Farr v. Davis et al
MEMORANDUM AND ORDER denying 94 Motion to Compel; denying 104 Motion for Hearing/Motion for Sanctions/Motion for Order. Signed by Magistrate Judge Kenneth G. Gale on 8/8/17. (df)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOAN E. FARR, pro se,
DARYL DAVIS, et al.,
Case No. 16-2180-CM-KGG
MEMORANDUM & ORDER ON MOTION TO COMPEL
AND MOTION FOR HEARING
NOW BEFORE THE COURT is the Motion to Compel filed by pro se
Plaintiff Joan Farr (hereinafter “Plaintiff”). (Doc. 94.) Also pending is Plaintiff’s
“Motion for Hearing on Motion to Compel and Motion for Leave to Join
Additional Parties as Defendants.” (Doc. 104.) For the reasons set forth below,
Plaintiff’s motions are DENIED.
Plaintiff filed the present lawsuit, pro se, individually and on behalf of
residents of the Huckleberry Estates addition to Derby, Kansas. (See Doc. 1.)
Plaintiff alleges that Defendants violated her First Amendment rights and
converted her private property. (Id.) She also brings a claim for “intentional
emotional distress/tort of outrage.” (Id.) Among her factual allegations is that
Defendants influenced the police to harass her.
Defendants previously moved to dismiss Plaintiffs’ claims, arguing that
she failed to sufficiently plead a federal cause of action under 42 U.S.C. § 1983
because she did not adequately allege that Defendants were acting under color of
state law. (See Doc. 13.) The District Court denied Defendants’ motion, holding
Plaintiff has pleaded a cause of action under 42 U.S.C. §
1983, as well as underlying facts that could potentially
support such a claim. Plaintiff’s complaint states that
defendant Davis called the sheriff’s office and urged
officers to arrest plaintiff’s son at plaintiff’s house.
Then, approximately eight officers surrounded plaintiff’s
house, drew their guns, and began banging on her doors
and yelling for her son to come out. This allegedly
continued for almost an hour, with one of the officers
shouting “If he doesn’t come out, we’re coming in!”
Lastly, the complaint states, “[T]he sheriff’s officers
finally left, since they had no legal authorization to enter
plaintiff’s home.” Taken together, and when the pro se
plaintiff’s complaint is construed liberally, plaintiff has
alleged facts that could allow a reasonable jury to infer
that defendants conspired together to successfully exert
influence over the police, and therefore should be treated
as state actors under 42 U.S.C. § 1983.
(Doc. 20, at 5-6.)
Plaintiff initially filed a motion to amend last fall, seeking leave to add
violations of 18 U.S.C. § 242. That federal statute states:
[w]hoever, under color of any law, statute, ordinance,
regulation, or custom, willfully subjects any person in
any State, Territory, Commonwealth, Possession, or
District to the deprivation of any rights, privileges, or
immunities secured or protected by the Constitution or
laws of the United States. . . shall be fined under this title
or imprisoned not more than one year, or both.
(Doc. 27, at 1.) Soon thereafter, Plaintiff requested and received a stay of 120 days
in this case because of persisting health issues and impending surgery. (Docs. 31;
see also, Doc. 32, text order granting stay.) Plaintiff’s then-pending motion to
amend was denied without prejudice as a result of the stay. (Doc. 34, text entry.)
Following the expiration of the stay, Plaintiff re-filed her motion to amend.
(Doc. 36.) Defendants objected to the requested amendment, arguing that 18
U.S.C. 242 “authorizes criminal prosecution for various acts; it does not authorize
a private right of action.” (Doc. 37, at 1.) The undersigned Magistrate Judge
issued its Report & Recommendation to the District Court that Plaintiff’s renewed
motion to amend be denied as futile. (Doc. 38.) Plaintiff objected to this Court’s
recommendation (Doc. 49), but the District Court ultimately adopted, in full, the
recommendation and denied Plaintiff’s requested amendment (Doc. 62).
Motion to Compel (Doc. 94).
Fed.R.Civ.P. 26(b) states that
[p]arties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense and
proportional to the needs of the case, considering the
importance of the issues at state in the action, the amount in
controversy, the parties’ relative access to relevant
information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely
benefit. Information within this scope of discovery need
not be admissible in evidence to be discoverable.
As such, the requested information must be nonprivileged, relevant, and
proportional to the needs of the case to be discoverable. Within this framework,
the Court will review the contested discovery responses.
Plaintiff moves the Court for an Order compelling Defendant to serve
supplemental responses to certain discovery requests. The requests referenced in
Plaintiff’s motion are RFP No. 5 (Defendants’ state and federal income tax
records), RFP No. 6 (Defendants’ insurance policies over the past three years),
RFP No. 10 (Defendants’ phone records for the past three years), and certain
unspecified responses to Plaintiff’s Requests for Admissions. (See generally Doc.
94.) Each of these discovery requests will be discussed in turn.
Income tax returns (RFP No. 5).
The standard for the discovery of tax returns was succinctly set forth by
Judge Rushfelt in Hilt v. SFC, Inc.:
The Courts have developed a two-pronged test assure a
balance between the liberal scope of discovery and the
policy favoring the confidentiality of tax returns. First,
the court must find that the returns are relevant to the
subject matter of the action. Second, the court must find
that there is a compelling need for the returns because the
information contained therein is not otherwise readily
obtainable. The party seeking production has the burden
of showing relevancy, and once that burden is met, the
burden shifts to the party opposing production to show
that other sources exist from which the information is
170 F.R.D. 182, 189 (D.Kan.1997) (citing Audiotext Communications Network,
Inc. v. U.S. Telecom, Inc., Case No. 94–2395, 1995 WL 625962, at * 11 (D.Kan.
Oct. 5, 1995)) (internal quotations omitted).
Plaintiff’s argument for the relevance of the tax returns is to establish “the
wealth of the defendants who were ‘beating up a poor widow.” (Doc. 94, at 2.)
She also states that the “tax returns are relevant in assessing a percentage of fault
for each defendant if found guilty at trial or if a settlement is reached.” (Id.)
Neither of these arguments provides a “compelling need” for production of
this highly sensitive and personal information. As Defendants contend, this
statement by Plaintiff “does not articulate how disclosure of the defendants’ tax
returns would aid in such an assessment, especially when it is defendants who will
be interested in assessing plaintiff’s damages, not the other way around.” (Doc.
96, at 9.) Plaintiff’s motion is DENIED in regard to Request No. 5.
Insurance policies (RFP No. 6).
Request No. 6 seeks “[a]ny and all insurance policies for the last three (3)
years held by” Defendants. (Doc. 94, at 8.) Individual Defendant Daryl Davis
responded, “I don't have any personal insurance that covers the kind of claims
made by you in this lawsuit. The HOA does.” (Id.) The HOA produced a copy of
its insurance policy in effect for the relevant policy period.” (Id., at 12.) Plaintiff
claims this document is fraudulent and that she received a copy of another policy
(apparently issued by Philadelphia Insurance Companies) from Defendant Coote in
2011. (Doc. 94, at 2.)
Defendants respond that they “assumed that plaintiff desired policies which
might respond to the claims she has asserted in her lawsuit.” (Doc. 96, at 5.) As
such, Defendant HOA “produced the directors and officers liability insurance
policy under which they are currently being defended issued by United States
Liability Insurance Co. The other defendants have responded that they do not have
any insurance policies that would respond to such a lawsuit.” (Id.) Defendants
continue that they
too charitably interpreted this overly broad request.
Instead, they should have objected to the request
altogether as an omnibus request without qualification
which conceivably requires the individual defendants to
produce their homeowners, auto, umbrella, flood or other
insurance policies issued over, presumably, the three
years next preceding the request. [Defendants] ask the
court limit plaintiff’s request to insurance policy germane
to the claims at issue.
The Court agrees that the request should be limited to policies that are
germane to Plaintiff’s claims. Defendants have responded that all such policies
have been produced. Plaintiff’s motion is, therefore, DENIED in regard to
Request No. 6.
Phone records (RFP No. 10).
This request seeks “[a]ny and all phone records or logs from August 1, 2014
through the present” for Defendants. (Doc. 94, at 9.) Defendants responded that
[t]he production of the individual phone records is
overbroad and unduly burdensome, and is irrelevant and
not reasonably calculated to lead to the discovery of
admissible evidence given the issues in the case. Phone
records or phone logs, by themselves, are not relevant to
the proof that plaintiff’s claims are more likely true than
In the present motion, Plaintiff contends that
defendants’ phone records/logs go to the heart of this
matter. They will show that defendant Davis and/or
others at his direction called the sheriff's department on
plaintiff’s son in June 2015 to deny her rights and cause
her the intentional emotional distress that led to her
injuries. Indeed, soon after the defendants began
bulldozing the beach and plaintiff called to make a report
as she had been instructed by the sheriff's department to
do, Davis's wife tried to retaliate further against her by
reporting her non-profit business activities to the Kansas
State Attorney General's Office . . . .
(Id., at 3.) Defendant argues that Plaintiff’s document request
asks for 3 years of phone records without any descriptive
limitation. The request itself highlights June 2015 as a
timeframe in which the defendants supposedly made calls
to the Sedgwick County Sheriff ‘on plaintiff’s son.’ But
the court has already ruled that any alleged Section 1983
claim concerning plaintiff’s son may only be made by
him and not through plaintiff acting as his surrogate.
Whether or when plaintiff began making calls to the
Sheriff’s office about claimed bulldozing activities has
nothing to do with the probative value of a request for
defendants’ phone records. Finally, whether Mr. Davis’
wife retaliated or not against plaintiff ‘by reporting her
non-profit business activities’ to state officials is well
outside the allegations of plaintiff’s complaint against
(Doc. 96, at 6.)
Defendants contend that the request is overly broad, unduly burdensome,
irrelevant, and disproportionate to the needs of the case. (Id.) The Court agrees.
The requested information is both substantively and temporally overbroad.
Plaintiff’s motion is DENIED as to Request No. 10.
Requests for Admission.
Requests for Admission are governed by Fed.R.Civ.P. 36, which states that
‘[a]ny matter admitted ... is conclusively established
unless the court on motion permits withdrawal or
amendment of the admission.’ This rule ‘serves two vital
purposes, both of which are designed to reduce trial time.
Admissions are sought, first to facilitate proof with
respect to issues that cannot be eliminated from the case,
and secondly, to narrow the issues by eliminating those
that can be.’ Fed.R.Civ.P. 36(a) advisory committee's
note (1970). ‘In most cases . . . there should be a clear
relationship between the request for admissions and a
pre-trial order. . . . Once admitted, the parties are bound
thereby and by stipulations included in a pre-trial order.’
Keen v. Detroit Diesel Allison, 569 F.2d 547, 554 (10th
Cir.1978); see also Champlin v. Okla. Furniture Mfg.
Co., 324 F.2d 74, 76 (10th Cir.1963) (‘[Rule 36] is most
advantageously used . . . prior to the pretrial conference,
and the facts established by the answers to the request for
admission may . . . be incorporated into the pre-trial order
as undisputed material facts in the case . . . .”)[.]
Minter v. Prime Equipment Co., 356 Fed. App’x 154, 162 (10th Cir. 2009).
During the parties’ attempts to meet and confer, Plaintiff apparently told
defense counsel that “there were also a number of lies by the defendants in
response to her requests for admissions. Since bad faith continues to enter in,
plaintiff requests that defendants only and not their counsel provide notarized
verification of documents turned over to her in order to prove the truth in this
matter.” (Doc. 94, at 3.) Defense counsel indicates that he told Plaintiff that
if she believed any one of the defendants had lied in
response to the requested admissions, she had tools at her
disposal to act on her belief. There is no provision in the
F.R.Civ.P., especially Rule 36, for the procedure plaintiff
proposes since the answers to the requested admissions
are already considered as made under oath. Importantly,
plaintiff fails to specify those requests the responses to
which she regards as lies. This precludes the court from
addressing those matters as it might otherwise under Rule
(Doc. 96, at 7.)
Plaintiff has not identified the Requests for Admission to which Defendants
have allegedly have given false or misleading responses. Further, there are no
Requests for Admissions attached to Plaintiff’s motion. Pursuant to D. Kan. Rule
37.1, motions to compel directed at discovery requests, including requests for
admission, “must be accompanied by copies of . . . the portions of the . . . requests,
or responses in dispute.” The Court has no ability to evaluate the requests and
responses at issue. Plaintiff’s motion is, therefore, DENIED in regard to
Defendants’ responses to her Requests for Admission.
Motion for Hearing (Doc. 104).
Also pending is Plaintiff’s “Motion for Hearing on Motion to Compel and
Motion for Leave to Join Additional Parties as Defendants.” (Doc. 104.) As
contained in section A, supra, he Court has evaluated the merits of Plaintiff’s
Motion to Compel. Nothing presented in the arguments of either party would
necessitate a hearing before the Court. The parties have presented nothing unusual
or complex and both parties have had an adequate opportunity to present their
arguments. As such, the Court finds no basis to justify a hearing on the Motion to
Plaintiff also requests a hearing on her Motion for Leave to Join Additional
Parties as Defendants. This motion (Doc. 46) was previously briefed by the parties
and the undersigned Magistrate Judge issued a Report & Recommendation to the
District Court that the motion to join be denied on procedural as well as substantive
grounds. (See Doc. 68, at 7-11.) Plaintiff’s motion did not comply with D. Kan.
Rule 15.1(a), which requires the moving party “attach the proposed pleading” to
the motion. Thus, the Court recommended that the motion be denied as
procedurally deficient. (Id., at 7.) Further, the Court specifically analyzed the
substantive claims and allegations Plaintiff proposed to bring against the Sedgwick
Count Sheriff’s Department and Gina Hall. In doing so, the Court found Plaintiff’s
proposal to be futile and recommended dismissal on substantive grounds. (Id., at
Thereafter, the District Court adopted in full the undersigned Magistrate
Judge’s Report & Recommendation. (See Doc. 74.) Plaintiff then moved for the
District Court to reconsider its decision. (Doc. 75.) The District Court
subsequently denied Plaintiff’s request for reconsideration, specifically finding, in
part, that Plaintiff’s claims against the newly-proposed Defendants are not
plausible and would be futile. (Doc. 105, at 3.) As such, there is no basis for the
Court to order a hearing on the motion to join. Plaintiff’s current motion (Doc.
104) is DENIED.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Compel (Doc.
94) is DENIED.
IT IS FURTHER ORDERED Plaintiff’s Motion for Hearing (Doc. 104) is
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 8th day of August, 2017.
S/ KENNETH G. GALE
KENNETH G. GALE
United States Magistrate Judge
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