Kinney et al v. Anderson Lumber Company, Inc. et al (TV1)

Filing 63

MEMORANDUM AND ORDER denying 51 Motion to Compel; denying 52 Motion to Compel; denying 57 Motion. Signed by Magistrate Judge H Bruce Guyton on 12/19/17. (copy mailed to Margaret Kinney and William Kinney) (JBR) Modified text on 12/19/2017 (JBR).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE

WILLIAM KINNEY, and MARGARET KINNEY, )
)
Plaintiffs,
)
)
v.
)
)
ANDERSON LUMBER COMPANY, INC., et al., )
)
Defendants.
)

No. 3:16-CV-78-TAV-HBG

MEMORANDUM AND ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court,
and Standing Order 13-02.
Now before the Court are the following Motions: (1) Plaintiffs’ Motion to Compel, or in
the Alternative, Leave to Serve Additional Discovery Requests [Doc. 51], (2) Plaintiffs’ Motion
for an Order Compelling Discovery [Doc. 52], and (3) Plaintiffs’ Motion for Clarification [Doc.
57]. Accordingly, for the reasons explained below, the Court DENIES Plaintiffs’ Motions [Docs.
51, 52, 57].
I.

POSITIONS OF THE PARTIES
With respect to Plaintiffs’ Motion to Compel [Doc. 51], they request that the Court compel

Defendant Kizer & Black, Attorney, PLLC (“Kizer & Black”) to produce any and all information
and documentation used by Attorney Davis to support her allegation that Plaintiffs are sovereign
citizens.

Plaintiffs explain that during the hearing held on October 18, 2017, before the

undersigned, Attorney Davis stated that Plaintiffs were sovereign persons or using a sovereign
person’s defense. Plaintiffs state that such terms were unfamiliar to them. After the hearing, they
performed an internet search on “sovereign citizens” and were absolutely shocked to realize the

implications of Attorney Davis’s accusation. They further assert that Attorney Davis’s comment
is pertinent to Plaintiffs’ Fair Debt Collection Practices Act (“FDCPA”) claim.
Defendant Kizer & Black filed a Response [Doc. 56], stating that during the October 18
hearing, Attorney Davis never claimed that Plaintiffs were sovereign citizens. Instead, she
compared their filings with the Court as being like those of sovereign citizens. Further, Defendant
states that any statements made in the course of litigation and Court proceedings by counsel are
absolutely privileged. Defendant also asserts that the allegations in the Complaint are not relevant
to the issues raised in Plaintiffs’ Motion. In addition, Defendant asserts that the Motion to Compel
is premature because Plaintiffs served their discovery requests with the Motion to Compel.
Finally, Defendant asserts that Plaintiffs’ Motion does not include a good-faith certification.
With respect to Plaintiffs’ Motion for an Order Compelling Discovery [Doc. 52], Plaintiffs
seek an order compelling Defendant Anderson Lumber Company, Inc., (“Anderson Lumber”) to
produce a copy of the credit application. Plaintiffs state that during the October 18 hearing,
Plaintiff William Kinney told the Court that there is no contract or account level documentation
showing that Plaintiffs opened an Anderson Lumber credit account as claimed by Defendant. The
Motion states that during the hearing, the undersigned ordered Defendant Kizer & Black to
produce the credit application, and Attorney Davis stated, “There’s a copy of it somewhere around
the office.” Plaintiffs continue that this comment was evasive and a deliberate attempt to induce
the Court into believing the application exists.
Defendant Anderson Lumber filed a Response [Doc. 55], arguing that the credit application
was attached to the original and the amended complaints that were filed in state court. Defendant
Anderson Lumber continues that the credit application was also made available for inspection
during document production.

In addition, attached to its Response is a Commercial Credit

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Application. [Doc. 55-1]. Defendant requests that Plaintiffs be required to pay Defendant
Anderson Lumber’s costs in responding to the instant Motion.
II.

ANALYSIS
With respect to the Motions to Compel [Docs. 51 and 52], the Court has considered the

parties’ filings and finds the Plaintiffs’ requests not well taken. As mentioned above, the first
Motion to Compel requests that the Court compel Defendant Kizer & Black to produce any and
all information and documentation used by Attorney Davis to support her allegation that Plaintiffs
are sovereign citizens. In the alternative, Plaintiffs request leave to serve additional discovery
requests regarding Attorney Davis’s allegation that Plaintiffs are sovereign citizens.
As an initial matter, Attorney Davis’s comment during the hearing had no effect on this
Court’s subsequent ruling. [Doc. 54]. Further, the Court finds such discovery irrelevant for
purposes of the underlying claims in this case. In addition, Plaintiffs’ Motion does not comply
with Federal Rule of Civil Procedure 37(a), which requires a certification of good faith that the
party has conferred or attempted to confer in good faith prior to seeking Court action. Finally,
Plaintiffs did not comply with the procedure outlined in the Scheduling Order [Doc. 16 at 4] for
resolving discovery disputes.

The Court’s previous Memorandum and Order [Doc. 54]

admonished the parties to follow the procedure or risk future motions regarding discovery disputes
being summarily denied. Accordingly, the Plaintiffs’ Motion to Compel [Doc. 51] is DENIED.
With respect to Plaintiffs’ second Motion for an Order Compelling Discovery [Doc. 52],
the Court also finds this Motion not well taken. At the October 18 hearing, the Court ordered
[Doc. 54] Defendants to produce the Anderson Lumber Credit Application. Defendant Anderson
Lumber’s Response to the instant Motion states that that it has produced the Anderson Lumber
Credit Application multiple times, including attaching a copy to its Response. [Doc. 55-1]. The

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Court finds that Defendant Anderson Lumber has produced the Credit Application that it intends
to rely on in defending this case. Although Plaintiffs assert that the Anderson Lumber Credit
Application, in the name of William or Margaret Kinney, does not exist, the Court finds this
argument goes to the merits of the underlying case and is not the proper subject of a Motion to
Compel. The Court observes that Plaintiffs’ request for an order compelling production of a
document is incompatible with their argument that the document does not exist. Accordingly,
Plaintiffs’ Motion for an Order Compelling Discovery [Doc. 52] is DENIED.
Finally, Plaintiffs filed a Motion for Clarification [Doc. 57], requesting clarification of the
Court’s Order [Doc. 54], which states, “The Plaintiffs explain that they are challenging the
constitutionality of Tennessee code Annotated § 23-3-101 and 103 in state court.” Plaintiffs state
that they have misstated the issue or that the Court has misunderstood the issue. Plaintiffs explain
that they have already presented the constitutional challenge to the State and that the matter is
unresolved.

The Court understands Plaintiffs’ position but finds no additional clarification is

warranted given that the Court’s statement was made in relation to Plaintiffs’ request for a
continuance of the hearing, which was moot. 1

1

The Court observes that the Plaintiffs have filed a Constitutional Challenge of
Tennessee’s UPL Law and Memorandum of Law [Doc. 59].
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III.

CONCLUSION
Accordingly, for the reasons explained above, Plaintiffs’ Motion to Compel, or in the

Alternative, Leave to Serve Additional Discovery Requests [Doc. 51], Plaintiffs’ Motion for an
Order Compelling Discovery [Doc. 52], and Plaintiffs’ Motion for Clarification [Doc. 57] are
DENIED.
IT IS SO ORDERED.
ENTER:

United States Magistrate Judge

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