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Jemaneh v. University of Wyoming

United States District Court, D. Colorado

May 5, 2014

TEWODROS G. JEMANEH, Plaintiff,
v.
THE UNIVERSITY OF WYOMING, THE UNIVERSITY OF WYOMING COLLEGE OF HEALTH SCIENCES, THE UNIVERSITY OF WYOMING SCHOOL OF PHARMACY, TOM BUCHANAN, in his official and individual capacity, NELL RUSSELL, in her official and individual capacity, JOSEPH F. STEINER, in his official and individual capacity, DAVID L. JONES, in his official and individual capacity, JOHN H. VANDEL, in his official and individual capacity, BEVERLY A. SULLIVAN, in her official and individual capacity, JAIME R. HORNECKER, JANELLE L. KRUEGER, in her official and individual capacity, CARA A. HARSHBERGER, in her official and individual capacity, AMY L. STUMP, in her official and individual capacity, AGATHA CHRISTIE NELSON, in her official and individual capacity, KATHLEEN A. THOMPSON, in her official and individual capacity, and MARIA A. BENNET, in her official and individual capacity, Defendants.

ORDER OVERULING PLAINTIFF'S OBJECTION TO MAGISTRATE JUDGE WATANABE'S ORDER SANCTIONING AND DENYING THE PLAINTIFF'S MOTION TO AMEND THE SCHEDUING ORDER (ECF NO. 94)

RAYMOND P. MOORE, District Judge.

THIS MATTER is before the Court on Plaintiff's Objection to Magistrate Judge Watanabe's Order Sanctioning and Denying the Plaintiff's Motion to Amend Scheduling Order ("Objection") (ECF No. 94). Upon consideration of the Plaintiff's Objection, Defendants' Response, Plaintiff's Reply, the Court's file, and the applicable rules and law, the Plaintiff's Objection is overruled and requested relief is denied for the reasons stated herein.

I. OVERVIEW

Plaintiff, appearing pro se, filed this action alleging fourteen claims for relief against sixteen defendants. Generally, Plaintiff alleges Defendants engaged in various wrongful actions leading up to and ultimately resulting in Plaintiff's termination as a student in the pharmacy program at Defendant University of Wyoming School of Pharmacy. Based on the Court's adoption of the Magistrate Judge's recommendation on a motion to dismiss filed by Defendants, Plaintiff's twelfth claim for relief was dismissed entirely and certain other claims were dismissed against the entity defendants and the individual defendants in their official capacities. (ECF Nos. 71 & 83.)

For review now is the Plaintiff's Objection to the Magistrate Judge's Order (ECF No. 87) concerning certain pretrial matters. The Order at issue ruled on "Plaintiff's Uncontested Motion to Cancel Court Scheduled Depositions and Contested Motion to Reconsider the Court's Order Denying the Plaintiff's Motion to Amend the Scheduling Order" ("Motion") (ECF No. 84). In that Order, the Magistrate Judge: (1) granted Plaintiff's unopposed request to cancel his ten depositions, which had been scheduled with the Magistrate Judge's assistance during a hearing held on May 15, 2013 (ECF No. 82); (2) sanctioned Plaintiff for cancelling the depositions by ordering the forfeiture of his ten depositions; and (3) denied Plaintiff's request to increase the number of request for production ("RFP") (from 25 to 125) and request for admission ("RFA") (from 50 to 200), finding the number as set forth in the Scheduling Order (ECF No. 47) was adequate, that the Magistrate Judge had previously ruled on the issue at the May 15, 2013 hearing, and Plaintiff had demonstrated no reason for a reconsideration of that previous ruling. Although requested by neither Plaintiff nor Defendants (ECF No. 98, page 4), the Order also cancelled the Defendants' requested deposition of Plaintiff.

Plaintiff's Objection seeks the following relief: (1) vacating the Order; (2) recusing the Magistrate Judge; (3) granting Plaintiff's Motion for Leave to File his First Amended Complaint (ECF No. 51); (4) vacating the Magistrate's Recommendation as to Plaintiff's twelfth claim and this Court's Order dismissing such claim (ECF Nos. 71 & 83); and (5) allowing the parties to serve 120 RFAs and 100 RFPs.

II. ANALYSIS

A. Plaintiff's Objections as to Matters Beyond that Covered in the Order.

Plaintiff's Objection contests, and requests relief regarding, not only the matters addressed in the Order but also other matters. Such other matters, not being ruled upon in the Order, are not properly before this Court. The Court would note, however, the other matters include, for example, orders which Plaintiff had an opportunity to challenge but did not, [1] and the time to do so has expired. The Court will not entertain a challenge now. Accordingly, the Court will neither consider those objections, nor Plaintiff's request to grant his Motion for Leave to file his First Amended Complaint (ECF No. 51), which was previously denied by Order dated February 13, 2013 (ECF No. 57), to which no timely objection was made; or to vacate the Magistrate Judge's Recommendation (ECF No. 71) of dismissal of Plaintiff's twelfth claim, to which no timely objection was made, or this Court's subsequent Order dismissing such claim (ECF No. 83).

B. Plaintiff's Objections as to Matters Covered in the Order.

Plaintiff raises two arguments directed at the Order. First, Plaintiff contends ordering the forfeiture of the ten depositions was an abuse of discretion, clearly erroneous and contrary to law. Second, Plaintiff asserts the Magistrate Judge applied a double standard when he denied Plaintiff's request to amend the Scheduling Order to increase the number of RFPs and RFAs but thereafter granted Defendants' motion to extend the page limitations for filing a motion to dismiss. (ECF Nos. 87 & 90.) The Court will address each argument in turn.

1. The Discovery Sanction.

First, while the sanction may appear at first glance to be severe, the facts show the Order was not an abuse of discretion, clearly erroneous, or contrary to law. In this case, Plaintiff filed a motion to compel depositions (ECF No. 73), after the parties could not reach an agreement for scheduling them. The Magistrate Judge scheduled a hearing but warned the parties about possible consequences should they be unable to reach an agreement. On the afternoon of May 15, 2013, the Magistrate Judge held a hearing on the Plaintiff's motion to compel and, as the parties could not agree, set a deposition schedule in open court. (ECF No. 82.) The depositions of Plaintiff and ten Defendants were set to be taken from June 17 to July 1, 2013, at this Court's Courthouse. The out-of-state defendant deponents were ordered to travel to Colorado as an accommodation to Plaintiff. The Magistrate Judge also advised Plaintiff that the party noticing the deposition was responsible for all costs associated with such deposition, and that if a court reporter did not appear for a scheduled deposition, Plaintiff "may" be ordered to pay fees and expenses. (ECF No. 82.)

Thereafter, on the morning of May 16, 2013, less than 24 hours after the Magistrate Judge assisted the parties in setting the depositions, Plaintiff sent Defendants an email, stating "I am going to file a motion to cancel all of ...


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