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Kindig v. Whole Foods Market Group, Inc.

United States District Court, District Circuit

September 20, 2013



ALAN KAY, Magistrate Judge.

Plaintiff Ms. Marion Kindig ("Plaintiff" or "Ms. Kindig") sued Defendant Whole Foods Market Group, Inc. ("Defendant" or "Whole Foods") for personal injuries arising out of an alleged slip and fall incident in the parking lot of a Whole Foods store. This routine slip and fall case has a protracted history with close to three years of delays, disputes, and drama. Plaintiff elected to proceed pro se after dismissing her attorney accusing him of fraud, utilized a variety of delaying tactics, repeatedly used abusive and invective language in virtually every one of her filed pleadings and oral presentations in the Courtroom and during telephone status hearings, and made a number of serious allegations against Whole Foods and its counsel that were not proven. Plaintiff has made allegations of bias and prejudice and violations of the judicial rules of conduct against three judges, a U.S. District Court Judge, and two U.S. Magistrate Judges, who have presided over this case. The Plaintiff filed sanction motions for inconsequential and minor discovery disputes, leading the first trial judge to order the parties to no longer confer prior to filing discovery motions. The Plaintiff expressed interest in mediation on two occasions, but refused the presence of a pro bono attorney to assist her for mediation purposes, as provided in the local rules. Throughout this litigation, Plaintiff treated her former attorney, the Defendant, and Defendant's counsel, with an utter lack of respect and decorum. This Court set firm trial dates on two occasions, the first in April 2013, which was canceled due to Plaintiff's sudden, unexplained illness, and the second in August 2013, which was again canceled due to Plaintiff's representation that she had obtained trial counsel.

On August 27, 2013, the undersigned held a show cause hearing for Plaintiff to demonstrate why this case should not be dismissed because of her affirmative misrepresentations about her attorney-client relationship with two attorneys and for her other failures to comply with the Court's orders. At the conclusion of the hearing, the Court dismissed the case with prejudice. This memorandum opinion accompanies the oral order DISMISSING the case WITH PREJUDICE.


Ms. Marion Kindig sued Whole Foods for injuries she sustained following an alleged slip and fall incident as she was entering Whole Foods from the parking garage in November 2007. Notice of Removal, Ex. 2 [1-2] at ¶¶ 5-6. She initially filed suit in the Superior Court of the District of Columbia and was represented by counsel. Notice of Removal [1] at 1; Notice of Appearance of Plaintiff's Counsel Beall [5]. Whole Foods subsequently removed the case to the United States District Court and the case was initially assigned to a U.S. District Judge. Notice of Removal, Ex. 6 [1-6] at 1. During the January 26, 2011, status conference, Plaintiff's counsel and counsel for Whole Foods signed a form consenting to proceed before a United States Magistrate Judge 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 March 17, 2011, Whole Foods filed a third-party complaint against USA Parking, served on Mr. Solomon Arega who owns USA Parking, seeking indemnification from USA Parking.[1] Third Party Complaint [12] ¶¶ 9-10. The third party complaint was held in abeyance pending arbitration required by the contract between Whole Foods and USA Parking. Order [60].

On April 26, 2011, Plaintiff filed a motion to proceed pro se to vacate the consent to proceed before a Magistrate Judge and declare it "null and void since it was obtained on the basis of a Fraud Upon The Court." Pl.'s Mot. to Remove Attorney and Return Case to the District Judge [18] at 3. Plaintiff accused her attorney Mr. Beall of having "more than a cozy relationship between Mr. Beall and the Defense Counsel, " including accepting discovery responses from Whole Foods that Ms. Kindig found untrue, permitting Whole Foods to serve Ms. Kindig with "a paper blizzard of hundreds and hundreds of Interrogatories and Requests, " and altering her interrogatory responses. Id. at 4-7. Plaintiff wrote a letter demanding that her counsel withdraw from the case, which he did by a Motion to Withdraw. Id. at 7; Motion for Leave to Withdraw as Counsel [13]. Ms. Kindig also alleged that her counsel consented to proceed before a Magistrate Judge without asking her or obtaining her consent, making the consent invalid. Pl.'s Mot. to Remove [18] at 8-9. The Magistrate Judge granted the Plaintiff's attorney's Motion for Leave to Withdraw [13] and denied as moot Plaintiff's Motion to Remove Attorney and Return Case to the District Judge [18]. Magistrate Judge's Minute Order, May 10, 2011. Plaintiff subsequently filed an interlocutory appeal of the Minute Order dated May 10, 2011, to the Court of Appeals. Notice of Interlocutory Appeal [28]. The Court of Appeals dismissed Ms. Kindig's appeal, stating that the Magistrate Judge's May 10, 2011, minute order was not a final, appealable order. United States Court of Appeals Order [41] at 1.

During the controversy as to which judicial officer would preside over the case, the parties also engaged in several discovery disputes. On May 10, 2011, Whole Foods filed a Motion to Compel Plaintiff to Supplement Plaintiff's Responses to Defendant's First Set of Interrogatories and Request for Production of Documents and Tangible Things, stating that Ms. Kindig did not timely respond and the responses she did provide were "woefully deficient." Def.'s Mot. to Compel [21] at ¶¶ 5-6. In July, Whole Foods filed a Motion for Order for Physical Examination of Plaintiff Marion Kindig, seeking an independent medical examination (IME) because Ms. Kindig had placed her medical condition at issue. Def.'s Mot. for Physical Examination of Pl. [34] at 7. Ms. Kindig had denied Whole Foods' request for an IME, stating "I am not refusing to have a medical examination at the appropriate time. At this point, however, it is clearly inappropriate since we do not even know in which court the case will be." Def.'s Mot. for Physical Examination of Pl. Ex. 2 [34-4] at 2. Additionally, Whole Foods filed a Motion for Summary Judgment based on Ms. Kindig's failure to respond to Whole Foods' Request for Admissions. Def.'s Mot. for Summ. J. [35] at ¶ 4.

The Magistrate Judge granted Ms. Kindig's Motion to Return the Case to the District Judge and vacated the consent to proceed before a Magistrate Judge. Magistrate Judge's Minute Order, Aug. 18, 2011; District Judge's Minute Order Reassigning the Case, Aug. 24, 2011.

Ms. Kindig subsequently filed a Motion that the District Judge Recuse Herself for Bian [sic] and Prejucice [sic] Under Rule 63 and Under the Canons of Judicial Conduct, Canon 1, Canon 2 and Canon 3 [62]. Ms. Kindig stated that the District Judge "was apparently not pleased with having a slip and fall case dumped in her lap and made no bones about it" and that "[the District Judge] has an extreme bias and prejudice about having a slip and fall case in her Courtroom." Id. [62] at 3-4. After an omnibus motions hearing, the District Judge issued an order referring the case to Magistrate Judge John Facciola for settlement discussions and the appointment of counsel for the purposes of mediation for Ms. Kindig. Order of Referral [63]; Order of Appointment of Counsel for the Limited Purpose of Mediation [64]. These orders were vacated the same day at Plaintiff's request by a telephone call to Chambers. Minute Order, Aug. 23, 2011.

With respect to the existing motions, the District Judge denied Whole Foods' Motion for Summary Judgment, denied all pending motions to strike, granted Whole Foods' Motion for an IME of the Plaintiff and granted Whole Foods' Motion to Compel Ms. Kindig to provide information about her health care providers and Medicare information. Order [65]. The District Judge permitted Whole Foods to depose Annette Schaffer, Dr. Sheldon Margulies, and Dr. John Blazina and permitted Ms. Kindig to depose Travis Lyles, Elaine Dunbar, and "the person identified by defendant as having the responsibility for cleaning up the area where plaintiff fell." Id. at 2, ¶ 4-5. Additionally, the District Judge ordered that the "[p]arties are not required to confer regarding discovery disputes prior to filing a motion" and that the "[p]arties may not contact each other by phone, only by email." Id. at 3, ¶ 1-2.

On October 13, 2011, Ms. Kindig filed a Motion for a Stay of All Legal and Court Proceedings for a Period of One Month [66]. In her motion, she made a series of inappropriate allegations against Whole Foods and its counsel, including the following:

• "[W]hen Plaintiff took over the case, [Whole Foods counsel] started bombarding Plaintiff with large packets of irrelevant and useless paper solely for the purpose of harassment." Id. [66] at 2.
• "The sadistic harassment of these ongoing mountains of irrelevant paper became so severe that on June 2, 2011, Plaintiff was taken by ambulance to the Emergency Room, and then was again taken to the Emergency Room on June 9, 2011, both times with chest pains." Id. at 3.
• "The Deposition... was being conducted in bad faith and in a manner that was unreasonably annoyed, harassed, opressed [sic], badgered and was designed to sadisticly [sic] stress and harass the deponent." Id. at 3.
• "The badgering and harassment became so severe, that for the first time in her life, Plaintiff finally fainted." Id. at 3.
• "Not being satisfied with seeing Plaintiff laying there unconscious, the very next day the fiendish Mr. Cuniff started harassing the Bethesda Rescue Squad." Id. at 4.

In support of her motion, Ms. Kindig submitted notes from Dr. Sheldon Margulies and Dr. Ali Safayan. Pl.'s Mot. to Stay [66-1]. Neither physician reported having evaluated Ms. Kindig but rather they were informed by Ms. Kindig about her medical condition. Id. Whole Foods opposed the stay, arguing that it was "baseless and only serv[ed] to further obstruct the discovery process." Def.'s Opp. [69] at 1.

According to Whole Foods, when Ms. Kindig fainted during her deposition, she "continued to pretend to be unconscious for at least ten minutes" and the Emergency Services personnel who attended her said that Plaintiff "was conscious and she was holding her eyes closed." Id. at 4. Ms. Kindig also refused to attend the scheduled IME and unilaterally canceled the depositions of Whole Foods employees Travis Lyles and Elaine Dunbar. Id. at 2, 5. The District Judge referred all discovery disputes to a Magistrate Judge who granted Ms. Kindig's Motion to Stay. Referral to Magistrate Judge [67]; Magistrate Judge's Minute Order, Nov. 8, 2011.

Following a series of telephone conferences and status hearings, the Magistrate Judge extended the discovery deadline to March 9, 2012. Amended Scheduling Order [74] at 2. The Magistrate Judge permitted Ms. Kindig to serve up to five additional interrogatories and to depose Travis Lyles and Elaine Dunbar and permitted Whole Foods to depose Annette Schaffer and perform an independent medical exam of Ms. Kindig. Id. at 1-2. Whole Foods, two months later and after the close of discovery, filed a Motion for Sanctions, alleging that Ms. Kindig still had failed to execute a release of information about her Medicare ...

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