McGuire v. St. Louis County Missouri et al

Filing 196

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that defendant's motion for sanctions 168 is granted, and plaintiff's complaint is dismissed with prejudice as a sanction for her willful failure and refusal to comply with the Court's O rder compelling the continuation of her deposition. IT IS FURTHER ORDERED that all of plaintiffs remaining motions are denied as being wholly without merit.A separate Order of Dismissal is entered this same date. Signed by District Judge Catherine D. Perry on February 7, 2019. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DR. PATT MCGUIRE,
Plaintiff,
vs.
ST. LOUIS COUNTY, MISSOURI,
et al.,
Defendants.

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Case No. 4:17 CV 2818 CDP

MEMORANDUM AND ORDER
Defendants seek dismissal of plaintiff’s complaint as a sanction for her
continuing refusal to comply with the Court’s Orders and the Federal Rules of
Civil Procedure. I will grant the motion because plaintiff willfully refused to
comply with my November 26, 2018 Order that she submit to an additional
deposition, which specified that she could not refuse to answer questions except on
the basis of privilege. I issued that Order because at her first deposition plaintiff
had improperly refused to answer numerous questions that were directly relevant to
the allegations of her complaint. When plaintiff appeared for the resumed
deposition she responded to almost every question by objecting and stating that the
answer is “protected by a privilege.” On some occasions she stated that the
privilege she was asserting was “trial preparation information.”

Plaintiff objected to questions that go to the essence of her complaint, which
includes allegations that defendants “used black-balling” and retaliated against her
when she applied for promotions. Counsel asked her what she meant by blackballing, who did the black-balling, when it happened, and whether there were any
witnesses to the black-balling. As to each question plaintiff refused to answer and
stated the answers were protected by privilege. (ECF # 168-1, Second Deposition
pages 284 to 289). She gave the same answers to questions about her complaint’s
allegations of retaliation and whistle-blowing, what training defendants allegedly
denied her, how the training would have helped her in her job, what the basis for
her claim of retaliation was, what procedures she was asked to follow that twosimilarly situated co-workers allegedly were not required to follow, and who the
two co-workers were. (Second Deposition pages 293 to 309). All of these
questions arose directly from allegations in her complaint. Her complaint alleges
that defendant restricted her to the 11 p.m. to 7 a.m. shift to prevent her from being
promoted, but she asserted the privilege or stated “My shift was 11 to 7, I worked
my shift” in response to all questions about this allegation. (Second Deposition
pages 310 to 313). She refused to answer whether she had supervised people or
how many people she supervised, and then objected to a question about whether
anyone had ever complained about her supervision. (Second Deposition pages 316

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to 319). These questions are similar to those she had refused to answer in her first
deposition, as discussed the November 26, 2018 Order.
Plaintiff has argued in multiple documents that defendants submitted a
“fake” document and tampered with evidence. This issue came up in the following
deposition exchange:
Q.
Did you submit a letter to management asking that your duties
as on-call supervisor be put on hold until further notice due to school
demands?
A.
Yes. And I believe you have that as an exhibit in your
possession.
Q.
I do. So I’m going to refer you to Exhibit 24. Okay. This says
at the top 10-22-12 addressed to Kelli Landaker, 501 S. Brentwood,
St. Louis, 63105. Re: On-call supervisory duties. Is that the letter
that you sent to Kelli Landaker asking you to be – that your duties as
on-call supervisor be put on hold until further notice due to school
demands? Dr. McGuire, do we need to take a break? It’s been about
a minute. Are you going to be able to answer the question?
A.
If you have exhibits that you are going to ask me to look at,
then I will need you to write all the exhibits down that you have so
that I can pull them before we get to them. Because if you pull a
document, I need to verify what you’re giving me is what I presented
and I will look through my exhibits. So how do you want to proceed?
Q. Just take a break now. We’re going to take a ten-minute break and
you can find out.
A. I’m going to do this each time you present a document. If this is
the only document you have, we can save time by telling me what
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document you’re going to look at. If not, we’re going to take a break
every time you pull a document out because I’m going to verify what
you’re giving me is what I gave you.
Q. Let’s take a break.
ECF # 168-1, Second Deposition p. 319, l. 5 to p. 320, l. 11.
According to plaintiff, counsel came back from the break in four minutes
instead of ten. Plaintiff objected to proceeding and defense counsel asked her how
much time she needed to look for her copy of Exhibit 24. Plaintiff refused to
answer further questions because she had not been given the full ten minute break.
Counsel stated she would move on and table the questions about Exhibit 24, and
plaintiff resumed objecting to every question because “the answer is protected by
privilege.” Ultimately defense counsel stated she was terminating the deposition,
and plaintiff made a record that defendants were abandoning the additional
deposition that had been ordered, stated she would sit there for the full seven
hours, but that she did not want to come back again. (Second Deposition at pages
325 to 326).
The day after the deposition, plaintiff filed a motion asking the court not to
grant additional time for the deposition because defendants had terminated it.
(ECF # 164). She also filed an “Objection” (ECF # 165) stating that defense
counsel had threatened her with sanctions. She objected to any sanctions being

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imposed, and objected that counsel had used an “outdated” 2017 book containing
the Federal Rules of Civil Procedure at the deposition. On January 4, 2019, I ruled
on a number of motions that plaintiff had filed between my November 26 Order
and the deposition, and ordered defendants to respond to plaintiff’s motion asking
that no additional depositions be ordered. (ECF # 167). Defendants then filed
their motion for sanctions, seeking dismissal, or in the alternative an additional
seven hours for the deposition and an amendment of the Case Management Order.
(ECF # 168). On January 7, plaintiff filed her memorandum in Opposition to the
motion for sanctions (ECF # 170) ; she also filed an additional six documents
objecting to my Order and seeking her own sanctions (ECF ## 171, 172, 173, 174,
175, 176.) Then, from January 8 to January 23, plaintiff filed another fourteen
documents (ECF ## 177, 178, 179, 180, 181, 182, 184, 185, 186, 187, 188, 190,
191, 192, 193, 195). In many of these documents plaintiff alleges, in addition to
other arguments, that defense counsel and the court reporter at the second
deposition committed fraud or tampered with evidence because, plaintiff asserts,
they presented a fraudulent, fake, and tampered-with document in the second
deposition.
The allegedly fake document is Exhibit 24, which is referred to in the
deposition portion quoted above. It is a very short letter from plaintiff from 2012
requesting that she be relieved from being an on-call supervisor because of her
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studies. Defendants had actually tried to ask about it in the first deposition, but
plaintiff refused to answer whether it was a document she had written or any other
questions about the document and its subject matter. (ECF# 117-1, First
Deposition page 149 to 152).
Plaintiff has never explained why she believes this document is fraudulent.
It is a document that plaintiff had in her possession and produced in discovery, and
it is in fact the same letter that plaintiff used as her Exhibit 43 when she took the
deposition of defendant Cheryl Campbell. (ECF # 183-2, Deposition of Cheryl
Campbell). Although Exhibit 24 is a better photocopy than Exhibit 43 (it is
slightly clearer and is straight on the page, as opposed to Exhibit 43 which is not
straight), they are undoubtedly copies of the same document; the content is
identical in all respects, including plaintiff’s signature and the use of an equal sign
instead of a hyphen in the word on-call, which is typed as “On=Call” in the
document. (ECF # 183-1, Exhibit 24; ECF # 183-3, Exhibit 43). Plaintiff has filed
numerous documents – including what she terms a criminal complaint and a
motion for preliminary injunction – arguing that defense counsel and the court
reporter have somehow committed fraud by using this “fake” document.
Plaintiff’s complaints about Exhibit 24 are fabrications.
Plaintiff willfully refused to comply with my order that she submit to further
deposition. In the twenty-five motions, objections, and memoranda that plaintiff
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has filed since the date of that deposition, she has never attempted to explain a
legal basis for her assertion of “privilege.” Although plaintiff is representing
herself pro se, she is an educated person (she has multiple graduate degrees) and
she fully understands what she is required to do in representing herself. When she
appeared in Court for the March 22, 2018 scheduling conference, she stated that
she understood what was required to represent herself, and said she understood she
would be required to follow the procedural rules. She obviously understands the
Federal Rules of Civil Procedure because she cites them frequently; one of her
objections in the deposition was that counsel showed her a copy of the Federal
Rules of Civil Procedure that she believed was not the current version: “I object to
the use of this book here. This is not the 2018 version. I will not refer to anything
in this book because it’s not the newest version.” (Second Deposition p. 290, l. 5
to l. 8).
Notwithstanding her education and sophistication about the legal process,
and even after several orders from the Court advising her that many of her filings
were meritless, plaintiff has continued to file frivolous documents. After each
order of the Court is issued, plaintiff files multiple objections and arguments
explaining why the Court’s rulings were wrong. Plaintiff has repeatedly abused
the litigation process, and she has failed to comply with my Order to answer
questions at her deposition.
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Under Rule 37(b)(2), a court may impose “just” sanctions against a party for
failing to obey a discovery order. Rule 37 sanctions “are an invaluable penalty and
deterrent to be employed by district courts to thwart discovery abuse.” First Am.
State Bank v. Cont’l Ins. Co., 897 F.2d 319, 331 (8th Cir. 1990). “Dismissal under
Rule 37 is permitted only where there is an order compelling discovery, a willful
violation of the order, and prejudice.” Burgett v. General Store No. Two, Inc., 727
Fed. Appx. 898, 899 (8th Cir. 2018), citing Comstock v. UPS Ground Freight, Inc.,
775 3d 990, 992 (8th Cir. 2014). Dismissal is a severe sanction, and should not be
imposed lightly. See Sentis Group, Inc. v. Shell Oil Co., 559 F.3d 888, 899-900
(8th Cir. 2009). And of course, the Court should not dismiss a case as a sanction if
there are lesser sanctions that would provide appropriate relief. See Brennan v.
Qwest Comm., Int’l, Inc., No. 07-2024ADM/JSM, 2009 WL 1586721 at * 9 (D.
Minn. June 4, 2009).
Plaintiff’s behavior was willful, for the reasons stated above. Her refusal to
answer even whether a document she herself had used in a deposition was in fact a
document she wrote is just one example. And defendants have undoubtedly been
prejudiced by her misconduct. They have already spent the time on two fruitless
depositions, and have been required to file and brief two motions that would not
have been needed had plaintiff complied with the rules and the Court’s order. The
case has been delayed, and further delay would be caused by an additional
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deposition. An additional deposition is not likely to be any more successful than
the last two.
I have carefully considered whether sanctions less severe than dismissal
could cure the problems that plaintiff’s conduct has caused in this case. After her
first refusal to participate properly in her deposition, I ordered that she appear
again and I instructed her that she was obligated to answer the questions. Of
course I provided an exception for privilege, but that did not give license to
plaintiff to again simply refuse to answer questions and recite – with absolutely no
legal basis – that she was doing so because of some unspecified “privilege.” Given
her conduct in both depositions, I conclude that plaintiff would continue that
behavior in any additional deposition. Plaintiff is not likely to comply with
sanctions ordering her to pay money, and in any event, that would not solve the
problem of defendant’s not being provided with discovery. Given plaintiff’s
refusal to follow the rules, excluding certain evidence from trial would be a
fruitless exercise, because plaintiff is not likely to comply with such an order.
Enough is enough. Although plaintiff might have had some kind of a claim
that could have been allowed to proceed, her conduct in this case has deprived
defendants of their right to defend against her claims. Plaintiff has repeatedly
shown that she is not willing to comply with the rules or the Orders of this Court.
When plaintiff’s conduct in the depositions is considered in conjunction with her
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other conduct in this litigation, it is clear that there are no lesser sanctions that
would cure the endless problems that plaintiff’s failure to follow the rules has
caused. The only just solution at this point is dismissal of the case with prejudice.
This case is over. Because defendants are the prevailing party, plaintiff will
be required to pay all taxable costs of this action. If plaintiff continues to file
frivolous documents following this dismissal, the Court would consider reasonable
requests for additional sanctions.
Accordingly,
IT IS HEREBY ORDERED that defendant’s motion for sanctions [168] is
granted, and plaintiff’s complaint is dismissed with prejudice as a sanction for her
willful failure and refusal to comply with the Court’s Order compelling the
continuation of her deposition.
IT IS FURTHER ORDERED that all of plaintiff’s remaining motions are
denied as being wholly without merit.
A separate Order of Dismissal is entered this same date.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 7th day of February, 2019.
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