Daker v. Head et al
Filing
482
ORDER denying 453 Motion Plaintiff's Motion for 28 U.S.C. § 1292(b) Certification and overruling Plaintiff's 460 Objections to the Magistrate Judge's 430 R&R. Signed by District Judge R. Stan Baker on 08/11/2022. (jlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
WASEEM DAKER,
Plaintiff,
CIVIL ACTION NO.: 6:14-cv-47
v.
BRIAN OWENS, et al.,
Defendants.
ORDER
This matter is before the Court on Plaintiff’s Objections to the Magistrate Judge’s May
26, 2022 Order and Motion for 28 U.S.C. § 1292(b) Certification. (Docs. 453, 460.) By Report,
the Magistrate Judge recommended the Court deny Defendants’ motion for the sanction of
dismissal for Plaintiff’s failure to answer questions during his deposition. (Doc. 430.) The Report
has already been adopted after de novo review. (Doc. 451.). The Report, as well as the adoption
of the Report, remain unchallenged by either party. Additionally, by Order, the Magistrate Judge
granted the portion of Defendants’ motion seeking monetary sanctions based on the same
conduct. (Doc. 431.) Plaintiff now asks for the Court to overrule the portion of the Magistrate
Judge’s Order imposing sanctions, or, in the alternative, moves for the Court to certify the Order
for an interlocutory appeal, as provided by 28 U.S.C. § 1292(b). (Docs. 453, 460.)
For the reasons set forth below, the Court OVERRULES Plaintiff’s Objections to the
Magistrate Judge’s May 26, 2022 Order. (Doc. 460.) The Magistrate Jude’s May 26, 2022 Order
imposing sanctions remains the Order of the Court. Additionally, the Court DENIES Plaintiff’s
Motion for 28 U.S.C. § 1292(b) Certification. (Doc. 453.)
I.
Objections to the Magistrate Judge’s May 26, 2022 Order
A.
Legal Standard
When a magistrate judge rules on a non-dispositive pretrial discovery matter, parties may
object to that ruling and seek review from the district judge under Federal Rule of Civil Procedure
72(a). Fed. R. Civ. P. 72(a). In reviewing the magistrate judge’s order, the district judge must
“modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Id. The
clearly erroneous or contrary to law standard “is exceedingly deferential.” Jackson v. Deen, CV
412-139, 2013 WL 3991793, at *2 (S.D. Ga. Aug. 2, 2013) (citing Pigott v. Sanibel Dev., LLC,
CV 07-0083, 2008 WL 2937804, at *5 (S.D. Ala. July 23, 2008)). “A ruling is clearly erroneous
where either the magistrate judge abused his discretion or the district court, after reviewing the
entirety of the record, is left with a definite and firm conviction that a mistake has been made.”
Id. (citations omitted). “A decision by the magistrate judge is contrary to law where it either fails
to follow or misapplies the applicable law.” Id. (citations omitted).
B.
Plaintiff’s Objections Are Overruled
Plaintiff argues the Magistrate Judge’s ruling is clearly erroneous and contrary to law for
a number of reasons. (Docs. 453, 460.) First, Plaintiff contends the Magistrate Judge was not
permitted to impose sanctions based on Plaintiff’s refusal to answer questions at his deposition
because Defendants improperly sought to take his deposition via remote means. (Doc. 453,
pp. 2–5; Doc. 460, pp. 2–5, 11). Plaintiff provides no support for this assertion. Plaintiff has not
shown the Magistrate Judge could not impose sanctions because he did not stipulate to a remote
deposition, and the Court does not find the Magistrate Judge’s Order clearly erroneous or contrary
to law. Moreover, Plaintiff ignores his own violations of Federal Rule of Civil Procedure 30,
which were the bases for the Magistrate Judge’s imposition of sanctions. The deposition
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transcript shows Plaintiff objected to the deposition occurring remotely for the record, but
Plaintiff decided to continue with the deposition. Then, during the deposition, Plaintiff explicitly
stated he would not be answering certain questions Defendants’ counsel posed because he
deemed such questions not relevant to the case. (Doc. 378-4, p. 13.) Plaintiff argues in a
conclusory manner that the Magistrate Judge’s determination that Plaintiff’s own conduct
warranted sanctions was clearly erroneous or contrary to law, but the Court disagrees. (Doc. 453,
p. 5; Doc. 460, p. 5.) As the Magistrate Judge correctly concluded, Plaintiff’s violations of Rule
30 opened him up to sanctions under Rule 37, and imposing sanctions in this case was not clearly
erroneous or contrary to law.
Additionally, Plaintiff re-asserts his arguments that the Court’s September 3, 2021
Scheduling Order justified his refusal to answer questions he deemed not relevant. (Doc. 460,
p. 5.) Plaintiff argues the Scheduling Order abrogated Rule 30 and required him only to answer
questions “relevant” to the pending litigation. (Id. at pp. 5–9, 22–23.) However, after reviewing
the Scheduling Order, the Court agrees with the Magistrate Judge’s conclusion that nothing in
that Order abrogated Rule 30 such that Plaintiff may only answer questions he deemed relevant.
(Doc. 328.)
Accordingly, the Magistrate Judge’s conclusion that the September 3, 2021
Scheduling Order did not provide a valid basis for Plaintiff to refuse to answer questions is not
clearly erroneous or contrary to law. 1
Plaintiff also objects to the Magistrate Judge’s conclusion that he did not have a basis
under Federal Rule of Civil Procedure 30(c)(2) to refuse to answer the questions posed by
Defendants’ counsel. (Doc. 460, pp. 9–15.) Rule 30(c)(2) “provides only three justifications for
1
Plaintiff also requests a transcript of the February 22, 2022 status conference. This request is DENIED.
The Magistrate Judge did not rely on the representations during the status conference in deciding the instant
motions and, instead, relied on the parties’ written submissions. Thus, the discussion during the status
conference is immaterial to the matters before the Court.
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instructing a deponent not to answer a question: to preserve a privilege; to enforce a limitation
imposed by the court; or to present a Rule 30(d)(3) motion.”
Mintor Corp. v. Club
Condominiums, 339 F.R.D. 312, 319 (N.D. Fla. 2021) (citing Rojas v. X Motorsport, Inc.,
275 F. Supp. 3d 898, 902 (N.D. Ill. 2017)); Gober v. City of Leesburg, 197 F.R.D. 519, 520 (M.D.
Fla. 2000).
First, Plaintiff argues the Magistrate Judge incorrectly rejected his Fifth Amendment
privilege assertion. (Doc. 460, pp. 9–11, 13–14.) Plaintiff’s argument is largely conclusory,
including a baseless allegation that defense counsel’s true motive in taking his deposition was to
assist the state prosecutor in his criminal case. Plaintiff states the facts in the cases the Magistrate
Judge relied on in making this ruling are distinguishable from the circumstances presented here
and the biographical information sought during his deposition would, in fact, incriminate him.
(Id. at p. 14.) But Plaintiff only asserts this in a conclusory manner and fails to elaborate on what
distinguishes his case from the caselaw the Magistrate Judge relied on or explain how answering
these questions would incriminate him.
Plaintiff also puts forth an argument identical to the one considered by the Magistrate
Judge, asserting he was justified in refusing to answer questions to present a motion under Rule
30(d)(3). (Id. at pp. 11–13.) The Court does not find this argument convincing. As the Magistrate
Judge concluded, Defendants did not act in bad faith or in a manner that unreasonably annoys,
embarrasses, or oppresses the deponent or party; therefore, there was no basis to present a motion
under Rule 30(d)(3). Moreover, the only indication during the deposition Plaintiff provided for
refusing to answer certain questions was based on relevance. Thus, the Court does not find the
Magistrate Judge’s conclusion that the Rule 30(c)(2) exceptions did not apply clearly erroneous
or contrary to law.
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Additionally, Plaintiff contends the Magistrate Judge’s award of sanctions was not
appropriate because his response was substantially justified and other circumstances make an
award of expenses unjust. (Id. at pp. 14–18.) Much of Plaintiff’s argument focuses on the reasons
the Magistrate Judge found the sanction of dismissal was inappropriate, in which he considered
Plaintiff’s behavior and Defendants’ procedural missteps. (Id.) However, a sanction of dismissal
is a much harsher sanction than monetary sanctions. Mills v. Anderson, No. CV606-88, 2008
WL 80303, at *1 (S.D. Ga. Jan. 7, 2008) (citing Navarro v. Cohan, 856 F.2d 141, 142 (11th Cir.
1988)). Thus, the Magistrate Judge’s conclusion that Defendants’ conduct and Plaintiff’s
behavior considered together did not warrant the sanction of dismissal but did warrant monetary
sanctions is consistent with applicable law.
Plaintiff’s attempt to undercut the Magistrate Judge’s reliance on Amerson v. Comm’r,
Ga. Dep’t of Corr., No. 20-11179, 2022 WL 628428 (11th Cir. Mar. 4, 2022), is also
unpersuasive. (Doc. 460, pp. 23–24.) The Court agrees Amerson is distinguishable, which
supports the Magistrate Judge’s award of monetary sanctions instead of imposing dismissal as a
sanction in this case. Nothing in Amerson, or the argument Plaintiff presents, undercuts this
conclusion. The Magistrate Judge considered Defendants’ counsel’s behavior, and Plaintiff has
not shown the Magistrate Judge’s assessment was clearly erroneous or contrary to law. Plaintiff
has not shown Defendants’ procedural missteps that the Magistrate Judge acknowledged prohibit
an award of sanctions considering all the conduct in this case.
Likewise, the fact Plaintiff was denied law library access does not show the Magistrate
Judge could not impose sanctions. 2 (Doc. 460, pp. 17, 19–21.) Plaintiff points to no law
supporting his argument that a court may not impose Rule 37 sanctions based on a purported lack
2
Plaintiff attributes his lack of law library access to Defendants, but there is nothing in the record
supporting Plaintiff’s argument that Defendants denied him law library access.
5
of access to the Federal Rules of Civil Procedure. Even pro se litigants are obligated to adhere
to the Federal Rules of Civil Procedure and must participate in the discovery process in good
faith. See, e.g., McNeil v. United States, 508 U.S. 106, 113 (1993) (“While their pleadings are
to be liberally construed, pro se plaintiffs are not excused from complying with procedural
rules.”); Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007) (Pro se filings are to be liberally
construed, but pro se litigants nonetheless must conform to procedural rules.); Moon v. Newsome,
863 F.2d 835, 837 (11th Cir. 1989) (explaining pro se litigants are “subject to the relevant law
and rules of the court, including the Federal Rules of Civil Procedure”). Thus, this Objection has
no merit.
For the first time, Plaintiff also argues Defendants’ motion should be denied because they
failed to confer in good faith before filing their motion. The Court need not consider Plaintiff’s
newly raised arguments. See Williams v. McNeil, 557 F.3d 1287, 1291 (11th Cir. 2009)
(approving district court’s refusal to consider new argument set forth in objections where party
had opportunity to present such argument to magistrate judge and failed to do so). Further,
Defendants’ counsel explain they tried to contact the Court to resolve the issue and they also tried
to explain their view of the relevant Federal Rules of Civil Procedure to Plaintiff. Thus, the Court
finds they complied with the requirement to confer in good faith before filing their motion.
Finally, Plaintiff argues the Magistrate Judge failed to consider Plaintiff’s ability to pay a
monetary sanction. (Doc. 460, pp. 25–26.) Plaintiff has not shown the Magistrate Judge was
required to consider Plaintiff’s ability to pay. Plaintiff is not proceeding in forma pauperis and
has not demonstrated he would be unable to pay the monetary sanction in this case. Moreover,
this argument would go to the amount of the sanctions and not whether sanctions should be
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imposed. 3 Plaintiff previously represented to the Court he would not be able to pay the filing fee.
(Docs. 304, 326.) Yet, when ordered to do so, Plaintiff managed to pay the filing fee. (Dkt. entry
dated Aug. 6, 2021). Plaintiff’s own past conduct undercuts any credibility he has in representing
he cannot pay the filing fee. 4 Thus, Plaintiff’s argument he cannot pay and the Magistrate Judge
should have considered this is unconvincing and does not show the Magistrate Judge’s ruling was
clearly erroneous or contrary to law.
In sum, Plaintiff violated Rule 30, and his violation warrants sanctions. Such a ruling is
not clearly erroneous or contrary to law. Accordingly, the Court OVERRULES Plaintiff’s
Objections, and the Magistrate Judge’s Order imposing monetary sanctions remains the Order of
the Court.
II.
Motion for Certificate of Appealability Under 28 U.S.C. § 1292(b)
Plaintiff also moves for a certificate of appealability under 28 U.S.C. § 1292(b).
(Doc. 453, pp. 5–9.) Section 1292(b) requires the appealing party to demonstrate: “(1) the order
presents a controlling question of law; (2) over which there is a substantial ground for difference
of opinion among courts; and (3) the immediate resolution of the issue would materially advance
the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). Plaintiff fails to identify a
controlling question of law over which there is a substantial ground for difference of opinion
among courts as is required under Section 1292(b). 5 Indeed, Plaintiff has not identified any
3
Plaintiff had the opportunity to contest the amount of the filing fee and chose not to do so. (Docs. 439,
464.)
4
Plaintiff also paid appellate filing fees related to his case. Dkt. entry dated Dec. 6, 2021.
5
As the Eleventh Circuit has explained:
The term ‘question of law’ does not mean the application of settled law to fact. It does not
mean any question the decision of which requires rooting through the record in search of
the facts or of genuine issues of fact. Instead, what the framers of § 1292(b) had in mind
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question of law which is in dispute. Instead, Plaintiff states in a conclusory manner that the
Magistrate Judge’s Order “plainly involve questions of law” but does not explain what those
questions are. (Doc. 453, p. 6.)
Plaintiff also misunderstands the requirement for a substantial difference of opinion.
Plaintiff asserts and explains that he and the Court have a substantial difference of opinions.
(Id. at pp. 6–8.) However, he has not shown that there is a substantial difference of opinion
among courts, which is what Section 1292(b) requires. Plaintiff has pointed to no cases involving
similar legal questions that would lead this Court to conclude there was any difference of opinion,
let alone a substantial difference of opinion.
Moreover, certification is reserved for truly exceptional cases. Judicial Watch v. Nat’l
Energy Policy Dev., 233 F. Supp. 2d 16, 20 (D. D.C. 2002). “A party seeking certification
pursuant to § 1292(b) must meet a high standard to overcome the strong congressional policy
against piecemeal reviews, and against obstructing or impeding an ongoing judicial proceeding
by interlocutory appeals.” Id. (internal quotations and citation omitted). Because Section 1292(b)
“is a departure from the normal rule that only final judgments are appealable,” it “must be
construed narrowly” and invoked only in “rare circumstances.” James v. Price Stern Sloan, Inc.,
283 F.3d 1064, 1067 n.6 (9th Cir. 2002). As other courts in this Circuit have recognized, a court
order “granting a discovery sanction is not determinative of the outcome or future course of the
litigation.” Ala. Aircraft Industries, Inc. v. Boeing Co., No. 2:11-cv-03577, 2017 WL 457284, at
*1 (N.D. Ala. Apr. 3, 2017). While Plaintiff speculates this may end his litigation because of his
might be called one of ‘pure’ law, matters the court of appeals ‘can decide quickly and
cleanly without having to study the record.
McFarlin v. Conseco Servs., Inc., 381 F.3d 1251, 1258 (11th Cir. 2004) (citations omitted) (quoting
Ahrenholz v. Bd. of Trustees of the Univ. of III., 219 F.3d 674, 676–77 (7th Cir. 2000)).
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purported inability to pay, Plaintiff has previously been ordered to pay the filing fee and was able
to do so despite similar protests. (Doc. 453, pp. 8–9.)
In sum, the Magistrate Judge’s Order imposing sanctions does not involve rare or
exceptional circumstances that warrant certification as provided by Section 1292(b), and an
interlocutory appeal would not materially advance the ultimate termination of this litigation.
Accordingly, Plaintiff’s Motion is DENIED.
SO ORDERED, this 11th day of August, 2022.
R. STAN BAKER
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA
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