Coffman v. Hutchinson Community College

Filing 62

ORDER granting 43 Defendant Hutchinson Community College's Motion to Quash; granting 53 Motion for Extension of Time to Answer; granting 54 Motion for Extension of Time to Answer; granting 59 Motion for Extension of Time to Answer. A ll defendants' deadlines to answer or otherwise respond to the Complaint are extended to December 22, 2018. Plaintiff's deadline to achieve service on Ms. Sanchez is extended to December 21, 2017, and the US Marshal or deputy marshal shall undertake service of process on individual defendant Kathy Sanchez. See Order for details. Signed by Magistrate Judge Gwynne E. Birzer on 11/29/17. Mailed to pro se party Dustin D. Coffman by regular mail. (sj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DUSTIN D. COFFMAN,

)
)
Plaintiff,
)
)
v.
)
)
HUTCHINSON COMMUNITY COLLEGE, )
et al.,
)
)
Defendants.
)
)

Case No. 17-4070-SAC-GEB

ORDER
This matter is before the Court on defendant Hutchinson Community College’s
Motion to Quash Subpoenas (ECF No. 43) and motions by various defendants for
extensions of time to file their answers to Plaintiff’s Complaint (ECF Nos. 53, 54, and
59). In addition, the Court has before it Plaintiff’s various responses to the Court’s Show
Cause Order (Order, ECF No. 38). For the reasons set forth below, Defendants’ motions
are GRANTED, and the Court finds Plaintiff has shown good cause for his prior failure
to serve the individual Defendants with process.

I.

Background
An in-depth discussion of the factual and procedural background of this case was

included in previous orders and will not be repeated. Generally speaking, Plaintiff filed
this case, acting pro se, against Hutchinson Community College (“HCC”), claiming the

school and certain of its instructors and administrators violated his constitutional rights
by dismissing him from HCC’s nursing program.
Since filing his case on August 7, 2017, numerous motions have been presented
for the Court’s consideration. In the undersigned U.S. Magistrate Judge’s Memorandum
and Order of September 9, 2017, Plaintiff’s request for counsel and six other motions
were denied (ECF No. 23). On October 3, 2017, the undersigned considered three more
of Plaintiff’s motions for various forms of relief, all of which were denied (Order, ECF
No. 34). In addition to the motions decided by the Magistrate Judge, the District Judge
denied Plaintiff’s early motion for summary judgment (Order, ECF No. 19), and granted
in part and denied in part defendant HCC’s motion to dismiss (Order, ECF No. 28).

II.

Plaintiff’s Responses to the Court’s Show Cause Order (ECF No. 33)
In Judge Crow’s September 22 order, he found Plaintiff failed to properly serve

the individual defendants with process (ECF No. 28, at 7, 10). In addition to this finding,
Judge Crow explained, at length, the law regarding proper service of individuals (see
Order, ECF No. 28, at 6-7). After 30 days had passed with no evidence of service
attempts, the undersigned issued a Notice and Order to Show Cause, requiring Plaintiff to
show cause in writing, on or before November 6, 2017, why she should not recommend
to the District Judge that Plaintiff’s claims against the five individual defendants should
be dismissed with prejudice for lack of prosecution under Fed. R. Civ. P. 41(b) for his
failure to serve the individual defendants (ECF No. 38).

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Soon after being ordered to show cause, Plaintiff filed returns of service
evidencing successful service of process on three of the five individual defendants:
Debra Heckler, Jay Ballard, and Janet Hamilton. These three defendants have now
entered their appearances in this matter. Additionally, in a recent motion for extension of
time (discussed below), Cindy Hoss acknowledges recent service (ECF No. 59).
However, one individual defendant—Kathy Sanchez—has yet to be successfully served
and has not voluntarily appeared.
Plaintiff’s first written Response to the Show Cause Order (ECF No. 50) notes he
contracted with his mother to serve the summons. Although his argument is difficult to
follow, it appears he claims because the individual defendants were acting as employees
of the college when they allegedly violated his rights, and are currently employees, he
should be able to serve the individual defendants at the college under “the master is
servant clause.” (Resp., ECF No. 50, at 4.) Additionally, he seems to believe that,
because he notified the president of HCC, all defendants are (or should be) aware of the
claims against them (Id., at 12). Despite these beliefs, he acknowledges the Court’s
orders requiring him to serve the individuals at their home under K.S.A. §§ 60-303,
304(a). (Id., at 14.) He contends he “had Kathy Sanchez summons refused and returned
to [him].” He argues, “[s]ince the individuals refused to be served at home that means
the summons [sic] to their jobs was valid.” (Id.) He also appears frustrated that the
defense intentionally failed to sign and return the Waiver of Service of Summons form
sent to the HCC President’s office over two months ago, and mistakenly believes he

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cannot comply with the Court’s order to serve all defendants until the waiver is returned
to him. (Id. at 17.)
The record clearly reflects Plaintiff’s attempts to serve Ms. Sanchez by certified
mail. He includes his certified mail tracking slips (ECF No. 50, at 20) and claims Ms.
Sanchez either failed or refused to sign for the certified mail. The return filed by Plaintiff
(ECF No. 49) shows a summons was sent by certified mail to what appears to be a
residential address. The return also states the summons was “sent to [her] place of
business [at] Hutchinson Community College as well as [her] residence.” (ECF No. 49, at
1). The mailing was “ Received returned un-opened – [Return To Sender], [Not At This
Address].” (Id.)
Plaintiff is undoubtedly attempting to serve Ms. Sanchez as ordered, and
extending him some latitude as a pro se litigant, the Court acknowledges his efforts and
finds he has demonstrated good cause for his case to avoid dismissal based upon lack of
service.

However, given the information presented, the Court is unable to discern

whether the current and prior service difficulties are a result of Plaintiff’s own failure to
accurately identify each defendant’s valid address, or whether the defendants are simply
successfully evading his attempts at service. Given the difficulties he has encountered,
and permitting Plaintiff latitude as a pro se litigant, the efforts he has undertaken, and the
reasonable likelihood that these defendants are, in fact, aware of the claims filed in this
action, the Court finds that the interests of justice support swift service and entry of all
named parties in order to allow this case to move forward.

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For these reasons, the Court finds Plaintiff has demonstrated good cause to extend
the 90-day service period required under Fed. R. Civ. P. 4(m) for 45 days. 1 Plaintiff’s
deadline to achieve service on Ms. Sanchez is extended to December 21, 2017.
Additionally, in its discretion as permitted under Fed. R. Civ. P. 4(c)(3), the Court
ORDERS that the United States marshal or deputy marshal shall undertake service of
process on individual defendant Kathy Sanchez.

In the event those Defendants

previously-served, or current defense counsel, may be in contact with Ms. Sanchez and
could facilitate some other resolution to this issue short of the involvement of the U.S.
Marshal, counsel should contact the Court as soon as possible.

III.

Defendant HCC’s Motion to Quash Subpoenas (ECF No. 43)
Defendant HCC asks the Court to quash several subpoenas which Plaintiff

apparently sent by certified mail to four named defendants: Cindy Hoss, Janet Hamilton,
Jay Ballard, and Debra Heckler (ECF No. 43). HCC cites a number of difficulties with
the subpoenas to these parties, and demonstrates its attempts to confer with Plaintiff prior
to filing this motion to quash. HCC asks the Court to quash the subpoenas and order
Plaintiff to pay its attorney fees and costs incurred in filing the motion to quash.
In addition to the subpoenas disputed by the college, the Court notes that Plaintiff
has filed on the docket his returns of service for other subpoenas: to Kathryn Sanchez
(ECF No. 56); and to Dr. Carter, President of HCC (ECF No. 55). In its review, the

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Plaintiff filed his Complaint on August 7, 2017, establishing a 90-day service deadline under
Rule 4(m) of November 6, 2017.
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Court considers these subpoenas, as well as those specifically addressed in HCC’s
motion.
As a threshold concern, pursuant to Fed. R. Civ. P. 26(d)(1), “[a] party may not
seek discovery from any source before the parties have conferred as required by Rule
26(f),” except in specific types of proceedings which do not apply here. In this action,
the parties are not yet required to engage in their Rule 26(f) conference—the Court will
first issue an Initial Scheduling Order, which establishes a Rule 26(f) conference
deadline, after all defendants have been served and have answered Plaintiff’s Complaint.
Even if the timing of the subpoenas was appropriate, HCC is correct that it is not
necessary for Plaintiff to serve subpoenas on opposing parties. The appropriate vehicles
for gathering information from parties to this lawsuit is through written requests for
information contemplated under Rules 33, 34, and 36. But again, any discovery is
currently prohibited under Rule 26(d)(1) until after all defendants have responded to the
Complaint and the parties have conferred under Rule 26(f).
In light of the above, HCC’s Motion to Quash Subpoenas (ECF No. 43) is
GRANTED. All subpoenas served by Plaintiff to date are hereby quashed as premature
under Fed. R. Civ. P. 26(d)(1). Plaintiff is specifically prohibited from serving any
new subpoenas until after the Court convenes a scheduling conference in this case.
Plaintiff has been informed, and reminded, in previous orders that—despite his pro
se status—he is expected to follow the Court’s rules and refrain from excessive filings,
which inappropriately tax the resources of the Court. Plaintiff is, again, encouraged to
review the District of Kansas Local Rules and Federal Rules, and to thoroughly review
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the

information

for

self-represented

litigants

on

the

Court’s

webpage

at

http://www.ksd.uscourts.gov/self-representation/.
Defendant HCC’s request for attorney fees and costs is denied.

Providing

Plaintiff latitude as a pro se party, the Court finds it appropriate for each side to bear their
own costs.

IV.

Various Defendants’ Motions for Extension of Time to File their Answers to
Plaintiff’s Complaint (ECF Nos. 53, 54, 59)
Four defendants—Jay Ballard, Janet Hamilton, Debra Heckler, and HCC—filed a

motion (ECF No. 53) and an amended motion (ECF No. 54) seeking to extend their
deadlines to answer or otherwise respond to the Plaintiff’s Complaint and Supplement to
his Complaint. Plaintiff’s response to Defendants’ motions was due on November 21,
2017, and no opposition was filed. Therefore, Defendants’ Motions (ECF Nos. 53, 54)
are GRANTED as unopposed under D. Kan. Rule 7.4.
These same defendants filed another motion, along with newly-served defendant
Cindy Hoss, seeking to extend the deadline further, in light of Ms. Hoss’s recent receipt
of the pleadings (ECF No. 59). In light of the unopposed nature of the earlier motions,
and because the filing Defendants seek to “synchronize the answer dates for all and file
one responsive pleading on behalf of all defendants,” the Court also GRANTS the new
motion (ECF No. 59) and extends all defendants’ responsive pleading deadlines to
December 22, 2017. This should permit sufficient time for the remaining individual
defendant, Ms. Sanchez, to be served with process (see discussion, section II above) and

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for all six Defendants to respond together, if determined appropriate by Defendants and
their counsel.
IT IS THEREFORE ORDERED that Plaintiff has shown good cause as required
by the Court’s Notice and Order to Show Cause (ECF No. 38).
IT IS FURTHER ORDERED that Plaintiff’s deadline to achieve service on Ms.
Sanchez is extended to December 21, 2017, and the United States marshal or deputy
marshal shall undertake service of process on individual defendant Kathy Sanchez
pursuant to Fed. R. Civ. P. 4(c)(3).
IT IS FURTHER ORDERED that HCC’s Motion to Quash Subpoenas (ECF
No. 43) is GRANTED as set forth above. All subpoenas previously served by Plaintiff
are hereby quashed, and Plaintiff shall refrain from serving any additional subpoenas
until after a scheduling conference is held in this matter. Failure to abide by this Order
could result in future sanctions, including but not limited to the imposition of costs as a
result of inappropriately-issued subpoenas.
IT IS FURTHER ORDERED that the defendants’ separate motions to extend
their responsive pleading deadlines (ECF Nos. 53, 54, 59) are GRANTED.

All

defendants’ deadlines to answer or otherwise respond to the Complaint are extended to
December 22, 2018.
IT IS SO ORDERED.
Dated at Wichita, Kansas this 29th day of November 2017.
s/ Gwynne E. Birzer
GWYNNE E. BIRZER
United States Magistrate Judge
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