UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARION KINDIG,
Plaintiff,
v. Civil Action No. 10-CV-1919 (AK)
WHOLE FOODS MARKET GROUP, INC.,
Defendant.
MEMORANDUM OPINION
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
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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.
BACKGROUND
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
1
USA Parking had a contract with W hole Foods for maintenance and cleaning services.
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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
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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.
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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 lien. Def.’s Mot. for Sanctions
[76] at 1. The Magistrate Judge denied the Motion for Sanctions without prejudice. Magistrate
Judge’s Minute Order, May 29, 2012.
The parties consented to proceed for all purposes before the undersigned Magistrate
Judge on March 28, 2012. Consent to Proceed before Magistrate Judge [78]. Ms. Kindig
subsequently filed a Motion for Sanctions and a Motion that the District Judge and the
Magistrate Judge disqualify themselves. Pl.’s Mot. [81]. She also filed a motion to take the
depositions of Whole Foods employees Elizabeth Savelli, Debra Fox, Scott Allshouse, and
Travis Lyles and three different motions to then-Chief Judge Royce Lamberth, that he take
“appropriate action regarding the massive violations.” Pl.’s Mot. [85] at 1; Pl.’s Mot. [87]; Pl.’s
Mot. [89].
At the recommendation of the undersigned both Ms. Kindig and Whole Foods agreed to
Mediation. On June 11, 2012, this Court appointed an attorney for Plaintiff for the purpose of
mediation. Order of Appointment of Counsel for the Limited Purpose of Mediation [92]. Ms.
Kindig then filed a notice with the Court to terminate mediation proceedings because she did not
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want an attorney to represent her at the mediation stating, “[s]ince Plaintiff has never agreed to
waive her absolute right to represent herself in pro se for a mediation and otherwise, and since a
mediation is by its very nature voluntary, Plaintiff has no choice under the circumstances but to
herewith respectfully decline the mediation.” Pl.’s Notice to the Court [96].
With respect to Ms. Kindig’s pending discovery motions, this Court denied her request to
depose two employees of Whole Foods, Scott Allshouse and Susan Bell, because Counsel for
Whole Foods proffered that Mr. Allshouse and Ms. Bell had no knowledge of the facts or
circumstances of Plaintiff’s trip and fall or the location and condition of the place where she fell,
but this Court granted her request to depose Travis Lyles and to notice a Rule 30(b)(6)
deposition of a witness knowledgeable of Whole Foods’ corporate policy in slip and fall cases,
corporate policy in preventing hazardous conditions on the floor, and Defendant’s basis for
arguing that Ms. Kindig’s fall did not occur on Whole Foods’ property. Order [97]; Mem. Op.
[98] at 6. Ms. Kindig filed a response to the Court’s order, continuing to allege mass ethical
violations by Whole Foods and the judiciary. Pl.’s Response to Order of the Court [99].
On October 19, 2012, Plaintiff filed a Motion under the 5th and 14th Amendments that
Plaintiff’s Depositions and Discovery be under the Same Rules, Regulations, Terms and
Conditions as those Afforded to Whole Foods; that Judge Alan Kay Disqualify Himself from this
Case for Bias and Prejudice and for Violations of the U.S. Constitution, the Federal Rules of
Civil Procedure, the District of Columbia Bar Rules and the Canons of Judicial Conduct; and
that Plaintiff’s Discovery Completion Date be Extended Until Such Discovery Problems are
Rectified. Pl.’s Mot. [102]. Plaintiff reiterated her litany of grievances, including that “[t]here
are apparently two sets of laws, rules and regulations – one for the large powerful corporation,
and the other for the hapless, victimized litigant. Our forefathers, who gave so much, would be
rolling around in their graves if they knew what is happening.” Id. at 3. Plaintiff again repeated
that Whole Foods Counsel “has engaged in literally hundreds of violations of the Federal Rules
of Civil Procedure, the U.S. Constitution, the precedent case law and the District of Columbia
Rules of Professional Conduct. He has incessantly lied to the Court, filed false documents and is
more than a candidate for disbarment,” and that “Whole Foods’ discovery was so vicious,
fiendish and sadistic that it had little to do with legitimate discovery.” Pl.’s Mot. [102] at 1, 5.
The Court denied her motion, finding that Ms. Kindig had the same discovery requirements and
guidelines as Whole Foods and declining her request to alter or extend discovery any further.
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Mem. Op. [107] at 4-7. The Court also denied her motion for recusal and her request that the
case be transferred to a District Court judge. Id. at 6-7.
On December 19, 2012, the Court issued a scheduling order. Scheduling Order [108].
The Court set the deadlines for the parties to submit Pretrial Statements, Proposed Jury
Instructions, Voir Dire, and Verdict Forms by March 20, 2013, with a Pretrial Conference set for
April 1, 2013, and trial scheduled to begin April 8, 2013. Id.
On January 22, 2013, Ms. Kindig filed Plaintiff’s Objection to Judge Kay’s
Memorandum of Opinion Dated December 10, 2012, and Motion that Said Memorandum be
Reconsidered by the Jury [112]. Ms. Kindig stated the following:
1. The Court has consistently and systematically been destroying Plaintiff’s case
and stacked the case in favor of Whole Foods by blocking Plaintiff’s discovery
and making rulings blatantly in violation of the Federal Rules of Civil Procedure,
the District of Columbia Rules of Professional Conduct, the Canons of Judicial
Conduct and the clearly documented facts and evidence.
2. The Opinion is replete with false statements; off-the-wall statements and
statements at total variance with the facts.
Pl.’s Objections [112] at 2. Ms. Kindig also filed Motions for Sanctions under Rule 11 and 28
U.S.C. § 1927. Pl.’s Mot. for Sanctions [110], Pl.’s Mot. for Sanctions [111]. Whole Foods
filed a second Motion for Summary Judgment, alleging that Ms. Kindig cannot prove that Whole
Foods had actual or constructive notice of the water where she allegedly slipped. Def.’s Mot. for
Summ. J. [114] at 2. The Court denied Ms. Kindig’s Motion for Reconsideration because she
failed to demonstrate new facts or law to support her motion. Mem. Op. [123] at 4. The Court
denied Whole Foods’ Motion for Summary Judgment because of factual questions still at issue.
Mem. Op. [128] at 4-7.
On March 20, 2013, Whole Foods timely submitted its Pretrial Statement [130],
Proposed Voir Dire [131], Proposed Jury Instructions [132], and Proposed Verdict Form [133].
Additionally, on March 26, 2013, it filed a Motion to Dismiss based on Ms. Kindig’s failure to
file Expert Disclosures and Pretrial Statement, making it impossible for Whole Foods to
adequately prepare for trial. Def.’s Mot. to Dismiss [134] at 3-4.
Ms. Kindig called Chambers on March 29, 2013, to inform the Court that she was ill.
Minute Order Mar. 29, 2013 (“Plaintiff has informed the Court that she is unable to attend the
Pretrial Conference on 4/1/2013 due to medical concerns. Pretrial Conference on 4/1/2013 is
postponed.”). The Court then scheduled a telephone conference to ascertain the nature of Ms.
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Kindig’s medical condition preventing her from attending the final Pretrial Conference. Minute
Order Apr. 1, 2013. Plaintiff subsequently contacted Chambers stating she was exhausted due to
illness and unable to participate in Telephone Conference. Id.
On April 8, 2013, Ms. Kindig filed a Motion seeking a stay in proceeding until May 31,
2013, because of cardiac issues. Pl.’s Mot. to Stay [136] at 2. In support of this Motion, she
submitted two notes on letterhead paper from her medical professionals. The first stated as
follows:
“April 5, 2013
To whom it may concern:
Ms. Marion Kindig (DOB: 05/22/1931) is having ongoing cardiac issues and in my
opinion needs a stay of all court proceedings until May 31, 2013.
Sincerely,
[/s/]
Edward N. Bodurian, M.D.”
Pl.’s Mot. Ex. 1 [136].
The second, dated the day after Ms. Kindig’s Motion was filed, stated as follows:
“4/9/2013
To Whom It May Concern:
Ms. Kindig has been seen by her cardiologist, Dr. Bodurian, for her ongoing cardiac
issue. I concur with Dr. Bodurian that she should stay out of all court proceedings until
May 31, 2013.
Sincerely,
[/s/]
Ali Safayan, MD, PC”
Pl.’s Mot. Supp. Ex. [157].
The Court held a series of Telephone Conferences during April and May 2013. See
Minute Orders Apr. 2, 2013; Apr. 9, 2013; Apr. 30, 2013; May 21, 2013; May 22, 2013. On
April 30, 2013, the Court issued a revised scheduling order in which the Pretrial Conference was
rescheduled for June 10, 2013, and a jury trial was scheduled to begin June 24, 2013. Order
[137]. At the May 21, 2013, telephone conference the undersigned again suggested to Ms.
Kindig that she should reconsider Mediation in light of the impending trial. The Court requested
Plaintiff to respond the following day. On the following day Plaintiff again expressed no interest
in mediation. The Court then revised the scheduling order, resetting Plaintiff’s Pretrial
Statement to be submitted on July 15, 2013, the final Pretrial Conference on August 6, 2013, and
at Plaintiff’s request the jury trial was scheduled for August 19, 2013. Order [139].
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Ms. Kindig submitted her Proposed Voir Dire [141] and a partial Pretrial Statement [142]
on July 15, 2013. The second page of the proposed Voir Dire and the fourth page of the Pretrial
Statement contained the following handwritten statement “My copier stopped working, so I will
deliver the rest of the pleadings as soon as possible.” Proposed Voir Dire [141] at 2; Pretrial
Statement [142] at 4.
Ms. Kindig submitted a Supplement to her Pretrial Statement [144] on July 22, 2013. In
Plaintiff’s supplement to her Pretrial Statement Ms. Kindig succinctly outlined her case for
approximately two pages. She then proceeded to describe eight incidents which she called
“Fraud Upon the Court.” Pl.’s Supp. to Pretrial Statement [144] at 2-7. These included the
following: Whole Foods’ third party complaint against Solomon Arega; the circumstances
leading to her dismissal of her attorney, Justin Beall; Plaintiff’s medical issues that allegedly
resulted from the filings submitted by Whole Foods; the discovery proceedings, including
depositions and medical records; Plaintiff’s refusal to engage in mediation unless she proceeded
pro se; Whole Foods’ Second Motion for Summary Judgment; and Whole Foods’ alleged refusal
to confer with Ms. Kindig. Id. at 3-7.
On August 6, 2013, the morning of the scheduled Pretrial conference, Ms. Kindig filed
Plaintiff’s Motion to Reschedule the Trial Dates August 19-23, 2013, Due to Judge Kay’s
Unavailability2; and Motion to Set Said Date in Compliance with LCvR 16.3 [146]. In her
Motion, Ms. Kindig again alleged that Whole Foods committed a variety of improper acts,
stating:
They have consisently [sic] lied to the Court; filed ongoing documents under
signature which are blatant, brazen lies and misrepresentations; bombarded
Plaintiff with reams of frivolous paper containing more lies and
misrepresentations; have engaged in conduct so vicious, brutal and sadistic that
Plaintiff ended up in a hospital with a heart condition and she never had any heart
problems before; and, in general, have made a farce out of these proceeding.
Pl.’s Mot. [146] at 3.
Additionally, Plaintiff again accused Whole Foods of failing to confer with her as
required by the Local Rules. Plaintiff failed to acknowledge that the District Judge explicitly
ordered the parties not to confer prior to filing motions. Plaintiff stated:
2
Plaintiff’s assertion of the Court’s unavailability was the Court’s moving the commencement of the trial from
9:30am on August 19, 2013, to 1:45pm on the same date.
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Ever since the outset of this case, Whole Foods has incessantly refused to confer
even once as they are required to do. This has created a plethora of problems in
that most problems could easily be resolved by simply conferring. They have
instead used these refusals as an excuse to file a barrage of frivolous, mostly
irrelevant paper designed to break Plaintiff down and drive her into a heart attack.
Plaintiff is determined not to let this happen and will not answer any more of this
farcical nonsense.
Pl.’s Mot. [146] at 4.
On August 19, 2013, with the trial scheduled for 1:45p.m., between approximately 8:30
and 9:30 a.m. Ms. Kindig filed Plaintiff’s Motion, Due to Attorneys’ Conflict of Schedule, to
Have this Case Continued Until They Can be in Court [148]. In her Motion, she requested that
the Court “continue this case at the request of Attorney Ann Wilcox and Attorney James Klimaski
because they are unable to be in Court on the 19th of August, 2013, to take over this case due to
their having Court appearances in another Court on that date.” Pl.’s Mot. [148] at 1 (emphasis
added). Whole Foods vehemently opposed this motion and requested that the Court dismiss the
case with prejudice. Tr. [149] at 15:17-16:17.
The Court contacted Mr. James Klimaski on the morning of August 19, 2013. Mr.
Klimaski stated that he had only received an email from Ms. Wilcox, who told Mr. Klimaski that
she had spoken to Ms. Kindig. Plaintiff had called Ms. Wilcox about representing her at trial.
Mr. Klimaski said he had never spoken to Ms. Kindig, he did not have an attorney-client
relationship with her, and did not know anything about the case. The Court then told Whole
Foods counsel that the trial date was canceled pending more information as to the alleged
representation of Ms. Kindig by Counsel. On August 19, 2013, the Court also left a telephone
message for Ms. Wilcox. On August 20, 2013, Ms. Wilcox called chambers and confirmed that
she had received several phone calls from Ms. Kindig the prior weekend, but stated that she did
not have a signed retainer agreement with Ms. Kindig and that she had expressed to Plaintiff
only a willingness to speak to her about the case.
Whole Foods filed a Motion to Dismiss [150] based on Ms. Kindig’s misrepresentation
about her counsel and a Motion for Sanctions [151] for the costs of the canceled trial.
The Court issued a Show Cause Order on August 23, 2013, scheduling a hearing for
Plaintiff to show cause “why the case should not be dismissed for her affirmative
misrepresentations on the morning of trial and other failures to comply with the Court’s orders.”
Order to Show Cause [152] at 1. Ms. Kindig attended the August 27, 2013, show cause hearing
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and was accompanied by Ms. Wilcox. Plaintiff stated that Ms. Wilcox was her attorney advisor,
and Plaintiff would proceed to represent herself pro se for the show cause hearing. Tr. [158] at
3:15-18, 9:12-10:18. Plaintiff explained to the Court that, “For a couple of weeks I was kind of
calling around and checking around,” seeking an attorney because she felt overwhelmed by
paper from Defendant, she was in a state of exhaustion, and could not go on any longer. Id. at
8:15-17. She reiterated her complaints about earlier procedural violations, the need for parties to
confer before filing motions, and the lack of discovery. Id. at 22:19-28:19. Whole Foods argued
that the prejudice to Whole Foods has been severe based on Ms. Kindig’s last minute
cancellation and that Ms. Kindig has made gross misrepresentations to the Court about her
alleged attorney-client relationships. Id. at 29:3-32:18. At the close of the hearing, the Court
orally dismissed the case with prejudice sua sponte. Id. at 52:9-10. It denied Whole Food’s
Motion to Dismiss [150] as moot and gave Ms. Kindig fourteen days from the date she received
this Opinion to respond to Whole Food’s Motion for Sanction for costs. Id. at 50:10-12.
LEGAL STANDARD
The Court has the discretion to use dismissal as a sanction for a party’s misconduct in
three specific circumstances. First, in circumstances where “the errant party’s behavior has
severely hampered the other party’s ability to present his case – in other words, that the other
party has been so prejudiced by the misconduct that it would be unfair to require him to proceed
further in the case.” Webb v. D.C., 146 F.3d 964, 971 (D.C. Cir. 1998) (internal quotations and
citations omitted). Second, the Court may consider “the prejudice caused to the judicial system
when the party’s misconduct has put an intolerable burden on a district court by requiring the
court to modify its own docket and operations in order to accommodate the delay.” Id. (internal
quotations and citations omitted). The Court may use its “inherent power” in order “to protect
[its] integrity and prevent abuses of the judicial process.” Shepherd v. Am. Broadcasting Co.,
Inc., 62 F.3d 1469, 1474 (D.C. Cir. 1995). Third, the Court may take into account the need “to
sanction conduct that is disrespectful to the court and to deter similar misconduct in the future.”
Id. (internal citations and quotations omitted). Dismissal under these circumstances must be
based on findings supported by the record. Webb, 146 F.3d at 971. Although the district court is
not required to exhaust all lesser sanctions before dismissing a case under its inherent power, the
court must give a specific, reasoned explanation to clarify why lesser sanctions are insufficient.
Id. at 971-72.
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DISCUSSION
Under the standard established in Webb, the Court asserts its discretion and dismisses this
case, finding that Ms. Kindig’s actions from the filing of the Complaint to the date of the
scheduled trial were prejudicial to Whole Foods, burdensome to the judiciary, and disrespectful
to Defendant and the Court.
I. Prejudice to Whole Foods
As Whole Foods has repeatedly asserted in its motions, it has been prejudiced in its
ability to defend the case, has been financially burdened by Ms. Kindig’s actions, has wasted a
great deal of time and effort attempting to resolve what should have been a routine slip and fall
case, and suffered prejudicial accusations from Ms. Kindig. Plaintiff failed to provide simple
discovery documents, including arguing about signing a release form for Whole Foods to access
her Medicare records and grudgingly complying with an independent medical examination.
Additionally, she expressed interest in mediation on several occasions, only to delay
proceedings when she consistently refused to mediate. In terms of trial preparation, she
submitted a Pretrial Statement late and without the requisite information. See Pl.’s Pretrial
Statement [142]; Pl.’s Supplement to Pretrial Statement [144]. Whole Foods was prepared for
trial on two occasions, in April 2013 and August 2013, that had to be canceled because Plaintiff
claimed illness for one and the other that she had retained counsel to represent her. Whole
Foods submitted a Motion for Sanctions in which it seeks over $30,000.00 for costs related to
the canceled trial, including airfare and hotels for Whole Foods representatives and witnesses,
medical expert fees, and legal fees. Def.’s Mot. for Sanctions [151] at 7. Plaintiff repeatedly
made accusations against Whole Foods, insulting its integrity as a corporation, including
allegations totally irrelevant to the slip and fall as set forth in the Complaint. See Pl.’s Opp.
[120] at 1 (Plaintiff refers to “a pattern from the fraud and lies which it has engaged in this case
from the fraud and lies it engages in when it has a large sign in its’ [sic] stores stating that it does
not sell Genetically Modified Food, and when a prestigious laboratory tested samples from its
store, more than 50% was Genetically Modified Food. It is also not surprising that it would
viciously and sadistically terrorize Mr. Arega as it is documented that this vicious and sadistic
behavior is a pattern with which it not only treats its’ [sic] employees.”); Pl.’s Reply [105] at 3
(“It is little wonder that there is an article about Whole Foods’ CEO, John Mackey, describing
his behaviour as ‘It borders on pathological behaviour.’”).
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II. Burden on the Judiciary
The Court has also been burdened by Ms. Kindig’s actions. Judge Huvelle, Magistrate
Judge Robinson, and the undersigned Magistrate Judge attempted to move the case to resolution
to no avail. Plaintiff filed an interlocutory appeal to the Court of Appeals, which was summarily
denied because the Order in question was not a final appealable order. Court of Appeals Order
[41]. Ms. Kindig also made motions to recuse all three judges who have presided over her case,
making serious unfounded allegations of bias and violations of the Judicial Code of Conduct.
See Pl.’s Mot. for Recusal of the District Judge [62]; Pl.’s Mot. to Disqualify the District Judge
and the Magistrate Judge [81]; and Pl.’s Mot. that undersigned Magistrate Judge Disqualify
Himself [102]. Ms. Kindig has repeatedly ignored the Court’s orders, including attempting to
relitigate issues upon which the Court has ruled.
This Court has twice cleared its docket for a full week of trial, once beginning April 8,
2013, and once beginning August 19, 2013. On the latter occasion, the Court had summoned a
panel of 25 potential jurors who were awaiting jury selection in the Courthouse. The morning of
the trial, Ms. Kindig moved to cancel the trial, alleging she had retained Counsel. This statement
was not accurate.
III. Disrespectful Actions
Ms. Kindig, in most of her pleadings and in the Court hearings and telephone status
hearings, consistently used invective language, made unfounded accusations, and threatened the
initiation of disciplinary proceedings against all participants in this case, including the three
judges, opposing counsel, Plaintiff’s former counsel, and Whole Foods itself. The language used
by Ms. Kindig in her pleadings and in the Courtroom is unlike any other that this Court has seen
or heard, by either an attorney or a pro se party. Through repeated use of the words “sadistic,”
“fiendish,” “vicious,” “brutal,” “harassment,” “threats,” and “fraud,” Ms. Kindig demonstrated
an utter disregard for the civility of the Courtroom process and the courtesy with which opposing
parties should treat each other. Her actions were disrespectful to the Court and to the opposing
party.
IV. Lesser Sanctions Are Insufficient
The Court recognizes the need for restraint in exercising its inherent authority. In this
case, a District Judge and two Magistrate Judges have made ample accommodations for Ms.
Kindig throughout motion practice, scheduling, and the pretrial process. Dismissal is now the
appropriate sanction for the accumulated behavior described herein, and specifically for the
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record of misleading communication to the Court regarding retention of counsel. Lesser
sanctions or issue-specific sanctions would be futile. Ms. Kindig dismissed her first attorney,
later refused the presence of a pro bono attorney for purpose of mediation, and the morning of
the rescheduled trial moved the Court for a second continuance. The basis of this motion was a
purported request by her putative attorneys, but Ms. Kindig had not retained these attorneys and
the attorneys apparently had made no such request. Ms. Kindig misled the Court. There has
been no indication, either at the Show Cause Hearing of August 27, 2013, or otherwise, that
Plaintiff intends to modify her conduct.
CONCLUSION
For the reasons stated above, including the prejudice to Whole Foods, the burden
imposed on the judiciary, and Plaintiff’s misrepresentations and dilatory acts that impeded the
trial, the Court DISMISSES the action WITH PREJUDICE.
DATE: September 20, 2013 /s/ Alan Kay
ALAN KAY
UNITED STATES MAGISTRATE JUDGE
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