Shaw v. International Business Machines

Filing 155

ORDER adopting Report and Recommendations, Doc. 144 , and granting Defendant's motion for sanctions, Doc. 120 ; denying Plaintiff's motion for recusal, Doc. 143 ; and finding moot the remainder of the pending motions in this case, Docs. 116 , 151 , and 152 . Signed by Judge Nanette Laughrey on 1/11/2016. (Hatting, Elizabeth)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
VALERIE SHAW,
Plaintiff,
vs.
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant.

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Case No. 2:14-cv-04236-NKL

ORDER
On December 15, 2015, United States Magistrate Judge Matt J. Whitworth
recommended that Defendant’s motion for the sanction of dismissal, [Doc. 120], be
granted.

The parties were advised they could file written objections to the

recommendation, pursuant to 28 U.S.C. § 636(b)(1)(C). Plaintiff timely filed objections
to the recommendation. The Court adopts Judge Whitworth’s recommendation, [Doc.
144], over Plaintiff’s objections.
I.

Background
In his recommendation, Judge Whitworth thoroughly discussed the proceedings in

this case. The Court has reviewed de novo the discussion and finds it consistent with the
record and events to date. The Court adopts the discussion of the proceedings relevant to
the motion for sanction of dismissal as set forth in the recommendation. [Doc. 144, p. 16].

II.

Motion to Recuse
One day before Judge Whitworth made his recommendation, Plaintiff filed a

motion for judicial recusal, Doc. 143, contending that the undersigned should recuse
herself from this action due to bias against the Plaintiff. Defendant opposes Plaintiff’s
motion.
A federal judge shall recuse herself “in any proceeding in which [her] impartiality
might reasonably be questioned.” 28 U.S.C. § 455(a). “By enacting section 455(a),
Congress sought to eradicate not only actual, but also the appearance of impropriety in
the federal judiciary.” Moran v. Clarke, 296 F.3d 638, 648 (8th Cir.2002). Under section
455(b)(1), a judge is also required to recuse herself “[w]here [s]he has a personal bias or
prejudice concerning a party . . . .” Judges bear a “fundamental ethical duty . . . to police
his or her own disqualification status.” Sw. Bell Tel. Co. v. F.C.C., 153 F.3d 520, 521
(8th Cir. 1998) (Hansen, J., in chambers). Whether recusal is required under § 455 is up
to the sound discretion of the district court. Moran, 296 F.3d at 648.
The standard for determining whether recusal is required under § 455(a) or
455(b)(1) is objective. A judge is required to recuse herself “if a reasonable person who
knew the circumstances would question the judge’s impartiality, even though no actual
bias or prejudice has been shown.” Am. Prairie Const. Co. v. Hoich, 560 F.3d 780, 789
(8th Cir. 2009) (quoting Fletcher v. Conoco Pipe Line Co., 323 F.3d 661, 664 (8th Cir.
2003)). Judges are presumed to be impartial unless the party seeking recusal proves
otherwise. Id. at 790. The movant’s “allegations [must] meet the substantial showing
necessary to establish a clear and indisputable right to recusal and a nondiscretionary
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duty on the district judge to disqualify himself.” In re Kansas Pub. Employees Ret. Sys.,
85 F.3d 1353, 1365 (8th Cir. 1996).
Plaintiff has cited no circumstances which would lead a reasonable person to
question judicial impartiality in this action. While Plaintiff has repeatedly indicated her
disproval of the Court’s decision to impose monetary sanctions for her failure to comply
with discovery and her belief that the Court has exempted Defendant from its discovery
obligations, Plaintiff’s displeasure with the course of proceedings does not present a
justification for judicial recusal.1 Plaintiff has repeatedly failed to meet her discovery
obligations and hampered the course of proceedings in this action by ignoring Court
orders and failing to work with defense counsel in a reasonable manner. The purported
slights Plaintiff has experienced have arisen not out of judicial hostility toward Plaintiff
or any preference for Defendant, but out of Plaintiff’s failure to litigate her case as
required by the Federal Rules, the scheduling order, and the Court’s discovery orders.
Plaintiff’s representation that she “feels intimidation” and is “uncomfortable” during
Court proceedings does not establish “a clear and undisputable right to recusal.”
Moreover, the Court’s decision to refer Defendant’s motion for the sanction of
recusal to Magistrate Judge Whitworth, whose order was related to present sanction
motion, for a report and recommendation alleviates any question that could exist about

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Furthermore, despite the Court’s finding that Plaintiff was not being truthful during one
hearing and the Court’s imposition of monetary sanctions for Plaintiff’s failure to comply
with her discovery obligations, the Court repeatedly ruled in favor of Plaintiff during
these teleconferences, granting her multiple extensions of time and ruling in favor of
Plaintiff in a number of discovery disputes. Due to Plaintiff’s status as a pro se litigant,
the Court granted her a significant amount of leeway throughout the proceedings.
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judicial impartiality in the ultimate resolution of this case. Plaintiff has not indicated that
Judge Whitworth’s impartiality is at all in question. Judge Whitworth undertook an
independent review of Defendant’s motion and concluded based on the parties’ briefing
and the record that dismissal is the appropriate sanction for Plaintiff’s failure to abide by
her discovery obligations in this case.
Plaintiff’s motion for recusal is denied.
III.

Adoption of Report and Recommendation
Judge Whitworth has concluded that the Defendant’s Motion for Sanctions should

be granted due to Plaintiff’s ongoing failure to comply with her discovery obligations,
including her failure to answer questions at her deposition on August 17, 2015. Plaintiff
objects to the contents of the recommendation largely based on her disagreement with
Judge Whitworth’s interpretation of the proceedings leading up to Defendant’s motion.
Plaintiff repeatedly disputes the statements in the recommendation regarding the
circumstances surrounding the denial of a motion for extension of time Plaintiff filed on
March 3, 2015, and which the Court denied on March 5. However, Judge Whitworth’s
description of the circumstances surrounding the motion and its denial was adopted
directly from the Court’s minute entry from a March 26, 2015 teleconference, wherein
the Court found that Plaintiff received email notification of the Court’s order denying her
motion. [Doc. 76]. Plaintiff’s disagreement with the Court’s original finding and Judge
Whitworth’s incorporation of the finding into the recommendation is not reason to reject
the recommendation. Moreover, Plaintiff’s failure to timely respond to Defendant’s

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discovery associated with the motion is only one in a string of failures to comply with
discovery orders which resulted in the Magistrate Judge’s recommendation.
Most of Plaintiff’s remaining objections to the recommendation harken back to
Plaintiff’s motion for recusal. Plaintiff contends that she has been treated more harshly
than Defendant, denied reasonable extensions of time, and was not permitted to respond
to Defendant’s arguments.

None of these contentions are supported by the record.

Plaintiff has been uniquely recalcitrant in this action. Her production of 400 pages of
discovery is irrelevant to her failure to produce answers to interrogatories and other
documents ordered by the Court. Despite the Court and defense counsel working with
Plaintiff to inform her of her discovery obligations and the scope of the information she
was required to produce, Plaintiff has exhibited an ongoing unwillingness to produce the
required information. In contrast, Defendant has complied with its discovery obligations
and produced discovery as ordered by the Court and as required by the Federal Rules.
Plaintiff has been repeatedly granted extensions of time to respond to discovery and the
Court has heard and granted many of Plaintiff’s requests that Defendant be required to
produce discovery, in an effort to move discovery forward.
Finally, Plaintiff disputes Judge Whitworth’s characterization of the circumstances
leading up to her deposition. Following numerous disputes between the parties regarding
the scheduling of the deposition, Judge Whitworth held a teleconference with the parties
and scheduled Plaintiff’s deposition for July 30, 2015.

However, defense counsel

notified the Court on July 28 that he had experienced two deaths in his family in the
preceding week and requested that the deposition be rescheduled for August 5, 6, or 8. In
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light of defense counsel’s significant conflict, Judge Whitworth granted defense
counsel’s request and extended the discovery deadline in the case approximately 18 days.
Subsequently, Defendant attempted to contact Plaintiff to reschedule the deposition, but
received an auto-reply email stating that she would be unreachable until August 13.
Despite numerous attempts by phone and email, neither the Court nor Defendant was able
to reach Plaintiff. Therefore, Judge Whitworth entered an order without Plaintiff’s input
directing Plaintiff to appear for her deposition on August 17, the Monday following
August 13 when Plaintiff indicated she would be back in contact with her phone and
email.
Plaintiff contends that this scheduling of her deposition was unreasonable and that
the Magistrate Judge mischaracterized the events leading up to its scheduling. First, she
argues that she did not “inform defense counsel she would not appear for her deposition
until after August 15,” but merely requested a deposition date after the 15th. However,
the record reveals that Plaintiff is conflating later communications with defense counsel
following the 18 day extension of the discovery deadline with communications she had
with Defendant about the scheduling of the deposition in early July. She also argues that
Judge Whitworth’s decision to schedule her deposition on August 17 was unreasonable
because, like defense counsel, she had experienced a death in her family. However, the
record reflects that Plaintiff’s aunt passed away approximately three months before the
scheduled deposition. Judge Whitworth did not treat Plaintiff unfairly or differently than
it treated Defendant, and Judge Whitworth’s discussion of this chain of events accurately
describes what happened.
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Most importantly, as concluded by the Magistrate Judge, Plaintiff’s refusal to
answer questions at her deposition after appearing on August 17 was entirely unjustified.
Plaintiff repeatedly refused to answer questions invoking her “right to counsel,” despite
defense counsel informing her that no such right exists in a civil suit. After ten minutes
she left the deposition in violation of Judge Whitworth’s order that she attend the
deposition on the 17th. Plaintiff’s failure to comply with her obligation to participate in
her own deposition, combined with her numerous earlier failures to produce discovery as
required, makes dismissal the appropriate sanction for Plaintiff’s conduct.
The Court’s own experiences in this case and its de novo review of the record
convince the Court that the recommendation of the Magistrate Judge is accurate, wellreasoned, and should be adopted. The record reveals that Plaintiff willfully delayed
discovery repeatedly and disregarded multiple Court orders regarding discovery.
Defendant has been significantly prejudiced by Plaintiff’s behavior as it has been forced
to invest a significant amount of time and money in defending Plaintiff’s lawsuit despite
Plaintiff’s own recalcitrance.

Therefore, the Court orders that the Report and

Recommendation of December 15, 2015, [Doc. 144], is adopted and the Plaintiffs’ claims
are dismissed with prejudice, consistent with the foregoing.
IV.

Conclusion
For the reasons set forth above, the Magistrate Judge’s Report and

Recommendation, [Doc. 144], is adopted and the case is dismissed with prejudice as
requested in Defendant’s motion. [Doc. 120]. Plaintiff’s motion for recusal, [Doc. 143],
is denied. In light of the dismissal of this action, the remainder of the pending motions in
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this action, at [Docs. 116, 151, and 152], are denied as moot.

/s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: January 11, 2016
Jefferson City, Missouri

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