Brown v. Ray and Joan Kroc Corps Community Center
Filing
66
OPINION AND ORDER: GRANTING 41 Motion for Summary Judgment; DENYING 58 Motion to Strike. Accordingly this case is DISMISSED WITH PREJUDICE, ***Civil Case Terminated. Signed by Judge Rudy Lozano on 10/10/14. (jld)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
LEANDER BROWN,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
THE SALVATION ARMY,
RAY AND JOAN KROC CORPS
COMMUNITY CENTER,
Defendant.
NO. 3:12–CV-577
OPINION AND ORDER
This matter is before the Court on (1) The Salvation Army’s
Motion for Summary Judgment, filed on May 12, 2014, and (2) The
Salvation Army’s Motion to Strike Plaintiff’s Response, filed on
July 25, 2014.
For the reasons set forth below, the motion for
summary judgment is GRANTED, and the motion to strike is DENIED
as moot.
Accordingly, this case is DISMISSED WITH PREJUDICE.
BACKGROUND
On July 12, 2012, Plaintiff, Leander Brown (“Brown”), filed
a Charge of Discrimination with the Equal Employment Opportunity
Commission (“EEOC”) against his former employer, The Salvation
Army.
In his charge, Brown alleged that he was terminated based
on his race and gender in violation of Title VII of the Civil
Rights Act.
The EEOC issued its Dismissal and Notice of Rights
on August 28, 2012. (DE# 1-1.)
‐1‐
Brown
filed
his
complaint
in
federal
district
court
on
October 9, 2012, using a preprinted “Employment Discrimination
Complaint.”
(DE# 1.)
While Brown checked the box indicating
his claim is being made pursuant to the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. section 621, his statement of
legal claim focused solely on The Salvation Army’s alleged race
and
gender
discrimination.
On
July
30,
2013,
the
Court
dismissed Brown’s ADEA claim, but allowed his Title VII claim to
proceed.
(DE# 14.)
Pursuant to the Court’s Scheduling Order,
any amendments to the pleadings were to be filed by November 14,
2013, and the discovery deadline was March 20, 2014.
(DE# 21.)
On May 12, 2014, The Salvation Army filed a motion for
summary judgment seeking dismissal of Brown’s remaining Title
VII claim.
(DE# 41.)
Because Brown is proceeding pro se, The
Salvation Army provided him with a Notice to Pro Se Litigant as
required by Local Rule 56-1 (DE# 40).
1(f) & App. C.1
See N.D. Ind. L.R. 56-
The Notice included the text of both Federal
1
The Salvation Army requested oral argument in its summary
judgment motion.
Local Rule 56-1 states that summary judgment
motions will be decided without oral argument unless the Court
grants a request made under Local Rule 7-5, or the Court directs
otherwise.
See N.D. Ind. L.R. 56-1(d).
In this case, The
Salvation Army’s request for oral argument does not comply with
Local Rule 7-5 because it failed to serve a separate document
explaining why oral argument is necessary. See N. Ind. L.R. 75(a)(1).
The Court does not find oral argument necessary to
rule on this motion.
‐2‐
Rules of Civil Procedure Rule 56 and Local Rule 56-1.
(DE# 40,
at 2-3.)
Brown filed a response to the motion for summary judgment
on
July
11,
2014,
deadline had passed.
several
weeks
after
the
response
brief
Brown’s responses states in its entirety:
I am asking that the courts do not dismiss my
complaint in its entirety and award defendant attorney
fees and its actual costs. I am the one that has been
treated with injustice.
Their [sic] were some things that was said about
me that was untrue in this matter. Even things asked
at my deposition.
I feel that i [sic] was taking
[sic] advantage of cause i [sic] did not have an
attorney.
(DE# 53.)
response
The Salvation Army filed a motion to strike Brown’s
on
July
25,
2014,
arguing
that
the
response
untimely and failed to comply with Local Rule 56-1.
59.)
was
(DE## 58,
On July 28, 2014, Brown filed a two-sentence response to
the motion to strike, indicating that he had been unaware of any
deadline to file his response to the summary judgment motion.
(DE# 60.)
On
the
entitled,
same
“Suing
day,
Brown
Defamation
also
of
filed
a
Character.”
one-page
(DE#
document
61.)
The
Salvation Army construed this document as a motion for leave to
amend the complaint, and filed its response thereto on August
11, 2014.
(DE# 62.)
The Salvation Army asked the Court to deny
what it perceived to be Brown’s motion and sought sanctions
‐3‐
against Brown pursuant to Rule 11 of the Federal Rules of Civil
Procedure.
On August 22, 2014, Brown filed a one-paragraph document
entitled, “Emotional Distress,” in which he asked the Court to
deny The Salvation Army’s request for sanctions.
(DE# 64.)
DISCUSSION
The
Court
will
address
The
Salvation
Army’s
summary
judgment motion, its motion to strike Brown’s response, Brown’s
“Suing Defamation of Character” submission, and The Salvation
Army’s request for sanctions, in turn.
Summary Judgment
Summary Judgment Standard
Summary judgment must be granted when “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).
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 v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 91 L. Ed. 2d 202 (1986).
Not every dispute between the
parties makes summary judgment inappropriate; “[o]nly disputes
over facts that might affect the outcome of the suit under the
governing
judgment.”
law
will
Id.
To
properly
preclude
determine
‐4‐
whether
the
entry
a
genuine
of
summary
dispute
of
material fact exists, the Court must construe all facts in the
light
most
reasonable
favorable
to
the
inferences
in
non-moving
that
party's
party
Atterholt, 606 F.3d 355, 358 (7th Cir. 2010).
draw
See
favor.
and
all
Ogden
v.
A party opposing
a properly supported summary judgment motion may not rely on
allegations in his own pleading, but rather must “marshal and
present the court with the evidence [he] contends will prove
[his] case.”
Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 651,
654 (7th Cir. 2010).
“[I]nferences relying on mere speculation
or conjecture will not suffice.”
Stephens v. Erickson, 569 F.3d
779, 786 (7th Cir. 2009) (citation omitted).
If the non-moving
party fails to establish the existence of an essential element
on which he bears the burden of proof at trial, summary judgment
is proper.
See Massey v. Johnson, 457 F.3d 711, 716 (7th Cir.
2006).
Facts
In determining what facts to rely upon in ruling on the
instant
summary
judgment
motion,
requirements of Local Rule 56-1.
this
Court
considers
the
This Rule requires the party
seeking summary judgment to include a “Statement of Material
Facts” in the memorandum or appendix accompanying the summary
judgment
motion.
N.D.
Ind.
L.R.
56-1(a).
Rule
56-1
also
provides that a party opposing summary judgment must file a
response brief and “any materials that the party contends raise
‐5‐
a genuine dispute.”
N.D. Ind. L.R. 56-1(b)(1)(B).
The response
brief or its appendix “must include a section labeled ‘Statement
of Genuine Disputes’ that identifies the material facts that the
party contends are genuinely disputed so as to make a trial
necessary.”
N.D.
Ind.
L.R.
56-1(b)(2).
Failure
by
the
responding party to do so results in the Court accepting as true
all properly supported facts presented in the moving party’s
statement of material facts.
See Patterson v. Ind. Newspapers,
Inc., 589 F.3d 357, 359-60 (7th Cir. 2009) (district court is
within its discretion to strictly enforce compliance with its
local rules regarding summary judgment).
The
Salvation
Army
set
forth
facts
it
proposes
are
undisputed in Appendix 1 to its brief in support of its summary
judgment
motion,
with
exhibits in the record.
each
fact
supported
(DE# 42 at 6-7).
by
a
citation
to
Brown’s two-sentence
response memorandum fails to provide any statement of disputed
facts.
(See DE# 53.)
Army’s
statement
facts
that
of
Brown
necessitate trial.
It also fails to address The Salvation
material
contends
facts
are
or
identify
genuinely
any
disputed
material
as
to
While Brown is a pro se plaintiff, his pro
se status does not relieve him from complying with procedural
rules.
See Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir.
2001) (explaining that pro se litigants must still comply with
procedural rules).
Because Brown has not disputed any facts
‐6‐
identified in The Salvation Army’s statement of material facts,
and has not set forth any additional facts or evidence, the
Court
takes
admitted.
the
facts
in
The
Salvation
Army’s
statement
as
See Greer v. Bd. of Educ. of City of Chicago, Ill.,
267 F.3d 723, 727 (7th Cir. 2001) (court is not “obliged . . .
to scour the record looking for factual disputes” where pro se
plaintiff failed to comply with local rule regarding summary
judgment).
This Court has reviewed The Salvation Army’s statement of
material facts and finds that it is adequately supported with
citations to admissible evidence, including Brown’s deposition
testimony.
Therefore, the following supported facts are deemed
true for purposes of this motion.
The
Salvation
Army
is
a
nonprofit
organization
that
operates the Ray and Joan Kroc Corps Community Center (“Kroc
Center”) in South Bend, Indiana.
(Affidavit of Rose Reterstoff
(“Reterstoff Aff.”) (DE# 42-1) ¶ 3.)
facilities,
programs
and
services
The Kroc Center provides
for
children
and
adults.
(Id.)
On or about December 19, 2011, The Salvation Army hired
Brown as a part-time building supervisor at the Kroc Center.
(Deposition of Leander Brown (“Brown Dep.”) (DE# 42-11) at 15.)
Brown was an at-will employee.
B,
1-F
(DE##
42-3,
42-7);
(Reterstoff Aff. ¶ 4(b), Exs. 1-
see
‐7‐
Brown
Dep.
at
20.)
Brown’s
responsibility as building supervisor was to provide a “safe,
secure,
friendly
environment
for
staff
members,
guests and visitors to the Kroc Center.”
volunteers,
(Reterstoff Aff. ¶
4(d), Ex. 1-C (DE# 42-4); see Brown Dep. at 17, 23.)
Brown was
responsible for making sure that women, children and employees
felt safe in this environment.
Upon
being
hired,
Brown
from The Salvation Army.
(Brown Dep. at 24.)
received
two
employee
(Brown Dep. at 19-20; see Reterstoff
Aff. ¶ 4(c), Exs. 1-B, 1-F (DE## 42-3, 42-7).)
Territory
policy.
Employee
handbooks
Handbook
contained
a
The Central
sexual
harassment
(Reterstoff Aff. ¶ 4(g), Ex. 1-G (DE# 42-8).)
At his
deposition, Brown acknowledged his obligation to read and comply
with the policies contained in both handbooks, including the
sexual harassment policy.
(Brown Dep. at 19-21.)
The Salvation
Army’s harassment policy states in part:
We promote a productive work environment and we do not
tolerate verbal or physical conduct by any employee
that harasses, disrupts, or interferes with another’s
work performance or that creates an intimidating,
offensive, or hostile work environment. All forms of
harassment,
including
sexual
harassment,
are
prohibited and will not be tolerated.
Sexual Harassment: Sexual harassment in the workplace
as defined by the Equal Employment Opportunity
Commission
includes
unwelcome
sexual
advances,
requests for sexual favors, or other verbal or
physical conduct of a sexual nature, when
. . .
- Such conduct has the purpose or effect of
unreasonably
interfering
with
an
individual’s work performance or creating
‐8‐
an intimidating, hostile or offensive work
environment.
Sexual harassment may take the form of physical
contact, sexually related comments, jokes or graphics,
references to personal appearance, unwelcome sexual
advances or suggestions or requests for sexual favors.
In addition, remarks and conduct of a sexual nature
that may not constitute sexual harassment are also
inappropriate. . . .
Anyone who believes he or she has been the subject of
any
harassment
should
report
the
occurrence
immediately so that The Salvation Army can take prompt
action. . . .
Reported incidents will be investigated promptly and
dealt
with
in
a
manner
that
respects
the
confidentiality of the individuals involved whenever
reasonably possible. . . .
Employees found to have
engaged in harassment will be subject to disciplinary
action, including termination in appropriate cases.
(Reterstoff Aff. ¶ 4(g), Ex. 1-G (DE# 42-8).)
In June 2012, The Salvation Army received a complaint from
a female employee named Kelly Huston (“Huston”) alleging that
Brown sexually harassed her.
at 5-7 (DE# 42-9).)
(Reterstoff Aff. ¶ 4(h), Ex. 1-H
Part of Huston’s complaint was that Brown
was watching her on a security camera while she was talking to
others, which made her feel uncomfortable.
(Id.)
On June 25,
2012, The Salvation Army suspended Brown for five days pending
its investigation of Huston’s allegations.
was
instructed
suspension.
not
to
contact
(Id.)
‐9‐
any
(Id. at 4.)
employees
during
Brown
his
The Salvation Army investigated Huston’s allegations, and
prepared a written investigation report.
(Id. at 5-10.)
The
investigation file includes statements from Brown, Huston, and
two other black male employees.
(Id. at 3, 5-8.)
In addition
to describing the security camera incident, Huston’s statement
describes inappropriate sexual comments that Brown made to her
about a female employee and a female guest of the Kroc Center.
(Id. at 6-7.)
Huston’s
Employee Antonio Wilson (“Wilson”) corroborated
statement
security camera.
corroborated
that
Brown
had
(Id. at 7-8.)
Huston’s
been
watching
her
from
a
Employee Shawn Rouse (“Rouse”)
statement
that
Brown
had
made
sexual
comments to her, including “[l]ay on the bed and I’ll give you a
body
massage”
and
“that’s
my
Ho.”
(Id.
at
8.)
Rouse’s
statement also indicates that Brown telephoned him after being
suspended, and asked him “not to say anything.”
(Id.)
Brown’s
statements reflect that he admitted calling Huston, but denied
speaking to any employees in an inappropriate manner.
(Id. at
3, 5.)
The Salvation Army’s investigation concluded that Brown had
subjected Huston to sexually aggressive comments and harassment,
and recommended immediate termination based on improper conduct
and
insubordination.
(Id.
at
9.)
subsequently terminated Brown’s employment.
‐10‐
The
Salvation
(Id. at 2, 3.)
Army
At his deposition, Brown testified that he was aware of The
Salvation Army’s sexual harassment policy, and that any employee
found violating this policy would be terminated.
21, 30.)
Center.
“no
(Brown Dep. at
He denied making sexual comments to anyone at the Kroc
(Id. at 42-43, 47.)
concrete
evidence”
Brown also testified that he had
to
support
his
claim
discrimination, but had a “gut feeling” about it.
Brown
admitted
(Id. at 51.)
he
had
no
evidence
of
gender
of
race
(Id. at 50.)
discrimination.
Finally, Brown refused to identify any witnesses
that would support his discrimination claim at trial.
(Id. at
51-52.)
Brown’s Title VII claim must be dismissed because there is
no evidence that The Salvation Army engaged in race or
gender discrimination
Brown
alleges
that
he
was
discriminated
against
on
the
basis of his race and his gender, in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5.
Race
and
gender
discrimination
indirect or a direct method.
claims
can
be
proven
via
an
See Adams v. Wal–Mart Stores,
Inc., 324 F.3d 935, 938 (7th Cir. 2003); Langenbach v. Wal-Mart
Stores, Inc., 761 F.3d 792, 801 (7th Cir. 2014).
While Brown
has not asserted which method he wishes to proceed on, this
Court will examine whether there is a triable issue of fact
under either method.
‐11‐
Indirect Method
When using the indirect method, a plaintiff must first make
a prima facie case of discrimination.
McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668
(1973).
In order to prove a prima facie case of race or gender
discrimination, a plaintiff must prove that: (1) he is a member
of
a
protected
class;
(2)
he
was
meeting
his
employer’s
legitimate performance expectations; (3) he suffered an adverse
employment action; and (4) other similarly situated employees
who were not members of the protected class were treated more
favorably.
See Fane v. Locke Reynolds, LLP, 480 F.3d 534, 538
(7th Cir. 2007).
In claims of discriminatory discipline, the
second and fourth elements merge.
Corrections,
652
F.3d
726,
730
See Luster v. Ill. Dept. of
(7th
Cir.
2011);
Caskey
v.
Colgate-Palmolive Co., 535 F.3d 585, 592 (7th Cir. 2008).
If the plaintiff is able to make out a prima facie case,
the burden then shifts to the defendant to make a legitimate,
nondiscriminatory
reason
for
the
adverse
action.
McDonnell
Douglas, 411 U.S. 792 at 802, 93 S.Ct. 1817, 36 L.Ed.2d 668.
If
the defendant meets this burden, then the plaintiff is afforded
a chance to show that the defendant’s nondiscriminatory reason
is
mere
pretext,
pretext
the
for
discrimination.
plaintiff
implausibilities,
must
inconsistencies,
‐12‐
Id.
“identify
or
at
804.
such
To
show
weaknesses,
contradictions
in
the
purported
reasons
credence.”
that
a
jury
could
Fane, 480 F.3d at 541.
find
them
unworthy
of
If the defendant “honestly
believed the reasons it gave, [the plaintiff] loses even if the
reasons
are
foolish,
trivial
or
baseless.”
Id.
(citation
omitted); see Little v. Ill. Dept. of Revenue, 369 F.3d 1007,
1012 (7th Cir. 2004) (noting the Seventh circuit adheres to the
“honest-belief rule”: even if the decision was ill-considered or
unreasonable, provided that the decision maker honestly believed
the nondiscriminatory reason given for the action, pretext does
not exist).
While the burden does shift between the plaintiff
and the defendant, the ultimate burden of persuasion is always
with the plaintiff.
See Fane, 480 F.3d at 538.
It is uncontested that Brown is a black male and that he
suffered an adverse employment action when The Salvation Army
terminated his employment.
(See DE# 42 at 17).
Because Brown’s
claim alleges disciplinary discrimination, whether he met The
Salvation Army’s legitimate performance expectations is of no
moment.
As the Seventh Circuit has explained:
Federal employment discrimination laws do not limit
their protection to perfect or even good employees.
They also protect employees who misbehave or perform
poorly.
Under Title VII of the Civil Rights Act of
1964, an employer cannot intentionally discipline poor
employees more severely on the basis of race, sex,
religion, or national origin.
Luster, 652 F.3d at 730 (internal quotations omitted).
Thus, to
prove a prima facie case, the only remaining issue is whether
‐13‐
Brown can point to another similarly situated employee who was
not
a
member
of
the
favorably than he.
protected
class
and
was
treated
more
“To be similarly situated, co-workers must
be directly comparable to the plaintiff in all material aspects,
but
they
need
Langenbach,
Whether
a
not
761
be
F.3d
co-worker
identical
at
is
802
in
every
(internal
similarly
conceivable
quotation
situated
is
way.”
omitted).
typically
a
question for the factfinder, but summary judgment is appropriate
where no reasonable jury could find that the plaintiff has met
his burden.
See id.
Here, Brown does not identify anyone who is not a member of
a protected class and who was treated more favorably than he.
At
his
protocol
deposition,
to
Brown
terminate
an
acknowledged
employee’s
The
Salvation
employment
Army’s
if,
upon
investigation, it determined that the employee engaged in sexual
harassment.
(See Brown Dep. at 30.)
When questioned about the
existence of any employees who do the same type of work as he,
Brown only identified Wilson, one of the black male employees
who corroborated Huston’s sexual harassment complaint.
51.)
(Id. at
Brown admitted he has no evidence of sex discrimination
(id. at 51), and only pointed to a “gut feeling” when asked
about evidence of his race discrimination claim.
(Id. at 50).
Gut feelings are not enough to prevent summary judgment of a
discrimination claim.
See Karazanos v. Navistar Int'l Trans.
‐14‐
Corp.,
948
F.2d
332,
337
(7th
Cir.
1991)
(plaintiff's
feeling and speculation not proof of discrimination).
Brown
is
unable
to
make
out
a
gut
Thus,
prima
facie
case
of
prima
facie
case,
The
discrimination.
Even
Salvation
if
Brown
Army
could
has
make
out
proffered
a
evidence
of
a
nondiscriminatory reason for terminating Brown:
legitimate,
The Salvation
Army received a complaint that Brown had sexually harassed a
fellow employee.
the
complaint
It conducted an investigation (during which
was
corroborated
by
two
other
employees),
and
terminated Brown for violating its written harassment policy.
In response, Brown puts forth no evidence that would enable a
reasonable jury to think that the nondiscriminatory reason The
Salvation Army offers for that discharge was a lie contrived to
mask racial or gender discrimination.
See Little, 369 F.3d at
1016.
Nor does Brown point to any evidence that The Salvation
Army’s
decision
belief”
that
makers
Huston’s
had
anything
allegations
of
other
than
sexual
an
“honest
harassment
were
true, and decided to terminate Brown based on her substantiated
complaint.
Therefore, Brown’s Title VII claim fails under the
indirect method.
The direct method
Under
the
direct
method,
a
plaintiff
must
“show
either
through direct or circumstantial evidence that the employer's
‐15‐
decision to take the adverse job action was motivated by an
impermissible purpose.”
evidence
consists
Adams, 324 F.3d at 938–939.
of
either
an
outright
“[D]irect
admission
by
the
decision maker that the challenged action was undertaken because
of
the
[plaintiff’s
race]
circumstantial
evidence
discriminatory
reason
Chicago
Bd.
of
Educ.,
.
for
675
.
or
.
the
a
that
convincing
point[s]
employer’s
F.3d
1060,
directly
action.”
1071
(citations and internal quotations omitted).
mosaic
(7th
to
Dass
Cir.
of
a
v.
2012)
The record does
not demonstrate any admissions of race or gender discrimination
by The Salvation Army.
Indeed, Brown testified that he had “no
concrete evidence” of race discrimination and no evidence of sex
discrimination.
(Brown Dep. at 50-51.)
Direct evidence can also be circumstantial evidence from
which a trier of fact could reasonably infer that The Salvation
Army discriminated against Brown because of his race or gender.
“Circumstantial evidence can take a number of forms, such as
suspicious timing, behavior or comments directed at members of
the protected group, evidence showing that similarly-situated
employees outside the protected group received systematically
better treatment, and evidence that the reason the employer gave
for the adverse action was pretextual.”
803 (citation omitted).
Langenbach, 761 F.3d at
Ultimately, the circumstantial evidence
a plaintiff presents “must point directly to a discriminatory
‐16‐
reason for the employer’s action” and be “directly related to
the
employment
decision.”
Dass,
675
F.3d
at
1071
(quoting
Adams, 324 F.3d at 939 and Venturelli v. ARC Cmty. Servs., Inc.,
350 F.3d 592, 602 (7th Cir. 2003)).
In reviewing the record, the Court finds no circumstantial
evidence
pointing
directly
Brown’s termination.
to
a
discriminatory
reason
for
As noted above, Brown has not identified
any similarly situated employees who were not members of the
protected
class
Langenbach,
761
and
F.3d
were
at
treated
803
more
(noting
favorably.
analysis
for
See
similarly
situated employees under the direct method is substantially the
same as the analysis under the indirect method).
Rather, the
evidence shows that The Salvation Army terminated Brown after
investigating
an
employee’s
complaint
that
Brown
sexually
harassed her, and other employees corroborated her complaint.
Brown provided no evidence that The Salvation Army’s decision to
terminate was pretextual.
Because
the
record
fails
to
show
indirect
or
direct
evidence that Brown was discharged based on his race or gender,
The Salvation Army’s motion for summary judgment is GRANTED.
Motion to Strike
In light of the Court’s ruling on The Salvation Army’s
summary
judgment
motion,
it
need
‐17‐
not
address
The
Salvation
Army’s motion to strike Brown’s summary judgment response.
58.)
(DE#
The motion to strike is DENIED as moot.
Brown’s “Suing Defamation of Character” Submission
Brown
filed
a
one-paragraph
Defamation of Character.”
document
(DE# 61.)
entitled,
“Suing
The document states in its
entirety:
I am a security officer for the University of Notre
Dame for the past 8 years.
I have a reputation to
uphold, and this company the Kroc Center has slander
my name with these fale [sic] allegations against me.
People were coming up to me telling me that they heard
what happen, as to why i [sic] was fired from the Kroc
Center. This has casused [sic] too much stress on me
and my wife and kids.
(Id.)
The Salvation Army construed this document as a motion to
amend Brown’s complaint, and filed a brief opposing such an
amendment.
(DE# 62.)
The Court has its doubts as to whether Brown intended this
document to be a motion for leave to amend his complaint.
If
Brown did intend to amend his complaint by this submission, the
proposed
amendment
is
futile.
See
Hongbo
Han
v.
United
Continental Holdings, Inc., 762 F.3d 598, 603 (7th Cir. 2014)
(district
court
need
not
allow
plaintiff
to
amend
complaint
where amendment is futile); Bogie v. Rosenberg, 705 F.3d 603,
608 (7th Cir. 2013) (“Leave to amend need not be granted . . .
if
it
is
clear
that
any
amendment
‐18‐
would
be
futile”).
The
general allegations in Brown’s one-paragraph document fall far
short of the requirements to support a claim for defamation.
To establish a claim of defamation under Indiana law, “a
plaintiff
must
prove
the
existence
of
a
communication
defamatory imputation, malice, publication, and damages.”
with
Trail
v. Boys & Girls Clubs of Nw. Ind., 845 N.E.2d 130, 136 (Ind.
2006) (internal quotation omitted).2
Any statement actionable
for defamation must be both defamatory in nature and false.
id.
See
A plaintiff suing for defamation must set out the alleged
defamatory statement in the complaint, and for good reason:
[H]ornbook law stresses the necessity of including the
alleged defamatory statement in the complaint.
There
is sound reason for this policy, as the absence of a
statement in the complaint works a detriment on both
the court and the defendant. The court is handicapped
without the statement since, without it, the court
2
In its response brief, The Salvation Army cites to Michigan's
defamation law, without explanation.
(See DE# 62 at 5 (citing
Royal Palace Homes, Inc. v. Channel 7 of Detroit, Inc., 495
N.W.2d 392 (Mich. Ct. App. 1992)).)
Both Brown and the Kroc
Center are located in Indiana, and Brown's defamation submission
infers that he was harmed in Indiana.
Thus, the Court finds
that Indiana’s defamation law is the appropriate state law to
apply.
See Jean v. Dugan, 20 F.3d 255, 261-62 (7th Cir. 1994)
(applying Indiana defamation law, noting “the place where the
conduct causing the injury occurred is the most significant
factor. . . .
Conceptually, defamation is an injury to
reputation.”) (internal quotation omitted).
Because both
Indiana and Michigan require that a plaintiff articulate a
defamatory statement in his complaint, a more detailed choice of
law analysis is unnecessary.
See id. at 260 (“[B]efore
entangling itself in messy issues of conflict of laws a court
ought to satisfy itself that there actually is a difference
between the relevant laws of the different states.”) (quotation
omitted).
‐19‐
cannot actually determine if the statement is legally
defamatory.
The defendant is placed on an unfair
footing since the absence of the statement denies her
the opportunity to prepare appropriate defenses.
Id. at 136-37 (internal citations omitted).
Here, Brown has not
alleged any defamatory statement with specificity.
As a result,
Brown’s defamation claim would not survive a motion to dismiss.
Furthermore,
amending
Brown’s
complaint
to
include
a
defamation claim at this late stage of litigation would result
in
undue
delay.
prejudice
to
The
Salvation
Army,
as
well
as
undue
See Arreola v. Godinez, 546 F.3d 788, 796 (7th Cir.
2008) (“district courts have broad discretion to deny leave to
amend where there is undue delay, bad faith, dilatory motive,
repeated failure to cure deficiencies, undue prejudice to the
defendants, or where the amendment would be futile”).
Discovery
in this case closed more than seven months ago, and the deadline
for
dispositive
introduction
of
motions
a
passed
defamation
five
claim
months
would
raise
ago.
entirely
The
new
issues of law and fact that were not addressed during discovery.
The Salvation Army would be unduly prejudiced because it would
be forced to incur additional discovery expenses in addressing
these
new
issues
of
law
and
fact.
Furthermore,
reopening
discovery to address this new claim would cause undue delay of
the resolution of this litigation.
‐20‐
Therefore, to the extent
Brown intended his defamation submission to be a motion for
leave to amend his complaint, the motion is DENIED.
The Salvation Army’s Request for Rule 11 Sanctions
Finally, in its response to Brown’s defamation submission,
The Salvation Army included a request for sanctions.
Rule 11 of
the Federal Rules of Civil Procedure authorizes sanctions where
a party presents the Court with a pleading or other paper “that
to the best of the person’s knowledge, information, and belief,
formed after an inquiry reasonable under the circumstances,” is
not “warranted by existing law,” or is lacking in evidentiary
support.
Fed. R. Civ. P. 11(b).
“The central goal of Rule 11
is to deter abusive litigation practices.”
Care
Ctr.,
388
F.3d
990,
1013–14
(7th
Corley v. Rosewood
Cir.
2004)
(citation
omitted).
A motion seeking Rule 11 sanctions “must be made separately
from any other motion,” and must be served on the offending
party twenty-one days before filing it with the court.
Civ. P. 11(c)(2).
request
for
Rule
Fed. R.
The Salvation Army improperly included its
11
defamation submission.
sanctions
(DE# 62.)
in
its
response
to
Brown’s
Even if such motion had been
presented properly, it would be denied.
In deciding a motion for sanctions, the Court may consider
a party’s status as a pro se, non-lawyer litigant, and financial
‐21‐
resources.
that
The 1993 Advisory Committee Notes to Rule 11 counsel
courts
“willful
or
may
consider
negligent,”
whether
whether
the
the
improper
responsible
conduct
person
was
is
“trained in the law,” and the responsible person’s financial
resources.
Fed. R. Civ. P. 11 advisory committee’s note (1993);
cf. Vukadinovich v. McCarthy, 901 F.2d 1439, 1445 (7th Cir.
1990) (upholding sanctions against pro se litigant for frivolous
claim but maintaining that courts may take pro se status into
account when considering sanctions).
As noted above, the Court
is not convinced that Brown’s submission was intended to bring
an entirely new claim at this late stage of litigation.
was, the claim is futile for the reasons provided above.
If it
The
Court notes Brown’s lack of legal training, and that he was
permitted to proceed in forma pauperis in this litigation.
DE# 3.)
(See
Given The Salvation Army’s failure to comply with Rule
11, and the lack of showing that Brown filed this one-paragraph
document with anything other than a genuine belief that he had
been wronged, the request for Rule 11 sanctions is DENIED.
‐22‐
CONCLUSION
For
the
reasons
set
forth
above,
The
Salvation
Army’s
Motion for Summary Judgment (DE# 41) is GRANTED, and its Motion
to Strike (DE# 58) is DENIED as moot.
Accordingly, this case is
DISMISSED WITH PREJUDICE.
October 10, 2014
/s/ RUDY LOZANO, Judge
United States District Court
‐23‐
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?