Morgan v. Saint Francis Hospital

Filing 78

ORDER denying 67 Motion to Compel. Signed by Chief Magistrate Judge Tu M. Pham on 9/4/20. (jrs)

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
________________________________________________________________
CLIFFRIE MORGAN,

)
)
Plaintiff,
)
)
v.
)
No. 18-cv-2042-TLP-tmp
)
AMISUB (SFH), INC.
)
d/b/a SAINT FRANCIS HOSPITAL,
)
)
Defendant.
)
________________________________________________________________
ORDER DENYING PLAINTIFF’S MOTION TO COMPEL
AND DENYING DEFENDANT’S MOTION FOR ATTORNEYS’ FEES
________________________________________________________________
On June 10, 2020, plaintiff Cliffrie Morgan filed a motion to
compel.1 (ECF No. 67.) Defendant AMISUB (SFH), Inc. d/b/a Saint
Francis Hospital (“AMISUB”) filed a response on June 23, 2020, in
which AMISUB requested attorneys’ fees. (ECF No. 69.) Morgan filed
a reply on July 13, 2020.2 (ECF No. 70.) For the reasons below,
1Pursuant

to Administrative Order No. 2013-05, this case has been
referred to the United States magistrate judge for management and
for all pretrial matters for determination or report and
recommendation, as appropriate.
2Per

Local Rule 7.2(c), a party must seek leave of court before
filing a reply brief, except for motions to dismiss per LR 12.1(c)
and motions for summary judgment per LR 56.1(c). Morgan did not
seek leave of court before filing her reply. In addition, per Local
Rule 7.2(e), “reply memoranda, if permitted, shall not exceed 5
pages in length.” Morgan’s reply is twenty-three pages long. While
the court will consider this reply, the court may disregard future
replies not filed in accordance with the Local Rules.

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Morgan’s motion to compel is DENIED, and AMISUB’s motion for
attorneys’ fees is DENIED.
I.

BACKGROUND

Plaintiff Cliffrie Morgan filed a pro se complaint against
AMISUB on January 17, 2018, asserting failure-to-accommodate and
discriminatory termination claims under the ADA stemming from an
on-the-job injury. (ECF No. 1.) According to Morgan, she submitted
a discovery request to counsel for defendants on January 30, 2020,
within her initial disclosure documents.3 (ECF No. 67, at 1.)
Morgan writes that defense counsel acknowledged the discovery
request in an email dated March 31, 2020, but never provided
responsive documents. (Id.)
According to AMISUB, the only discovery request it received
from Morgan was as a response to its initial disclosures. (ECF No.
69-1,

at

discovery

3.)

AMISUB

requests

asserts

contained

that

it

therein,

responded
tendering

fully

to

nearly

the
five

hundred pages of responsive documents. (ECF No. 69, at 2.) In its
response, AMISUB requests attorneys’ fees under Rule 37(a)(5)(B).
(Id. at 5.)

3While

Morgan did not attach the discovery request to her motion
to compel, the copy provided by AMISUB in response is dated
February 26, 2020. (ECF No. 69-1, at 9.) There is no indication
from the record that Morgan tendered any discovery requests on
January 30, 2020.
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II.
A.

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ANALYSIS

Legal Standard
The scope of discovery is governed by Federal Rule of Civil

Procedure 26(b)(1), which provides that “[p]arties may obtain
discovery regarding any nonprivileged matter that is relevant to
any party's claim or defense and proportional to the needs of the
case[.]” Fed. R. Civ. P. 26(b)(1). The party seeking discovery is
obligated to demonstrate relevance. Johnson v. CoreCivic, Inc.,
No. 18-CV-1051-STA-tmp, 2019 WL 5089086, at *2 (W.D. Tenn. Oct.
10, 2019). Upon a showing of relevance, the burden shifts to the
party

opposing

discovery

to

show,

with

specificity,

why

the

requested discovery is not proportional to the needs of the case.
William Powell Co. v. Nat'l Indem. Co., No. 1:14-CV-00807, 2017 WL
1326504, at *5 (S.D. Ohio Apr. 11, 2017), aff'd sub nom. 2017 WL
3927525 (S.D. Ohio June 21, 2017), and modified on reconsideration,
2017 WL 4315059 (S.D. Ohio Sept. 26, 2017). Six factors are
relevant to proportionality: (1) “the importance of the issues at
stake in the action;” (2) “the amount in controversy;” (3) “the
parties'

relative

access

to

relevant

information;”

(4)

“the

parties' resources;” (5) “the importance of the discovery in
resolving the issues;” and (6) “whether the burden or expense of
the proposed discovery outweighs its likely benefit.” Fed. R. Civ.
P. 26(b)(1). Pursuant to Rule 37, a party may file a motion to
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compel if another party “fails to answer an interrogatory submitted
under Rule 33” or “fails to produce documents . . . as requested
under Rule 34.” Fed. R. Civ. P. 37(a)(3)(B)(iii)-(iv).
B.

Local Rule 26.1(b)(2)
As a preliminary matter, Morgan’s motion to compel does not

comply with Local Rule 26.1(b)(2), which requires that motions to
compel discovery in accordance with Fed. R. Civ. P. 26 through 37:
(A)

quote verbatim or attach copies of each deposition
question, interrogatory, request for admission, or
request for production to which objection has been
taken or incomplete response has been given; and

(B)

include the response and the grounds assigned for
the objection (if not apparent from the objection),
if any.

LR 26.1(b)(2)(A)-(B). Here, Morgan has not provided copies of any
discovery requests tendered to AMISUB. Nor has Morgan articulated
whether AMISUB provided any responses or what those responses
contained.

While

AMISUB

attached

such

documentation

to

its

response to the motion to compel, Morgan has not advanced any
argument as to the contents of AMISUB’s responses other than to
say that “she has been harmed by the Defendant[‘s] refusal to
[produce] the discovery request[.]” (ECF No. 67-1, at 2.) Because
Morgan’s

motion

26.1(b)(2)

or

to

compel

advance

any

does

not

specific

comply

with

argument

as

discovery responses, the motion to compel is DENIED.
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Local
to

Rule

AMISUB’s

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C.

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Discovery Requests
Even if the court were to examine the discovery requests and

AMISUB’s responses, the motion to compel would still be denied.
The

only

discovery

“Plaintiff’s

request

response

to

Morgan

sent

Defendant

AMISUB

was

insufficient

titled
initial

disclosures sent to Plaintiff.” (ECF No. 69-1, at 3.) This document
included several pages of requests for information and documents
and several pages on the scope of mandatory initial disclosures
under Fed. R. Civ. P. 26(a)(1). (Id.) Many of Morgan’s requests
far exceeded the scope of initial disclosures, and AMISUB notes
that

Morgan

never

actually

served

AMISUB

with

any

discovery

requests complying with the Federal Rules of Civil Procedure. Yet,
AMISUB treated Morgan’s response to AMISUB’s initial disclosures
as Requests for Production under Rule 34. In responding, AMISUB
asserted objections and “either answered the question posed by
Plaintiff, explained where the documents it previously produced as
initial disclosures were responsive, and/or produced additional
responsive

documents.”4

(ECF

No.

69,

at

2.)

Although

AMISUB

produced nearly 500 pages of documents, Morgan’s motion to compel
4Morgan

challenges the veracity of this statement in her reply
brief. (ECF No. 70, at 5.) There is no basis in the record for
concluding that the statement is untrue or that defense counsel
acted improperly. The court cautions Morgan that unfounded
allegations of impropriety may subject her to sanctions in the
future.
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asserts that AMISUB “refuse[d] to submit the documentation . . .
request[ed].” (ECF No. 67, at 2.)
Moreover, many of Morgan’s discovery requests exceed the
scope of discovery. For example, Morgan requested “[c]opies of all
documents,

data

compilations,

possession, custody, or

and

tangible

things

in

the

control of the party likely to bear

significantly on any defense[.]” (ECF No. 69-1, at 5.) This request
is clearly overbroad. In addition, Morgan asks for documents and
information regarding AMISUB’s relationship with Guardsmark, the
company AMISUB uses for contracting security guards, and Otis
Elevator Corporation, although Morgan does not explain how any of
these requests are relevant to her ADA claims for failure-toaccommodate and discriminatory termination. (Id. at 6.) Even in
her

reply,

Morgan

does

not

explain

why

the

documents

and

information she requested are relevant. (ECF No. 70, at 7-10.)
Rather, Morgan argues only that AMISUB has waived its right to
object to the discovery requests by failing to object within thirty
days. (Id.) This argument fails for several reasons.
First, Morgan has waived her waiver argument by failing to
raise it until her reply brief. See Sanborn v. Parker, 629 F.3d
554, 579 (6th Cir. 2010) (“We have consistently held, however,
that arguments made to us for the first time in a reply brief are
waived.”). Second, Morgan never sent AMISUB any Requests for
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Productions or Interrogatories in accordance with the Federal
Rules of Civil Procedure. Instead, Morgan sent AMISUB a response
to its initial disclosures. (ECF 69-1, at 10.) On March 31, 2020,
AMISUB informed Morgan that while her response to the initial
disclosures did not constitute a discovery request in accordance
with the Federal Rules of Civil Procedure, for Morgan’s benefit,
AMISUB

would

respond

to

the

“unidentified

and

unnumbered

statements and questions” as if they were Requests for Production
under Rule 34. (ECF No. 69-1, at 11.) Third, it is unclear when
Morgan

actually

served

AMISUB

with

the

discovery

requests.

Morgan’s motion to compel says January 30, 2020, although there is
nothing in the record to suggest that Morgan tendered any formal
discovery requests to AMISUB on that date. (ECF No. 67, at 1.)
Morgan’s actual response to AMISUB’s initial disclosures, which
AMISUB attached to its response, is dated February 26, 2020. (ECF
No. 69-1, at 9.) Counsel for AMISUB, however, states in an email
conversation with Morgan that AMISUB received her response to its
initial disclosures “in early March.” (ECF No. 69-1, at 11.)
Because

Morgan

never

actually

served

AMISUB

with

discovery

requests complying with the Federal Rules of Civil Procedure, and
because of the ambiguity in the record as to when Morgan sent her
response to AMISUB’s initial disclosures (and the close proximity
of AMISUB’s response to the thirty-day mark), the facts of this
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case do not justify a finding of waiver. Based on the analysis
above, Morgan has not provided a sufficient basis for granting her
motion to compel.
D.

Costs and Expenses
AMISUB asserts that it is entitled to reasonable expenses and

attorneys’ fees regarding its response to the motion to compel
pursuant to Fed. R. Civ. P. 37(a)(5)(B). (ECF No. 69, at 5.) Rule
37(a)(5)(B) provides that if a motion to compel is denied, the
court “must, after giving an opportunity to be heard, require the
movant . . . to pay the party or deponent who opposed the motion
its reasonable expenses incurred in opposing the motion, including
attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(B). However, “the court
must not order this

payment if the motion was substantially

justified or other circumstances make an award of expenses unjust.”
Id.
The court agrees with AMISUB that Morgan’s motion to compel
was not substantially justified. As AMISUB points out, Morgan’s
motion

fails

to

identify

any

specific

outstanding

discovery

requests or provide any insight into why her motion to compel
should be granted. Moreover, counsel for AMISUB conferred with
Morgan on several occasions and even explained that a motion to
compel on this matter would be frivolous and possibly subject
Morgan to sanctions. (ECF No. 69-1, at 24.) Although Morgan filed
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a reply brief, and included the text of AMISUB’s argument on
attorneys’ fees in that reply, Morgan did not offer any rebuttal
or objection to granting AMISUB’s request for attorneys’ fees.
Morgan offers no justification for her failure to comply with Local
Rules or the Federal Rules of Civil Procedure.5
As AMISUB points out, the numerous documents and motions
Morgan has filed with the court require the expenditure of not
only AMISUB’s time and money but also judicial resources, as well.
This motion to compel is not the first instance of Morgan asserting
meritless or frivolous arguments. For example, in Morgan’s motion
for a protective order, she asserted that she was entitled to a

5Morgan’s

pro se status does not justify her failure to comply with
Local Rules and the Federal Rules of Civil Procedure. See
Strickland v. Spitalieri, No. 1:19-CV-2899, 2020 WL 1640315, at *3
(N.D. Ohio Apr. 2, 2020) (“Pro se plaintiffs are obligated to be
aware of and comply with procedural rules applicable to their
case.”); see also Needham v. Butler Cty. Jail, No. 1:19-CV-294,
2019 WL 5899326, at *2 (S.D. Ohio Nov. 12, 2019); (“Plaintiff is
forewarned that his pro se status and professed health conditions
do not relieve him of his obligation to fully comply with
applicable
rules
of
civil
procedure[.]”),
report
and
recommendation adopted, No. 1:19-CV-294, 2019 WL 6682155 (S.D.
Ohio Dec. 6, 2019); Hunter v. Lockland City Sch., No. 1:16-CV-418,
2016 WL 4471687, at *2 (S.D. Ohio July 27, 2016) (“[T]he
undersigned reminds Plaintiff that his pro se status does not
excuse him from his obligations to comply with all local and
federal rules of civil procedure[.]”), report and recommendation
adopted, No. 1:16-CV-418, 2016 WL 4468251 (S.D. Ohio Aug. 24,
2016). When granting Morgan leave to proceed in forma pauperis,
the undersigned ordered Morgan to “become familiar with the Federal
Rules of Civil Procedure and this court’s Local Rules.” (ECF No.
7, at 2.)
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protective order based on attorney-client privilege because she is
proceeding pro se and thus acting as both attorney and client.
(ECF No. 53-1, at 10-11.) Similarly, Morgan asserted that she was
entitled to a protective order based on the Fifth Amendment right
against

self-incrimination

without

providing

any

detail

or

explanation as to why. (Id. at 2-4.) In the court’s July 24, 2020
order addressing Morgan’s motion for a protective order, the court
denied AMISUB’s request for attorneys’ fees but cautioned that
“should Morgan fail to comply with the Federal Rules of Civil
Procedure or this court’s orders in the future, she may be subject
to sanctions, including but not limited to attorneys’ fees and/or
dismissal of her complaint with prejudice.” (ECF No. 71, at 1617.) The court reiterates this warning to Morgan. The court would
add that any failure to comply with the Local Rules, the Federal
Rules of Civil Procedure, or this court’s orders, may subject
Morgan to the sanctions described above.
With the above warning in mind, the court finds that under
the circumstances an award of expenses would be unjust at this
time. While AMISUB requested oral argument on this point, the
undersigned does not believe it necessary at this time. AMISUB’s
requests for attorneys’ fees and oral argument are DENIED.
III. CONCLUSION
Based on the foregoing analysis, Morgan’s motion to compel
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DENIED, and AMISUB’s request for attorneys’ fees is DENIED.
IT IS SO ORDERED.
s/ Tu M. Pham
TU M. PHAM
Chief United States Magistrate Judge
September 4, 2020
Date

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