Duffy v. Kent County Incorporated

Filing 186

MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 5/31/2011. (lid)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MICHAEL DUFFY,
Plaintiff,

v.
KENT COUNTY LEVY COURT,
Defendant.

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) Civ. No. 09-198-SLR
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Michael Duffy, Pro Se Plaintiff. Clayton, Delaware.
Chad J. Toms, Esquire, Whiteford. Taylor & Preston, LLC., Wilmington, Delaware.
Counsel for Defendant.
Ralph K. Durstein, III. Deputy Attorney General, Delaware Department of Justice,
Wilmington, Delaware. Counsel for movants John Noble and Julie Kelley.
Michael F. Costello, Pro Se Movant. Dover. Delaware.

MEMORANDUM OPINION

Dated: Mayj\ .2011
Wilmington, Delaware

R~~dge
I. INTRODUCTION
Plaintiff Michael Duffy ("plaintiff"), who proceeds pro se, filed this complaint
alleging violations of the Americans with Disabilities Act ("ADA). (0.1. 2, 25) Presently
before the court are several motions filed by the parties and non-party movants. (0.1.

87,89,100,101,108,111,113,119,126,135,141,144, 146, 147, 154, 158, 162, 163,
176) For the reasons set forth below, the court will deny plaintiff's motions; deny
defendant's motions; grant movants Noble's and Kelley's motion to quash; and deny
movant Costello's motion to quash and motions for protective orders. (0.1. 87, 89, 100,

101,108,111,113,119,126,135,141,144,146,147,154, 158, 162, 163, 176)
II. BACKGROUND
Plaintiff filed his complaint on March 26, 2009, and an amendment on
September 9,2009. (0.1. 2, 25) The original complaint, filed pursuant to 28 C.F.R.
Parts 36, 204, 305, 501, alleges disability discrimination and seeks enforcement of Title
II of the Americans with Disabilities Act ("ADA"). Plaintiff alleges that he has
Parkinson's disease and is considered severely disabled at both the state and federal
level. Plaintiff's disability affects his ability to communicate as his speech is unclear,
he types slowly, and his handwriting varies in quality. Plaintiff must ask many questions
and needs time to think.
A flood displaced plaintiff from his family cottage. On October 4, 2008, he filed a
request for an ADA accommodation after unsuccessful attempts, beginning in July

2008, to obtain permits to return to his home and to continue storm recovery, but he
received no formal reply or accommodation. Instead, defendant Kent County Levy

Court ("Levy Court") retaliated against him for making remarks in support of his
community. Plaintiff alleges that the retaliation continues. For example, plaintiff alleges
that the Levy Court refused to sign for dumpster services for storm debris that had
previously been allowed by able bodied and affluent community citizens. Plaintiff
alleges "by discriminatory actions the defendant has not allowed those with neurological
disabilities back onto their property or to obtain permits." He alleges several cottages
that were condemned due to flooding had their issues resolved, with the exception of
families with neurological disabilities. (0.1.2)
In addition, plaintiff alleges that he received a demolition permit but removal of
vital infrastructure and denial of access to the grounds made the permit moot and that
the Levy Court denied other permits plaintiff sought. Additionally, plaintiff takes
exception to the numerous requirements for reparation of condemned property. He
alleges that others with condemned cottages were given more time to demolish with no
required permit prerequisites. Plaintiff alleges that the Levy Court continues to refuse
an ADA accommodation. In addition, he alleges he is being punished for political
reasons. (0.1. 25)
The discovery deadline expired on March 28, 2011, and motions for summary
judgment were to be filed no later than April 28, 2011, with responses due by May 31,

2011, and replies du'e by June 14, 2011. (0.1. 91)
III. MOTION TO AMEND
Plaintiff moves to amend the complaint to add a claim that defendant is violating
his basic civil rights as well as those of other displaced individuals. (0.1. 87) Plaintiff
refers to liens placed upon his property and the taking of property without equal
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protection. Defendant moves to strike the motion. (D.1. 89) The court denied a
previous motion to amend (D.I. 55) on September 27,2010. 1 (See D.1. 90,91)
The court notes that plaintiff recently filed a new complaint, Civ. No. 11-013-SLR,
that contains same or similar allegations as the proposed amendment against the
original defendants in this action. Accordingly, the court will deny the motion to amend
and will deny as moot the motion to strike. (D.1. 87, 89)

IV. MOTION FOR RECONSIDERATION
On October 25, 2010, plaintiff filed a response to the court's September 23, 2010
memorandum opinion and order wherein he seeks various relief including correction of
the record. (D.1. 91, 92,101). The court construes the response as a motion for
reconsideration.
The purpose of a motion for reconsideration is to "correct manifest errors of law
or fact or to present newly discovered evidence." Max's Seafood Cafe ex reI. Lou-Ann,

Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). itA proper Rule 59(e) motion ...
must rely on one ofthree grounds: (1) an intervening change in controlling law; (2) the
availability of new evidence; or (3) the need to correct a clear error of law or fact or to
prevent manifest injustice. Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010)
(citing N. River Ins. CO.

V.

C/GNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995».

Plaintiff has failed to demonstrate any of the aforementioned grounds to warrant
a reconsideration of the court's September 23, 2010 memorandum order. Therefore,
the court will deny the motion for reconsideration. (D .1. 101)

1The same memorandum opinion and order dismissed all claims against P.
Brooks Banta.
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v.

MOTIONS TO QUASH

Plaintiff and non-parties move to quash subpoenas. (0.1. 100, 108, 144, 146)
Plaintiff objects to defendant's attempt to subpoena his medical records and opposes a
blanket release of his medical records. He also moves to quash a subpoena to depose
his minister. 2 (0.1. 100, 108) Movants, the Honorable John Noble ("Noble"), Julie
Kelley ("Kelley"), and Michael F. Costello ("Costello"), filed motions to quash subpoenas
issued at the request of plaintiff. (0.1. 144, 146)
Rule 45 provides that a subpoena must provide a specified time and place to
attend and testify. Fed. R. Civ. P. 45 (a)(1 )(A)(iii). In addition, Rule 45 provides that the
subpoena may be served by any person who is not a party. Fed. R. Civ. P. (b){1). Rule
45 requires that the subpoena be delivered to the person named in the subpoena. Id.
Finally, if the subpoena requires attendance, Rule 45 requires tendering fees for
attendance and mileage. Id. The district court has discretion whether to quash or
modify a subpoena. Wedgewood Viii. Pharmacy, Inc. v. United States, 421 F.3d 263,
268 n.5 (3d Cir. 2005); Connaught Laboratories, Inc. v. SmithKline Beecham P.L.C., 7
F. Supp. 2d 477,480 (D. Del. 1998).

A. Medical Records
Plaintiff's motions do not include copies of the subpoenas at issue or a copy of
the proposed medical release. Plaintiff claims a disability pursuant to the Americans
with Disabilities Act. At the time the motion was filed, plaintiff refused to sign a medical
release. (D.!. 110) Later filings by plaintiff indicate that he has signed "many medical

2Docket item 100 is incorrectly docketed as a motion for reconsideration.

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releases." (D.1. 133) Regardless, plaintiff's medical condition is relevant and defendant
may pursue that line of discovery. Therefore, the motions are denied. (D.I. 100, 108)
B. Deposition of Minister
Plaintiff also moves to quash a subpoena for deposition directed to his minister,
David P. Humphrey ("Humphrey"). (D.1. 108) The subpoena directs Humphrey to "bring
... his entire file pertaining to Michael Art Duffy, ... including ... records pertaining to
this litigation or real property owned by Michael Duffy." (D.1. 110, ex. A) Defense
counsel requested Humphrey to submit to a deposition regarding his "knowledge and
involvement in this litigation," and Humphrey agreed to the deposition. (D.1. 110)
Plaintiff contends that all his minister's knowledge is confidential and privileged in
nature, as are documents in his possession and, therefore, his testimony will not lead to
the discovery of admissible evidence. Plaintiff, however, announces his plans to call
Humphrey as an expert witness in disaster recovery due to his volunteer work.
While a motion to quash or modify a subpoena, in general, must be brought by
the individual to whom it was directed, there is an exception that provides a party
standing to an action to quash or modify a non-party subpoena when the party seeking
to quash or modify the subpoena claims a privilege or privacy interest in the
subpoenaed information. See Thomas v. Marina Associates, 202 F.R.D. 433, 434-435
(E.D. Pa. 2001). Here, plaintiff assert a clergy-communicant privilege.
The clergy-communicant privilege protects communications to a member of the
clergy, in his or her spiritual or professional capacity, by persons who seek spiritual
counseling and who reasonably expect that their words will be kept in confidence. In re

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Grand Jury Investigation, 918 F.2d 374, 377 (3d Cir. 1990). The presence of third
parties, if essential to and in furtherance of the communication, does not vitiate the
clergy-communicant privilege. Id.
The discovery sought from Humphrey does not appear to be protected by the
clergy-communicant privilege. Instead, because Humphrey has assisted plaintiff with
his legal claims, defendant seeks discovery from Humphrey as a person with
knowledge of plaintiffs claim. Should questions be asked of Humphrey that seek such
privileged information, at that time, a clergy-communicant privilege may be asserted.
For the above reasons, the court will deny plaintiffs motion to quash the
subpoena issued to Humphrey. (0.1. 108) The court will also deny defendant's
request for oral argument. (0.1. 111)

C. Non-Parties' Motions to Quash Subpoenas
1. Noble and Kelley
Noble and Kelley move to quash a subpoena issued at the request of plaintiff.

(0.1. 144) Movants argue that plaintiff failed to comply with the requisites of Fed. R.
Civ. P. 45, the subpoena seeks the disclosure of privileged or protected material, and is
unduly burdensome.
Having examined the subpoena directed to Noble and Kelley, the court finds it
facially defective for a number of reasons. A joint subpoena for Noble and Kelley was
left with the Register in Chancery at the Kent County Courthouse in Dover, Delaware.
The proof of service is signed by plaintiff, but Rule 45 does not allow him to serve the
subpoena. The subpoena seeks the testimony for "expert at law as to case 4281-VCN

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and unnumbered complaint of 2010." The subpoena states that "the deposition will be
recorded by this method: written questions and a digital voice recording." The
subpoena, however, does not provide for the place, date or time of the deposition. Nor
did it include witness fees and mileage as required by Rule 45.
Noble and Kelley state that they were not personally served with the subpoena,
and the proof of service indicates that the subpoena was delivered to the Register in
Chancery. A majority of courts have held that Rule 45 requires personal service of
subpoenas. FTC v. Compagnie De Saint-Gobain-Pont-A-Mousson, 636 F.2d 1300,
1312-1313 (D.C. Cir. 1980) (holding that rule does not permit any form of mail service
and that compulsory process may be served upon an unwilling witness only in person);

In re Johnson & Johnson, 59 F.RD. 174, 177 (D. Del. 1973) (determining that personal
service of individuals is required); In re Smith, 126 F.RD. 461,462 (E.D.N.Y. 1989)
(holding that district court lacked discretion under rule to permit alternative service);

New Jersey Bldg. Laborers' Statewide Benefit Funds v. Gen. Civil Corp., Civ. No. 086056JEI/AMD, 2009 WL 2778313, at *2 (D.N.J. Sept. 1, 2009) (Fed. R Civ. P. 45(b}(1)
mandates that "[s]erving a subpoena requires delivering a copy to the named person");

Whitmer v. Lavida Charter, Inc., Civ. No. 91-0607, 1991 WL 256885 (E.D. Pa. Nov. 26,
1991) ("Personal service is required. Unlike service of a summons and complaint, it is
not sufficient to leave a copy of the subpoena at the dwelling place of the witness.")
Finally, this case revolves around violations of the Americans with Disabilities
Act, but the subpoena directed to Noble and Kelley concerns cases filed in Delaware
state court and, it appears, Noble's testimony regarding his findings in those cases.
Noble, a judicial officer, is exempt from testimony as to said matters based upon
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common law immunity. See Brawerv. Horowitz, 535 F.2d 830 (3d Cir.1976) (quoting
Veeder, Absolute Immunity in Defamation: Judicial Proceedings, 9 Colum. l. Rev. 463,
474 (1909» ("Neither party, witness, counsel, jury, nor judge can be put to answer,
civilly or criminally for words spoken in office."). Said immunity is "practically the
universal rule in this country." Williams v. Hepting, 844 F.2d 138, 143 (3d Cir. 1988).
For the above reasons, the court finds that the motion to quash filed by Noble
and Kelley is well-founded. Therefore, the court will grant the motion to quash. (0.1.
144).

2. Costello

a. Subpoena
Michael F. Costello ("Costello") also moves to quash a subpoena issued at the
request of plaintiff. (0.1. 146) He also contends that plaintiff failed to comply with the
requisites of Fed. R. Civ. P. 45, and that the subpoena is unduly burdensome. Plaintiff
opposes the motion. (0.1. 157)
The subpoena appears to have been served by plaintiff on February 18, 2011
and is directed to the Kitts Hummock Improvement Association ("KHIA") in care of
Michael Costello. (0.1. 146, ex. A) The KHIA is a water system located in Kent County,
Delaware. https://drinkingwater.dhss.delaware.gov. The subpoena commands the
production of documents and inspection of premises.
Initially, the court notes that, as a non-attorney, Costello may represent himself
but, in federal court, he may not act as an attorney for other individuals or for an
association or corporation. Rowland v. California Men's Colony, 506 U.S. 194, 202

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(1993) (noting that the lower courts have uniformly held that 28 U.S.C.A. § 1654, which
provides that "parties may plead and conduct their own cases personally or by counsel,"
does not allow corporations, partnerships, or associations to appear in federal court
otherwise than through a licensed attorney). In addition, minutes dated February 21 ,
2011, and attached to plaintiffs opposition, refer to a subpoena received from plaintiff.
(D.1. 157, ex.) It is unknown if it is the same subpoena currently at issue. Nonetheless,
the minutes indicate that the KHIA Board will comply with the subpoena. The minutes
go on to state that the KHIA Board sought advice from an attorney and it was decided
to comply "although there were legal issues with the document." (Id.)
Inasmuch as Costello may not appear on behalf of the KHIA, the subpoena is
not directed to Costello, and KHIA minutes indicate its intent to comply with the
subpoena, the court will deny the motion to quash filed by Costello. (D.I. 146)

b. Motion for protective order
Costello also filed two motions for protection "seeking relief from harassment
aimed at [Costello], his neighbors, and community association" by plaintiff. (D.I. 147,
154) As noted above, Costello may not represent the KHIA. Nor may he, as a nonattorney, act as an attorney for other individuals. He may only represent himself in this
court. 28 U.S.C. § 1654; see also Osei-Afriye v. Medical Call. of Pennsylvania, 937
F.2d 876 (3d Cir. 1991) (non-lawyer appearing pro se may not act as attorney for his
children).
The first motion speaks to the subpoena previously discussed. Costello
complains that the subpoena contains an incorrect address for the KHIA and, instead,
uses the address of Costello's private residence. Costello indicates that plaintiff has
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been informed on numerous occasions of the correct address. He argues that the use
of his address imposes an undue burden in the form of harassment, stress, invasion of
privacy, and legal fees. (0.1. 147)
The second motion for protection asks for the court's assistance to stop plaintiff
from sending personal emails and entering Costello's private property. Costello asks
the court to issue an order directing plaintiff to cease any and all cornmunication with
him for any purpose. (0.1. 154)
Pursuant to Federal Rule of Civil Procedure 26(b)(3), the court may, on its own
initiative or pursuant to a motion for a protective order filed under Rule 26(c), limit
discovery if "(i) the discovery sought is unreasonably cumulative or duplicative, or is
obtainable from some other source that is more convenient, less burdensome, or less
expensive; (ii) the party seeking discovery has had ample opportunity by discovery in
the action to obtain the information sought; or (iii) the burden or expense of the
proposed discovery outweighs its likely benefit ... " Fed. Civ. P. 26(b)(3).
The court may, for good cause, issue a protective order that limits the scope of
the discovery sought against third parties. Royal Surplus Lines Ins. Co. v. Sofamor
Danek Group, 190 F.RO. 463, 467 (W.O. Tenn. 1999) ("[C]ourts have been inclined to
limit the scope of discovery directed to non-parties in order to protect the non-party from
harassment, inconvenience, or disclosure of confidential documents."); see also
Societe Nationale Industrielle Aerospatiale v. United States Dist. Ct. S. Dist. Iowa, 482
U.S. 522, 566 (1987) (explaining that under Rule 26, "[a] court may make any order
which justice requires to limit discovery, including an order permitting discovery only on

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specified terms and conditions, by a particular discovery method, or with limitation in
scope to certain matters").
As discussed above, the purpose of a protective order issued pursuant to Fed.

R. Civ. 26(c) is to limit discovery. Here, Costello seeks to limit plaintiffs conduct. The
court will deny the motions to the extent that Costello seeks a protective order on behalf
of someone other than himself. Similarly, the court will deny the motions to the extent
that Costello seeks a protective order with regard to the subpoena served upon the
KHIA.
For the above reasons, the court will deny the motions for protective orders.
(0.1. 147, 154) Plaintiff, however, is admonished to comply with the Federal Rules of
Civil Procedure when seeking discovery from non-parties. Plaintiff is directed to deal
with the KHIA at its proper address.
VI. MOTIONS TO COMPEL
Plaintiff has filed numerous motions to compel. (0.1. 113, 119, 126, 135, 141,
158, 163, 176)3 He contends that defendant is obstructing his ability to conduct
discovery and has not produced "functional discovery". He further contends that
defense tactics are retaliatory in nature, have caused loss of support from his
witnesses, and divided the community. In addition, plaintiff contends that defendant
has not provided him with medical records produced to it, subsequent to plaintiffs
signed release.

300cket item 126 is docketed as a motion to proceed with pretrial discovery. The
court construes the motion as a motion to compel. Docket item 149 also seeks to
compel discovery but is titled as a "legal memo - discovery."
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One motion to compel appears to take exception to the statement of Dr. Stanley
Fahn, which plaintiff considered "medical malpractice" and "not merited by the plaintiff."4
(D.I. 141) Another motion appears to seek help in obtaining discovery from witnesses.
(D.1. 163) Most of the motions are repetitive and seek the same or similar relief.
Without exception, they fail to identify with speci'ficity the discovery that allegedly was
not provided.
Pursuant to Fed. R. Civ. P. 26, "[p]arties may obtain discovery regarding any
non privileged matter that is relevant to any party's claim or defense--including the
existence, description, nature, custody, condition, and location of any documents or
other tangible things and the identity and location of persons who know of any
discoverable matter. For good cause, the court may order discovery of any matter
relevant to the subject matter involved in the action. Relevant information need not be
admissible at the trial if the discovery appears reasonably calculated to lead to the
discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1).
In addition to answering interrogatories, defendant has produced to plaintiff two
CDs of documents, totaling more than twelve hundred pages. Prior to production of the
documents, plaintiff reviewed the documents on August 25, 2010 but left after fifteen
minutes without requesting copies of any documents. The parties met on December 7,
2010, in an attempt to resolve their discovery disputes and the court has reviewed the

4The one page report states that plaintiff is "disabled by his condition from a
medical standpoint," but does not provides specifics as to the disability. Dr. Fahn goes
on to state that the underlying diagnosis Parkinson's disease did not stand the test of
time, noting that Parkinson's disease worsens over time, while plaintiff's conditions
have improved over time. (D.1. 141, Fahn report)
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transcript oftheir meeting. (D.1. 129) After reviewing the voluminous record and
numerous motions, the court concludes that defendant has adequately responded to
plaintiff's discovery requests. Therefore, the court will deny the motions to compel
with the caveat that, if plaintiff does not have copies of his medical records, defendant
shall provide plaintiff with such copies obtained during discovery. Plaintiff shall
reimburse defendant for the cost of photocopying the records.
Plaintiff is placed on notice that future repetitive motions to compel will be
docketed, but not considered by the court.
VII. INJUNCTIVE RELIEF
Plaintiff moves for injunctive relief "beyond 3/2009 to 5/2014, inclusive of all
permits, variances, violations, and any other zoning by defendant. (D.1. 162) The
motion is summarily denied. (See July 7,2010 order, D.I. 73)

VIII. REQUEST FOR AUXILIARY AID WITH LANGUAGE AND TIME
Plaintiff seeks assistance in the form of a remedial aide in reading and speaking
comprehension to fairly address the court and defense counsel and to clarify "in
layman's terms the language of this court and especially the writing of the defendant."
(D.I. 109, 169, 178) Plaintiff indicates that, due to his "brain disease," there is not a
"means of clear communication," he is unable to comprehend court rulings, he is unable
to secure procedural guidance from the clerk's office, he does not comprehend
arguments and demands made by defendant, and he cannot adequately prosecute his
case. He also requests counsel. (D.I. 178) Plaintiff refers to the Americans with
Disabilities Act, and he seems to ask the court to accommodate his disability.

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Through his filings, plaintiff indicates that five or six governmental agencies have
determined that he is permanently partially disabled and temporarily totally disabled.
He also implies that the Social Security Administration has made a determination
regarding disability. He now asks the court to accommodate his disability, but the court
does not have before it sufficient documentation regarding plaintiffs claim of disability.
Therefore, plaintiff shall supplement the record by filing with the court (under
seal) any documents supporting his claim of disability, be it brain disease or some
other type of disability. Said documents may include records regarding treatment of
neurological deficits (cord and spine injury), evidence of disability determinations by
states (including New York and Delaware) or federal agencies and medical records or
reports from the University of Pennsylvania, Dr. Colcher, Dr. Fahn, Maximum Health
Care, Dr. Eidelberg, and/or G. Balu.
The court will hold in abeyance plaintiffs motions requesting assistance pending
receipt and consideration of the records. (0.1. 109, 169, 178)

IX. CONCLUSION
For the above reasons, the court will: (1) deny plaintiffs motion to amend; (2)
deny as moot defendant's motion to strike; (3) deny plaintiffs motion for
reconsideration; (4) deny plaintiffs motions to quash; (5) deny defendant's request for
oral argument; (6) grant movants Noble's and Kelley's motion to quash; (7) grant
movant Costello's motion to quash and deny his motions for protective orders; (8) deny
plaintiffs motions to compel and motion for injunctive relief; and (9) order plaintiff to file

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(under seal) documents regarding his disability. (0.1.

87, 89, 100, 101, 108, 111, 113,

119,126,135,141,144,146,147,154,158,162,163,176)
An appropriate order will issue.

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