Gray v. Monicals Pizza Corporation

Filing 46

OPINION entered by Judge Colin Stirling Bruce on 4/1/2014. Plaintiff's Motion for Extension of Time to Complete Discovery 40 is GRANTED. The discovery deadline in this case is extended to 5/30/2014. Defendant's Motion for Summary Judgm ent 31 is GRANTED, in part, and DENIED, in part. The Motion is granted as to Plaintiff's retaliation claim because Plaintiff conceded he cannot establish a prima facie case of retaliation. The Motion for Summary Judgment is DENIED as to Plai ntiff's claims of racial harrassment and racial discrimination. Because the discovery deadline has been extended, this court extends the dispositive motion deadline to 6/30/2014. Accordingly, Defendant may file a new Motion for Summary Judgment as to the remaining claims on or before that date. Defendant's Motion to Strike 36 is DENIED. See written opinion. Copy of opinion mailed to pro se plaintiff, Nathan D Gray, 103 Tennessee Avenue, Danville, IL 61832. (DS, ilcd)

E-FILED

Tuesday, 01 April, 2014 02:39:51 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
____________________________________________________________________________
NATHAN D. GRAY,
)
)
Plaintiff,
)
v.
)
Case No. 13-CV-2113
)
MONICAL PIZZA CORPORATION,
)
)
Defendant.
)
OPINION

This case is before the court for ruling on various pending motions. Following careful
review, this court rules as follows: (1) Plaintiff’s pro se Request for Extension of Time for
Discovery (#40) is GRANTED; (2) Defendant’s Motion for Summary Judgment (#31) is
GRANTED, in part, and DENIED, in part, with leave to file a new Motion for Summary
Judgment following the close of discovery; and (3) Defendant’s Motion to Strike (#36) is
DENIED.
BACKGROUND
On May 22, 2013, Plaintiff, Nathan D. Gray, filed a pro se Complaint (#1) against
Defendant, Monical Pizza Corporation, alleging racial harassment, racial discrimination and
retaliation. On June 10, 2013, Defendant filed its Answer and Affirmative Defenses (#7).
On June 20, 2013, the parties filed a Report of Rule 26(f) Planning Meeting (#11) which
included proposed pleading and discovery deadlines. A Rule 16 conference was held on July
18, 2013, before Magistrate Judge David G. Bernthal. Judge Bernthal approved the plan
proposed by the parties. Judge Bernthal entered a text order which stated, in pertinent part,
that the discovery deadline was March 28, 2014, and that case dispositive motions were due

by May 23, 2014. The parties’ proposed pleading and discovery dates did not state that
written discovery had to be served more than 30 days prior to the discovery deadline.
Because Judge Bernthal’s order adopted the dates provided by the parties, his order also did
not include this language.
On January 27, 2014, Defendant filed a Motion for Summary Judgment (#31) and a
Memorandum in Support (#32) with attached exhibits. The exhibits included a transcript of
Plaintiff’s deposition and affidavits of various management employees of Defendant.
Defendant argued that it was entitled to summary judgment on Plaintiff’s claims because
Plaintiff could not establish a prima facie case of racial harassment, racial discrimination or
retaliation.
On February 21, 2014, Plaintiff filed a pro se Response to Motion for Summary
Judgment (#34) and a Memorandum in Support (#35) with attached exhibits, including
affidavits. In his Response, Plaintiff conceded that he could not establish a prima facie case
of retaliation. He argued, however, that he was routinely subjected to unwelcome harassment
by Defendant and that he needed additional discovery regarding his discrimination claim.
Plaintiff argued that the case was still in the discovery phase and he was requesting
additional discovery pursuant to Rule 56(d) of the Federal Rules of Civil Procedure.
Defendant did not file a Reply and did not respond to Plaintiff’s argument that he
needed additional discovery. Defendant did file a Motion to Strike (#36) on February 24,
2014, and argued that some statements included in the affidavits filed by Plaintiff were
inadmissible hearsay and should be stricken. Defendant did not file a Memorandum of Law
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in support of the Motion to Strike, as required by Rule 7.1(B)(1) of the Local Rules of the
Central District of Illinois. On March 7, 2014, Plaintiff filed his Response to Motion to
Strike (#39). Plaintiff argued that the statements Defendant claimed were inadmissible
hearsay were supported “by corroborating circumstances that clearly indicate [their]
trustworthiness which from the plaintiff[’]s understanding excludes it from the hearsay rule.”
On March 17, 2014, Plaintiff filed a pro se Request for Extension of Time for
Discovery (#40). Plaintiff asked that discovery be extended an additional 60 days from the
March 28, 2014, deadline. Plaintiff stated that the March 28, 2014, deadline did not give him
enough time. On March 17, 2014, Defendant filed its Objection to Plaintiff’s Request for
Extension of Time for Discovery (#41). Defendant stated that discovery had proceeded in
this case in a timely manner and a Motion for Summary Judgment had been filed. Defendant
stated that, on March 3, 2014, Plaintiff propounded a “First Set of Interrogatories to
Defendant,” which was received by Defendant’s counsel on March 7, 2014. Defendant
stated that response date would be outside the court’s Rule 16 Order. Defendant further
stated that, on March 12, 2014, Plaintiff propounded a Second Set of Interrogatories and a
“Seventh” Request for Production of Documents. Defendant argued that Plaintiff did not
give an explanation for his need for an extension of time, other than he simply had not
completed discovery as he would have liked. Defendant argued that there is no need or
reason to extend discovery and asked this court to deny Plaintiff’s Request.
On March 24, 2014, Plaintiff filed a Response to Defendant’s Objection (#44).
Plaintiff pointed out that the parties agreed to a discovery deadline of March 28, 2014, and
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that he propounded his requests for discovery prior to that date. Plaintiff also stated that it
is his understanding that Defendant’s filing of a Motion for Summary Judgment did not end
the discovery phase of the case. Plaintiff asked this court to allow the extension of time so
that Defendant can respond to the discovery requests and Plaintiff can file any proper
motions with the court if Defendant does not comply with the requests.
ANALYSIS
REQUEST FOR EXTENSION OF TIME FOR DISCOVERY
In his pro se Response to Defendant’s Motion for Summary Judgment, Plaintiff stated
that he needed additional discovery pursuant to Rule 56(d) of the Federal Rules of Civil
Procedure. Plaintiff indicated that he needed additional information about the termination
of Kevin Royalty to counter Defendant’s argument that Royalty, who is white, was engaged
in conduct similar to that of Plaintiff and was also terminated. Plaintiff stated that “the exact
circumstances of what Mr. Royalty was doing have not been disclosed” and “are unknown
to the plaintiff.” Defendant did not file a Reply to Plaintiff’s pro se Response and did not
respond to this argument.
Plaintiff subsequently filed his Request for Extension of Time for Discovery (#40).
Defendant objected to Plaintiff’s Request, arguing, in part, that the response date for
Plaintiff’s latest requests for written discovery was outside the court’s Rule 16 order. This
court understands Defendant to mean that the response date would be after the March 28,
2014 discovery deadline set by the court. This court agrees with Plaintiff, however, that
nothing in the court’s order setting dates for discovery states that written discovery requests
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had to be filed more than 30 days prior to the discovery deadline. Further, Rules 33 and 34
of the Federal Rules of Civil Procedure, which relate to written discovery requests, include
no such requirement. This court concludes that the pro se Plaintiff has adequately shown that
additional discovery is necessary in this case. This court also concludes that a 60-day
extension is reasonable. Accordingly, Plaintiff’s Request for Extension of Time for
Discovery (#40) is GRANTED. The discovery deadline in this case is extended to May 30,
2014.
MOTION FOR SUMMARY JUDGMENT
Because Plaintiff has conceded that he cannot establish a prima facie case of
retaliation, this court concludes that Defendant’s Motion for Summary Judgment (#31) must
be granted as to Plaintiff’s retaliation claim. However, this court concludes that the Motion
for Summary Judgment must be denied as to the racial harassment and racial discrimination
claims. This court has allowed Plaintiff additional time to conduct discovery. Rule 56(d)
provides, regarding motions for summary judgment:
If a nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its opposition, the
court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.
Fed. R. Civ. P. 56(d). Although the pro se Plaintiff filed numerous affidavits with his
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Response to the Motion for Summary Judgment, he did not file the type of affidavit
contemplated by Rule 56(d). This court has nonetheless concluded that Plaintiff has
adequately shown that he needed additional discovery under Rule 56(d). This is especially
true here where the discovery deadline had not passed at the time Defendant filed its Motion
for Summary Judgment. Therefore, Defendant’s Motion for Summary Judgment (#31) is
DENIED as to Plaintiff’s claims of racial harassment and racial discrimination. This court
will extend the dispositive motion deadline to June 30, 2014. Defendant may file a new
Motion for Summary Judgment on or before that date.
MOTION TO STRIKE
Defendant filed a Motion to Strike (#36) and argued that some statements included
in the affidavits filed by Plaintiff were inadmissible hearsay and should be stricken.
Defendant did not file a Memorandum of Law in support of the Motion to Strike, as required
by Rule 7.1(B)(1) of the Local Rules of the Central District of Illinois. Because the Motion
for Summary Judgment has been ruled on, this Motion could be found moot. However, this
court notes that motions to strike are disfavored. See Hahn v. Walsh, 915 F. Supp. 2d 925,
941 (C. D. Ill. 2013); Nuzzi v. St. George Cmty. Consol. Sch. Dist. No. 258, 688 F. Supp. 2d
815, 830 (C.D. Ill. 2010). The Seventh Circuit has expressed the opinion that motions to
strike “are not only unnecessary (from the parties’ perspective) but also pointless (from the
judiciary’s).” Custom Vehicles, Inc. v. Forest River, Inc., 464 F.3d 725, 727-28 (7th Cir.
2006). This court’s position is that it is confident in “its ability to consider only arguments
and facts which are properly presented” so that motions to strike will rarely be granted. See
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Hahn, 915 F. Supp. 2d at 941, quoting Nuzzi, 688 F. Supp. 2d at 830. This court is well
aware that “[a]n affidavit or declaration used to support or oppose a motion [for summary
judgment] must be made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to testify on the matters stated.”
Fed. R. Civ. P. 56(c)(4). A court may consider only admissible evidence in assessing a
motion for summary judgment. Sow v. Fortville Police Dep’t, 636 F.3d 293, 301 (7th Cir.
2011). Statements by an affiant regarding what someone else said generally constitute
inadmissible hearsay, which cannot be used to support opposition to a motion for summary
judgment. See Harden v. Marion County Sheriff’s Dep’t, 2014 WL 852946, at *5 (S.D. Ind.
2014), citing Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996).
This court concludes that, because Defendant did not file the required memorandum
of law and because motions to strike are disfavored, Defendant’s Motion to Strike (#36) must
be DENIED. This court advises Plaintiff, however, that any affidavits he files in opposition
to a new Motion for Summary Judgment filed by Defendant will be considered by this court
only if they comply with Rule 56(c)(4) and contain admissible evidence.
IT IS THEREFORE ORDERED THAT:
(1) Plaintiff’s pro se Motion for Extension of Time to Complete Discovery (#40) is
GRANTED. The discovery deadline in this case is extended to May 30, 2014.
(2) Defendant’s Motion for Summary Judgment (#31) is GRANTED, in part, and
DENIED, in part. The Motion is granted as to Plaintiff’s retaliation claim because Plaintiff
conceded he cannot establish a prima facie case of retaliation. The Motion for Summary
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Judgment is denied as to Plaintiff’s claims of racial harassment and racial discrimination.
Because the discovery deadline has been extended, this court extends the dispositive motion
deadline to June 30, 2014. Accordingly, Defendant may file a new Motion for Summary
Judgment as to the remaining claims on or before that date.
(3) Defendant’s Motion to Strike (#36) is DENIED.
ENTERED this 1st day of April, 2014.

s/COLIN S. BRUCE
U.S. DISTRICT JUDGE

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