Kiddie v. Copeland et al
Filing
125
OPINION AND ORDER denying 100 Motion for Summary Judgment; denying 104 Motion to Either Declare Trust Invalid or Responsible for Decedent's Personal Debts; denying 104 Motion to Stay; denying 109 Motion for Extension of Time to File Response/Reply to Show Cause deadline May 9, 2016; granting 121 Motion to Amend/Correct; granting 122 Motion for Disclosure; granting 122 Motion for Extension of Time to Complete Discovery; granting 123 Motion for Discovery. Plaintiff is directed to immediately file her amended complaint. An amended scheduling order will be entered rescheduling the jury trial. Kerry Chism is ordered to show cause by May 9, 2016. Signed by Honorable P. K. Holmes, III on April 27, 2016. (jas) Modified text on 4/27/2016 (jas).
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
CHERIESE KIDDIE
v.
PLAINTIFF
No. 3:13-CV-03030
JOHNNIE COPELAND; FRANCIE A. KIDDIE;
KIPP WOODBURY; and MERIDEE KAISER
DEFENDANTS
OPINION AND ORDER
Currently before the Court and ripe for consideration are a second motion for summary
judgment by Defendants Johnnie Copeland, Francie A. Kiddie, and Kipp Woodbury (“the
represented Defendants”) (Doc. 100); Plaintiff Cheriese Kiddie’s pro se1 motion “to either declare
trust invalid or responsible for decedent’s personal debts or else to stay proceeding while estate is
either probated or administered” (Doc. 104); Plaintiff’s pro se motion to strike (Doc. 109); Plaintiff’s
motion to amend complaint (Doc. 121); Plaintiff’s motion for issuance of subpoenas and for
continuance (Doc. 122); Plaintiff’s third motion to compel (Doc. 123); and Plaintiff’s application
to adjourn trial date (Doc. 124). The Court will address each motion in turn.
I.
The represented Defendants’ second motion for summary judgment (Doc. 100)
The represented Defendants filed their second motion for summary judgment on November
3, 2015. Counsel for those Defendants, Kerry Chism, failed to serve the motion on either Plaintiff
or pro se Defendant Meridee Kaiser, despite the Court’s prior admonition and clear directives to
ensure appropriate service of all documents to Plaintiff. (Doc. 65, p. 3 (“Mr. Chism is cautioned .
1
Attorney Bradley Davis entered his appearance on behalf of Plaintiff on January 19,
2016. In that same filing, Mr. Davis advised that Plaintiff wanted her then-pending pro se
motions to remain pending for the Court’s consideration.
Page 1 of 9
. . to ensure that all future filings are properly and timely served.”)); (Doc. 72, pp. 1-2 (“The Court
will therefore order and direct that all Defendants serve Ms. Kiddie with any and all documents filed
in this case by sending Ms. Kiddie a pdf file of the document via email to cheriese3@yahoo.com.”)).
The Court could have denied the motion on this basis alone, but instead allowed Plaintiff time to
respond to the motion after having been apprised of its existence. (Doc. 114). The represented
Defendants did not file a reply. Having reviewed the motion, supporting documents, and Plaintiff’s
response and supporting documents, the Court finds that the motion suffers from fatal deficiencies
requiring its denial.
First, the motion is, at most, a motion for partial summary judgment, as it contains argument
only as to Plaintiff’s claims that the November 23, 2010 Trust document at issue in this case and/or
the December amendment thereto are invalid for any number of reasons. The represented
Defendants’ argument that summary judgment is appropriate on this issue rests on supporting
affidavits of lay persons who state no opinion that would be determinative of whether George
Woodbury was competent to sign the documents at issue or was acting under duress at the time.
Furthermore, many of the affidavits are signed by interested parties whose credibility could certainly
be questioned and whose statements are in direct conflict with those of Plaintiff.2 In any event,
Defendants have not established the absence of a genuine issue of material fact as to the validity of
either the November 2010 Trust or its December amendments, and summary judgment as to the
2
The Court also has some doubts as to the technical validity of certain affidavits. As
pointed out by Plaintiff’s counsel, the affidavits were notarized by defense counsel in Arkansas,
including that of Defendant Frances Kiddie, who resides in California. The implication that
Frances Kiddie signed her affidavit in Arkansas where it was witnessed by Mr. Chism is
questionable. The represented Defendants did not file a reply in support of their motion and
therefore did not respond to any of the issues raised in Plaintiff’s response.
Page 2 of 9
validity of those documents is therefore improper at this time.
Second, because the represented Defendants have still failed to fully comply with Plaintiff’s
discovery requests, discovery in this matter is ongoing. The represented Defendants’ motion is
therefore premature and is alternatively denied pursuant to Federal Rule of Civil Procedure 56(d).
II.
Plaintiff Cheriese Kiddie’s pro se motion “to either declare trust invalid or responsible
for decedent’s personal debts or else to stay proceeding while estate is either probated
or administered” (Doc. 104)
In this motion, Plaintiff seeks to have the Court “either: A: Declare that the George B.
Woodbury Trust of November 23, 2010, either is invalid, or is liable for the personal debt of George
B. Woodbury to Plaintiff; or B. Stay this proceeding pending the appointment of an Administrator
or Executor of the Estate of George B. Woodbury.” (Doc. 104, p. 1). In essence, Plaintiff seeks a
judgment as a matter of law of certain claims that she has propounded (the invalidity of the
November 23, 2010, trust) and/or findings that would require the Court to make legal conclusions
on issues that have not been adequately briefed at this point (whether the existing trust, if valid,
should be liable to Plaintiff for alleged personal debts owed to her by George B. Woodbury; and, if
not, whether Mr. Woodbury’s estate should be probated). Because Ms. Kiddie’s motion is akin to
a motion for partial summary judgment, and because the Court finds that there are issues of material
fact remaining to be adjudicated as to the claims raised in Ms. Kiddie’s motion, the Court finds that
the motion should be DENIED. The denial, however, will be without prejudice to Ms. Kiddie’s
ability to refile a motion for summary judgment on any or all of her claims.
III.
Plaintiff’s pro se motion to strike (Doc. 109)
Plaintiff moves the Court to strike the represented Defendants’ response to her motion to
declare trust invalid, arguing that she was never served with the response. The Court has already
Page 3 of 9
noted Mr. Chism’s failure to properly serve Plaintiff with documents in this case, and Mr. Chism
will be ordered to show cause as to why he should not be sanctioned for his failures to serve Plaintiff
as directed and required. Furthermore, the represented Defendants’ response to Plaintiff’s motion
was entirely unhelpful, as it was filled with conclusory denials with no accompanying explanation,
analysis, or factual support. However, striking the filing is not an appropriate remedy. Federal Rule
of Civil Procedure 12(f) provides that “[t]he court may strike from a pleading an insufficient defense
or any redundant, immaterial, impertinent, or scandalous matter.” The represented Defendants’
response to Plaintiff’s motion is not a pleading, and striking the filing is therefore not procedurally
appropriate. Instead, the Court simply did not consider the response to the extent that the
information or statements contained therein were unsupported. Mr. Chism is directed to ensure that
future responses to motions must be supported, legally and factually, in order to be considered by
the Court. Plaintiff’s motion to strike, however, is DENIED.
In the alternative, Plaintiff requested an opportunity to file a reply to the represented
Defendants’ response. The Court notes that Plaintiff subsequently filed a reply (Doc. 111) which
was considered by the Court.
IV.
Plaintiff’s motion to amend complaint (Doc. 121)
Plaintiff filed this motion on March 8, 2016. No response has been filed by Defendants.
Federal Rule of Civil Procedure 15(a)(2) allows for a party to seek leave of Court to amend a
complaint, and that “[t]he court should freely give leave when justice so requires.” Having
considered the circumstances of this case and the pending motions, the Court finds that Plaintiff’s
motion to amend her complaint should be GRANTED.
V.
Plaintiff’s motion for issuance of subpoenas and for continuance (Doc. 122)
Page 4 of 9
Plaintiff requests issuance of subpoenas for George B. Woodbury’s medical records as well
as for the files of Mr. Woodbury’s former attorney, Frederick Spencer. Defendants have not filed
any response in opposition to the issuance of the subpoenas, and the issuance of subpoenas in this
matter is otherwise appropriate pursuant to Federal Rule of Civil Procedure 45(a)(3). The motion
for issuance of subpoenas will therefore be GRANTED.
Because of outstanding discovery and other issues, the Court finds that Plaintiff has also
shown good cause to continue the currently trial setting and attendant deadlines. Plaintiff’s motion
for continuance will therefore also be GRANTED, and an amended scheduling order will be entered.
Additionally, if any Defendant—or defense counsel—has any of the documents requested
by the subpoenas currently in his or her possession, he or she is ORDERED to immediately produce
it to Plaintiff’s counsel or risk future sanction.
VI.
Plaintiff’s third motion to compel (Doc. 123)
Plaintiff moves the Court to compel the represented Defendants to produce requested
documents; to impose sanctions for failure to comply with prior document demands; and for
appropriate relief regarding documents improperly taken from Plaintiff’s private records. Defendants
have not filed a response.
Many of the requested documents have been outstanding for over a year and were the subject
of a previous motion to compel filed by Plaintiff on July 20, 2015 (Doc. 75). In response to that
motion, the represented Defendants stated that Defendant Johnnie Copeland was attempting to secure
certain information requested by Plaintiff in March of 2015 but had been unable to do so as of the
time of the filing of that response on August 10, 2015 (Doc. 85). On September 22, 2015, the Court
held a hearing at which it addressed, in part, Plaintiff’s motion to compel. Defense counsel
Page 5 of 9
represented at the hearing that Plaintiff had just recently (i.e. a few days before the hearing as well
as the morning of the hearing) been provided with additional documents responsive to her requests.
Defense counsel represented that he believed the responses were complete and that no action on the
motion to compel was therefore necessary. (Doc. 99, pp. 1-2). The Court therefore denied Plaintiff’s
motion to compel as moot without prejudice to Plaintiff being able to renew her motion after having
an opportunity to review the documents produced by Defendants. Id. at p. 2. It now appears that,
despite defense counsel’s representations at the hearing, and despite admonitions by the Court to
cooperate with discovery, Defendants have still failed to produce documents requested by Plaintiff.
The represented Defendants have failed to respond to the current motion to compel to give any
explanation for their continued recalcitrance. Plaintiff’s motion to compel will therefore be
GRANTED in full.
Plaintiff’s motion also identifies other requests for production made by Plaintiff’s counsel
after he entered his appearance, with many of those requests being necessitated by information and
disclosures only recently received from Defendants or defense counsel. Plaintiff’s counsel requested
production of numerous documents in early March of this year (Doc. 123-2), to include some
documents that had been previously requested by Plaintiff but not received. Despite counsel’s
request, the documents have yet to be produced. In addition to again directing the represented
Defendants to produce documents previously requested by Plaintiff, the represented Defendants will
also be directed to produce all documents requested by Plaintiff’s counsel in March of this year.
Absent certain exceptions, after granting a motion to compel, “the court must, after giving
an opportunity to be heard, require the party . . . whose conduct necessitated the motion, the party
or attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred in
Page 6 of 9
making the motion, including attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(A). Plaintiff is directed to
file an affidavit documenting her expenses and fees incurred in bringing the instant motion by May
9, 2016. The represented Defendants and defense counsel will be given 7 days after any affidavit
is filed to file any objections.
Furthermore, defense counsel and the represented Defendants are advised that failure to
produce the requested documents by the deadline set by the Court will result in the imposition of
sanctions pursuant to Federal Rule of Civil Procedure 37(b)(2)(A), which may include allowing an
adverse inference, rendering a default judgment against the represented Defendants, or holding
defense counsel or any non-compliant Defendant in contempt of Court.
Plaintiff’s motion also raises concerns about certain documents listed by the represented
Defendants in their pre-trial disclosure sheet (Doc. 115) that appear to be Plaintiff’s private records,
including Plaintiff’s checking account records for 2006 and 2007 and Plaintiff’s income tax records
for 2001-2007. Plaintiff avers that she never gave any Defendant or defense counsel authority to
obtain these records and that, furthermore, a state-court judge ordered Ms. Copeland to return
Plaintiff’s private records to her. Defense counsel will therefore be ordered to file a sworn affidavit
enumerating any private records of Plaintiff’s he or the Defendants he represents have in their
possession or control and explaining how each record came into his possession. After the Court has
an opportunity to review this affidavit, it will determine whether to order return of the records to
Plaintiff as well as what other sanctions might be appropriate.
VII.
Conclusion
For the reasons set forth above IT IS ORDERED that Defendants’ second motion for
summary judgment (Doc. 100) is DENIED.
Page 7 of 9
IT IS FURTHER ORDERED that Plaintiff’s motion “to either declare trust invalid or
responsible for decedent’s personal debts or else to stay proceeding while estate is either probated
or administered” (Doc. 104) is DENIED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Plaintiff’s motion to strike (Doc. 109) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s motion to amend complaint (Doc. 121) is
GRANTED. Plaintiff is directed to immediately file her amended complaint. Defendants will have
ten days thereafter to respond.
IT IS FURTHER ORDERED that Plaintiff’s motion for issuance of subpoenas and for
continuance (Doc. 122) is GRANTED. The Clerk is directed to issue the subpoenas attached as
exhibits 4-7 to Plaintiff’s motion (Doc. 122). An amended scheduling order will be entered setting
a new date for trial and attendant deadlines. The entry of an amended scheduling order will also
resolve Plaintiff’s application to adjourn the trial date (Doc. 124).
IT IS FURTHER ORDERED that Plaintiff’s third motion to compel (Doc. 123) is
GRANTED. The represented Defendants are ORDERED to produce to Plaintiff’s counsel ALL
documents set out in Document 123-4 by no later than May 17, 2016.3 Plaintiff is directed to file
an affidavit setting out her expenses and costs incurred in bringing the motion by May 9, 2016. The
represented Defendants will have 7 days after the filing of an affidavit to file any objections.
3
Defendants are strongly encouraged to produce documents prior to this date. The Court
sets this date as the deadline, however, as it understands that Plaintiff’s counsel will be present in
Mountain Home the week of May 16, and his presence may facilitate the production of
documents.
Page 8 of 9
IT IS FURTHER ORDERED that Mr. Chism file an affidavit by May 9, 2016, enumerating
any private records of Plaintiff’s he or the Defendants he represents have in their possession or
control and explaining how each record came into his possession.
IT IS FURTHER ORDERED that Mr. Chism show cause, by May 9, 2016, as to why he
should not be sanctioned pursuant to Federal Rule of Civil Procedure 16(f)(C) for failing, on
numerous occasions, to follow this Court’s orders regarding ensuring service of all filings on
Plaintiff. Failure to ensure proper and timely service of documents, as well as to generally cooperate
in litigation of this case (despite various prompts by the Court), has caused this case to be unduly
delayed and has resulted in the unnecessary expenditure of time and resources of both the parties and
the Court. Sanctions that may be imposed by the Court are enumerated in Federal Rule of Civil
Procedure 37(b)(2)(A)(ii)-(vii).
IT IS SO ORDERED this 27th day of April, 2016.
/s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE
Page 9 of 9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?