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Marion Kindig v. Whole Foods Market Group

July 20, 2012

MARION KINDIG, PLAINTIFF,
v.
WHOLE FOODS MARKET GROUP, INC. DEFENDANT



The opinion of the court was delivered by: Alan Kay United States Magistrate Judge

MEMORANDUM OPINION

Plaintiff has a number of pending motions in this case. This memorandum opinion applies to Plaintiff's motions contained in docket entry [85]. The undersigned held a motion hearing on June 1, 2012 to hear arguments as to the motions. For the following reasons, Plaintiff's motions will be denied; granted-in-part; denied-in-part; and denied as moot.

I. BACKGROUND

The facts surrounding this case occurred on or about November 26, 2007, when Plaintiff was shopping at the Whole Foods store on Wisconsin Ave. in Washington, D.C. (Notice of Removal, Ex. 2 [1-2] at 2.) Plaintiff allegedly slipped in water walking from the parking lot to the store entrance and fell on the concrete, resulting in injuries to her lower body. (Id.) The history of this case is complicated and deserves review. Upon removal from D.C. Superior Court, the case was assigned to Hon. Ellen S. Huvelle ("Judge Huvelle"). At the time, Plaintiff was represented by counsel, Justin Beall. (See Notice of Appearance of Justin Michael Beall [5].) At a status conference on January 26, 2011, Mr. Beall and Mr. Cuniff, counsel for Whole Foods, signed a form consenting to proceed before a United States Magistrate Judge and the case was reassigned to Hon. Deborah A. Robinson ("Judge Robinson") for all purposes. (Consent to Proceed before U.S. Magistrate Judge for All Purposes [8]; Case Reassigned to Magistrate Judge Deborah A. Robinson for All Purposes [9].)

On April 26, 2011, Plaintiff filed a motion asking that consent to proceed before a magistrate judge be revoked and the case be returned to Judge Huvelle, and that Mr. Beall be removed as her attorney. (Pl.'s Mot. to Remove Attorney and Return Case to Judge Huvelle [18].) Plaintiff stated that Mr. Beall never asked and she never consented for the case to proceed before a magistrate judge and that she filed the motion to withdraw her consent upon learning that a case may only proceed before a magistrate judge upon the consent of both parties. (Id. at 8-9.) Subsequently, Mr. Beall's motion to withdraw from the case was granted and Plaintiff has since proceeded pro se. (Minute Order, May 10, 2011.) By Minute Order dated August 17, 2011, Judge Robinson granted Plaintiff's Motion to vacate the consent to proceed before a magistrate judge, and the case was referred back to Judge Huvelle, who then referred the case to Judge Robinson for resolving discovery disputes [67]. Discovery closed in the case on March 9, 2012. (Amended Scheduling Order by Magistrate Judge Deborah A. Robinson, Jan. 11, 2012 [74] at 2.)

On March 28, 2012, Ms. Kindig and Mr. Cuniff signed a form consenting to conduct all proceedings in the case, including trial, before a magistrate judge. (Consent to Proceed before U.S. Magistrate Judge for All Purposes [78].) The case was assigned to the undersigned. (Case Reassigned to Judge Kay for all purposes [79].)

In Docket Entry 85, Plaintiff makes four motions: (1) that the case be assigned to a United States District Court Judge for the District of Columbia; (2) that Judge Huvelle and Judge Robinson be removed; (3) that depositions be set for Elizabeth Savelli, Debra Fox, Scott Allshouse and Travis Lyles; and (4) that Judge Lamberth consider taking appropriate action regarding the massive violations.

At the June 1, 2012 hearing on the motions, the undersigned directed Plaintiff to file a statement informing the Court of the topics she plans to explore at the requested depositions. Plaintiff, in her motion, withdrew her request to depose Ms. Savelli and Ms. Fox, but wishes to add Susan Bell to the list of deponents. (Pl.'s Submission of her Deposition Questions [90] at 4-5.)

Plaintiff's fourth motion, which is repeated indocket entry [89], requests "that Judge Lamberth consider taking appropriate action regarding the massive violations." This motion is directed to Judge Lamberth and the undersigned makes no ruling as to that motion. The first three motions are taken up below.

II. ANALYSIS

A. Plaintiff's Motion that the Case be Assigned to a United States District Court Judge for the District of Columbia On March 28, 2012, the parties consented to this case being referred for all purposes and trial to a United States Magistrate Judge. (Consent to Proceed before U.S. Magistrate Judge for All Purposes [78].) Accordingly, the case was assigned to the undersigned. (Case Reassigned to Judge Kay for all purposes [79].) On May 1, 2012, Plaintiff filed this motion to reassign the case to a District Court Judge. Plaintiff presents no argument as to why she wants a District Court Judge after consenting to the case being referred to a United States Magistrate Judge. Therefore, Plaintiff's motion to reassign the case to a District Court Judge will be denied.*fn1

B. Plaintiff's Motion to Disqualify Judge Huvelle and Judge Robinson

Plaintiff moves to disqualify Judge Huvelle and Judge Robinson from the case. (Pl.'s Mot. at 1.) Plaintiff filed the same motion on April 12, 2012 as part of docket entry 81. In a Minute Order dated May 29, 2012, Judge Robinson denied the motion as moot. Although Plaintiff's current motion is not a renewed motion, the undersigned will follow Judge Robinson's determination. The undersigned by consent of Plaintiff and Defendant was designated as the trial judge for all purposes and Judge Huvelle and Judge ...


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