Cooper v. Shulkin

Filing 51

MEMORANDUM Opinion and Order: For these reasons, the Court denies Cooper's: (1) motions to recuse (R. 43 (17 C 6913) & R. 24 (18 C 2064)); (2) motion for a new trial (R. 20 (18 C 2064)); and (3) motions for a protective order and to quas h (R. 44 (17 C 6913) & R. 25 (18 C 2064)).The Court orders Cooper to provide complete answers to written discovery and to come to Chicago for a deposition on or before December 21, 2018 (absent a joint motion to extend). The Court gives Cooper a final warning that failure to comply with this order will result in dismissal for want of prosecution. Signed by the Honorable Thomas M. Durkin on 11/26/2018:Mailed notice(srn, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MONICA COOPER,
Plaintiff,
v.
DAVID J. SHULKIN,
Defendant.

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No. 17 C 6913 & 18 C 2064

MEMORANDUM OPINION & ORDER
In this case, pro se plaintiff Monica Cooper has sued defendant David J.
Shulkin, Secretary of the United States Department of Veterans Affairs, alleging
that her supervisors at Jesse Brown VA Medical Center discriminated against her
in violation of Title VII and the Rehabilitation Act. R. 1 (17 C 6913); R. 7 (18 C
2064). Currently before the Court are Cooper’s: (1) motions to recuse (R. 43 (17 C
6913) & R. 24 (18 C 2064)); (2) motion for a new trial (R. 20 (18 C 2064)); and (3)
motions for a protective order and to quash (R. 44 (17 C 6913) & R. 25 (18 C 2064)).
For the reasons set forth below, the Court denies Cooper’s motions.
Background
On August 1, 2018, Shulkin filed a motion to extend fact discovery in light of
Cooper’s failure to answer written discovery and to make herself available for
deposition. R. 30 (17 C 6913). The Court granted Shulkin’s motion on August 7,
2018 and ordered all fact discovery to be completed by September 6, 2018. R. 34 (17
C 6913).

Following the August 7, 2018 hearing, Shulkin’s counsel contacted Cooper
numerous times to obtain answers to outstanding written discovery and to schedule
Cooper’s deposition. R. 47 at 6-15 (17 C 6913). The parties agreed on August 23,
2018 for Cooper’s deposition. Id. at 14. But on August 22, 2018, Cooper informed
Shulkin’s counsel that she would not come to Chicago for a deposition at any point,
instead insisting that Shulkin’s counsel come to Michigan to take her deposition.
Shulkin’s counsel moved to compel Cooper’s deposition and answers to
written discovery (R. 36 (17 C 6913)), and this Court granted that motion on August
29, 2018, explaining:
Plaintiff must appear for her deposition in Chicago at a date and time
convenient to both parties at least one week before the next status
hearing [on October 11, 2018], absent permission from this Court for
any change. Failure of plaintiff to appear for her deposition will result
in this action being dismissed for want of prosecution.
R. 38 (17 C 6913).
Following the August 29, 2018 hearing, Shulkin’s counsel contacted Cooper
on both August 29, 2018 and September 25, 2018, offering numerous dates for her
deposition. R. 47 at 16-20. Cooper did not respond to either letter.
On September 26, 2018, Shulkin moved to reassign case 18 C 2064
(previously pending before Judge Lee) to this Court based on relatedness with case
17 C 6913 under Local Rule 40.4. R. 39 (17 C 6913). Cooper failed to appear at the
October 1, 2018 hearing on Shulkin’s motion to reassign. At that hearing, the Court
granted Shulkin’s motion based on a finding that the conditions for relatedness
under Local Rule 40.4 were met. R. 41 (17 C 6913).

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Also at the October 1, 2018 hearing (at which Cooper failed to appear),
Shulkin’s counsel explained to the Court that it was having trouble scheduling a
date for Cooper’s deposition, despite offering Cooper many different dates. The
Court entered an order explaining that “[f]ailure of the plaintiff to appear in person
or by telephone at the [next] status hearing [set by the Court] or failure of the
plaintiff to cooperate in the scheduling and taking of her deposition will result in
this action being dismissed for want of prosecution.” Id.
Following the October 1, 2018 hearing, Shulkin’s counsel again reached out
to Cooper to explain the Court’s order and to ask Cooper to call as soon as possible
regarding deposition scheduling. R. 27-1 at 2 (18 C 2064). Cooper did not respond.
On October 9, 2018, Cooper filed a “motion for a new trial” in the case
originally filed before Judge Lee and reassigned to this Court on October 1, 2018. R.
20 at 1 (18 C 2064). That motion argues that the VA director committed perjury in
the underlying administrative proceedings, and it asks the Court to order that new
proceedings take place. Id.
When the parties next appeared on October 17, 2018, the Court again ordered
Cooper to appear for her deposition, noting that “[f]ailure of plaintiff to appear for
her deposition will result in this action being dismissed for want of prosecution.” R.
42 (17 C 6913). Shulkin’s counsel followed up with two letters attempting to
schedule Cooper’s deposition and to obtain complete answers to written discovery.
R. 27-1 at 4-7 (18 C 2064). Cooper again did not respond. Instead, on October 29,

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2018, Cooper filed her motions to recuse and to quash. Shulkin responded on
November 13, 2018. Cooper did not file reply briefs.
Analysis
A.

Motions to Recuse

The recusal statute, 28 U.S.C. § 455, requires that judges disqualify
themselves when their “impartiality might reasonably be questioned,” when they
have “a personal bias or prejudice concerning a party, or personal knowledge of
disputed evidentiary facts concerning the proceeding.” Although a federal judge has
a duty not to sit where disqualified for bias, he has “a duty to sit where not
disqualified which is equally as strong.” Laird v. Tatum, 409 U.S. 824, 837
(1972); see also In re United States, 572 F.3d 301, 308 (7th Cir. 2009) (“[N]eedless
recusals exact a significant toll; judges therefore should exercise care in
determining whether recusal is necessary, especially when proceedings already are
underway.”).
The relevant question for purposes of disqualification is whether “the judge’s
impartiality might reasonably be questioned by a well-informed, thoughtful
observer rather than [by] a hypersensitive or unduly suspicious person.” O’Regan v.
Arbitration Forums, Inc., 246 F.3d 975, 988 (7th Cir. 2001). The standard is an
objective one: “That an unreasonable person, focusing only on one aspect of the
story, might perceive a risk of bias is irrelevant . . . . [A] reasonable person is able to
appreciate the significance of the facts in light of relevant legal standards and
judicial practice and can discern whether any appearance of impropriety is merely

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an illusion.” In re Sherwin-Williams Co., 607 F.3d 474, 477-78 (7th Cir. 2010). This
objective inquiry is made “in light of the facts as they existed, not as they were
surmised or reported.” Cheney v. United States District Court for the District of
Columbia, 541 U.S. 913, 914 (2004).
Cooper sets forth two basic factual grounds for recusal. First, she claims that
the Court has shown a bias against pro se litigants by granting Shulkin’s motion to
reassign Cooper’s related case to this Court. This argument is an improper basis for
recusal under 28 U.S.C. § 455 because the reassignment shows no bias against
Cooper. The Court simply followed the local rules, which allow for reassignment of a
case sharing “some of the same issues of fact and law” to the judge handling the
lower-numbered case. L.R. 40.4(a)(2). Cooper’s two cases plainly involve “some of
the same issues of fact and law.” Id. In both, Cooper alleges that the VA
discriminated against her in violation of Title VII and the Rehabilitation Act. In the
lower-numbered case, Cooper alleges that her superiors at the VA Medical Center
discriminated against her on the basis of sex and disability in 2015. In the highernumbered case, she alleges that her superiors at the VA Medical Center
discriminated against her on the basis of sex, disability, and religion in 2017. It is
clear that this Court’s handling of both cases will result in substantial savings of
judicial resources. Thus, far from being biased, this Court’s decision to allow
reassignment was fair and appropriate.
Relatedly, Cooper takes issue with the fact that Judge Lee (who was
previously assigned to case 18 C 2064) did not rule on her motion for a new trial

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prior to reassignment. R. 43 at 1 (17 C 6913). But Cooper filed her motion for a new
trial after her case had already been reassigned. R. 17, 20 (18 C 2064). There were
no motions pending in the case before Judge Lee at the time it was transferred to
this Court. See id. And even if the motion had been filed before Judge Lee, any
pending motions are automatically transferred upon reassignment, so there was no
risk of prejudice to Cooper based on the reassignment. In any event, for the reasons
explained below, there is no merit to Cooper’s motion for a new trial.
Second, Cooper takes issue with this Court’s alleged favoritism displayed
toward Shulkin during discovery, including the Court’s alleged “harsh[ ] den[ial]” of
Cooper’s request “that the defendant come to plaintiff’s state to take [her]
deposition.” R. 43 at 1. It is well-established that “rulings by the judge ‘almost never
constitute a valid basis for a bias or partiality motion.’” Szach v. Village of
Lindenhurst, 2015 WL 3964237, at *4 (N.D. Ill. June 25, 2015) (quoting Liteky v.
United States, 510 U.S. 540, 555 (1994)). They will do so only “if they reveal such a
high degree of favoritism or antagonism as to make fair judgment impossible.”
Liteky, 510 U.S. at 555. No favoritism or antagonism can be inferred based on this
Court’s ruling compelling Cooper to come to Chicago because, for the reasons
explained below, Shulkin is entitled to take Cooper’s deposition in Chicago.
With respect to Cooper’s allegation that the Court was “harsh” in its tone at
the October 17, 2018 hearing, the Court has reviewed its notes, and it does not
agree that it was harsh. The Court explained that because Cooper filed the suit in
Chicago, she needs to come to Chicago for her deposition. The Court then explained

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that it would give Cooper one more chance to respond to dates proposed by
Shulkin’s counsel for her deposition. If anything, the Court has been extremely
patient in providing repeated extensions to Cooper, in large part because of Cooper’s
pro se status and presumed unfamiliarity with Court rules. But that patience is not
limitless, and simple requirements such as the scheduling of Cooper’s deposition in
the forum where she filed this lawsuit can be easily understood and followed, even
by a pro se plaintiff.
In any event, even if the Court had expressed “impatience, dissatisfaction,
annoyance, [or] anger”—and it did not—such expressions do not justify recusal.
Liteky, 510 U.S. at 555-56. The Court therefore denies Cooper’s motions for recusal
(R. 43 (17 C 6913) & R. 24 (18 C 2064)).
B.

Motion for a New Trial

Cooper’s motion for a new trial is meritless because it does not request relief
that this Court is able to grant. Cooper exhausted her administrative remedies and
filed suit in this Court. The Court does not have the authority to grant Cooper a
new trial in the underlying administrative case. This Court has the authority only
to review the underlying events for violations of federal law (including Title VII and
the Rehabilitation Act, based on which Cooper brings her claims). For this reason,
the Court denies Cooper’s motion for a new trial in case 18 C 2064 (R. 20).
C.

Motions for Protective Order and to Quash

Cooper’s motions for a protective order and to quash are equally meritless. It
is well-established that a plaintiff is generally required to give a deposition in the

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district where she chose to file suit. See, e.g., MCI Worldcom Network Servs. v. Atlas
Excavating, Inc., 2004 WL 755786, *2 (N.D. Ill. Feb. 23, 2004) (the “general rule is
that plaintiff, even if a non-resident, must appear at depositions in the forum of its
choosing”); Penn Mut. Life Ins. Co. v. GreatBanc Tr. Co., 2013 WL 212906, at *2
(N.D. Ill. Jan. 18, 2013) (same); 8A Wright & Miller, Federal Practice & Procedure
§ 2112 at 527 (“ordinarily, plaintiff will be required to make himself . . . available
for examination in the district in which suit was brought”). Cooper chose to file suit
in the Northern District of Illinois, and the events giving rise to her case occurred in
Illinois. Although this Court has discretion to require the deposition to take place
closer to Cooper’s home based on a showing of “undue hardship,” Penn Mut. Life
Ins., 2013 WL 212906, at *2, Cooper has not shown undue hardship here. Cooper
lives in Covert, Michigan, and Greyhound offers inexpensive bus tickets from South
Haven, Michigan—which is near Covert—to Chicago. Thus, the Court finds that
Shulkin is entitled to take Cooper’s deposition in Chicago and denies Cooper’s
motions for a protective order and to quash (R. 44 (17 C 6913) & R. 25 (18 C 2064)).
Shulkin requests that this Court dismiss both cases for want of prosecution,
or in the alternative compel Cooper to answer written discovery and to provide her
deposition by a date certain. The Court orders Cooper to provide complete answers
to written discovery and to come to Chicago for a deposition on or before December
21, 2018. The only relief from this date will be a joint motion to extend. Although
this Court will not dismiss Cooper’s cases at this time, the Court gives Cooper a

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final warning that failure to comply with this order will result in dismissal for want
of prosecution.
Conclusion
For these reasons, the Court denies Cooper’s: (1) motions to recuse (R. 43 (17
C 6913) & R. 24 (18 C 2064)); (2) motion for a new trial (R. 20 (18 C 2064)); and (3)
motions for a protective order and to quash (R. 44 (17 C 6913) & R. 25 (18 C 2064)).
The Court orders Cooper to provide complete answers to written discovery and to
come to Chicago for a deposition on or before December 21, 2018 (absent a joint
motion to extend). The Court gives Cooper a final warning that failure to comply
with this order will result in dismissal for want of prosecution.

ENTERED:

Honorable Thomas M. Durkin
United States District Judge

Dated: November 26, 2018

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