Ward v. American Pizza Co.

279 F.R.D. 451, 82 Fed. R. Serv. 3d 333, 2012 U.S. Dist. LEXIS 38779, 2012 WL 1034177
CourtDistrict Court, S.D. Ohio
DecidedMarch 22, 2012
DocketNo. 2:11-cv-575
StatusPublished
Cited by12 cases

This text of 279 F.R.D. 451 (Ward v. American Pizza Co.) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ward v. American Pizza Co., 279 F.R.D. 451, 82 Fed. R. Serv. 3d 333, 2012 U.S. Dist. LEXIS 38779, 2012 WL 1034177 (S.D. Ohio 2012).

Opinion

OPINION AND ORDER

TERENCE P. KEMP, United States Magistrate Judge.

This matter is before the Court to consider several pending motions. The majority of these motions have been filed by plaintiff Melody Ward and include a “motion to order defendant to produce documents” (# 17), two motions for judicial review (# 19 and # 26), and a motion for default judgment (#31). Ms. Ward also has filed two amendments to her complaint (# 20 and # 27). Also pending is a motion to compel filed by defendant America Pizza Company (#23). For the following reasons, the motion to compel will be granted and all other motions will be denied.

I. Background

Ms. Ward worked as a delivery driver for American Pizza from September, 2008 until September, 2009. She filed this employment discrimination case under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., asserting that she was denied health insurance, given fewer hours to work and ultimately fired due to her age and sex. In her complaint, in addition to American Pizza, Ms. Ward named as defendants Pamela Carter, John Fife, Andy Sikes, and Kevin Snyder. By order dated March 6, 2012, this Court dismissed the individual defendants because they were not “employers” within the meaning of Title VII.

II. Ms. Ward’s Motion to Produce Documents and Motions for Judicial Review

Although from a review of the docket it appears that Ms. Ward has filed three separate motions, two of these motions—Does. # 19 and # 26 seeking judicial review—are identical. The gist of these motions, along with the motion to produce (# 17), while certainly less than clear, appears to be the same. Ms. Ward is seeking certain documents from her personnel file which she believes will demonstrate that American Pizza “has fabricated dates upon dates and shuf[454]*454fled paper work from agency to another adding and omitting as needed.” See Doc. # 17. Further, she contends that “the production of documents will show evidence of fraud in.” See Docs. # 19 and # 26. Not only is Ms. Ward seeking such documents, she wants the Court to review these documents.

American Pizza has responded to each of Ms. Ward’s filings individually. With respect to the motion to produce documents, American Pizza contends that this motion should be denied for several reasons. First, American Pizza argues that Ms. Ward has not issued any discovery requests so that, to the extent her motion is intended as a motion to compel, it does not comply with the Federal Rules of Civil Procedure. Further, American Pizza asserts that it produced many documents in its initial disclosures and Ms. Ward has not provided any evidence in support of her falsification claims. Additionally, American Pizza maintains that Ms. Ward’s motion is moot because it has identified and obtained original documents and has provided Ms. Ward with dates for her inspection. American Pizza makes similar arguments in response to the motions for judicial review.

The Court agrees that Ms. Ward’s motion to produce documents should be denied for the reasons cited by American Pizza. Ms. Ward does not dispute that she has not served any discovery requests on American Pizza. No formal discovery requests are attached to her motions, and nowhere in any of her other filings is there a copy of any formal discovery requests served on American Pizza. Before moving the Court for an order directing American Pizza to produce any discovery, Ms. Ward must first serve American Pizza with a request for discovery. See Fed. R.Civ.P. 37(a)(3)(B). Moreover, Ms. Ward does not dispute American Pizza’s representations that it has produced certain documents to her and provided her with dates upon which original documents would be produced for her inspection, or that she has not taken American Pizza up on its offer for her to inspect documents.

Ms. Ward’s motions for judicial review will be denied for essentially the same reasons. While American Pizza is correct that the precise relief Ms. Ward seeks through these motions is unclear, she may be requesting something in the nature of an in camera review of the documents she seeks. However, absent the assertion of some legal privilege (and none has been made here), the Court will not review documents in camera at this stage of the proceedings. See Thomas & Marker Const. Co. v. Wal-Mart Stores, Inc., 2008 WL 3200642, *3 (S.D.Ohio August 6, 2008) (Rose, J.). It appears that Ms. Ward may be asking that the Court make some determination as to the legal effect of any alleged discrepancy between documents she may have received and documents she is seeking, but it would not be appropriate for the Court to review these or any other discovery documents in the absence of some legitimate dispute about their authenticity, and none exists on this record.

III. Motion for Default Judgment

Ms. Ward has filed a motion captioned as “ ‘Default Judgment’ negligence Request: Magistrate Kemp’s venue.” In this filing, Ms. Ward again requests the Court’s “help in overseeing original documents APC contains.” The primary focus of this filing, however, appears to be a request for default judgment against American Pizza because defense counsel electronically mailed unredacted documents to her. According to Ms. Ward, she had requested that such documents be sent to her only through the U.S. mail to protect her from potential identity theft.

In response, American Pizza contends that, although it was not obligated to, it redacted personally identifying information before transmitting its initial disclosures to Ms. Ward via e-mail. In support of this position, it has attached its initial disclosure pleading, its redaction log, and its cover letter to Ms. Ward. Ms. Ward has not filed a reply.

Ms. Ward’s filing suggests that what she is asking for is a default judgment as a discovery sanction under Fed.R.Civ.P. 37. The Court of Appeals has described entry of a default judgment as the most severe discovery sanction available. See Grange Mutual Cas. Co. v. Mack, 270 Fed.Appx. 372, 376 (6th Cir.2008). As the court explained in [455]*455Grange, such a sanction should be considered only when “1) the disobedient party acted in wilful bad faith; 2) the opposing party suffered prejudice; 3) the court warned the disobedient party that the failure to cooperate could result in a default judgment; and 4) less drastic sanctions have been attempted.” Vogerl v. Elliott, 2010 WL 4683950, *2 (S.D.Ohio September 9, 2010) citing Grange at 376. None of the above criteria supporting an entry of default judgment are present here, and the Court will decline to impose any discovery sanction on American Pizza, let alone the most severe sanction available.

IV. Amendments to Complaint

Only Ms. Ward’s first proposed “amendment to complaint” is reflected on the Court’s docket as a motion to amend. The second filing, which is identical in content to the first, is reflected on the docket simply as an amended complaint.

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279 F.R.D. 451, 82 Fed. R. Serv. 3d 333, 2012 U.S. Dist. LEXIS 38779, 2012 WL 1034177, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ward-v-american-pizza-co-ohsd-2012.