Zhou v. Pittsburg State University

252 F.Supp.2d 1194

Wei-Kang ZHOU, Plaintiff, v. PITTSBURG STATE UNIVERSITY, Defendant.

No. CIV.A.01-2493 KHV.

United States District Court, D. Kansas.

March 24, 2003.

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Mark A. Buchanan, Sanders, Simpson, Fletcher & Smith, L.C., Kansas City, MO, for plaintiff.

Kyle M. Fleming, Garry W. Lassman, Wilbert & Towner, P.A., Pittsburg, PA, for defendant.

MEMORANDUM AND ORDER

VRATIL, District Judge.

Wei-Kang Zhou filed suit against his former employer, Pittsburg State University ("PSU"), for breach of contract and discrimination and retaliation in violation of Title VII, 42 U.S.C. § 2000e et seq. On January 29, 2003, based on plaintiffs failure to attend three scheduled depositions, the Court ordered plaintiff to pay all expenses and attorneys' fees which defendant incurred because of his discovery misconduct. See Memorandum And Order (Doc. # 114) at 11-13. This matter is before the Court on plaintiffs Motion for Relief, Motion For Reconsider, [And] Motion For Sanction (Doc. # 117) filed February 12, 2003; defendant's Motion For Attorney Fees And Memorandum In Support (Doc. # 121) filed February 21, 2003; defendant's Motion For Summary Judgment And Memorandum In Support (Doc. 119) filed February 20, 2003; and plaintiffs Motion For Extension Of Time (Doc. # 130) filed March 6, 2003. For reasons set forth below, the Court sustains defendant's summary judgment motion in part, sustains plaintiffs motion to reconsider in part, overrules plaintiffs motion for sanctions and sustains plaintiffs motion for an extension of time.

I. Plaintiffs Motion For Relief And To Reconsider

A. Legal Standards

The Court has discretion whether to grant a motion to reconsider. See Hancock v. City of Okla. City, 857 F.2d 1394, 1395 (10th Cir.1988). The Court may recognize any one of three grounds justifying reconsideration: an intervening change in controlling law, availability of new evidence, or the need to correct clear error or prevent manifest injustice. See Major v. Benton, 647 F.2d 110, 112 (10th Cir.1981); Burnett v. W. Res., Inc., 929 F.Supp. 1349, 1360 (D.Kan.1996). A motion to reconsider is not a second opportunity for the losing party to make its strongest case, to rehash arguments, or to dress up arguments that previously failed. See Voelkel v. Gen. Motors Corp., 846 F.Supp. 1482, 1483 (D.Kan.), affd, 43 F.3d 1484, 1994 WL 708220 (10th Cir.1994). Such motions are not appropriate if the movant only wants the Court to revisit issues already addressed or to hear new arguments or supporting facts that could have been presented originally. See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir.1991), cert, denied, 506 U.S. 828, 113 S.Ct. 89, 121 L.Ed.2d 51 (1992).

The Court affords a pro se plaintiff some leniency and must liberally construe the complaint. See Oltremari v. Kan. Soc. & Rehab. Servs., 871 F.Supp. 1331, 1333 (D.Kan.1994). While pro se complaints are held to less stringent standards than pleadings drafted by lawyers, pro se litigants must follow the same procedural rules as other litigants. See Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980); Green v. DorreU, 969 F.2d 915, 917 (10th Cir.1992), cert, denied, 507 U.S. 940, 113 S.Ct. 1336, 122 L.Ed.2d 720 (1993). The Court may not assume the role of advocate for a pro se litigant. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).

B. Factual Background

On May 17, 2002, the Court entered a scheduling order which directed that all discovery be commenced or served in time to be completed by October 31, 2002. See Scheduling Order (Doc. # 10) at 3. On September 18, 2002, plaintiff asked the Court to continue the discovery deadline to January 29, 2003. See Motion For Continuing The Discovery Cut-off Date (Doc. # 55). Plaintiff argued that the extension was necessary because he did not receive his EEOC investigation file until September 4, 2002.¹ Based on the fact that eight weeks remained for discovery when plaintiff received the EEOC file, Magistrate Judge David J. Waxse ruled that plaintiff had not shown good cause for a three-month extension of the discovery deadline. See Order (Doc. #69) filed October 9, 2002.

On September 6, 2002, defense counsel noticed plaintiffs deposition for October 1 in Pittsburg, Kansas. See Notice Of Taking Deposition (Doc. # 53) filed September 9, 2002. On September 26, plaintiff faxed a letter to defense counsel, objecting to the location of the deposition. See Exhibit 4 to defendant's Motion To Compel Discovery And Memorandum In Support Thereof (Doc. # 63) filed October 2, 2002. Plaintiff requested that defense counsel take his deposition near Los Angeles, California (where plaintiff resides), and notified counsel that he preferred to communicate by mail instead of telephone. See id. On October 2, defendant filed a motion to compel plaintiff to appear in Kansas for his deposition. On October 30, Judge Waxse held a hearing on defendant's motion but overruled it as moot because plaintiff had agreed to come to Kansas City for his deposition. See Order (Doc. # 78) filed November 1, 2002 at 1. Judge Waxse also extended the discovery deadline from October 31 to November 29. See id. at 2.

Although the place for plaintiffs deposition was thus agreed, the parties could not agree on a date for plaintiffs deposition. Therefore, on November 15, defense counsel noticed plaintiffs deposition for November 26 in Lenexa, Kansas (a suburb of Kansas City). See Notice Of Deposition, attached as Exhibit 5 to defendant's Motion To Dismiss And Memorandum In Support (Doc. # 88) filed December 12, 2002. Plaintiff received the notice by mail on November 18. See Exhibit 6 to Motion To Dismiss (Doc. # 88). On November 20, plaintiff faxed defense counsel a letter stating that he would fly to Kansas City for the deposition, but that three PSU administrators should travel to Kansas City so that plaintiff could take their depositions that same day. See Exhibit EE to plaintiffs Response to Defendant's Motion To Dismiss And Memorandum In Support (Doc. # 95) filed December 17, 2002. Plaintiff did not propose alternative deposition dates and did not indicate how the parties could meet the discovery deadline of November 29 if the depositions did not commence on November 26. See id. On November 25, plaintiff faxed to defense counsel his formal response to the deposition notice. See Exhibit FF to plaintiffs Response to Defendant's Motion To Dismiss And Memorandum In Support (Doc. #95) filed December 17, 2002. In that response, plaintiff stated that he would not appear in Kansas City for his deposition on November 26 because defendant had not agreed to produce the three PSU administrators in Kansas City for depositions on the same day. Defense counsel was traveling to Kansas City on November 25, so he did not receive plaintiffs fax. Therefore, on November 26, he appeared for plaintiffs deposition. Plaintiff, as promised, did not appear.

On November 29, plaintiff filed a motion to compel and extend the discovery deadline. See plaintiffs Motion To Compel And Motion For Continuing The Discovery Cutoff Date (Doc. #83). Plaintiff asked the Court to (1) require PSU administrators to appear in Kansas City for depositions; and (2) extend the discovery deadline to January 13, 2003. See id. at 811.²

On December 11, 2002, Judge Waxse held a pretrial conference which addressed plaintiffs motion to compel and the preparation of a pretrial order.³ Judge Waxse overruled plaintiffs motion to require PSU administrators to be deposed in Kansas City, but he extended the discovery deadline to December 26. See Order (Doc. # 90) filed December 12, 2002. Immediately after the pretrial conference on December 11, defense counsel called plaintiff and talked to him briefly about sending a fax.⁴ See Exhibit 1 to defendant's Reply To Plaintiff's Response to Defendant's Supplemental Memorandum in Support Of Motion To Dismiss (Doc. # 111) filed January 14, 2003. Later on December 11, defense counsel sent plaintiff a letter, asking plaintiff to contact him so that they could schedule dates for plaintiffs deposition in Kansas City and for depositions of PSU administrators in Pittsburg, Kansas. See Exhibit 1 to defendant's Reply To Plaintiffs Response And Supplemental Memorandum In Support Of Motion To Dismiss (Doc. # 105) filed December 31, 2002. On December 16, plaintiff faxed a letter to defense counsel explaining that he would not respond to defendant's request because he did not yet have a copy of Judge Waxse's order or the district court's order on his appeal of Judge Waxse's order. See Exhibit 1 to plaintiffs Response To Defendant's Supplemental Memorandum In Support Of Motion To Dismiss (Doc. # 108) filed January 8, 2003. On December 16, defense counsel noticed plaintiffs deposition for December 23.⁵ See Notice Of Deposition, attached as Exhibit 2 to defendant's Reply To Plaintiffs Response And Supplemental Memorandum In Support Of Motion To Dismiss (Doc. # 105) filed December 31, 2002. Defense counsel sent the deposition notice to plaintiff by certified mail. The U.S. Postal Service attempted to deliver that notice to plaintiff on December 19, but plaintiff was not at his residence. The Postal Service left a notice which stated that plaintiff could pick up a certified letter from PSU after 9:00 a.m. on December 20.

On December 19, this Court affirmed Judge Waxse's rulings on plaintiffs motion to compel. See Memorandum & Order (Doc. # 97). As to the depositions of PSU administrators, the Court stated:

Judge Waxse ordered that any depositions of PSU administrators must occur in Pittsburg, Kansas, where they work. Plaintiff argues that because he resides in Los Angeles, California and defendant has a Kansas City satellite location which is close to a major airport, the Court should require PSU administrators to appear in Kansas City. See Motion For...