Zander v. Knight Transportation, Inc. et al

Filing 52

MEMORANDUM AND ORDER adopting the Report and Recommendation; granting in part and denying in part 30 defendants' Motion for Sanctions and other relief; Pllaintiff's amended complaint(29)shall be stricken and denying 35 Plaintiff's Motion to Amend Complaint. Plaintiff's motion to comel and motion for sanction (doc 37 and 36)shall be denied; adopting (44) Report and Recommendations; granting 49 Motion to Amend/Correct. The court shall adopt the R&R of the Magistrate Judge. SEE ORDER FOR FULL DETAILS. Signed by District Judge Richard D. Rogers on 11/14/14. (meh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
WILLIAM P. ZANDER
Plaintiff,
v.
Case No. 13-4016-RDR
KNIGHT TRANSPORTATION, INC.,
GLEN PALMER; JASON JONES;
SHAWN BELL; KEVIN PREWITT;
MICHAEL HITCHCOCK; DAVID SHOBE
Defendants.
MEMORANDUM AND ORDER
Plaintiff has filed a complaint in this case alleging that
he worked for a trucking company named Knight Transportation,
Inc. (“Knight”) until he was terminated sometime in 2011 and
that

Knight

and

individual

defendants

who

worked

for

Knight

retaliated and discriminated against plaintiff in violation of
42 U.S.C. § 1981 and Kansas public policy.

Plaintiff further

alleges that Knight violated plaintiff’s rights under ERISA and
makes

claims

regarding

failures

to

investigate

various

complaints.
This

case

is

now

before

the

court

upon

a

report

and

recommendation (“R&R”) from a United States Magistrate Judge.
Doc.

No.

44.

The

R&R

makes

disposition of four motions:

recommendations

regarding

the

defendants’ motion for sanctions

and motion to strike or, alternatively a motion to compel (Doc.
No. 30); plaintiff’s motion for leave to amend the complaint
(Doc. No. 35); plaintiff’s motion to compel (Doc. No. 37); and

plaintiff’s motion for sanctions (Doc. No. 36).1

Plaintiff has

asked to amend or correct his response to the R&R (Doc. No. 49)
by deleting part D of the response.
to that motion.
I.

There has been no response

Therefore, the court shall grant Doc. No. 49.

THE R&R
There are seven enumerated parts to the recommendation made

by

the

Magistrate

defendants

in

the

Judge:
amount

1)
of

that

$500.00

as

plaintiff
a

compensate

sanction

for

his

noncompliance with discovery; 2) that plaintiff fully respond to
defendants’
production

second
of

interrogatories

documents

within

and

fourteen

second
days

of

request
the

for

court’s

order; 3) that plaintiff appear for his deposition at a time and
place in Kansas to be determined by defendants, after conferring
with counsel for plaintiff; 4) that plaintiff’s motion to compel
be denied as untimely; 5) that defendants’ motion to strike
plaintiff’s second set of integrated discovery be denied and
that defendants be granted 30 days within which to respond; 6)
that plaintiff’s motion for leave to file an amended complaint
be denied; and 7) that plaintiff be admonished that any further
failure to adequately respond to discovery or to disobey the
1

Plaintiff has filed redundant responses to defendants’ motion for sanctions,
to strike or to compel. In Doc. No. 35, plaintiff responded to defendants’
motion, asked for an order compelling production of documents and discovery,
asked for sanctions against defendants, and made a one-sentence request for
leave to file the amended complaint “erroneously filed on 17 April 2014.” In
Doc. No. 36, plaintiff responded to defendant’s motion for sanctions and
asked for sanctions against defendants. In Doc. No. 37, plaintiff responded
to defendants’ motion to compel and advanced plaintiff’s motion to compel.
Plaintiff made a copy of Doc. No. 36 part of Doc. No. 37.

2

orders of the court could result in additional sanctions against
him, including the dismissal of this case.
the

Magistrate

Judge

motion for sanctions.
II.

recommended

the

It also appears that

denial

of

plaintiff’s

R&R.

Plaintiff

See Doc. No. 44, pp. 11-13.

PLAINTIFF’S OBJECTIONS TO THE R&R
Plaintiff

has

filed

objections

to

the

objects to the $500 sanction for noncompliance with discovery.
Plaintiff also objects to the recommendation that plaintiff’s
motion for leave to file an amended complaint be denied, as well
as

to

the

proposed

denial

of

plaintiff’s

motion

to

compel

answers to discovery and of plaintiff’s motion for sanctions.
III. THE COURT
PLAINTIFF.

SHALL

ADOPT

THE

PROPOSED

SANCTIONS

AGAINST

Since the actions recommended by the Magistrate Judge do
not involve a dispositive sanction, the court shall consider
whether the objections to the R&R demonstrate that the sanction
recommended

is

clearly

erroneous

or

contrary

to

law.

FED.R.CIV.P. 72(a); see Gomez v. Martin Marietta Corp., 50 F.3d
1511, 1519 (10th Cir. 1995)(penalty to be imposed controls scope
of review).
The Magistrate Judge found that plaintiff was ordered on
March

18,

2014

to

respond

“forthwith”

interrogatories and request for documents.

to

defendants’

second

Plaintiff did not do

so, in spite of being reminded by defendants’ counsel in writing

3

and over the phone that the responses were necessary for defense
counsel

to

prepare

for

plaintiff’s

deposition.

One

of

defendants’ interrogatories asked plaintiff to identify other
employees

of

defendant

Knight

who

discriminated against by Knight.
information

would

assist

plaintiff

asserted

were

The court understands why such

counsel

in

preparing

to

take

plaintiff’s deposition.
Plaintiff’s deposition was to be taken the week of April
14, 2014.

Plaintiff, who is an over-the-road trucker, drove

from California to Kansas City without notice to defense counsel
on April 16, 2014 and asked defense counsel to do his deposition
the following day, April 17, 2014.
because,

in

addition

to

not

Defense counsel declined

having

plaintiff’s

answers

discovery, defense counsel was already scheduled that day.

to
It

was agreed to do the deposition on April 25, 2014 if plaintiff
supplied

the

discovery

answers

some

days

ahead

Plaintiff did not provide the discovery answers.
doing

the

cancelled

deposition,
the

on

deposition

April

and

24,

filed

a

2014

of

So, instead of
defense

motion

time.

for

counsel

sanctions.

Plaintiff received oral notice of the deposition’s cancellation.
The Magistrate Judge determined that defendants were caused
additional
discovery

attorney’s
deadlines

fees
and

by

plaintiff’s

plaintiff’s

4

failure

interference

to
with

meet
the

judicial process.

Therefore, a sanction in the amount of $500

was recommended.
Plaintiff’s
failed

to

objection

to

the

respond

to

defendants’

timely

R&R

admits

that

plaintiff

discovery

requests.

Plaintiff argues, in essence, that defendants should not have
cancelled the deposition date, even though plaintiff did not
timely respond to the discovery requests, because it was a large
inconvenience for plaintiff to come to Kansas City twice for his
deposition and defense counsel did not timely and adequately
inform

plaintiff

Plaintiff

that

asserts

the

that

the

depositions

would

inconvenience

he

be
was

cancelled.
caused

by

fruitlessly travelling a long distance to attend his deposition
is a sufficient sanction.
The court denies this objection for the following reasons.
First, the inconvenience suffered by plaintiff does not serve to
compensate

defendants

for

the

attorney’s

fees

caused

by

plaintiff’s delay in responding to discovery as ordered by the
court.

Second,

plaintiff’s

plaintiff’s

conduct,

not

inconvenience

defendants’

was

conduct.

caused

by

Plaintiff

appeared in Kansas City on April 16, 2014 on his own, without
arranging for a deposition date in advance with defense counsel.
Defense

counsel

should

not

be

faulted

for

not

changing

his

schedule at the last minute for the following day, especially
when plaintiff had failed to follow court orders.
5

In addition,

it

appears

that

if

plaintiff

had

made

timely

responses

to

defendants’ interrogatories, plaintiff’s deposition on April 25,
2014 would not have been cancelled and plaintiff would not have
been so inconvenienced.

Finally, the option of conducting the

deposition and then reconvening the deposition at a later date
to cover matters which were disclosed, if and when plaintiff
made responses to discovery, would cause inconvenience to both
sides of this lawsuit.
For

these

reasons,

the

sanction

recommended

by

the

Magistrate Judge is not clearly erroneous or contrary to law.
IV. THE COURT SHALL ADOPT THE RECOMMENDATION TO DENY PLAINTIFF’S
MOTION FOR LEAVE TO AMEND THE COMPLAINT.
Plaintiff, acting pro se, filed an amended complaint on
April 17, 2014, long after the August 1, 2013 deadline set for
filing

a

motion

for

leave

to

amend

the

pleadings.

The

Magistrate Judge found that plaintiff did not show good cause
for permitting an amendment after the deadline.

Plaintiff’s

objection does not directly address the failure to show cause
for seeking to amend the complaint more than eight months after
the deadline.2

Plaintiff argues that the amendment is justified

because the law requires defendant Knight to provide ERISA plan
documents when requested by plaintiff and that Knight has failed
2

During this eight-month period, plaintiff was represented by counsel into
December 2013. He proceeded pro se thereafter until counsel for plaintiff
reentered the case on July 25, 2014. Counsel has recently filed a motion to
withdraw again from plaintiff’s representation. Doc. No. 50. This motion
was denied without prejudice on November 12, 2014. Doc. No. 51.

6

to do so.
seeking

This argument does not justify plaintiff’s delay in

to

amend

the

complaint,

especially

when

plaintiff

asserts that he asked for ERISA plan documents when he initially
filed this lawsuit in February 2013.
Whether the court applies a de novo standard or a clearly
erroneous standard to the recommendation to deny the motion to
amend,

the

court

finds

that

the

recommendation

should

be

followed.
V. THE COURT SHALL ADOPT THE RECOMMENDATION TO DENY PLAINTIFF’S
MOTION TO COMPEL AND PLAINTIFF’S MOTION FOR SANCTIONS.
The Magistrate Judge recommended that plaintiff’s motion to
compel (Doc. No. 37) and motion for sanctions (Doc. No. 36) be
denied

because

certification

they
to

were

show

untimely
a

and

reasonable

failed

to

effort

include

to

a

confer.

Plaintiff’s objections to the R&R assert that the motion to
compel

should

be

granted

because

defendants

responses to plaintiff’s discovery requests.

made

improper

This response does

not address the finding that the motion to compel is untimely
and failed to include the necessary certification of efforts to
confer.

Plaintiff’s objections to the R&R also contend that

defendants should incur sanctions for defense counsel’s failing
to appear for plaintiff’s deposition.
does

not

answer

the

failure

of

Again, this objection

plaintiff

to

follow

the

requirement of certifying compliance with the duty to confer.

7

Therefore, the court shall reject plaintiff’s objections to the
proposed disposition of the motion to compel and plaintiff’s
motion for sanctions.

Plaintiff has not demonstrated that the

recommendations are clearly erroneous or contrary to law.
VI. PLAINTIFF’S REMAINING OBJECTIONS
THEY DO NOT RELATE TO THE R&R.

SHALL

BE

DENIED

BECAUSE

Plaintiff has objected that he should be allowed to serve
written

deposition

questions

upon

defense

counsel.

This

objection, however, does not relate to the recommendations made
in the R&R.

Therefore, the court shall deny this objection

without prejudice to plaintiff raising the request before the
Magistrate Judge.
VII. WAIVER OF OBJECTIONS
Those items of the R&R to which no objection has been made
shall be adopted by the court.

See U.S v. One Parcel of Real

Property, 73 F.3d 1057, 1060 (10th Cir. 1996)(a party must make
specific objections to an R&R to preserve an issue for review by
the district court or for appellate review).
VIII. CONCLUSION
In

conclusion,

Magistrate

Judge

the

and

court

direct

shall

as

adopt

follows:

the
1)

R&R

that

of

the

plaintiff

compensate defendants in the amount of $500.00 as a sanction for
his

noncompliance

with

discovery;

2)

that

plaintiff

fully

respond to defendants’ second interrogatories and second request

8

for production of documents within fourteen days of the court’s
order; 3) that plaintiff appear for his deposition at a time and
place in Kansas to be determined by defendants, after conferring
with

counsel

for

plaintiff,

if

plaintiff

continues

to

have

counsel; 4) that plaintiff’s motion to compel and motion for
sanctions

be

denied

as

untimely

and

for

failing

to

certify

compliance with the duty to confer; 5) that defendants’ motion
to

strike

plaintiff’s

second

set

of

integrated

discovery

be

denied and that defendants be granted 30 days within which to
respond; 6) that plaintiff’s motion for leave to file an amended
complaint be denied; and 7) that plaintiff be admonished that
any

further

failure

to

adequately

respond

to

discovery

or

further disobedience of the orders of the court could result in
additional

sanctions

against

him,

including

the

dismissal

of

motion

for

this case.
Consistent

with

these

rulings,

defendants’

sanctions and other relief (Doc. No. 30) shall be granted in
part and denied in part; plaintiff’s amended complaint (Doc. No.
29)

shall

be

stricken

and

plaintiff’s

motion

to

amend

the

complaint (Doc. No. 35) shall be denied; plaintiff’s motion to
compel and motion for sanctions (Doc. Nos. 37 and 36) shall be
denied; and plaintiff’s motion to amend/correct (Doc. No. 49)
shall be granted.

9

IT IS SO ORDERED.
Dated this_14th day of November,2014,at Topeka,Kansas.

s/RICHARD D. ROGERS
Richard D. Rogers
United States District Judge

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