide initial disclosures to the defendants and directed the parties to conduct the deposition of the plaintiff and his psychiatrists in January of 2000.
The defendants then filed an answer to the plaintiffs FAC on December 15, 1999. On the same day, the defendants also filed a motion for sanctions and a renewed motion for partial judgment on the pleadings. The plaintiff filed opposition is to and counter-motions to strike the defendants motions on January 6, 2000. At a hearing on January 21, 2000, the court denied the plaintiff's counter-motions to strike, denied the defendants' motion for sanctions, and rescheduled the defendants' renewed motion for partial judgment on the pleadings. The Court also set a discovery cut-off of September 29, 2000, with a trial date of November 27, 2000.
On February 11, 2000, at the hearing on the defendants' renewed motion for partial judgment on the pleadings, the Court granted the defendants' motion. The Court issued a written order on February 28, 2000 dismissing counts I, II, IV, and VIII of the plaintiffs complaint — all of which requested injunctive relief despite Colombini's graduation from Empire — without leave to amend. The plaintiff filed a notice of appeal from that order on the next day. The defendants then moved to compel additional discovery in March 2000 and again for partial judgment on the pleadings as to count III of the plaintiffs FAC, which sought unspecified damages under the Rehabilitation Act, in May 2000. In June 2000, the Court granted in part the defendants' motion for partial judgment on the pleadings of the plaintiff's FAC, dismissing count III against all individual defendants but allowing it to remain against Empire.
While the written order referred only to the "Plaintiffs Complaint" generally 28 and not the FAC specifically, it is clear that the FAC was the operative complaint at the time of the Court's order.
In September 2000, the plaintiff filed an ex parte motion before the Court requesting a stay of formal discovery and seeking a permanent injunction against the defendants' counsel for allegedly violating the protective order. In November 2000, the plaintiff filed another motion for a permanent injunction to prevent the defendants from issuing subpoenas and deposition notices to Dr. Lerner. The Court denied those motions, although it ordered the defendants to re-file certain documents tinder seal. Meanwhile, at a hearing on December 8, 2000, the Court noted once again that the stay of discovery had been hi fled since August 1999. The Court ordered that discovery proceed immediately, with the plaintiff's deposition to occur in March 2001.
The defendants again moved for sanctions in December 2000, and the plaintiff responded in January 2001 with a counter-motion requesting a permanent injunction against the defendants to preclude them from filing motions for sanctions. In March, April, and May 2001, the plaintiff filed several more motions seeking to permanently enjoin the defendants from issuing allegedly unauthorized deposition notices, conducting formal discovery, and otherwise allegedly interfering with the plaintiffs rights under state law. At a hearing on May 25, 2001. the Court denied the plaintiff's various motions for permanent injunctions and granted the defendants' motion for sanctions by imposing a $1,000 monetary penalty on the plaintiffs counsel.
DISCUSSION
On July 13, 2001, the defendants filed the present motion for summary judgment. In addition to filing an opposition to the defendants' motion, the plaintiff — consistent with his practice throughout the course of this litigation — has also filed a host of other motions, including: (1) a counter-motion to strike the defendants' motion for summary judgment; (2) a motion to permanently enjoin the defendants and their counsel from filing motions for summary judgment; (3) a motion to permanently enjoin the defendants and their counsel from issuing subpoenas to non-parties; (4) an administrative request for the plaintiffs counsel to have access to sealed case files; (5) an ex parte motion to seal the plaintiffs opposition to and the plaintiffs counter-motion to strike the defendants' motion for summary judgment; (6) an ex parte motion to seal the plaintiffs motion to enjoin motions for summary judgment, the plaintiff's motion to enjoin unauthorized non-party subpoenas, and the plaintiff's status conference statement; and (7) an ex parte motion to seal the plaintiff's administrative request for access to sealed case files.
The defendants filed a statement of non-opposition to the plaintiffs administrative request for access to the sealed case files, although they noted that the entire case file is not under seal. Although the Court never formally ruled on the plaintiffs administrative request, the plaintiff already has in his possession any documents that he filed under seal. The plaintiffs administrative request is therefore VACATED as moot.
The plaintiff also filed a series of motions after the defendants filed their papers, including: (1) a motion to strike the defendants' reply to the plaintiffs opposition to the defendants' motion for summary judgment; (2) a motion to strike the defendants' response to the plaintiffs counter-motion to strike; (3) a motion to strike the defendants' various declarations; (4) a motion for sanctions for violations of Rule 56 and Civil Local Rule 7-5; and (5) an ex parte motion to seal those motions and other documents. In light of the remainder of the Court's discussion infra, those motions are DENIED as moot.
I. STANDARD FOR SUMMARY JUDGMENT
Summary judgment is appropriate when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, it any, how that there is no genuine issue as to any material met and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" only if there is sufficient evidence for a reasonable fact under to find for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242. 248-49 (1986). A fact is "material" if the fact may affect the outcome of the case. See id. at 248. "in considering a motion for summary judgment, the court may not weigh the evidence or make credibility determinations, and is required to draw all inferences in a light most favorable to the non-moving party." Freeman v. Arpaio. 125 F.3d 732, 735 (9th Cir. 1997). A principal purpose of the summary judgment procedure is to identify and dispose of factually unsupported claims. See Celotex Corp. v. Cattrett, 477 U.S. 317, 323-24 (1986).
The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings. discovery. and affidavits which demonstrate the absence of a genuine issue of material fact. See id. at 323. Where the moving party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. See id. Once the moving party meets this initial burden, the non-moving party must go beyond the pleadings and by its own evidence "set forth specific facts showing that there is a genuine issue for trial Fed.R.Civ.P. 56(e). The non-moving party must "identify with reasonable particularity the evidence that precludes summary judgment's Keenan v. Allan. 91 F.3d 1275, 1279 (9th Cir. 1996) (quoting Richards v. Combined, Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995), and noting that it is not a district courts task to "scour the record in search of a genuine issue of triable fact"). If the non-moving party fails to make this showing, the moving party is entitled to judgment as a matter of law. See Celotex, 477 U.S. at 323.
II. THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
The defendants contend that they are entitled to summary judgment because: (1) the plaintiff has failed to satisfy his prima facie burden under the ADA, the Rehabilitation Act, or state law; (2) the plaintiff's claims for injunctive relief are moot since Colombini has graduated from Empire; (3) the plaintiff's claims for damages are deficient since the plaintiff has not presented any evidence of his damages; and (4) the plaintiff has failed to produce any evidence that Empire breached a duty to Colombini or acted outrageously or unreasonably, thereby failing to satisfy his burden as to his claims for negligent and intentional infliction of emotional distress.
The plaintiff brought claims alleging disability discrimination under the ADA, the Rehabilitation Act, and the Unruh Act, although the Court dismissed his ADA claims. The prima facie standard for all three statutes is essentially coterminous. See Cal. Civ. Code § 51(1) ("A violation of the right of any individual under the Americans with Disabilities Act of 1990 shall also constitute a violation of this section."); Mueller v. Automobile Club of So. Cal., 61 Cal.App.4th 431, 442-43 (1998) (noting that the California legislature amended the Unruh Act to conform it with the ADA); Zukle v. Regents of the Univ. of Cal., 166 F.3d 1041, 1045 (9th Cir. 1999) (outlining the prima facie elements of an ADA claim and a Rehabilitation Act claim). Thus, the issue of whether the plaintiff has presented sufficient evidence to sustain his prima facie burden is basically the same with respect to any one of those claims. After the Court's rulings on the defendants' renewed motion for judgment on the pleadings with respect to the FAC, however, the only federal claim remaining in the plaintiffs FAC is the third cause of action, which alleges a violation of the Rehabilitation Act. As a result, the Court will focus on the Rehabilitation Act in examining whether the plaintiff has presented enough evidence to preclude summary judgment, although the Court's analysis is equally applicable to the plaintiff's statelaw claims.
The plaintiff has not presented a substantive opposition to any of those arguments. Instead, he raises procedural and jurisdictional objections to the defendants' motion. including that: (1) the defendants have misidentified the scope of this Court's previous orders dismissing portions of the plaintiff's complaint; (2) the Ninth Circuit has divested this Court of jurisdiction by taking the plaintiff's various appeals; (3) this Court lacks personal jurisdiction over the defendants: (4) the defendants counsel do not properly represent the defendants; (5) discovery is not open and the defendants' motion is premature; and (6) the defendants' motion is not supported by admissible evidence. The Court will address the defendants' contentions and then the plaintiffs objections.
A. The Defendants' Motion
Although the plaintiff has failed to make any substantive arguments in opposition to any of the various portions of the defendants' motion, the Court will consider each of the defendants' contentions.
1. Whether tire Plaintiff Can Raise a Genuine Issue as to his Prima Facie Claim for Disability Discrimination
To state a claim under the Rehabilitation Act, a plaintiff must show that: (1) he is disabled within the meaning of the Act; (2) he is otherwise qualified; (3) he was discriminated against solely by reason of his disability; and (4) the institution that committed the discrimination receives federal financial assistance. See 29 U.S.C. § 794 (a); Zukle, 166 F.3d at 1045. In addition to those elements, a plaintiff pursuing a Rehabilitation Act claim bears the initial burden of producing evidence that a reasonable accommodation exists and that the accommodation would enable him to meet the educational institution's requirements. The burden then shifts to the school to show either that the suggested accommodation is not reasonable or that the student is not qualified because even the accommodation would not enable the student to qualify. See Wong v. Regents of Univ. of Cal., 192 F.3d 807, 816-17 (9th Cir. 1999). Empire does not dispute that the plaintiff is otherwise qualified (the second element) or that the school receives federal financial assistance (the fourth element); instead, they contend that Colombini has failed to meet his burden that he is disabled within the meaning of the Act (the first element) or that Empire discriminated against him solely because of his disability (the third element). Moreover, Empire argues that even if Colombini can satisfy his prima facie burden, the school reasonably accommodated him.
Empire is correct on all three grounds, any one of which is sufficient to warrant summary judgment for tire defendants. First, Colombini has failed to present any evidence that he is disabled under the Rehabilitation Act. The Act defines a person as disabled when the person: "(i) has a physical or mental impairment which substantially limits one or more of such person's major life activities; (ii) has a record of such an impairment; or (iii) is regarded as having such an impairment." 29 U.S.C. § 705 (20)(B). Colombini has presented no evidence that he suffers from a learning disability or some other disability that would qualify under the Act. At most, the record contains (for Colombini has not submitted any evidence) the plaintiffs own letters to Empire and vague letters from Dr. Lerner on Colombini's behalf, none of which identifies a particular disability or contains any evidence that the plaintiff is in fact disabled. Even if Colombini had submitted evidence of a learning disability, he has not demonstrated that his disability substantially limits a major life activity. There is also no evidence that Colombini has a record of such an impairment or that he was regarded as having such an impairment. If anything, the record indicates that the plaintiff has no record of a disability and that Empire did not regard him as disabled. See Defs.' Mot. for Summ. J. ("Motion"), July 13, 2001, at 11. Thus, the plaintiff has failed to a raise a genuine issue of material fact as to his disability status, and the defendants are entitled to summary judgment on the first element of the plaintiff's Rehabilitation Act claim.
In his counter-motion to strike the defendants' motion for summary judgment, the plaintiff claims that the defendants conceded in their answer that the plaintiff was disabled under the ADA, the Rehabilitation Act, and state law. In fact, the plaintiffs FAC merely states that the plaintiff was entitled to the protection of those statutes, which the defendants' answer concedes. The plaintiff seizes that admission as evidence that the plaintiff is in fact disabled. The defendants' concession, however, is essentially a truism, as everyone who attends an institution that receives federal financial assistance is entitled to the protection of the Rehabilitation Act and anyone who uses a public accommodation is entitled to protection under the ADA. That the plaintiff is entitled to the protection of those statutes does not mean, however, that he is disabled under the statute. As such, the defendants' "concession" in their answer is of no evidentiary significance.
Second, there is also no evidence that Empire discriminated against Colombini solely (or even at alp because of his disability. The plaintiff has simply failed to identify any such evidence in his voluminous submissions to the Court. The defendants have met their burden of identifying the absence of amy genuine issire oF material fret with respect to Empire's alleged discrimirmtion, and the plaintiff must then go beyond the pleadings and by his own evidence "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56 (e); see Keenan. 91 F.3d at 1279 (noting that the non-moving party must "identify with reasonable particularity the evidence that precludes summary judgment"). His failure to do so entitles the defendants to judgment as a matter of law on the third element of the plaintiffs disability discrimination suit.
Third, even if the plaintiff could somehow raise a genuine issue of material fact upon which a reasonable jury could conclude that he was disabled and that Empire discriminated against him solely on the basis of that disability, he has failed to present any evidence that would suggest that Empire failed to reasonably accommodate his alleged disability. As an initial matter, Colombini has not identified an accommodation that he requested but Empire refused to provide, he therefore cannot meet his initial burden of showing that there was a reasonable accommodation with which he could have satisfied Empire's requirements. Moreover, to the extent Empire denied some of Colombini's requests, he has not identified any evidence or argument that would suggest that Empire's actions were unreasonable.
Thus, the plaintiff has failed to present any evidence to raise a genuine issue of material fact with respect to his prima facie burden that he was disabled or that Empire discriminated against him solely because of his disability, either one of which is sufficient to warrant summary judgment for the defendants. Even if Colombini had somehow raised a genuine issue of material fact with respect to his prima facie burden, he has failed to present any evidence that Empire did not reasonably accommodate him. Accordingly, the defendants' motion for summary judgment on the plaintiffs disability discrimination claims under both state and federal law is hereby GRANTED.
2. Whether the Plaintiff's Claims for Injunctive Relief are Moot
The defendants also contend that the plaintiff's claims for injunctive relief must be dismissed as moot since Colombini is no longer a student at Empire. Once a student pursuing a claim against his school graduates, he ordinarily no longer has standing to seek injunctive or declaratory relief. See Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1098 (9th Cir. 2000) ("It is well settled that once a student graduates, he no longer has a live case or controversy justifying declaratory and injunctive relief against a school's action or policy."), cert. denied sub nom. Niemeyer v. Oroville Union High Sch. Dist., 121 S.Ct. 1228 (2001). The plaintiff has not presented any reason why his case might fall under the "capable of repetition, yet evading review" exception or third-party standing doctrines since there is no reasonable expectation that he will be subject to Empire's disability policies again and he no longer has a sufficiently concrete or personal interest in the school's policy. See id. at 1098-99 (noting that the "capable of repetition" exception only applies when "(1) the challenged action is too short in duration to be fully litigated before cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subjected to the same action again" and that a person can only assert third-party standing when he has a sufficiently personal or concrete stake in the outcome). Accordingly, the plaintiff lacks standing to pursue his claims for injunctive and declaratory relief, so the defendants' motion for summary judgment on the plaintiffs claims for injunctive and declaratory relief is GRANTED.
3. Whether the Plaintiff has Failed to Present Evidence of Damages
In addition, the defendants argue that the plaintiff has failed to present any evidence of his monetary damages. Federal Rule of Civil Procedure 26(a)(1)(C) requires a party who is claiming damages to disclose "a computation of any category of damages claimed." While the plaintiff has claimed that he was damaged by the defendants' conduct and has asserted that his compensatory damages total $400,000 plus $25,000 in statutory penalties for the defendants' alleged violations of state law, he has utterly failed to provide a calculation of those damages despite repeated requests from the defendants. In addition, the plaintiffs deposition fails to reveal any damages other than his attorneys' fees. See Steever Decl., July 13, 2001, Ex. C, at 90. Moreover, the plaintiff has refused to permit the defendants to depose any of his treating physicians, so the defendants have no information whatsoever regarding Colombini's actual damages.
Under Rule 37(c)(1), where a party fails to disclose information required in Rule 26(a) and that failure is not harmless, a party may not he permitted to use that evidence at trial. Here, the plaintiffs failure to provide any information whatsoever about the computation of his damages is harmful to the defendants, as they have no way to defend against the plaintiff's damages claims. As a result, the plaintiff would be precluded from introducing such evidence at trial. Indeed, the plaintiff has also failed to meet his burden under Rule 56(e) to set forth specific facts showing that there is a genuine issue for trial and to "identify with reasonable particularity the evidence that precludes summary judgment." Keenan, 91 F.3d at 1279; see Richards, 55 F.3d at 251 (noting that it is not a district court's task to "scour the record in search of a genuine issue of triable fact'). With no evidence that the plaintiff was damaged by the defendants' alleged discrimination and no evidence regarding the extent of those damages, no reasonable jury could find that Colombini was damaged. The defendants are therefore entitled to judgment as a matter of law. Accordingly, the defendants' motion for summary judgment on the plaintiffs claims for damages is GRANTED.
4. Whether the Plaintiff has Failed to Produce Evidence Supporting his Claims for Infliction of Emotional Distress
Finally, the defendants assert that they are entitled to summary judgment on the plaintiffs claims for negligent and intentional infliction of emotional distress. To state a claim for negligent infliction of emotional distress, a plaintiff must establish the "traditional elements of duty, breach of duty, causation and damages. . ." Wasson v. Sonoma County Jr. College Dist., 4 F. Supp.2d 893, 909 (N.D. Cal. 1997) (noting that a claim for negligent infliction of emotional distress "is not a separate tort, but merely the tort of negligence") (citing Huggins v. Longs Drug Stores Cal., Inc., 6 Cal.4th 124, 129 (1993)), aff'd on other grounds, 203 F.3d 659 (9th Cir.), cert. denied. 531 U.S. 927 (2000). A claim for intentional infliction of emotional distress requires evidence that the defendant intentionally or with reckless disregard engaged in extreme and outrageous conduct that exceeds all bounds of that usually tolerated in a civilized society resulting in the plaintiff suffering severe or extreme emotional distress. See id. (citing Potter v. Firestone Tire Rubber Co., 6 Cal.4th 965, 1001 (1993)). The plaintiff has not identified how the defendant breached their duly of ordinary care in dealing with the plaintiff, nor has he demonstrated that Empire's actions caused emotional distress or that he suffered damages. Similarly, there is no evidence in the record upon which a reasonable jury could conclude that the defendants acted in an outrageous or extreme manner or that the defendants acted with intent or reckless disregard. Accordingly. the defendants' motion for summary judgment on the plaintiffs negligent and intentional infliction of emotional distress claims is GRANTED.
B. The Plaintiff's Opposition
The plaintiff has not presented any substantive opposition to the defendants' motion. He has, however, raised several procedural and jurisdictional objections to the motion. The Court will address those arguments in turn.
1. Whether the Defendants have Mischaracterized the Scope of this Court's Earlier Ruling
The Court notes that the plaintiff has raised the second through fifth objections numerous times during the litigation, and this Court has rejected the plaintiffs contentions — and once even sanctioned his counsel for repeating them — every time. As such, the plaintiff is estopped from repeating the arguments here without formally moving for reconsideration. However, for the sake of completeness and finality, the Court will address the plaintiffs objections on their face where appropriate.
In their motion for summary judgment, the defendants indicated that the Court had dismissed counts I, II, IV, and VII of the plaintiffs FAC in an oral order at a hearing on February 11, 2000. According to the plaintiff, the Court dismissed count VIII, not count VII, and the written order memorializing the Court's ruling referred to the plaintiffs complaint, not the FAC specifically. in the plaintiffs view, the defendants' alleged misrepresentations constitute sufficient grounds to deny the defendants' motion and grant the plaintiffs cross-motion to strike.
The defendants' conduct is much more innocuous than the plaintiff would suggest. The defendants have represented that they simply made a typographical error in their motion in listing the seventh cause of action rather than the eighth. See Defs. Reply to Pl.'s Opp'n to Defs.' Mot. for Summ. J., Aug. 3, 2001, at 2. In arty event, the difference has no bearing on the substance of the defendant's motion, especially since the plaintiff's fifth through eighth causes of action are substantially similar. Moreover. that the written order does not specify whether it refers to the plaintiffs original complaint or FAC is also immaterial, as the FAC was clearly time operative complaint at the time of the Court's order. See note 2 supra. Thus, the defendants' alleged error and the imprecision of the Court's earlier order do not preclude summary judgment on behalf of the defendants.
2. Whether the Plaintiffs Appeals Divest this Court of Jurisdiction
The plaintiff argues — as he has urged repeatedly throughout the litigation — that the Ninth Circuit has divested this Court of jurisdiction by accepting some of the plaintiff's numerous appeals. That contention is also without merit.
Ordinarily, federal appellate courts only have jurisdiction over the decisions of district courts when a district court has entered a final decision. See 28 U.S.C. § 1291. However, in certain circumstances, such as an appeal involving an injunction or where a district court certifies an issue for interlocutory appeal, see 28 U.S.C. § 1292 (a) (b), an appellate court may exercise jurisdiction over the interlocutory decisions of a district court. In those instances, the district court is divested of jurisdiction over those aspects of a case involved in the appeal. See Griggs v. Provident Consumer Discount Co., 459 25 U.S. 56, 58 (1982).
Here, all of the plaintiffs appeals are interlocutory appeals. Most of them involve the Court's denials of the plaintiff's motions for permanent injunctions unrelated to the merits of the plaintiffs claims. Only one order, the Court's order on the defendants' motion for judgment on the pleadings, is remotely related to the substance of the plaintiffs claim, and it is by no means clear that the Ninth Circuit may exercise jurisdiction over that appeal at this time given its interlocutory character. Thus, because the plaintiff's appeals are collateral to the issues still in the district court, and because the plaintiff is collaterally estopped from questioning this Court's jurisdiction, see note 6 supra, this Court has jurisdiction over these proceedings and may adjudicate the defendants summary judgment motion.
3. Whether this Court Lacks Personal Jurisdiction over the Defendants
The plaintiff also contends that the Court does not have personal jurisdiction over the defendants. There are three flaws in that argument. First, if the Court lacks personal jurisdiction over the defendants, then the plaintiff's complaint may not proceed. See Fed.R.Civ.P. 12(b)(2). Second, and more importantly, it is clear that the Court does possess personal jurisdiction over the defendants, as they are all domiciled in this state and have consented to jurisdiction. Finally, the plaintiff is also collaterally estopped from relitigating the jurisdiction of the Court, as this Court has rejected his claim before. See note 6 supra.
4. Whether Defendants' Counsel Properly Represents Them
The plaintiff has also regularly questioned whether the defendants' counsel properly represents the defendants given the potential for conflicts of interest among the defendants. Again, the plaintiff has raised this issue before, and this Court has repeatedly rejected the argument as frivolous. Additionally, the plaintiff has no standing to object to the defendants' representation since he lacks the personal stake that a former client might possess. See Colver v. Smith, 50 F. Supp.2d 966, 971 (C.D. Cal. 1999).
5. Whether the Defendants' Motion is Premature
The plaintiff also complains that discovery is not open and that the defendants' motion is therefore premature, thereby ostensibly requesting a continuance under Federal Rule of Civil Procedure 56(f).
The plaintiff is simply wrong. First, discovery is open and has been since August 13, 1999. The Court has tried to make it clear to the plaintiff — unsuccessfully — on at least five subsequent occasions that discovery should proceed, including hearings and orders on November 5, 1999, November 19, 1999, December 2, 1999, January 21, 2000, and December 8, 2000. See Background Section II supra.
Second, the plaintiff has failed to identify any specific evidence that he wishes to obtain in order to raise a genuine issue of material fact. With no representation as to the scope of necessary discovery, the Court cannot possibly know whether the plaintiff legitimately needs to conduct further investigation or is simply delaying the litigation once again.
Third, the plaintiff is almost entirely responsible for the lack of evidentiary development in the case. The plaintiff's counsel has constantly thwarted discovery by filing motions to quash or motions for permanent injunctions seeking to prevent the defendants from deposing critical witnesses, nearly all of which the Court has denied. Indeed, by the defendants' count, the plaintiff has filed approximately twenty-six motions and applications, only two of which have been successful and none of which has addressed the merits of the plaintiffs claims. See Motion at 4. The plaintiff was not even deposed until April 2001, over three years after he filed his original complaint and twenty months after the Court ordered discovery to proceed the first time.
In fact, the plaintiff counsel's tactics have been so frivolous and dilatory that this Court has previously imposed sanctions against him for his conduct. in a hearing before The Honorable U.S. District Court Judge Charles A. Legge on May 25, 2001, Judge Legge imposed a $1,000 monetary sanction on the plaintiffs counsel for repeatedly violating this Court's orders and delaying discovery. During that hearing, Judge Legge observed that the plaintiffs motions to quash certain depositions and to permanently enjoin the defendants from conducting those depositions "were totally frivolous." Langa Decl. in Supp. of Defs.' Reply to Pl.'s Opp'n, Aug. 3, 2001, Ex. 5, at 4 (containing a transcript of the May 25 hearing before Judge Legge). Judge Legge further stated:
The case was reassigned due to Judge Legge's retirement.
Plaintiff's counsel in filing that motion has ignored everything the Court, this Court has said in regard to the posture of the case and the opening of discovery and specifically the fact that Dr. Lerner's deposition should go forward and that the plaintiff had no standing even to object to the taking of that deposition since it involved a third party; but the plaintiff instead of going along with discovery persists in raising nothing but procedural and obstructionist arguments, and so it will [have] to be done the hard way.
Id. With respect to the plaintiffs arguments that the defendants' counsel does not actually represent the defendants and that the Court lacks personal jurisdiction over the defendants, Judge Legge noted, "These motions are all premised on arguments that I have heard many times and I have already rejected many times . . ." Id. at 5; see id. at 6 (noting that the Ninth Circuit "has rejected every single thing you have brought to them"). The Court also admonished the plaintiff's counsel for failing to move the case forward: "You have done nothing in this case for three to four years, nothing for your client other than to object to their discovery and to oppose every procedural order and discovery order I issue. That is not moving the case forward." Id. Under those circumstances, this Count cannot conclude that the plaintiff has riot had an adequate opportunity to conduct discovery, and to the extent he is seeking a continuance under Rule 56(f), his request is DENIED.
6. Whether the Defendants' Motion is based on Admissible Evidence
Finally, the plaintiff has raised evidentiary objections with respect to nearly every paragraph in the declarations of the defendants' counsel and Empire's former Dean. The Court has reviewed those declarations, as well as the supplemental declarations submitted in reply to the plaintiffs opposition, and has determined that they contain admissible, authenticated, and competent evidence in every material respect. Moreover, the plaintiff cannot simply rest on his pleadings. Because he will have the burden of proof at trial on various issues, see Section II.A.1 supra, he must affirmatively set forth facts showing that there are genuine issues of material fact. See Fed.R.Civ.P. 56(e). He has utterly failed in that regard.
Thus, none of the plaintiffs procedural or jurisdictional objections has any merit. The defendants' motion for summary judgment is therefore GRANTED in its entirety.
III. THE PLAINTIFF'S COUNTER-MOTION TO STRIKE THE DEFENDANTS' MOTION
In his counter-motion to strike the defendants' motion for summary judgment, the plaintiff merely repeats the objections he raises in his opposition to the defendants motion. The only additional specific argument he raises is that Section C of the defendants' motion describing the procedural history of the litigation should be struck since it lacks evidentiary support. That contention has no merit. Section C of the defendants' motion merely refers to the events in the case, all of which are contained in the Court's file. None of the defendants contentions require evidentiary support. Moreover, in any event, such evidence would be admissible at trial. Accordingly, the plaintiff's counter-motion to strike the defendants' motion for summary judgment is DENIED.
The defendants have summarized the plaintiffs counter-motion as including four new arguments that were not made in the plaintiffs opposition to the defendants' motion for summary judgment. but three of those arguments — that the plaintiff did disclose a computation of his damages, that the defendants conceded that the plaintiff is disabled, and that the declarations the defendants submitted in support of their motion are insufficient — are addressed in the Court's discussion of the defendants' motion. See Section II.A.3 supra (computation of damages); II.A.1 supra (plaintiff's disability); II.B.6 supra (sufficiency of the defendants' evidence).
IV. THE PLAINTIFF'S MOTIONS FOR PERMANENT INJUNCTIONS
Because the Court has determined that the defendants are entitled to summary judgment, the plaintiff's motions to enjoin the defendants on their counsel from filing further motions for summary judgment or issuing non-party subpoenas are DENIED as moot.
V. THE PLAINTIFF'S VARIOUS MOTIONS TO SEAL
Pursuant to Civil Local Rule 79-5. "No document shall be filed under seal except pursuant to a Court order that authorizes the sealing of the particular document or portion thereof and is narrowly tailored to seal only that material for which good cause to seal has been established." Civ. L.R. 79-5(b). The Commentary to Local Rule 79-5(b) observes that the Court "will only entertain requests to seal that establish good cause and are narrowly tailored to seal only the particular information that is genuinely privileged or protectable as a trade secret on otherwise has a compelling need for confidentiality." Civ. L.R. 79-5(b), Commentary ("Documents may riot be filed under seal pursuant to blanket protective orders covering multiple documents."). The plaintiff has failed to demonstrate that there is a Court order authorizing the sealing of the particular documents the plaintiff wishes to seal, nor has he demonstrated that theme is good cause to issue such an order for these documents or that such an order would be narrowly tailored to seal only the particular information that should be sealed. Accordingly, the plaintiff's three ex parte motions to seal various documents (and the fourth one filed after the defendants filed their reply) are all DENIED.
CONCLUSION
For the foregoing reasons, the Court hereby:
1. GRANTS the defendants' motion for summary judgment in its entirety;
2. DENIES the plaintiffs motions to strike:
a. the defendants' motion for summary judgment;
b. the defendants' reply to the plaintiff's opposition;
c. the defendants' response to the plaintiffs counter-motion to strike the defendants' motion for summary judgment; and
d. various declarations submitted by the defendants;
3. DENIES as moot the plaintiffs motions:
a. to enjoin the defendants from issuing non-party subpoenas; and
b. to enjoin the defendants from filing motions for summary judgment;
4. DENIES the plaintiff's motion for sanctions;
5. DENIES all of the plaintiff's ex parte motions to seal various documents; and
6. VACATES as moot the plaintiff's administrative request for access to the case files.
The clerk is ORDERED to close the file. The Court will issue a separate Judgment.
IT IS SO ORDERED.
JUDGMENT
The Court having granted the defendants' motion for summary judgment in its entirety, it is hereby ORDERED that judgment be entered in favor of the defendants and against the plaintiff.
IT IS SO ORDERED.