Holt v. Federal Express Corporation

Filing 56

MEMORANDUM OPINION AND ORDER by Judge Charles R. Simpson, III on 3/14/2012; 26 Motion for Summary Judgment is REMANDED WITH LEAVE TO REINSTATE upon defendant's compliance with the court's 3/2/2012 (DN 55) order; 43 Motion to Strike is REMANDED WITH LEAVE TO REINSTATE. cc:counsel (TLB)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

JOHNNIE M. HOLT

PLAINTIFF

v.

CIVIL ACTION NO. 3:10-cv-263-CRS

FEDERAL EXPRESS CORPORATION

DEFENDANT

MEMORANDUM OPINION AND ORDER

This matter is before the court on motions of the Defendant, Federal Express Corporation,
for summary judgment (DN 26) on claims of the plaintiff, Johnnie M. Holt (“Plaintiff”), and to strike
exhibits to Plaintiff’s Response to Defendant’s Motion for Summary Judgment (DN 43).
Defendant filed a motion on August 1, 2011 seeking summary judgment on Plaintiff’s claims
of discrimination and retaliation, which culminated in the termination of his employment with
Defendant. (DN 26). Plaintiff’s preliminary response to Defendant’s motion for summary judgment
sought additional discovery on reports of delivery exception codes used by other employees with
Defendant, which Plaintiff had previously requested. Plaintiff argues that Defendant’s criticism of
his use of delivery exception codes was a pretext for discrimination.
In December of 2010, Defendant had objected to Plaintiff’s initial discovery request for the
delivery exception code records of other employees over a six-year period, arguing that it was overly
broad and not reasonably calculated to lead to the discovery of admissible evidence. In a telephonic
conference on January 4, 2011, the parties agreed to limit the scope of Plaintiff’s document requests
to only records of delivery exception codes used by employees supervised by Kevin Hart (“Hart”),
during the period in time when Hart was working as a supervisor. Defendant then advised the court

that even with the limited request, much of the information would not be retrievable in a thirty (30)
day window, so the court adjusted discovery deadlines, ultimately, until July 5, 2011.
Apparently, Plaintiff remains essentially without any information concerning other
employee’s use of exception codes. Plaintiff asserted in his response to Defendant’s motion for
summary judgment that he sought the exception codes and also filed a motion to extend and to
compel discovery (DN 31). In an order entered November 2, 2011, the court granted Plaintiff’s
motion to extend and compel discovery and ordered that Defendant comply with the discovery
request (DN 49). In the court’s order, Magistrate Judge James D. Moyer stated,
The defendant argues it is patently unfair to reopen discovery after the filing
of the defendant’s motion for summary judgment, for reasons stated in its response,
including the concern that the plaintiff is crafting discovery requests based on
argument contained in the summary judgment motion. However, the court
respectfully disagrees and concludes that under the circumstances in this case, the
plaintiff is entitled to additional discovery. Rule 56(d) of the Federal Rules of Civil
Procedure provides that the court may allow time to take discovery and defer
considering a motion for summary judgement if the nonmoving party, by affidavit
or declaration, shows it cannot present facts essential to justify its opposition. The
court concludes the plaintiff has satisfied this requirement, particularly given that the
discovery at issue is information the plaintiff has been seeking since commencement
of this lawsuit.
In the teleconference, the defendant stated that certain backup data may or
may not exist, but because discovery had closed, he has not investigated the
existence, burden or expense of retrieving such data. In addition, the defendant
restated the initial objection that the requested information is overly broad and not
relevant discovery. To the relevance objection, the court concludes the requested
information has potential relevance to the claim of pretext, despite the defendant’s
notice argument, and is permissible discovery. Thus, because it remains unclear
whether there are documents responsive to the plaintiff’s request no. 5, the court will
allow an extension of discovery of this request, within the limitations referenced in
the January 4th conference, and for a 60-day time-frame as discussed in this latest
teleconference.
Id. at 2-3.

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On December 6, 2011, Plaintiff made a motion to compel the compliance of Defendant with
the November 2, 2011 order of the court. (DN 50). On March 2, 2012, the court granted Plaintiff’s
motion to compel and Defendant was ordered to comply with the court’s previous order. (DN 55).
The order requires Defendant to determine within twenty (20) days of the date of entry of the order,
whether backup data exists which could be used to reconstruct records responsive to Plaintiff’s
previous request for discovery. Id. If such backup data exists, the order further requires Defendant
to produce records within thirty (30) days of the date of entry of the order. Id.
Although neither party has made a motion regarding Defendant’s submitted motion for
summary judgment, we find that it is necessary to remand the motion, given the court’s order on
Plaintiff’s motion to compel. As discussed above, the court found the information sought to be
discoverable and relevant to Plaintiff’s argument of pretext. (DN 49). Therefore, IT IS HEREBY
ORDERED that the motion of Defendant for summary judgment (DN 26) is REMANDED WITH
LEAVE TO REINSTATE upon Defendant’s compliance with the court’s March 2, 2012 order (DN
55). At such time, the parties may request resubmission of the motion, or the parties may request
to revise the briefs in order to reflect any changes in arguments, if necessary due to Defendant’s
production of documents.
Defendant also seeks to strike exhibits to Plaintiff’s Response to Defendant’s Motion for
Summary Judgment (DN 43), arguing that these exhibits have not been properly authenticated and
consist of inadmissible hearsay. Because we have remanded Defendant’s motion for summary
judgment with leave to reinstate the pleadings or request to revise the pleadings, we also defer
consideration of Defendant’s motion to strike Plaintiff’s exhibits. Therefore, IT IS FURTHER
ORDERED that the motion of the Defendant to strike Plaintiff’s exhibits to his Response to

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Defendant’s Motion for Summary Judgment (DN 43) is also REMANDED WITH LEAVE TO
REINSTATE.

IT IS SO ORDERED.

March 14, 2012

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