Hall v. Schumacher et al

Filing 56

ORDER Denying 50 Motion to Hold Defendant in Contempt of Court for Failing to Provide Discovery/Evidence. Signed by Magistrate Judge Lawrence R. Leavitt on 9/23/2011. (Copies have been distributed pursuant to the NEF - SLR) Modified to indicate motion was DENIED on 9/23/2011. (ASB)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DEBBIE HALL,

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Plaintiff,
v.
CAROL SCHUMACHER, et al.,
Defendants.

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2:10-cv-01353-GMN -LRL
ORDER

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Before the court is pro se plaintiff Debbie Hall’s Counter-Motion To Hold Defendant In

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Contempt of Court For Failing To Provide Discovery/Evidence. (#50). Defendant IBEW Plus Credit

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Union (hereinafter “Credit Union”) filed an Opposition (#55), and plaintiff failed to file a Reply.

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Plaintiff’s complaint (#1-1) stems from the alleged racial and/or age discrimination she suffered

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while working for defendant Credit Union. She asserts claims for “(1) unfair hiring and promotions,

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(2) racial and age discrimination and harassment, (3) retaliation, and (4) mitigating facts.” (#1-1).

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Specifically, she claims that the Credit Union would promote less qualified younger Caucasians, had

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a racist drawing in the office, and began to harass her, and eventually fired her, for complaining to the

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EEOC. Id. Defendant Credit Union has moved for summary judgment (#39), and asserts that plaintiff

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has failed to demonstrate, by admissible evidence, that she suffered any of the alleged discrimination.

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Motion For Contempt, Sanctions and To Compel

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Plaintiff’s present counter-motion for contempt (#50) was filed in conjunction with her

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opposition to defendant Credit Union’s motion for summary judgment (#39), and only four days after

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the court denied (#49) her motion to compel and for sanctions. In her opposition/counter-motion, Hall

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contends that summary judgment is inappropriate, because evidence supporting her allegations exists,

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but defendant “refuses to comply with discovery” as required. (#50). For example, she argues that the

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requested cell phone records would demonstrate how other employees also used their cell phones for

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personal use, yet were not terminated for it, thus providing support for her discrimination claim. Id.

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Plaintiff complains that the responses she received were incomplete. Id. Further, she contends that on

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March 8, 2011, the court ordered the defendant to allow her to view a videotape, but she suspects the

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tape was altered. Id. This evidence, she contends, “would directly affect the outcome of this case, and

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demonstrates that [she] was treated differently than other employees.” Id. Therefore, due to defendant’s

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alleged failure to cooperate in discovery, plaintiff asks this court to deny the motion for summary

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judgment, hold defendant in contempt of court, and impose sanctions. Id. Additionally, plaintiff asserts

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that defendant should be compelled to provide “complete answers [to her] within (10) days.”

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In its opposition (#55), defendant Credit Union contends that the counter-motion should be

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denied because “the [c]ourt has already denied two previous motions to compel and for sanctions for

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[p]laintiff’s repeated failure to comply with the rules of civil procedure,” and because her plea for

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sanctions is “untimely, as it comes after the deadline for dispositive motions.” Additionally, it argues

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that the counter-motion is inappropriate because the discovery period has already expired, despite an

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extension by the court. (#55).

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A.

Background

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On January 1, 2011, plaintiff filed a motion requesting a 90-day extension of the discovery

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deadline. (#18). The court held a telephonic hearing on the motion on February 1, 2011, but plaintiff

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failed to appear. (#24). Despite her failure to appear, the court granted the motion, but stated that it

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would only entertain subsequent motions to extend discovery in “extraordinary circumstances.” Id. The

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court extended the discovery deadline to May 9, 2011, and the date to file dispositive motions to June

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8, 2011. (#28).

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Subsequently, plaintiff attempted to compel discovery twice in this case. The court held a

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hearing on her first motion to compel (#22), and directed her to the rules of civil procedure, namely Rule

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34, as she had failed to propound discovery requests upon Credit Union prior to filing her motion to

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compel. (#30). The court then ordered the defendant to permit the plaintiff to review the videotape in

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question. Plaintiff’s second motion to compel and for sanctions (#38) was filed on June 7, 2011, almost

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a month after the discovery deadline had passed. The court denied this motion and request for sanctions

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for several reasons. (#49). First, the court held that plaintiff failed to meet and confer in an attempt to

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resolve her motion as required by Rule 37(a)(1), and that this was confirmed by defendant when it

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asserted that “the parties had not engaged in any discussion concerning [p]laintiff’s discovery requests.”

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Id. Second, the court held that plaintiff’s motion did not comport with Local Rule 26-7, because she

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failed to “state specifically which of [d]efendant’s discovery responses she contends are inadequate.”

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Id. The court was unable to fashion relief, and therefore denied the motion. Id.

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The court held that her request for sanctions was unwarranted, because her “motion was not

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substantially justified,” and she had failed to “familiarize herself with both the Federal Rules of Civil

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Procedure and the Local Rules of Practice” as previously advised by the court. Id. Further, the court

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“warned that [it] will impose sanctions against her if she continues to disregard the Federal and Local

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Rules.” Id.

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B.

Discussion

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In light of the foregoing, the court concludes that holding defendant in contempt or imposing

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sanctions against it is unwarranted. As an initial matter, the plaintiff is asking the court to compel the

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defendant to provide answers, i.e. seeking further discovery, in her opposition to the motion for

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summary judgment. This request is untimely. If the court finds that the “moving party has unduly

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delayed, [it] may conclude that the [motion to compel] is untimely.” Gault v. Nabisco Biscuit Co., 184

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F.R.D. 620, 622 (D. Nev. 1999)(internal citations omitted). A motion to compel “filed during the

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discovery period would rarely be considered untimely,” but, “absent unusual circumstances, it should

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be filed before the scheduled date for dispositive motions.” Id. Here, the fact that plaintiff failed to

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follow the rules of the court and “unduly delayed” the discovery process, weighs heavily in finding her

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motion “untimely.” Id. Further, as she filed the motion months after the discovery deadline and the

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deadline to file dispositive motions had passed, without alleging “unusual circumstances,” her request

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must be denied. Id.

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With regards to the request for contempt and sanctions, the record in this case reflects that it was

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plaintiff herself who caused the discovery delay, and undermines her assertion that it was defendant who

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acted improperly regarding discovery. As the court stated in its previous order (#49) denying sanctions,

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it was her “disregard [for] the Federal and Local Rules” that resulted in the denial of discovery and was

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sanctionable. Further, the present counter-motion for contempt/sanctions (#50), purportedly filed in

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support of plaintiff’s opposition to defendant’s motion for summary judgment, is untimely. It was filed

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on July 12, 2011, a month after the deadline for filing dispositive motions had passed. See U.S. v.

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Geary, F.Supp.2d, 2007 WL 1266069 (D. Hawaii)(holding that a contempt motion for alleged discovery

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abuses is dispositive if it involves a final determination of a claim being litigated.).

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Accordingly, and for good cause shown,

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IT IS ORDERED that pro se plaintiff Debbie Hall’s Counter-Motion To Hold Defendant In

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Contempt of Court for Failing to Provide Discovery/Evidence (#50) is denied.
DATED this 23rd day of September, 2011.

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LAWRENCE R. LEAVITT
UNITED STATES MAGISTRATE JUDGE

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