Lugo v. Birmingham, Jefferson County Transit Authority

Filing 109

MEMORANDUM OPINION AND ORDER Two days before discovery closed, Plaintiff Diana Lugo, proceeding pro se, filed a motion to compel the depositions of two former employees of Defendant Birmingham-Jefferson County Transit Authority. (Doc. 69; see doc. 51). After considering the briefing, hearing testimony, and having the benefit of oral argument, the court denied the motion from the bench. (Doc. 102 at 3031). Ms. Lugo later filed a motion which this court construes as a motion for reconsiderat ion. (Doc. 86); see also Fed. R. Civ. P. 8(e). In response to the motion for reconsideration, the Transit Authority has sought sanctions for Ms. Lugo's conduct during discovery. (Doc. 87). For the reasons set forth below, the court DENIES Ms. Lugo's motion for reconsideration. (Doc. 86). To the extent her motion seeks reconsideration of a sanctions order, the court DENIES the motion AS MOOT because the court did not impose sanctions on Ms. Lugo. (Id. at 5). Finally, the court DENIES Transit Authority's motion for sanctions against Ms. Lugo. Signed by Judge Annemarie Carney Axon on 2/6/2024. (RMM)

FILED
2024 Feb-06 PM 02:04
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

DIANA YAZMIN LUGO,
Plaintiff,
v.
BIRMINGHAM-JEFFERSON
COUNTY TRANSIT AUTHORITY,
Defendant.

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2:22-cv-00362-ACA

MEMORANDUM OPINION AND ORDER
Two days before discovery closed, Plaintiff Diana Lugo, proceeding pro se,
filed a motion to compel the depositions of two former employees of Defendant
Birmingham-Jefferson County Transit Authority. (Doc. 69; see doc. 51). After
considering the briefing, hearing testimony, and having the benefit of oral argument,
the court denied the motion from the bench. (Doc. 102 at 30–31). Ms. Lugo later
filed a motion which this court construes as a motion for reconsideration. (Doc. 86);
see also Fed. R. Civ. P. 8(e). In response to the motion for reconsideration, the
Transit Authority has sought sanctions for Ms. Lugo’s conduct during discovery.
(Doc. 87).
For the reasons set forth below, the court DENIES Ms. Lugo’s motion for
reconsideration. (Doc. 86). To the extent her motion seeks reconsideration of a

sanctions order, the court DENIES the motion AS MOOT because the court did not
impose sanctions on Ms. Lugo. (Id. at 5). Finally, the court DENIES Transit
Authority’s motion for sanctions against Ms. Lugo. (Doc. 87 ¶¶ 9–10).
I.

BACKGROUND

Ms. Lugo filed this employment discrimination case against the Transit
Authority as a pro se litigant in March 2022. (Doc. 1). She later retained counsel
(docs. 14, 17, 18, 41) and filed an amended complaint (doc. 21). A month before
discovery was set to close, the parties moved to extend the discovery deadline. (Doc.
36 at 2; doc. 50). The court extended the discovery deadline for ninety days. (Doc.
51).
With a month left for discovery under the extended deadlines, all four of
Ms. Lugo’s attorneys moved to withdraw. (Docs. 52, 58). The court granted the
motion to withdraw and denied Ms. Lugo’s motion for appointment of counsel.
(Doc. 59; see also doc. 57). At the hearing on both motions, the court carefully
explained to Ms. Lugo that she must follow all Federal Rules of Civil Procedure and
meet all court deadlines. The court specifically noted that if Ms. Lugo wished to take
depositions, she had to give notice of those depositions in conformity with the
Federal Rules of Civil Procedure. Finally, the court reminded Ms. Lugo that
discovery ended in a month and she would have to take the depositions within that
time.
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Two days before the fact discovery deadline, Ms. Lugo filed a motion to
compel the depositions of two former Transit Authority employees: Justin Ridgeway
and Bracie Smith. (Doc. 69). In her motion, Ms. Lugo represented that
Mr. Ridgeway violated a subpoena for an August 21, 2023 deposition, and
Ms. Smith “refused to cooperate or to be depose[d].” (Doc. 69 at 1). At the hearing
on the motion, Ms. Lugo acknowledged that Transit Authority did not have the
authority to require either Mr. Ridgeway or Ms. Smith to sit for a deposition. (Doc.
101 at 3). Nevertheless, because Ms. Lugo was unable to secure these depositions
on her own, she wanted the court to order Transit Authority to secure the witnesses
so she could depose them. (Id. at 3, 7).
II.

DISCUSSION
1. Ms. Lugo’s Motion for Reconsideration

Ms. Lugo moves to “vacate or annul a judgment from the hearing of the
motion to compel” under “Rule 59 (e) AL, Civil Procedure.” (Doc. 86 at 1)
(emphasis omitted). The court construes this as a motion for reconsideration under
Federal Rule of Civil Procedure 59(e). See Green v. Drug Enf’t Admin., 606 F.3d
1296, 1299 (11th Cir. 2010) (noting that motions to reconsider are treated as Rule
59 motions regardless of their label); see also Erickson v. Pardus, 551 U.S. 89, 94
(2007). “The only grounds for granting a Rule 59 motion are newly-discovered
evidence or manifest errors of law or fact.” MacPhee v. MiMedx Grp., Inc., 73 F.4th
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1220, 1250 (11th Cir. 2023) (quotation marks omitted; alterations accepted). A party
cannot use a motion for reconsideration to relitigate old matters or present argument
or evidence they could have raised before the entry of the order. See id.
The portions of Ms. Lugo’s motion for reconsideration that focus on the
depositions of Ms. Smith and Mr. Ridgeway repeat all the arguments she made in
her prior filings. (Compare doc. 86, with doc. 69). Although her motion contains
additional facts about the circumstances surrounding both depositions, none of those
facts are material, newly discovered, or demonstrate that this court made a manifest
error of law or fact in denying her motion to compel. (See doc. 86 at 4–6); MacPhee,
73 F.4th at 1250. Instead, the motion rehashes the events surrounding the
depositions, recounts 1 the arguments at both hearings, and asks for reconsideration.
(See doc. 86).

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Ms. Lugo mischaracterizes three exchanges from the two hearings on the motion to
compel. First, in her motion for reconsideration, Ms. Lugo represents that the court told
Mr. Donahue at the first hearing: “you just lied to [the court].” (Doc. 86 at 3). The court did not
say that. (See, e.g., doc. 101 at 11–14). Indeed, at the second day of the hearing, Ms. Lugo
recounted the same conversation and said: “I remember [the court] said, You are a big liar,
Mr. Donahue.” (Doc. 102 at 21). The court told Ms. Lugo that was not true. (Id.). Ms. Lugo
responded: “I apologize - - you lie or something.” (Id.). The court again told Ms. Lugo that was
not true. (Id.).
Second, Ms. Lugo represents in her motion for reconsideration that the court “called Pro
Sec a Big Lier.” (Doc. 86 at 5). The court did not say that. (Doc. 102 at 12). The court told
Ms. Lugo that she is “a very bad liar” based on the many inconsistencies in her statements to the
court. (Id.).
Third, Ms. Lugo suggests in her motion for reconsideration that the paralegal gave
untruthful testimony at the hearing. (See doc. 86 at 4). Specifically, she represents that the paralegal
denied telling Ms. Lugo that she did not have to file the subpoena in court or telling Ms. Lugo how

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The court denied Ms. Lugo’s motion to compel because she did not provide
grounds for relief. (See doc. 102 at 30). Although it was clear Ms. Lugo sought to
compel the depositions of Mr. Ridgeway and Ms. Smith, it was less clear which
party Ms. Lugo sought this court to compel. (See doc. 69). The court construed
Ms. Lugo’s motion to compel as compelling the witnesses themselves to be deposed.
(See doc. 101 at 3–4). Transit Authority, however, construed the motion as seeking
to compel Transit Authority to provide the witnesses to be deposed. (See doc. 71).
At the hearing, Ms. Lugo acknowledged Transit Authority did not have authority
over the witnesses (doc. 101 at 3), but argued that Transit Authority’s counsel’s
efforts to obstruct her attempts to depose these witnesses warranted the court’s
intervention (see id. at 24–26). Not only did the court find that Transit Authority did
not obstruct her attempts to depose the witnesses (see doc. 102 at 25–26), but absent
proper service of a subpoena, this court did not otherwise have the authority under
the Federal Rules of Civil Procedure to order the witnesses to sit for a deposition,
see Fed. R. Civ. P. 37, 45; see also Holloman v. Mail-Well Corp., 443 F.3d 832,
843–44 (11th Cir. 2006). Thus, to the extent Ms. Lugo wanted the court to order

to depose a witness by certified mail. (Id. at 3–4). Although the parties dispute whether Ms. Lugo
asked about filing a subpoena or deposition transcript (Ms. Lugo states she asked about a
subpoena; the paralegal testified she asked about a deposition transcript) (see doc. 101 at 31; doc.
102 at 17), the paralegal confirmed that she told Ms. Lugo she did not have to file discovery with
the court and told her how to serve a subpoena by certified mail (doc. 102 at 17).

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Transit Authority to secure the witnesses’ attendance, the court declined to do so.
(See doc. 102 at 30–31). With respect to each witness the court found:
a. Justin Ridgeway
Ms. Lugo sent Mr. Ridgeway a subpoena and a notice of deposition by
certified mail. (Doc. 73 ¶¶ 1–2; see doc. 76-1 at 8–9; doc. 86-3 at 1). Ms. Lugo did
not serve Mr. Ridgeway in accordance with the Federal Rules of Civil Procedure
and Mr. Ridgeway did not appear on the appointed date. Ms. Lugo argued she failed
to serve Mr. Ridgeway properly because she relied on advice she received from
Transit Authority’s counsel’s office.2 (Doc. 102 at 9). That advice was to get a
subpoena from the court’s website and serve it by process server or certified mail.
(Id.).
The advice was made in good faith but was incorrect under the Federal Rules
of Civil Procedure. See Fed. R. Civ. P. 45. But the value of the advice is beside the
point: Ms. Lugo did not properly serve the subpoena. (See doc. 102 at 25–26). Thus,
even if the court had the authority to compel Mr. Ridgeway’s deposition, there was
no evidence warranting the court’s intervention. Accordingly, the court denied
Ms. Lugo’s motion to compel Mr. Ridgeway’s deposition. (Doc. 102 at 30–31; see
doc. 69).
2

It is undisputed that defense counsel graciously assisted Ms. Lugo by, among other things,
providing last known addresses, the legal distinction between current and former employees, and
other procedural issues. (Doc. 101 at 8, 14, 17, 24; doc. 102 at 16–23).

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b. Bracie Smith
Ms. Lugo also wished to depose Bracie Smith. (See doc. 69). Ms. Lugo called
Ms. Smith to ask if she was available to be deposed and Ms. Smith told Ms. Lugo to
call her back on August 7th to schedule a day for the deposition. (See doc. 73 ¶ 3).
When Ms. Lugo called Ms. Smith on August 7th, Ms. Smith did not answer. (Doc.
102 at 20; see doc. 72 ¶ 3).
When Ms. Lugo did not hear from Ms. Smith, she called Donahue &
Associates and told the paralegal that Ms. Smith was not answering her calls and
emailed Mr. Donahue to tell him she could not get a hold of Ms. Smith. (Doc. 102
at 19–20; doc. 86-2 at 5–6). The paralegal told Ms. Lugo she could subpoena any
witness who Transit Authority no longer employed; she also informed Ms. Lugo that
she did not have a current address for Ms. Smith. (See doc. 102 at 19–20).
Ms. Smith later called Donahue & Associates to complain “that Ms. Lugo was
calling her at work and harassing her and that she was going [to] block her and that
she didn’t want to sit for the deposition.”3 (Doc. 102 at 19). Mr. Donahue then
responded to Ms. Lugo’s email informing her that Ms. Smith did not want to give
her deposition. (Doc. 86-2 at 5–6). Ms. Lugo never sent Ms. Smith a subpoena.

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At the hearing, Ms. Lugo represented to the court that she called Ms. Smith only once on
August 7th. (Doc. 102 at 20). The phone records she submitted to the court, however, show she
called Ms. Smith twice and sent her a text message on that day. (Doc. 86-5 at 6; doc. 86-6). Those
phone records also show that on August 2nd—the day Ms. Smith told Ms. Lugo she would sit for
a deposition—Ms. Lugo called her four times within thirty minutes. (Doc. 86-5 at 4).

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In her motion to compel, Ms. Lugo asserts that Ms. Smith refused to be
deposed after many attempts to schedule the deposition. (Doc. 69). At the hearing,
Ms. Lugo agreed that it was her sole obligation to subpoena Ms. Smith because she
was no longer an employee of Transit Authority. (Doc. 102 at 23–24). It is
undisputed that Ms. Lugo did not attempt to subpoena Ms. Smith for a deposition
and there is no basis to believe Ms. Smith’s decision not to voluntarily submit to a
deposition was the result of obstructive efforts by Transit Authority’s counsel. (See
doc. 101 at 6–7). Consequently, as stated at the hearing, there is no proper basis for
Ms. Lugo’s motion to compel. (See doc. 102 at 25).
Accordingly, the court DENIES Ms. Lugo’s motion for reconsideration of the
court’s order denying her motion to compel. (Doc. 86).
Ms. Lugo’s motion, liberally construed, also seeks reconsideration of a
sanctions order Ms. Lugo believes this court imposed at the hearing. (See doc. 86 at
5). Ms. Lugo has appealed this “sanction judgment” to the Eleventh Circuit. (Doc.
95). But this court never sanctioned Ms. Lugo. (See doc. 102 at 34). Because
Ms. Lugo had repeatedly interrupted the court during both hearing days (see, e.g.,
doc. 102 at 33; doc. 101 at 27) and because the court had doubts about the credibility
of Ms. Lugo’s statements at both hearings (see doc. 102 at 33), the court warned
Ms. Lugo at the end of the second hearing that Ms. Lugo was “perilously close” to
being sanctioned (doc. 102 at 34). The court adjourned the hearing immediately after
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that warning and imposed no sanctions. (Id.). Therefore, the court DENIES AS
MOOT Ms. Lugo’s motion for reconsideration of the sanctions order. (Doc. 86).
2. Transit Authority’s Motion for Sanctions
In its response to Ms. Lugo’s motion for reconsideration, the Transit
Authority seeks an order sanctioning Ms. Lugo for her conduct in discovery. (Doc.
87 ¶¶ 9–10). Specifically, Transit Authority seeks an order striking her motion for
reconsideration and for reasonable attorney and paralegal fees for the time spent (1)
opposing the motion to compel, (2) preparing for and attending Mr. Ridgeway’s
deposition, (3) preparing for and attending both hearings on the motion to compel,
and (4) responding to Ms. Lugo’s motion for reconsideration. (Id. ¶ 10).
As is relevant here, a sanction under Federal Rule of Civil Procedure 11 is
appropriate when a party files a pleading that has no factual basis or files a pleading
in bad faith for an improper purpose. Massengale v. Ray, 267 F.3d 1298, 1301 (11th
Cir. 2001). But the party seeking sanctions must file a motion for sanctions
“separately from any other motion.” Fed. R. Civ. P. 11(c)(2). Even if Transit
Authority had filed its motion for sanctions separately, the court would deny the
motion. Although the court found Ms. Lugo’s failure to attend Mr. Ridgeway’s
deposition (see doc. 101 at 21–24), and her conduct during both hearings, to be
inappropriate (see, e.g., doc. 102 at 12, 33 doc. 101 at 27), the court does not believe
it rises to the level of sanctionable conduct, see Massengale, 267 F.3d at 1301.
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Accordingly, the court DENIES Transit Authority’s motion for sanctions.
(Doc. 87).
III.

CONCLUSION

For the reasons articulated from the bench and as further explained by this
memorandum opinion and order, Ms. Lugo’s motion to compel is DENIED. (Doc.
69). Her motion for reconsideration is DENIED. (Doc. 86). The Transit Authority’s
motion for sanctions is DENIED. (Doc. 87).
DONE and ORDERED this February 6, 2024.

_________________________________
ANNEMARIE CARNEY AXON
UNITED STATES DISTRICT JUDGE

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