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Yeiser v. DG Retail, LLC

United States District Court, D. Colorado

August 2, 2019

SAMUEL O.P. YEISER, Plaintiff,
v.
DG RETAIL, LLC, Defendant.

          ORDER OVERRULING PLAINTIFF'S OBJECTIONS TO THE MAGISTRATE JUDGE'S ORDERS

          William J. Martínez, United States District Judge

         In this civil action, Plaintiff Samuel O.P. Yeiser (“Yeiser”) brings various claims against Defendant DG Retail, LLC (“Dollar General”). (ECF No. 77.) Before the Court are Yeiser's (1) Objection to Court's Order to Stricken Plaintiff's Motion for Default Judgement (“First Objection”; ECF No. 132); (2) Objection Pursuant to Fed.R.Civ.P. 72 for Dismissal of Default Judgment (“Second Objection”; ECF No. 147); and (3) Objection to Denied Stay of Civil Proceedings and Third Request for Status on Unanswered Motion Request (“Third Objection”; ECF No. 181) (collectively, the “Objections”).

         In considering the Objections, the Court is mindful of Yeiser's pro se status, and accordingly reads his pleadings and filings liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007). However, the Court cannot act as an advocate for a pro se litigant. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see also Ledbetter v. City of Topeka, 318 F.3d 1183, 1188 (10th Cir. 2003). For the reasons set forth below, Yeiser's Objections are overruled.

         I. RELEVANT FACTUAL & PROCEDURAL HISTORY

         On November 10, 2017, an elderly man asked for Yeiser's help in repairing his suitcase.[1] (ECF No. 77 at 5.) Yeiser agreed, and he and the elderly man went to a Dollar General store located in Aurora, Colorado, to purchase duct tape and other items needed to repair the suitcase. (Id.)

         After locating these items at the Dollar General, Yeiser returned to the front of the store where he claims he observed a store employee harassing the elderly man and brandishing a stun gun in his face. (Id.) When Yeiser asked the store employee why she was harassing the elderly man, the store employee laughed and tried to use the stun gun on Yeiser. (Id. at 5-6.) A verbal confrontation ensued, during which the store employee used racial epitaphs and accused Yeiser of stealing items from the store. (Id. at 6-7.) The confrontation soon escalated, with various Dollar General employees committing a whole variety of offensive acts toward Yeiser, such as physically assaulting him, repeatedly attempting to use a stun gun on him, stealing personal items that belonged to him and the elderly man (including the suitcase), spraying him with pepper spray, threatening him with future violence, attacking him for two blocks as he fled the location, directing racial slurs towards him, and so on. (Id. at 5-9.)

         Law enforcement officers responded to the scene. (Id. at 9-10.) Criminal charges related to the incident were subsequently brought against Yeiser by the 18th Judicial District Attorney's Office, and Yeiser was convicted of two counts of aggravated robbery. (ECF No. 112 at 3.) Yeiser subsequently appealed the conviction, which is currently pending in state court. (ECF No. 175 at 1.)

         On February 8, 2018, Yeiser filed the instant civil lawsuit against Dollar General and two of the store employees. (ECF No. 1.) The currently operative complaint is Yeiser's Third Amended Complaint, in which he brings claims against Dollar General for racial discrimination in violation of 42 U.S.C. §§ 1981 and 1982, premises liability, and defamation of character. (ECF No. 77; see also ECF No. 120 (dismissing Yeiser's negligence and gross negligence claims).)

         Pertinent to this Order, Yeiser filed a “Motion of Subpoena to Produce Documents” on May 21, 2018. (“Motion to Produce”; ECF No. 45.) At the June 6, 2018 Scheduling Conference, United States Magistrate Judge Scott T. Varholak denied the Motion to Produce to the extent it sought discovery from a non-party, and construed the remainder of the motion as a request for production pursuant to Fed.R.Civ.P. 34. (ECF No. 54.) The Magistrate Judge ordered the deadline for Dollar General to respond to Yeiser's request for production be stayed indefinitely, and that the matter would be addressed at the next Status Conference. (Id.)

         At the following Status Conference (ECF No. 75), the Magistrate Judge ordered the stay to remain in effect until it could be addressed at the October 25, 2018 Scheduling Conference. (ECF No. 117 at 2-3.) At the October 25, 2018 Scheduling Conference (ECF No. 88), the stay was lifted and discovery was permitted to commence pursuant to the Scheduling Order (ECF No. 89). (ECF No. 117 at 3; ECF No. 168 at 1.)

         On November 1, 2018, Yeiser refiled his Motion to Produce. (“Refiled Motion to Produce”; ECF No. 92.) On November 8, 2018, Yeiser filed a Request for Production under Fed.R.Civ.P. 34. (“Request for Production”; ECF No. 96.) While the Request for Production includes only a portion of the requests contained in the Motion to Produce, it is clear from Yeiser's filings that he intended to seek all of his requests previously made under Fed.R.Civ.P. 34 through his Request for Production. (ECF No. 147 at 3; ECF No. 149 at 2; compare ECF No. 96 at 1-2, with ECF No. 45 at 5-6.) In other words, it is apparent from his filings that Yeiser intended the Request for Production to encompass the requests made in the Motion to Produce that the Magistrate Judge had previously construed to be requests for production pursuant to Fed.R.Civ.P. 34. On November 19, 2018, the Magistrate Judge ordered that Yeiser's Request for Production be “deemed to have been served upon [Dollar General] on the date it was filed with the Court”-i.e., November 8, 2018. (ECF No. 101.) On December 10, 2018, Dollar General responded to Yeiser's Request for Production. (ECF No. 111; ECF No. 168 at 1-2.)

         On December 11, 2018, the Magistrate Judge granted Yeiser's Refiled Motion to Produce to the extent it requested documents from a non-party, but denied the remainder of motion to the extent it was a request for production pursuant to Fed.R.Civ.P. 34. (ECF No. 112.) This is the reverse of the Magistrate Judge's treatment of the initial Motion to Produce, where he denied the motion to the extent it requested documents from a non-party, and construed the remainder of the motion as a request for production pursuant to Fed.R.Civ.P. 34. (ECF No. 54.)

         On December 31, 2018, Yeiser filed a Request for Default Judgement under Fed.R.Civ.P. 37. (“Motion for Default Judgment”; ECF No. 117.) The basis for Yeiser's Motion for Default Judgement is that Dollar General allegedly failed to comply with Fed.R.Civ.P. 34 when it responded to the Request for Production on December 10, 2018, which was more than thirty days after (1) the date the response stay to his Motion to Produce was lifted (October 25, 2018); and (2) the date the Refiled Motion to Produce was docketed (November 1, 2018). (Id. at 5-8, 10.)

         On January 4, 2019, the Magistrate Judge struck Yeiser's Motion for Default Judgment as it conflicted with his Civil Practice Standards. (ECF No. 123.) Yeiser subsequently filed his First Objection and Second Objection, in which he makes various arguments as to why his ...


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