Magdalene Diamantis v. Milton Bradley Company, 772 F.2d 3, 1st Cir. (1985)
Uploaded by
Scribd Government DocsMagdalene Diamantis v. Milton Bradley Company, 772 F.2d 3, 1st Cir. (1985)
Uploaded by
Scribd Government Docs772 F.
2d 3
38 Empl. Prac. Dec. P 35,510, 54 USLW
2218, 3 Fed.R.Serv.3d 633
Magdalene DIAMANTIS, Plaintiff, Appellant,
v.
MILTON BRADLEY COMPANY, et al., Defendants,
Appellees.
No. 84-1867.
United States Court of Appeals,
First Circuit.
Argued May 6, 1985.
Decided Sept. 10, 1985.
Paul L. Feldman, Boston, Mass., with whom Ernest H. Hammer, New
York City, was on brief for plaintiff, appellant.
Joseph P. Pessolano, Springfield, Mass., with whom George F. Kelly and
Ryan & White, P.C., Springfield, Mass., were on brief for defendants,
appellees.
Before CAMPBELL, Chief Judge, COFFIN and TORRUELLA, Circuit
Judges.
TORRUELLA, Circuit Judge.
On March 2, 1984, appellant Magdalene Diamantis filed a suit in the U.S.
District Court for the Southern District of New York against her employer
Milton Bradley Company. The complaint asserted various causes of action for
fraud, injury to business and personal reputation, and lost business and
professional opportunities. The amended complaint also included charges of
sex discrimination and wrongful discharge from her job which allegedly was in
retaliation for the filing of the suit.
In the course of the discovery proceedings, the defendants served deposition
subpoenas on a former business associate of Diamantis, Gay Fullerton, and her
company TurnAbout Marketing, Inc. ("TurnAbout"). The subpoenas were
issued by the U.S. District Court for the District of Massachusetts, ordering
Fullerton and TurnAbout to appear for depositions in Springfield,
Massachusetts.1
3
When Fullerton objected to producing some of the requested documents, the
defendants filed in the Massachusetts district court a motion to compel
discovery, with supporting memorandum, and the matter was referred to a
federal magistrate pursuant to 28 U.S.C. Sec. 636(b)(1)(A). On August 28th,
argument was heard on the motion. At the hearing, attorney Ernest Hammer,
who had been representing Diamantis in the main action, appeared on behalf of
Fullerton and TurnAbout, arguing against discovery.
On August 30th, the magistrate issued an order directing Fullerton and
TurnAbout to produce certain of the documents. Fullerton filed no objections to
the decision, nor did Milton Bradley Co., the appellee here, seek disclosure of
the remaining documents. On September 15th, however, attorney Hammer filed
a motion, this time on behalf of Diamantis, seeking vacation or modification of
the magistrate's order. When the motion was denied, Diamantis filed notice for
this appeal.
On appeal, Diamantis raises seven issues that she argues warrant reversal of the
district court's order. Primarily, the appellant addresses her brief to whether this
would be a permissible interlocutory appeal under 28 U.S.C. Sec. 1292, since
generally discovery orders are not reviewable until after final judgment has
been entered. See, e.g., United States v. Ryan, 402 U.S. 530, 532-33, 91 S.Ct.
1580, 1581-82, 29 L.Ed.2d 85 (1971); Sheehan v. Doyle, 513 F.2d 895, 898
(1st Cir.1975); 28 U.S.C. Sec. 1291. Additionally, she argues that, if this appeal
is heard, reversal is warranted because the district court abused its discretion in
refusing to quash the discovery order.
We find, however, that there is a preliminary issue that must first be addressed:
whether Diamantis has standing to bring this appeal on behalf of the third party
witnesses. As a first step in determining whether jurisdiction exists over this
appeal, we must inquire into the nexus between Diamantis' status in this
litigation and the claim she is presenting. Such is necessary to ensure that she is
a proper and appropriate party to invoke federal judicial power in this context.
Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). For
purposes of this inquiry, we accept as valid the appellant's allegations. See
United States v. American Telephone and Telegraph, 642 F.2d 1285, 1291
(D.C.Cir.1980).
Turning to her appellate brief then, we examine each of Diamantis' objections
to the discovery order. She claims first that the discovery requests were
unreasonable and oppressive because they are directing nonparty witnesses
(Fullerton and TurnAbout) to expend time and labor to supply the information
requested. Compliance might also entail securing old records from banks "at a
significant expense." Diamantis also objects to the request for documents
relating "in any way to any dealing, transaction, agreement or understanding"
between the third party witnesses and Diamantis, claiming it is "overbroad and
harrassing by its very terms." Third, Diamantis suggests that the subpoena
infringes on "the right of a nonparty to keep confidential his own financial
affairs."
Clearly the basis for these objections are concerns of Fullerton and TurnAbout,
Inc.--not of Diamantis. It is the third party witnesses whose rights would
allegedly be violated, whose privacy would be invaded, and who would have to
bear the expense of producing the requested documents. It is well settled under
the standing doctrine that a party ordinarily may not assert the legal rights of
others. See Barrows v. Jackson, 346 U.S. 249, 255, 73 S.Ct. 1031, 1034, 97
L.Ed. 1586 (1953); Ripon Society v. Nat'l Republican Party, 525 F.2d 567, 573
(D.C.Cir.1975), cert. denied, 424 U.S. 933, 96 S.Ct. 1148, 47 L.Ed.2d 341
(1976). Here, this is precisely what Diamantis is attempting to do by bringing
this appeal on behalf of Fullerton and TurnAbout, Inc.2 She has not shown that
her own rights are threatened by the compliance of the nonparties with the
district court's order. See Diggs v. Schultz, 470 F.2d 461, 464 (D.C.Cir.1972).
An individual must assert his own legal rights and interests and cannot rest his
claim to relief on the legal rights and interests of third parties. Warth v. Seldin,
422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975); Construction
Industry Ass'n v. City of Petaluma, 522 F.2d 897, 903 (9th Cir.1975), cert.
denied, 424 U.S. 934, 96 S.Ct. 1148, 47 L.Ed.2d 342 (1976). Accordingly, we
hold that Diamantis does not have standing to pursue this appeal. There is no
need to reach the other issues.
Appeal dismissed.
The subpoenas were served on Fullerton and TurnAbout, Inc., in Somers,
Connecticut pursuant to Federal Rule of Civil Procedure 45(b)(2) which states
that a nonresident of the district issuing the subpoena "may be required to
attend ... within forty miles from the place of service, or at such other
convenient place as affixed by an order of the court." The third party deponents
have not objected to appearing as ordered, but the deposition was eventually
scheduled to be held in New York as most convenient for all parties
2
A possible justification for Diamantis herself having brought the appeal may be
found in the language of Fed.R.Civ.P. 72(a). The rule does require the district
judge to "consider objections [to a magistrate's ruling on a nondispositive
matter] made by the parties...." (Emphasis added). To read the rule narrowly,
however, as permitting a party to object to rulings involving only third party
witnesses ignores the rest of the language of the rule and, more importantly,
well-settled standing doctrine. Rule 72(a) "parties" are the parties before the
magistrate, not the parties to the litigation from which the nondispositive matter
originated
You might also like
- No ratings yetUnited States of America, Alex. Brown & Sons Inc., Bear Stearns & Co. Inc., Cs First Boston Corp., Dean Witter Reynolds Inc., Donaldson, Lufkin & Jenrette Securities Corp., Furman Selz Llc, Goldman, Sachs & Co., Hambrecht & Quist Llc, Herzog, Heine Geduld, Inc., J.P. Morgan Securities Inc., Lehman Brothers Inc., Mayer & Schweitzer, Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc., Morgan Stanley & Co., Inc., Nash, Weiss & Co., Olde Discount Corp., Painewebber Inc., Piper Jaffray Inc., Prudential Securities Inc., Salomon Brothers Inc., Sherwood Securities Corp., Smith Barney Inc., Spear, Leeds & Kellogg, Lp, and Ubs Securities LLC v. Donald Bleznak, Andrew Bleznak, Richard I. Burstein, Chevra Gemilath Chasodam, Carl S. Clark and Patricia Clark, Daniel D'addario, Roseann D'addario, Maxine Dampf, Jerome D. Derdel, Sulochana Desai, H. Leslie Fineberg, Nicholas Frangiosa, Neal Hansen and Donna Hansen, Timothy Hennessey, Brent Johnson, Charles Kaye, Jerry Krim, James Krum, Robert Lipinski,7 pages
- No ratings yetRichard H. Steinberg Sandra Steinberg Priority Development, Ltd., a Colorado Corporation Priority Development, Co., a Colorado Corporation v. Ken Allen, A/K/A Ken A. Allen, A/K/A Ken M. Allen Judy Allen Lincoln Theatre Production, Inc. Jerry F. Jager, and Thomas O. Murphy, Iii, and X-1 Through X-10, 979 F.2d 858, 10th Cir. (1992)6 pages
