Opinion
No. 99-2402-JWL.
December 27, 2000
ORDER
Pending before the Court are the following motions:
Defendant's Motion for Order Reopening Discovery (doc. 63) and Plaintiff's Motion for Leave to Respond to Motion to Reopen Discovery Out of Time (doc. 79);
Plaintiff's Motion to Require Defendant to Comply with Local Rule 5.1(c) (doc. 80);
Plaintiff's Motion to Require Defendant to Comply with Local Rule 5.1(g) and Require Additional Service by Facsimile Transmission (doc. 81);
Plaintiff's Motion for Sanctions (doc. 92-2);
Defendant's Motions for Sanctions on Plaintiff for Not Appearing for Defendant's Deposition (docs. 95 and 108);
Defendant's Motions to Request Additional Time for Responses (docs. 107, 115 and 127);
Defendant's Motions to Strike Plaintiff's Pleading and for Sanctions (docs. 109, 113 and 122);
Plaintiff's Motion for Status Conference (doc. 110);
Plaintiff's Second Motion to Strike Defendant's Pleadings Not in Compliance with Local Rule 77.1 (doc. 118);
Plaintiff's Motion for Relief from Requirement to Serve Written Brief in Support of Second Motion to Strike Defendant's Pleadings Not in Compliance with Local Rule 77.1 (doc. 119); and
Defendant's Notice of Non-Receipt of Documents from Plaintiff as per Court Order and Motions for Order for Resubmission by Plaintiff (docs. 121 and 124).
FACTUAL BACKGROUND
On or around March 11, 1998, ORI and Defendant allegedly entered into a contract for employment. Relevant to this lawsuit, the alleged employment contract provides that upon termination of Defendant's employment from ORI, and for a time period of one year thereafter, Defendant shall be prohibited from soliciting company employees from leaving their employment with ORI. Defendant terminated his employment with ORI on May 20, 1999. ORI brings this cause of action alleging Defendant violated those portions of the employment contract prohibiting him from soliciting ORI employees to leave ORI.• 1 Defendant's Motion for Order Reopening Discovery (doc. 63)
Discovery in this matter closed on May 15, 2000. See December 23, 1999 Scheduling Order (doc. 16). Defendant now requests the Court reopen discovery in this matter. In support of his request, Defendant states (a) Plaintiff submitted fraudulent affidavits to support this lawsuit and Defendant wants to depose those individuals who signed the fraudulent affidavits; (b) Plaintiff has not provided documents requested and Defendant wants to obtain copies of these documents; (c) new evidence has surfaced regarding restructuring of ORI as a company and such restructuring could devalue Defendant's claim for ORI stock; and (d) Defendant's attorney withdrew from the case and Defendant doubts his former attorney conducted relevant depositions and/or completed the necessary paper discovery.
Plaintiff requested leave to respond out of time to Defendant's motion to reopen discovery (doc. 79) on the grounds that it failed to receive the service copy of Defendant's motion. Defendant has not filed a response to Plaintiff's motion; thus, the Court uses its discretion to summarily grant the motion as unopposed under D.Kan. Rule 7.4.
• a. Fraudulent Affidavits
Defendant asserts a need to conduct additional depositions of certain people in light of his allegation that affidavits produced by Plaintiff to support this lawsuit are false and that Plaintiff exercised coercion to order to obtain them. Defendant states in his motion, however, that he has known these people were fact witnesses since the inception of this lawsuit. See Defendant's Motion for Reopening Discovery (doc. 63) at page 1 ("The Defendant wishes to depose all persons who have signed affidavits in India in order to ascertain the factual position. As the five named persons in Plaintiff's suit permanently reside in India, the Defendant seeks the permission of the Court to depose these persons in India.") (emphasis added). Because Defendant has known the identity of these five individuals since the inception of this lawsuit, Defendant could have deposed these individuals during the four-month discovery period provided in the Scheduling Order. Thus, Defendant's desire to depose these individuals is an insufficient reason to justify reopening discovery in this matter.
• b. Production of Documents
Defendant asserts discovery needs to be reopened because Plaintiff failed to provide and/or produce for inspection documents requested by Defendant in his Second Request for Production of Documents. Plaintiff's failure to provide and/or produce for inspection documents requested, even if true, is also an insufficient reason to justify reopening discovery in this matter. The appropriate course of action to require production by Plaintiff of the documents requested is a motion to compel pursuant to Fed.R.Civ.P. 37(a).
• c. New Evidence
Relying on Fed.R.Civ.P. 60(b)(2), Defendant next claims discovery needs to be reopened because new evidence has surfaced. As a preliminary matter, Defendant's reliance on Fed.R.Civ.P. 60(b)(2) is misplaced as that rule relates to final judgments, not modifications to a scheduling order. Even if this rule were applicable, Defendant has failed to establish when the allegedly new evidence first surfaced and how it is relevant to the pending lawsuit. Given these circumstances, the existence of new evidence as alleged by Defendant is an insufficient reason to justify reopening discovery.
• d. Change of Attorney
Defendant requests the Court reopen discovery on the grounds that Defendant's attorney withdrew from the case. In support of this request, Defendant states he "doubts whether the Defendant's attorney actually conducted the relevant depositions and completed paper discovery." Defendant's Motion for Reopening Discovery (doc. 63) at page 4.
Upon review of the record, the Court finds that Defendant's attorney did not withdraw from the case until on or around the date discovery in this matter closed. If Defendant had concerns regarding depositions and paper discovery, he had over four months to raise those issues with his attorney. Given these circumstances, the fact that Defendant's attorney withdrew from the case is an insufficient reason to justify reopening discovery.
Based on the above discussion, Defendant's Motion for Order Reopening Discovery (doc. 63) will be denied.
• 2. Plaintiff's Motion to Require Defendant to Comply with Local Rule 5.1(c) (doc. 80)
Pursuant to D.Kan. Rule 5.1(c), Plaintiff requests the Court require Defendant to set forth in the signature block of his pleadings a telephone number where he may be reached. Defendant has not filed a response to Plaintiff's motion; thus, the Court uses its discretion to summarily grant it as unopposed under D.Kan. Rule 7.4. Accordingly, Defendant is ordered to provide in the signature block of all future pleadings a phone number where he may be reached.
• 3. Plaintiff's Motion to Require Defendant to Comply with Local Rule 5.1(g) and Require Additional Service by Facsimile Transmission (doc. 81)
Pursuant to D.Kan. Rule 5.1(g), Plaintiff moves the Court to require Defendant to serve Plaintiff at its proper address and to require Defendant to use facsimile transmissions to serve all future motions upon Plaintiff. In his response, Defendant first addresses the issue of erroneous address and states that he has complied with the local rule as written. With regard to the issue of service by facsimile, Defendant does not provide any argument in opposition to Plaintiff's request, but instead makes a similar request for Plaintiff to serve pleadings upon him by personal courier or by facsimile. Upon review of the unique circumstances here and the arguments presented by both parties, the Court grants Plaintiff's motion and orders both parties to serve all future pleadings upon the other party by facsimile at the following numbers:
In order to avoid duplication, those pleadings served by facsimile shall not be later transmitted by mail as a follow-up.
Bruce Mayfield Yusuf Lanewala
Facsimile Number: 913/649-8494 Facsimile Number: 011-91-22-4440297
If the above listed facsimile numbers are inaccurate, the parties shall file with the Court, within ten days from the date of this Order, a correct facsimile number.
• 4. Plaintiff's Motion for Sanctions (doc. 92-2)
In this motion, Plaintiff contends it did not receive copies of three pleadings filed by Defendant. Plaintiff requests sanctions be imposed upon Defendant for his alleged failure to properly serve these three pleadings. Defendant responds by disputing Plaintiff's charges of misconduct. Upon review of the circumstances, the Court finds it does not have sufficient evidence before it to justify the imposition of sanctions. The parties obviously are in sharp disagreement as to whether the pleadings at issue were served and the Court declines to engage in an analysis of credibility. Plaintiff's motion for sanctions will be denied.
• 5. Defendant's Motions for Sanction on Plaintiff for Not Appearing for Defendant's Deposition (docs. 95 and 108)
The Court notes Defendant filed this motion for sanctions on October 18, 2000 (doc. 95) and then filed an exact duplicate of the motion on October 27, 2000 (doc. 108).
This Court ordered Defendant to make himself available for deposition on or before October 18, 2000 at a time and place to which the parties mutually agree. See September 14, 2000 Memorandum and Order (doc. 66) and September 20, 2000 Order (doc. 67). On October 9, 2000, Defendant filed and served a pleading confirming his availability for deposition "on October 18, 2000 at 3:00 p.m. (Indian Standard Time) at the following address: C/o M V Kini Co., Attorneys at Law, Savla Chambers, Opp Blitz, Fort, Mumbai — 400001, India." See Defendant's Notice of Availability for Deposition (doc. 76). At the end of Defendant's notice, Defendant notes that "Plaintiff is requested to confirm their presence to the Defendant accordingly." Id.
Plaintiff did not confirm the October 18, 2000 deposition in India; instead, Plaintiff issued a subpoena to Defendant on October 10, 2000 commanding Defendant appear in Kansas City for deposition on October 17, 2000. Defendant did not appear in Kansas City on October 17, 2000 in order to be deposed and Plaintiff did not appear in India on October 18, 2000 in order to take Defendant's deposition. Defendant now requests sanctions be imposed upon Plaintiff because Defendant "had no alternative but to prepare for the deposition and wait for the arrival of Plaintiff . . . to the tune of US $800 (8 hours @ $100)." Id.
Defendant asserts he did not receive this October 10, 2000 subpoena until October 17, 2000 — the day of the scheduled deposition.
Rule 37(d) provides, in pertinent part, that if a party "fails (1) to appear before the officer who is to take the deposition, after being served with proper notice . . ., the court in which the action is pending on motion may make such orders in regard to the failure as are just." Fed.R.Civ.P. 37(d). Defendant does not seeks sanctions for a party-deponent's failure to appear for deposition after being served with proper notice, but instead seeks sanctions for a party's failure to take a deposition for which a Notice of Deposition was never issued. Ori's failure to take a deposition in India at a specified date and time unilaterally chosen by Defendant when no notice of deposition was issued is not sanctionable conduct; thus Defendant's motions for sanctions will be denied.
• 6. Defendant's Motions to Request Additional Time for Responses (docs. 107, 115 and 127)
The Court does not find credible Defendant's assertion that he actually believed Plaintiff would attend the deposition in India due to the fact that Plaintiff issued a subpoena for Defendant's deposition in the United States after receiving Defendant's notice of availability.
Although the Court declines to impose sanctions here, the fact that each party unilaterally determined a place and time for Defendant's deposition when the Court specifically ordered that the parties mutually agree on a place and time for the deposition is very troubling to the Court. The parties are admonished that such blatant disregard for this Court's Orders in the future may result in a finding of contempt against the parties.
The Court notes Defendant filed this motion on October 25, 2000 (doc. 107) and then filed exact duplicates of the motion on November 1, 2000 (doc. 115) and November 8, 2000 (doc. 127).
In these motions, Defendant makes a blanket request to extend by 25 days (to a total of 35 days) the ten-day time period proscribed by local rule in which he is required to file responses to Plaintiff's pleadings. In support of his request, Defendant states it takes ten to twelve days for mail from the United States to arrive in India. Given the Court's directive in Section 3 of this Order — that all future pleadings are to be served by facsimile upon the other parties — Defendant's motions are denied without prejudice.
• 7. Defendant's Motions to Strike Plaintiff's Pleading and for Sanctions (docs. 109, 113 and 122)
This does not prohibit either party from requesting an additional period of time in which to respond to pleadings on a case-by-case basis under circumstances that such party feels warrants an extension.
The Court notes Defendant filed this motion on October 27, 2000 (doc. 109) and then filed exact duplicates of the motion on November 1, 2000 (doc. 113) and November 2 (doc. 122).
In this motion, Defendant moves to strike all pleadings filed by Plaintiff since May 15, 2000 as a sanction for delays in delivery of such pleadings to Defendant. Defendant asserts these delays were caused by an incorrect zip code placed on the envelope during mailing: "40049" instead of "400049."
Defendant presents no evidence that Plaintiff intentionally placed an incorrect zip code on the envelope of pleadings before mailing them. Moreover, Defendant neither alleges nor presents any evidence that the delay in receiving the referenced pleadings was prejudicial to him in any way. Accordingly, the Court denies Defendant's motions to strike and for sanctions.
• 8. Plaintiff's Motion for Status Conference (doc. 110)
Plaintiff requests the Court schedule a status conference. Given it appears the parties in this matter have not communicated with each other by telephone in the eight (8) months that have transpired since Defendant's counsel withdrew from this case, the Court finds a status conference appropriate. Accordingly, the Court hereby sets this case for a status conference by telephone at 9:00 a.m. on Thursday, January 18, 2001. The United States Magistrate Judge shall initiate the telephone conference. All pro se parties and attorneys who have entered an appearance in accordance with D.Kan. Rule 5.1(d) shall be available for the telephone conference call. To that end, the parties shall notify the Court by telephone (913/551-5405) or by pleading filed with the Court, on or before January 12, 2001, of the telephone number where they can be reached for this conference.
• 9. Plaintiff's Second Motion to Strike Defendant's Pleadings Not in Compliance with Local Rule 77.1 (doc. 118)
In this motion, Plaintiff requests the Court strike three of Defendant's pleadings filed by facsimile after the Court's October 25, 2000 Order (doc. 106) prohibiting fax filing without an affidavit from Defendant setting forth compelling circumstances showing the necessity for filing by facsimile. Plaintiff also requests seven other pleadings filed by Defendant be stricken as sanctions for Defendant's failure to serve such pleadings upon Plaintiff. Defendant responds (1) by disputing Plaintiff's charges of failure to serve pleadings and (2) by justifying his need to fax file due to the small window of response time available to file responsive pleadings.
Given the circumstances as presented, the Court finds it does not have sufficient evidence before it to justify striking the referenced pleadings as a sanction. As a preliminary matter, the Court declines to engage in an analysis of credibility regarding whether the pleadings at issue were served upon Plaintiff. With regard to the issue of fax filing, Defendant is admonished to abide by the Court's October 25, 2000 Order (doc. 106) prohibiting fax filing without an affidavit as described; Defendant should not wait until the issue is raised by a motion to strike before setting forth the reason for the fax filing.
As a point of clarification, although the parties are now required to serve to each other by facsimile all future pleadings, the Court's October 25, 2000 Order (doc. 106) which prohibits filing pleadings with the Court by facsimile without affidavit remains in effect.
Based on the discussion above, Plaintiff's Second Motion to Strike is denied.
• 10. Plaintiff's Motion for Relief From Requirement to Serve Written Brief in Support of Second Motion to Strike Defendant's Pleadings Not in Compliance with Local Rule 77.1 (doc. 119)
In this motion, Plaintiff requests the Court relieve Plaintiff from its duty to serve a written brief supporting its Second Motion to Strike Defendant's Pleadings Not in Compliance with Local Rule 77.1. Defendant has not filed a response to Plaintiff's motion; thus, the Court uses its discretion to summarily grant the motion as unopposed under D.Kan. Rule 7.4.
• 11. Defendant's Notice of Non-Receipt of Documents from Plaintiff as per Court Order and Motions for Order for Resubmission by Plaintiff (docs. 121 and 124)
The Court notes Defendant filed this Notice and Motion for Resubmission on November 1, 2000 (doc. 121) and then filed an exact duplicate of the motion on November 3, 2000 (doc. 124).
In a motion to compel previously ruled by the Court, Plaintiff states it submitted discovery to Defendant on March 26, 2000 in the form of Interrogatories, Requests For Admissions and Request for Production of Documents and Defendant has failed to respond to such discovery. Defendant responded to these motions by stating he was not aware of the discovery requests. As a result, this Court ordered Plaintiff to serve the written discovery at issue upon Defendant at his address of record in India on or before October 2, 2000. See September 14, 2000 Memorandum and Order (doc. 66). Defendant states in the motions currently pending that, as of November 1, 2000 and November 3, 2000, he still has not received the written discovery requests.
The Order required service of the written discovery within ten days from the date of the Order. Using the calculations for timing set forth in Fed.R.Civ.P. 4, ten days from September 14, 2000 is October 2, 2000.
The Court file in this matter reflects that a Certificate of Service of Requests for Production of Documents, First Interrogatories and Requests for Admissions was filed by Plaintiff on September 28, 2000 (doc. 70). Based on the time period which has elapsed between the date of Plaintiff's Certificate of Service and the date of Defendant's Notice of Non-Receipt, Defendant's motions will be granted to the extent that Plaintiff shall transmit the written discovery requests by facsimile within seven (7) days from the date of this Order and file separately with the Court a certificate of service attaching as an exhibit the facsimile verification page. Defendant will then be required to respond to such discovery in accordance with Fed.R.Civ.P. 33, Fed.R.Civ.P. 34 and Fed.R.Civ.P. 36, as well as other applicable local and federal rules.
Those portions of Defendant's motions requesting an additional 24 days in which to respond to the discovery requests, over and above the normal time allowed by procedure, are denied.
CONCLUSION
Based on the above discussion, it is hereby Ordered that
• (1) Defendant's Motion for Order Reopening Discovery (doc. 63) is denied;
• (2) Plaintiff's Motion for Leave to Respond to Motion to Reopen Discovery Out of Time (doc. 79) is granted;
• (3) Plaintiff's Motion to Require Defendant to Comply with Local Rule 5.1(c) (doc. 80) is granted and Defendant is ordered to provide in the signature block of all future pleadings a telephone number where he may be reached;
• (4) Plaintiff's Motion to Require Defendant to Comply with Local Rule 5.1(g) and Require Additional Service by Facsimile Transmission (doc. 81) is granted and both parties are order to serve all future pleadings as specifically set forth in Section 3 of this Order and to correct inaccuracies in their facsimile numbers as set forth in Section 3 of this Order;
• (5) Plaintiff's Motion for Sanctions (doc. 92-2) is denied;
• (6) Defendant's Motions for Sanctions on Plaintiff for Not Appearing for Defendant's Deposition (docs. 95 and 108) are denied;
• (7) Defendant's Motions to Request Additional Time for Responses (docs. 107, 115 and 127) are denied without prejudice;
• (8) Defendant's Motions to Strike Plaintiff's Pleading and for Sanctions (docs. 109, 113 and 122) are denied;
• (9) Plaintiff's Motion for Status Conference (doc. 110) is granted and the Court hereby sets this case for status conference by telephone at 9:00 p.m. on Thursday, January 18, 2001. All counsel and pro se parties shall notify the Court by telephone (913/551-5405) or by pleading filed with the Court, on or before January 12, 2001, of the telephone number where they can be reached for this conference;
• (10) Plaintiff's Second Motion to Strike Defendant's Pleadings Not in Compliance with Local Rule 77.1 (doc. 118) is denied;
• (11) Plaintiff's Motion for Relief from Requirement to Serve Written Brief in Support of Second Motion to Strike Defendant's Pleadings Not in Compliance with Local Rule 77.1 (doc. 119) is granted; and
• (12) Defendant's Notice of Non-Receipt of Documents from Plaintiff as per Court Order and Motions for Order for Resubmission by Plaintiff (docs. 121 and 124) is granted and Plaintiff shall transmit the written discovery requests by facsimile within seven (7) days from the date of this Order and file separately with the Court a certificate of service attaching as an exhibit the facsimile verification page. Defendant will then be required to respond to such discovery in accordance with Fed.R.Civ.P. 33, Fed.R.Civ.P. 34 and Fed.R.Civ.P. 36, as well as other applicable local and federal rules.
• (14) Those portions of Defendant's Notice of Non-Receipt of Documents from Plaintiff as per Court Order and Motions for Order for Resubmission by Plaintiff (docs. 121 and 124) requesting an additional 24 days in which to respond to the discovery requests, over and above the normal time allowed by procedure, are denied.
IT IS SO ORDERED.