Wimberly v. Red Points Solutions, Inc.

Background

Jason Wimberly, a former United States Army service member and former employee of Red Points Solutions, Inc., appeared without a lawyer and filed a verified petition seeking permission to take depositions before starting a lawsuit. He alleged a civil conspiracy against rights and defamation. He had already been allowed to proceed without prepaying filing fees.

Wimberly alleged that, on or about July 23, 2020, two coworkers reported that they heard him discussing guns “without color or context.” He said he had discussed military life, not just weapons, with another former service member. He alleged that the coworkers falsely described the conversation and that an adverse employment action followed. He wanted to depose Madhushree Gnanasambandan, an HR business partner; Joan Porta, whom he believed was present; and Mr. Sopade, the person with whom he had spoken. He sought the depositions to identify two people who allegedly made the report so that he could name them as defendants. He appeared to name Apple, Inc. because Red Point Solutions used Apple products for business.

Rule 27 request

Federal Rule of Civil Procedure 27 allows a person to take a deposition before filing an action to preserve testimony about a matter that could be heard in federal court. The court explained that Wimberly had to show three things: what the expected testimony would establish; that he genuinely expected to bring a federal case but was currently unable to do so; and that known testimony would otherwise be lost, concealed, or destroyed.

The court found that Wimberly satisfied none of these requirements. He did not explain what the proposed testimony would demonstrate or show that evidence would be lost without presuit depositions. The court held that using Rule 27 to discover the identities of possible defendants or determine whether a claim exists is not permitted because the rule preserves known testimony rather than serving as a substitute for discovery.

Federal conspiracy claim

Wimberly said he intended to bring a claim under 42 U.S.C. § 1985(3), which addresses conspiracies to deprive people or classes of people of equal protection of the laws or equal legal privileges. The court stated that such a claim requires facts showing a conspiracy, a purpose to deny equal protection or equal privileges, an act furthering the conspiracy, and injury or deprivation of a federal right. The alleged conspiracy must also be motivated by racial or otherwise class-based discriminatory hostility.

The court found that Wimberly alleged no facts showing an actual agreement, how any conspiracy began or operated, or that the respondents acted because of his race or membership in a protected class. It therefore concluded that his allegations were conclusory and that the anticipated conspiracy claim was not cognizable in federal court.

Defamation claim and amendment

The court also considered Wimberly’s proposed state-law defamation claim. It explained that defamation, by itself, does not establish a violation of the federal Constitution or federal law because harm to reputation alone is not a protected federal liberty interest. Although courts often allow a self-represented party to amend a defective filing, the court found amendment would be futile here and declined to grant leave to amend the request for presuit depositions.

Disposition

The court directed the Clerk to mail Wimberly a copy of the order and record service on the docket. It denied Wimberly’s request for preaction relief, which he filed after being allowed to proceed without prepaying fees. The opinion does not state that the court granted or denied a separate filed defamation or conspiracy action; it ruled on the request for presuit depositions.