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McVeigh v. Climate Changers, Inc.

United States District Court, W.D. Washington, Tacoma

January 26, 2017



          ROBERT J. BRYAN United States District Judge

         This matter comes before the Court on Defendant International Association of Sheet Metal, Air, Rail, and Transportation Workers, Local 66's (“Local 66” or “Union”) Motion to Compel Discovery (Dkt. 84), Plaintiff's Motion to Quash, Compel and Disclose Defendants (Dkt. 87) and Defendants' motions for reasonable expenses (Dkts. 92 and 96). The Court has considered pleadings filed regarding the motions and the remainder of the file herein.

         On March 4, 2016, Plaintiff filed this civil action, and now alleges claims against his former employer, Climate Changers Inc. d/b/a J.W. Brower Heating and Air Conditioning (“Brower”), its' president, Marlene Harnish, and Local 66 “pursuant to Section 301 of the Labor Management Relations Act and 29 U.S.C. § 185.” Dkt. 1-1. In his Third Amended Complaint, Plaintiff asserts that there was no just cause for his termination for misconduct or sexual harassment. Dkt. 60. He alleges he was not fully paid. Id. Plaintiff maintains that Local 66 violated their duty of fair representation. Id. The Third Amended Complaint includes claims for breach of contract, breach of the duty of fair representation, defamation per se, intentional and negligent infliction of emotional distress, and wrongful discharge. Id. Plaintiff seeks damages, “[f]or Defendant(s) to be rehabilitated with personal, professional, and social deterrence, ” and for the Court to enforce a provision of the Collective Bargaining Agreement. Id.


         On October 17, 2016, Local 66 served its First Interrogatories and Requests for Production on Plaintiff. Dkt. 85-1, at 2-15. Plaintiff sent his First Set of Answers and Responses to Local 66 on November 21, 2016. Dkt. 85-1, at 17-29. On November 29, 2016, Local 66 wrote to Plaintiff, informing him he provided incomplete answers, lodged multiple objections and failed to produce documents in response to the Requests for Production. Dkt. 85-1, at 31-38. Local 66 further explained their interrogatories and agreed to extend the date for full answers and production of documents to December 21, 2016. Id. Plaintiff did not respond. Dkt. 85, at 2. Local 66's counsel attempted to contact Plaintiff twice via email. Id. On December 27, 2016, Plaintiff responded and indicated that he was available for a call. Id. That same day, Plaintiff served his second set of answers and responses. Dkt. 85-1, at 47- 64. Local 66's counsel contacted him again, and they agreed to meet on December 28, 2016 to discuss Plaintiff's incomplete answers and to inspect and copy documents. Dkt. 85, at 3. Plaintiff agreed to email counsel and let them know when to expect him. Id. Plaintiff did not email counsel, but appeared at counsel's office around the noon hour. Id. The receptionist told him counsel would return in a few minutes and that he was welcome to wait. Dkt. 86, at 2. Plaintiff gave the receptionist a thumb drive containing the record of his “October 22, 2015 OAH hearing” and left. Id. Five minutes later, Local 66's counsel returned to her office. Dkt. 85, at 4. Counsel attempted to contact Plaintiff by phone and by email. Id. He did not respond. Id. Local 66's instant Motion to Compel (Dkt. 84) followed.

         Plaintiff filed a response to Local 66's Motion to Compel, discussed unrelated actions of Jay Roderik Stephens, counsel for Defendants Brower and Marlene Harnish (Dkt. 90, at 1-8) and asserts that counsel for Local 66 committed a fraud in regard to documents they filed (Dkt. 90, at 8-10). Plaintiff contends that he has sufficiently answered Local 66's questions and mailed 125 pages of documents to them. Id., at 14. In his Response, Plaintiff also moves the Court for an:

Order of Protection to stop the harassing behavior, Compel Marlene Harnish to produce Initial Disclosures pursuant to FRCP 26(a)(l)(D)&(E), Compel Mr. Stephens to withdraw as the attorney of record or file a Notice of Appearance on behalf of Marlene Harnish, compel Ms. Fix [Local 66's counsel] to cease her testimonies to what she is not a witness, compel Ms. Harnish to file Initial Disclosures, Compel Mr. Stephens to cease his shenanigans, to Order an In Camera Review of the National Labor Relations Board 's file of case #19-CB-169041, write a grievance to the Committee on Discipline to investigate the actions of Ms. Fix, Mr. Stephens, Bradley Medlin, and Daniel Hutzenbiler in this matter.

Id., at 15. (These requests are repeated in his pending motion, and so will be addressed in this order's discussion of his motion.)

         Local 66 filed a reply, and point out that only a few lines of Plaintiff's response is dedicated to the motion to compel. Dkt. 101. Local 66 acknowledges that Plaintiff sent it several pages of documents, but notes that he in no way indicated which documents responded to which Request for Production or that they were intended to respond to their Requests for Production at all. Id. Local 66 argues that it repeatedly tried to work with Plaintiff (particularly in light of his pro se status) to no avail. Id. It asserts that it should be awarded $3, 645.00 in reasonable attorneys' fees for having to bring this motion. Id.

         On January 5, 2017, Plaintiff filed the pending Motion to Quash, Compel, and Disclose Defendants. Dkt. 87. In this motion, Plaintiff states that “on December 29 and 30, 2016 along with 3 January, 2017, Plaintiff was served subpoenas from ‘Claimate [sic] Changers INC, JW Brower, Marlene Harnish' represented by ‘Roderick [sic] Stephens.'” Dkt. 87. He points out that the attendance date of the deposition was 6 January 2016 on the first subpoena, and notes that on the second one, a hand written change was made for the deposition date to be 6 January 2017. Id. Plaintiff also states that no per diem check came with the subpoena and that the name of the issuing court had been left blank. Id. He also discusses the time given him to respond to the subpoena. Id. Plaintiff moves to quash these subpoenas. Id. Plaintiff also moves for an order compelling Marlene Harnish to produce her Initial Disclosures and to compel Mr. Stephens to withdraw as the attorney of record or file a notice of appearance on behalf of Marlene Harnish. Id. Plaintiff states that he “believes that a collaboration has taken place to which both Defendant's [sic] representatives are a party and will need to call each as witnesses.” Id., at 3. He again asserts that counsel for Local 66 has deceived the Court. Id. Plaintiff maintains that the “evidence forces plaintiff to believe he has been the focus to a conspiracy. These legal representatives are running free breaking the laws they should be protecting.” Id., at 4. Lastly, Plaintiff also moves the Court to “issue a subpoena to view in camera the complete file for case # 19-CB-169041, if required write a grievance to the Committee on Discipline” and for an order protecting Plaintiff from “further misleadings [sic] of Defendant counsel.” Id.

         Brower and Ms. Harnish filed a response and argue that Plaintiffs' motion should be denied. Dkt. 96. They point out that Plaintiff acknowledges that Brower timely filed initial disclosures, and state that Ms. Harnish, as the only owner of this three person company, expressly adopts those disclosures. Id. Brower and Harnish note that Plaintiff failed to follow Local Rule W.D. of Wash. 37 (a), which requires parties to meet and confer to try to resolve the dispute discovery disputes before a motion to compel is filed. Id. They also point out that Plaintiffs' meritless attacks on counsel and this frivolous motion have needlessly increased the cost of litigation. Id. For his failure to adhere to Local Rule 37 (a) and his filing of this allegedly meritless motion contrary to Fed.R.Civ.P. 11, Brower and Harnish seek an award of $3, 800 in reasonable expenses. Id.

         Local 66 filed a Response to Plaintiff's motion, arguing that to the extent that Plaintiff seeks an order compelling counsel to act as a witness in this case, the motion should be denied because it has no merit. Dkt. 92. It also opposes Plaintiff's motion for the Court to issues a subpoena to the National Labor Relations Board. Id. Local 66 points out that the discovery deadline, January 23, 3017, has now passed. Id. It argues that his requests for relief should be denied. Id. Local 66 also points out that Plaintiff failed to follow Local Rule 37(a). Id. Local 66 asserts that no meet and confer has taken place. Id. Local 66 also moves for an award of reasonable expenses of $1, 642.50 it incurred in opposing Plaintiffs' motion. Id.

         Plaintiff filed replies (Dkt. 103 and 104) and the motion is ripe for review.

         On January 20, 2017, Plaintiff filed a pleading indicating that he had attended a videotaped deposition. Dkt. 105.

         This opinion will first discuss the general standard regarding discovery, then Local 66's motion to compel, Plaintiff's motion for various relief, and lastly the Defendants' motions for attorney's fees.

         II. ...

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