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McFadden v. Town of Meeker Colorado

United States District Court, D. Colorado

February 25, 2017

MEGAN McFADDEN, et al, Plaintiffs,
v.
TOWN OF MEEKER COLORADO, et al, Defendants.

          ORDER REGARDING PLAINITFFS' MOTION TO QUASH AND FOR SANCTIONS & ORDER REGARDING PLAINITFFS' MOTION FOR PROTECTIVE ORDER

          Gordon P. Gallagher, United States Magistrate Judge

         This matter comes before the Court on Plaintiffs' motions (ECFs #87 & 88)[1] (which were referred to this Magistrate Judge (ECFs #90 & 91)), [2] the Defendants' combined response (ECF # 103), and Plaintiffs' reply (ECFs #106 & 107). The Court has reviewed each of the aforementioned documents and any attachments. The Court has also considered the entire case file, the applicable law, and is sufficiently advised in the premises. Oral argument was not necessary to resolve this discrete issue. I Order as set forth in detail below.

         Plaintiffs, residents of low income housing in Meeker, Colorado, filed suit alleging violations of the Fair Housing Act (FHA) and other claims due to their possession in their homes of companion animals for disability related needs.

         Plaintiff Antonio White “has a history of suffering from severe depression and Attention Deficit/Hyperactivity Disorder (“ADHD”).” (ECF #72, p. 3, para. 8). The conditions “substantially limit major life activities such as his ability to care for himself, concentrate, remember, interact with others, and cope with stress.” Id. Plaintiff White relied on one or more companion cats to “manage his disabilities.” Id. Plaintiff Lonnie White is Plaintiff Antonio White's father and “lives with and cares for his son.” Id. at para. 7.

         Plaintiff White (20 y.o.a. at the time the first amended complaint was filed) lived with his mother and step-father in Florida, was verbally and physically abused by the step-father, became withdrawn and suicidal, and struggled socially and at school. Id. at p. 8, paras. 29-30. Plaintiff White suffered from severe depression and was prescribed medication in Florida. Id. at para 31. A cat provided the “most relief.” Id. At 17 y.o.a., Plaintiff White moved to Colorado to live with father Plaintiff Lonnie White. Id. at para 32. Plaintiff White was at first without his companion cat, suffered increased symptoms (suicidal, withdrawn, focusing issues), was limited in major life activities (caring for himself, working, concentrating, remembering, interactions with others and coping with stress), and was placed on medications which made him feel worse, thus causing him to need his cat back. Id. at p. 9, paras. 33-37.

         The move to Colorado was in January, 2014 at age 17, Id. at p. 8, para 32, and the move into the subsidized housing was in February, 2014. Id. at p.10, para. 38. Sometime later in 2014 or into 2015 Plaintiff White ended up with two cats but the exact time is not provided. See Id. at p. 11, paras. 47-48. The cat(s) were very helpful to Plaintiff White resolving or minimizing many of the effects of his disabilities. Id. at p. 12, paras. 52-55.

         Plaintiffs White were sent a 30 day eviction notice in August, 2016. Id. at p. 14, para. 90. The eviction notice discussed the cats, Plaintiff's change in status due to A.J. graduating from school and claimed financial disqualification for the unit. Id. at para 91. Information was provided in August, 2016 that Plaintiff was able to live without the medication because of the cat(s). Id. at p. 19, para. 99. The cats were less expensive and had fewer side effects than the medication. Id. at para. 100. On August 29, 2016, Plaintiff Lonnie White was informed that another claimed reason for eviction was not claiming Social Security Income, which he does not receive. Id. at paras. 105-06.

         Plaintiffs White have been caused extreme anxiety, humiliation, emotional distress, have been forced to move to an apartment they cannot afford, and may not be able to find affordable housing. Id. at p. 20, paras. 110-12.

         Plaintiff Megan McFadden “suffers from chronic depression and anxiety.” Id. at p. 3, para. 9. Plaintiff McFadden's disabilities “substantially limit her ability to care for herself, complete daily tasks, interact with others, cope with stress and sleep.” Id. Plaintiff McFadden relied on her companion dog to “manage her disability.” Id. Plaintiff has a history of anxiety and depression for which she was diagnosed and prescribed medication. Id. at p. 21, para. 115. Plaintiff's anxiety and depression stem “largely from trauma and abuse suffered when she was younger.” Id. at para. 116.

         Plaintiffs, who requested reasonable accommodation and provided documentation as to why they should have the animals, were ultimately forced out of their low income housing. Id. at p. 4, para. 12. Plaintiff McFadden suffers panic attacks, suicidal ideation, has sleeping problems, care issues, cannot complete daily tasks, work, interact with others or cope with stress. Id. at p. 22, paras. 117-19. Plaintiff McFadden met the companion dog in February, 2016, had thrice weekly companion visits starting at some unknown time thereafter, and then the dog moved in permanently. Id. at pp. 22-23, paras. 121, 127, and 129. The dog calmed Plaintiff McFadden, helped with stress, mitigated feeling of anxiety and depression, provided great improvement, and mitigated suicidal ideation. Id. at paras. 123, 124, 133, and 136.

         In July, 2016, Plaintiff McFadden was served a notice to vacate. Id. at p. 24, para. 142. Plaintiff McFadden vacated the home, resulting in Plaintiff McFadden's 8 y.o.a. daughter having to move in with a grandmother, causing Plaintiff McFadden and child to suffer significant emotional distress, financial harm and other injuries. Id. at p. 26, paras. 153-55.

         The complaint states that Plaintiffs are handicapped, meaning disabled. Id. at p. 30, para. 181. Plaintiff McFadden lost government benefits, suffered psychological and emotional harm, mental anguish, distress, humiliation, embarrassment, pain and suffering and degradation. Id. at p. 36, para. 226.

         The current dispute is two-fold: (1) a motion to quash ten subpoenas duces tecum issued by Defendants; and (2) a motion for protective order seeking relief from certain interrogatories.

         The subpoenas:

         All subpoenas had a return place of Defense Counsel's office in Denver and a return time of 1/20/2017 at 10:00 a.m. This matter was addressed orally during the scheduling conference on January 5, 2017. At that time, the subpoenas having already been served, the Court did not quash or Order withdrawal of the subpoenas. Instead, the Court allowed for the process to continue and Ordered the Defense to hold, under seal, any documents received pursuant to the various subpoenas.

1. Rio Blanco BOCES (Board of Cooperative Educational Services) (ECF # 87-5, subpoena 1, p. 3):
Educational records for Megan McFadden.
2. Rio Blanco BOCES (Board of Cooperative Educational Services) (ECF # 87-5, subpoena 2, p. 8):
Educational records for Antonio “A.J.” White.
3. Meeker Colorado Public School District (ECF # 87-5, subpoena 3, pp. 13-14): Educational records for Megan McFadden a/k/a/ Megan Ballinger.
4. Meeker Colorado Public School District (ECF # 87-5, subpoena 4, pp. 19-20): Educational records for Antonio “A.J.” White.
5. Meeker Colorado Public School District (ECF # 87-5, subpoena 5, p. 25): Employment records for Megan McFadden a/k/a/ Megan Ballinger.
6. Flat Top Fuels (ECF # 87-5, subpoena 6, p. 30): Employment records for Antonio “A.J.” White.
7. Weatherford Electric (ECF # 87-5, subpoena 7, p. 35):
Employment records for Lonnie J. White (much of the request limited to the time frame 2015 - present with the exception of the employment application and discipline file).
8. Mountain Valley Bank (ECF # 87-5, subpoena 8, p. 40): Bank records for Lonnie J. White (limited to 2015 - present).
9. Mind Springs Health (ECF # 87-5, subpoena 9, pp. 45-46):
Mental health/counseling records for Megan McFadden a/k/a/ Megan Ballinger (excluding notes from any psychotherapy session).
10. Mind Springs Health (ECF # 87-5, subpoena 10, pp. 51-52):
Mental health/counseling records for Antonio “A.J.” White (excluding notes from any psychotherapy session).

         General issues related to all subpoenas:

         With respect to Plaintiffs' motions to quash, the question initially is whether Plaintiffs have standing to file motions to quash the challenged subpoenas. The general rule is that a party has no standing to quash a subpoena served upon a third party, except as to claims of privilege or upon a showing that there is a privacy interest applicable. Windsor v. Martindale, 175 F.R.D. 665, 668 (D.Colo.1997); see also Broadcort Capital Corp. v. Flagler Securities, Inc., 149 F.R.D. 626 (D.Colo.1993). Absent a specific showing of a privilege or privacy, a court cannot quash a subpoena served on a third party. Windsor, 175 F.R.D. At 668. Fed.R.Civ.P. 45(d)(3)(A) requires the Court to quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires excessive travel by a non-party; (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden.

         Service of the subpoenas over the winter holidays:

         There is some preliminary information provided by Plaintiffs that there was communication with Defendants, a request to delay service of subpoenas and ultimately a refusal to do so. Based on the refusal to delay, Plaintiffs “can only assume that the purpose of these subpoenas [was] to annoy, embarrass, and harass.” (ECF #87, p. 2). The Court has reviewed the email/correspondence chain with regard to this issue, an issue that was initially raised well before the winter holidays. The Court finds nothing inappropriate with regard to the timing of the service of the subpoenas. As is correctly noted by the Defense, there is no “time out” over the holidays that stops the process. (ECF #103, p. 20). To the extent that any prejudice occurred due to the winter holidays, that was ameliorated by the Court's Order that anything provided pursuant to the subpoenas be held under seal pending resolution of the matter. I also do not find that the spirit of the notice requirement was violated by this chain of events. See Fed.R.Civ.P. 45(a)(4).

         Concerns regarding trial subpoenas:

         Plaintiff argues that these subpoenas were incorrectly issued under Fed.R.Civ.P. 45 and compares this to Sawatzky v. United States, No. 11-CV-03182-REB-GPG, 2013 WL 3771269, at *4 (D. Colo. July 16, 2013) (sic) (the initials for the presiding judicial officer should be RM for the Honorable Raymond Moore) (ECF #87, pp. 4-5). The Court recalls that action, and as correctly noted by the Defense (ECF #103, pp. 18-19), the facts and circumstances of that were significantly different. That was a circumstance where the Court quashed a number of late filed subpoenas, after the close of discovery. The issue was not the use of subpoenas but the timing of the use to essentially do an end run around the close of discovery, the party could not do by subpoena what they could not do otherwise. This is a different and not analogous circumstance. At least in concept, Defendants' current usage of Rule 45(c)(2) is appropriate.

         Plaintiff's argues that this bypasses discovery:

         Essentially, Plaintiffs argue that discovery, or a portion thereof, cannot be conducted by subpoena and must instead proceed through a request for production. See Fed.R.Civ.P. 34. While such a request is certainly one method of proceeding, one tool in a litigator's toolbox, I am not persuaded that a Rule 45 subpoena is not another proper tool. I find no persuasive or controlling case law which would provide me authority to quash the subpoenas on this basis.

         The 100 mile rule:

         Pursuant to Rule 45(c)(2)(A) the “subpoena may command production . . . within 100 miles . . .” Contrary to Defendant's argument, this Rule does apply to production of documents, if the party is required to show up and produce them. See Fed.R.Civ.P. 45(c)(2)(A), contra. Premier Election Solutions, Inc. v. SysTest Labs Inc., 2009 WL 3075597 (D. Colo. 2009) (disagreement therein over whether the distance was 91 miles v. 117 miles and it appears much of the provision was by mail).

         Here, the distance is in excess of 200 miles. The subpoena commands production at “the time, date and place set forth below . . .”, a Denver address. (example ECF # 87-5, p.2). The practical issues with this argument are many. First, Plaintiffs would appear to have no standing to raise the issue as they will not be bearing the costs. While Plaintiffs claim in their motion (ECF #87, p. 4) to have standing, standing to address some issues does not provide standing to address all issues, e.g., there may be standing for privilege/protected information disputes but not mileage. One party, Danny Dewitt/Weatherford Electric, has objected. Second, it is unclear whether any party actually showed up in person or whether some agreement to mail/email was reached.

         I therefore Order the following: to the extent any party has not yet produced in response to the subpoena, that party must be given either the option to do so electronically or by mail or provided a local place of production within 100 miles (preferably in Meeker). To the extent any party has produced and did so in excess of the 100 miles, that party is free to request recompense and the Court will consider such request when submitted.

         Fed.R.Civ.P. 45(d)(3)(A)(iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies:

         The main thrust of Plaintiffs' argument is that the subpoenas should be quashed under Fed.R.Civ.P. 45(d)(3)(A)(iii). Where the patient has injected her physical or mental condition into the case as a basis of a claim or an affirmative defense, the patient has impliedly waived any claim of privilege respecting that medical condition. See Samms v. District Court, Fourth Judicial Dist. of State of Colo., 908 P.2d 520, 524 (Colo.1995); Clark v. District Court, 668 P.2d 3, 10 (Colo.1983) (plaintiff “impliedly waives any claim of confidentiality respecting that same condition”). The extent of the waiver is necessarily established by the facts at issue and is “limited to the cause and extent of the injuries and damages claimed.” Cardenas v. Jerath, 180 P.3d 415, 424 (Colo.2008). I will look at each subpoena in turn regarding this issue.

1. Rio Blanco BOCES (Board of Cooperative Educational Services) (ECF # 87-5, subpoena 1, p. 3):
Educational records for Megan McFadden.
Plaintiffs' motion as to this subpoena is denied as moot. No records were provided as the providing party claims to have none.
2. Rio Blanco BOCES (Board of Cooperative Educational Services) (ECF # 87-5, subpoena 2, p. 8):
Educational records for Antonio “A.J.” White.

         The records sought by this subpoena are proportional to the case, relevant and any privilege has been waived by this Plaintiff's claim and the manner in which he has asserted that claim. These records are relevant and discoverable. Plaintiff White specifically claims to have struggled at school without the benefit of a companion cat. Also, given the timeframe set forth during which Plaintiff White attended school in Meeker, I do not find this overbroad. Plaintiffs' motion is denied as to this subpoena.

         3. Meeker Colorado Public School District (ECF # 87-5, subpoena 3, pp. 13-14): Educational records for Megan McFadden a/k/a/ Megan Ballinger.

         Plaintiffs' motion as to this subpoena is denied as moot. No records were provided as the providing party claims to have none.

         4. Meeker Colorado Public School District (ECF # 87-5, subpoena 4, pp. 19-20): Educational records for Antonio “A.J.” White.

         The records sought by this subpoena are proportional to the case, relevant and any privilege has been waived by this Plaintiff's claim and the manner in which he has asserted that claim. These records are relevant and discoverable. Plaintiff White specifically claims to have struggled at school without the benefit of a companion cat. Also, given the timeframe set forth during which Plaintiff White attended school in Meeker, I do not find this overbroad. Plaintiffs' motion is denied as to this subpoena.

         5. Meeker Colorado Public School District (ECF # 87-5, subpoena 5, p. 25): Employment records for Megan ...


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