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Phernetton v. McDonald's

United States District Court, N.D. Indiana, Hammond Division

August 12, 2014

ERIC PHERNETTON, Plaintiff,
v.
McDONALD'S, Defendant.

OPINION AND ORDER

ANDREW P. RODOVICH, Magistrate Judge.

The matter is before the court on the Motion for Relief and Response to Motion by Defendant [DE 25]filed by the pro se plaintiff, Eric J. Phernetton, on April 14, 2014; the Motion of Response to Defendant Counsel [DE 33] filed by Phernetton on May 7, 2014; the Motion to Compel [DE 35] filed by the defendant, Lowell, Inc. (incorrectly sued as McDonald's) on May 12, 2014; the Motion to Strike Certain of Plaintiff's Filings [DE 36] filed by Lowell on May 12, 2014; the Motion to Deem Defendant's Request to Admit as Admitted Against Plaintiff [DE 37] filed by Lowell on May 12, 2014; the Motion for Continuance and Medical Reports [DE 39] filed by Phernetton on May 16, 2014; the Motion for Cease and Desist and Contempt [DE 43] filed by Phernetton on June 2, 2014; the Motion to Appoint Legal Counsel [DE 45] filed by Phernetton on June 4, 2014; the Motion of Notification [DE 48] filed by Phernetton on July 7, 2014; the Motion to Continue [DE 50] filed by Phernetton on July 23, 2014; and the Motion to Overrule Defense Objection [DE 53] filed by Phernetton on July 30, 2014.

For the following reasons, the Plaintiff's Motion for Relief and Response to Motion by Defendant [DE 25] is DENIED; the Motion of Response to Defendant Counsel [DE 33] is STRICKEN; the Defendant's Motion to Compel [DE 35] is GRANTED; the Motion to Strike Certain of Plaintiff's Filings [DE 36] is GRANTED IN PART and DENIED IN PART; the Defendant's Motion to Deem Defendant's Request to Admit as Admitted Against Plaintiff [DE 37] is DENIED; the Motion for Continuance and Medical Reports [DE 39] is STRICKEN; the Motion for Cease and Desist and Contempt [DE 43] is DENIED; the Motion to Appoint Legal Counsel [DE 45] is DENIED; the Motion of Notification [DE 48] is STRICKEN; and the Motion to Continue [DE 50] is DENIED. The court STRIKES DE 3-5, 14, 20. The court DIRECTS the clerk to amend the docket to show that the Motion to Overrule Defense Objection [DE 53] is a response brief.

Background

On December 27, 2013, the pro se plaintiff, Eric Phernetton, filed a complaint alleging that the defendant, Lowell, Inc. (incorrectly sued as "McDonald's"), discriminated against him in violation of Title VII and the Americans with Disabilities Act. Lowell filed its answer to Phernetton's complaint on February 28, 2014. Phernetton replied to the Answer on March 31, 2014. On March 25, 2014, Lowell's counsel, Jason D. Keck, attempted to speak with Phernetton regarding the parties' Federal Rules of Civil Procedure 26(f) report. Phernetton refused to respond substantively to Keck. On March 28, 2014, Lowell filed its proposed scheduling order. Phernetton later submitted a response to Lowell's Rule 26(f) report.

On April 1, 2014, Lowell served its First Set of Interrogatories, First Set of Requests to Admit, and First Set of Production Requests upon Phernetton. Lowell filed the discovery requests with the court on April 9, 2014. Also on April 9, Phernetton filed a "Response to Admit" in which he stated that he would "give some of a little of answer" to Lowell's Request to Admit. See DE 22. Phernetton admitted to Lowell (McDonald's) being his only place of employment during the specified time frame. Phernetton further stated that he elected not to be deposed. Phernetton filed several other documents with the court, stating that he would not respond to Lowell's discovery requests or submit to a deposition because he was prohibited under the Health Insurance Portability and Accountability Act (HIPAA), the Social Security Act, the Constitution, and federal tax laws. He also claimed that he would commit perjury if he was required to submit to a deposition.

Phernetton's responses to the First Set of Interrogatories, First Set of Requests to Admit, and First Set of Production Requests were due on or before May 1, 2014. As a follow-up, on May 2, 2014, Keck emailed Phernetton to inquire about the status of his discovery responses. Phernetton responded to the email from Keck stating that he was "prohibited to answer by both State and Federal law." On May 12, 2014, Lowell filed a Motion to Compel, a Motion to Strike Certain of Plaintiff's Filings, and a Motion to Deem Defendant's Requests to Admit as Admitted Against Plaintiff. Lowell asks to strike several documents labeled as docket statements, Phernetton's response to its Rule 26(f) report, Phernetton's response to its answer, several motions Phernetton filed that the court already has denied, and Phernetton's response to its Request to Admit. See DE 3-5, 14, 20, 22, 23, 29-33.

Phernetton also has filed several motions. On May 16, 2014, Phernetton filed a Motion for Continuance and Medical Reports. In it, Phernetton repeated his reasons for failing to submit to a deposition. A few weeks later he filed a "Motion for cease & assist order and contempt", stating that Keck should be held in contempt because he continued to e-mail Phernetton despite the court's directive to send filings by postal mail. Phernetton again stated that he was prohibited from participating in discovery and that he was invoking his constitutional right to have counsel. He later filed a separate motion requesting counsel.

Phernetton filed a "Motion of Notification" on July 7, 2014, stating that Keck has not produced copies of records that he requested two months ago. Most recently, Phernetton filed a Motion for Continuance. In it, he asked that the date for his deposition, August 6, 2014, be continued because he had an appointment with the state of Indiana. Phernetton has requested a continuance of his deposition twice before. Lowell filed a response objecting to the continuance, and Phernetton filed a motion to overrule the objection. The court will now address these motions in turn.

Discussion

Lowell first moves to strike several of Phernetton's filings. Motions to strike are generally disfavored, although they may be granted if they remove unnecessary clutter from a case and expedite matters, rather than delay them. Heller Financial, Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989); Doe v. Brimfield Grade School, 552 F.Supp.2d 816, 825 (C.D. Ill. 2008). The decision whether to strike material is within the discretion of the court. Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 665 (7th Cir. 1992).

Lowell argues that many of Phernetton's filings do not request any relief, cannot be construed as motions, and serve no purpose. Federal Rules of Civil Procedure 7 states:

Motions and Other Papers.

(1) In General. A request for a court order must be made by motion. The motion must:
(A) be in writing unless made during a hearing or trial;
(B) state with particularity the grounds for seeking the order; and
(C) state the relief sought.

Motions must include support and request some cognizable relief so that they may be ruled upon by the court. Sabbia v. Comm'r of Soc. Sec. Admin., 669 F.Supp.2d 914, 920 (N.D. Ill. 2009) ("Even pro se litigants... must expect to file a legal argument and some supporting authority. A litigant who fails to press a point by supporting it with pertinent authority, or by showing why it is sound despite a lack of supporting authority... forfeits the point. We will not do his research for him.") ( quoting Mathis v. New York Life Ins. Co., 133 F.3d 546, 548 (7th Cir. 1998)).

Phernetton filed several documents entitled "Docket Statement". See DE 3, 5, and 14. In Docket Entry 3, Phernetton gave his rendition of the facts and his past interactions with Lowell. The "Docket Statement" did not state with particularity the grounds for seeking an order, nor did it state the relief sought. Because the document did not request any type of relief, the court will not construe it as a motion. Only pleadings, motions, supporting memoranda or responses, and discovery requests and responses should be filed. Phernetton's Docket Statement is none of these and therefore is STRICKEN.

Similarly, Phernetton filed a Docket Statement on January 3, 2014, and another on January 10, 2014, that again failed to request any relief. In both, he discussed things that have occurred in conjunction with his Social Security claim and interactions he has had with Lowell. Phernetton has informed the court that he had a disability hearing and that Lowell refused to turn over his employee file. He summarized the testimony at the hearing and stated his objections. He also attached several exhibits, many of which were related to his Social Security claim. Phernetton did not ask this court to take any action, and even if the court construed this filing as a motion to compel production of his employee report, this was not the appropriate forum to enforce discovery in his Social Security case. The Social Security proceedings are separate and distinct from this matter. If Phernetton desires to review his employee file for use in this matter, he must serve a Request for Production of Documents on Lowell and file it with this court. See Rule 34 (explaining the procedure for requesting production of documents); Northern District of Indiana Local Rule 26-2 (explaining that all discovery material must be filed in cases involving a pro se party). If Lowell then refuses to turn it over, Phernetton then may file a motion to compel after he has attempted to resolve the dispute amicably with Lowell. See Federal Rule of Civil Procedure 26 & 37; Northern District of Indiana Local Rule 37-1. The court will then consider whether discovery of his employee file is relevant to this matter and subject to discovery in light of any objections Lowell may raise. Because Phernetton has failed to request any cognizable relief, the court will not construe these "docket statements" as motions. The court GRANTS Lowell's motion to strike DE 4 & 5.

Phernetton's Docket Statement [DE 14] does request some relief in that he asks for a court appointed attorney. Phernetton also filed a separate motion for a court appointed ...


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