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Ramsey v. Broy

March 24, 2010

BRIAN RAMSEY, PLAINTIFF,
v.
CHARLES (CHUCK) BROY; MARK LAWSON; JASON SERRILS; JAMES WRIGHT; THOMAS CUNDIFF; KYLE RINELLA; REBECCA CROUCH; JOSH DUNNIGAN; MATTHEW MCVEY; SHAWN LADD; AND JOHN DOE, DEFENDANTS.



The opinion of the court was delivered by: Reagan, District Judge

MEMORANDUM AND ORDER

Now pending before the Court is defendants Shawn Ladd and Mark Lawson's motion for sanctions against plaintiff Brian Ramsey (Doc. 133). The motion which alleges plaintiff Ramsey engaged in "litigant misconduct and witness tampering" by attempting to bribe a neighbor in exchange for fabricated supporting testimony, has been fully briefed (Docs. 150, 151) and was submitted on an evidentiary hearing and oral argument (see Doc. 165).

Three related issues require attention before the Court addresses the sanctions motion.

Motion for Extension of Time to Depose

The first is Ramsey's motion for extension of time to cross-examine John Yates (Doc. 169; see also Reply, Doc. 171), which is opposed (Docs. 170, 172) and will be denied.

First some background regarding the circumstances of this motion. After the hearing on the motion for sanctions on December 17, 2009, the Court realized that Ramsey deserved an opportunity to accumulate further evidence that would round out the record for the Court's decision. It came to this conclusion due to the in-hearing testimony of Charles Yates that his brother John Gilbert Yates may have corroborating information regarding the alleged discussion between Charles and Ramsey that was the subject of the motion for sanctions. Additionally, the moving parties had filed an additional affidavit relatively close to the date of the motion hearing of a former litigant: Michelle Barnes. Given that the requested sanction-dismissal-is an extraordinary and extremely harsh sanction, the Court decided to give Ramsey ample time either to depose John Gilbert Yates and Michelle Barnes or to file their affidavits. The Court reserved ruling on the motion and gave the parties 60 days (to February 15, 2010) to supplement the record. In that same Order, given the allegations of witness tampering, the Court indicated:

However, given the serious nature of the allegations of the defendants against Ramsey coupled with the testimony given in open court today, the Court finds that a prophylactic measure is appropriate for the Court to fairly and accurately decide this motion.

The Court accordingly ORDERS Plaintiff Brian Ramsey to refrain from contacting Charles Yates, John Gilbert Yates or Michelle Barnes in any way directly or indirectly during the Court's consideration of the Defendants' motion for sanctions. (Doc. 166 at 1--2.) This directive was given both in writing and from the bench in Ramsey's presence at the close of the hearing.

Despite the ample time to gather additional evidence for the benefit of Ramsey, counsel for the parties agreed to take the depositions on February 11, 2010, a scant four days before the Court requested that the depositions be submitted. Agreeing to this date proved unfortunate for Ramsey's counsel; he was trying a case that started at the end of January that lasted longer than he anticipated-all the way to the deposition date of February 11. That left counsel for Ramsey with a few options to cure his poor planning. He could have asked this Court for an extension, explaining his situation. Alternatively, he could have asked the court before which he was trying the case for a brief continuance, explaining that one of his clients was facing a motion for sanction of dismissal and that it was crucial for him to take this deposition. He chose another avenue, sending a substitute attorney to conduct the deposition of John Gilbert Yates and Michelle Barnes which are now filed with the Court.

Even though he had ample time to complete the record in this case, Ramsey has come forward asking for an additional opportunity to examine John Yates claiming he did not have an opportunity to depose John Yates in the first place. This claim is incorrect, as the motion papers of the parties and the depositions themselves indicate the substitute attorney was present at both. The alternate attorney, acting on instructions of Ramsey's counsel, opted to waive cross-examination of John Yates. This election not to cross-examine is not a valid reason to reopen the record and burden a non-party witness and defense counsel with a second deposition. That portion of the motion requesting the re-taking of John Yates' deposition (Doc. 169) is DENIED.

Motion for Leave to File Additional Briefing and Motion to Strike

The second related matter is Ramsey's motion for leave to file additional briefing (Docs. 169, 175). He has presently filed additional briefing without the Court's leave (Doc. 173), which is why Ladd and Lawson have jointly moved to strike the briefing (Doc. 174). On its face, the defendants' motion has merit. The motion for sanctions was filed on October 29, 2009. Ramsey filed a response on November 27, 2009 (Doc. 150). A hearing was then held on the motion with testimony, cross-examination and argument. Considering that the time to file a response is well overdue and that the motion is fully briefed and argued, additional response would, on its face, be unwarranted.

Since Ramsey lacks compelling reasons to file additional briefing, his briefing will be stricken. Ramsey's additional briefing and his motion for leave to file are premised on the incorrect assumption that the Court intended in its post-hearing Order for the parties to submit further argument. The motion was fully briefed and argued, and the Court in its post-hearing Order did not authorize nor need additional briefing or argument. Instead, the Court set a deadline of February 15 "for the parties to supplement the record of the motion for sanctions by submitting the counter- affidavit or deposition of Michelle Barnes and/or the deposition of John Gilbert Yates on this matter." (Doc. 166 at 1.) This leave to file additional evidence was for Ramsey's benefit and, as noted above, he took advantage of that leave of the Court, albeit in a mishandled way. As the depositions in question are now before the Court, and as Ramsey has had ample opportunity to brief and argue the motion as well as submit evidence, there is no reason for Ramsey to have submitted additional briefing, much less any reason for Ramsey to have submitted the affidavit of a witness who already testified at the motion hearing and was not one of the two witnesses that Ramsey was supposed to have deposed or secured affidavits in the 60-day period. Because the Court already has Ramsey's cross-examined and sworn testimony on what transpired between him and Yates, any attempt to modify that testimony or to create an issue sufficient for further hearing via affidavit is misplaced because "[a]s a general rule, the law of this circuit does not ...


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