Enow v. National Association of Boards of Pharmacy

          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 (10^th 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 (10^th 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 (10^th 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 (10^th 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 ...