Longino v. Cincinnati City of

Filing 34

ORDER denying plaintiff's 30 and 31 Motions to Compel and for sanctions, and denying 28 Motion for additional mediation. Signed by Magistrate Judge Karen L. Litkovitz on 3/6/2013. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
KEVIN H. LONGINO,
Plaintiff,

Case No. 1:12-cv-424
Litkovitz, M.J.

vs.
CITY OF CINCINNATl,
Defendant.

ORDER

Plaintiff Kevin Longino brings this action pro se against defendant City of Cincinnati
(City) alleging that the City discriminated and retaliated against him on the basis of his race and
disability in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e

et seq. (Title VII) and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (ADA).
This matter is before the Court on: (1) plaintiffs motion for additional mediation (Doc. 28) and the
City's response in opposition (Doc. 29); and (2) plaintiffs motions to compel and for sanctions
(Docs. 30, 31 ), the City's response in opposition (Doc. 32), and plaintiffs reply memorandum.
(Doc. 33).
I. Plaintiff's Motion for Additional Mediation (Doc. 28)
A settlement conference was held in this matter on November 13, 2012, before
Magistrate Judge Bowman. See Doc. 22. The parties did not settle the matter at that time and
were instructed to contact Judge Bowman for additional mediation after a ruling was entered on the
City's motion to dismiss if the parties believed it would be advantageous. 1 The City's motion to
dismiss is currently pending.
Plaintiff filed the motion for additional mediation one month after the settlement
conference. The motion contains a summary of the allegations forming the basis of his Title VII
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The City filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) seeking to dismiss all
of plaintiffs claims shortly before the settlement conference was held. See Doc. 18. Judge Bowman's instruction
was entered on November 13,2012 as a minute entry; there is no docket number associated with this event.

and ADA claims against the City and plaintiffs assertion that this case is well-suited for settlement.
The motion also includes plaintiffs request that the City determine the "cost of the demand for
immediate retirement made by [him] as part of the settlement conference requirements." (Doc. 28
at 2).
The City opposes plaintiffs request asserting that additional mediation would not be
"beneficial at this time, based on the apparent disparity between the parties' respective assessment
of their cases." (Doc. 29 at 1). The City also notes that its motion to dismiss is still pending.
The City further contends that plaintiffs request for retirement calculations is improperly included
in his motion. Accordingly, the City requests that plaintiffs motion be denied.
Given the City's representation that mediation discussions would not be advantageous at
this juncture, the pending motion to dismiss, and Judge Bowman's instruction that further
mediation may be provided following a ruling on the motion to dismiss, plaintiffs motion is denied.
Settlement discussions are only fruitful when both parties are willing to engage in meaningful
discussions and compromise and it does not appear that this matter is in the proper posture for
productive mediation. Plaintiffs motion for additional mediation is therefore denied.
Further, plaintiffs request for calculations from the City regarding a retirement package is
denied. The request appears to be a discovery request, in which case plaintiff should utilize the
discovery procedures provided for by the Federal Rules of Civil Procedure. Insofar as it is a
request for information from the City in its role as plaintiffs employer, plaintiffs request is more
properly addressed via internal employment channels. In any event, the request is not properly
before the Court and, accordingly, it is denied.

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II. Plaintiff's Motions to Compel and for Sanctions (Docs. 30, 31)
Plaintiff filed a motion to compel the City to provide supplemental discovery responses
and produce certain witnesses for deposition. (Doc. 30). Plaintiff also filed a motion for
sanctions based on his belief that defense counsel has violated the Federal Rules of Civil
Procedure. As the motions relate to similar issues, they will be addressed together.
In his motion to compel, plaintiff asserts the City has failed to comply with discovery in the
following ways: (1) the City's responses to his interrogatories, requests to produce, and requests
for admissions are insufficient and must be supplemented; (2) the City did not verify its discovery
responses; (3) the City's interrogatories were improperly completed by defense counsel William
Hicks; (4) attorney Hicks improperly questioned a witness during plaintiffs deposition; (5) the
City wrongfully declined to produce attorney Hicks for deposition; and (6) the City wrongfully
declined to produce witness Darcy Riegel for deposition. Plaintiff requests that the Court compel
the City to provide supplemental responses to his discovery requests and produce attorney Hicks
and Mr. Riegel for deposition. In his motion for sanctions, plaintiff asserts the City's purported
discovery noncompliance entitles him to an entry of judgment in his favor; monetary
compensation for the time attorney Hicks used questioning a witness during a deposition noticed
by plaintiff; exclusion of witness Mr. Riegel from trial; and an order compelling attorney Hicks to
sit for deposition.
The City responds that plaintiff has failed to comply with the federal and local rules prior to
filing these motions. Further, the City contends that it has acted in accordance with all governing
rules in providing its discovery responses and that plaintiffs motions to compel and for sanctions
should be denied. For the following reasons, plaintiffs motions to compel and for sanctions are
denied.
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1. Plaintiff failed to comply with the federal and local rules governing motions to compel
and for sanctions.
Motions to compel discovery "must include a certification that the movant has in good faith
conferred or attempted to confer with the person or party failing to make disclosure or discovery in
an effort to obtain it without court action." Fed. R. Civ. P. 37(a)(l). Further, S.D. Ohio Rules
37.1 and 37.2 govern the process of seeking discovery in civil matters in this District. These rules
provide that motions to compel, such as the instant motion, "shall not be filed in this Court ...
unless counsel have first exhausted among themselves all extrajudicial means for resolving the
differences." S.D. Ohio Civ. R. 37.1. In addition, motions to compel "shall be accompanied ...
by a certification of counsel setting forth the extrajudicial means which have been attempted to
resolve differences." S.D. Ohio Civ. R. 37.2 (emphasis added).
Plaintiffs motion to compel does not include the requisite certification setting forth the
extrajudicial means plaintiff utilized to attempt to resolve the instant discovery dispute. See Doc.
30. Further, plaintiff has presented no information from which this Court can conclude that
plaintiff made a good faith attempt to obtain the discovery prior to seeking Court intervention as
required by Fed. R. Civ. P. 37(a)(1). The only evidence submitted by plaintiff regarding his
attempt to resolve this dispute is a December 18, 2012letter to attorney Hicks which provides: "I
need responses to my Interrogatories, with a signed and notarized verification that they were
answered under oath, by an agent of the City, no later than Friday, December 21,2012 or I will have
to file a motion to compel with the Court." (Doc. 20 at 28). Plaintiffs demand that he be
provided supplemental discovery responses three days after submitting his request does not
demonstrate a good faith attempt to confer with defense counsel prior to filing his motion to compel
as envisioned by the federal and local rules. See Hilton-Rorar v. State and Fed Commc 'ns, Inc.,

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No. 5:09-cv-1004, 2010 WL 1482127 (N.D. Ohio Jan. 7, 2010) (citing Naviant Mktg. Solutions,
Inc. v. Larry Tucker, Inc., 339 F.3d 180, 182 (3d Cir. 2003) ("These rules are designed to encourage

professionalism and collegiality among litigators and avoid unnecessary court intervention,
protracted legal proceedings and needless expense and fees."). Plaintiffs status as a prose litigant
does not discharge him from adhering to the requirements ofthe Federal Rules of Civil Procedure
nor the Local Rules for this District. See McNeil v. US., 508 U.S. 106, 113 (1993) (noting that pro
se litigants may receive some leniency with regard to procedural rules, particularly where a
procedural error could be fatal or where the litigant is incarcerated, but emphasizing that "we have
never suggested that procedural rules in ordinary civil litigation should be interpreted so as to
excuse mistakes by those who proceed without counsel."). For these reasons, plaintiffs motion to
compel is denied.
Despite these apparent procedural shortcomings, in light of plaintiffs pro se status the
undersigned will address the merits of the arguments raised in plaintiffs motions for the sake of
judicial economy.
2. The City's objections to plaintiff's discovery are proper.
Plaintiff's motion does not specify which discovery request he believes need to be
supplemented. Rather, plaintiff vaguely asserts that the City's responses consist mostly of
objections, such as vagueness, which he asserts are improper given the detailed allegations in
plaintiff's complaint. (Doc. 30 at 1-2). To the extent that plaintiff identifies that the City's
responses to Interrogatories 6, 7, and 8 are inadequate, plaintiff's argument is not well-taken.
These requests and the City's responses are as follows:
6. State who verified the original test results, give their title and whether they are
still employed by the City.

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ANSWER: Objection. Calls for irrelevant and time barred information. Without
waiving the objections, Defendant will supplement once it is determined which
examination Plaintiff is referring to and whether it was verified.

7. State who verified the test results after it was re-graded, including the person(s)
name, title and whether that person is still employed by the City.
ANSWER: Objection. Calls for irrelevant and time barred information. Without
waiving the objections, Defendant will supplement once it is determined which
examination Plaintiff is referring to and whether it was verified.

8. Describe, if any, the involvement of Diana Fray (Sic) in the grading or re-grading
of the exam that [plaintiff] took for promotion.
ANSWER: Objection. Calls for irrelevant and time barred information. Without
waiving the objections, Defendant is currently unaware of any involvement by Ms.
Frey.

(Doc. 30 at 17 -18). Plaintiff states that defendant objected to these requests as "vague." Plaintiff
is incorrect. Not only did the City not object to these requests on the ground of vagueness, but the
City also provided in response to Interrogatories #6 and #7 that it would supplement its responses
upon clarification from plaintiff on the specific examination referenced. The City's request for
clarification is a proper response given the form of plaintiffs requests. Plaintiff did not specify the
date the examination was taken, the location or title of the examination, or any other information
from which the City would be able to identify which test was being referenced. Given the lack of
specificity of the requests and the City's apparent willingness to provide the information upon
receipt of relevant details, plaintiffs argument that the City's responses are defective is not
well-taken. Moreover, the City clearly answered plaintiffs Interrogatory #8 by stating that Ms.
Frey was not involved in any grading or re-grading of any test taken by plaintiff; thus, the
undersigned finds no defect in the City's response. As plaintiff specifies no other defective
responses, the Court will briefly address plaintiffs more general claims.
Plaintiff argues the City improperly objected to his Interrogatories #2 and #3, requesting the
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names ofthe City's expert and lay witnesses. See Doc. 30 at 16. The Calendar Order in this
matter states that the City was to identify and produce primary expert reports by October 26, 2012
and identify lay witnesses by February 1, 2013. (Doc. 13 ). The City provided its responses to
plaintiffs discovery requests on September 4, 2012, well before the City's deadlines for identifying
witnesses. See Doc. 30 at 25. Therefore, the City was correct in stating that it was not required to
provide the requested witness information at the time it submitted its responses and plaintiffs
contention to the contrary is not well-taken. Further, the Court notes that plaintiff was apparently
provided with the names of the City's lay witnesses; thus, plaintiffs motion in this regard is also
moot. See Doc. 32 at 4.
Plaintiff also asserts the City was untruthful in its responses to plaintiffs requests to admit.
(Doc. 30 at 1). To the extent that plaintiff seeks to prove that the City's responses to his requests
for admission are false by identifying contrary statements made during the settlement conference
held before Judge Bowman, see Doc. 30 at 1, 3, plaintiff is reminded that "all statements made by
the parties ... during the settlement conference ... shall be kept confidential by the Court, the
parties, and counsel and shall not be admissible in evidence for any reason during the trial of this
case." (Doc. 17 at 1-2) (emphasis added). Consequently, plaintiffs argument in this regard is not
well-taken and plaintiff is cautioned that any future breach of his requirement to keep confidential
the statements made during the course of the settlement conference may result in court-ordered
sanctions.
3. The City's failure to include a verification page has been remedied.
Plaintiff requests that the Court compel the City to provide a signed verification page along
with its interrogatory responses, noting the City's failure to do so initially. (Doc. 30 at 1).
Federal Rule of Civil Procedure 33(b)(3) and (5) provide that responses to interrogatories must be
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answered under oath and signed. Fed. R. Civ. P. 33(b)(3), (5). The City acknowledges its initial
oversight in producing a signed verification page, but represents that this error has been corrected as
a signed verification page was sent to plaintiff on February 5, 2013, a copy of which was attached to
its responsive brief. See Doc. 32 at 3. As this procedural oversight has apparently been remedied,
plaintiffs request is denied as moot.
4. It is not improper for the City's defense counsel to complete the interrogatory responses.
Plaintiff asserts that it was improper for attorney Hicks to complete the interrogatory
responses on behalf of the City as he lacks the necessary first-hand knowledge to accurately resond.
(Doc. 30 at 1). Federal Rule of Civil Procedure 33(b)(1)(B) provides that interrogatories to a
governmental agency may be answered by an officer or agent of the agency. Fed. R. Civ. P.
33(b)(l)(B). Attorney Hicks, as a Senior Assistant City Solicitor, is an agent ofthe City who is
permitted to respond to plaintiffs interrogatories on behalf of the City. See Gluck v. Ansett
Australia Ltd, 204 F.R.D. 217, 221 (D.D.C. 2001) (affirming magistrate judge's finding that Fed.
R. Civ. P. 33 permits defense counsel who is agent of corporation to answer interrogatories on
behalf of corporation). See also E.E.O.C. v. Chrysler LLC, No. 07-CV-129986, 2008 WL
2622948, at * 1 (E.D. Mich. July 2, 2008) ("Interrogatories directed to a corporation or
governmental agency must be answered and signed by an officer or agent" and "[t]he agent or
officer designated to answer may be an attorney for the business or agency.") (citing Rea v. Wichita
Mortgage Corp., 757 F.2d 567,574 (W.D. Okla. 1984)); Desper v. Montgomery Cty., No. 88-4212,
1989 WL 57323, at *3 (E.D. Pa. May 31, 1989) ("Counsel's signature on behalf of a government
agency is acceptable as the signature of its 'agent' within the terms of Rule 33.") (citing Tinsley v.
Office of Personnel Mgmt., 34 M.S.P.R. 70 (Merit Sys. Protection Bd. June 11, 1987); J. Moore,
Moore's Federal Practice§ 33.07 (2d ed. 1982)). Thus, plaintiffs argument that it was improper
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for attorney Hicks to respond to plaintiffs interrogatories to the City is not well-taken.
5. Attorney Hicks' questioning of a witness during a deposition was not improper.
Plaintiff argues that attorney Hicks acted improperly by questioning a witness during a
deposition noticed by plaintiff. (Doc. 30 at 2). Plaintiff seeks compensation for the time used by
attorney Hicks questioning the witness. !d. Plaintiffs request is denied.
Federal Rule of Civil Procedure 30 governs the procedures for taking depositions. Rule 30
provides that a witness at a deposition is subject to both direct and cross-examination as such
questioning would proceed at trial. Fed. R. Civ. P. 30(c)(l). This means that counsel for both
parties of a civil action are permitted to question witnesses during depositions, regardless of which
party noticed the deposition. See, generally, F. C. C. v. Mizuho Medy Co. Ltd., 257 F.R.D. 679, 682
(S.D. Cal. 2009); Smith v. Logansport Comm. School Corp., 139 F.R.D. 637,642 (N.D. Ind. 1991).
Consequently, the undersigned finds no impropriety on behalf of defense counsel and plaintiffs
request for remuneration is denied.
6. Plaintiffs request to depose attorney Hicks is denied.
Plaintiff seeks to depose defense counsel given that attorney Hicks answered the
interrogatories directed to the City. (Doc. 30 at 3). For the following reasons, plaintiffs request
is denied.
"Discovery from an opposing counsel is 'limited to where the party seeking to take the
deposition has shown that (1) no other means exist to obtain the information ... ; (2) the information
sought is relevant and nonprivileged; and (3) the information is crucial to the preparation of the
case."' Nationwide Mut. Ins. Co. v. Home Ins. Co., 278 F.3d 621, 328 (6th Cir. 2002) (citing
Shelton v. Am. Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986)). See also NF.A. Corp. v.
Riverview Narrow Fabrics, Inc., 117 F.R.D. 83, 85-86 (M.D.N.C. 1987) ("the movant must
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demonstrate that the deposition is the only practical means available of obtaining the information.
If there are other persons available who have the information, they should be deposed first. Also,
other methods, such as written interrogatories which do not involve the same dangers as an oral
deposition, should be employed.").
Plaintiff has failed to demonstrate that there are no other means to obtain the information
sought by deposing attorney Hicks; that the information is relevant and not privileged; or that the
information is crucial to the prosecution of his lawsuit. Indeed, defense counsel represents that
any information sought by plaintiff will be produced upon proper request, including the production
for deposition of witnesses with whom attorney Hicks spoke in preparing the City's discovery
responses. As plaintiff has failed to demonstrate the propriety or necessity of deposing the City's
defense counsel, his request is denied.
7. Plaintiff must subpoena Mr. Riegel to take his deposition.
Plaintiffs final contention is that the City has improperly refused to produce Mr. Riegel for
deposition. (Doc. 30 at 3). The parties do not dispute that Mr. Riegel was previously an
employee for the City. However, the City represents that Mr. Riegel retired effective January 1,
2008, and, consequently, he is no longer under their control and plaintiff must issue a subpoena in
order to take his deposition. (Doc. 32 at 6-7). The City relates that plaintiff was provided with
Mr. Riegel's last known address, but contends that as he is no longer an employee, the City cannot
be compelled to produce him for deposition. !d. Plaintiff, in reply, asserts that the City should be
required to produce Mr. Riegel as they listed him in their witness list. (Doc. 33 at 4).
Federal Rule of Civil Procedure 45 governs the rules and mechanisms for obtaining
testimony from a nonparty. The rule provides that the party seeking deposition testimony must
serve a subpoena which identifies, among other things, the issuing court, the title of the action, and
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the time and place ofthe deposition. Fed. R. Civ. P. 45. The City has represented that Mr. Riegel
is no longer an employee of the City and, consequently, the City no longer has control over him
such that it can compel him to appear at a deposition. Whether or not the City identified Mr.
Riegel as an individual with knowledge regarding plaintiffs allegations is irrelevant to the City's
ability to compel Mr. Riegel to appear for a deposition. It is plaintiffs duty as the prosecutor ofhis
lawsuit to comply with the applicable rules for securing Mr. Riegel's deposition testimony. As it
appears that plaintiff is in receipt of Mr. Riegel's last known address, plaintiff should be able to
serve a subpoena on him for deposition at a time and place agreed upon by the parties. Plaintiffs
motion for an order compelling the City to produce Mr. Riegel for deposition is therefore denied.
As demonstrated by the above discussion, defense counsel has not engaged in any
sanctionable conduct through the discovery process and plaintiffs motion for sanctions is therefore
denied.
The undersigned acknowledges that plaintiff is not an attorney and, consequently, is
unaware of many ofthe procedural rules involved in obtaining discovery and prosecuting a lawsuit.
However, the Court expects plaintiff to be aware of and adhere to the local and federal rules
throughout this litigation.
IT IS HEREBY ORDERED THAT plaintiffs motion for additional mediation (Doc. 29)

is DENIED. Further, plaintiffs motions to compel and for sanctions (Doc. 30, 31) are DENIED.

~X:~

Date:

Karen L. Litkovitz
United States Magistrate Judge

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