Magnuson v. Mullen, 2-00-216-CV.

• Decision Date: 17 January 2002
• Docket Number: No. 2-00-216-CV.,2-00-216-CV.
• Citation: 65 S.W.3d 815
• Parties: Kenneth J. MAGNUSON, Appellant, v. Randy MULLEN, Electronic Data Systems, Inc. a/k/a EDS, and Other Unknown Employees of EDS, Appellees.
• Court: Texas Court of Appeals

65 S.W.3d 815

Kenneth J. MAGNUSON, Appellant, v. Randy MULLEN, Electronic Data Systems, Inc. a/k/a EDS, and Other Unknown Employees of EDS, Appellees.

No. 2-00-216-CV.

Court of Appeals of Texas, Fort Worth.

January 17, 2002.

Baltasar D. Cruz, Dallas, for Appellant.

David R. Deitchman, Electronic Data Systems Corp., Plano, for Appellee.

Panel B: DAY, DAUPHINOT, and GARDNER, JJ.

OPINION

LEE ANN DAUPHINOT, Justice.

Appellant Kenneth J. Magnuson appeals from the trial court's judgment dismissing his suit against Appellees Randy Mullen, Electronic Data Systems, Inc. a/k/a EDS, and other unknown employees of EDS (collectively, Appellees) with prejudice to its refiling. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Magnuson was hired by EDS as a systems administrator on August 21, 1995. In October 1997, Mullen, Magnuson's manager at EDS, prepared a "Performance Improvement Plan" (PIP) for Magnuson. The PIP stated that Magnuson was either tardy or absent from work without excuse on forty-five occasions in 1997. On February 26, 1998, Appellant's employment with EDS was terminated.

Magnuson filed suit against Appellees on February 26, 1999, alleging that Mullen defamed him by including false statements concerning his absences from work in the PIP and that EDS was grossly negligent in failing to properly train Mullen. A copy of Magnuson's petition was not served on Appellees, however, until Magnuson filed his first amended petition on April 1, 1999.

On October 7, 1999, Appellees served Magnuson with requests for disclosures and for production. In a cover letter sent with the discovery requests, counsel for Appellees asked Magnuson to provide convenient dates in late November for his deposition in this case. On October 12, Magnuson filed a motion for enlargement of time and request for reasonable accommodations in the trial court. Magnuson claimed to be a disabled person under the Americans With Disabilities Act (ADA) because of a "severe and chronic orthopedic neck disorder" caused by brain surgery in 1993. The motion provides, in relevant part:

Plaintiff respectfully gives the Court notice of such disability. A request for reasonable accommodations, because he is acting as Pro Se in this matter, and if pleadings become due by Plaintiff, at times when he is affected by the foresaid [sic] disability, the Plaintiff may have to request additional enlargements of time. Otherwise, he would not be able to meet the Court's deadlines for the proper filings of such pleadings, and would therefore be denied participation, and the full or equal benefits of services offered by this Court, if such requested enlargements of time are not granted.

On October 26, 1999, after apparently receiving no response from Magnuson to the previous letter, Appellees noticed Magnuson's deposition to take place on November 18 at 9:30 a.m. An affidavit of nonappearance reflects that Magnuson did not appear for his deposition at the scheduled time on November 18 and contains the following remarks by counsel for Appellees:

At this time we are assuming that Mr. Magnuson is not going to show up for the deposition. He did indicate to my administrative assistant on Friday, November the 12th, that he planned to be out of town. And my administrative assistant at my direction said that we would agree to move the deposition to allow for that to November the 29th or 30th. Mr. Magnuson's response to my administrative assistant was he absolutely refused to present himself for deposition at any time until after he took the deposition of Mr. Mullen and received answers to discovery. Let the record reflect that as of this point in time Mr. Magnuson has never filed a notice for the deposition of Randy Mullen or anyone else, nor has he ever inquired about taking any such deposition nor has he filed any discovery or indicated any intent to file any discovery.

Indeed, in a letter dated November 15, 1999, Appellees' counsel informed Magnuson that, because he refused to appear for deposition at another time, she would not agree to pass his deposition scheduled for November 18. Additionally, counsel notified Magnuson that, unless she received his responses to the request for disclosures and request for production by November 23, "I will have no choice but to file a Motion to Compel, which may also include a request for sanctions."

On January 24, 2000, the trial court notified the parties that the case had been set on the court's trial docket for March 28, 2000. On January 31, Appellees filed a motion to compel responses to discovery and appearance for deposition and for sanctions, contending that Magnuson's conduct in this case as well as in his suit against EDS currently pending in federal court reveals "a pattern and practice of blatant dilatory tactics and purposeful disregard of court orders." In addition to Magnuson's refusal to respond to Appellees' discovery requests or to appear for his deposition in the instant case, Appellees pointed to his failure to comply with the trial court's orders regarding discovery in the federal case. In that case, the court granted EDS's motion to compel answers to discovery and for sanctions and ordered Magnuson to provide discovery responses by 5:00 p.m. on January 28, 2000, and to pay EDS $250 by December 24, 1999. Magnuson's failure to abide by the court's order in either regard prompted EDS to file a motion to dismiss the federal case with prejudice.

By fiat, the trial court set Appellees' motion to compel for a hearing on February 18, 2000. Magnuson neither responded to the motion nor appeared for the hearing. Instead, Magnuson filed a motion for continuance on February 18, asking the court to grant him an additional 120 days to respond to Appellees' discovery requests and to retain counsel. Magnuson claimed to have been prejudiced by the "untimely withdraw[al]" of his counsel in the federal case, which forced him to pursue his claims pro se. Additionally, Magnuson stated that he was involved in an automobile accident on January 13, 2000, sustaining injuries to his neck and back. According to Magnuson, these injuries aggravated his existing medical condition and limited his ability to perform the following tasks for long periods of time: driving or traveling in an automobile, sitting up in a chair and reading or working at the computer, and standing or walking. Magnuson also claimed to suffer from severe headaches, ringing in the ears, neck pain, and sleeplessness. Magnuson asserted that his inability to obtain counsel along with his physical limitations necessitated an extension of time in which to respond to Appellees' discovery requests.

By its order signed February 18, 2000, the trial court granted Appellees' motion to compel and request for sanctions, ordering Magnuson to appear for deposition on February 29 at 9:00 a.m., to provide Appellees with a fully executed authorization to release confidential information as well as full and complete responses to Appellees' discovery requests on or before 5:00 p.m. on February 24, and to pay $1,000 in costs to EDS on or before five days from the date of the order. Citing an inability to serve the February 18th order on Magnuson at his residence, the Appellees filed a motion for substituted service on February 24, requesting that the court allow service by affixing a copy of the order to Magnuson's front door. Attached to the motion was process server Glenn Glasscock's affidavit of attempted service, detailing nine unsuccessful attempts to serve Magnuson at his home between February 18 and February 22. During one such attempt on the evening of February 21, Glasscock observed Magnuson and his roommate creeping down the hallway in an effort to avoid being seen. On February 24, the trial court ordered substituted service of the February 18th order on Magnuson by posting a copy of the order to his front door, which Glasscock accomplished on February 25, 2000.

Magnuson filed a motion for extension of time, motion for rehearing, motion to quash the February 18th order, and motion for sanctions on February 24, 2000, contending that the trial court granted Appellees' motion to compel without considering his disability, his February 18th motion for continuance, or his October 11th motion for enlargement of time. Magnuson again requested additional time to respond to discovery, adding that "any failure to reply ... has been excusable neglect due to medical reasons." In addition, Magnuson sought extensions of time "as may be needed during the pendency of this trial" and that any hearing be conducted over the telephone because of problems with his hearing. The motions were subsequently set for a hearing on March 23, 2000.

On March 1, 2000, Appellees filed a motion for sanctions and to dismiss Magnuson's action with prejudice, claiming that Magnuson had failed to comply with any part of the trial court's February 18th order. In particular, Magnuson had not yet provided responses to Appellees' discovery requests and did not appear for his deposition on February 29 as ordered. Appellees sought monetary sanctions and the dismissal of Magnuson's action with prejudice under rules 215.2 and 215.3 of the Texas Rules of Civil Procedure.¹ In support of their request for a dismissal with prejudice, Appellees pointed to Magnuson's "long history of filing frivolous pro se lawsuits which are ultimately dismissed." Specifically, Appellees claimed that, in addition to the "obstructionist tactics" employed in the federal case, Magnuson has filed at least four other pro se lawsuits since 1992, all of which were dismissed for want of prosecution. Appellees argued that Magnuson's conduct in the present case in refusing to provide discovery either upon Appellees' request or upon court order points to an "inescapable conclusion... that [Magnuson's] claims are baseless and without merit and this lawsuit was filed in bad faith." A hearing on the motion for sanctions was set by fiat for March 23,...