United States District Court, D. Colorado
OPINION AND ORDER GRANTING MOTIONS FOR SUMMARY
JUDGMENT
Marcia
S. Krieger Senior United States District Judge
THIS
MATTER comes before the Court pursuant to various
pending motions (delineated herein), most prominently
Defendant National Board of Pharmacy's Motion for Summary
Judgment (# 140); and Defendant Pearson
Professional Centers' Motion for Summary Judgment
(# 141).
FACTS
The
Court summarizes the pertinent facts herein, elaborating as
necessary in its analysis.
Mr.
Enow wishes to become licensed as a pharmacist. To do so, a
person must take and pass a licensing exam, known as NAPLEX,
that is created by the National Association of Boards of
Pharmacy (“NABP”) and administered on computers
by Pearson Professional Centers (“Pearson”).
Candidates are afforded a limited number of opportunities to
take the NAPLEX, after which their path to licensure is
foreclosed or, at the very least, rendered more difficult.
Mr.
Enow first sat for the NAPLEX exam on August 19, 2016
(“the 2016 NAPLEX”). As discussed in more detail
below, Mr. Enow contends that he experienced technical
difficulties in completing the test and that Pearson staff
members failed to follow Pearson's established guidelines
for resolving the situation. In response to Mr. Enow's
complaints, the Defendants undertook an investigation, which
included reviewing “test maps” for the exam that
reveal all of Mr. Enow's input activities (such as mouse
clicks and data entries) during the exam. The Defendants
concluded that Mr. Enow's difficulties were the result of
“candidate error” and deemed his test valid.
Because Mr. Enow did not answer a sufficient number of
questions to qualify for a score, NABP recorded his as having
failed the 2016 NAPLEX.
Mr.
Enow sat for the NAPLEX again on January 5, 2017 (“the
2017 NAPLEX”). Again, he experienced technical issues
in taking the test and contends that Pearson failed to
resolve those issues in accordance with its guidelines. Once
again, the Defendants conducted an investigation into Mr.
Enow's complaints, but concluded that Mr. Enow's test
attempt should be treated as valid. Mr. Enow did not achieve
a passing score on this attempt and was again recorded as
having failed the exam. (Mr. Enow has since unsuccessfully
taken the NAPLEX and related exams additional times, but
those attempts are not germane to the issues before the
Court.)
Mr.
Enow then commenced the instant action pro
se.[1] As narrowed by a prior ruling (#67), Mr.
Enow asserts two claims against NABP and Pearson: (i) a claim
for breach of contract, in that NABP and Pearson did not act
in accordance with the promises made in a written
“Candidate Bulletin” that they issued to test
takers; and (ii) that NABP and Pearson acted negligently by
administering the NAPLEX in an incompetent manner.
Both
NABP (# 140) and Pearson (# 141) now move for summary
judgment in their favor on Mr. Enow's claims. Both the
Defendants and Mr. Enow have also filed various motions and
other matters, each which the Court addresses in detail
below.
ANALYSIS
A.
Mr. Enow's motions/submission
Because
resolution of Mr. Enow's various motions and filings will
help streamline consideration of the Defendants' motions,
the Court addresses Mr. Enow's filings first.
1.
Motion for Sanctions
On July
27, 2019, [2] Mr. Enow filed a “Motion for
Sanctions for Conspiracy to Commit Fraudulent Alteration of
Material Evidence” (# 161). In this motion, Mr. Enow
alleges that Pearson has “tampered with” the test
maps that it has produced. Mr. Enow proposes that, as a
result, the Court should: (i) “compel joinder of
claims, minor children, equitable relief, and punitive
damages, ” which this Court understands to be a request
by Mr. Enow to amend his Complaint in response to the alleged
tampering; and (ii) “consider this motion [for
sanctions] as a Motion for Summary Judgment under Rule
56.”
Mr.
Enow's motion does not particularly elaborate on the
reasons why he believes that the test maps have been altered.
Mr. Enow identifies the “original” and
“altered” test maps as Docket # 138-3 (original)
and Docket # 138-4 (altered) for the 2016 NAPLEX exam, and
Docket # 138-9 (original) and Docket # 138-10 (altered) for
the 2017 NAPLEX exam. The Court's review of those
exhibits reveals that they present the same data, differing
only in their formatting.
The
test maps take the form of a columnar chart that lists, for
each test item, as many as 13 fields of data (test item
numbers, the time Mr. Enow spent on the particular item, the
data he entered in the test on that item, and so on). In the
“original” version of the test maps, that data is
presented in portrait-style orientation. Because of that
orientation, all 13 columns relating to a single row of data
cannot be displayed simultaneously on the same sheet of
paper. As a result, some columns of data are displayed on
pages only after other columns have been displayed in their
entirety, making it extremely difficult to correlate all of
the items of data that correspond to a given row. By
contrast, the “altered” test maps are in the form
of a spreadsheet shown in landscape-style orientation,
allowing all 13 columns to be displayed simultaneously for a
given row. Thus, as best the Court can determine, the
“altered” versions of the test maps contain
exactly the same data as the “original” versions,
differing only in format and readability. Certainly, Mr. Enow
has not pointed to any instances in which the
“altered” test maps contain different information
than the “original” maps.
The
record appears to indicate that Pearson provided Mr. Enow
with the “altered” test maps in late February
2019, in response to Mr. Enow's complaints about the
“original” maps being unreadable. It is clear
from Mr. Enow's Motion for Sanctions that he had
possession of both versions by May 17, 2019, because
on that date, he wrote to Pearson's counsel and informed
them of “his intent to seek criminal referral for
tampering [ ], perjury, and amend the second amended
complaint to include additional claims for injuries
suffered.”
Taking
the specific items of relief that Mr. Enow requests in his
motion for sanctions, the Court begins with Mr. Enow's
request that he be granted leave to amend his complaint to
join new parties (namely, his minor children) and assert new
claims based on Pearson's alleged altering of the test
maps. The Court denies that motion for numerous reasons.
First, Mr. Enow has not tendered any proposed amended
pleading as is required for any motion seeking leave to amend
pursuant to D.C. Colo. L. Civ. R. 15.1(b). This alone is a
sufficient basis to deny Mr. Enow's request to amend.
Second,
the deadline for amendment of pleadings set by the Scheduling
Order (# 37) expired in December 2017, long before Mr.
Enow's instant motion. When a deadline for amendment in a
scheduling order has passed, requests for leave to amend must
not only satisfy Fed.R.Civ.P. 15's “freely
given” standard, but must also satisfy the “good
cause” standard for modification of a scheduling order
under Fed.R.Civ.P. 16(b)(4). Husky Ventures, Inc. v. B55
Investments, Ltd., 911 F.3d 1000, 1019 (10th
Cir. 2018). This Court finds that Mr. Enow has not shown good
cause to amend his complaint in response to Pearson's
production of the “altered” test maps. Rule
16's “good cause” standard requires the
movant to show, among other things, that he acted diligently
in seeking to amend quickly upon discovering the facts
ostensibly warranting that amendment. Id. at 1020-21
(plaintiff who waited more than six months to seek amendment
after discovering facts justifying it failed to demonstrate
good cause). Here, Mr. Enow has been aware of the
“altered” test maps since approximately February
2019 (or, at the very latest, May 2019), yet waited until
late July 2019 in order to request leave to amend his
complaint based on those altered maps. This Court finds that
Mr. Enow has not articulated a valid reason for not moving
more quickly, and thus finds that he has failed to satisfy
the Rule 16 standard.
Finally,
putting aside all other reasons, the Court finds that Mr.
Enow has not demonstrated good cause to amend his pleadings
under Rules 15 or 16 because the factual predicate of his
motion - that Pearson produced fraudulent test maps to him
during discovery - is demonstrably false. As explained above,
the “original” and “altered” test
maps in the record contain exactly the same data; they differ
only in their formatting, with the “altered” maps
easier to read and understand. Mr. Enow has not come forward
with any evidence that Pearson has modified the underlying
data in the “altered” versions, that Pearson has
attempted to prevent Mr. Enow from relying on the
“original” version if he desired to do so, or
otherwise taken any actions relating to the
“altered” maps that would prejudice Mr.
Enow's claims in any way. Thus, Mr. Enow's complaints
about alterations of the test maps are frivolous and cannot
support a request to amend the complaint at this time.
For
similar reasons, the Court rejects Mr. Enow's second
request in the motion for sanctions: that the motion itself
be deemed Mr. Enow's own summary judgment motion. The
deadline for dispositive motions set by the Scheduling Order
was May 21, 2019 (# 120). Mr. Enow's own motion, filed in
July 2019, would thus be untimely. Mr. Enow has not shown
that any impediments prevented him from filing his motion for
sanctions as a motion for summary judgment within the
Scheduling Order deadline. Although Mr. Enow proceeds pro
se, that status does not relieve him of the obligation
to abide by the same deadlines and rules that apply to
litigants with lawyers. U.S. v. Griffith, 928 F.3d
855, 864 n. 1 (10th Cir. 2019). Because the Court
would not accept an untimely motion for summary judgment from
a counseled litigant, it does not accept Mr. Enow's
untimely motion either. Moreover, as noted above, Mr.
Enow's motion simply lacks any merit in its facial
contentions of evidence tampering, and the Court would deny
it on its merits in any event.
Likewise,
to the extent Mr. Enow's motion for sanctions can be
construed to request any other form of relief, the Court
finds that it lacks any actual merit. Accordingly, the motion
is denied in its entirety.
2.
Objections to discovery ruling
In
March 2019, Mr. Enow filed a Motion to Compel (# 101),
requesting that the Defendants produce a variety of
information regarding the 2016 and 2017 NAPLEX exams,
including the test questions themselves and correct answers,
along with Pearson's exam software. (Mr. Enow conceded
that, by then, Pearson had produced the test maps, but he
complained that he “did not understand the allege[d]
documents and he does not believe that the Court will be able
to understand” them, and that Pearson's
explanations of the maps “are very ambiguous.”)
The Court referred Mr. Enow's motion to the Magistrate
Judge, and on April 4, 2019, the Magistrate Judge denied (#
129) Mr. Enow's motion. Among other things, the
Magistrate Judge found: (i) that Mr. Enow had not shown that
the test questions themselves were relevant to Mr. Enow's
breach of contract or negligence claims, which focused on the
Defendants' failure to comply with their established
protocols for dealing with technical difficulties occurring
during the testing, and that in any event, NABP has a
legitimate business interest in shielding past test questions
from disclosure because NABP may choose to re-use some of
those questions on future exams; (ii) as to the request for
the exam software, Mr. Enow's request was overly broad
and irrelevant, given that Pearson had produced the test maps
that showed “every mouse click and key stroke [Mr.]
Enow made during the first two examinations, ” and that
production of the software itself would simply yield the same
test map data Mr. Enow already had.
On
April 20, 2019, Mr. Enow filed Objections (# 131) to the
Magistrate Judge's rulings pursuant to Fed.R.Civ.P.
72(a). Mr. Enow argues that, at trial, he intends to prove
that, notwithstanding any technical difficulties he suffered
during the exams, “he passed these exams and he will
[prove] his actual scores in this court, ” and contends
that access to the actual test questions is necessary to such
proof. Although he acknowledges that the test maps are
“the most relevant and important documents” in
this case, he complains that “the test maps are
supposed to look like school transcripts” but that, in
reality, they “require a person to apply complicated
statistical applications called ‘item review
theory', ” and that production of the test
questions and answers themselves will help him demonstrate
his actual score. He also argues that “some of the test
maps have been tampered with” and that “you can
see that numbers, letters, patterns, and all sort of things
have bene flipped around” in the test maps that have
been provided by Pearson, although he does not elaborate. Mr.
Enow acknowledges that his Objections were “filed one
day late, ” which he attributes to having mistakenly
counted fourteen days from April 5, 2019, the date on which
the Magistrate Judge advised (# 130) him of his right to file
objections, rather than from the date of the April 4, 2019
Order.
The
Court reviews objections to non-dispositive rulings by the
Magistrate Judge pursuant to Fed.R.Civ.P. 72(a), reversing
the Magistrate Judge's rulings only where they are
“clearly erroneous or contrary to law.” A ruling
is “clearly erroneous” where, after reviewing the
entirety of the evidence, this Court is “left with the
definite and firm conviction that a mistake has been
committed.” Allen v. Sybase, Inc., 468 F.3d
642, 659 (10th Cir. 2006). Motions to compel
invoke the discretion of the Magistrate Judge within the
confines of Fed.R.Civ.P. 26(b)(1), which generally allows for
broad discovery or relevant evidence, subject to concerns of
proportionality to the needs of the case as reflected by
various factors recited in the Rule.
The
Magistrate Judge's Order correctly noted the relevant
provisions of Rule 26(b)(1) and Mr. Enow's Objections do
not contend that the Magistrate Judge applied an incorrect
legal standard. Thus, the Court cannot conclude that the
Magistrate Judge's Order was contrary to law.
As to
whether the Magistrate Judge's ruling was clearly
erroneous, this Court finds that it was not. As this
Court's July 31, 2018 Order (# 67) explained, a fair
reading of Mr. Enow's Second Amended Complaint revealed
four possible claims against the Defendants. The first two,
sounding in breach of contract and negligence, addressed the
Defendants' failure to appropriately respond to technical
difficulties that occurred during Mr. Enow's 2016 and
January 2017 NAPLEX attempts; the third claim involved
allegations of fraud directed at the Defendants'
representations regarding their investigation into these
technical difficulties; and the fourth claim alleged that the
Defendants retaliated against Mr. Enow for complaining about
the first two NAPLEX attempts by giving him failing scores on
his next two attempts at the NAPLEX, in March and June 2017,
even though he completed those tests without technical
difficulties and, according to Mr. Enow, answered sufficient
questions to warrant a passing grade. In its July 2018 Order,
this Court dismissed Mr. Enow's third and fourth claims,
leaving only his contract and negligence claims directed at
the Defendants' responses to his technical problems on
the first two NAPLEX attempts.
When
Mr. Enow's claims are properly cabined - as the
Magistrate Judge did - his discovery requests in the Motion
to Compel are correctly rejected as irrelevant. Mr.
Enow's claims relating to the first two NAPLEX attempts
do not allege that he actually obtained a passing
score despite his technical difficulties; rather, they allege
that the Defendants failed to adequately respond to the
technical issues he experienced, thereby preventing
him from obtaining a passing score. Indeed, Mr. Enow's
Second Amended Complaint admits that (due to the technical
difficulties) he “ran out of time at about the question
number 152” on his 2016 NAPLEX attempt, and that he was
required to answer at least 162 questions to be eligible for
a passing score. Docket # 46 at 13, ¶ 19, 22.
Likewise, his allegations about his second NAPLEX attempt
concede that, due to technical difficulties, he
“couldn't finish given the emotional stress and
time wasted.” Id. at 16, ¶ 30
and 17, ¶ 34(B). Thus, because Mr. Enow's
remaining claims do not turn on a contention that he actually
passed in either of his first two attempts at the
NAPLEX, Mr. Enow's request for discovery that would allow
him to prove that he passed those exams is irrelevant to the
claims he has asserted.[3]
Moreover,
the Magistrate Judge also properly considered the
proportionality of Mr. Enow's requested discovery with
the needs of this case, according to the factors set forth in
Rule 26(b)(1). Most notably, with regard to Mr. Enow's
request for the actual test questions and answers used, the
Magistrate Judge found that the burden on NABP that would
result from complying with that request - effectively
preventing NABP from recycling those questions on future
NAPLEX exams - outweighed the likely benefit that would
result from disclosing them to Mr. Enow. It is undisputed
that NABP does periodically re-use test questions in
subsequent exams, and thus, the Court cannot say that the
Magistrate Judge erred in finding that this factor further
tipped against granting Mr. Enow's motion to compel.
Similarly, the Magistrate Judge found that, because Mr. Enow
had already received the test maps themselves, production of
the exam software would be unduly burdensome and
disproportionately harm the Defendants. This Court sees no
error in those conclusions either. Mr. Enow has, at most,
offered only conclusory assertions that the test maps do not
accurately reflect what happened during his exam attempts,
but he has not articulated any basis for believing that the
ability to review the exam software itself will allow him to
identify the nature and source of any disparities between the
test maps and the actual events that occurred. Moreover,
disclosure of the exam software itself would pose an
unreasonable risk to Pearson that the software could be
hacked, reverse engineered, or otherwise manipulated in such
a way as to compromise Pearson's ability to use it to
securely administer exams in the future.
Thus,
the Court overrules Mr. Enow's Objections and affirms the
Magistrate Judge's denial of Mr. Enow's motion to
compel.[4]
B.
The Defendants' Motion to Strike
1.
Docket # 164-189
Roughly
a week after Mr. Enow filed his Motion for Sanctions, he
proceeded to file a string of docket entries (# 164-189).
Docket # 164 is captioned as a declaration by Mr. Enow
“in support of [his] motion for sanctions, ” but
it consists simply of a recitation by Mr. Enow identifying
various exhibits, without meaningful discussion or analysis
of the significance of those exhibits. The remaining docket
entries consist of the exhibits themselves.[5] Although the
exhibits are ostensibly tendered in support of Mr. Enow's
Motion for Sanctions, many of these exhibits are not
referenced in that motion at all, nor are they cited in any
other briefing by Mr. Enow that is presently before the
Court. The Defendants move (# 196, 199) to strike those
filings as irrelevant and untimely. Mr. Enow has not filed
any meaningful response to the Defendants'
motions.[6]
It is
difficult to know what to make of Mr. Enow's filings at
Docket #164-189. Although they are captioned as being
submitted in support of Mr. Enow's Motion for Sanctions,
few of the exhibits are cited in that motion. In many
respects, the filings appear to be a dump of much or all of
the discovery that Mr. Enow has obtained to date in this
case. But because the filings are not tethered to any brief
discussing or explaining the significance of the exhibits to
Mr. Enow's arguments, it appears that Mr. Enow has left
it to the Court to sift through the exhibits on his behalf.
Given the volume of filings and the lack of focus by Mr.
Enow, the Court declines any invitation to do so. See
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 672
(10th Cir. 1998) (courts should be “wary of
becoming advocates who comb the record of previously
available evidence and make a party's case for
it”). Similarly, although some or all of the exhibits
could have been cited by Mr. Enow in support of arguments
opposing the Defendants' summary judgment motions, Mr.
Enow has not filed any brief containing such arguments,
leaving the exhibits to speak for themselves. Once again, the
Court cannot serve as Mr. Enow's advocate and assemble
arguments for him from the exhibits he has filed. In the
absence of a substantive summary judgment response - and Mr.
Enow has not filed any despite having had nearly four months
to do so - the exhibits themselves are of no significance.
That
being said, the Court denies the Defendants' specific
request that Docket # 164-189 be “stricken.” In
the era of paper files, a stricken filing could be removed
from the official record and discarded, eliminating its
existence; in the age of electronic filing, the act of
“striking” a filing has no meaningful
consequences, as “stricken” filings remain
accessible on the electronic docket. The act of
“striking” a pleading serves little more purpose
than the Court simply announcing that it will not consider
that filing. Thus, this Court denies the Defendants'
motions to “strike” Docket # 164-189. However,
the Court agrees with the Defendants that those filings are
not appropriate for consideration by the Court with regard to
any remaining matters, and thus, the Court does not consider
them.
2.
Docket # 192-195
The
Defendants' motions to strike also seek to strike Docket
# 192-195. Docket # 192 is captioned as Mr. Enow's
declaration of “True Examination Scores In Support of
Pending First Amended Motion For Examination Fraud.” In
that declaration, Mr. Enow explains that he “finally
figured [ ] out” how to use Pearson's ExamDeveloper
software and the test maps produced by Pearson from his 2016
and 2017 NAPLEX attempts to calculate his own exam scores.
Mr. Enow states that, based on his scoring methodology, he
“passed . . . the [January 2017] NAPLEX exam” (as
well as several other test attempts that are not the subject
of the remaining claims). Mr. Enow's declaration does not
explain the methodology he used to re-score his exams. The
remaining docket entries consist of the test maps produced by
Pearson, hand-annotated and ...