Protective Order or Stay?

Protective Order or Stay?

The Court allowed the Attorney General Office Motion for a Protective Order. The Order stopped the judicial proceedings of Discovery until the Attorney General Office Motion to Dismiss is ruled upon. The Hearing on the Motion to Dismiss is scheduled for Oct. 12, 2017.

In the Court Order allowing the delay of judicial proceedings the Judge made a curious comment of "Protective Order and/or Stay".

The reason for this notation is that the Attorney General Office Motion for a Protective Order was not quite right. A Protective Order in this case would have been to prevent the disclosure of sensitive information. Since the Plaintiff was asking for his own personnel record, no  sensitive information would have been disclosed to the Plaintiff.

The Judge in his order corrected the Attorney General Office Motion for a Protective Order by changing it into a Motion to Stay Judicial Proceeding in the Order to Allow.

The Attorney General Office Motion for a Protective Order could have been denied for failing to state a claim that the Court could rule. However , a kind Judge fixed the problem for the Attorney General.

I supposed the Judge found the case interesting and wanted to hear Oral Arguments.

The AG Opposition Memo to Plaintiff's Motion to Compel Documents

                    

The AG Opposition Memo to Plaintiff's Motion to Compel Documents

The AG office Opposition Memo consists largely of a claim that the Court has no jurisdiction and that the Plaintiff has no claim. Tje AG is asking the Court to rule on these issue before the Court compels the production of document. 

Although anything can happen in Court, the Statute gives the Court jurisdiction. It seems that the AG Office is playing a delay game.

The AG Opposition Memo is seen below.

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 DEFENDANTS' OPPOSITION TO PLAINTIFF GORDON T. DAVIS' MOTION TO COMPEL DEFENDANTS TO PRODUCE DOCUMENTS

 Defendants, the Massachusetts Human Resources Division ("HRD") and Office of the Attorney General, hereby oppose Plaintiff Gordon T. Davis's motion to compel Defendants to produce documents ("PL's Mot. Compel"), for the same reasons previously stated by the Defendants in their motion for a protective order and/or to stay discovery pending this Court's resolution of their motion to dismiss. See Defs.' Mot. Protective Order and/or to Stay Discovery Pending Resolution of Mot. Dismiss (attached as Exhibit 5 to PL's Mot. Compel). Defendants filed their motion to dismiss with this Court on August 21, 2017. See Docket nos. 8-8.3. That motion addresses jurisdictional bars to Mr. Davis's claims, as well as significant pleading deficiencies. In these circumstances, where a dispositive motion is pending that asserts, as a threshold matter, that the Court lacks jurisdiction and at least one of the state defendants is immune from suit, a protective order is necessary to shield Defendants from the undue burden and expense of responding to Plaintiffs discovery requests. PL's Mot. Compel, Ex. 5. "Without 1 jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause." Fortunato v. Akebia Therapeutics, Inc., 34 Mass, L. Rptr. 78, 2017 WL 716356, at *4 (Mass. Super. Ct. Feb. 21, 2017) (Salinger, J.) (quoting Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94 (1998)). In addition, Mr. Davis asserts, without any explanation or support, that the documents that he has requested the Defendants to produce in this matter "may be dispositive" in his pending wrongful termination suit against the Massachusetts Commission Against Discrimination, which is proceeding to trial, as well as in a union grievance proceeding. PL's Mot. Compel at 2-3; see also Davis v. Massachusetts Comm'n Against Discrimination, No. 1185CV00036 (Worcester Sup.). To the extent that Mr. Davis seeks documents from Defendants that are purportedly germane to another pending lawsuit, much less "dispositive" of that suit, the appropriate avenue to obtain those documents was through the discovery proceedings that were afforded to him in that matter, not through this separate action that Mr. Davis initiated against Defendants on the eve of trial in his wrongful termination suit. See Mass. R. Civ. P. 45 (specifying procedures for seeking discovery from non-parties to a case); Mass. R. Civ. P. 26 (permitting discovery of any non-privileged material that is relevant to the pending action). Thus, this action appears to be a belated and improper attempt to obtain discovery that Mr. Davis either failed to pursue in his wrongful termination suit or was not entitled to receive. Accordingly, for these reasons and the reasons stated in Defendants' motion for a protective order and/or to stay discovery pending resolution of the motion to dismiss, the Defendants request that this Court deny Mr. Davis's motion to compel the production of documents.

RULE 12 HEARING ON AG MOTION TO DISMISS

Rule 12 Hearing


The Court has ordered a Rule 12 Hearing for the Attorney General's Motion to Dismiss the complaint. A Rule 12 Hearing is routine when there is a Motion to Dismiss. In effect it means that the Judge is leaning one way or the other and wants oral arguments to reinforce his first impressions.

Both side will be able to present evidence and arguments supporting their assertions. 

Below is additional information on Rule 12. The Attorney General is asserting that the Court of no Jurisdiction based on Sovereign Immunity and that the Plaintiff has not made a claim to which the Court can provide relief.

Civil Procedure Rule 12: Defenses and Objections - When and How Presented - By Pleading or Motion - Motion for Judgment on Pleadings

(a) When Presented.

(1) After service upon him of any pleading requiring a responsive pleading, a party shall serve such responsive pleading within 20 days unless otherwise directed by order of the court.

(2) The service of a motion permitted under this rule alters this period of time as follows, unless a different time is fixed by order of the court: (i) if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within 10 days after notice of the court's action; (ii) if the court grants a motion for a more definite statement, the responsive pleading shall be served within 10 days after the service of the more definite statement.

(b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:

(1) Lack of jurisdiction over the subject matter;

(2) Lack of jurisdiction over the person;

(3) Improper venue;

(4) Insufficiency of process;

(5) Insufficiency of service of process;

(6) Failure to state a claim upon which relief can be granted.

(7) Failure to join a party under Rule 19;

(8) Misnomer of a party;

(9) Pendency of a prior action in a court of the Commonwealth;

(10) Improper amount of damages in the Superior Court as set forth in G. L. c. 212, §3 or in the District Court as set forth in G. L. c. 218, §19 .

A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief. If, on any motion asserting the defense numbered (6), to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. A motion, answer, or reply presenting the defense numbered (6) shall include a short, concise statement of the grounds on which such defense is based.

Attorney General's Reply to Plaintiff's Opposition Memo

             Attorney General's Reply to Plaintiff's Opposition Memo

The Attorney General Office found it necessary to send a Reply to my Opposition Memo to its Motion to Dismiss. This is allowed by Rule 9(A). Usually the courts frown on pleadings beyond the Motion and its Opposition Memo.

The opposing party is allowed to send a Sur reply to the Reply when the party seeks the Leave of the Court and permission to file the Sur reply. In this particular situation I will not write a Sur reply. After reading the Attorney General's Reply, a Sur reply does not seem necessary. 

Replies and Sur replies were intended for events that could not have been foreseen by a party. There is nothing that could not have been foreseen by the Attorney General Office in its Reply. It consisted of just a rehash of its Motion to Dismiss.

Although nothing is certain in Court, I think that the Reply by the Attorney General is evidence supporting an inference of a strong Opposition Memo by the Plaintiff. 

The AG Needs Protective Order

The Attorney General Seeks Protection

In civil cases Protective Orders are used to keep confidential some information that might be an annoyance, an embarrassment, or a burden if that formation were released to the public. An example of such information are medical records.

The Attorney General (AG) is seeking a Protective Order to prevent the Plaintiff from seeing his own personnel file at the Massachusetts Human Resources Division (HRD).  The Plaintiff in Davis vs. AG and HRD has a legal right to access his personnel records as seen in Kessler vs. Cambridge Healtcare. It can be inferred that the personnel files of the Plaintiff has dispositive information.

Below is the Plaintiff's Opposition Memo to the AG's Motion for a Protective Order.

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                                    COMMONWEALTH OF MASACHUSETTS

                                                                                                                                                                  WORCESTER,          SS                                                           

SUPERIOR COURT  

Docket No. 1785 CV00873 D                                                                                                                                                                                                                                                                                                     

                                                                                                     

                                                          

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GORDON T. DAVIS, Plaintiff                                           

                                                                                              

                             Vs.                                                           

                                                                                            

Massachusetts Human Resources Division,                                                                                                                    

Office of Massachusetts Attorney General                                                                                                                                                               

Defendants                                                                        

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PLAINITFF’S OPPOSIITION TO DEFENDANTS’ MOTION FOR PROTECTIVE ORDER

In accordance with Mass. Rules of Civil Procedure the Plaintiff, Gordon T. Davis, opposes the Defendants’ Motion for Protective Order dated August 9, 2017. The arguments in the Defendants’ Motion for Protective Order are erroneous or immaterial to the Complaint. Alternatively the Defendants’ Motion contains errors of material facts nullifying their Motion.

The Defendants based their Motion for Protection on the following assertions.

a.     The Defendants assert that the Plaintiff has received the documents he has requested.[1]

DENIED. The Plaintiff denies he has received any documents whatsoever from the Massachusetts Human Resource Division.

b.     The Defendants assert without any evidence that the allowance of the Motion for Protective Order would be efficient and save the Court’s resources.

DENIED; The Plaintiff has proffered a settlement that in exchange for his HRD file, the Plaintiff would withdraw the Complaint. This settlement would be the most efficient resolution for everyone. This is evidence that the Court’s resources is not a true issue for the Defendants.  (Exhibit 1)

c.      The Defendants assert that it is common practice to stay discovery while a Motion to Dismiss is pending.

This assertion is immaterial. The facts of this case should be considered. The Defendants’ Motion to Dismiss is fragile. There are errors of material facts that is likely to nullify their Motion to Dismiss. The Defendants’ Motion to Dismiss is also likely to fail because of errors in the interpretation of the Statute. (Exhibit 2)

The errors found in the Defendants’ Motion to Dismiss are again made in their Motion for a Protective Order.

The Defendants admits in their Motion to dismiss that the Plaintiff has a right of private action as seen in Kessler vs. Cambridge Healthcare.[2]

d.     The Defendants’ claim without evidence that providing the documents requested in Discovery would be a burden.

DENIED: The Defendants are required by Chapter 149 Sec. 52C to provide copies of employees’ personnel records. They are set up to do so and they do so on a regular basis. There is no evidence in the Motion that providing the personnel records of the Plaintiff to the Plaintiff would create an issue that rises to the level of “burden”.

e.     The Defendants assert that the Plaintiff lacks standing is not an employee of the HRD,

DENIED: The Plaintiff was an employee of the Commonwealth which the MCAD and HRD are a part. Both the MCAD and the HRD maintain and have custody of parts of the personnel records of the Plaintiff.

The Defendants’ have not once denied that the HRD has some or all of the Plaintiff’s personnel records. The Defendants’ have only asserted that the Plaintiff is not an employee of the HRD. It can be inferred that if the HRD did not have some or all of the Plaintiff’s personnel, their counsel would use that as a defense.

f.       The Defendants assert that basic “fairness” requires the Court to protect the Defendants. [3]

DENIED:  The Defendants admit that the Plaintiff has a right to his personnel record. The Statute compels the Commonwealth to provide Plaintiff’s personnel records to him in five (5) business days. The Defendants’ admit that the Plaintiff has spent seven (7) years trying to get his personnel record. Basic fairness would be that the Plaintiff should get his personnel record without further delay or pretextual court tactics.

g.     The Defendants assert that the Plaintiff lacks standing to sue the Massachusetts Human Resources Division (HRD).

DENIED:  M.G.L. Chapter 149, Sec. 52C allows the Plaintiff to sue HRD. This right of private action has been affirmed in Kessler vs. Cambridge Health care.

h.     The Defendants assert that the Plaintiff is barred by Sovereign Immunity.

DENIED:  M.G.L. Chapter 149, Sec. 52C waives Sovereign Immunity for public entities and their agents.

i.        The Defendants assert that the Plaintiff has not stated a claim for which the court can grant relief.

DENIED:  Case law has established that the Plaintiff has a right of private action, (Kessler vs. Cambridge Healthcare). The relief sought by the Plaintiff is that the Plaintiff is allowed access to his personnel record in the custody of the HRD and allowed to correct any errors in it.

ARGUMENTS

The Defendants have not asserted any reason to “protect” the Plaintiff’s personnel records from the Plaintiff

The Defendants have not provided any evidence of what documents are to be protected nor why those documents should be protected from the Plaintiff.

The Defendant HRD asserts that it was not the employer of the Plaintiff. If this assertion is true then defense counsel could have raise as a defense that HRD does not have custody of the Plaintiff’s personnel records.

It can be inferred that the Defendants’ have the Plaintiff’s records. These records have been given to the Plaintiff’s union, breaching confidentiality. The Defendants have not provided evidence of how the Plaintiff’s access to his personnel record would require the Court protection or relief.

The Defendants have made no claim that the Court can grant relief or protection.

The Defendants have provided no evidence of how providing the Plaintiff a copy of his personnel file would be a burden.

The Defendants are required to provide employee personnel records and the HRD does this for hundreds of employees. The HRD has provided the Plaintiff’s personnel record to at least one third party.

No evidence has been provided by the Defendants that providing the Plaintiff with his personnel record would rise to the level of a “burden”

The Plaintiff has proffered a settlement that would be the most efficient in terms of Court resources.

The Plaintiff has proffered the settlement that when the Defendants’ provided him with a copy of his demands on the HRD, he would withdraw his suit. The Defendants’ refused the proffer.

The Court Denial of the Motion for Protective Order would effectively bring an end to the case.

The Plaintiff’s Request for Documents asks for a copy of the Plaintiff’s personnel records from the HRD.

Should the Deny the Defendants’ Motion for a Protective Order, the Defendants would be compelled by Court rules for Discovery to provide to the Plaintiff his personnel record. The Plaintiff has stated on record and the Defendants admit that there is no need for the litigation to go further, once he receives his personnel records from HRD. The Plaintiff would then withdraw his case.

The Court allowing the Motion for Protective Order would harm the Plaintiff.

The Plaintiff is involved in litigation regarding his wrongful termination from the Commonwealth. His personnel record at the HRD could be dispositive in the litigation. A delay in accessing his personnel record in the custody of the HRD could significantly negatively impact his case.[4]

The Attorney General is the defense counsel in the termination litigation and this instant case. It can be inferred that this Motion for a Protective Order is a pretext. The Attorney General has access to the Plaintiff’s personnel records at the HRD and Plaintiff does not. This is basically unfair to the Plaintiff.

CONCLUSION

     For the reasons stated in the arguments the Plaintiff respectfully request the Court to Deny the Defendants’ Motion for a Protective Order.

Respectfully submitted,

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Gordon T. Davis                                            Date                                                                            Pro Se Plaintiff                                                                                                                   

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[1] Defendants’ Motion for Protective Order page 2, line 4.

[2] Defendants’ Memo of Law for their Motion to Dismiss, page 3, par. 3, “the employee may seek to have the information expunged including by judicial process…”

[3] Defendants’ Motion for Protective Order page 5, last sentence

[4] Defendants’ Memo of Law for its Motion to Dismiss, page 4, line 2

Motion to Compel, Making the AG Comply With Court Rules.

Making the Attorney General Produce Documents

The Massachusetts Attorney General has refused to product documents in Discovery. When this happens the opposing party has to move the Court to compel the non complying party to compel the non complying party to produce the documents requested.

The Court makes the non complying party produce the documents by issuing a Court Order. Assuming the Court orders the Attorney General to produce the documents, non compliance to that order would mean that the Attorney General is in Contempt of the Court and would face Sanctions.

Below is a draft of  the Motion to Compel the Attorney General to produce the requested documents.

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                                                                                                                                                                                                                                                                                       COMMONWEALTH OF MASSACHUSETTS

                                                                                                                                              WORCESTER,          SS                                                    SUPERIOR COURT                                                     1785CV00873-D

                                                          

********************************                                                                                                                                      

Gordon T. Davis, Plaintiff                                                                     

                             Vs.                                                            

Massachusetts Attorney General Office

Massachusetts Human Resources Division                                                                                                                            

Defendants                        

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PLAINTIFF GORDON T. DAVIS’ MOTION TO COMPEL DEFENDANTS TO PRODUCE DOCUMENTS

The Pro Se Plaintiff Gordon T. Davis respectfully requests this Court to compel the Defendant Massachusetts Human Resource Division (HRD) and Defendant Massachusetts Attorney General Office (AG) to produce documents in accordance with Court rules.

Background

1.   The Defendants have not, as of the date of this Motion produced documents as requested by the Plaintiff as a part of discovery procedures. (Exhibit 1)

2.   The Request for Documents was served on the Defendants on July 5, 2017. The document production was due on August 5, 2017 and is now untimely and out of compliance with Rule 34 (Exhibit 1).

3.   The Defendants’ counsel is in the process of filing a Motion to Dismiss. The Defendants have refused to produce the documents as requested; instead they are in the process of filing a Motion for a protective order. The Defendants are moving the Court to stay any discovery until after the Court rules on their Motion to Dismiss. (Exhibit 2)

4.   The Plaintiff has opposed the Defendants’ Motion to Dismiss (Exhibit 3). The Motion to Dismiss is fragile and due to an error of material fact made by defense counsel that Motion to Dismiss is likely to be quashed.

5.   The error made by the defense counsel is found in the Demands made by the Plaintiff. The Plaintiff requested in his Complaint a copy of his personnel record in the custody of the HRD. The defense counsel in the Motion to Dismiss wrongly states that the Plaintiff requested his MCAD file. This error permeates the entire Motion to Dismiss and nullifies the Motion. (Exhibit 4)

6.   The Court has granted the Defendants a delay in their Pleadings to the Complaint.

7.   The Defendants are seeking a further delay in Discovery by seeking a Protective Order. (Exhibit 5 )

8.   The documents requested by the Plaintiff may be dispositive in his action against the MCAD. The documents may also be dispositive in the union grievance proceedings.

Argument  

Mass. Civil Procedure Rule 34 requires that the Defendants produce documents as requested by the Plaintiff by 30th day after service of the Request for the Production of Documents.

     The Defendants as of the date of this Motion have not complied with Rule 34.

    The Court is able to compel the production of the documents as requested in this instant Motion to Compel the Production of Documents.

Conclusion

          The Plaintiff respectfully requests that this Court order the Defendants to produce the documents as he has requested in Discovery,

          The documents may be dispositive in this instant Complaint and other legal actions. The documents use by the Plaintiff is time sensitive.

         The Defendants have been granted one delay in its Pleadings and they are seeking a second delay in the initiation of Discovery. The Court has been more than fair to the Defendants. The delaying tactics of the Defendants should not be allowed to continue.

 Respectfully submitted                                           

                                                                               ___________

Gordon T. Davis                                                     Date

Pro Se Plaintiff

MA Attorney General's Motion to Dismiss

Attorney General's Motion to Dismiss Complaint

    The Massachusetts Attorney has chosen to plead to the Plaintiff;s Complaint by filing a Motion to Dismiss. Most motions to dismiss 
are based on the failure of the Plaintiff to state an appropriate relief that the Court can order. The Plaintiff has to show that he was harmed in some way defined by the statute.

This instant Motion to Dismiss filed by the Attorney General also includes the assertion that the Plaintiff is barred by the Statute and by Sovereign Immunity from filing a Complaint in Court.

In response the Plaintiff can write a Opposition Memorandum asking the Court to deny the Motion to Dismiss and continue on with Court proceeding.  Below is the Postilion Memorandum. 

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                   COMMONWEALTH OF MASACHUSETTS

                                                                                                      WORC       SS                          SUPERIOR COURT          Docket No. 1785 CV00873 D                                                                                                                                                                                                   

                                                         ********************************                                                                                                                                      

GORDON T. DAVIS, Plaintiff                                           

                                                                                              

                             Vs.                                                           

                                                                                            

Massachusetts Human Resources Division,                                                                                                                    

Office of Massachusetts Attorney General                                                                                                                                                               

Defendants                                                                        

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PLAINITFF’S OPPOSIITION TO DEFENDANTS’ MOTION TO DISMISS

In accordance with Mass. Rules of Civil Procedure the Plaintiff, Gordon T. Davis, opposes the Defendants’ Motion to Dismiss dated July 31, 2017. The arguments in the Motion to Dismiss are erroneous or immaterial  to the Complaint. Alternatively the Defendants’ Motion contains errors of material facts nullifying the Motion and are the basis for quashinq.

The Defendants based their Motion for Dismissal on the following assertions.

a.     The Defendants assert that the Plaintiff  has received the documents he has requested.

DENIED. The Plaintiff denies he has received any documents whatsoever from the Massachusetts Human Resource Division.

b.     The Defendants assert that the Plaintiff lacks standing to sue the Massachusetts Human Resources Division (HRD).

DENIED:  M.G.L. Chapter 149, Sec. 52C allows the Plaintiff to sue HRD. This right of private action has been affirmed in Kessler vs. Cambridge Health care.

c.      The Defendants assert that the Plaintiff is barred by Sovereign Immunity.

DENIED:  M.G.L. Chapter 149, Sec. 52C waives Sovereign Immunity for public entities and their agents.

d.     The Defendants assert that the Plaintiff has not stated a claim for which the court can grant relief.

DENIED:  Case law has established that the Plaintiff has a right of private action, (Kessler vs. Cambridge Healthcare). The relief sought by the Plaintiff  is that the Plaintiff is allowed access to his personnel record in the custody of the HRD and allowed to correct any errors in it.

e.     The Defendants’ assert that the AG decision not to enforce M.G.L. Chap. 149, Sec. 52C can not be reviewed by the Court due to Separation of Powers.

DENIED:  The Plaintiff has NOT demanded that the Court review the AG’s decision regarding the enforcement of M.G.L. Chap. 149, Sec. 52C against the HRD. The Plaintiff has only asked that the Court order the AG to clarify its policy regarding the enforcement of the subject statute in accordance with the mission statement of the AG.

Constitutional Officers: Attorney General

“… the Attorney General's Office will offer helpful resources to individuals wherever possible but is not allowed to provide legal assistance to individual citizens of Massachusetts”

f.    The Defendants assert in their Memorandum of Law that the Plaintiff is seeking his “MCAD personnel file” from HRD.

Denied: This is an error of material fact. The Plaintiff’s demands do NOT include the provision of a personnel file in the custody of the MCAD or any document from the MCAD. The Plaintiff’s demands for this case are for the personnel file at the HRD. The HRD personnel files are distinct from the personnel file in the custody of the MCAD.

This error of material fact should by itself nullify the legif the instant Motion to Dismiss. It is also grounds for the Court to deny or quash the Defendants’ Motion.

Attached with this Opposition Memorandum is a Memorandum of Law further elaborating the Plaintiff’s arguments for Denial of the Defendants’ instant Motion.

The Plaintiff respectfully asks the Court to Deny the Defendants’ Motion to Dismiss.

Sincerely,

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Gordon T. Davis                                            Date                            Pro Se Plaintiff