Cheryl Pickenpack v. Third Act Pictures, Inc. et al

Filing 52

MEMORANDUM Opinion and Order Signed by the Honorable Young B. Kim on 1/27/2014. (ma,)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CHERYL PICKENPACK,
Plaintiff,
v.
THIRD ACT PICTURES, INC.,
LEGENDARY PICTURES, INC., and
WARNER BROTHERS
ENTERTAINMENT, INC.,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)

No. 13 CV 354
Magistrate Judge Young B. Kim

January 27, 2014

MEMORANDUM OPINION and ORDER
Before the court is the motion of Defendants Third Act Pictures, Inc. (“Third
Act”), Legendary Pictures, Inc. (“Legendary”), and Warner Brothers Entertainment,
Inc. (“Warner Bros.”) for summary judgment pursuant to Federal Rule of Civil
Procedure 56. The motion is granted in part and denied in part for the following
reasons:
Background
In this case, Cheryl Pickenpack alleges that Defendants’ negligence caused
her to sustain injuries while she was working on the set of a film production. (R. 1,
Compl.) The parties have consented to the jurisdiction of this court, (R. 23), and
have exchanged Rule 26(a)(1) disclosures, (R. 30). During a status hearing on June
5, 2013, the court ordered that discovery proceed in stages (the “June Order”).
(R. 30.) The first stage of discovery would focus on Pickenpack’s employment status
at the time of the alleged incident and the identification of other parties who might

be responsible for her injuries. (Id.) After the parties served their initial discovery
requests and exchanged responses, Defendants reported at the September 11, 2013
status hearing that they would be moving for summary judgment.

(R. 37.)

Defendants filed their motion on November 8, 2013. (R. 41.) Pickenpack timely
filed her response on December 11, 2013, (R. 46), and Defendants timely filed their
reply on December 30, 2013, (R. 50).
Analysis
Summary judgment is appropriate where “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A genuine
issue of material fact is not shown by the mere existence of “some alleged factual
dispute between the parties,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986), or by “some metaphysical doubt as to the material facts,” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue
of material fact exists when “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
In reviewing a motion for summary judgment, this court draws all reasonable
inferences from the evidence in the light most favorable to the nonmoving party.
Carmichael v. Village of Palatine, Ill., 605 F.3d 451, 456 (7th Cir. 2010).

The

moving party bears the burden of establishing the basis for its motion and
“identifying those portions of the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, which it believes

2

demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at
323. Once the moving party has met its burden, the responsibility shifts to the
nonmoving party to show that an issue of material fact exists. Keri v. Bd. of Tr. of
Purdue Univ., 458 F.3d 620, 628 (7th Cir. 2006). The nonmoving party cannot
simply rest on allegations in the pleadings, but “by affidavits or as otherwise
provided for in [Rule 56], must set forth specific facts showing that there is a
genuine issue for trial.” Fed. R. Civ. P. 56(e); LINC Fin. Corp. v. Onwuteaka, 129
F.3d 917, 920 (7th Cir. 1997).
Although Rule 56 does not require that discovery be complete before
summary judgment can be granted, Waterloo Furniture Components, Ltd. v.
Haworth, Inc., 467 F.3d 641, 648 (7th Cir. 2006), if a party needs further discovery
to respond to a motion for summary judgment, she must explain the reasons why
she cannot present evidence essential to her opposition, see Larsen v. Elk Grove
Village, Ill., 433 Fed. Appx. 470, 472 (7th Cir. 2011). Rule 56(d) authorizes a court
to deny or defer ruling on a motion for summary judgment to allow time to take
additional discovery if a nonmovant “shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its opposition[.]”1 Fed.
R. Civ. P. 56(d); Kalis v. Colgate-Palmolive Co., 231 F.3d 1049, 1057 n.5 (7th Cir.
2000). This rule “does not allow a party to block summary judgment simply by
offering generalities about the need for further discovery.” Staten v. Nissan N. Am.,
Inc., 134 Fed. Appx. 963, 965 (7th Cir. 2005). The party seeking protection must

1

Rule 56(d) was formerly designated as Rule 56(f).
3

point to specific evidence that it reasonably believes it will discover if given the
additional time. See Pactiv Corp. v. Multisorb Techs., Inc., 823 F. Supp.2d 840, 844
(N.D. Ill. 2011). Furthermore, the party seeking additional discovery must also
demonstrate that it has not been dilatory in pursuing the necessary discovery. See
Kalis, 231 F.3d at 1057 n.5 (when a party fails to secure discoverable evidence due
to her own lack of diligence, the necessary justification for a continuance is lacking).
The Seventh Circuit has instructed that courts should construe Rule 56(d) liberally
to prevent a premature grant of summary judgment. King v. Cooke, 26 F.3d 720,
726 (7th Cir. 1994).
In the motion before the court, Defendants contend that: (1) Pickenpack’s
action against Third Act is barred by the exclusive remedy provision in the Illinois
Workers’ Compensation Act, 820 ILCS 305/5(a); and (2) Warner Bros. and
Legendary owed no duty of care to Pickenpack. (R. 41, Defs.’ Mot. ¶ 9.) In support
of their motion, Defendants submit a Local Rule 56.1 statement of facts which cites
to various employment and services agreements entered into by the parties, policy
acknowledgment forms, Pickenpack’s answers to interrogatories, and three
affidavits signed by Defendants’ employees.

(See R. 43, Defs.’ Facts.)

In her

response, Pickenpack agrees that Third Act is entitled to summary judgment.
(R. 46, Pl.’s Resp. ¶ 3.) However, Pickenpack opposes the remainder of the motion,
arguing that granting summary judgment in favor of Warner Bros. and Legendary
would be premature given that no discovery has been undertaken on her negligence
claims against them.

(Id. ¶¶ 7-8.)

Pickenpack submits an affidavit from her

4

attorney in support of her request for additional discovery, (R. 48, Schwartz Aff.),
along with her response to Defendants’ Local Rule 56.1 statement of facts, (R. 49).
Defendants argue in their reply that Pickenpack should not be granted additional
time to conduct discovery under Rule 56(d) because she failed to act with the
necessary diligence. (R. 50, Defs.’ Reply at 3-6.)
Regarding Defendants’ first argument that Pickenpack’s action against Third
Act is barred, the parties agree that Third Act is entitled to summary judgment. At
the time this suit was first filed, Pickenpack alleged in her complaint that she was
employed by Cast & Crew Entertainment Services (“Cast & Crew”), a non-party
payroll service provider hired by Third Act. (R. 1, Compl. ¶ 3.) Defendants argue in
their current motion that Plaintiff is barred from seeking damages from Third Act
under the exclusive remedy provision of the Illinois Workers’ Compensation Act,
which provides that:
[n]o common law or statutory right to recover damages from the
employer . . . or agents or employees of [the employer] for injury or
death sustained by any employee while engaged in the line of [her]
duty as such employee, other than the compensation herein provided,
is available to any employee who is covered by the provisions of this
Act[.]
820 ILCS 305/5(a).

In earlier stages of this suit, Plaintiff sought discovery to

determine whether Pickenpack was an employee of any of the named Defendants,
as well as to determine whether additional defendants needed to be added prior to
the expiration of the two-year statute of limitations on her claims. Now that the
parties have had the opportunity to conduct such discovery, Plaintiff stipulates that
at the time of her injury she was acting as an employee of Third Act as well as Cast

5

& Crew. (R. 47, Pl.’s Mem. at 2.) Because a dispute no longer exists as to whether
Pickenpack is barred from seeking damages for her claims against Third Act,
summary judgment is granted in favor of Third Act.
As for Defendants’ argument that Warner Bros. and Legendary owed no duty
of care to Pickenpack, the parties disagree about whether Pickenpack’s request for
additional discovery on this issue warrants the denial or continuance of Defendants’
motion.

Defendants contend that since neither Warner Bros. nor Legendary

directly participated in the filming of the production where Pickenpack suffered her
injury, neither Defendant owed Pickenpack a duty of care. (R. 42, Defs.’ Mem. at
10.) In response to this argument, Pickenpack relies on the June Order stating that
the parties were “to serve their written discovery requests—focusing on Plaintiff’s
employment status at the time of the alleged incident and the identification of other
parties who may be responsible for her injuries—by June 14, 2013.” (R. 30, cited in
R. 47, Pl.’s Mem. at 3.) Pickenpack contends that the order limited discovery solely
to the issues described therein, and since discovery has not commenced regarding
whether Warner Bros. and Legendary owed her a duty of care, Defendants’ motion
is premature.
The court agrees with Pickenpack that granting Defendants’ motion at this
time would be premature. Specifically, there exists a dispute as to whether Warner
Bros. and/or Legendary owed Pickenpack a duty of care, an issue on which discovery
has not been completed. Pickenpack correctly points out that the court separated
discovery into stages in its June Order. (R. 47, Pl.’s Mem. at 3.) During the hearing

6

on June 5, 2013, the court and the parties agreed that the question of whether an
employee-employer relationship existed between Pickenpack and Defendants
needed to be resolved as an initial matter. At the request of Pickenpack’s attorney,
the court agreed to also include within the scope of initial discovery identification of
other potential defendants prior to the running of the statute of limitations for this
action. The court then ordered that discovery on these limited topics go forward
pursuant to a schedule set by the court. (See R. 30.)
During a subsequent status hearing on September 9, 2013, when Defendants
reported that they anticipated filing a motion for summary judgment on behalf of
all three Defendants, (R. 37), this court explicitly cautioned Defendants that their
motion could prompt Pickenpack to move for additional discovery.

Despite this

warning and the June Order, Defendants now argue that Pickenpack already had
her chance to seek additional discovery, and that failing to do so earlier constitutes
lack of diligence on her part. (See R. 50, Defs.’ Reply at 4-6.)
Defendants’ argument falls short for a number of reasons. First, Pickenpack
has not been dilatory in pursuing discovery on whether Warner Bros. and
Legendary owed her a duty of care because that discovery has not commenced.
Defendants contend that such discovery was in fact conducted, notwithstanding this
court’s order because several of Pickenpack’s initial discovery requests sought
information related to Defendants’ role in the production. (Id. at 5.) While the
interrogatories Defendants point to in support of this argument do relate in part to
Defendants’ involvement, they are also relevant to the inquiry of whether an

7

employer-employee relationship existed between the parties.

For example, in

arguing that Pickenpack strayed beyond the scope of the initial phase of discovery,
Defendants refer to one of her interrogatories asking whether Warner Bros. and
Legendary “reserved the right to control the manner in which plaintiff performed
the work she performed during the course of her employment, and if so, which
individuals dictated the manner in which the work was done.” (R. 50, Defs.’ Reply,
Ex. B, at Int. #9.) Defendants point to another interrogatory asking whether “the
employment or assignment of any of the work to subcontractors” was subject to
Legendary’s approval. (Id. at Int. #16.) But Defendants themselves recognize that
a principal factor in determining whether an employee-employer relationship exists
is the employer’s right of control and supervision over the work performed by the
alleged employee. (See R. 42, Defs.’ Mem. at 3-4); Couch v. United States, 694 F.3d
852, 857 (7th Cir. 2012).

The interrogatories Defendants highlight address

Defendants’ right to control and supervise Pickenpack, and are therefore relevant to
determining

whether

an

employee-employer

relationship

existed

between

Pickenpack and Defendants.
Defendants also refer to interrogatories in which Pickenpack seeks
information regarding, among other things, Legendary’s inspection of the premises
prior to Pickenpack’s alleged injury and the names of those who made the
inspections, (R. 50, Defs.’ Reply, Ex. B, at Int. #20), the names of all inspectors or
employees responsible for safety during the production, (id. at Int. #21), and the
names of all inspectors or employees responsible for safety who were present on the

8

day of Pickenpack’s injury, (id. at Int. #22). These interrogatories seek to identify
other parties who may be responsible for Pickenpack’s injuries, a topic squarely
within the confines of the June Order. Even if Pickenpack’s requests exceeded the
scope of the ordered discovery, Defendants could have objected to those
interrogatories (and in some instances Defendants did object) to the extent the
requests sought information irrelevant to Pickenpack’s employment or to the
identification of other potential parties. (See, e.g., id. at ##6 & 10.) In any event,
the fact that issues set for initial discovery happen to touch upon other aspects of
Pickenpack’s claims does not invalidate the discovery limitations imposed by this
court. As such, this court rejects Defendants’ assertion that discovery did in fact
proceed beyond the initial phase outlined by the court and that Pickenpack already
had the opportunity to obtain the discovery she now seeks.
Second, even if discovery had already commenced on the issue of whether
Warner Bros. and Legendary owed Pickenpack a duty of care, Pickenpack has not
demonstrated a lack of diligence in pursuing additional discovery. This is not a
situation where the plaintiff waited until after the discovery deadline and the due
date for her response brief to seek additional discovery, see Kalis, 231 F.3d at 1058
& n.5, nor did she sit on her hands for several months with no explanation for her
inactivity, see Staten v. Nissan N. Am., Inc., 134 Fed. Appx. 963, 965 (7th Cir. 2005).
Instead, Pickenpack’s reliance on the June Order explains why she held off on
seeking additional discovery.

Less than three months elapsed between

Pickenpack’s receipt of Defendants’ initial discovery responses on August 21, 2013,

9

(R. 31), and the filing of Defendants’ summary judgment motion on November 8,
2013, (R. 41). As already discussed, Pickenpack had every reason during that time
period to believe that discovery had not progressed beyond the initial phase defined
by this court. Pickenpack also made a timely request for additional discovery in her
response to Defendants’ motion for summary judgment. (R. 47, Pl.’s Resp. at 3-5.)
While the court recognizes the importance of efficiency in conducting discovery,
Pickenpack has not shown a lack of diligence at this stage of the action.
Finally, Defendants do not appear to dispute that Pickenpack’s response
identifies specific evidence she reasonably believes she will discover if given
additional time.

Pickenpack’s counsel states in an affidavit that additional

discovery would include, “requests regarding safety policies and procedures in effect
at the time of the fall, the names and depositions of crew members charged with
safety procedures on set, [and] the depositions of the affiants cited in the
defendants’ Motion for Summary Judgment.” (R. 48, Schwartz Aff. ¶ 5.) Pickenpack
therefore has met her burden under Rule 56(d). Without first obtaining discovery to
determine whether Defendants owed her a duty of care, Pickenpack is unable to
adequately respond to Defendants’ motion. In view of the fact that discovery has
not been taken on this issue, it would be premature for the court to consider the
motion as it pertains to Pickenpack’s claims against Warner Bros. and Legendary.

10

Conclusion
For the foregoing reasons, Defendants’ motion is granted in part and denied
in part. The motion is granted with respect to Third Act. The motion is denied
without prejudice as it pertains to the claims against Warner Bros. and Legendary.
ENTER:

____________________________________
Young B. Kim
United States Magistrate Judge

11