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Newman v. Marshall University Police Department

United States District Court, S.D. West Virginia, Huntington Division

December 17, 2019

KATINA VON NEWMAN, Plaintiff,
v.
MARSHALL UNIVERSITY POLICE DEPARTMENT, THE CITY OF HUNTINGTON, AND THE HUNTINGTON POLICE DEPARTMENT, Defendants.

          ORDER

          Omar J. Aboulhosn United States Magistrate Judge

         Pending before the Court is Plaintiff's Motion/Request of the Court to Abstain from Rendering any Future Claim of the Plaintiff Moot to Allow for Further Discovery as to the Video and Body Camera Footage (ECF No. 73) filed on October 25, 2019. Because the Court's entry of the Scheduling Order provides for discovery requests to be completed by July 15, 2020 and all depositions by September 1, 2020, Plaintiff's Motion is hereby GRANTED.

         Also pending before the Court is Plaintiff's Motion for Sanctions and Request for a Hearing filed on October 25, 2019. (ECF No. 73) Specifically, Plaintiff seeks sanctions against Defendants The City of Huntington and the Huntington Police Department (hereinafter referred to as “the City” and “HPD”) for filing a “false” pleading in response to this Court's July 25, 2019 Order directing Defendants to provide to the Court and to Plaintiff copies of any dash cam or body cam video concerning Plaintiff's arrest.[1] Accordingly, on December 2, 2019, came the parties for a hearing concerning Plaintiff's Motion for Sanctions (ECF No. 73).[2] Appearing on behalf of the Plaintiff was counsel Andrew D. Byrd, Esq., and appearing on behalf of the Defendants City and HPD were counsel Steven K. Nord, Esq. and David Lewis Shuman, Jr., Esq. and on behalf of Defendant Marshall University Police Department was counsel Eric Salyers, Esq.

         Background and Procedural History [3]

         Plaintiff filed her Complaint on November 28, 2018 in the Circuit Court of Cabell County, West Virginia alleging a variety of “color of law” crimes as well as conspiracy against Defendants that began on December 4, 2016 when HPD Officer Bradley Koeppen “shook” her breast and “grabbed” her vagina during her arrest. (ECF No. 1-1) Plaintiff alleged that on March 13, 2017, she went to HPD to file sexual assault charges against the officer and was interviewed by Lt. Larry Zimmerman, however, despite phone calls to both the HPD Chief and the City's Mayor Steve Williams, her complaint went nowhere. (Id.) Plaintiff further alleged that for the past two years she had been “stalked and harassed” by City employees and Defendant Marshall University Police Department staff, which included “false charges” being filed against her by members of Defendant Marshall University Police Department that were eventually dismissed because the officer failed to appear in court. (Id.)

         On January 29, 2019, the City and HPD filed their Notice of Removal along with an attachment of the civil action filed in the Circuit Court of Cabell County, West Virginia and their Answer. (ECF Nos. 1, 1-1, 3)

         On February 1, 2019, the undersigned entered a Scheduling Order directing that discovery be completed by May 1, 2019. (ECF No. 5)

         On March 28, 2019, the City and HPD filed their Notice to take Plaintiff's deposition on April 16, 2019 (ECF No. 23); later, on April 12, 2019, an Amended Notice indicated Plaintiff's deposition would be taken on April 29, 2019 (ECF No. 26). In response, Plaintiff filed a “denial” to have her deposition taken, indicating that Defendants could rely upon her written discovery responses and also filed a motion to strike the Amended Notice. (ECF Nos. 27, 28) Following a hearing on the matter, the Court entered an Amended Scheduling Order directing Plaintiff to cooperate with Defendants' discovery requests and extended the discovery deadline to July 1, 2019. (ECF No. 32)

         On April 23, 2019, the City and HPD filed their certificate of service for their first set of interrogatories and requests for production of documents to Plaintiff. (ECF No. 33) On June 7, 2019, the City and HPD filed their motion to compel Plaintiff to respond to their initial discovery requests and to appear for her deposition. (ECF No. 34) This Court granted the motion and again directed Plaintiff to respond to discovery and to appear for her deposition.[4] (ECF No. 35)

         On July 25, 2019, during a telephone conference on the record concerning the City's and HPD's motion to dismiss for failure to prosecute, the Court revisited the problems concerning Plaintiff's failure to respond to the City's and HPD's requests for production of documents and to provide a date for her deposition; accordingly, the Court ordered a specific date for Plaintiff to appear for her deposition and to bring with her any materials responsive to the requests for production, including video or audio recordings. (ECF No. 49) The Court also ordered the City and HPD to produce copies of any dash cam or body cam video footage. (Id.)[5]

         The Argument for Sanctions

         As an initial matter, the undersigned has previously expressed major misgivings about the City and HPD's Notice Regarding Video Footage and Body Camera Footage (ECF No. 54) during the hearing held on August 20, 2019.[6] In the Order following the hearing, the Court observed that the initial Notice was false, and only after Plaintiff provided her own video evidence during her deposition, did Defendants change the narrative as to why there was no video recording from Plaintiff's arrest. (See ECF Nos. 61, 61-1) Because of the inconsistent positions taken by the City and HPD, the Court noted that the initial Notice contained a misrepresentation, which created more questions with no explanation for the inconsistencies, [7] the Court was without sufficient information to determine the appropriate sanctions. Nevertheless, as a minimum sanction, the Court deemed it necessary that counsel be appointed to assist Plaintiff in this proceeding (See ECF No. 63 at 4).

         As stated supra, Plaintiff specifically requests sanctions against the City and HPD for filing the Notice Regarding Video Footage and Body Camera Footage because it contained false and misleading information, and when these Defendants filed their Supplemental Notice, they did not explain why the initial Notice contained false and misleading information. Plaintiff argues that this Court's July 25, 2019 Order was a discovery order insofar as it directed Defendants to provide video evidence of Plaintiff's arrest pursuant to her request, and by filing a false pleading, trigger the available sanctions under Rule 37 of the Federal Rules of Civil Procedure.

         First, Plaintiff asserts that Lt. Zimmerman's affidavit, filed in support of the Supplemental Notice by these Defendants, does nothing to explain what the “previous misunderstanding related to this issue”[8] that caused these Defendants to file the initial Notice, and this lack of explanation can only be construed as bad faith on the part of Defendant HPD. Second, Plaintiff argues that by filing the Supplemental Notice, Plaintiff has been prejudiced by having to go through the onerous process of obtaining her phone records as well as will have to conduct specific discovery pertaining to Defendant HPD's retention of video and body camera footage. In short, Plaintiff will incur additional expenses due to these Defendants' misrepresentations. Third, Plaintiff contends that Defendant HPD was to conduct a proper evidentiary investigation in response to this Court' Order to produce the video and body camera footage but instead submitted a false pleading; this noncompliance with the Court's Order requires deterrence, as it undermines this Court's authority as well as the Federal Rules of ...


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