Feltner v. Mikes Trucking
Filing
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OPINION AND ORDER defendants motion to compel, Doc. No. 22 and motion to extend Doc. No. 26 , is GRANTED. Signed by Magistrate Judge Norah McCann King on 5/28/13. (rew)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
CHARLES FELTNER,
Plaintiff,
vs.
Civil Action 2:12-cv-926
Judge Smith
Magistrate Judge King
MIKE’S TRUCKING (MICHAEL
CULBERTSON),
Defendant.
OPINION AND ORDER
This matter is before the Court on the Motion of Defendants to
Compel Discovery and for Sanctions (“Motion to Compel”), Doc. No. 22.
Defendants Mikes Trucking and Michael Culbertson seek an order
compelling plaintiff Charles Feltner to appear for a continued
deposition, to answer questions posed by counsel at the deposition,
and to pay defendants’ reasonable expenses, including attorney’s fees,
incurred in filing the Motion to Compel.
Id. at p. 1. This matter is
also before the Court on the Motion of Defendants to Extend the Case
Schedule (“Motion to Extend”), Doc. No. 26.
I.
Background
Plaintiff, who is proceeding without the assistance of counsel,
was noticed for a deposition and appeared at the offices of
defendants’ counsel for a deposition on April 9, 2013.
Compel, Exhibits A-C.
See Motion to
At the deposition, plaintiff answered questions
about his name, age, the medications he takes, and his education, but
then stated that he would invoke the Fifth Amendment privilege against
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self-incrimination in response to all further questions.
Deposition
of Charles W. Feltner (“Feltner Deposition”), attached to Motion to
Compel as Exhibit D, at PAGEID 199.
The parties then contacted the
Court in an attempt to resolve their discovery dispute.
The
undersigned was unavailable and United States Magistrate Judge Terence
P. Kemp graciously agreed to hold a discovery conference with the
parties by telephone.
Id. at PAGEID 197.
The discovery conference
with Judge Kemp is transcribed in the Feltner Deposition.
During the conference, plaintiff explained that he was not
actually concerned about incriminating himself, but that he had been
advised by an acquaintance that he should “take the Fifth Amendment
until I get legal counsel.”
Id. at PAGEID 199.
Judge Kemp explained
to plaintiff the scope of the Fifth Amendment and advised plaintiff
that his invocation of the Fifth Amendment was improper under the
circumstances.
Id. at PAGEID 198-201.
Judge Kemp further explained
to plaintiff that his failure to answer questions at the deposition
could result in the imposition of sanctions, including the dismissal
of this case and an award of defendants’ reasonable expenses,
including attorney’s fees.
Id.
Judge Kemp also explained to
plaintiff that the potential monetary sanctions could run into the
thousands of dollars.
Id.
Nevertheless, plaintiff persisted in
invoking the Fifth Amendment.
Id. at PAGEID 199-201. The deposition
thereupon ended and defendants filed the Motion to Compel.
In his response to defendants’ Motion to Compel,
Response to
Defendant’s Motion for Discovery and Sanctions (“Plaintiff’s
Response”), Doc. No. 24,
plaintiff states that he “now understand[s]
what the Fifth Amendment is” and that he is “willing to answer any
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questions with the exception of why” his employment was terminated by
defendant Mike’s Trucking.
Id. at p. 1.
Plaintiff “feel[s] that
answering these questions may influence the outcome of [his] case
against Mike’s Trucking.”
Id.
Plaintiff also argues that he should
not be required to pay defendants’ reasonable expenses in filing the
Motion to Compel because he does not “fully understand court
proceedings.”
Id.
In their Motion to Extend, defendants seek to extend the deadline
to complete discovery from May 31, 2013 to June 30, 2013 in order to
complete plaintiff’s deposition.
Id. at p. 2.
Defendants also seek
to extend the deadline to file dispositive motions from June 30, 2013
to August 30, 2013 “to allow counsel time to obtain the transcript of
the deposition and prepare the motion for summary judgment.”
II.
Id.
Standards
A.
Motion to Compel
The Federal Rules of Civil Procedure grant parties the right to
“obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense.”
Fed. R. Civ. P. 26(b)(1).
Rule 37
authorizes a motion to compel discovery when “a deponent fails to
answer a question asked under Rule 30.”
37(a)(3)(B)(i).
Fed. R. Civ. Pro.
“The proponent of a motion to compel discovery bears
the initial burden of proving that the information sought is
relevant.”
Martin v. Select Portfolio Serving Holding Corp., No.
1:05–cv–273, 2006 U.S. Dist. LEXIS 68779, at *2 (S.D. Ohio Sept. 25,
2006) (citing Alexander v. Fed. Bureau of Investigation, 186 F.R.D.
154, 159 (D.D.C. 1999)).
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The party moving to compel discovery must also certify that it
“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.”
Ohio Civ. R. 37.2.
Fed. R. Civ. P. 37(a)(1).
See also S.D.
Although the Motion to Compel does not contain a
formal certification, the Court is satisfied that this requirement has
been met.
B.
Motion to Extend
Rule 16(b) of the Federal Rules of Civil Procedure requires that
the Court, in each civil action not exempt from the operation of the
rule, enter a scheduling order that limits the time to, inter alia,
complete discovery and file motions.
(b)(3)(A).
Fed. R. Civ. P. 16(b)(1),
The rule further provides that “[a] schedule may be
modified only for good cause and with the judge’s consent.”
Civ. P. 16(b)(4).
Fed. R.
See also S.D. Ohio Civ. R. 16.2 (“[T]he Magistrate
Judge is empowered to . . . modify scheduling orders upon a showing of
good cause.”).
“‘The primary measure of Rule 16’s ‘good cause’
standard is the moving party’s diligence in attempting to meet the
case management order’s requirements.’”
Inge v. Rock Fin. Corp., 281
F.3d 613, 625 (6th Cir. 2002) (quoting Bradford v. DANA Corp., 249
F.3d 807, 809 (8th Cir. 2001)).
Whether to grant leave under Rule
16(b) falls within the district court’s discretion.
Daeschner, 349 F.3d 888, 909 (6th Cir. 2003).
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Leary v.
III. Discussion
A. Motion to Compel
Plaintiff brought this action under state and federal law
alleging that he was discriminated against in his employment and was
eventually terminated because of his age and disability and in
retaliation for having asserted a claim before the Ohio Civil Rights
Commission.
See Complaint, Doc. No. 4.
At his April 9, 2013
deposition, plaintiff asserted a blanket Fifth Amendment privilege
against self-incrimination and refused to answer any question related
to his employment by defendant Mike’s Trucking.
See Feltner
Deposition, PAGEID 198-201.
The Fifth Amendment to the United States Constitution provides
that “[n]o person shall be . . . compelled in any criminal case to be
a witness against himself.”
U.S. Const. amend. V.
The Fifth
Amendment privilege against self-incrimination “not only protects the
individual against being involuntarily called as a witness against
himself in a criminal prosecution but also privileges him not to
answer questions put to him in any other proceeding, civil or
criminal, formal or informal, where the answers might incriminate him
in future criminal proceedings.”
In re Morganroth, 718 F.2d 161, 164-
65 (6th Cir. 1983) (citing Lefkowitz v. Turley, 414 U.S. 70, 94
(1973)).
See also Bank One of Cleveland, N.A. v. Abbe, 916 F.2d 1067,
1074 (6th Cir. 1990).
In order to properly invoke the privilege, one
must demonstrate a real danger of incrimination, see United States v.
Conces, 507 F.3d 1028, 1040 (6th Cir. 2007) (quoting Brennan v.
C.I.R., 752 F.2d 187, 189 (6th Cir. 1984)), “and not a mere imaginary,
remote or speculative possibility of prosecution.”
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Morganroth, 718
F.2d at 167.
“A blanket assertion of the privilege . . . is not
sufficient to meet the reasonable cause requirement.”
Id.
Plaintiff’s invocation of the Fifth Amendment at his deposition
was improper.
Plaintiff was not concerned that answers to questions
posed to him on deposition could subject him to criminal liability but
persisted in his invocation of the privilege even after having been
advised that this course of action was improper.
PAGEID 199-201.
Feltner Deposition,
In his response to the Motion to Compel, plaintiff
continues to assert a blanket privilege to all employment related
questions.
Plaintiff’s Response, p. 1.
This is an employment case; questions relating to plaintiff’s
employment and the termination of plaintiff’s employment with Mike’s
Trucking are therefore relevant to both plaintiff’s claims and
defendants’ defenses.
Plaintiff does not suggest that response to
such questions is likely to result in criminal liability.
Plaintiff’s
blanket refusal to answer employment related questions at his
deposition and his continued refusal to answer questions about the
termination of his employment are therefore wholly improper.
Accordingly, the Motion to Compel is meritorious and that motion
is therefore GRANTED.
Plaintiff Charles Feltner is ORDERED to appear
at a continued deposition and to answer questions relating to his
employment by Mike’s Trucking.
Plaintiff is ADVISED that the scope of
discovery is extremely broad and that he is required to answer all
questions regarding any nonprivileged matter that is relevant to any
party’s claim or defense.
As discussed supra, plaintiff may not
properly invoke the Fifth Amendment privilege against selfincrimination unless he is able to demonstrate a real danger that his
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response to a particular question will subject him to criminal
liability.
Defendants also seek an award of reasonable expenses, including
attorney’s fees, incurred in filing the Motion to Compel.
Compel, p. 1.
Motion to
Under Rule 37, a court must ordinarily award the
movant’s reasonable expenses incurred in filing a motion to compel,
including attorney’s fees, if the motion to compel is granted.
R. Civ. P. 37(a)(5)(A).
Fed.
However, a court should not award expenses
if, among other things, the opposing party’s nondisclosure was
substantially justified or other circumstances make an award of
expenses unjust.
Id.
A court is vested with wide discretion in
determining an appropriate sanction under Rule 37.
Nat’l Hockey
League v. Metro. Hockey Club, 427 U.S. 639 (1976); Reg’l Refuse Sys.
v. Inland Reclamation Co., 842 F.2d 150, 154 (6th Cir. 1988).
Defendants seek a total award of $1,153.77, that amount
reflecting $1,012.50 in attorney’s fees and $141.27 in costs incurred
as a result of plaintiff’s failure to answer questions at his April 9,
2013 deposition.
Motion to Compel, pp. 3-4.
The attorney’s fees and
costs are supported by the affidavit of defendants’ attorney, Melissa
Izenson, and an invoice for court reporting services at plaintiff’s
deposition.
Id. at Exhibits E & F.
The Affidavit of Melissa A.
Izenson, attached to the Motion to Compel as Exhibit E, provides that
Melissa Izenson worked 4.5 hours at an hourly rate of $225.00 to
depose plaintiff, attend the telephone conference with Judge Kemp, and
draft the Motion to Compel.
Attorney Izenson’s affidavit also
provides that defendants incurred court reporter’s fees for
plaintiff’s deposition in the amount of $141.27.
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Id.
Plaintiff
opposes defendants’ request for fees on the basis that he should not
have to pay defendants’ reasonable expenses in filing the Motion to
Compel because he does not “fully understand court proceedings.”
Plaintiff’s Response, p. 1.
As discussed supra, plaintiff improperly invoked the privilege
against self-incrimination in refusing to answer questions at his
deposition.
Plaintiff now argues that he should be shielded from
sanctions in this matter because of his pro se status.
Plaintiff’s Response, p. 1.
See
However, Judge Kemp advised plaintiff in
a telephone conference — during plaintiff’s deposition — of the proper
parameters of the privilege against self-incrimination and warned
plaintiff that his invocation of the privilege was improper.
Feltner Deposition, PAGEID 198-201.
See
Judge Kemp also advised plaintiff
that his continued invocation of the privilege could result in the
imposition of sanctions, including an award of attorney’s fees that
“could run into the several thousand dollar range.”
199.
Id. at PAGEID
Plaintiff nevertheless continued to invoke the Fifth Amendment
and refused to answer questions posed to him.
Under these
circumstances, plaintiff’s current claim of ignorance rings hollow.
The Court concludes that, under the circumstances, an award of
expenses is just and proper.
Plaintiff Charles Feltner is therefore ORDERED to pay $1,153.77
to defendants for defendants’ reasonable expenses, including
attorney’s fees, incurred in connection with the Motion to Compel.
B. Motion to Extend
The Preliminary Pretrial Order, Doc. No. 14, requires that
discovery be completed by May 31, 2013 and that motions for summary
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judgment be filed no later than June 30, 2013.
Plaintiff’s improper
refusal to answer questions at his April 9, 2013 deposition has
significantly impeded defendants’ ability to complete discovery within
the time allotted.
The discovery completion deadline is therefore
EXTENDED to June 30, 2013.
The deadline for filing motions for
summary judgment is EXTENDED to August 31, 2013.
WHEREUPON, consistent with the foregoing, defendants’ Motion to
Compel, Doc. No. 22, is GRANTED.
Plaintiff is ORDERED to submit to a
continued deposition and to answer questions related to his employment
by Mike’s Trucking, as well as other proper questions.
Plaintiff is
ADVISED that his failure to obey this Order may be treated as contempt
of court and may result in additional sanctions, including the
dismissal of this action.
See Fed. R. Civ. P. 37(b).
Defendants’ Motion to Extend, Doc. No. 26, is GRANTED. The
discovery completion deadline is EXTENDED to June 30, 2013.
The
deadline for filing motions for summary judgment is EXTENDED to August
31, 2013.
May 28, 2013
s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge
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