Stewart v. Stoller et al

Filing 245

MEMORANDUM DECISION AND ORDER denying 242 Motion to Compel. Signed by Magistrate Judge Evelyn J. Furse on 4/25/13. (jlw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
SOPHIA STEWART,

MEMORANDUM DECISION AND
ORDER
Plaintiff,

v.

Case No. 2:07-cv-00552-DB-EJF

MICHAEL T. STOLLER, et al.,

District Judge Dee Benson

Defendants.

Magistrate Judge Evelyn J. Furse

Before the Court is pro se Plaintiff Sophia Stewart’s Emergency and Instant Motion for
Order to Compel Appearance and Under Oath Testimony (ECF No. 242). This Motion seeks to
compel the physical appearance of the Defendants and unspecified witnesses for the Plaintiff at
the hearing on Defendant Gary Brown’s First Motion in Limine, which is presently scheduled for
May 2, 2013. In the alternative, Ms. Stewart seeks a continuance sine die of that hearing to
allow her additional time to prepare. This Motion also seeks to disqualify District Judge Clark
Waddoups1 and Magistrate Judge Evelyn J. Furse. Because Ms. Stewart proceeds pro se, the
Court liberally construes her filings. Casanova v. Ulibarri, 595 F.3d 1120, 1125 (10th Cir.
2010) (citation omitted).
A. The May 2 Hearing
In setting the hearing scheduled for May 2, 2013, on Defendant Gary Brown’s First
Motion in Limine (the “May 2 Hearing”), this Court notified all parties the Court would permit
the parties to appear at that hearing by telephone. (See ECF No. 240.) Ms. Stewart now seeks to
1

Judge Waddoups recused himself from this case on December 13, 2012, and Judge Dee
Benson now sits on this case. (ECF No. 234.) This Motion is therefore moot to the extent it
seeks to disqualify Judge Waddoups.
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compel the physical appearance of the Defendants and unidentified witnesses for the Plaintiff at
that hearing. In the alternative, Ms. Stewart requests the Court continue the hearing to allow her
more time to prepare.
Ms. Stewart argues that if Defendants do not appear in person they may “be hooked to an
earpiece receiving answers from another lawyer on a cellphone or hidden under a table.” (Mem.
Supp. 2.) Ms. Stewart further argues that allowing the Defendants to appear by telephone would
deprive her of the chance to “see if the witness gets nervous at certain questions and starts
shifting in the chair.” (Id.) Ms. Stewart presents no facts to support her concerns. Nor does Ms.
Stewart cite any authority requiring the physical presence of the Defendants at a civil hearing on
a motion in limine.2
As to Plaintiff’s request for an order compelling her own witnesses to appear, the Court
notes a motion to compel is not the correct device. See Garrett v. Selby Connor Maddux &
Janer, 425 F.3d 836, 840 (10th Cir. 2005) (noting that pro se parties, although held to a less
stringent standard than attorneys, must still comply with the Federal Rules of Civil Procedure,
and that the court cannot “assume the role of advocate”). In any case, the Court would have to
deny this aspect of Ms. Stewart’s Motion because she does not identify any witnesses whose
appearance she seeks to compel.
Moreover, the Court does not anticipate hearing evidence at the May 2 Hearing. If Ms.
Stewart wanted testimony under oath, she should have deposed those individuals during fact
discovery, which closed on May 25, 2012. Based on the record before the Court, good cause

2

Ms. Stewart apparently attempts to invoke the Sixth Amendment’s Confrontation
Clause. (See Mem. Supp. 3.) But the Sixth Amendment plainly does not apply to civil
proceedings. See, e.g., Emile v. I.N.S., 244 F.3d 183, 189 (1st Cir. 2001) (noting the Sixth
Amendment’s Confrontation Clause does not apply to civil proceedings).
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does not exist to compel the Defendants or Plaintiff’s unidentified witnesses to appear in person
at the May 2 Hearing.
Regarding Ms. Stewart’s alternative request for a continuance of this hearing, the Court
notes the motion at issue was first set for hearing on December 14, 2012. (See ECF No. 217.)
The Court sent notice to the parties of that hearing date on December 3, 2012. (Id.) The Court
vacated the December 14 hearing date on December 13, 2012. On April 8, 2013, the Court sent
a new notice to the parties setting the hearing for May 2, 2013. (See ECF No. 240.) The Court
has provided the parties approximately three weeks’ notice of the May 2 Hearing. Moreover,
Ms. Stewart has been on notice for such a hearing since at least December 2012. The Court finds
Ms. Stewart has had adequate notice and time to prepare for the May 2 Hearing.
Thus, the Court denies this Motion to the extent it seeks to compel the physical
appearance of the Defendants and unidentified witnesses for the Plaintiff or alternatively to
continue the May 2 Hearing.
B. Disqualification Is Not Justified3
The Court has already discussed the relevant standards for disqualification at length in
two previous decisions in this case. (See ECF Nos. 225, 239.) Ms. Stewart presents no new
facts or allegations. Instead, Ms. Stewart re-submits a portion of an earlier filing, (see ECF No.
231), which this Court already found contains the type of vague and conclusory allegations that
cannot form the basis for a motion to disqualify. (See ECF No. 239.) Ms. Stewart also attaches
a copy of a letter apparently sent to the U.S. Attorney for the District of Utah concerning a

3

A judge whose recusal is sought under 28 U.S.C. section 144 or 455 need not transfer
the matter to another judge but may decide the motion herself. Salt Lake Tribune Pub. Co., LLC
v. AT&T Corp., 353 F. Supp. 2d 1160, 1172 (D. Utah 2005) (citations omitted).
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complaint4 Ms. Stewart alleges to have filed with the U.S. Attorneys’ Office against the
undersigned Magistrate Judge and others involved in this case. (See ECF No. 242, Ex. 1.) This
letter contains the same vague and conclusory allegations this Court has already found cannot
form a basis for a motion to disqualify. (See ECF No. 239.) That Ms. Stewart has filed or
intends to file a separate action against a judge presiding over or referred to her case does not,
without more, require that judge’s recusal or disqualification. See United States v. Grismore,
564 F.2d 929, 933 (10th Cir. 1977) (“A judge is not disqualified merely because a litigant sues or
threatens to sue him.”); In re Martin-Trigona, 573 F. Supp. 1237, 1243 (D. Conn. 1983) (noting
that judges have a “duty to sit where there is no valid reason for recusal”) (citation omitted).
A reasonable person with knowledge of the case would not doubt this Court’s
impartiality. Nor does this Court doubt it can continue to act impartially. Thus, the Court denies
the Motion to the extent it seeks to disqualify the undersigned Magistrate Judge.
CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiff’s Motion (ECF No. 242).
DATED this 25th day of April, 2013.
BY THE COURT:

________________________________
Evelyn J. Furse
United States Magistrate Judge

4

Although Ms. Stewart references this complaint, she includes neither a copy of the
complaint nor any proof that she has in fact filed such a complaint with any court or the U.S.
Attorneys’ Office. Ms. Stewart has not served any complaint on the undersigned.
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