Flores v. Tyson Foods, Inc.

Filing 170

ORDER - IT IS ORDERED: Flores' Motion (Filing No. 158 ) is denied. Flores' Motion to Compel (Filing No. 167 ) is denied. Ordered by Magistrate Judge Thomas D. Thalken. (Copy mailed to pro se party)(TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JUANA S. FLORES,
Plaintiff,

4:12CV3089

vs.
ORDER
TYSON FOODS, INC.,
Defendant.
This matter is before the court on the plaintiff’s, Juana S. Flores (Flores), proceeding pro
se, Motion (Filing No. 158). The defendant, Tyson Foods, Inc. (Tyson), filed a brief (Filing No.
165) and index of evidence (Filing No. 166) in opposition. Flores also filed a motion to compel
(Filing No. 167).
This case arises from Flores’ allegations she suffered civil rights violations and
employment discrimination from Flores’ supervisor, Aurelio Barrios (Barrios), while working at
Tyson’s meat packing plant in Lexington, Nebraska. See Filing No. 1 - Complaint. The parties
have engaged in extensive discovery and have participated in several discovery disputes since
Flores filed her Complaint against Tyson on May 4, 2012.

The purpose of Flores’ current

Motion is to remind Tyson of the court’s March 15, 2013, Order concerning disclosure of
confidential material. See Filing No. 158 - Motion; Filing No. 83 - March, 15, 2013, Order.
Flores moves “to stop the Defendant from soliciting information of the [Plaintiff’s] past jobs.”
See Filing No. 158 - Motion. Additionally, Flores claims Tyson is humiliating Flores by sending
information on available work positions at Tyson. Id.
In response, Tyson represents the information referenced in Flores’ motion is discovery
information Tyson received and provided Flores in the interest of transparency and efficiency.
See Filing No. 165 - Response. Tyson represents it sent a subpoena to Holiday Inn Express
Hotel & Suites (“Holiday Inn”), which Flores did not object to, for Flores’ employment
information. Id. Holiday Inn responded with information on July 24, 2013, and October 24,
2013, and Tyson promptly forwarded Flores copies of the discovery provided.

Id.

Tyson

represents it also subpoenaed other third parties for Flores’ employment information. Id. Tyson
argues Flores’ employment information is relevant, in part, to Tyson’s argument that Flores
failed to mitigate damages. Id. Tyson also presented Flores with information on Tyson’s job
openings that became available after Barrios’ termination through the present because it is also
relevant to Flores’ alleged failure to mitigate damages. Id. Tyson states Flores failed to confer

with Tyson’s counsel prior to filing the instant motion, and, although Tyson does not seek
attorney’s fees for responding to the instant motion, Tyson reserves their right to request fees in
the future if Flores continues to “multipl[y] the proceedings in [this] case unreasonably and
vexatiously.”

Id. (citing 28 U.S.C. 19271 and Wallace v. Kelley, 4:06CV3214, 2007 WL

2248105, at *3 (D. Neb. Aug. 1, 2007) (“[T]his Court will apply [28 U.S.C. § 1927] to pro se
litigants.”)).
Tyson has not acted in contravention of a court order and there is no indication Tyson is
attempting to humiliate Flores by providing her copies of discovery Tyson receives. Tyson is
providing such discovery out of courtesy. Additionally, the discovery is relevant to Tyson’s
defense of mitigation of damages. The court reminds Flores of her duty under Nebraska Civil
Rule 7.1 to confer with Tyson’s counsel to resolve any differences before filing a discovery
motion with this court.2 On at least four occasions, Flores has not conferred with Tyson’s
counsel before filing a discovery motion. See Filing Nos. 36, 69, 102, and 167. Failure to
adhere to NECivR 7.1 in the future will result in denial of Flores’ motion without consideration
and may subject Flores to paying Tyson’s costs for defending the motion. The court also notes
the deadline for filing discovery motions was December 4, 2013. See Filing No. 152 - Second
Amended Order Setting Schedule for Progression of Case.

For these reasons, Flores’

December 5, 2013, Motion to Compel (Filing No. 167) will be denied. Accordingly,

IT IS ORDERED:
1.

Flores’ Motion (Filing No. 158) is denied.

2.

Flores’ Motion to Compel (Filing No. 167) is denied.

Dated this 6th day of December, 2013.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge
1

“Any attorney or other person admitted to conduct cases in any court of the United States . . .
who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the
court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because
of such conduct.” 28 U.S.C. § 1927.
2
“To curtail undue delay in the administration of justice, this court only considers a discovery
motion in which the moving party, in the written motion, shows that after personal consultation with
opposing parties and sincere attempts to resolve differences, the parties cannot reach an accord. This
showing must also state the date, time, and place of the communications and the names of all
participating persons.” NECivR 7.1.(i).
2