Caranchini v. Peck et al
Filing
110
MEMORANDUM AND ORDER denying 65 Gwen Caranchini's Motion to Court to Require Defendants to "Engage" with Plaintiff and Motion to Set Aside Stay of Discovery in this Matter and Motion to Require the Parties to Enter into a Scheduling Order and Shortened Factual Summary for Court's Information; finding as moot 74 Gwen Caranchini's Motion for Sanctions Pursuant to F. R. Civ. P. 11(b)(1) Against Defense Counsel Linus Baker, Kirk Ridgeway, and Stephen Phillips; granting 80 Gwen Caranchini's Withdrawal of Her Motion for Sanctions Pursuant to F. R. Civ. P. 11(b)(1) Against Defense Counsel Linus Baker, Kirk Ridgeway, and Stephen Phillips. See order for further details. Signed by Magistrate Judge Teresa J. James on 10/26/2018. (mn)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GWENDOLYN G. CARANCHINI,
Plaintiff,
v.
Case No. 18-2249-CM-TJJ
LOLA PECK, et al.,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on the following motions, all filed by pro se Plaintiff
Gwendolyn Caranchini: Gwen Caranchini’s Motion to Court to Require Defendants to “Engage”
with Plaintiff and Motion to Set Aside Stay of Discovery in this Matter and Motion to Require
the Parties to Enter into a Scheduling Order and Shortened Factual Summary for Court’s
Information (ECF No. 65); Gwen Caranchini’s Motion for Sanctions Pursuant to F. R. Civ. P.
11(b)(1) Against Defense Counsel Linus Baker, Kirk Ridgeway, and Stephen Phillips (ECF No.
74); and Gwen Caranchini’s Withdrawal of Her Motion for Sanctions Pursuant to F. R. Civ. P.
11(b)(1) Against Defense Counsel Linus Baker, Kirk Ridgeway, and Stephen Phillips (ECF No.
80). For the reasons set forth below, the Court denies ECF No. 65, finds as moot ECF No. 74,
and grants ECF No. 80.
I.
Brief Procedural History
This case was originally filed in the Western District of Missouri.1 After the matter was
dismissed in Missouri for lack of personal jurisdiction over the defendants,2 Plaintiff filed the
1
See ECF No. 1 at 10. See also ECF No. 70 at 1.
2
ECF No. 1 at 10–11.
present lawsuit in this Court on May 14, 2018. The defendants are Rick and Lola Peck (“the
Pecks”); Johnson County, Kansas Sheriff Calvin Hayden (“the Sheriff”);3 and the Johnson
County, Kansas District Attorney’s Office, Johnson County Assistant District Attorneys John
Fritz and Michael McElhinney, and Johnson County Magistrate Judges Dan Vokins and James
E. Phelan (“the State Defendants”).4
All three groups of defendants have filed dispositive motions.5 The Sheriff and the State
Defendants each raised immunity arguments in their motions to dismiss, and the Pecks’
dispositive motion is based on the Kansas anti-SLAPP statute. Because of the immunity defense
raised by the Sheriff, the Court stayed discovery pending ruling on the dispositive motions on
July 10, 2018.6 Although Plaintiff objected to the request to stay discovery, the Court found that
Plaintiff failed to “articulate any reason why the stay should not be granted in light of the defense
of qualified immunity raised in the motion to dismiss.”7
The Court also denied two of Plaintiff’s motions for hearing.8 One motion was based on
Plaintiff’s request for jail records, which the Court deferred ruling on pending any lifting of the
stay of discovery. The other was based on Plaintiff’s perceived lack of communication with
defense counsel. The Court found that Plaintiff failed to point to any authority to justify “a
hearing or conference with opposing counsel at this stage of the proceedings.”9
On October 15, 2018, District Judge Murguia granted Sheriff Calvin Hayden’s motion to dismiss, thus dismissing
Sheriff Hayden as a party to this action (ECF No. 92).
3
4
Defendant Corizon has never been served the Summons and Complaint. The Court has ordered Plaintiff to show
cause as to why Corizon should not be dismissed without prejudice for failure to serve Corizon within 90 days of
filing the Complaint (ECF No. 93).
5
ECF No. 3; ECF No. 11; ECF No. 69.
6
ECF No. 46.
7
Id. at 2.
8
ECF No. 20 and ECF No. 43.
9
ECF No. 46 at 3.
2
On September 7, 2018, Plaintiff filed her motion to set aside the discovery stay, among
other requests. She filed her motion for sanctions on September 28, 2018, and her motion to
withdraw her motion for sanctions on October 3, 2018.
II.
Motion to Lift the Discovery Stay
In this motion, Plaintiff requests the Court require defense counsel to “engage” with her
by telephone or in person, set aside the stay of discovery, and require the parties enter into a
scheduling order. Plaintiff begins by complaining that she has “never met or verbally
communicated in person or by telephone at any time with any of the defense counsel or their
staff” throughout this case.10 Plaintiff also says Magistrate Judge Rushfelt, who was previously
assigned to this case before his retirement on September 12, 2018, “refused to address the issue”
of defense counsel not meeting with or talking to Plaintiff.11 Plaintiff combines this issue with
her request to set aside the stay of discovery. Plaintiff does not cite any authority for her request.
Plaintiff next requests the Court enter a scheduling order, despite acknowledging the
pending dispositive motions Defendants have filed. Plaintiff details some of the discovery she
intends to seek, much of which is directed at the Sheriff, who has been dismissed from this
action.12
The remainder of Plaintiff’s motion is a recitation of some of the facts included in her
Complaint, to the best of her recollection.
10
ECF No. 65 at 2 (emphasis in the original).
Id. at 3. The Court also notes throughout Plaintiff’s motion that Plaintiff accuses Judge Rushfelt of bias against
her, without providing any evidence of such, and goes so far as to suggest that the “Senior Judges ‘asked’ Magistrate
Rushfelt to take ‘retirement’ because of His actions directed to the undersigned.” (ECF No. 72 at 3). Judge Rushfelt
announced his retirement in April, before this case was filed. He retired on September 12, 2018 after 33 years of
service on the bench. Any complaint Plaintiff had with Judge Rushfelt had no impact on his retirement.
11
12
ECF No. 92.
3
Defendants argue Plaintiff’s motion appears to be a motion to reconsider, and Plaintiff
failed to comply with D. Kan. Rule 7.3(b) or even cite the rule as authority for her motion.
Plaintiff does not dispute that her motion is a request for reconsideration but instead expresses
the belief she does not need to comply with D. Kan. Rule 7.3 because the change of magistrate
judge allows a “start over.”13 Plaintiff provides no authority for this position.
The parties agree that whether to grant a motion for reconsideration is within the Court’s
discretion.14 The Court finds that Plaintiff’s motion requests reconsideration of Judge Rushfelt’s
Memorandum and Order entered July 20, 2018.15 In that order, Judge Rushfelt entered a stay of
discovery and denied Plaintiff’s requests for a hearing and to require telephone or in-person
communication with defense counsel. District of Kansas Rule 7.3 governs motions to reconsider.
Rule 7.3(b) says a party “seeking reconsideration of non-dispositive orders must file a motion
within 14 days after the order is filed unless the court extends the time. A motion to reconsider
must be based on: (1) an intervening change in controlling law; (2) the availability of new
evidence; or (3) the need to correct clear error or prevent manifest injustice.”
First, Plaintiff’s motion is out of time. Judge Rushfelt’s order was entered July 20, 2018.
Plaintiff did not file her motion until September 7, 2018. But even if it were filed timely, none of
the factors apply here. Plaintiff cites no intervening change in controlling law, no new evidence,
and no need to correct clear error or prevent manifest injustice. She argues the factors are
inapplicable because the undersigned is not the judge who entered the order and did not join with
Judge Rushfelt in his ruling. She also believes that because there is a new magistrate judge
13
ECF No. 72 at 5.
14
Geer v. Cox, 219 F.R.D. 527, 528 (D. Kan. 2003) (citation omitted).
15
ECF No. 46.
4
assigned, “the ‘deadlines’ are inapplicable.”16 This is not the case. The fact that Judge James is
now the assigned magistrate judge in the case, rather than Judge Rushfelt, does not alter the
existing deadlines in the case. All deadlines previously established in this case continue to be in
place, absent an order extending them.17
In the previous order Plaintiff now wants reconsidered, the Court also found Plaintiff had
failed to provide any authority that would require a conference call or in-person meeting with
opposing counsel at this stage of the proceedings. Plaintiff again fails to provide any such
authority in any of her motions before the Court now. Plaintiff says in her 40 years of experience
as an attorney, she never had a case where she did not meet or talk with defense counsel. She
provides no local, federal, or other rule or any other authority for her request. She blames the
lack of contact by telephone on opposing counsel being “45 and younger.”18 Again, as Judge
Rushfelt held previously, at this stage and posture of the case, there is no authority for Plaintiff’s
request of a conference call or in-person meeting with opposing counsel.
Plaintiff also fails to cite any authority for why the discovery stay should be lifted or for
entering a scheduling order at this time. In fact, District Judge Murguia has already granted the
Sheriff’s motion to dismiss.19 The State Defendants’ motion to dismiss has not yet been decided,
but it also raises immunity issues. As previously stated in the order granting the discovery stay, a
defendant is generally entitled to have questions of immunity resolved before being required to
engage in discovery.20 Plaintiff has provided no basis, either in her original opposition to the
16
ECF No. 73 at 5.
17
See D. Kan. Rule 6.1.
18
ECF No. 65 at 4.
19
ECF No. 92.
20
Pfuetze v. Kansas, No. 10-1139-CM-GLR, 2010 WL 3718836 (D. Kan. Sept. 14, 2010) (citing Siegert v. Gilley,
500 U.S. 226, 232 (1991)).
5
motion to stay discovery or her motion here, that convinces the Court to lift the stay. Because of
the remaining pending dispositive motions, a discovery stay is still appropriate at this time.
Because discovery is stayed, the Court will not enter a scheduling order. Should the discovery
stay be lifted after the district judge rules on the State Defendants’ and the Pecks’ dispositive
motions, the Court will set a scheduling conference when and as appropriate to discuss the
scheduling order.
Even if Plaintiff’s motion is not a motion for reconsideration and instead is a new motion
raising the same issues previously raised, the motion is denied for the reasons stated above.
Plaintiff has not provided any authority for requiring defense counsel to talk to her on the phone
or meet with her in person, or for lifting the discovery stay.
III.
Motion for Sanctions and Motion to Withdraw Motion for Sanctions
Plaintiff filed a motion for sanctions against all defense counsel on September 28, 2018.
In this motion, Plaintiff says she was admitted to practice law in the state of Missouri in 1978,
and subsequently disbarred in 1997. Plaintiff takes issue with defense counsel referencing her
disbarment in their briefing and asks the Court to sanction Defendants under Fed. R. Civ. P.
11(b)(1). Specifically, she requests monetary sanctions and entry of an order that Defendants are
barred from referencing Plaintiff’s disbarment or making any comment about Plaintiff referring
to herself as an attorney.
Plaintiff argues that her disbarment took place 21 years ago, and Defendants reference it
“as if it occurred yesterday” and do so only “to hurt Caranchini and hurt Caranchini’s case at any
particular time.”21 She further argues that after her disbarment, she contacted the Merit Systems
Protection Board (MSPB) and the Equal Employment Opportunity Commission (EEOC) to ask
21
ECF No. 74 at 3.
6
whether she could continue to hold herself out as an attorney. Both said that she could. As a
result, Plaintiff calls herself an attorney but does not hold herself out as licensed in any particular
state.
Defendants argue Plaintiff’s motion should be denied for failure to comply with the Fed.
R. Civ. P. 11(c) safe harbor requirements. Further, they argue even if the Court considered the
motion on its merits, Plaintiff provides no justification for the Court to impose sanctions.
Plaintiff then filed her motion to withdraw the motion for sanctions. She says Fed. R.
Civ. P. 11 “has changed substantially” since she last referred to it in 1995, and although she read
it before filing her motion for sanctions, “she clearly misinterpreted the rule and its
requirements.”22 Besides requesting the Court withdraw her motion for sanctions, Plaintiff also
asks the Court to strike the Pecks’ response to the motion for sanctions, without explaining why.
The State Defendants do not oppose the withdrawal of the motion for sanctions but
request a protective order prohibiting Plaintiff from requesting the same or similar relief as
sought in the motion, and that the Court impose filing restrictions prohibiting Plaintiff from
filing any further motions except motions for extension until all dispositive motions are ruled on.
The Pecks do not oppose the withdrawal of the motion for sanctions so long as it is
denied with prejudice so that Plaintiff could not seek the same relief in the future. They also
oppose the request that their response be struck. They further request notice that further filings
by Plaintiff seeking the same relief subject Plaintiff to filing restrictions.
The Court grants Plaintiff’s motion to withdraw her motion for sanctions. The withdrawn
motion for sanctions is therefore moot. The Court will not impose filing restrictions at this time.
The Court in its discretion does, however, have authority to impose filing restrictions under
22
ECF No. 80 at 2.
7
certain circumstances on litigants who abuse the judicial process. “The right of access to the
courts is neither absolute nor unconditional and there is no constitutional right of access to the
courts to prosecute an action that is frivolous or malicious.”23 Although the Court does not
impose filing restrictions at this time, it may impose “carefully tailored restrictions under the
appropriate circumstances” in the future upon motion by a party.24 The Court admonishes
Plaintiff that she must assume responsibility for familiarizing herself with the Federal Rules of
Civil Procedure, including Rule 11, and for following them. If Plaintiff commits further
violations, she may in fact subject herself to sanctions, which could include filing restrictions.
IT IS THEREFORE ORDERED BY THE COURT that Gwen Caranchini’s Motion to
Court to Require Defendants to “Engage” with Plaintiff and Motion to Set Aside Stay of
Discovery in this Matter and Motion to Require the Parties to Enter into a Scheduling Order and
Shortened Factual Summary for Court’s Information (ECF No. 65) is denied.
IT IS FURTHER ORDERED that Gwen Caranchini’s Motion for Sanctions Pursuant to
F. R. Civ. P. 11(b)(1) Against Defense Counsel Linus Baker, Kirk Ridgeway, and Stephen
Phillips (ECF No. 74) is found as moot.
IT IS FURTHER ORDERED that Gwen Caranchini’s Withdrawal of Her Motion for
Sanctions Pursuant to F. R. Civ. P. 11(b)(1) Against Defense Counsel Linus Baker, Kirk
Ridgeway, and Stephen Phillips (ECF No. 80) is granted.
23
Salem v. Kansas, No. 15-2209-CM-JPO, 2015 WL 1886707, at *6 (D. Kan. Apr. 24, 2015) (citing Sieverding v.
Colo. Bar Ass'n, 469 F.3d 1340, 1343 (10th Cir. 2006) (internal citations omitted)).
24
Ysais v. Richardson, 603 F.3d 1175, 1180 (10th Cir. 2011) (citing Tripati v. Beaman, 878 F.2d 351, 352 (10th Cir.
1989)).
8
IT IS SO ORDERED.
Dated October 26, 2018, at Kansas City, Kansas.
Teresa J. James
U. S. Magistrate Judge
9
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