Kilpatrick v. CRST Expedited, Inc et al

Filing 29

OPINION and Order Regarding Defendants Motion For Summary Judgment and Plaintiffs Request to Set Trial Date. Granting 16 Motion for Summary Judgment filed by North American Driver Training Academy, LLC, CRST Expedited, Inc, Dennis Har rington. Denying 28 Pro Se Request For Trial Date filed by Roxan Kilpatrick. Denying without prejudice 20 Motion in Limine filed by North American Driver Training Academy, LLC, CRST Expedited, Inc, Dennis Harrington. Pursuant to Rule 55(a) of the Federal Rules of Civil Procedure, the Clerk of Court is directed to enter Kilpatricks default on the record re 4 Counterclaim filed by CRST Expedited, Inc. I will consider any motions pursuant to Rule 55(b) or (c) as the result of the entry of default. If no action is taken on or before 3/23/2018, I will dismiss the counterclaim for lack of prosecution. Signed by Judge Mark W Bennett on 2/22/2018. (copy w/nef mailed to plaintiff) (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
ROXAN KILPATRICK,
No. C 16-71-MWB
Plaintiff,
vs.
CRST EXPEDITED, INC., a
corporation, NORTH AMERICAN
DRIVER TRAINING ACADEMY,
L.L.C., a limited liability corporation,
and DENNIS HARRINGTON, an
individual,

OPINION AND ORDER
REGARDING DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT AND PLAINTIFF’S
REQUEST TO SET TRIAL DATE

Defendants.
___________________________
This race discrimination and retaliation case is before me on the defendants’
August 28, 2017, Motion For Summary Judgment. Plaintiff Kilpatrick did not resist that
Motion by the deadline of January 29, 2018, set by my Order filed October 30, 2017.
Nevertheless, on February 5, 2018, I entered another Order granting Kilpatrick’s belated
pro se request for an extension, in the interest of justice, to give Kilpatrick “one last
opportunity to attempt to address the defendants’ Motion For Summary Judgment on the
merits.” In that Order, I specifically stated the following:
Kilpatrick shall have to and including February 20, 2018,
within which to file a response to the defendants’ Motion For
Summary Judgment. The deadline indicated is the date by
which Kilpatrick’s response must be filed with the Clerk of
Court, not the last date for Kilpatrick to mail her response.
No further extension will be granted. If no response to
defendants’ Motion for Summary Judgment is filed by this

deadline, the defendants’ Motion will be granted and
judgment will enter accordingly.
Order, February 5, 2018 (all emphasis in the original). Kilpatrick filed no timely
resistance by the extended deadline.

Instead, on February 22, 2018, contrary to

directions, Kilpatrick sent an email directly to me, Magistrate Judge C.J. Williams, and
my judicial assistant, requesting a trial date, because her settlement offer to the defendants
had been declined. I directed the Clerk’s Office to file that email as a request for a trial
date and to file the attachments Kilpatrick sent with it under seal. Kilpatrick’s request
for a trial date is also now before me.
Under the circumstances, I conclude that, in their Motion For Summary Judgment
and supporting Statement of Material Facts and Appendix, the defendants have carried
their “‘initial responsibility of informing the district court of the basis for [their] motion,’
and . . . identify[ing] ‘those portions of [the record] . . . which [they] believe[]
demonstrate the absence of a genuine issue of material fact.’” Torgerson v. City of
Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)). On the other hand, because Kilpatrick has provided
no timely response, she has not met her burden to “come forward with ‘specific facts
showing that there is a genuine issue for trial.’” Id. (quoting Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986)).

Thus, on the record

presented, taken as a whole, no rational trier of fact could find for Kilpatrick on her
claims, there are no genuine issues of material fact for trial, and the defendants are
entitled to summary judgment on Kilpatrick’s claims. Id.
I note that the defendants’ Motion For Summary Judgment did not address
defendant CRST’s Counterclaim for breach of contract set out in the defendants’ July 15,
2016, Answer To Complaint And Counterclaim. I also note that, although Kilpatrick
was represented by counsel at the time that the Counterclaim was filed, Kilpatrick did
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not file an answer within twenty-one days as required by Rule 12(a)(1)(B) of the Federal
Rules of Civil Procedure, nor has she done so since. Thus, it is clear from the record
that Kilpatrick is in default on CRST’s Counterclaim, and I will direct the Clerk of Court
to enter that default on the docket. See FED. R. CIV. P. 55(a). I will consider any
motions pursuant to Rule 55(b) or (c) as the result of the entry of default. If no action
is taken on or before March 23, 2018, I will dismiss the counterclaim for lack of
prosecution.
Because summary judgment is appropriate on Kilpatrick’s claims, and default
judgment may be appropriate on CRST’s counterclaim, no trial date will be set. For the
same reasons, I will deny the defendants’ October 24, 2017, Motion In Limine without
prejudice.
THEREFORE,
1.

The defendants’ August 28, 2017, Motion For Summary Judgment (docket

no. 16) is granted;
2.

Pursuant to Rule 55(a) of the Federal Rules of Civil Procedure, the Clerk

of Court is directed to enter Kilpatrick’s default on the record;
3.

The plaintiff’s February 22, 2018, pro se Request For Trial Date (docket

no. 28) is denied; and
4.

The defendants’ October 24, 2017, Motion In Limine (docket no. 20),

which is currently pending, is denied without prejudice.
IT IS SO ORDERED.
DATED this 22nd day of February, 2018.

______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
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