Vernon v. Kenco Logistics Services
MEMORANDUM Opinion and Order: The Court denies Henry's motion for voluntary dismissal of his case without prejudice 77 . The Court grants in part and denies in part Henry's motion to withdraw his motion for voluntary dismissal, to strike defendant Kenco's motion for summary judgment, to set aside former defendant Mars's dismissal, and for sanctions 90 . The Court grants Henry's request to withdraw his motion for voluntary dismissal, but denies the remainder of his req uested relief. Because the Court has denied Henry's request to strike Kenco's motion for summary judgment, Henry must now respond to that motion as he was previously ordered to do. Henry has had nearly a year to review Kenco's motion a nd develop his responsive arguments, and he missed his prior response deadline. The Court will allow Henry until March 29, 2018 to file a response to the motion for summary judgment, with Kenco's reply due on April 13, 2018. If Henry fails to file a response on or before March 29, 2018, this Court will dismiss his case with prejudice. Signed by the Honorable Thomas M. Durkin on 3/8/2018:Mailed notice(srn, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
KENCO LOGISTICS SERVICES, LLC,
No. 15 C 10961
Judge Thomas M. Durkin
MEMORANDUM OPINION AND ORDER
Plaintiff Vernon Henry (“Henry”) brings this pro se lawsuit against defendant
Kenco Logistics Services, LLC (“Kenco”) alleging that he was denied a promotion
and terminated based on his race. Currently pending before the Court are: (1)
Henry’s motion for voluntary dismissal of his case without prejudice ; and (2)
Henry’s motion to withdraw his motion for voluntary dismissal, to strike defendant
Kenco’s motion for summary judgment, to set aside former defendant Mars Inc.’s
(“Mars’s”) dismissal, and for sanctions . For the reasons explained below, the
Court denies Henry’s motion for voluntary dismissal  and grants in part and
denies in part Henry’s motion to withdraw, to strike, to set aside, and for sanctions
Henry, who is African-American, worked as a forklift operator at a warehouse
facility owned by former defendant Mars and managed by defendant Kenco. He
claims to have been denied a promotion and terminated based on his race.
On December 13, 2016, this Court ruled orally on several motions to dismiss.
R. 70. As relevant here, the Court granted in part and denied in part Mars’s motion
to dismiss, dismissing certain claims against Mars with prejudice and the Title VII
claims against it without prejudice. Id. The Court gave Henry until January 18,
2017 “to supplement his complaint with information regarding Mars’ notice of and
participation in EEOC proceedings” as required to support Henry’s Title VII claims
against Mars. Id. Henry filed a motion for Mars to remain as a defendant on
January 18, along with a second amended complaint. R. 71; R. 72. On February 17,
the Court denied Henry’s motion to have Mars remain as a defendant and set a
briefing schedule on Kenco’s motion for summary judgment. R. 76.
On March 30, a day before Kenco’s summary judgment motion was due,
Henry moved for voluntary dismissal of his case without prejudice. R. 77. Kenco
filed its summary judgment motion as planned on March 31. R. 79. At a status
hearing on April 7, Kenco objected to Henry’s voluntarily dismissing the case
without prejudice after Kenco had already put significant work into its summary
judgment motion seeking dismissal with prejudice.
On May 9, Henry moved to withdraw his motion to voluntarily dismiss
without prejudice, to strike Kenco’s motion for summary judgment, to set aside
Mars’s dismissal, and for sanctions. R. 90. At a hearing on May 10, this Court set a
briefing schedule on Kenco’s motion for summary judgment, with Henry’s response
due on June 9. R. 89.
On May 23, weeks before Henry’s summary judgment response was due, both
Mars and Kenco filed responses to Henry’s motion to withdraw, strike, set aside,
and for sanctions. R. 92; R. 93. Henry never filed a summary judgment response.
Motion to Voluntarily Dismiss
The Court first addresses Henry’s motion to voluntarily dismiss. Because
Henry later moved to withdraw this motion (R. 90), the Court denies the motion as
Even if Henry had not moved to withdraw his motion, the Court would deny
it on the merits. Under Fed. R. Civ. P. 41(a)(1) and (a)(2), after a defendant has filed
an answer (as Kenco has in this case (R. 60)), “an action may be dismissed at the
plaintiff’s request only by court order, on terms that the court considers proper.”
Courts regularly decline to dismiss cases without prejudice where significant
resources already have been devoted to the case by the defendant. See, e.g., Dickie v.
Cannondale Corp., 2003 WL 134990, at *2 (N.D. Ill. Jan. 16, 2003).
Kenco opposes Henry’s motion to voluntarily dismiss without prejudice on the
basis that Kenco incurred significant costs preparing its summary judgment motion
seeking dismissal with prejudice. R. 86. The Court agrees that dismissing without
prejudice now and allowing Henry an opportunity to refile his case would be
unfairly prejudicial to Kenco. The Court therefore would deny Henry’s motion even
if he had not moved to withdraw it.
Motion to Withdraw, to Strike, to Set Aside, and for Sanctions
The Court next turns to Henry’s motion to withdraw his motion for voluntary
dismissal, to strike Kenco’s motion for summary judgment, to set aside Mars’s
dismissal, and for sanctions. R. 90.
Request to Withdraw Motion to Voluntarily Dismiss
The Court grants Henry’s request to withdraw his motion to voluntarily
dismiss without prejudice.
Request to Strike Kenco’s Summary Judgment Motion
Henry also moves to strike Kenco’s motion for summary judgment. Henry
argues that Kenco has not complied with its discovery obligations and has engaged
in deceptive and misleading behavior in this litigation. The record does not support
Henry primarily takes issue with Kenco’s alleged failure to produce certain
documents in this case until April 11, 2017, after Kenco moved for summary
judgment. But as set forth in Kenco’s response to Henry’s motion and supporting
exhibits (R. 93), all of these documents were produced to Henry in the fall of 2016.
In October 2016, Henry raised a concern about a CD that Kenco sent containing
part of its production. Counsel for Kenco promptly sent Henry an email attaching
electronic copies of the documents on the CD and explaining that Henry could call
her with any remaining questions. R. 93-1; R. 93-2; R. 93-3; R. 93-4. Kenco’s counsel
represents that she heard nothing further from Henry on this issue until after
Kenco filed its motion for summary judgment on March 31, 2017. Henry raised a
concern about the CD at the April 7 status hearing, and this Court ordered Kenco to
send paper copies of those documents to Henry. Kenco promptly complied. The
record shows that Kenco responded to Henry’s concerns promptly and diligently as
they were raised.
Henry also says that Kenco tried to withhold certain “smoking gun”
documents from him by sending a non-working CD. R. 90 at 13. Even if Kenco’s
belated sending of paper copies of its production was inappropriate—and the Court
does not find that it was—Henry does not identify any specific documents or explain
why they so important to his case. To the contrary, as Kenco explains, “[t]he
documents that have been produced by Kenco consist of Henry’s own personnel
documents, EEOC FOIA response documents, and records related to other
employees who Henry mentions in his complaint.” R. 93 at 3. To the extent that
Henry finds any of the documents produced by Kenco helpful to his case, he can rely
on those documents in support of his opposition to Kenco’s summary judgment
motion, on which the Court sets a new briefing schedule below. But nothing in the
record gives this Court reason to find that Kenco has failed to comply with its
document production obligations.
Henry makes a number of other arguments, all of which are irrelevant or
contrary to the record. Henry argues that Kenco failed to disclose witnesses, which
is incorrect. See R. 93-5 (Kenco’s March 28, 2016 Fed. R. Civ. P. 26(a) disclosures).
Henry further claims that he was deposed for eight hours by Mars and Kenco. R. 90
at 5. But the deposition transcript shows that his deposition began at 11:20 am and
concluded at 4:50 pm. R. 93-5; R. 92-1. This duration easily complies with Fed. R.
Civ. P. 30(d)(1), which allows depositions of seven hours. Finally, Henry makes
reference to the Food Safety Modernization Act, the Food Drug and Cosmetic Act,
and Quality Management System standards. This Court does not see how these are
relevant to this case, but if they are, Henry can explain why, in a succinct manner,
in his summary judgment opposition. Neither this nor any of Henry’s other
arguments is grounds for striking Kenco’s motion for summary judgment.
Request to Set Aside Dismissal of Mars
Henry next requests that the Court set aside Mars’s dismissal. As this Court
explained in its oral ruling on Mars’s motion to dismiss, neither of the two charges
Henry filed with the Illinois Department of Human Rights and EEOC named Mars
as a respondent or referred to Mars. A party not named in an EEOC charge may
nevertheless be sued under Title VII if the “unnamed party has been provided with
adequate notice of the charge, under circumstances where the party has been given
the opportunity to participate in conciliation proceedings aimed at voluntary
compliance.” Eggleston v. Chicago Journeymen Plumbers’ Local Union No. 130, U.
A., 657 F.2d 890, 905 (7th Cir. 1981); see also Alam v. Miller Brewing Co., 709 F.3d
662, 666-67 (7th Cir. 2013). Both in this Court’s initial ruling on Mars’s motion to
dismiss and its ruling on Henry’s motion for Mars to remain as a defendant, this
Court determined that Henry made no allegations that Mars was on notice of the
EEOC charge against Kenco or that Mars participated in conciliation proceedings.
This Court therefore dismissed Henry’s claims against Mars with prejudice. R. 76.
Henry now makes what is essentially a request for relief from a final order
dismissing Mars under Fed. R. Civ. P. 60(b). His motion can be liberally construed
to allege “fraud . . . misrepresentation, or misconduct by an opposing party” under
Rule 60(b)(3). Relief under Rule 60(b)(3) “is an extraordinary remedy reserved for
exceptional circumstances.” Venson v. Altamirano, 749 F.3d 641, 651 (7th Cir.
2014). “The party seeking relief pursuant to Rule 60(b)(3) must show that he had a
meritorious claim that he could not fully and fairly present at trial due to his
opponent’s fraud, misrepresentation, or misconduct.” Id.
Henry claims he was improperly asked questions by Mars’s counsel at his
October 20, 2016 deposition in this case (when Mars was still a party). Henry points
out that he received the notice of deposition only from Kenco’s counsel, but both
counsel for Kenco and counsel for Mars asked him questions. As this Court
explained at the April 7 status hearing, however, it was appropriate for Mars’s
counsel to ask questions at Henry’s deposition because he named Mars as a
defendant in the case.
Henry specifically complains that he was not adequately prepared to answer
certain questions asked by Mars’s counsel at his deposition. When counsel for Mars
questioned Henry, Henry explained that he intended to argue, as Kenco employees
Mary Madison and Edith Murray had in a similar lawsuit, that “Mars had an
opportunity to participate in conciliation proceedings.” R. 92-1 at 230. He
complained that he “didn’t have time to prepare for this deposition today” to make
that argument. R. 92-1 at 231. To begin, however, depositions are a forum to
respond to factual questions, not to make arguments. Moreover, the argument that
Mars had an opportunity to participate in conciliation proceedings has been rejected
both by this Court and by Judge Bruce in his ruling in Madison and Murray’s
similar lawsuit. R. 92-2 at 10-12, 14 (February 7, 2017 ruling by Judge Bruce
granting a motion to dismiss Mars on the same grounds that this Court dismissed
Mars). The Court does not find that Henry was in any way prejudiced by the fact
that he was apparently not prepared to make an argument at his deposition for
which both this Court and Judge Bruce found no support in the record.
Finally, Henry claims that Mars “made a materially false statement to the
court when it indicated that it did not have an opportunity to be part of the
conciliation process with Plaintiff.” R. 90 at 16. Henry cites in support irrelevant
portions of the Food Drug and Cosmetic Act. As this Court has now found several
times before, Henry has not presented any allegations—beyond his bald assertions,
which do not suffice—plausibly indicating that Mars had an opportunity to
participate in the conciliation process.
In sum, Henry has made nothing close to a showing of “a meritorious claim
that he could not fully and fairly present at trial due to his opponent’s fraud,
misrepresentation, or misconduct” (Venson, 749 F.3d at 651) so as to justify relief
under Rule 60(b)(3). Nor has he given the Court any other reason to consider
vacating its final judgment dismissing Mars.
Request for Sanctions
Because this Court has denied Henry the substantive relief sought in his
motion, the Court also denies Henry’s corresponding request for sanctions.
For the reasons set forth above, this Court denies Henry’s motion for
voluntary dismissal of his case without prejudice . The Court grants in part and
denies in part Henry’s motion to withdraw his motion for voluntary dismissal, to
strike defendant Kenco’s motion for summary judgment, to set aside former
defendant Mars’s dismissal, and for sanctions . The Court grants Henry’s
request to withdraw his motion for voluntary dismissal, but denies the remainder of
his requested relief.
Because the Court has denied Henry’s request to strike Kenco’s motion for
summary judgment, Henry must now respond to that motion as he was previously
ordered to do. Henry has had nearly a year to review Kenco’s motion and develop
his responsive arguments, and he missed his prior response deadline. The Court
will allow Henry until March 29, 2018 to file a response to the motion for summary
judgment, with Kenco’s reply due on April 13, 2018. If Henry fails to file a response
on or before March 29, 2018, this Court will dismiss his case with prejudice.
Honorable Thomas M. Durkin
United States District Judge
Dated: March 8, 2018
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