Stoker v. Stemco LP

Filing 92

MEMORANDUM OPINION and ORDER - grants in part and denies in part motions #79-84, 90-91. Denying motion to Investigate the Jurors #82. Signed by Judge Rodney Gilstrap on 7/16/13. (ehs, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
MANDEL A. STOKER,
Plaintiff
vs.
STEMCO, LP,
Defendant.

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NO. 2:11-CV-00214-JRG-RSP

MEMORANDUM OPINION AND ORDER
Before the Court are various motions filed by pro se Plaintiff Mandel A. Stoker (“Stoker”)
(Dkt. Nos. 79, 80, 81, 82, 83, 84, 90, 91). The Court discusses each motion in turn below.
I. BACKGROUND
On April 12, 2011, Mr. Stoker filed the above-styled employment discrimination action
pursuant to Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981, in which Mr. Stoker
contends that Defendant Stemco, LP (“Stemco”) fired Mr. Stoker based upon his race as an
African-American. (Dkt. No. 1.) The Court held jury selection on March 4, 2013 and conducted
a jury trial from March 4, 2013 through March 6, 2013. (Dkt. Nos. 57, 58, 59, 60.) On March 6,
2013, the jury returned a verdict in favor of Stemco, finding that Stemco did not terminate Mr.
Stoker because of his race. (Dkt. No. 61.) The Court entered its Final Judgment on April 15,
2013, ordering that Mr. Stoker take nothing from Stemco. (Dkt. No. 66.) Mr. Stoker was
represented by counsel throughout these dates.
On April 22, 2013, Mr. Stoker’s counsel filed an unopposed motion to withdraw as counsel
of record for Mr. Stoker, stating that Mr. Stoker and his counsel agreed that Mr. Stoker would
pursue an appeal on his own behalf unrepresented by counsel. (Dkt. No. 67.) Stemco filed an

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Agreed Motion to Tax Costs on April 29, 2013, stating that Mr. Stoker’s counsel agreed with the
costs submitted but that, because the motion to withdraw was pending, Mr. Stoker “may or may
not” oppose the costs in a supplemental filing. (Dkt. No. 68.)
On May 8, 2013, Mr. Stoker filed a notice of appeal, which reads in whole:
I, plaintiff, Mandel Stoker is filing for a motion of notice to appeal the all white jury
that was put on my trial in the race discrimination case against STENCO LP, on
May 4, 5, and the six of 2013. The name calling by the Stemco lawyer in her
closing argument when she constantly call me man and pointing at me with her
hands on her hips. Stemco officials were allowed to contradict themselves and
commit perjury while they were under oath. All these things were allowed by
Judge Rodney Gilstrap and these are some of the reason I am appealing the verdict
that was rendered by the all white jury on the six of March which consisted of 0%
of my peers. I am appealing Judge Gilstrap.
(Dkt. No. 69.) The Court granted the motion to withdraw on May 9, 2013 (Dkt. No. 72), granted
the motion for costs on May 17, 2013 (Dkt. No. 77), and amended its final judgment on May 17,
2013 to tax costs to Mr. Stoker (Dkt. No. 78). Mr. Stoker subsequently filed the motions
presently before the Court.
II. APPLICABLE LAW
The Court must construe each of Mr. Stoker’s motions liberally because he is proceeding
pro se. See, e.g., Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (“[W]e liberally construe the
pleadings of those who proceed pro se.”).
“[T]he filing of a notice of appeal is an event of jurisdictional significance—it confers
jurisdiction on the court of appeals and divests the district court of its control over those aspects of
the case involved in the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58,
103 S. Ct. 400, 74 L. Ed. 2d 225 (1982). However, “[i]f a party files a notice of appeal after the
court announces or enters a judgment—but before it disposes of any motion listed in [Federal Rule
of Appellate Procedure] 4(a)(4)(A)—the notice becomes effective to appeal a judgment or order,
in whole or in part, when the order disposing of the last such remaining motion is entered.” Fed.
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R. App. P. 4(a)(4)(B)(i). The Fifth Circuit has ruled that “the timely filing of a motion listed in
Rule 4(a)(4)(A) suspends or renders dormant a notice of appeal until all such motions are disposed
of by the trial court . . . regardless of whether the motion was filed before or after the notice of
appeal.” Ross v. Marshall, 426 F.3d 745, 751-52 (5th Cir. 2005) (citations omitted).
After a party files a notice of appeal, a district court also retains jurisdiction to take action
in aid of the appeal. Travelers Ins. Co. v. Liljeberg Enters., Inc., 38 F.3d 1404, 1407-08 n.3 (5th
Cir. 1994) (stating that, “[g]enerally, when an appeal is taken, the district court is divested of
jurisdiction except to take action in aid of the appeal until the case is remanded to it by the
appellate court, or to correct clerical errors under Rule 60(a)”). Further, motions that are
“collateral to the merits [of an appeal do] not divest the district court of jurisdiction.” Kira Inc. v.
All Star Maint., Inc., 294 Fed. Appx. 139, 141 (5th Cir. 2008) (citing Procter & Gamble Co. v.
Amway Corp., 280 F.3d 519, 524-25 (5th Cir. 2002)).
III. DISCUSSION
a. Motion on Costs, filed May 29, 2013 (Dkt. Nos. 79, 80)
Mr. Stoker asks the Court to “give [him] a chance to file a motion against” Stemco’s
Agreed Motion to Tax Costs. Stemco filed its motion on April 29, 2013, asking this Court to tax
costs against Mr. Stoker. (See Dkt. No. 68.) The Court granted Stemco’s motion on May 17,
2013. (Dkt. No. 77.) Accordingly, the Court liberally construes Mr. Stoker’s present motions1
either as a motion for reconsideration of this Court’s order granting Stemco’s motion to tax costs
or as a motion for leave to file an out-of-time response.
The Court first finds that it has jurisdiction to consider Mr. Stoker’s motion because the
issue of costs is collateral to the merits of Mr. Stoker’s appeal. See, e.g., Buchanan v. Stanships,

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The motions entered at Docket Numbers 79 and 80 are identical.
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Inc., 485 U.S. 265, 268-69, 108 S. Ct. 1130, 99 L. Ed. 2d 289 (1988); Kira, Inc. v. All Star Maint.,
Inc., 294 Fed. Appx. 139, 140-41 (5th Cir. 2008) (defendant’s motion for costs and attorney’s fees
“did not divest the district court of jurisdiction because defendants’ fee motion constituted a
collateral matter that was unrelated to the appeal’s underlying claims”). The Court next turns to
the merits of the motion.
In support of his motion, Mr. Stoker argues that he had never agreed to Stemco’s motion to
tax costs and that his former counsel, who had agreed to such costs, was not representing Mr.
Stoker at the time of that agreement. The Court, however, did not rely upon any agreement by
Mr. Stoker or Mr. Stoker’s former counsel as a basis for granting Stemco’s motion to tax costs.
Rather, Mr. Stoker’s former counsel indicated, as the Court noted in its Order, that Mr. Stoker
“may or may not” oppose the motion for costs in a supplemental filing. (Dkt. No. 77 at 1.) Mr.
Stoker did not file an opposition. After the time for filing a response had passed, the Court was
compelled to assume that Mr. Stoker had no opposition to Stemco’s motion for costs. (Id. (citing
Local Rule CV-7(d)).) The Court then considered Stemco’s unopposed motion and found it
meritorious. In light of the unanimous defense verdict returned by the jury an award of costs
against the Plaintiff is not only proper but usual in such circumstances. Mr. Stoker was ordered to
pay costs as typically occurs when a party is defeated at trial. Mr. Stoker has failed to give the
Court any reason upon which to treat him differently than any other party who loses at trial. In the
present motion, Mr. Stoker also does not offer any reason for his failure to file a timely response.
Accordingly, the Court finds that Mr. Stoker’s motion for reconsideration or for leave to file a
response (Dkt. Nos. 79, 80) should be and is hereby DENIED.

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b. Motion for List of Names Summoned for Jury Service, filed June 14, 2013 (Dkt. No.
81)
Mr. Stoker moves the Court to produce a list naming each individual sent a juror summons
in the above-styled case. The Court liberally construes this motion as a motion for discovery on
the contents of the records used by the clerk in connection with the jury selection process. Mr.
Stoker’s motion, however, does not state whether he moves pursuant to the Jury Selection and
Service Act, 28 U.S.C. § 1861 et seq. (“the Act”), or a constitutional challenge under the Fifth and
Fourteenth Amendments. A fair reading of the motions presently before the Court suggests that
Mr. Stoker is appealing the jury selection process in this particular case pursuant to the Act.
However, as the Court must construe Mr. Stoker’s pleading liberally and because Mr. Stoker has
not expressly limited his appeal to the Act, the Court finds that Mr. Stoker’s appeal has sufficient
constitutional implications to treat it as such. Accordingly, the Court construes Mr. Stoker’s
present motion as a motion for discovery in support of both a statutory and constitutional challenge
to the jury selection process.
The Court finds that it retains jurisdiction to consider the present motion because it aids in
the appeal. Deciding the motion will not alter the status of the case on appeal, but promote
efficiency by considering the discovery necessary for Mr. Stoker to file his appeal. See The
Authority of a Federal District Court to Proceed After a Notice of Appeal Has Been Filed, 143
F.R.D. 307, 322 (1992).
To the extent Mr. Stoker seeks discovery pursuant to the Act, Mr. Stoker’s motion must be
denied because he did not properly raise a statutory challenge to the jury selection process. The
Court notes that Mr. Stoker had been represented by counsel from the inception of his case through
final judgment. At no time prior to Mr. Stoker’s notice of appeal, however, did Mr. Stoker or his
counsel object to the jury selection process, the summoned venire panel, or the seated jury.

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Accordingly, any discovery pursuant to the Act may not be permitted. See 28 U.S.C. § 1867(c)
(“In civil cases, before the voir dire examination begins, or within seven days after the party
discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever
is earlier, any party may move to stay the proceedings on the ground of substantial failure to
comply with the provisions of this title in selecting the petit jury.”); 28 U.S.C. § 1867(f) (“The
contents of records or papers used by the jury commission or clerk in connection with the jury
selection process shall not be disclosed, except pursuant to the district court plan or as may be
necessary in the preparation or presentation of a motion under subsection (a), (b), or (c) of this
section . . . .”); United States v. Kennedy, 548 F.2d 608, 613 (5th Cir. 1977) (“Absent some
indication from particular circumstances that counsel could not reasonably have been expected to
comply with the procedural prerequisites to a statutory challenge to the jury, the claim under the
Act will be forfeited by noncompliance.”).
By its terms, however, 28 U.S.C. § 1867 only applies to challenges under the Act. As Mr.
Stoker’s motion also is treated as having constitutional implications, section 1867 does not bar
discovery related to his jury challenge. See, e.g., United States v. De Alba-Conrado, 481 F.2d
1266, 1270 n.5 (5th Cir. 1973). Accordingly, the Court finds that Mr. Stoker’s motion for
discovery on the contents of the records used by the clerk in connection with the jury selection
process should be and is hereby GRANTED within the scope set forth herein.
The Clerk of the Court is ORDERED to prepare and make available to Mr. Stoker a report
containing the name, residential address, and non-work related telephone number of each
individual sent a juror summons in the above-styled case. Such list shall be made available for
Mr. Stoker to inspect, reproduce, and copy at the Clerk’s office in Marshall, Texas, within but not
after 14 days from the date of this Order. Reasonable copies of such information as provided for

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herein, if requested, shall be made and supplied at no cost to Mr. Stoker. Additionally, at the time
the Court excused the jurors, the Court instructed the jurors that they were free to discuss or not to
discuss the case with anybody. (Dkt. No. 89, 3/6/2013 Tr. at 61:2-24.) This instruction remains
in effect. No juror is under any obligation to discuss the case with Mr. Stoker or anyone else; each
individual juror may decide to respond or not to respond to any contact from or on behalf of Mr.
Stoker as they alone deem proper. Any other requests for information contained within this
motion but not expressly granted herein are DENIED.
c. Motion to Investigate the Jurors, filed June 19, 2013 (Dkt. No. 82) and July 11,
2013 (Dkt. No. 91)
Mr. Stoker moves the Court “to give those that were on the jury a chance to confess to
discussing the demonstrative that Jeff Patty and Kim Mires presented to them while the trial was in
session.” (Dkt. No. 82.) The Court construes Mr. Stoker’s motion as a motion for leave to
conduct post-verdict discovery. The information sought, however, would not merely aid in Mr.
Stoker’s appeal but alter the nature of the case on appeal by adding new material not previously
before the Court. Accordingly, the Court finds that Mr. Stoker’s filing of a notice of appeal
divested the Court of jurisdiction to consider the present motion. Without jurisdiction the Court
cannot act and such is dismissed for want of jurisdiction.
Even if this Court had retained jurisdiction to consider Mr. Stoker’s motion, the Court finds
that the motion fails on the merits. By the present motion, Mr. Stoker specifically seeks
testimony regarding the effect on the jury of a demonstrative (or jury-aid) used before the jury at
trial—i.e. whether the jury discussed the demonstrative and the content of any such discussion.
Federal Rule of Evidence 606(b), however, flatly prohibits the admission of juror testimony to
impeach a jury verdict:
During an inquiry into the validity of a verdict or indictment, a juror may not testify
about any statement made or incident that occurred during the jury’s deliberations;
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the effect of anything on that juror’s or another juror’s vote; or any juror’s mental
processes concerning the verdict or indictment.
Fed. R. Evid. 606(b)(1). While a juror may testify as to whether “extraneous prejudicial
information was improperly brought to the jury’s attention” or whether “an outside influence was
improperly brought to bear on any juror,” the Court disagrees with Mr. Stoker that the
demonstrative was an outside influence simply because counsel created it outside the courtroom.
Rather, the demonstrative at issue here was neither extraneous nor an outside influence because it
was presented to the jury during normal courtroom proceedings. See, e.g., United States v.
Jackson, 549 F.3d 963, 984 (5th Cir. 2008). Accordingly, the Court finds that Mr. Stoker’s
motion to investigate the jurors (Dkt. No. 82) should be and is hereby DENIED for want of
jurisdiction.
Over three weeks after filing the original motion, Mr. Stoker re-filed the same motion and
added a request for a hearing. The Court having ruled on the merits of Mr. Stoker’s motion finds
that Mr. Stoker’s request for a hearing should be and is hereby DENIED AS MOOT.
d. Motion to Demand Demonstrative, filed June 20, 2013 (Dkt. No. 83)
Mr. Stoker moves the Court “to demand the demonstrative that was created by STEMCO”
and, if Stemco does not produce the demonstrative, for a new trial. The Court liberally construes
Mr. Stoker’s motion as a motion to correct or modify the record and, in the alternative, as a motion
for a new trial under Federal Rule of Civil Procedure 59. The Court finds that it retains
jurisdiction to modify or correct the record under Federal Rule of Appellate Procedure 10(e). The
Court further finds that it has jurisdiction to consider Mr. Stoker’s alternative request for a new
trial because such motion may suspend the notice of appeal. Fed. R. App. P. 4(a)(4)(B); Ross,
426 F.3d at 751-52.

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Federal Rule of Appellate Procedure 10(e) allows the district court to correct and
supplement the record “[i]f anything material to either party is omitted from or misstated in the
record by error or accident.” The demonstrative at issue here, however, was not omitted from the
record by error or accident. Rather, the Court instructed the parties that demonstratives are “jury
aids only”; they are “not exhibits” and “not evidence.” (Dkt. No. 85, 3/1/13 Pre-Trial Tr. at
9:11-20.) By definition, demonstratives are never a part of the record. Accordingly, the Court
finds that Mr. Stoker’s motion to correct or modify the record should be and is hereby DENIED.
The Court further finds that Mr. Stoker’s alternative request for a new trial is untimely.
Rule 59 requires Mr. Stoker to file a motion for a new trial “no later than 28 days after the entry of
judgment.” Fed. R. Civ. P. 59(b). Here, the Court entered its Amended Final Judgment on May
17, 2013 (Dkt. No. 78), and Mr. Stoker filed the present request for a new trial on June 20, 2013
(Dkt. No. 83), well over 28 days after the Court entered its Amended Final Judgment.
Accordingly, Mr. Stoker’s request for a new trial should be and is hereby DENIED.
e. Motion for Court Statement, filed June 24, 2013 (Dkt. No. 84) and July 11, 2013
(Dkt. No. 90)
Mr. Stoker moves the Court to “expose Stemco demonstrative contents which was a direct
violation of the pre-trial order from Judge Payne” and for “a court document in writing stating that
Judge Gilstrap, Kimberly Miers and Jeff Patty have been reprimanded for their part in [presenting
the demonstrative to the jury].” (Dkt. No. 84.) Mr. Stoker later filed the exact same motion over
two weeks later. (Dkt. No. 90.) Under even the most creative and liberal construction the Court
cannot reasonably discern any legally cognizable relief requested by this motion. Accordingly,
the Court finds that Mr. Stoker’s motion for a statement (Dkt. Nos. 84, 90) should be and is hereby
DENIED.

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IV. ADDITIONAL POST-JUDGMENT CONDUCT OF STOKER
The Court is personally aware that since the entry of its final judgment in favor of the
defendant, Mr. Stoker has repeatedly and excessively called and communicated with the Court
staff. Much of the excessive frequency of his contacts can in large part be attributed to his pro se
posture and the lack of competent counsel to guide him. However, Mr. Stoker consciously chose
to release his counsel and act pro se. As such, he cannot be treated preferably to those parties who
do retain counsel. In some manner unknown to the Court, Mr. Stoker has obtained the personal
cell phone numbers for Ms. Susan Simmons and Ms. Shelly Holmes, both of whom served as court
reporters during his trial. He has called them both repetitively on their cell phones outside of
established working hours. It is ORDERED that Mr. Stoker communicate with such court
reporters, the clerk’s office, and any other employee of the U.S. District Court sitting in Marshall,
Texas, only by use of the published (public phone book) phone numbers for the U.S. Courthouse in
Marshall, Texas. Mr. Stoker shall not contact any court personnel by use of any cell phone
numbers. He shall contact and communicate with court personnel only between 8:00 a.m. and
5:00 p.m. on Monday through Friday of any week (excluding any Federal holidays). This Order
shall serve to conform Mr. Stoker’s conduct with the court personnel to that of conduct undertaken by
all other litigants (with or without counsel) before the Court.
V. CONCLUSION
For the reasons stated herein, the Court hereby DENIES Stoker’s Motion on Costs (Dkt.
Nos. 79, 80), GRANTS Stoker’s Motion for List of Names Summoned for Jury Service (Dkt. No.
81), DENIES Stoker’s Motion to Investigate the Jurors (Dkt. No. 82), DENIES Stoker’s Motion
to Demand Demonstrative (Dkt. No. 83), and DENIES Stoker’s Motion for Court Statement (Dkt.
No. 84).

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SIGNED this 19th day of December, 2011.
So ORDERED and SIGNED this 16th day of July, 2013.

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RODNEY GILSTRAP
UNITED STATES DISTRICT JUDGE

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