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Abraham v. Hilton Honors Worldwide LLC

United States District Court, D. Kansas

December 6, 2018

GARY L. ABRAHAM, Plaintiff,


          Daniel D. Crabtree United States District Judge

         This matter is before the court on pro se plaintiff[1] Gary Abraham's "Motion for Review/Reconsider." Doc. 141. In it, plaintiff challenges Magistrate Judge James P. O'Hara's Order denying his earlier "Motion for the District Judge to Intervene for Orders and Stay." Doc. 129. Defendants have filed a Response to plaintiffs Motion for Review/Reconsider. Doc. 156. For reasons explained below, the court denies plaintiffs Motion.

         I. Background

         Plaintiff filed his Motion for the District Judge to Intervene for Orders and Stay on October 15, 2018 (Doc. 116). Judge O'Hara denied that Motion on November 2, 2018 (Doc. 129). Plaintiff then filed his timely Motion for Review/Reconsider on November 16, 2018. See Fed.R.Civ.P. 72(a) ("A party may serve and file objections to [a magistrate judge's non-dispositive] order within 14 days after being served with a copy."); see also D. Kan. Rule 72.1.4 (b) ("The procedure for filing objections to an order of a magistrate judge in a nondispositive matter follows Fed.R.Civ.P. 72(a)."). Below, the court first discusses: (1) plaintiffs original Motion to Stay Discovery; (2) Judge O'Hara's Order denying that Motion; and (3) plaintiffs most recent Motion for Review/Reconsider.

         A. Plaintiffs Motion for the District Judge to Intervene for Orders and Stay (Doc. 116)

         In this Motion, plaintiff primarily argued that: (1) he was unable to present certain evidence and arguments during a status conference before Judge O'Hara on October 9, 2018; (2) defendants had failed to serve some of their discovery requests and other papers properly; and (3) defendants had failed to provide documents or responses to plaintiffs requests for information. In his first Reply to defendants' Response to his Motion (Doc. 124), plaintiff asserted that defendants had failed to communicate properly with him. Also, plaintiff contended that he was required to respond to defendants' requests even though he was facing medical issues. He submitted his own affidavit to support his Motion. It described medical procedures that left him in pain and unable to work. Doc. 120. Also, plaintiff also asked the court to stay discovery proceedings until defendants had answered his requests "correctly." Doc. 116 at 1, 6. He sought an extension of time until he recovered from his medical procedures. Finally, he asked the court for leave to file a summary judgment motion.

         The court declined to intervene in response to this Motion because Judge O'Hara's earlier rulings fell well within the scope of the matters referred to him. See D. Kan. Rule 72.1.2(b) (The Clerk of the Court may "assign civil cases to a magistrate judge or judge for the conduct of a Fed.R.Civ.P. 16(b) scheduling conference, the issuance of a scheduling order, and such other pretrial conferences as are necessary and appropriate, and for the hearing and determination of all pretrial, procedural, and discovery motions."). Here, the Clerk has referred this case's pretrial proceedings to Judge O'Hara. The court referred all remaining discovery disputes that plaintiff raised in his Motion for the District Judge to Intervene for Orders and Stay to Judge O'Hara. Doc. 127.[2]

         B. Judge O'Hara's Order on Plaintiffs Remaining Discovery Disputes (Doc. 129)

         Judge O'Hara denied the remaining discovery disputes in plaintiffs Motion for the District Judge to Intervene for Orders and Stay (Doc. 116). Specifically, Judge O'Hara directed plaintiff to the Certificates of Service defendants had filed, "indicating their discovery responses are complete." Doc. 129 at 1 n.2, 3; see also 4B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1150 (4th ed. 2018) (discussing the Fourth Circuit's holding that "certificate[s] of counsel [are] sufficient as proof of service unless seasonably challenged"). But even if plaintiff had not received these discovery documents contrary to the Certificates of Service defendants filed, Judge O'Hara also found that defendants had filed their discovery requests as attachments to their Response to plaintiffs Motion to Stay (Doc. 123).[3] Judge O'Hara determined that defendants had responded to plaintiffs discovery requests by November 2, 2018-the date of his Order. Finally, Judge O'Hara concluded that plaintiff "had the physical and mental ability to file more than [eight] separate discovery requests and more than 14 motions or briefs in support of motions since September 4, 2018." Doc. 129 at 4. The Order concluded that plaintiff "ha[d] not suggested his health ha[d] deteriorated since the October 9, 2018 status conference [when Judge O'Hara] deemed plaintiff able to respond to discovery at least by October 19, 2018." Id. Judge O'Hara also noted that plaintiff had failed to provide any medical evidence to substantiate his claims of a medical disability. Ultimately, Judge O'Hara found "no good cause, let alone extraordinary circumstances, that would justify further delaying the pretrial proceedings." Id.

         C. Plaintiffs Motion for Review/Reconsider (Doc. 141) and Defendants' Response (Doc. 156)

         In his most recent Motion, plaintiff appears to argue that, while he has received defendants' Certificates of Service for certain discovery responses, he still has not received the underlying documents that defendants assert they served on plaintiff. Doc. 141 at 1-2 (listing Docs. 59, 60, 61, and 66 as documents plaintiff asserts he has not received). These documents include: (1) defendant MH Hospitality LLC's ("MH Hospitality") Response to Plaintiffs Second Request for Admissions (Doc. 59); (2) MH Hospitality's First Interrogatories to Plaintiff (Doc. 60); (3) MH Hospitality's First Request for Production of Documents (Doc. 61); and (4) MH Hospitality's First Request for Admission (Doc. 66). Plaintiff also asserts that he has served sufficient, timely discovery responses on defendants. Doc. 141 at 2-3.

         In their Response, defendants reiterate Judge O'Hara's grounds for denying plaintiffs earlier Motion asking the court to stay discovery. They argue that plaintiff, as the movant, must demonstrate that Judge O'Hara's ruling is "clearly erroneous or contrary to law." Doc. 156 at 1 (citing Fed.R.Civ.P. 72). Defendants also contend that plaintiff has waived any arguments he failed to raise in his original Motion for the District Judge to Intervene and Stay for Orders or reply briefing (Docs. 116, 124, & 126). Doc. 156 at 3-4 (first citing ClearOne Commc'ns, Inc. v. BiampSys., 653 F.3d 1163, 1184-85 (10th Cir. 2011); then citing Marshall v. Chater, 75 F.3d 1421, 1426-27 (10th Cir. 1996)).

         II. Legal Standard

         Federal Rule of Civil Procedure 72(a) and D. Kan. Rule 72.1.4(a) govern a party's challenge to a magistrate judge's non-dispositive order. Challenges of this kind are directed to a district judge, and thus differ from "a motion asking a judge or magistrate judge to reconsider an order or decision made by that judge or magistrate judge" under D. Kan. Rule 7.3(a). A party must file a motion to challenge an order, and "[t]he district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law." Fed.R.Civ.P. 72(a); see also D. Kan. Rule 72.1.4(a); Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988) ("The clearly erroneous standard . . . requires that the reviewing court affirm unless it 'on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" (quoting United States v. United States Gypsum Co.,333 ...

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