Loring v. United States of America et al

Filing 109

MEMORANDUM OPINION AND ORDER denying as moot 73 Motion for Sanctions; denying 78 Motion to Compel; denying 80 Motion to Amend/Correct; denying 81 Motion ; denying 83 Motion ; denying 95 Motion for Judgment as a Matter of Law; granting with prejudice 97 Motion for Summary Judgment; denying 104 Motion for Entry of Default. Signed by U.S. District Judge Lawrence L. Piersol on 03/17/2020. Mailed to Daniel Loring via USPS (KLE)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

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DANIEL LORING,

CIV 18-4034

Plaintiff,
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vs.

MEMORANDUM OPINION
AND ORDER

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UNITED STATES OF AMERICA,

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Defendant.

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Plaintiff Daniel Loring ("Loring") brought this pro se lawsuit against the United States of
America alleging legal malpractice by two Assistant United States Attorneys ("AUSAs") who
handled a civil lawsuit filed under the Fair Housing Act on Loring's behalf. Pending before the
Court are several motions filed by Loring.(Docs.78,80,81,83,95 and 104.)In addition, the United
States has moved for sanctions and for summary judgment in its favor.(Docs. 73 and 97.) For the

following reasons,the Court grants the United States' motion for summaryjudgment and denies the
remaining motions.
PROCEDURAL fflSTORY

Loring originally brought this lawsuit against the United States of America,the Department
of Justice,and the Executive Office for United States Attorney's General Counsel.The United States

is the only proper defendant in an action brought under the Federal Tort Claims Act("FTCA")based

on acts performed by individual federal employees during the course and scope oftheir employment.
Thus,in an Opinion dated December 18,2018,this Court granted the defendants' motion to dismiss

the Department of Justice and the Executive Office for United States Attomey's General Counsel.
(Doc. 38.)

This Court also granted the United States' Rule 12(b)(6) motion to dismiss most of Loring's

claims.(Doc.38.)Loring's legal malpractice allegations in his complaint were found to be sufficient
to survive the motion to dismiss. Id. Though Loring pleaded facts sufficient to state a legal

malpractice claim, his motion for summaryjudgment was denied. Id. It could not be determined as
a matter of law that the AUSAs were negligent in their representation of Loring, and the Court held

that Loring needed to submit an expert opinion to establish negligence. Id. at 10("Because this is

not a clear and palpable case sueh as expiration of a statute oflimitations, Loring will need to submit
an expert opinion to establish that the Assistant United States Attorneys were negligent.")
After the Answer was filed, the parties were unable to agree on a proposed diseovery plan,

and on May 8, 2019, this Court issued a Rule 16 Scheduling Order. See Doe. 64. The deadline for
Loring to disclose his expert witnesses was June 14,2019.Id. at^4.The Scheduling Order provided,

in part, "[t]hat Plaintiff is advised that under applicable law, a legal malpraetiee claim such as this
one,requires expert testimony to support the claim." M at^7. On June 13,2019,Loring moved for

a 90-day extension of time to find an expert. Doc. 70. The government did not objeet to the
extension. Doc. 71. The extension was granted and the Rule 16 Scheduling Order was amended to

change the deadline for Loring to disclose expert witnesses to September 16, 2019. See Doc. 72 at
^5. Loring was again reminded that he needed expert testimony to substantiate his legal malpraetiee
claim. Id. at f 8.

On July 23, 2019, Loring served the United States with a document indicating his intention
to act as his own expert witness. Doc.99, Statement of Facts atf 4; Exhibit A to the Declaration of
Delia M.Druley.Loring said he would move the Court to appoint an expert if the Court still required

expert testimony. See id., Exhibit A at p. 4-5. At a hearing on August 8, 2019,this Court explained
to Loring that it would not appoint an expert witness and that Loring needed to hire one because he

carmot serve as his own expert witness for his legal malpraetiee claim.' Doc. 108 at p. 8(Transcript
of Hearing).

Subsequently, Loring disclosed to the United States the names of several people he elaimed
would be his expert witnesses, including Orlando Lopez, an investigator for the United States

Department of Housing and Urban Development(HUD), Matthew Mussetter, a trial attorney for
HUD, Special Agent Gene Morrison with the Office of the Inspector General ("OIG"), and Paul
Flogstad, the Sioux Falls Fair Housing Ombudsman. Statement of Facts at H 5 and 6, Exhibits B
and C to Druley Declaration. No expert witness reports were disclosed by Loring. Counsel for the

'The primary purpose of the hearing on August 8, 2019, was to address the United States' motion
for sanetions for threats Loring made against lawyers for the United States. (Doc. 73.) The Court

warned Loring that his case could be dismissed if he were to even intimate a thireat against anybody
in the future.(Doe. 108 at p. 6-7, 12.) No further allegations of threats by Loring have been made
and, based on the Court's oral rulings at the hearing, the United States' motion for sanctions is
denied as moot.

United States explained in letters to Loring that he needed expert reports, that he could not use

federal employees as expert witnesses in his claim against the United States, and that non-lawyers
cannot establish the standard ofcare for a legal malpractice claim. Statement ofFacts at%7,Exhibit
D to Druley Declaration.

Loring served the United States with two additional pleadings again indicating that he would
rely on the federal employees as expert witnesses. Statement of Facts at

8 and 9, Exhibits E and

F to Druley Declaration. Loring provided documents suggesting that he intended to rely on his

complaints to the Department of Justice Office of Inspector General("GIG") as his expert reports.
Id. and Doc. 93.

On September 16, 2019, Loring served a pleading asserting that OIG Special Agent Gene

Morrison is his expert witness. Statement of Facts atf 10, Exhibit G to Druley Declaration. Loring
attached a two page OIG complaint form to his pleading.Id. Loring also filed these documents with
the Court. (Doc. 94.)

The United States filed its Motion for Summary Judgmenton September 20,2019.(Doc.97.)
FACTUAL BACKGROUND

On August 28, 2015,the United States filed a Fair Housing Act lawsuit on behalf of Loring
alleging that the owners of Loring's apartment improperly discriminated against Loring, who is an
individual with a disability because he required the use of a wheelchair due to an injury. See CIV
15-4137,Doc. 1. This unlawful discrimination ultimately resulted in the eviction ofLoring from the

apartment and an unfavorable rental referencefrom the owners.Loring was unable to find permanent
housing as a result. The United States alleged that the apartment owners' violations were intentional,
willful, and taken in reckless disregard of Loring's rights. The Complaint sought injunctive relief
againstthe owners to prohibit them from continuing their discriminatory practices againstindividuals
with disabilities, to order them to take any affirmative steps necessary to restore Loring to the

position he would have been in but for the discriminatory conduct, and to take such steps as would
be necessary to prevent the recurrence of any discriminatory conduct in the future. The lawsuit also

sought an award of monetary damages to Loring pursuantto42U.S.C.§§3612(o)(3)and 3613(c)(1).
Loring had the right to obtain a private lawyer of his choice to represent him in the Fair
Housing Act case,but he never did so. Loring also had the right to intervene in the Fair Housing Act
case. See 42 U.S.C.§ 3612(o)(2)
("Any aggrieved person with respect to the issues to be determined

in a civil action under this subsection may intervene as of right in that civil action."). Lx)ring never
intervened. The AUSA informed Loring ofthese rights several times.(Doc. 1-2 at p. 50,Email from

Alison Ramsdell dated May 12, 2016)("As I indicated several times before, you have the right to
hire an attorney and intervene in this matter. Until you do so,the actual and only Plaintiff in this case
is the United States.")

An email from Loring to the AUSA dated August 29, 2017, shows that he was willing to
settle for $15,000. (Doc. 1-11 atp. 39-40)("I wish I would have taken the $15,000 last December.")
On October 2, 2017, the AUSA emailed Loring that the defendants had offered $15,000 to settle.

(Doc. 1-11 at p. 43.) Loring responded with an email on October 12, 2017, stating,"Go ahead and
settle the case, can I get paid right away?"(Doc. 1-11 at p. 44.)After the AUSA told Loring that she
would draft a settlement agreement, he responded,"Please just get a settlement agreement drafted
and I will make an appointment to come and see you when you have it ready and I will eome and

sign whatever I have to so it can just get settled and it's over with."(Doc. 1-11 at p. 45.)
Loring does not provide copies of emails showing how the AUSA was able to get an

additional $5,000 to settle the case for $20,000, but he does provide a copy of the Settlement
Agreement which was executed in November of 2017.(Doc. 1-11 at 96-102, Executed Settlement
Agreement.)The owners agreed to pay Loring $20,000 in exchange for a release of all claims against
them. {Id. at 98,f 8.) Loring signed the release on November 23, 2017.(Doc. 1-11 at p. 102.)

The Settlement Agreement noted that the apartments had been sold and that none of the
defendants were in the business of owning or managing residential property to which the Fair

Housing Act applies. {Id. at 98,f 11.) The district court dismissed the Fair Housing Act case on
November 27, 2017. See CIV 15-4137, Doc. 23.

On April 3, 2018, Loriug filed this lawsuit, asserting numerous claims arising out of the
handling and settlement of the Fair Housing Act case. (Doc. 1.) The only remaining claim is
Loring's legal malpractice claim against the AUSAs.
SUMMARY JUDGMENT STANDARD

Summaryjudgment is appropriate if the movant "shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a).
The moving party can meet this burden by presenting evidence that there is no dispute of material
fact or by showing that the nonmoving party has not presented evidence to support an element of its

case on which it bears the ultimate burden of proof. Celotex Corp. v. Catrett, All U.S. 317,322-23

(1986). To avoid summary judgment,"[t]he nonmoving party may not rest on mere allegations or
denials, but must demonstrate on the record the existence of specific facts which create a genuine
issue for trial." Mosley v. City ofNorthwoods,415 F.3d 908,910(8th Cir. 2005)(quotation omitted).
The underlying substantive law identifies which facts are"material"for purposes of a motion
for summaryjudgment. Anderson v. Liberty Lobby, Inc., All U.S. 242,248(1986)."Only disputes
over facts that might affect the outcome of the suit under the governing law will properly preclude
the entry of summary judgment. Factual disputes that are irrelevant or uimecessary will not be
counted."Id.(citing 9A Charles Alan Wright et al.. Federal Practice and Procedure,§ 2725,at93-95

(3d ed. 1983)). "[T]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summaryjudgment;the requirement is that there
be no genuine issue of material fact." Id. at 247^8.
In ruling on a motion for summary judgment, the Court is required to view the facts in the

light most favorable to the non-moving party and must give that party the benefit of all reasonable
inferences to be drawn from the underlying facts. AgriStor Leasing v. Farrow, 826 F.2d 732,734

(8th Cir. 1987). All facts presented to the district court by the non-moving party are accepted as true
if properly supported by the record. See Beck v. Skon, 253 F.3d 330, 332-33 (8th Cir. 2001).
Moreover,"at the summaryjudgment stage thejudge's function is not himself to weigh the evidence
and determine the truth of the matter but to determine whether there is a genuine issue for trial."
Anderson, All U.S. at 249. The court must determine "whether the evidence presents a sufficient

disagreement to require submission to ajury or whether it is so one-sided that one party must prevail
as a matter of law." Id. at 251-52.

The local rules for this district require that the moving party on a motion for summary

judgment submit a statement of the material facts as to which it contends there is no genuine issue
to be tried. D.S.D. CIV. LR 56.1(A). The opposing party is required to respond to each numbered

paragraph in the moving party's statement of material facts, and to identify any material facts as to
which it contends there exists a genuine material issue to be tried. D.S.D. CIV. LR 56.1(B). All
material facts set forth in the moving party's statement of material facts are deemed admitted if not

controverted by the statement required to be served by the party opposing summary judgment.
D.S.D. CIV.LR 56.1(D); see also On Target Sporting Goods,Inc. v. Attorney General ofthe United

States, 472 F.3d 572,574(8th Cir. 2007). Such rules are intended "to prevent a district court from
engaging in the proverbial search for a needle in the haystack."Libel v. Adventure Lands ofAmerica,

Inc.,482 F.3d 1028,1032(8th Cir. 2007)(discussing a similar Iowa Local Rule)."Although pro se
pleadings are to be construed liberally, pro se litigants are not excused from failing to comply with
substantive and procedural law." Burgs v. Sissel, 745 F.2d 526,528(8th Cir. 1984)(citing Faretta
V. California, 422 U.S. 806, 834-35 n. 46(1975)).

In this case,the United States filed a Statement of Undisputed Facts along with a supporting
declaration and exhibits.(Docs. 99 and 100.) Loring filed a resistance to the motion for summary
judgment in the form of his own affidavit and attached exhibits.(Doc. 101.) Loring relies for the
most part on documents related to the complaint he filed with the OIG about the AUSAs who
handled his Fair Housing Act case.

This Court now must decide whether Loring has met his burden of introducing admissible

evidence sufficient to create a genuine issue of material fact as to the United States' liability.
Specifically, as discussed below,Loring has the burden of proving the AUSAs failed to exercise at
least that degree of care, skill, and diligence which is exercised by prudent practicing attorneys in

a particular locality. The United States urges that Loring's failure to introduce any expert testimony
means he has not met this burden and,therefore, the United States is entitled to summaryjudgment.
DISCUSSION

1. Loring's Allegations of Legal Malpractice

Among the allegations in his lengthy Complaint, Loring claims that the AUSAs committed
legal malpractice in the Fair Housing Act case by not including enough factual information in the
complaint and refusing to amend the complaint as he requested,failing to seek civil penalties from
the defendants, and settling for an amount much less than the damages he claims to have suffered.
2. Elements of Legal Malpractice

The elements ofa legal malpractice cause of action are"(1)the existence of an attorney-client

relationship giving rise to a duty;(2) the attorney, either by an act or failure to act, breached that
duty;(3) the attorney's breach of duty proximately caused injury to the client; and (4) the client
sustained actual damage." Zhi Gang Zhang v. Rasmus, 932 N.W.2d 153, 162 (S.D. 2019), cert,
denied,2020 WL 871735(U.S.Feb.24,2020)(quoting Peterson v. Issenhuth,842 N.W.2d 351,355
(S.D. 2014)).

3. Necessity of Expert Testimony

Under South Dakota law, the general rule is that a plaintiff bringing a claim for legal
malpractice is required to present expert testimony to establish the standard of proper professional
skill or care. Nemec v. Deering, 350 N.W.2d 53, 56 (S.D. 1984)(holding that in some cases of

alleged negligence by a lawyer, "the plaintiff is required to show by expert testimony that the
attorney failed to exercise a reasonable degree of care, skill and dispatch according to the standards
of a particular community"). The South Dakota Supreme Court has further explained:
In a malpractice action the jury decides, from evidence presented at trial by other
lawyers palled as expert witnesses, whether a lawyer possessed and used the
knowledge, skill, and care which the law demands of him. The opinions and
testimony of such experts are indispensable in determining questions which are
unfamiliar to ordinary witnesses and, within that field, the opinions of lay witnesses
are not admissible.

Lenius v. King, 294 N.W.2d 912, 914(S.D. 1980)((internal citation omitted). The South Dakota

Supreme Court explained the rationale for the rule requiring expert testimony on the standard ofcare
in a legal malpractice action:

[Ejxcept in clear and palpable eases(such as the expiration of a statute oflimitation),
expert testimony is necessary to establish the parameters of acceptable professional
conduct,a significant deviation from which would constitute malpractice.The reason
for this requirement is simply that ajury cannot rationally apply negligence principles
to professional conduct absent evidence of what the competent lawyer would have
done under similar circumstances, and the jury may not be permitted to speculate
about whatthe"professional custom"may be.Expert evidence as to the"professional
custom" is required in malpractice actions against other professionals. Consistence
demands a similar standard for attorneys.

Id.(quoting Hughes v. Malone, 146 Ga.App. 341,247 S.E.2d 107, 111 (1978)). Because this is not

a clear and palpable case of malpractice such as the expiration ofa statute of limitations,Loring must
provide the opinion of a lawyer,retained as an expert witness, as to whether the AUSAs possessed
and used the knowledge, skill, and care which the law demanded of them in the Fair Housing Act
case.

4. Loring's Contention That His Complaint to the DOJ's Office of the Inspector General
("GIG")and Other Documents from the OIG Constitute Expert Testimony
In his affidavit opposing the United States' motion for summaryjudgment, Loring relies on
documents he sent to the GIG and documents he received from the OIG. He avers that he filed two

administrative claims regarding the AUSAs' alleged misconduct in handling the Fair Housing Rights
case. Doc. 101, Affidavit of Daniel Loring at f 3. The two complaints were filed with the OIG in

June of 2017 and December of 2017. See id. and Doc. 101-1 at p. 16-19; Doc. 101-1 at p. 23-25.
Loring emphasizes the importance of a Memorandum from Gene Morrison, Special Agent
in Charge at the OIG,to Robin Ashton, Counsel with the Office of Professional Responsibility for
the Department of Justice. The Memorandum, dated July 10, 2017, states in relevant part:
The attached complaint was received by this office.

After reviewing this complaint, we have determined that an Investigation by the
Office of the Inspector General is not warranted. Therefore, this matter is being
referred to you for whatever action you deem appropriate.
Doc. 101-1 at p. 11. The OIG sent a letter to Loring dated July 10, 2017, explaining that the OIG
"does not have jurisdiction to investigate allegations that a Department of Justice attorney has
committed misconduct while exercising his or her litigation authority." Doc. 101-1 at p. 15. This

letter provided Loring with the addresses of the appropriate agencies, including that DOJ's Office
of Professional Responsibility, for him to direct his future correspondence."
After Loring sent additional information to the OIG, Agent Morrison forwarded that, too,

to Robin Ashton at the Office ofProfessional Responsibility on August 2,2017.Doc. 101-1 at p. 15.
Loring wrote another letter to the OIG dated December 11, 2017,forwarding a copy of the
Judgment dismissing the Fair Housing Act lawsuit. Doc. 101-1 at p. 23-25.

At a date uncertain, Loring sent another letter to the OIG purporting to amend his complaint
due to "the lack of any kind ofresponse"from the Office ofProfessional Responsibility. Doc. 101-1

at p. 27. It was Loring's opinion that the AUSAs should have already been indicted on felony
criminal charges. Id. The OIG responded with a letter dated March 1,2018,referring to the July 10,
2017 letter to Loring and again advising him that the OIG does not have jurisdiction to investigate
his allegations of misconduct by a DOJ attorney. Doc. 101-1 at p. 30-31.

" The Office of Professional Responsibility for the Department of Justice has jurisdiction to
investigate allegations of misconduct against Department attorneys relating to the exercise of their
authority to investigate, litigate, or provide legal advice. Doc. 100,Druley Declaration, at^ 13,Ex.
J. The Office of Professional Responsibility found no abuse of the discretionary authority vested in
the AUSAs who handled Loring's Fair Housing Act case. See Druley Declaration,Ex. J. The Office
of Professional Responsibility directly informed Loring of this finding. Id.

Finally,Loring includes a copy of an OIG complaintform which was provided to him during
discovery.Doc. 101-1 at p. 36-37.The"Details"section oftheform summarizes Loring's allegations
against the AUSAs as reported by Loring. Id. at 36. The "Remarks" section of the Complaint Form
is redacted. Id. at 37. Loring contends that the United States should be ordered to provide him with

an unredacted copy of the Complaint Form. The United States responded that the redactions Loring
complains of"were done to protect personally identifiable information pursuant to the Privacy Act,
5 U.S.C. § 552a, and to prevent the disclosure of law enforcement sensitive information, which
would reveal OlG's internal processes." Doc. 102, Reply Brief at p. 3.
Loring asks this Court to accept his complaint to the OIG as evidence of malpractice. He

appears to ask the Court to infer malpractice because the GIG did not state the absence of
malpractice. See, e.g.. Doc. 65 at pp. 4 and 5 (Loring explains his argument that if the OIG
Investigations Division would have found no misconduct by the AUSAs, Loring would have
received a letter stating that the OIG found no attomey misconduct and that his case is closed).
Loring names OIG Special Agent Gene Morrison as his expert witness. Doc. 101-1 at p. 8.
However, Agent Morrison was not hired by Loring to be an expert witness. Furthermore,
Loring has not demonstrated that Agent Loring is a lawyer or has special knowledge, skill,

experience, training, or education in the area of legal practice, and thus he does not meet the
necessary prerequisites of an expert witness on the standard of care for lawyers. In fact, nothing
submitted by Loring sets forth the relevant standard of care or explains how specific acts by the

AUSAs,in the opinion of a legal expert, fell below the standard of care.^

^ For these same reasons the Court also denies Loring's Motion for Court to Modify Subpoena.
(Doc. 83.) There, Loring is attempting to obtain documents related to his OIG complaint directly
from the OIG. Loring subpoenaed the documents from the OIG and he is not satisfied that the
documents were provided by the OIG to the lawyer representing the United States in this case, who
then served the documents on Loring.See Doc.94. It appears that Loring believes he should receive
an unredacted copy of the complaint form completed by the OIG because he thinks it will provide
the expert testimony he needs in support of his legal malpractice claim. Id. However, as the Court
has explained, actions based on a lawyer's alleged deviation from professional practice standards
require expert testimony of these standards, as well as the deviations from these standards. A
complaint form prepared by the OIG based on Loring's reports of lawyer misconduct does not
amount to expert testimony. Special Agent Morrison with the OIG has not been retained as an expert
by Loring and there is no showing that Agent Morrison is qualified to testify as to the standard of
care required of a lawyer, or even that he has any opinion at all in this case. There is no reason to
modify Loring's subpoena of OIG documents, and he cites no authority that would allow the Court
to do so.

Having carefully reviewed the documents Loring filed in this ease,including but not limited
to those filed in opposition to the United States' motion for summaryjudgment,this Court does not

find any evidenee of a breach of a legal standard of care that is so clear that a jury would recognize
it as malpractice without the opinion of an expert witness establishing a breach of the standard of
eare. The Court's close review of the record does not reveal that the AUSAs' representation of
Lxjring exhibited any obvious want of care and skill as to fall within the exception to the expert
witness requirement when malpractice is alleged to have taken place. Whether refusing to amend
the complaint in the Fair Housing Act case, failing to seek civil penalties from the defendants, or
settling the case for much less than Loring had hoped for, were breaches of the standard of care
would require the testimony of a legal expert in order to assist ajury in understanding the applicable
standard of care and to evaluate the lawyers' actions m light of that standard.

Loring has therefore failed to come forward with evidence to create a genuine issue of

material fact that the AUSAs failed to exercise at least that degree of care, skill, and diligence whieh
is exercised by prudent practicing attorneys in a particular locality. Therefore, the Court finds
summary judgment in favor of the United States is appropriate.
5. Loring's Pending Discovery Motions(Docs. 78,80,81)
On July 8,2019,Loring served twenty requests for admissions and two interrogatories on the

United States. See Doc.86-1 (Exhibit A to Declaration ofDelia Druley). On August 7,2019,Loring
mailed the United States a motion to compel answers to his discovery requests. See Doc. 78 at p.2.
The motion was filed on August 8,2019.Id. Loring asserted in the motion to compel that the United
States' responses were untimely.Id. However,the responses were timely served by the United States
by letter dated August 8, 2019. See Does. 86-2 and 86-3 (Exhibits B and C to Druley Declaration).
On August 12, 2019, Loring filed a motion to amend his motion to compel discovery,

essentially asking the Court to allow him to eorrect some wording errors in his discovery requests.
(Doc. 80.) However, the responses had already been completed and served by the United States.
Thus there is no reason for Loring to amend his motion to eompel.

Loring conceded that the United States' responses to his discovery requests were timely,but
he takes issue with the sufficiency ofthe United States' responses and its failure to admit his requests
for admission.(Docs. 81 and 82.)

10

Motions to compel discovery are governed by Federal Rule of Civil Procedure 37. Rule

37(a)(1) and Local Rule 37.1 require the parties to make a good faith effort to resolve any discovery
disputes prior to filing a motion to compel. FED.R. CIV.P. 37(a)(1); LR 37.1; see also Black Hills
Molding, Inc. v. Brandom Holdings, LLC,295 F.R.D.403,409(D.S.D. 2013)
("A party requesting
the discovery is entitled to move for[an order] compelling disclosure after having made a good faith
effort to resolve the dispute by first conferring with the other party."); Pierce v. Fremar,LLC,2010
WL 3420169, *1 (D.S.D. Aug. 27, 2010)("Email, letters, or, even better, direct conversation

between the attorneys will satisfy the[meet and confer] requirement."). Additionally, Rule 37 and
LR 37.1 require that the filing party include a certification detailing the good faith efforts of the
parties to resolve the discovery disputes. FED. R. CIV. P. 37(a)(1)("The motion must include a

certification that the movant has in good faith conferred or attempted to confer with the ... party
failing to make disclosure or discovery in an effort to obtain it without court action."); LR 37.1("A
party ... must file a separate certification describing the good faith efforts of the parties to resolve
the dispute.").
Here,Loring failed to make a good faith effort to meet and confer with counsel for the United

States in order to resolve his dissatisfaction with the responses to his discovery requests prior to
filing the motion to compel.
The Court also rejects Loring's claim that the United States' responses are insufficient.
Loring served the United States with twenty requests for admission accompanied by two

interrogatories.'^ Many of Loring's requests ask the United States to ratify Loring's own legal
conclusions based on his interpretation of the facts. The United States is not required to agree with

the facts or the legal conclusions that Loring sets forth in his requests for admission. Requests for
admission are not to be used as a means "to establish facts which are obviously in dispute or to
answer questions of law." Kosta v. Connolly,709 F.Supp. 592,594(E.D.Pa.l989)(citing Driver v.
Gindy Manufacturing Corp., 24 F.R.D. 473,475(E.D.Pa. 1959)).

The Interrogatories require factual substantiation for any response that the United States provided
in the Requests for Admission.
11

The United States' answers comply with the directives of Rule 36(a) by either admitting,

denying, or responding with qualifications.^ Though the United States objected to the discovery
requests, it also included denials and clearly explained its answers. For example,the United States
explained if its interpretation of a given document differed from Loring's construction of that

document. While Loring does not like the United States' responses, the United States' denials are
explained. Nothing further is required. After careful review of Loring's requests for admission and

the United States' responses, the Court concludes that the responses are adequate and Loring's
discovery-related motions are denied.(Docs. 78, 80 and 81.)

6. Loring's Motion for Judgment as a Matter of Law and Motion for Entry of Default(Docs.
95 and 104)

Loring asks the Court to enter judgment in his favor and requests damages in the amount of

$26,400,000. (Docs. 95 and 104.) To support his position, Loring contends that the lawyer
representing the United States in this case withheld records and redacted facts in responding to
Loring's subpoena to the Department of Justice Office ofthe Inspector General. Loring also accuses
the United States' lawyer of altering and destroying other documents such as the medical release he
signed in the Fair Housing Act case, and ofrefusing to participate in discovery. After careful review,
the Court concludes that Loring's accusations are unfounded.

Even applying the liberal construction to which pro se pleadings are entitled, the Court is
unable to find support for judgment in Loring's favor. Loring mainly relies on documents from the
OIG having to do with his complaints to that agency about the conduct of the AUSAs in his Fair
Housing Act case. He states that the "determinations, findings, decision and rulings" on his
administrative claims constitute his evidence of malpractice by the AUSAs who handled that case.

Rule 36(a)(4) provides:
Answer. If a matter is not admitted, the answer must specifically deny it or state in
detail why the answering party cannot truthfully admit or deny it. A denial mustfairly
respond to the substance of the matter; and when good faith requires that a party
qualify an answer or deny only a part of a matter, the answer must specify the part
admitted and qualify or deny the rest. The answering party may assert lack of
knowledge or information as a reason for failing to admit or deny only if the party
states that it has made reasonable inquiry and that the information it Imows or can
readily obtain is insufficient to enable it to admit or deny.
Fed. R. Civ. P. 36(a)(4).
12

See Doc. 95 at p. 2. However, the only finding that the Court is able to locate in the record is from

the Office of Professional Responsibility finding no abuse of the discretionary authority vested in

the AUSAs who handled Loring's Fair Housing Act case.®
As explained above,Loring has failed to come forward with an expert opinion to support his
legal malpractice claim. At numerous times throughout his pleadings, Loring mentions that some

documents are stamped by the agency with "CIVIL RIGHTS/CIVIL LIBERTIES CODE 688."
Loring says code 688 "refers to State Jurisdiction in the Criminal Resources Manual 601-799" on

the DOJ website. See Doc. 95 at p. 15. Loring contends that this is his "expert witness fingerprint
testimony." See id. The Court notes that there are documents in the record with the stamp referred
to by Loring,but the Court cannot conclude that the stamp is Loring's expert witness testimony. For
these reasons, Loring is not entitled to judgment in his favor, and his motions are denied.(Docs. 95
and 104.)
CONCLUSION

For the reasons set forth above, the Court concludes there is no genuine issue of material fact

and judgment for the United States should be entered as a matter of law. Accordingly,

IT IS ORDERED:

1. That the United States' Motion for Summary Judgment, Doc.97,is granted with
prejudice;
2. The United States' Motion for Sanctions, Doc. 73, is denied as moot; and

3. That Loring's motions. Docs. 78, 80, 81, 83, 95 and 104, are denied.

® Loring received 314 pages of documentation from the DOJ Office ofInspector General in response
to his subpoena. See Declaration of Delia M. Druley, Ex. A, March 21, 2019 letter to Loring re:
Subpoena Response. According to the United States, Loring has received "every document in the
Office of the Inspector General's possession related to his claims." Doc. 88 at p. 2.
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Dated this 17th day of March, 2020.
BY THE COURT:

5nce L. Piersol

United States District Judge
ATTEST:

MATTHEW W.THELEN,CLERK

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