Parson v. Farley

352 F.Supp.3d 1141

Carl PARSON, Plaintiff,

v.Don FARLEY, Defendant.

Case No. 16-CV-00423-JED-JFJ

United States District Court, N.D. Oklahoma.

Signed November 2, 2018

Wilfred K. Wright, Jr., William R. Higgins, Higgins Law PC, Claremore, Ok, for Plaintiff.

Don Farley, Sapulpa, OK, pro se.

OPINION AND ORDER

JODI F. JAYNE, MAGISTRATE JUDGE

Before the Court is the Motion of Eugene Volokh ("Volokh") (1) to Intervene, (2) Unseal Record Documents, (3) to File Via CM/ECF, and (4) to Consider this Motion on an Expedited Basis ("Motion to Intervene and Unseal") (ECF No. 58), which was referred by United States District Judge John Dowdell.

For reasons explained below, the Court: (1) grants Volokh's motion to intervene for the limited purpose of requesting access to sealed documents pursuant to Federal Rule of Civil Procedure 24(b) ; (2) grants Volokh's motion to unseal all sealed documents in this case; (3) grants Volokh's motion to file documents electronically; and (4) denies Volokh's request for expedited consideration.

I. Magistrate Judge's Authority to Grant Motion to Intervene

"The jurisdiction and powers of magistrates are governed by 28 U.S.C. § 636, and limited by the Constitution, U.S. Const. art. III, § 1." Ocelot Oil Corp. v. Sparrow Indus. , 847 F.2d 1458, 1461 (10th Cir. 1988). Magistrate judges may "hear and determine any pretrial matters pending before the court, save for eight excepted motions," which are generally referred to as "dispositive motions." Id. Magistrate judges may issue orders on non-dispositive pretrial matters, which are reviewed for clear error. Id. Magistrate judges must issue proposed findings and recommendations on dispositive matters, which are reviewed de novo. See id. ; 28 U.S.C. § 636(b)(1)(A)-(C) ; Fed. R. Civ. P. 72 (reflecting division in § 636(b) between non-dispositive and dispositive matters).

Motions to intervene are not expressly excepted from a magistrate judge's authority in § 636(b)(1)(A), but that does not end the inquiry. Under Tenth Circuit law, even "motions not designated on their face as one of those excepted in subsection (A) are nevertheless to be treated as such a motion when they have an identical effect." Ocelot Oil Corp. , 847 F.2d at 1462 (explaining that magistrate judge's order striking pleadings as a discovery sanction had the effect of an involuntary dismissal, rendering it "beyond the power of a magistrate to order" and subject to de novo review); 12 Charles A. Wright et al., Federal Practice & Procedure § 3068.2 (2d ed. 2018) (explaining that Tenth Circuit has adopted a "textured approach [that] permits a more sensible determination when de novo review should be required than does a jurisprudence of labels").

In this case, granting Volokh's request to intervene for the limited purpose of seeking public access to court documents does not have any dispositive effect on the parties or claims, and the Court may rule on this non-dispositive matter by Order. See Day v. Sebelius , 227 F.R.D. 668, 671 (D. Kan. 2005) ("As a matter of law, an order granting leave to intervene is non-dispositive.") (citing United States v. Certain Real Prop. & Premises Known as 1344 Ridge Rd., Laurel Hollow, Syosset, N.Y. , 751 F.Supp. 1060, 1061 (E.D.N.Y. 1989) ). The limited purpose of the requested intervention in this case also supports classification as "non-dispositive." Further, the related motion to unseal, which is the object of Volokh's intervention, also presents a non-dispositive, pretrial matter that can be ruled on by Order. Therefore, the Court issues this Opinion and Order disposing of all issues presented by the Motion to Intervene and Unseal pursuant to Rule 72(a).¹

II. Factual Background and Procedural History

Sometime prior to April 16, 2016, Plaintiff Carl Parson ("Parson") served as administrator of the estate of Defendant Don Farley's ("Farley") brother and sued Farley to recover property allegedly taken by Farley from his brother's estate. On April 16, 2016, Farley allegedly sent a letter containing false and defamatory statements about Parson to the Inola Chamber of Commerce (the "Letter").² When the Letter was sent, Parson was a candidate for the Oklahoma House of Representatives. On May 23, 2016, Parson filed a Petition in Rogers County, Oklahoma, asserting claims against Farley for libel and false light invasion of privacy, seeking money damages, along with temporary and permanent injunctive relief. Parson alleges that Farley published the Letter to the Inola Chamber of Commerce out of "hatred, ill will, malice, and only with the desire to intentionally injury [Parson] as a business owner." ECF No. 2-1 at ¶ 17.

When filing the Petition, Plaintiff moved to file the Letter under seal pursuant to Oklahoma law governing sealed court records. See Okla. Stat. tit. 51, § 24A.30 ("If confidentiality is not required by statute, the court may seal a record or portion of a record only if a compelling privacy interest exists which outweighs the public's interest in the record."). On May 23, 2016, the state court entered an Order to Seal a Portion of the Record with Findings of Fact and Conclusions of Law ("Sealing Order") pursuant to Okla. Stat. tit. 51, § 24A.30. The court found in relevant part: (1) the Letter contains words that "without hearing on the merits tend to be actionable by themselves or are opprobrious and that the Letter clearly refers to the Plaintiff"; (2) "additional publication by filing in the public record of the Letter ... would only serve to further harm the Plaintiff's right to privacy"; and (3) "an order can be narrowly tailored ... to keep that portion of the record sealed and prevent irreparable harm to the Plaintiff ... until such time as the matter can be heard on its merits or further order of this Court." ECF No. 7-1.

Farley removed the case to this Court based on diversity jurisdiction and filed a motion to file documents under seal in accordance with the Sealing Order, which Judge Dowdell granted by minute order. ECF No. 8. On July 28, 2016, Farley filed an Answer (ECF No. 10), a Motion to Dismiss ("7/28/16 Motion to Dismiss") (ECF No. 11), and a sealed version of the 7/28/16 Motion to Dismiss, which attaches the Letter (ECF No. 9). Parson filed a Motion to Remand two days later. Judge Dowdell entered an Opinion and Order that (1) denied Parson's Motion to Remand on grounds that Farley is a citizen of Alabama; and (2) denied Farley's 7/28/16 Motion to Dismiss on grounds that Parson's allegations are sufficient to "plausibly assert actual malice" for purposes of the standard in New York Times v. Sullivan , 376 U.S. 254, 279-282, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). ECF No. 26 at 4-5. After his attorneys withdrew from the case, Farley filed a notice of intent to proceed pro se and has defended the lawsuit pro se since November 9, 2017.

On January 12, 2018, several months before the dispositive motion deadline, Farley filed a pro se motion seeking dismissal, summary judgment, or, alternatively, an order to compel Parson to respond to Farley's discovery requests ("1/12/18 Dispositive Motion"). ECF Nos. 46, 47. Because the 1/12/18 Dispositive Motion referenced the contents of the Letter, Farley sought and received permission to file it under seal. ECF Nos. 48, 49. Parson publicly responded to the 1/12/18 Dispositive Motion (ECF No. 50), but he filed his attached affidavit under seal. ECF No. 51. The undersigned denied Farley's alternative request to compel further discovery responses, (see ECF No. 56), and the remaining aspects of the 1/12/18 Dispositive Motion are pending.

On June 5, 2017, proposed intervenor Volokh, who appears pro se, moved to permissively intervene pursuant to Federal Rule of Civil Procedure 24(b). Volokh is a law professor "who writes for the Volokh Conspiracy, a prominent legal blog hosted by Reason Magazine" and who "would like to have access to the full record in this case so that both he and members of the public may better understand" the issues. ECF No. 58 at 2. Volokh moves the Court to unseal all sealed documents and provide public access to the Letter and related filings. Id. at 2-3. In addition to requesting intervention and unsealing of documents, Volokh seeks expedited consideration of his motion and permission to file future documents via the Court's electronic filing system.

Parson objects to the Motion to Intervene and Unseal, while Farley does not object. In his response, Parson raises the following procedural and substantive arguments: (1) the Motion to Intervene and Unseal is untimely and prejudicial to Parson's rights (ECF No. 60 at 2-5); (2) Volokh's interests are adequately represented by Farley (id. at 5-8); (3) the Sealing Order controls the outcome of Volokh's pending motion to unseal (id. at 8-9); and (4) Parson's privacy interests in the contents of the Letter outweigh the presumption of public access (id. at 9-14). The Court addresses all arguments but organizes this Opinion and Order into two sections addressing the motion to intervene and motion to unseal.

III. Motion to Intervene

For reasons explained below, Volokh has demonstrated Article III standing and has satisfied Rule 24(b)'s procedural requirements.

A. Volokh Has Independent Article III Standing

Article III standing is a threshold issue that must be considered at all stages of the proceedings. See City of Colo. Springs v. Climax Molybdenum Co. , 587 F.3d 1071, 1078 (10th Cir. 2009) (addressing intervenor's standing as a threshold question even though not raised by parties or district court). "Any party, whether original or intervening, that seeks relief from a federal court must have standing to pursue its claims." Id. (quotations omitted). This Court recently held that it was "not persuaded to overlook or dispense with standing requirements" simply because a party sought intervention for the purpose of seeking public access to protected documents. Young v. Glanz , No. 13-CV-315-JED-JFJ, 2018 WL 1588026, at *7 (N.D. Okla. March 31, 2018) ;...