Taylor et al v. DLI Properties, L.L.C, d/b/a FORD FIELD et al

Filing 39

OPINION and ORDER Granting Summary Judgment on Plaintiff Melissa Taylor's Intentional Infliction of Emotional Distress Claim and Denying Defendants' 36 Motion for leave to file a Second Motion for Summary Judgment. (Supplemental Briefing due by 9/20/2017) Signed by District Judge Judith E. Levy. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Melissa Taylor and Douglas St.
Pierre,
Case No. 15-cv-13777
Plaintiffs,
Judith E. Levy
United States District Judge

v.
DLI Properties, L.L.C., d/b/a Ford
Field, et al.,

Mag. Judge David R. Grand

Defendants.
________________________________/
OPINION AND ORDER GRANTING SUMMARY JUDGMENT ON
PLAINTIFF MELISSA TAYLOR’S INTENTIONAL INFLICTION
OF EMOTIONAL DISTRESS CLAIM AND DENYING
DEFENDANTS’ MOTION FOR LEAVE TO FILE A SECOND
MOTION FOR SUMMARY JUDGMENT [36]
On July 14, 2017, the Court issued an order granting summary
judgment to defendants on several of plaintiffs’ claims. (Dkt. 33.) In
that order, the Court ordered supplemental briefing as to whether
summary judgment should also be granted as to plaintiff Melissa
Taylor’s intentional infliction of emotional distress (“IIED”) claim,
pursuant to Fed. R. Civ. P. 56(f).

(Id. at 24-25.)

The parties filed

supplemental briefs addressing the claim on July 28, 2017. (Dkts. 35,
37.)
Summary judgment is proper where “the movant shows that 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). The Court may
not grant summary judgment if “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 (1986). The Court “views the
evidence, all facts, and any inferences that may be drawn from the facts
in the light most favorable to the nonmoving party.” Pure Tech Sys.,
Inc. v. Mt. Hawley Ins. Co., 95 F. App’x 132, 135 (6th Cir. 2004) (citing
Skousen v. Brighton High Sch., 305 F.3d 520, 526 (6th Cir. 2002)).
“In order to state a claim of intentional infliction of emotional
distress, a plaintiff must show (1) extreme and outrageous conduct, (2)
intent or recklessness, (3) causation, and (4) severe emotional distress.”
Teadt v. Lutheran Church Missouri Synod, 237 Mich. App. 567, 582
(1999). The Court’s previous order noted that “the complaint fails to
allege which specific acts [defendants] Wiggins and Farmer committed
that rise to the level of ‘extreme and outrageous conduct.’” (Dkt. 33 at
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25.) The request for briefing asked the parties to generally “address[]
whether the Court should grant summary judgment to defendants on
Melissa Taylor’s IIED claim.” (Id.) That request was not limited to the
issue of which acts Wiggins and Farmer committed to give rise to
Taylor’s IIED claim.
On review of the briefing, summary judgment must be granted on
the IIED claim because Taylor has failed to show that she suffered the
severe emotional distress required to sustain her IIED claim.

Even

assuming that Taylor meets the first three prongs of the IIED test, she
argues generally only that she “suffered severe physical and emotional
injuries.” (Dkt. 37 at 7.) However, her deposition testimony reveals no
severe emotional distress, and no treatment for that distress.
Taylor testified that she has not received “any treatment for
psychological or psychiatric injuries,” and had no “plans to seek any
psychological or psychiatric treatment.” (Dkt. 21-2 at 8.) She testified
that she felt anxiety from wearing an opposing team’s jersey in a team’s
stadium, and from having to afford gasoline to travel to her medical
appointments. (Id. at 26.) Since the incident, Taylor went to another
event at Ford Field, where the events at issue in this case occurred,
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without incident and without any manifestation of emotional distress.
(Id. at 20-21.)
Seeking medical treatment is not a prerequisite to establishing
severe emotional distress within the meaning of an IIED claim.
McCahill v. Commercial Union Ins. Co., 179 Mich. App. 761, 771 (1989).
However, under Michigan law, “[t]he law intervenes only where the
distress inflicted is so severe that no reasonable [person] could be
expected to endure it.” Restatement (Second) of Torts, § 46, Comment j
(adopted in Haverbush v. Powelson, 217 Mich. App. 228, 235 (1996)). In
Haverbush, the plaintiff established severe emotional distress by
showing that he was fearful of physical harm and interference with his
upcoming wedding, worried about his reputation, concerned with the
safety of his patients, and affected in the way he did his work. Id., 217
Mich. App. at 235-36.
Here, Taylor’s emotional distress consists of wearing an opposing
team’s jersey to a team’s stadium, and anxiety related to being able to
afford gasoline for medical appointments. Taylor admitted that neither
Farmer nor Wiggins said anything negative to her about her jersey, and
has offered no evidence that her being a fan of the opposing team had
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anything to do with Farmer’s and Wiggins’ alleged actions. (Dkt. 21-2
at 26.) Taylor offers no evidence that her anxiety related to affording
gasoline has affected her ability to go to her medical appointments, or to
participate in any other activity she might engage in, including
attending other events at Ford Field. She also has not shown that the
financial burden is so severe that she cannot be expected to bear it, even
if she does manage to participate in her normal activities.
Because Taylor has failed to show that she suffered severe
emotional distress, her IIED claim must be dismissed.
Defendants have also moved for leave to file a second motion for
summary judgment on plaintiff St. Pierre’s Michigan Persons With
Disabilities Civil Rights Act (“PWDCRA”) claim.

(Dkt. 36.)

They

present two arguments: first, the Court’s prior opinion on the summary
judgment motions led them to realize that St. Pierre was not disabled
under the PWDCRA, and second, even if St. Pierre establishes that he
was disabled under the PWDCRA, DLI Properties must be dismissed
because it cannot be held vicariously liable for the conduct of Farmer,
an independent contractor.

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The Court’s determination whether to permit a second or
successive motion for summary judgment is guided by Fed. R. Civ. P.
16(b)(4), which states that “[a] schedule may be modified only for good
cause and with the judge’s consent.” “The primary measure of Rule 16's
'good cause' standard is the moving party's diligence in attempting to
meet the case management order's requirements.” Inge v. Rock Fin.
Corp., 281 F.3d 613, 625 (6th Cir. 2002) (internal quotation marks and
citation omitted).
Plaintiffs argue that the motion should be denied due to the
repeated extensions of the scheduling order and length of time between
St. Pierre’s deposition and the request, and because defendants’ motion
could not succeed on the merits. If a party can show that 1) a successive
motion for summary judgment would succeed in clarifying or
eliminating issues for trial, 2) the purpose of the motion is not to abuse
the process, needlessly extend the litigation, escape the requirements of
page limits, or otherwise engage in gamesmanship, and 3) the party has
been otherwise diligent in adherence to the previously set scheduling
orders, there is a strong argument to grant leave to file the motion.

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Here, the motion must be denied with regard to leave to seek
summary judgment on St. Pierre’s PWDCRA claim on the grounds that
he is not disabled within the definition of the statute.

This is so

because, as plaintiffs accurately point out, defendants move for
summary judgment on the grounds that St. Pierre is not disabled for
the purposes of employment discrimination, MICH. COMP. LAWS §
37.1103(d)(i)(A).

This is a public accommodation case, and the

definition of disability in a public accommodation claim (which is
substantially different from the one for employment discrimination) is
set forth at MICH. COMP. LAWS §37.1103(d)(i)(B).
For the purposes of an employment discrimination claim, a
disability

is

defined

as

“[a]

determinable

physical

or

mental

characteristic of an individual, which may result from disease, injury,
congenital condition of birth, or functional disorder, if the characteristic
. . . substantially limits 1 or more of the major life activities of that
individual and is unrelated to the individual's ability to perform the
duties of a particular job or position or substantially limits 1 or more of
the major life activities of that individual and is unrelated to the
individual's qualifications for employment or promotion.” MICH. COMP.
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LAWS § 37.1103(d)(i)-(d)(i)(A).

For the purposes of a public

accommodation claim, a disability is defined as “[a] determinable
physical or mental characteristic of an individual, which may result
from disease, injury, congenital condition of birth, or functional
disorder, if the characteristic . . . is unrelated to the individual's ability
to utilize and benefit from a place of public accommodation or public
service.” MICH. COMP. LAWS § 37.1103(d)(1), (d)(1)(B).
Defendants seek leave to move for summary judgment on the
PWDCRA claim on the grounds that St. Pierre is not disabled under the
PWDCRA definition of disability for an employment discrimination
claim, rather than the definition applicable to his public accommodation
claim. Even if the Court granted leave to file the motion for summary
judgment, the motion would be denied, because defendants move for
summary judgment on the wrong legal grounds.
The Court’s prior summary judgment opinion established that
DLI Properties has not been shown to be the employer of the individual
defendants accused of violating the PWDCRA, and can therefore not be
vicariously liable for their actions. DLI Properties did not move for
summary judgment on this claim previously. Plaintiffs argue that the
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motion is unnecessary, because the Court could simply clarify whether
its holding regarding DLI Properties’ lack of liability for other claims
applied to the PWDCRA claim.
Under Fed. R. Civ. 56(f), the Court must give notice and a
reasonable time to respond before entering summary judgment on any
count where it was not sought, even where the grounds for judgment
are already set forth with regard to other claims. Accordingly, notice is
given that the Court intends to enter summary judgment in DLI
Properties’ favor on the PWDCRA claim on the grounds that it cannot
be held vicariously liable for the actions of independent contractors.
The grant of summary judgment would also dismiss DLI Properties
from this case. The parties are permitted five pages of supplemental
briefing regarding the grant of summary judgment, due on or before
September 20, 2017.

The parties may not expand the evidentiary

record from what has already been presented to the Court, and must
rely on the record as it currently stands.
For the reasons set forth above, it is hereby ordered that:
Summary judgment is GRANTED on Taylor’s IIED claim;

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Defendants’ motion to file a second motion for summary judgment
(Dkt. 36) is DENIED; and
The parties are to submit supplemental briefing on the potential
grant of summary judgment to DLI Properties on St. Pierre’s PWDCRA
claim on or before September 20, 2017.

IT IS SO ORDERED.
Dated: September 6, 2017
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on September 6, 2017.
s/Shawna Burns
SHAWNA BURNS
Case Manager

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