Chelli v. Baca

1

Marlene E. Chelli, appellant, v. Buffy Baca et al, appellees.

Nos. A-20-892, A-21-052

Court of Appeals of Nebraska

January 25, 2022

THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeals from the District Court for Douglas County: James t Gleason, Judge.

Marlene E. Chelli, pro se.

Thomas E. Horgan and Michael L. Moran, of Engles, Ketcham, Olson & Keith, P.C., for appellees.

Moore Bishop, and Arterburn, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Bishop, Judge.

I. INTRODUCTION

Marlene E. Chelli appeals from the Douglas County District Court's dismissal of her action against Legacy Primary School, LLC, and its owners/administrators, Buffy Baca and Kelly Pedersen (collectively the school). The district court dismissed Chelli's action with prejudice as a sanction for her noncompliance with the court's prior order directing Chelli to respond "fully and properly" to the school's discovery requests within 20 days. Finding no abuse of discretion, we affirm.

II. BACKGROUND

1. District Court Proceedings

Chelli, pro se, filed an action in August 2019, individually and on behalf of her two minor children, in the district court against the school; an amended complaint was filed in December.

Chelli made numerous allegations, essentially claiming the school denied her access to her two children (approximately ages 10 and 11), denied her access to the children's school records and activities, denied her requests regarding medication for the children, and interfered with "the proper" education of the children and their relationship with her. She claimed the school frustrated her rights as a parent and publicly attempted to humiliate her and demean her in the presence of her children. She alleged that such actions by the school violated various constitutional rights. Chelli requested a variety of relief, including various findings against the school; tuition reimbursement; payment for tutors, therapists, physicians, and speech specialists as needed; suspending Baca's and Pedersen's licenses; costs of the action; providing to Chelli the children's educational and medical records in the school's possession; and to "stop denigrating the character of the Plaintiffs, to stop stalking, harassing and interfering with the Plaintiff['s] civil rights as a mother and U.S. citizen in with [sic] the relation to her minor children and also to stop interfering with her minor children['s] education[al] rights, medical rights and their rights in general and their relationship with their mother."

In an answer filed in January 2020, the school denied Chelli's allegations, and also pointed out that the children's father had sole legal and physical custody of the children and had final authority on matters concerning the children's education pursuant to a Douglas County District Court order. The school also affirmatively stated that due to Chelli's behavior, such as "losing control, outbursts of temper and threatening behavior towards members of the staff of Legacy School, [Chelli] has been issued a ban and bar letter, from the private property of the Legacy School." The school requested that Chelli's amended complaint be dismissed because it was frivolous and made in bad faith pursuant to Neb. Rev. Stat. § 25-824 (Reissue 2016).

A scheduling order was entered by the district court on May 15, 2020. It directed that discovery be completed by August 10, and that by September 9, depositions were to be completed and the parties were to be ready for trial. The order further indicated that a status conference would be scheduled by the court prior to setting a trial date.

On August 6, 2020, the school filed a motion for a protective order indicating that "in the course of discovery" the school anticipated that confidential information would be requested and produced, including documents that would contain private or personally identifiable information related to minor children, and that "a protective order is in the interests of justice." A notice of hearing was included with the motion setting the matter to be heard on August 11 at 11:30 a.m. On August 7, Chelli filed a document titled "Plaintiff's Objections," which objected to answering "the late request of discovery" made by the school on August 4 which she received on August 7; these included the school's interrogatories, request for production of documents, and request for admissions. She also objected to any continuance regarding discovery and to the issuance of any protective orders.

On August 11, 2020, at 10:09 a.m., just prior to the hearing scheduled on the school's motion for protective order, Chelli filed via facsimile a "Motion for further expedite reliefs, Protective orders in Plaintiff's favor and AFFIDAVIT in support of Plaintiff's request, complaints, and objections." In that document, Chelli represented that there was a pending paternity case in Douglas County and that "these matters are private." She reiterated her complaints about the school and indicated she had served interrogatories and requested production of documents from the school on July 9 and "they refused to answer or produce important documents for me like my minor children['s] educational records to this present day." She also alleged that the school's "request for discoveries was very late" and there was "no time left for [her to] properly review or answer the documents," and that it would take her "lots of extra time out of work" and "lots of extra time and money." No notice of hearing was included with Chelli's motion.

The school's motion for a protective order was taken up at the hearing scheduled on August 11, 2020. The school argued that there was "personally-identifying information" regarding Chelli's children which the school wanted to protect. The school pointed out that the children's father had "sole custody" and the father did not want "any of this information leaving this litigation." The court asked Chelli about the status of the children's custody and indicated it needed to review that court file; the hearing was then continued.

On August 24, 2020, the school filed a "Motion to Compel," in which it represented that discovery requests were served on Chelli on August 4 and on August 7 Chelli "served boilerplate, meritless, and nonsensical objections to [the school's] discovery requests and improperly filed these objections with the Court." The school further represented that on August 11, it sent a "good faith discovery letter" to Chelli "requesting clarifications, supplements, and reasonings for [her] meritless objections." No response to that letter had been received from Chelli. The school added that Chelli had "refused to proffer any reasoning for the withholding of documentation and information requested by [the school], provide any rationalization for objections to [the school's] discovery requests, and/or comply with the Nebraska Rules of Discovery." The school asked the court to enter an order compelling Chelli "to fully and properly respond" to its discovery requests. A "Notice of Hearing" was included in the motion indicating the matter would be heard on August 25 at 1:30 p.m.

On August 25, 2020, at 11:32 a.m., a couple hours before the scheduled hearing on the school's motion to compel, Chelli filed a "Motion to Compel and Supporting Affidavit and Objections." Chelli represented that she served discovery on the school on July 9, and that on August 6, the school responded with "their objections and their refusal to answer and produce documents that legally belongs [sic] to the Plaintiffs." Chelli further claimed that on August 24, she had served the school with her objections and answers to their requests, and that the school was "requesting documents under their possession . . . and requesting information and documents they are fully aware of and information and documents in violation of privacy laws." Chelli requested an order compelling the school to comply with her discovery requests. There was no notice of hearing included with Chelli's motion.

On August 25, 2020, at 1:30 p.m., the district court indicated they were "going to pick up where we left off" at the previous hearing. It noted Chelli's motion for expedited relief and the school's request for a protective order; the school indicated there was also a motion pending (not in our record) seeking to continue discovery deadlines because the school's prior counsel had withdrawn "about a month ago." The court stated it had reviewed the "whole file" of the proceedings in Douglas County case No. CI 14-130, and it concluded that the modification order entered in that case on May 8, 2018, prevented the present action from being prosecuted by Chelli on behalf of the minor children. However, the court added that Chelli "has a cause of action or at least a colorable claim against the school for information relating to her children. So we're going to proceed on that basis." The court confirmed with Chelli that she would keep any responses to her requests for discovery confidential, and then indicated it would issue the protective order requested by the school. The court then asked Chelli, "Why are you here?" Chelli responded, "Because [the school is] refusing to give me those documents." The court asked why Chelli was not addressing this in "the other lawsuit," and Chelli responded, "Because the other judge says you're going to deal with this lawsuit." The court stated that it was going to confer with the other judge, "and if appropriate" would ask the other judge "to take this case and deal with it all. It's the same thing." The court added:

I read the other file. I know what's going on in the other file and I don't like the

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