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Ademiluyi v. Phillips

United States District Court, D. Nevada

September 17, 2014



C. W. HOFFMAN, Jr., Magistrate Judge.

This matter is before the Court on Plaintiff's Motion to Strike Ex Parte Communications to Chambers on Substantive Issues (#93), filed August 13, 2014; Plaintiff's Motion for Recusal of Magistrate Judge (#94), filed August 14, 2014; Plaintiff's Motion to Amend/Correct (#96), filed August 14, 2014; Plaintiff's Motion to Instruct Counsel to File Motion (#98), filed August 15, 2014; Defendant's Response (#102), filed September 4, 2014; and Plaintiff's Reply (#103), filed August 28, 2014. It is also before the Court on non-party Daryl Parks' Memorandum (#95), filed August 14, 2014.

1. Plaintiff's Motion to Strike (#93)

Recitation of the factual and procedural background of this case is not necessary to resolve the motions currently before the Court, all of which stem from an attempt by non-party T-Mobile to avoid its obligations under the Court's order granting Plaintiff's motion to compel production of certain telephonic records. (#88). The undersigned has spent considerable time reviewing Plaintiff's briefing and agrees with her: the conduct of counsel for T-Mobile in contacting the undersigned's chambers in an attempt to avoid compliance with the Court's order to produce subpoenaed records was improper. Compounding the initial impropriety is counsel for T-Mobile's assertion in an email communication to Plaintiff, sent shortly after the Court entered its order granting Plaintiff's motion to compel (#76), inferring that the undersigned withdrew or stayed the order as a result of the attempted ex parte communication. See Exhibits attached to Pl.'s Mot. (#93). This assertion is incorrect.

Plaintiff is understandably upset. Any litigant in her position would respond precisely as she has in questioning the impartiality of a judge who allegedly withdrew or stayed an order based on an ex parte communication. Plaintiff may rest assured that at no time did the undersigned withdraw, stay, or otherwise alleviate T-Mobile from compliance with the order. That said, counsel for T-Mobile did contact the undersigned's chambers as is indicated in her email. For the record, this was not the first time T-Mobile contacted chambers. Shortly after Plaintiff filed her motion to compel (#76), counsel for T-Mobile contacted chambers requesting that she not be put to the effort of filing a formal response to the motion. Instead, she desired to simply produce all responsive documents in camera and let the undersigned figure out which were responsive and which were not. T-Mobile's counsel was informed that she would not be permitted to deposit the documents in the undersigned's chambers as requested, and that she should file a response to the motion to compel as is the normal course when served with a motion to compel compliance with a Rule 45 subpoena.[1]

Unable or unwilling to bring itself to file a formal response to the motion, T-Mobile submitted a letter to the Court, which was received in the Clerk's office on August 11, 2013. (#89). The letter states, in pertinent part, as follows:

Please accept this letter in lieu of a more formal response to the Plaintiff's Motion to Enforce Subpoenas.... T-Mobile welcomes the court's intervention and guidance concerning the method of delivery of the subpoenaed records.... The records sought in the instant subpoenas belong to a non-party, who has been identified by plaintiff as a potential additional defendant. T-Mobile would prefer to submit the records to the Court for an in camera review to weigh the privacy rights of the non-party against plaintiff's evidential need for the same. However, if the court determines that the records should instead be sent directly to plaintiff via email, T-Mobile will readily abide by the order. It should be noted that the records described in the subpoenas have been compiled and are ready to be produced in any way directed by the court.
See Dkt. (#89). After review of the letter, the Court entered its order granting the motion to compel (#76) and held as follows:
The Court finds good cause to grant Plaintiff's Motion to enforce the subpoenas issued to T-Mobile.... The Court notes that T-Mobile did not raise an objection on behalf of the non-party, but merely expressed a preference as to the required form of production.... IT IS HEREBY ORDERED that Plaintiff's Motion to Enforce Subpoenas Issued to T-Mobile (#76) is granted to the extent that T-Mobile may provide the phone records directly to Plaintiff rather than the Court.

Order (#88).

A couple of days after the order was entered, counsel for T-Mobile contacted chambers a second time and spoke directly with the undersigned. Counsel explained that she had been informed that the non-party whose records had been subpoenaed intended to file an opposition. For the second time, counsel for T-Mobile was instructed to file whatever motion or request for relief she sought in writing on the docket. Though not routine, the Court often gets calls from litigants and attorneys requesting guidance on administrative matters. It is a very rare occurrence, particularly when dealing with licensed counsel, that such inquiries become something more than administrative. In the event they do, they are dealt with in a consistent manner: the inquiring party is informed that the Court does not give out legal advice and any request for relief should be filed and served in compliance with Local and Federal Rules.

Rather than comply with the simple instruction, T-Mobile misstated, in an email to Plaintiff, the nature of the communications, apparently in an effort to avoid the requirement to comply with the order. She also inferred in the email that the undersigned stayed the order during an ex parte communication in order to allow time for resolution of the unfiled opposition. T-Mobile's counsel was incorrect and confused about her obligation to comply with the Court's order. Thus, to the extent it is necessary, the Court will grant Plaintiff's motion to strike the ex parte communication (#93).

2. Plaintiff's Motion to Instruct Counsel to File Motion (#98)

On August 14, 2014, three days after the Court entered its order granting Plaintiff's motion to compel (#76), non-party Daryl Parks filed a response in opposition to the motion. (#95). Plaintiff is correct that the response is untimely. Thus, the Court will strike the filing and require that Mr. Parks file a motion for reconsideration, which accurately sets forth the standards for ...

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