Crumb v. McDonald's Corporation et al

Filing 116

MEMORANDUM OPINION (c/m to Plaintiff 4/27/17 sat). Signed by Judge Deborah K. Chasanow on 4/27/2017. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
EALISE CRUMB
:
v.

:

Civil Action No. DKC 15-1719

:
McDONALD’S CORPORATION, et al.
:
MEMORANDUM OPINION
Presently
discrimination

pending
case

and

are:

ready

(1)

a

for

resolution

renewed

motion

in
to

this
compel

discovery, filed by Defendants McDonald’s Corporation and Ram
Foods, Inc. (collectively, “Defendants”) (ECF Nos. 81; 102); (2)
a motion for reconsideration, filed by Plaintiff Ealise Crumb
(“Plaintiff”) (ECF No. 104); and (3) Plaintiff’s renewed motion
to modify the scheduling order to extend discovery (ECF Nos. 76;
103).

The issues have been briefed, and the court now rules, no

hearing being deemed necessary.

Local Rule 105.6.

For the

following reasons, Defendant’s motion to compel will be granted
in part and denied in part, and Plaintiff’s motions will be
denied.
A recitation of the factual and procedural background of
this case can be found in the court’s prior memorandum opinion
resolving Defendants’ motions to dismiss.
2-8).

(See ECF No. 67, at

Discovery in this case closed September 6, 2016.

(ECF

No. 71).

On November 18, 2016, the court denied Plaintiff’s

motions to determine the sufficiency of Defendants’ discovery
responses

(ECF

Nos.

74;

75),

additional

interrogatories

motion

strike

to

and

(ECF

Plaintiff’s

motion

No.

for

80);

untimely

leave

granted

discovery

to

serve

Defendants’
requests

and

stay further proceedings pending mediation (ECF No. 89); and
granted Defendants’ unopposed motion for an extension of the
motions deadline (ECF No. 91).

(ECF No. 95, at 8-9).

Two other

motions were denied without prejudice to renewal if mediation
was not successful: Plaintiff’s motion to modify the scheduling
order to extend discovery (ECF No. 76), and Defendants’ motion
to compel discovery (ECF No. 81).

(ECF No. 95, at 7).

A

settlement conference was held before Magistrate Judge William
Connelly on January 30, 2017.
undersigned

was

advised

(ECF No. 93).
that

On January 31, the

settlement

efforts

were

unsuccessful, and the parties were instructed to renew their
motions or advise the court if no renewed motion would be filed.
(ECF No. 99).

Both parties renewed their motions and filed

additional responses.
I.

Defendants’ Motion to Compel
On

February

16,

2017,

Defendants

filed

a

supplemental

memorandum renewing their motion to compel discovery (ECF No.
81),

and

their

motion

to

extend

2

the

deadline

for

filing

dispositive motions (ECF No. 91).1
compel

was

filed

on

September

(ECF No. 102).
29,

2016

(ECF

The motion to
No.

81),

and

Plaintiff filed a response in opposition on October 4 (ECF No.
Defendants did not file a reply.2

92).
compel

Plaintiff

to

provide

discovery

Defendants moved to
concerning

her

prior

lawsuits for alleged racial discrimination and her mental health
records, and to appear for a deposition.
A.

(ECF No. 81).

Defendants’ Written Discovery Requests

Defendants

seek

to

compel

discovery

regarding

other

discrimination suits filed by Plaintiff, arguing that evidence
of Plaintiff’s previous claims may be admissible under Maryland
1

As noted, the motion for an extension of the dispositive
motions deadline until after the mediation process was concluded
(ECF No. 91), was granted on November 18, 2016, and the parties
were advised at that time that a new motions deadline would be
set if mediation were not successful (ECF No. 95).
On January
31, it was ordered that dispositive motions would be due thirty
days after the court adjudicated any renewed motion.
(ECF No.
99).
As the parties have not advised the court of further
mediation efforts, it is unclear what relief Defendants seek in
renewing this adjudicated motion.
2

The motion to compel was fully briefed when it was denied
without prejudice to renewal. Although Defendants renewed their
motion on the filed papers (ECF No. 102), Plaintiff filed a
“renewed/amended” opposition (ECF No. 105), to which Defendants
filed a reply (ECF No. 106).
Plaintiff then filed another
response.
(ECF No. 110).
As the court has previously noted
(see ECF No. 67, at 29-30), surreply memoranda are not permitted
to be filed unless otherwise ordered by the court under Local
Rule 105.2(a).
Defendants’ supplemental memorandum renewing
their motion presented no new arguments or facts beyond those
included in their initial motion.
Plaintiff’s surreplies (ECF
Nos. 105; 110) and Defendants’ untimely reply (ECF No. 106) will
not be considered here, and the motion to compel will be decided
as originally briefed.
3

and

District

of

Columbia

law.

They

urge

the

court

to

“be

mindful of the likelihood of repeated, substantially identical
claims,” arguing that “the degree of similarity among the claims
is important, inasmuch as a series of disparate but bona fide
claims seems more likely than a string of very similar ones.”
(ECF

No.

81-1,

at

10).

Plaintiff

argues

that

her

previous

discrimination claims are not relevant, noting that it is not
“unusual for African Americans . . . to suffer repeated acts of
race discrimination within a short period and at the hands of
different persons,” and that “race discrimination is just the
way of life for African Americans.”

(ECF No. 92, at 9).

Whether information is admissible under the Federal Rules
of Evidence is not synonymous with whether it is discoverable
under

the

Federal

Rules

of

Civil

Procedure,

and

the

admissibility of any lawsuits previously filed by Plaintiff is
not

presently

before

the

court.

Pursuant

to

Fed.R.Civ.P.

26(b)(1):
Parties 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 stake 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

4

discovery need not be admissible in evidence
to be discoverable.
The scope of discovery is broad, but it is not limitless.
Defendants have asked for extensive discovery, not only of any
claims for racial discrimination Plaintiff has “ever made,” but
also

regarding

(before

or

“any

after

experienced.

other

the

instance

occurrence)”

of

racial

that

(ECF No. 81-1, at 5-6).

discrimination

Plaintiff

has

ever

Defendants argue that

this information is relevant to their defense in the same way
that evidence of a plaintiff’s prior claim for similar physical
injuries may be relevant to damages, to show “the amount of
damages

reasonably

with the others.”

attributed

to

(Id. at 11).

this

incident

when

compared

Plaintiff’s claim concerns two

discrete incidents of alleged discrimination that she alleges
“cause[d]

her

hurt,

embarrassment,

humiliation . . . [and]

a

fear of going into another Defendant McDonald’s restaurant for
the rest of her life[.]”

(ECF No. 92, at 15).

She states that

this harm is separate from her severe emotional distress, which
“these

Defendants

didn’t

cause.”

(Id.).

Defendants

appear

already to be aware of many of the claims on which they are
seeking

discovery;

of . . . litigation

they
of

note
racial

that

Plaintiff’s

discrimination

discovered through “[a] simple [G]oogle search.”
at 1 (collecting cases)).

“long

claims”

history
may

be

(ECF No. 81-1,

They may also be able to obtain more

5

tailored

discovery

at

Plaintiff’s

deposition.

Most

significantly, Plaintiff does not appear to be seeking the kind
of damages that would make Defendants’ personal injury cases an
apt

analogy.

Defendants’

discovery

requests

are

not

proportional to the needs of this case.
Defendants

also

seek

discovery

regarding

Plaintiff’s

“claim-mindedness” or “litigiousness” generally, arguing that it
may be presented to the jury.

(Id. at 11-12).

The court will

not decide whether any such evidence would be admissible at
trial at this time, but Defendants’ discovery requests on this
topic are overbroad.

Again, given the public availability of

court filings, the resources of the parties, and the limited
importance of such information in resolving the issues presented
in this case, the discovery Defendants seek is not proportional
to the needs of this case.
Finally, Defendants have moved to compel responses to their
discovery requests regarding Plaintiff’s mental health history
and

treatment,

arguing

that

she

opened

the

door

discovery by making a claim for non-economic damages.
12-13).

to

such

(Id. at

Defendants also contend that evidence of mental health

treatment “could be admissible on the issue of liability because
[the employee] denied she made the offending comment.”

(Id. at

13).

accused

They

employee’s

assert,

denial

of

with
the

no

other

incident
6

basis
and

than

the

Plaintiff’s

supposed

history of mental health treatment, that “Plaintiff may suffer
from irrational feelings of persecution, or even hear voices
calling her bad names.”

(Id. at 13).

Plaintiff has not alleged

that she suffered a severe psychological impact from the alleged
discrimination, and she need not disclose records pertaining to
her mental health at this stage of the case.

Defendants’ motion

to compel responses to their interrogatories and requests for
production therefore will be denied.
B.

Deposition of Plaintiff

Defendants have also moved to compel Plaintiff’s attendance
at

her

deposition.

Plaintiff’s

deposition

was

originally

noticed for August 22, 2016.

(See ECF No. 81-2, at 28).

rescheduled

to

at

her

preferred location.

request

accommodate

(See id. at 29-32).

her

It was

schedule

and

Three days before her

rescheduled deposition, Plaintiff informed Defendants’ counsel
that,

although

she

did

not

“have

a

problem

having

deposition taken,” she would not attend the deposition.
33).

[her]
(Id. at

Plaintiff states that she cancelled her deposition because

she was dissatisfied with Defendants’ responses to her discovery
requests.

(Id.; ECF No. 92, at 16-18).

While she reiterates in

her opposition to the motion to compel that she will submit to a
deposition,

Plaintiff

after

Defendants

the

“requests

discovery in this case.”

have

that

provided

her

deposition

Plaintiff

(ECF No. 92, at 18).
7

be

with

taken
ample

Sanctions are available under Fed.R.Civ.P. 37(d) where a
party fails to appear for her own deposition, and a failure to
appear “is not excused on the ground that the discovery sought
was objectionable, unless the party failing to act has a pending
motion for a protective order under Rule 26(c).”

Fed.R.Civ.P.

37(d)(2); see also Local Rule 104.3 (“Unless otherwise ordered
by the Court, the existence of a discovery dispute as to one (1)
matter does not justify delay in taking any other discovery.”).
Plaintiff did not move for a protective order before refusing to
attend her deposition.
compel

regarding

the

She also has not filed a motion to
discovery

responses

that

she

claims

justified her cancellation of the deposition, and the adequacy
of those responses is not before the court.
that

Plaintiff

is

unsatisfied

with

the

The court is aware
discovery

she

has

received in this action, but her perception that discovery has
been one-sided does not justify her failure to appear at her
deposition.

Defendants have not sought sanctions at this time,

but instead request an order compelling Plaintiff to submit to a
deposition.
Defendants’

(See
motion

ECF
to

No.

compel

81-1,

at

Plaintiff’s

13).

Accordingly,

deposition

will

be

granted, and the parties will be instructed to schedule the
deposition promptly.

8

II.

Plaintiff’s Motion for Reconsideration
Plaintiff has moved for reconsideration or modification of

the court’s order (ECF No. 95) denying her motion for leave to
serve additional interrogatories (ECF No. 80).

(ECF No. 104).

Defendants responded in opposition (ECF No. 107), and Plaintiff
filed a reply and an amended reply (ECF Nos. 111; 113).
Rule

54(b)

provides

that

“any

order

or

other

decision,

however designated, that adjudicates fewer than all the claims
or

the

rights

and

liabilities

of

fewer

than

all

the

parties . . . may be revised at any time before the entry of a
judgment adjudicating all the claims and all the parties’ rights
and liabilities.”

Fed.R.Civ.P. 54(b).

In the United States

Court of Appeals for the Fourth Circuit, the precise standard
governing a motion for reconsideration of an interlocutory order
is

unclear.

Fayetteville

Inv’rs

v.

Commercial

Builders,

Inc., 936 F.2d 1462, 1472 (4th Cir. 1991).

While the standards

articulated

not

in

Rules

59(e)

and

60(b)

are

binding

in

an

analysis of Rule 54(b) motions, Am. Canoe Ass’n v. Murphy Farms,
Inc., 326 F.3d 505, 514 (4th Cir. 2003), courts frequently look
to these standards for guidance in considering such motions,
Akeva,

LLC

v.

Adidas

Am.,

Inc.,

385

F.Supp.2d

559,

(M.D.N.C. 2005).
Public policy favors an end to litigation
and recognizes that efficient operation
requires
the
avoidance
of
re-arguing
9

565-66

questions that have already been decided.
Most courts have adhered to a fairly narrow
set of grounds on which to reconsider their
interlocutory orders and opinions.
Courts
will reconsider an interlocutory order in
the following situations: (1) there has been
an intervening change in controlling law;
(2) there is additional evidence that was
not previously available; or (3) the prior
decision was based on clear error or would
work manifest injustice.
Akeva, 385 F.Supp.2d at 565-66 (citations omitted); see also
Beyond Sys., Inc. v. Kraft Foods, Inc., No. PJM–08–409, 2010 WL
3059344, at *1-2 (D.Md. Aug. 4, 2010) (applying this three-part
test when evaluating a motion for reconsideration under Rule
54(b)).

A motion for reconsideration under Rule 54(b) may not

be used merely to reiterate arguments previously rejected by the
court.

Beyond Sys., Inc., 2010 WL 3059344, at *2.

Plaintiff’s

motion

sought

to

change

the

name

of

the

employee who allegedly discriminated against her from “Ashley
Alston” to “Ashley Austin” in her first set of interrogatories,
based on an insurance intake form in which the employee’s name
was recorded as “Austin,” and requested leave to serve fifty
additional interrogatories on each of the Defendants.
80).
the

(ECF No.

She argues for reconsideration of the court’s denial on
ground

manifest

that

it

injustice.

Plaintiff,

the

was

based

(ECF

“mistake”

on

No.
she

clear

104,
made

at
in

error
5).
her

or

would

work

According
motion

was

to
not

directing the court’s attention to the multiple appearances of
10

the name “Austin” and other alleged mischaracterizations of the
incident on the insurance intake form.

(Id. at 6-8).

The

additional evidence to which Plaintiff points was available to
her when she filed the original motion, and she advances the
same arguments previously rejected by the court.

Plaintiff has

not shown that the court’s prior decision was based on clear
error

or

would

work

manifest

injustice,

and

her

motion

for

reconsideration will be denied.
III. Plaintiff’s Motion to Modify the Scheduling Order
Plaintiff has renewed her motion to modify the scheduling
order to extend discovery deadlines (ECF No. 76).
103).3

Discovery closed on September 6, 2016.

(ECF No.

(ECF No. 71).

Plaintiff argues that additional time is necessary to complete
discovery.

Defendants

respond

that

discovery

should

not

be

reopened because Plaintiff cannot show that discovery could not
be completed in the time allotted despite her diligent efforts.
(ECF No. 84, at 1-2).

Defendants also argue that the additional

discovery Plaintiff seeks would be inadmissible on her claim and
unlikely to lead to the discovery of admissible evidence.

(Id.

at 2).

3

Although this motion was fully briefed when it was denied
without prejudice to renewal (see ECF Nos. 76; 84; 90; 95),
Plaintiff also filed a new motion to modify the scheduling order
(ECF No. 103), to which Defendants responded (ECF No. 108).
Plaintiff then filed a reply and amended reply (ECF Nos. 109;
112).
11

Fed.R.Civ.P. 16(b) governs the modification of a scheduling
order.

District courts have broad discretion to manage the

timing of discovery, Ardrey v. United Parcel Serv., 798 F.2d
679, 682 (4th Cir. 1986), and the only formal limitation on this
discretion with respect to consideration of motions to amend
scheduling

orders

is

cause,

Fed.R.Civ.P.

Police

Dep’t,

745

that

the

16(b)(4).
F.Supp.2d

moving
See

648,

party

Dent

663

demonstrate

v.

good

Montgomery

Cty.

(D.Md.

2010).

“‘Good

cause’ is shown when the moving party demonstrates that the
scheduling order deadlines cannot be met despite its diligent
efforts.”

Id. (citing Potomac Elec. Power Co. v. Elec. Motor

Supply, Inc., 190 F.R.D. 372, 375 (D.Md. 1999)).
Plaintiff’s

motion

requests

a

six-month

extension

of

discovery so that she may serve additional discovery requests
and take depositions.

She contends that “there are follow-up

Interrogatories that must be served on these Defendants,” and
argues for an extension of discovery because “[t]he Court did
not

rightly

deny

Plaintiff’s

additional interrogatories.”

motion

for

leave

(ECF No. 109, at 11).

to

serve

Plaintiff

also seeks to extend discovery so that she may obtain additional
discovery as to Ms. Alston’s identity.

In her original motion,

she argued that discovery deadlines should be extended because
“Plaintiff

has

Interrogatories,

wasted

discovery

Request

for

tools . . . because

Production
12

and

Request

her
for

Admissions

all

contain

‘Ashley Alston.’”

the

name

of

the

(ECF No. 76, at 8).

fictitious

person,

In her renewed motion,

she requests an extension so that she may subpoena the Maryland
Motor Vehicle Administration to obtain a copy of Ms. Alston’s
driver’s license and “depose the pertinent witnesses in this
case.”

(ECF No. 109, at 16; see also ECF No. 103, at 11).

Finally, Plaintiff argues that, because “Defendants want[] every
discrimination lawsuit that Plaintiff has filed, Plaintiff is
also

entitled

to

discrimination,

all

of

employment

the

race

discrimination,

discrimination,

strip

sex

searches,

disability discrimination, public accommodation, etc. lawsuits
filed

by

any

customer,

employee,

contractor,

supplier

franchisee against Defendant McDonald’s and Ram Foods.”

and
(ECF

No. 76 at 9).
Plaintiff has not shown the existence of good cause to
modify the scheduling order.
Plaintiff’s

motion

for

As the court found in denying
leave

to

serve

additional

interrogatories, “Plaintiff had the opportunity to pursue such
discovery

within

the

limits

of

the

rules

and

within

discovery period set by the court’s scheduling order.”
95, at 7).

the

(ECF No.

The court has also denied Plaintiff’s request for

additional discovery as to Ms. Alston’s identity, noting that
Defendants

“have

repeatedly

and

consistently

identified

the

employee’s name as ‘Alston,’ including in their requests for
13

admissions and in their responses to Plaintiff’s requests for
admissions,” and finding that the burden and expense of the
proposed discovery outweighed its likely benefit.
at 6).

(ECF No. 95,

Plaintiff separately moved for reconsideration of the

court’s denial of leave to serve additional interrogatories and
for

additional

discovery

related

to

Ms.

Alston,

reconsideration will be denied as discussed above.

and

Moreover,

Defendants represent and Plaintiff does not dispute that the
insurance intake form on which she bases her arguments regarding
Ms. Alston’s identity was produced to her on June 7, 2016, three
months before the discovery deadline and before Plaintiff served
any discovery requests.

It is unclear who Plaintiff now seeks

to depose, but she has offered no justification for her failure
even to notice those depositions during the scheduled discovery
period.

She has also not explained why she could not seek

discovery regarding other suits against Defendants within the
time

allotted.

interrogatories,

Plaintiff
and

she

has

cannot

not

shown

serve
that

she

additional
diligently

pursued the depositions of unidentified witnesses or discovery
regarding
Defendants.

Ms.

scheduling

Alston’s

identity

Accordingly,
order

to

allow

and

Plaintiff’s
for

denied.

14

other

lawsuits

motion

additional

to

against

modify

discovery

will

the
be

Plaintiff

also

requests

modification

of

the

scheduling

order so that she may file motions to compel regarding her July
25, 2016, interrogatories and August 3, 2016, request for the
production of documents.4

(ECF No. 103, at 10-11).

Plaintiff

states that she could not file these motions after Defendants
filed their motion to stay proceedings or while her motion to
modify the scheduling order was pending.5

(Id.).

Under Local Rule 104.8, a motion to compel must be filed
within

thirty

Defendants

days

state

of

that

a

party’s

they

receipt

provided

of

discovery

the

response.

responses

on

August 30, 2016; September 23, 2016; October 14, 2016; October
20, 2016; and March 3, 2017.

(ECF No. 108, at 2).6

Given the

dates of Defendants’ discovery responses and Plaintiff’s belief
that she was not permitted to file a motion to compel earlier,
4

Plaintiff additionally requests modification of the
scheduling order so that she may request leave to file a motion
for reconsideration of the court’s February 26, 2016, order
dismissing all claims against Defendant D. Michael Lyles. (ECF
No. 103, at 10-11). While a motion for reconsideration of this
order may be untimely under Local Rule 105.10, it is not
affected by the scheduling order.
5

Defendants’ motion to stay proceedings was filed on
September 23, 2016, but it was not granted until November 18.
(See ECF Nos. 89; 95).
Plaintiff states that she had informed
Defendants prior to the filing of their motion that she would
file a motion to compel on September 25, and that she believed
she could not do so after the motion to stay was filed.
(See
ECF Nos. 103, at 10-11; 109, at 7-8).
6

The court also notes Plaintiff’s April 25, 2017, filing
(ECF No. 115), which encloses an April 7, 2017, response to
Plaintiff’s request for production.
15

if Plaintiff believes a motion to compel is still necessary to
resolve

the

parties’

dispute

over

Defendants’

responses

to

Plaintiff’s requests for production or interrogatories served
prior

to

within

September

fourteen

timely served.

6,

(14)

2016,
days

then

of

a

this

motion
order

to

will

compel
be

served

considered

The parties should follow the procedure outlined

in Local Rule 104.8, and not file the motion to compel with the
court unless the parties cannot resolve their differences after
briefing the motion and holding a conference.

Plaintiff has

noted that she previously sent Defendants five letters “as a
meet and confer” that went unanswered.

(ECF No. 109, at 5-6).

Prior to filing a motion to compel with the court, the parties
must “confer with one another concerning a discovery dispute and
make sincere attempts to resolve the differences between them.”
Local Rule 104.7.

The moving party must file a certificate with

the motion to compel “reciting (a) the date, time, and place of
the

discovery

conference,

and

the

names

of

all

persons

participating therein, or (b) counsel’s attempts to hold such a
conference without success; and (c) an itemization of the issues
requiring

resolution

by

the

Court.”

Id.

Both

parties

are

expected to confer with one another in good faith and make a
sincere attempt to resolve any outstanding disagreement.
Defendants
attorney’s

fees

request

an

purportedly

award

of

incurred
16

$1500.00
in

for

responding

costs
to

and
this

motion.
motion

(ECF No. 108, at 3).
to

modify

the

The court denied Plaintiff’s

scheduling

order

without

prejudice

to

renewal (ECF No. 95), and instructed Plaintiff that she could
renew her motion (ECF Nos. 99; 101).

Defendants’ request for

sanctions will therefore be denied.
Accordingly,

while

Plaintiff’s

motion

to

modify

the

scheduling order will be denied, she may, if necessary, serve a
motion

to

compel

described above.

regarding

her

timely

discovery

requests

as

Unless a motion to compel is filed with the

court, the dispositive motion deadline will be thirty (30) days
from the date of Plaintiff’s deposition.
IV.

Conclusion
For

the

foregoing

reasons,

Defendants’

motion

to

compel

will be granted in part and denied in part, and Plaintiff’s
motions for reconsideration and to modify the scheduling order
will be denied.

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

17