Zander v. Knight Transportation, Inc. et al

Filing 82

MEMORANDUM AND ORDER denying 66 Motion to Compel; denying 69 Motion to Compel; denying 70 Motion to Produce. Plaintiff shall have fourteen days from the date of this Memorandum and Order to show cause why this Court should not award Defenda nts their reasonable expenses, including attorney's fees. See Memorandum and Order for additional information. Signed by Magistrate Judge Gerald L. Rushfelt on May 15, 2015. Mailed to pro se party William P. Zander by regular mail and by certified mail; Certified Tracking Number: 7012 3460 0000 8262 7969. (gc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

WILLIAM P. ZANDER,

)
)
Plaintiff,
)
)
v.
)
)
KNIGHT TRANSPORTATION,
)
INC., et al.,
)
)
Defendants. )

No. 13-4016-RDR-GLR

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion to Compel (ECF 66), Plaintiff’s
Motion to Compel Discovery (ECF 69) and Plaintiff’s Notice of Protection and Request to
Produce to Defendant Knight Transportation (ECF 70). The matters are fully briefed and the
Court is prepared to rule. For the reasons set forth below, the motions are denied.
I.

Plaintiff’s Motion to Compel (ECF 66)
Construing the motion liberally, it appears as though Plaintiff is asking the Court to

compel Defendant Knight Transportation’s counsel to produce recordings of voicemail messages
left by Plaintiff, recordings of phone conversations between Plaintiff and defense counsel, and
“phone records of cancelation of deposition 4/25/14.”
The Court finds that the motion is deficient for failure to comply with Fed. R. Civ.
P. 37(a)(1) and D. Kan. Rules 37.1(a) and 37.2. Fed. R. Civ. P. 37(a)(1) provides that a motion
to compel discovery “must include a certification that the movant has in good faith conferred or
attempted to confer with the person or party failing to make disclosure or discovery in an effort to

obtain it without court action.” Although pro se filings are to be construed liberally, “procedural
rules in ordinary civil litigation should [not] be interpreted so as to excuse mistakes by those who
proceed without counsel.” Samadi v. Bank of America, N.A., 476 Fed. App’x 819, 821 (11th Cir.
2012) (quoting McNeil v. United States, 508 U.S. 106, 113 (1993)). Thus, a district court is not
required to grant a pro se plaintiff’s motion to compel when he fails to certify that he conferred in
good faith with opposing counsel as required by Fed. R. Civ. P. 37(a)(1). Id.; see also Ogle v.
Columbia Gas Transmission., LLC, No. 2:10-cv-1059, 2014 WL 3895500, *4 (S.D. Ohio Aug. 8,
2014) (noting that the court has denied pro se motions for failure to comply with Fed. R. Civ.
P. 37(a)(1)); McKinzy v. BNSF Ry. R.R., No. 08–2365–CM, 2009 WL 4891893, *1 (D. Kan. Dec.
10, 2009).
D. Kan. Rule 37.1 provides that a motion relating to discovery must be accompanied by
copies of the notices of depositions, or the portions of the interrogatories, requests, or responses
in dispute. The motion does not attach a discovery request or response as required by D. Kan.
Rule 37.1. Rather, the motion seeks to compel production based on a “duty to preserve” and
attaches a “Legal Hold and Spoilation Letter” drafted by Plaintiff. (ECF 67 at 7). On one hand,
the motion suggests that Defendant failed to preserve or even destroyed the recordings. Other
parts of the motion suggest that the discs were previously turned over to Plaintiff’s counsel but
not given to Plaintiff or that the discs “failed to play.”
The Court held a phone status conference on January 20, 2015. Plaintiff appeared pro se
and Defendants appeared through counsel, James C. Sullivan. During the phone conference,
defense counsel indicated that he had previously given the recordings to Plaintiff’s prior counsel,
but agreed to provide them again to Plaintiff. The Court asked counsel to file a notice of service

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with the Court when this additional production was served on Plaintiff. On January 23, 2015,
Defendant Knight Transportation filed a Certificate of Service of Defendant Knight
Transportation, Inc. (ECF 68). Defendant certifies that on January 22, 2015, transcripts of the
phone conversations in issue and CDs containing the conversations and phone messages, were
sent via U.S. Priority Mail to Plaintiff. Plaintiff filed his motion to compel on January 23, 2015,
three days after the phone status conference and without satisfying the duty to meet and confer
prior to filing. If Plaintiff had conferred with counsel prior to filing his motion, he would have
been made aware that the items were sent to Plaintiff the previous day. The Court finds that the
motion must be denied for lack of merit and for failure to comply with Fed. R. Civ. P. 37(a)(1)
and D. Kan. Rules 37.1(a) and 37.2.
II.

Plaintiff’s Motion to Compel Responses to Plaintiff’s Second Set of Integrated
Discovery to Defendant Knight Transportation (ECF 69)
Plaintiff’s second motion to compel also fails to include a certification to show a

reasonable effort to confer. As previously noted, motions to compel “must include a certification
that the movant has in good faith conferred or attempted to confer with the person or party failing
to make disclosure or discovery in an effort to obtain it without court action.”1 The “court will
not entertain any motion to resolve a discovery dispute . . . unless . . . the moving party has
conferred or has made reasonable effort to confer with opposing counsel concerning the matter in
dispute prior to the filing of the motion.”2 A “reasonable effort to confer” means “more than

1

Fed. R. Civ. P. 37(a)(1).

2

D. Kan. Rule 37.2.

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mailing or faxing a letter to the opposing party. It requires that the parties in good faith converse,
confer, compare views, consult, and deliberate, or in good faith attempt to do so.”3
Defendants have responded to the motion, setting forth a table showing that Plaintiff’s
second set of discovery is identical to Plaintiff’s first set of discovery, with a few insignificant
differences (ECF 73–6). Many of the requests in Plaintiff’s second set of discovery repeat the
request from the first set of discovery, then add a sentence indicating that Plaintiff did not receive
the documents allegedly produced by Defendants in response to the first set of discovery.
Defendants Response (ECF 73) shows that Defendants have re-produced many items that were
previously produced. Given the various motions claiming that Plaintiff has not received
documents produced by Defendants, it is understandable that Defendants felt it necessary to
request that Plaintiff confirm that he has the produced documents so that Defendants could
proceed with Plaintiff’s deposition. Plaintiff has refused to comply with this request, therefore
his deposition still has not been scheduled.
The Court denies the second motion to compel for failure to comply with Fed. R. Civ.
P. 37(a)(1) and D. Kan. Rule 37.2. Plaintiff not only failed to fulfill his obligation to meet and
confer, he has failed to cooperate with Defendants’ request for him to confirm that he has the
documents that have been produced by Defendants.
III.

Plaintiff’s Notice of Protection and Request to Produce (ECF 70)
The third motion filed by Plaintiff is a single page with a single paragraph entitled

“Statement of Facts.” It attaches Plaintiff’s responses to Defendants’ second set of
interrogatories to Plaintiff, as well as correspondence and documents relating to Plaintiff’s
3

Id.

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deposition previously scheduled for May 29, 2012. Plaintiff again mentions compelling
Defendants to turn over phone records relating to the cancellation of his previously scheduled
deposition. The motion acknowledges that Defendants sent Plaintiff a list of discovery they had
produced, asking Plaintiff to review the list. The motion is largely uncomprehensible and the
Court cannot ascertain what relief it seeks, if any. If it is to compel some production from
Defendants, the motion again fails to certify that Plaintiff has met his meet-and-confer
obligations, fails to attach to the motion whatever discovery requests or responses are at issue,
and fails to provide a supporting brief or memorandum, as required by D. Kan. Rule 7.6(a). The
Court denies the Notice and Request, as it specifies nothing for the Court to provide.
IV.

Conclusion
The Court denies Plaintiff’s motions for the reasons set forth above. Defendants’

Response (ECF 74) as well as this Court’s and the District Court’s previous orders (ECF 44, 52)
show the lack of cooperation from Plaintiff and Plaintiff’s repeated failures to abide by the
Court’s orders and rules. Plaintiff has frustrated and failed to cooperate with the discovery
process and has obstructed Defendants’ ability to schedule and take his deposition. Plaintiff was
made aware of the Court’s meet and confer rule in this Court’s previous Report and
Recommendation. (ECf 44 at 12–13). Plaintiff failed to work with Defendants by responding to
their request for him to confirm his receipt of the produced documents, some of which
Defendants have produced multiple times.
This Court’s Report and Recommendation (ECF 44), as well as the District Court’s
Memorandum and Order adopting the Report and Recommendation (ECF 52), admonished
Plaintiff that any further failure to adequately respond to discovery or further disobedience of the

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orders of the Court could result in additional sanctions against him, including the dismissal of his
case. (ECF 52 at 9). The Court hereby repeats that admonition and warns Plaintiff that dismissal
of this case could very readily occur as a sanction for any further noncompliance or failure on his
part.
Defendants are seeking reasonable expenses incurred in opposing Plaintiff’s motions
pursuant to Fed. R. Civ. P. 37(a)(5)(b). Rule 37(a)(5)(B) provides that:
If the motion is denied, the court may issue any protective order
authorized under Rule 26(c) and must, after giving an opportunity
to be heard, require the movant, the attorney filing the motion, or
both to pay the party or deponent who opposed the motion its
reasonable expenses incurred in opposing the motion, including
attorney’s fees. But the court must not order this payment if the
motion was substantially justified or other circumstances make an
award of expenses unjust.
The Court will give Plaintiff fourteen days from the date of this Order to show cause
why this Court should not award Defendants their reasonable expenses, including attorney’s fees,
in opposing the three motions denied by this Memorandum and Order.
IT IS SO ORDERED.
Dated this 15th day of May, 2015, in Kansas City, Kansas.

S/Gerald L. Rushfelt
Gerald L. Rushfelt
U.S. Magistrate Judge

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