Almy v. Kickert School Bus Line, Inc.

Filing 174

WRITTEN Opinion entered by the Honorable Robert M. Dow, Jr on 8/31/2011:For the reasons stated below, Plaintiff Rices objections 173 to Magistrate Judge Denlows August 11 order 165 are overruled. Notices Mailed by Judge's Staff (tbk, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Robert M. Dow, Jr

CASE NUMBER

08 C 2902

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

8/31/2011

Almy vs. Kickert Bus Lines, Inc.

DOCKET ENTRY TEXT

For the reasons stated below, Plaintiff Rice’s objections [173] to Magistrate Judge Denlow’s August 11 order
[165] are overruled.

O[ For further details see text below.]

Docketing to mail notices.Notices mailed by Judicial staff.

STATEMENT
Pursuant to FRCP 72(a), pro se Plaintiff Chrysse Rice has filed objections to a routine discovery order
entered by Magistrate Judge Denlow on August 11. Before addressing the objections, the Court will attempt
to very briefly set out the pertinent background.
This FLSA case has been pending for three years. During that time, a settlement has been reached as to all
but two Plaintiffs. [See 157 – order approving settlement agreement.] The two remaining Plaintiffs, Robert
Almy and Chrysse Rice, objected to the settlement on various grounds and chose to continue with the
litigation. For reasons that previously have been explained in detail, the Court granted prior counsel's motion
for leave to withdraw from representing Mr. Almy and Ms. Rice. [See 104, 153.] The Court also has
previously denied requests for counsel by both Almy and Rice. [See 104, 172.] To begin with, neither has
established that they qualify for IFP status. In her objections, Plaintiff Rice notes her “severe financial
difficulties.” But even taking into account those circumstances, Ms. Rice's income over the past twelve
months greatly exceeds the federal poverty level, and she does not qualify for IFP status – which, as
previously explained, is a threshold issue for eligibility for recruitment of court appointed counsel.
Moreover, unless and until Ms. Rice can show that her claims differ materially from Mr. Almy’s – either
factually or legally or both – appointment of counsel would be unnecessary in any event in view of Mr.
Almy’s facility with the pertinent law and ability to articulate the detailed grounds for his disagreement with
prior counsel’s litigation strategy.
Rice’s principal objections to the August 11 order are that (1) Judge Denlow ordered discovery to proceed
before this Court ruled on Plaintiff’s IFP application and request for appointed counsel and (2) the time frame
for discovery, including Rice’s deposition, is too short.

08C2902 Almy vs. Kickert Bus Lines, Inc.

Page 1 of 2

STATEMENT
As to the first objection, a couple of points are worth making. Accepting Rice’s representation that she
attempted to file her IFP application and motion for counsel on July 25, there still was a gap of more than
five weeks between her appearance at a status hearing in the district court on June 16 and the filing of those
motion papers. It appears from her objections that Ms. Rice’s financial difficulties account for the delay, but
that information was not known to Magistrate Judge Denlow (or to this Court), and there was no abuse of
discretion or error of law in ordering discovery to proceed right away in the circumstances. This litigation
has been long pending and all parties have a right to expect it to move forward without undue delay. This
Court has now ruled on (and denied) the IFP application and request for appointed counsel. To the extent
that Rice was subject to discovery requests in the short time between the entry of Judge Denlow’s order (on
August 11), the filing of her motion (on August 17) and the Court's ruling on it (on August 24), Ms. Rice
suffered no prejudice. She still has a full month within which to sit for her deposition.
As to the second objection, to the extent that Rice concludes that she needs additional time for discovery, she
still may file a motion with Judge Denlow requesting an extension of the current cutoff date if she has a basis
for seeking such relief. But the setting of that date – particularly in the absence of any specific, articulated
basis for a longer date – was in no way clearly erroneous, an abuse of discretion, or contrary to law. Again,
this case has been pending for three years, Judge Denlow has been supervising discovery in the case for more
than a year, and the bases for the dispute among Almy, his prior counsel, and Defendant over the pertinent
law have been well developed and articulated. Absent a new revelation, the Court is hard pressed to imagine
a reason why discovery in this case should not be winding to a close, and Rice has not articulated one.
In sum, for the reasons stated above, Plaintiff Rice’s objections [173] to Magistrate Judge Denlow’s August
11 order [165] are overruled.

08C2902 Almy vs. Kickert Bus Lines, Inc.

Page 2 of 2