B&S Transport, Inc. et al v. Bridgestone Americas Tire Operations, LLC et al

Filing 138

Memorandum Opinion: Defendants' motion for summary judgment on plaintiffs' first claim for relief for race discrimination is granted, and plaintiffs' motion for summary judgment on that claim is denied. Plaintiffs' state law claims, and defendants' counterclaims, are dismissed without prejudice, pursuant to 28 U.S.C. Section 1367(c)(3). (Related Doc # 84 , 86 ). Judge Sara Lioi on 3/21/2016. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

B&S TRANSPORT, INC., et al.,
PLAINTIFFS,
vs.

BRIDGESTONE AMERICAS TIRE
OPERATIONS, LLC, et al.,
DEFENDANTS.

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CASE NO. 5:13-cv-2793
JUDGE SARA LIOI

MEMORANDUM OPINION

This matter is before the Court on the parties’ cross motions for summary
judgment. Plaintiffs B&S Transport, Inc. (“B&S”) and Ronnie Harris (“Harris”)
(collectively, “plaintiffs”) seek partial summary judgment in their favor and against
defendants Bridgestone Americas Tire Operations, LLC (“BATO”) and Bridgestone
Americas, Inc. (“BA”) (collectively, “defendants” or “Bridgestone”) with respect to three
claims in the first amended complaint. (Doc. Nos. 86 and 87 [“Pl. Mot.”].) Defendants
opposed plaintiffs’ motion (Doc. No. 105 [“Def. Opp’n”]), to which plaintiffs replied
(Doc. No. 109 [“Pl. Reply”]).
Defendants seek summary judgment on all claims asserted in plaintiffs’ first
amended complaint, and on defendants’ counterclaims. (Doc. No. 84 and 90 [“Def.
Mot.”].) Plaintiffs opposed defendants’ motion (Doc. No. 106 [“Pl. Opp’n”]), to which
defendants replied (Doc. No. 112 [“Def. Reply”]).
For the reasons that follow, defendants’ motion for summary judgment is granted
with respect to plaintiffs’ first claim for relief pursuant to 42 U.S.C. § 1981, and

plaintiffs’ motion for summary judgment with respect to the same claim is denied.
Plaintiffs’ state law claims, and defendants’ counterclaims, are dismissed without
prejudice, pursuant to 28 U.S.C. § 1367(c)(3).
I. BACKGROUND
The basic factual background of this case is not in dispute. Plaintiff Harris is the
founder of plaintiff B&S and its majority stockholder; Harris’s wife owns the remaining
shares. (Doc. No. 47 (First Amended Complaint [“FAC”]) ¶ 14.) B&S is a minority
owned self-described African American company, which became an authorized dealer of
Firestone tires between 1977 and 1979, and of Bridgestone tires after Bridgestone
acquired Firestone. (FAC ¶¶ 15, 17, 21-22.)
B&S and Bridgestone entered into the dealership agreement in 1991. It consists of
a standard dealership agreement, amended by a letter agreement dated April 1, 1991
(FAC ¶ 23; Doc. No. 84-3, Ex. 1 [“Agreement”]), and is governed by the laws of the
State of California (Agreement at 8161, ¶ 13).
The agreement was tailored to allow B&S to pursue “‘minority set-aside’ business
in order to obtain incremental sales and profits for both of us.” (Id. at 819.) Because of
the nature of this business, the agreement did not limit B&S geographically, and B&S
was not required to provide service and warranty work performed by a typical tire dealer.
(Id.) The agreement acknowledged that these differences provided B&S with “certain
advantages” not provided to other dealers, and that “[i]t must be understood that these
advantages are to be used only to obtain incremental business for us and to genuinely

1

All references to page numbers are to the page identification numbers generated by the Court’s electronic
docketing system.

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assist your minority enterprise, and not to disrupt our existing distribution system by
merely displacing sales which would otherwise be made by our current dealers or by
Bridgestone itself.” (Id. at 819-20.) Among the advantages to B&S was that Bridgestone
would drop-ship tires directly to B&S’s customers.2 (Doc. No. 85-3 (Deposition of
Ronnie Harris [“Harris Dep.”]) at 1124 (59-60).3)
Thus, defendants proposed to proceed on a “deal-specific” basis. B&S was not
limited to “minority set-aside” business, but could pursue “any sales which are
determined by Bridgestone to be incremental to Bridgestone.” Moreover, B&S was free
to deal in competitors’ products, and defendants were free to utilize other minority
enterprises. (Agreement at 820.)
With respect to termination, the agreement provided that:
At any time, and for any reason, either party may terminate this
relationship with 30 days’ written notice, provided that each party shall
honor all commitments incurred prior to the effective date of any such
termination. Upon such termination, all amounts due and owed
Bridgestone are immediately payable. The intent of this approach is that
our business should—and can best—grow over the long-term if it is based
primarily on our developing relationship, upon whatever success we have,
and upon mutual good faith.
(Id. at 820; see also id. at 815, ¶ 8(a).)
Over the years of the agreement, B&S purchased tires from Bridgestone on credit,
sold the tires and was paid by its customers, then paid Bridgestone for the tires. (Harris
Dep. at 1147-48 (152-53).) Harris personally guaranteed any indebtedness of B&S to
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Other dealers generally paid for shipping tires to their dealer locations or warehouses, and drop-shipping
provided a competitive advantage to B&S. (Doc. No. 84 (Affidavit of Landers Gaines August 12, 2015
[“Gaines Aff. 8/12/15”]) ¶ 7.) Other Bridgestone dealers requested drop shipping, but those requests were
denied. (Doc. No. 98-1 (Deposition of Landers Gaines May 20, 2015 [“Gaines Dep. 5/20/15”]) at 3257-58.)
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Some deposition transcripts were filed in a condensed format with four deposition transcript pages
appearing on a single page. In those instances, the Court’s citation includes the page identification number
generated by the Court’s electronic docketing system and, parenthetically, the original deposition transcript
page numbers.

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Bridgestone. (Doc. No. 65 at 655-660 [“Guaranty”].) The guaranty is governed by the
laws of Tennessee. (Id. at 658, ¶ L.)
On February 28, 2013, Harris received a hand-delivered letter from Kurt
Danielson (“Danielson”), President of Bridgestone Commercial Solutions, informing
Harris that Bridgestone was terminating B&S’s dealership agreement. (FAC ¶¶ 32-33;
Doc. No. 47-2 [“Termination Letter”].) According to the letter, “Bridgestone’s reasons
for termination includes [sic] Bridgestone’s change in distribution and [go-to-market]
solutions strategies.” (Termination Letter at 511.) The letter states that, in order to give
B&S time to wind down its business with Bridgestone, B&S would remain an authorized
dealer until December 31, 2013, and Bridgestone would continue to provide B&S with
tires through that date. (Id.)
The instant action arises from Bridgestone’s termination of B&S’s dealership, and
the first amended complaint asserts one federal claim and five state claims. With respect
to the federal claim, plaintiffs allege, pursuant to 42 U.S.C. § 1981, that Bridgestone’s
termination of the agreement was an intentional act of race discrimination and, after the
termination letter was issued, B&S received less favorable treatment than did a nonminority Bridgestone dealer—Pomp’s Tire Service, Inc. (“Pomp’s”). (FAC ¶¶ 40-68.)
With respect to their state law claims, plaintiffs allege breach of contract (second
claim—FAC ¶¶ 69-76), breach of implied covenant of good faith and fair dealing (third
claim—FAC ¶¶ 77-86), promissory estoppel (fourth claim—FAC ¶¶ 87-97), intentional
interference with contract (fifth claim—FAC ¶¶ 98-103), and fraud (sixth claim—FAC ¶¶
104-113).

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Defendants deny liability with respect to all of plaintiffs’ claims, and assert
counterclaims for breach of contract, account, and unjust enrichment, alleging that
plaintiffs have not paid Bridgestone for tires purchased from Bridgestone on credit in the
sum of $955,144.16. (Doc. Nos. 49 and 64 [“Counterclaims”].) In answering defendants’
counterclaims, plaintiffs deny that defendants have been damaged at all, or in the sums
alleged. (Doc. No. 70 [“Answer to Counterclaims”].)
Defendants move for summary judgment on all claims asserted in plaintiffs’ first
amended complaint, and on defendants’ counterclaims. Plaintiffs seek partial summary
judgment with respect to their first (§ 1981 race discrimination), second, (breach of
contract), and third (breach of implied covenant of good faith) claims. The parties’ cross
motions with respect to plaintiffs’ first, second, and third claims for relief essentially
mirror their oppositions to the other’s motion.
The foregoing is a summary of the background facts of this case. Additional facts
will be discussed in greater detail as necessary and appropriate in the context of the
Court’s analysis of the parties’ motions.
II. DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate where “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 fact is material if its resolution affects the outcome of the lawsuit under the
governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91
L. Ed. 2d 202 (1986). A dispute is genuine “if the evidence is such that a reasonable jury

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could return a verdict for the nonmoving party.” Id. If a reasonable jury could return a
verdict for the nonmoving party, then summary judgment is not appropriate. Id.
The moving party must provide evidence to the court that demonstrates the
absence of a genuine dispute as to any material fact. Once the moving party meets this
initial burden, the opposing party must come forward with specific evidence showing that
there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct.
2548, 91 L. Ed. 2d 265 (1986); Anderson, 477 U.S. at 250. The nonmoving party may
oppose a summary judgment motion “by any of the kinds of evidentiary material listed in
Rule 56(c), except the mere pleadings themselves[.]” Celotex, 477 U.S. at 324. The Court
must view all facts and evidence, and inferences that may be reasonably drawn
therefrom, in favor of the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654,
655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962).
General averments or conclusory allegations of an affidavit do not create specific
fact disputes for summary judgment purposes. See Lujan v. Nat’l Wildlife Fed’n, 497
U.S. 871, 888-89, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990). “Summary judgment
requires that a plaintiff present more than a scintilla of evidence to demonstrate each
element of a prima facie case.” Garza v. Norfolk S. Ry. Co. 536 F. App’x 517, 519 (6th
Cir. 2013) (citing Van Gorder v. Grand Trunk W. R.R., 509 F.3d 265, 268 (6th Cir.
2007)). “‘The mere existence of a scintilla of evidence in support of the [nonmoving
party’s] position will be insufficient; there must be evidence on which the jury could
reasonably find for the [nonmoving party].’” Street v. J.C. Bradford & Co., 886 F.2d
1472, 1477 (6th Cir. 1989) (quoting Anderson, 477 U.S. at 252).

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The district court’s review on summary judgment is a threshold inquiry to
determine whether there is the need for a trial due to genuine factual issues that must be
resolved by a finder of fact because those issues may reasonably be resolved in favor of
either party. Anderson, 477 U.S. at 250. Put another way, this Court must determine
“whether the evidence presents a sufficient disagreement to require submission to a jury
or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52;
see also Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 578 (6th Cir. 2003).
Summary judgment is required:
against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that
party bears the burden of proof at trial. In such a situation, there can be no
genuine issue as to any material fact, since a complete failure of proof
concerning an essential element of the nonmoving party’s case necessarily
renders all other facts immaterial. The moving party is entitled to
judgment as a matter of law because the nonmoving party has failed to
make a sufficient showing of an essential element of [his] case with
respect to which [he] has the burden of proof.
Celotex, 477 U.S. at 322-23 (internal quotation marks and citation omitted).
The typical summary judgment standard of review “poses unique issues” when
cross motions for summary judgment are filed. B.F. Goodrich Co. v. U.S. Filter Corp.,
245 F.3d 587, 592 (6th Cir. 2001). In such case, the district court must evaluate each
party’s motion on its own merits, drawing all reasonable inferences against the moving
party. Id. (citation omitted). If it is possible to draw inferences in either direction, then
both motions for summary judgment should be denied. Id. at 592-93. The making of
contradictory claims on summary judgment does not mean that if one is rejected the other
must be accepted. Id.

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B. Objections to Affidavits
As a preliminary matter, plaintiffs have objected to certain aspects of the
following affidavits filed by the defendants in support of their dispositive motion: (1)
Affidavit of Kurt Danielson (Doc. Nos. 84-10 and 91); (2) Affidavit of Landers Gaines
(“Gaines”) (Doc. No. 84-5); (3) Affidavit of Kevin Whitsett (“Whitsett”) (Doc. No. 844); (4) Affidavit of Marcus Crews (“Crews”) (Doc. No. 84-12); (5) Affidavit of Matthew
Harmon (“Harmon”) (Doc. No. 84-15); (6) Affidavit of Michelle Richardson
(“Richardson”) (Doc. No. 84-14); and (7) Affidavit of Linda Alberstadt (“Alberstadt”)
(Doc. No. 84-11). (Doc. No. 107.) Defendants have opposed plaintiffs’ objections. (Doc.
No. 113.) Additionally, in a footnote in plaintiffs’ reply brief in support of their motion
for partial summary judgment, plaintiffs “reserve all evidentiary objections” to
“inadmissible materials” submitted by defendants in opposition to plaintiffs’ motion for
partial summary judgment pursuant to Fed. R. Civ. P. 56(c)(2) and 56(c)(4), and Fed. R.
Evid. 802 and 901. (Pl. Reply at 4996 n. 2.) The Court will address these objections
before analyzing the parties’ summary judgment motions.
1. Testimony of interested employees
Plaintiffs’ objections to five of the affidavits—Danielson, Gaines, Whitsett,
Crews, and Alberstadt—are based upon Reeves v. Sanderson Plumbing Prod., Inc., 530
U.S. 133, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000). In these affidavits, the affiants aver
that defendants terminated B&S’s dealership agreement for legitimate business reasons,
and not because of race. Plaintiffs contend that, pursuant to Reeves, these factually
disputed statements from “interested” witnesses should be precluded.

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In Stratienko v. Cordis Corp., 429 F. 3d 592 (6th Cir. 2005), the Sixth Circuit
held that the interpretation of Reeves advocated by the plaintiffs “leads to absurd
consequences” because defendants are often only able to respond to a plaintiff’s
allegations through the testimony of their employees. Stratienko, 429 F. 3d at 598
(quoting Almond v. ABB Indus. Sys., Inc., 56 F. App’x 672, 2003 WL 173640, at *2 (6th
Cir. Jan. 22, 2003)). Thus, courts may consider the testimony or affidavits of a moving
party’s interested witnesses on summary judgment when the affidavits are not
contradicted or the witness is not impeached or his credibility questioned. Id. (citations
omitted). Accordingly, the plaintiffs’ objections to the Court’s consideration of the
affidavits on summary judgment on the basis of Reeves, alone, are overruled.
2. Race of affiant
Plaintiffs also object to the affidavits of Gaines and Crews, in which each aver
that the affiant is African American, on the grounds that the race of the affiant is
irrelevant pursuant to Fed. R. Evid. 402. However, the race of the affiant is not entirely
irrelevant, and plaintiffs’ objections on that basis are overruled. Though not dispositive,
the fact that a decision-maker is the same race as plaintiff may weaken an inference of
discrimination and, to the extent it is appropriate, a court may consider the race of an
affiant. See Turner v. City of Akron, No. 5:06CV3023, 2008 WL 45376, at *14 n.22
(N.D. Ohio Jan. 2, 2008), aff'd, 324 F. App’x 453 (6th Cir. 2009). However, the Court did
not find it necessary to consider the race of Gaines or Crews in ruling on the parties’
motions, and plaintiffs’ objection is overruled.

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3. Rule 56 objections
Plaintiffs object to the affidavits pursuant Fed. R. Civ. P. 56(c)(2) and (c)(4). Rule
56(c)(2) provides that “a party may object that the material cited to support or dispute a
fact cannot be presented in a form that would be admissible in evidence.” “[T]he
objection contemplated by [the Rule] is not that the material ‘has not’ been submitted in
admissible form, but that it ‘cannot’ be.” Foreward Magazine, Inc. v. OverDrive, Inc.,
No. 1:10-cv-1144, 2011 WL 5169384, at *2 (W.D. Mich. Oct. 31, 2011). Plaintiffs do not
specify which statements by affiants could not be produced or introduced in the form of
admissible evidence. Accordingly, plaintiffs’ objections on the basis of Rule 56(c)(2) are
overruled. That said, the Court will be mindful, as it always is on summary judgment, of
any particular attested fact that could not be submitted in admissible form.
Rule 56(c)(4) provides that affidavits used to support or oppose a motion for
summary judgment “must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant . . . is competent to testify on the
matters stated.” Plaintiffs do not specify which statements by affiants do not comply with
the rule. Accordingly, plaintiffs’ objections on the basis of Rule 56(c)(4) are overruled.
As before, the Court will be mindful of any particular attested fact that specifically fails
to meet the rule’s requirements.
4. Evidentiary objections
Plaintiffs also object to the affidavits on the basis of Fed. R. Evid. 401, 402, 801,
and 901. With respect to the Danielson affidavit, plaintiffs contend that the presentations
discussed in the affidavit lack foundation, are not relevant, and contain hearsay. The
presentations describe defendants’ business strategies, which are relevant because those

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strategies allegedly form a basis for terminating the agreement. Moreover, Danielson was
a presenter and otherwise has personal knowledge of the presentations and defendants’
business and marketing strategies. Danielson also avers that presentation materials
attached as exhibits to his affidavit were prepared, maintained, and presented in the
ordinary course of business. See Fed. R. Evid. 903(6). In addition, Danielson was
deposed and subject to cross-examination regarding defendants’ business strategies.
Finally, the exhibits regarding defendants’ business strategies are advanced to rebut
plaintiffs’ allegations that defendants’ business strategies are fabricated and pretextual.
See Fed. R. Evid. 801(d)(1). Plaintiffs’ evidentiary objections to Danielson’s affidavit are
overruled.
With respect to the affidavit of Gaines, plaintiffs object to his reference to
“various difficulties” with respect to Harris and B&S for lack of foundation as to detail of
time place and issues. Plaintiffs object on the same basis with respect to Gaines’s
averments contrasting difficulties with Harris and the professionalism of a Bridgestone
dealer that plaintiffs claim is similarly situated to B&S. But these statements in Gaines’s
affidavits are made from personal knowledge, and he was deposed and subject to crossexamination regarding his interactions with Harris, B&S, and Pomp’s. Plaintiffs’
evidentiary objections to Gaines’s affidavit are overruled. That said, the Court did not
consider Gaines’s averments regarding difficulties with Harris in ruling on the parties’
summary judgment motion.
The nature of plaintiffs’ evidentiary objections, and the Court’s analysis of those
objections, to the affidavits of Whitsett, Crews, Harmon, Richardson, and Alberstadt is

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the same, and the objections are overruled. As before, the Court will be mindful of any
particular attested fact that fails to meet the requirements of the evidentiary rules.
C. Federal Claim—Race Discrimination Pursuant to 42 U.S.C. § 1981
Both sides move for summary judgment on count one of the first amended
complaint, which alleges that Bridgestone intentionally discriminated against plaintiffs on
the basis of race in terminating the dealership agreement. Section 1981 “prohibits
intentional race discrimination in the making and enforcing of contracts involving both
public and private actors.” Spokojny v. Hampton, 589 F. App’x 774, 777 (6th Cir. 2014)
(citing Christian v. Wal–Mart Stores, Inc., 252 F.3d 862, 867–68 (6th Cir. 2001)). To
prevail on their § 1981 claim, plaintiffs must prove, by direct or circumstantial evidence,
that Bridgestone intentionally discriminated against them on the basis of race when it
terminated B&S’s dealership agreement. Id. (citing Amini v. Oberlin Coll., 440 F.3d 350,
358 (6th Cir. 2006)).
Bridgestone contends that there is no direct evidence that it terminated the
agreement because of race. (Def. Mot. at 1818-21 (citing Harris Dep. at 1144-45 (14044)).) Plaintiffs advance no direct evidence of race discrimination in opposition to
Bridgestone’s motion or in their motion for summary judgment. Rather, both parties
focus their arguments on circumstantial evidence of discrimination.
Claims of race discrimination under § 1981 based on circumstantial evidence,
even in a non-employment context, are analyzed using the familiar McDonnell
Douglas/Burdine burden-shifting framework. Under that three-part framework, if
plaintiffs sustain their initial burden of establishing a prima facie case, then the burden
shifts to Bridgestone to articulate a legitimate, non-discriminatory reason for terminating

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the dealership agreement. If Bridgestone can sustain this burden of production, then the
burden shifts back to plaintiffs to advance evidence that Bridgestone’s justification is a
pretext for intentional discrimination. Spokojny, 589 F. App'x at 778-79 (citing White v.
Baxter Healthcare Corp., 533 F.3d 381, 391 (6th Cir. 2008)); Baseball at Trotwood, LLC
v. Dayton Prof’l Baseball Club, 204 F. App’x 528, 536-37 (6th Cir. 2006) (citing
McDonnell Douglas, Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668
(1973)); TLC Realty 1 LLC v. Belfor USA Grp., Inc., No. 3:13-cv-56, 2016 WL 98599, at
*4 (S.D. Ohio Jan. 8, 2016) (applying McDonnell Douglas framework) (citing White, 533
F.3d at 391).
1. Plaintiffs fail to establish a prima facie case
As noted above, the burden-shifting framework of McDonnell Douglas is applied
to prove intentional race discrimination in § 1981 cases by indirect evidence. But the
model for a prima facie case announced in McDonnell Douglas4 is not inflexible, and the
components of a prima facie case may vary depending on differing factual situations.
Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 n. 6, 101 S. Ct. 1089, 67 L.
Ed. 2d 207 (1981) (quoting McDonnell Douglas, 411 U.S. at 802 n. 13); see also Wil’s
Indus. Servs., Inc., v. United States Steel Corp., No. 2:07 cv 128, 2009 WL 2169663, at *
6 (N.D. Ind. July 17, 2009) (African American owned industrial cleaning service
suspended from work for safety violations) (citing Burdine, 450 U.S. at 253 n. 6) (further

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Under McDonnell Douglas model, plaintiff may establish a prima face case of race discrimination by
showing that “1) he is a member of a protected class; 2) he was qualified for the job and performed it
satisfactorily; 3) despite his qualifications and performance, he suffered an adverse employment action; and
4) he was replaced by a person outside the protected class or was treated less favorably than a similarly
situated individual outside of his protected class.” Wheat v. Fifth Third Bank, 785 F.3d 230, 237 (6th Cir.
2015) (quoting Laster v. City of Kalamazoo, 746 F.3d 714, 727 (6th Cir. 2014) (citing McDonnell Douglas,
411 U.S. at 802)).

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citation omitted); TLC, 2016 WL 98599, at *4 (African American owned contracting
business not assigned work by defendant property restoration company for using
independent contractors rather than its own employees to perform work) (citing White,
533 F.3d at 391).
No matter how one might describe the first three components of a prima facie
case in this action, the parties’ argument over whether plaintiff can establish a prima facie
case focuses only on the fourth element—whether Bridgestone treated similarly situated,
non-minority Bridgestone dealers, more favorably than it treated plaintiffs. Thus the
Court will limit its analysis to that element.5 Plaintiffs’ burden to establish a prima facie
case is not onerous and easily met. TLC, 2016 WL 98599, at *4 (citing Jackson v. FedEx
Corp. Servs., Inc., 518 F.3d 388, 396 (6th Cir. 2008)); see also Wheat, 785 F.3d at 237
(citations omitted).
Plaintiffs contend that B&S and Pomp’s are similarly situated because both
engaged in the sales of Bridgestone tires to the government and are subject to the same
Bridgestone rules and guidelines applicable to government sales. (Pl. Opp’n at 4455; Pl.
Mot. at 1390.) Plaintiffs also contend that the “totality of the facts” establish a prima

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The parties’ briefing focuses on whether Pomp’s and B&S are similarly situated. But in plaintiffs’ reply
brief, plaintiffs state in passing that “the Opposition fails to rebut the undisputed evidence that, with respect
to BATO dealers selling to the DLA [Defense Logistics Agency (“DLA”)], B&S was replaced by a dealer
outside of the protected class.” (Pl. Reply at 4996.) The Court is doubtful that the concept of replacement
applies to this analysis, but to the extent it does, the undisputed evidence does not establish that Pomp’s
replaced B&S with respect to government sales to DLA.
Plaintiffs advance the deposition testimony of Alberstadt, who testified that both B&S and Pomp’s
engaged in government sales to the DLA between 2005 and 2007—before Bridgestone terminated the
dealership agreement. (Pl. Mot. at 1387; Doc. 95-2 (Deposition of Linda Alberstadt [“Alberstadt Dep.”]) at
2485 (14).) To the extent plaintiffs claim that Pomp’s replaced B&S with respect to sales to DLA because
Pomp’s continued those sales after B&S’s dealership was terminated, such continued sales do not constitute
replacement. See e.g., Novotny v. Elsevier, 291 F. App’x. 698, 702 (6th Cir. 2008) (“[Male employee] did
not take [female plaintiff’s] position. Rather, he took on her job responsibilities in addition to his own.
Such an act does not constitute replacement.”).

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facie case because defendants did not eliminate the sale of Bridgestone tires to the
government through authorized dealers, but “simply eliminated the authority of B&S, the
only African-American dealer focused on making such sales, to continue with such sales,
while allowing Pomp’s, a White-owned company, to continue, to engage in government
sales of Bridgestone tires.” (Pl. Opp’n at 4456; see also Pl. Mot. at 1391-92.)
In order to be similarly situated under the McDonnell Douglas/Burdine analysis, a
comparator need not be identical with the plaintiff in all respects. Rather, the comparators
must be similar in all relevant aspects. TLC, 2016 WL 98599, at *5 (citing Wright v.
Murray Guard, 455 F.3d 702, 710 (6th Cir. 2006) (citing Ercegovich v. Goodyear Tire &
Rubber Co., 154 F.3d 344, 353 (6th Cir. 1998))); see also Bobo v. United Parcel Serv.,
Inc., 665 F.3d 741, 751 (6th Cir. 2012) (citing Ercegovich, 154 F.3d at 353); Wheat, 785
F.3d at 238 (quoting Ercegovich, 154 F.3d at 352); Turner, 2008 WL 45376, at *10
(“[T]he Sixth Circuit has warned against the employment of a rigid standard for
comparison. Rather, the court has explained that ‘in applying [this] standard courts
should not demand exact correlation, but should instead seek relevant similarity.’”)
(quoting Perry v. McGinnis, 209 F.3d 597, 601 (6th Cir. 2000)) (other citation omitted).
The relevant aspects for comparison between B&S and Pomp’s relate to the
reason for termination of the dealership agreement. TLC, 2016 WL 98599, at *5 (relevant
factors include whether TLC and Holt Construction were subject to the same standards
with respect to use of subcontractors instead of their own employees); Wil’s, 2009 WL
2169663, at *7 (plaintiff failed to show that non-minority contractors who committed
serious safety violations were not suspended); see also Wheat, 785 F.3d at 238
(“[B]ecause Wheat’s termination was spurred by a verbal, and potentially physical,

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altercation, the relevant comparison between Wheat and Hatfield should involve only the
two men’s roles and actions in the contretemps.”). The termination letter from Danielson
states that Bridgestone’s “reasons for termination includes [sic] Bridgestone’s change in
distribution and [go-to-market] solutions strategies.” (Termination Letter at 511.)
Plaintiffs miss the mark by arguing that, because Pomp’s and B&S both sold tires
to the government, they are similarly situated. Bridgestone’s stated reason for terminating
the agreement relates to Bridgestone’s distribution and marketing strategies. Pomp’s
continued ability to sell Bridgestone tires to the government is incidental to the fact that
Pomp’s remained an authorized Bridgestone dealer. Thus, in order to determine whether
B&S and Pomp’s are similarly situated, the relevant aspects for comparison are their
attributes as authorized Bridgestone dealers relative to Bridgestone’s articulated business
strategies.
Harris operates B&S from his residence and has no storefront or retail locations,
no Bridgestone signage, and little if any advertising or marketing. (Harris Dep. at 1144
(138-39); Doc. No. 84-4 (Affidavit of Kevin Whitsett [“Whitsett Aff.”]) ¶ 5.) Harris
converted a barn on his property, approximately 1,000 square feet in size, to utilize stalls
for stacking tires and for storing tools and equipment. (Harris Dep. at 1122-23 (52-53);
Whitsett Aff. ¶¶ 4-5 (B&S’s storage capability is minimal compared to full-service
dealers).) Excluding Harris and his wife, B&S employs four people. (Doc. No. 85-4 (Rule
30(b)(6) Deposition of Ronnie Harris [“Harris 30(b)(6) Dep.”]) at 1167 (10).)
Although plaintiffs identified Pomp’s as similarly situated for purposes of
plaintiffs’ § 1981 claim, Harris is only “vaguely” familiar with Pomp’s. Harris knows
that Pomp’s has several operations throughout the country, but does not know about the

16

services that Pomp’s offers, the tire lines it carries, or the number of people that Pomp’s
employs. (Harris Dep. at 1134-35 (100-03).)
Bridgestone employee Gaines had direct business dealings with both B&S and
Pomp’s. (Landers Aff. ¶¶ 4, 6; Doc. No. 98-1 (Deposition of Landers Gaines May 20,
2015 [“Gaines Dep. 5/20/15”]) at 3208, 3175.) Pomp’s is a much larger dealer than B&S,
with multiple locations throughout the country. (Gaines Dep. 5/20/15 at 3231-32). Gaines
personally visited a number of Pomp’s locations and had the opportunity to see its
offices, warehouses, and equipment. (Doc. No. 98-2 (Deposition of Landers Gaines May
21, 2015 [“Gaines Dep. 5/21/15”]) at 3411.) Pomp’s dealership, one of the largest in the
country, provides a broad array of tire-related services at multiple retail locations.
(Gaines Aff. ¶ 6.)
“Pomp’s and B&S’s businesses are quite dissimilar. B&S’s business model was
that of a tire broker rather than a servicing dealer. B&S has a few employees who
operated from their home offices. B&S did not provide many, if any, tire-related
services—certainly not close to the range of services provided by Pomp’s. When
compared to Pomp’s, B&S’s storage facilities were limited, and B&S did not carry full
lines of tires like Pomp’s does.” (Gaines Aff. ¶ 8; see also Whitsett Aff. ¶ 5.)
Plaintiff does not dispute Bridgestone’s characterization of B&S’s business, or the
evidence advanced by Bridgestone regarding the nature and scope of Pomp’s retail and
service operations. Nor do plaintiffs advance any evidence that a non-minority dealership
with a business model like B&S’s was not terminated by Bridgestone. Indeed, plaintiffs
recognize that B&S’s dealership agreement “was unique.” (Pl. Opp’n at 4455.)

17

These dealership attributes are relevant aspects for comparison because
Bridgestone’s stated reason for termination of the agreement relates to its market
strategies. As discussed in greater detail below, Bridgestone’s self-described market
strategies involved providing a full complement of tire-related services to Bridgestone
customers through a unified and coordinated network of dealers to give Bridgestone a
competitive edge in the marketplace through increased customer loyalty and profits.
(Doc. No. 91 (Affidavit of Kurt Danielson [“Danielson Aff.”]) ¶¶ 4-5.)
Plaintiffs posit that the issue of whether B&S and Pomp’s are similarly situated
should be resolved by a jury, citing Bobo, supra, in support. But Bobo is inapposite. In
that case, whether plaintiff (who was terminated for an admitted wrongdoing) was
similarly situated to other employees (who denied wrongdoing) turned on a credibility
determination. In this case, the differences with respect to Pomp’s and B&S’s dealerships
are undisputed, and no credibility determination is required.
No reasonable jury could find that B&S and Pomp’s are similarly situated
Bridgestone dealers in view of the undisputed differences in the nature and scope of their
dealership operations relative to Bridgestone’s stated market strategies. Thus, defendants
are entitled to summary judgment on plaintiffs’ § 1981 claim because plaintiff cannot
establish a prima facie case of discrimination.6
6

Bridgestone also contends that that B&S and Pomp’s are not similarly situated with respect to their dealer
relationships with Bridgestone. Bridgestone claims that Harris would not follow Bridgestone’s policies and
procedures and was unprofessional in his dealings with Bridgestone employees, while Pomp’s
representatives complied with Bridgestone’s policies and procedures and resolved issues with Bridgestone
employees in a professional manner. Given the Court’s disposition of the issue as it relates to Bridgestone’s
reason for termination specifically identified in the termination letter (i.e., Bridgestone’s business
strategies), the Court need not address this separate reason for the termination. The Court does
acknowledge, however, that the reason stated in the termination letter was not exclusive, as the letter states
that the “reasons for termination includes [sic] Bridgestone’s change in distribution and [go-to-market]
solutions strategies.”

18

2. Bridgestone’s non-discriminatory reason for termination
Assuming for the purpose of this analysis that plaintiffs were able to establish a
prima

facie

case

of

intentional

race

discrimination,

under

the

McDonnell

Douglas/Burdine framework, the burden would shift to defendants to identify a
legitimate, non-discriminatory reason for terminating the dealership agreement.
Bridgestone asserts that B&S’s tire broker dealership model was not aligned with
Bridgestone’s change in distribution and marketing strategy to increase profits through a
unified network of dealers providing a broad array of tire-related services to
Bridgestone’s customers.
The dealership agreement between B&S and Bridgestone provides that the
relationship could be terminated by either party at any time, for any reason, with 30 days’
notice. The reason articulated by Bridgestone—lack of fit with Bridgestone’s changed
business strategies—satisfies Bridgestone’s burden to identify a legitimate, nondiscriminatory reason for terminating the dealership agreement. See e.g. Baseball at
Trotwood, 204 F. App’x at 537 (awarding contract to non-minority group had legitimate,
non-discriminatory justification when non-minority group offered more stability and
better financing); Brown v. Am. Honda Motor Co., Inc. 939 F.2d 946, 951 (11th Cir.
1991) (choice of dealership proposing to sell only Hondas rather than multiple car lines
was legitimate reason for not selecting minority dealership proposal).
3. Plaintiffs fail to establish pretext
Once Bridgestone advances a legitimate non-discriminatory reason for its actions,
the burden shifts to plaintiffs to establish that the stated reason is a pretext for intentional
discrimination. A pretextual reason (1) has no basis in fact, (2) did not actually motivate

19

the defendant’s challenged conduct, or (3) is insufficient to justify the challenged
conduct. Spokojny, 589 F. App’x at 779 (citing Carter v. Univ. of Toledo, 349 F.3d 269,
274 (6th Cir. 2003)); Amini, 440 F.3d at 360; see also Bare v. Fed. Exp. Corp., 886 F.
Supp. 2d 600, 612 (N.D. Ohio 2012) (citations omitted); TLC, 2016 WL 98599, at *6
(citing Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009)).7
Plaintiffs contend that defendants’ stated business reason for terminating B&S’s
dealership agreement has no basis in fact because: (1) the termination letter did not detail
BATO’s change in strategies; (2) Danielson was president of BATO’s Commercial
Services Division, which did the least business with B&S;8 (3) BATO’s business
strategies did not apply to B&S’s primary business of government sales; (4) Danielson
did not consider that B&S’s dealership agreement focused on government sales and did
not require B&S to provide service; (5) B&S was not requested to make changes in its
operations or provided with a pre-termination notice; and (6) defendants’ post-litigation
criticisms of Harris and B&S’s operations are evidence of pretext. (Pl. Opp’n at 4457-59;
Pl. Mot. at 1392-94.)
Plaintiffs have advanced no evidence that creates a genuine dispute of material
fact with respect defendants’ evidence that Bridgestone’s move toward a full customer
7

The first type of showing consists of evidence that the proffered basis for the adverse action is factually
false. The second occurs when the plaintiff attempts to show circumstances that tend to prove it is more
likely than not that the employer's explanation is a pretext, or cover-up. The third type of showing
ordinarily consists of evidence that other employees, particularly those not in the protected class, were not
subject to the adverse event even though they engaged in substantially identical conduct to that which the
employer claims motivated the adverse action against plaintiff. Lockett v. Marsh USA, Inc., No.
1:06CV00035, 2007 WL 2907894, at *8 (N.D. Ohio Oct. 3, 2007), aff'd, 354 F. App’x 984 (6th Cir. 2009)
(citing Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994)).
8

Even assuming that plaintiffs’ argument that Danielson was president of a division with which B&S did
the least business is true, plaintiffs do not dispute Danielson’s authority to make that decision or that,
before making that decision, Danielson consulted with other Bridgestone employees who had knowledge of
B&S’s business, including Gaines, who had personal knowledge of Harris and a “clear understanding” of
B&S’s business operations. (Danielson Aff. ¶ 8; Gaines Dep. 5/20/15 at 3150.)

20

service distribution and marketing strategy began years before B&S’s dealership
agreement was terminated, or that these strategies were related to increasing price
competition and decreased profits based on price alone. (See Danielson Aff. ¶¶ 5, 6 and
exhibits thereto.) Indeed, the limited profit margins of a price-based business model is
borne out by B&S’s tire broker dealership. Harris testified that, on sales of $12 to $13
million dollars, B&S would either “break even,” have a profit in the range of $30,000 to
$40,000, “or be that much in deficit.” (Harris Dep. at 1155 (182-83).) “I bid it low—you
know, to get this business[.]” (Id.)
Bridgestone’s stated business strategy is to increase profits through a serviceoriented product delivery model that provides customers with a full complement of
“wrap-around” tire-related services, which Bridgestone believes will provide a
competitive edge in the market and increase Bridgestone and dealer profits. (Danielson
Aff. ¶¶ 5, 6.) Bridgestone has concluded that this strategy works best through a unified
and coordinated dealer network “with dealers who have the ability and willingness to
interact and work with customers in multiple diverse ways.” (Id ¶ 5.)
But plaintiffs argue that Bridgestone’s reason is simply a pretext for
discrimination because Bridgestone’s business strategy has no application to B&S’s niche
business in government sales. In support, plaintiffs cite the deposition testimony of three
Bridgestone employees—Alberstadt, Jared Williams, and John Boynton—which
plaintiffs contend proves that Bridgestone’s strategies did not apply to B&S’s

21

government sales. (Pl. Mot. at 1393; see also Pl. Opp’n at 4457-59.) But the deposition
testimony of these individuals does not support plaintiffs’ argument.9
Moreover, even if Bridgestone’s strategy did not apply to B&S’s tire broker
model in governmental sales, that fact alone is insufficient to establish pretext.
Bridgestone has determined that, in its view, the most effective strategy for increasing
profits is through a unified network of dealers offering a full complement of services.
Plaintiffs advance no evidence that dealers engaged in Bridgestone’s service network and
government sales are mutually exclusive or incompatible.10 It is undisputed that B&S had
minimal, if any, service capabilities. “Every dealer except for B&S can [deal with a
customer who comes in for a warranty on a tire.] When someone comes in, that’s the
minimum we expect, that the [dealer] can take care [of]—[the dealer] can sell [the
customer] the tire or fix the tire. That’s our business.” (Gaines Dep. 5/20/15 at 3148.)
B&S’s dealership agreement did not require B&S to provide service, but it was
not prohibited from doing so, and Gaines encouraged B&S to expand its business through
9

Alberstadt testified that there was little or no change in clerical procedures for processing bids.
(Alberstadt Dep. at 2486-89.) But when asked about a “change in market strategy at Bridgestone in 2013,”
Alberstadt responded that she did not work in marketing and could not answer about marketing strategies to
the government. (Alberstadt Dep. at 2549-2550.) With respect to Jared Williams, plaintiffs state that he
never received any written notification that BATO changed its distribution and go-to-market strategies with
respect to government sale. But Williams testified that he worked in marketing “helping our dealers create
a better customer experience for retail customers.” With respect to the marketing of sales to the government
and military, Williams testified that “[w]e relied on the government group to do most of that[.]” (Doc. No.
103 (Deposition of Jared Williams [“Williams Dep.”] at 4329 (12-13).) Williams did testify that there was
a shift in strategy by BATO toward doing business with large retailers, but marketing strategies with
respect to government sales was not his focus. (Id. at 4343-44.) Finally with respect to John Boynton, he
was asked if “the method in which Bridgestone has approached sales to the military or the government in
general changed since January, February, 2013?” To this question, Boynton answered: “To my knowledge,
no.” (Doc. No. 110 (Deposition of John Boynton [“Boynton Dep.”] at 5018 (42-43) (emphasis added).) But
this testimony is of limited relevance since B&S’s dealership agreement was terminated in February 2013,
and BATO’s shift in business strategy began before the termination in 2013. Moreover, Boynton was not
generally familiar with the programs the Department of Defense used in purchasing tires. (Boynton Dep. at
5027-28 (81-82).)
10

“Hundreds of BATO-authorized dealers—even other minority-owned dealers—are authorized to sell
BATO tires to federal, state, and local governments.”(Gaines Aff. ¶ 10.)

22

services related to its business area.11 But Harris testified that he was “satisfied and
comfortable” with his “low-key” home based operation, and Gaines testified that, “at
every turn, [Harris] was not interested in participating” in the service areas Gaines
discussed with him.12 (Harris Dep. at 1144 (138-39); Gaines Dep. 5/20/15 at 3252.)
While Harris may have been comfortable with B&S’s limited profits and low-key
operation, there is no genuine dispute of material fact that Bridgestone was seeking to
increase profit through a coordinated and unified network of dealers “who have the
ability and willingness to interact and work with customers in multiple diverse ways.”
(Danielson Aff. ¶ 5.) The dealership agreement did not commit Bridgestone to B&S’s tire
broker business model in perpetuity, and specifically provides that the agreement could
be terminated “for any reason” with 30 days’ written notice. Bridgestone was not
obligated under the agreement to continue supporting a dealership whose business model
was not consistent with Bridgestone’s stated overall business strategy to increase profits.
Bridgestone made a business decision that was unfavorable to plaintiffs. But the
issue of pretext does not address the correctness or desirability of the reasons for that
decision—even if Bridgestone’s application of its business strategies was misguided or
11

Gaines testified that he spoke with Harris about increasing B&S’s business opportunities and profits by
expanding his tire broker operation and offering tire-related services, including retreading, servicing trucks,
doing more off road business, and about Bridgestone programs that B&S could participate in, including a
retreading program with the Army. (Gaines Dep. 5/20/15 at 3251-55). Sales to governmental entities
included fleet sales, and fleet service was identified by Bridgestone as a new way of capturing revenue.
(See Boynton Dep. at 5034 (109); Doc. No. 91-1 at 1884 (“[F]leets are spending $50 billion on
maintenance and repairs.”).)
12

It is true that B&S was never required by Bridgestone to expand its business or increase its service
capabilities, nor was Harris warned that failure to do so could result in termination of the dealership
agreement. But the agreement did not require notice, warning, or even cause, to terminate the agreement,
and the fact that Bridgestone did not do so is not evidence of pretext. See e.g. Coulter v. Deloitte
Consulting, L.L.C., 79 F. App’x 864, 867-68 (6th Cir. 2003) (citations omitted) (termination without
warning is insufficient to establish pretext when employee is an at-will employee subject to termination
without warning, notice, cause, or prior disciplinary action, and there is no evidence that employer’s
policies required reprimand or warning prior to discharge).

23

wrong, plaintiffs cannot establish pretext so long as Bridgestone’s reason is honestly
held. “If there is no reasonable dispute that [the defendant] made a ‘reasonably informed
and considered decision’ that demonstrates an ‘honest belief’ in the proffered reason for
the [adverse action], the case should be dismissed because no reasonable juror could find
that the [adverse action] was pretextual.” Trotwood, 204 F. App’x at 536-37; Braun v.
Ultimate Jetcharters, Inc., No. 5:12-CV-01635, 2013 WL 3873238, at *18 (N.D. Ohio
July 25, 2013) (In order for the reason to be “honestly held, ‘[a defendant] must be able
to establish its reasonable reliance on the particularized facts that were before it at the
time the decision was made.’” (quoting Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th
Cir. 1998)).
Plaintiffs have failed to carry their burden under the McDonnell Douglas/Burdine
burden-shifting framework to advance evidence from which a reasonable jury could
conclude that Bridgestone’s reason for terminating B&S’s dealership agreement was
pretextual, or could reasonably doubt that Bridgestone’s justification was not honestly
held. See Marsilio v. Vigluicci, No. 5:11CV1974, 2013 WL 1855975, at *11 (N.D. Ohio
Apr. 30, 2013).
4. No evidence of racial animus
Plaintiffs have advanced no evidence of racial animus. Indeed, Bridgestone
originally entered into the dealership agreement with B&S because it was a minority
owned company in order to pursue minority set-aside business. Moreover, Bridgestone
employees who participated in discussions and meetings regarding termination of B&S’s
dealership agreement, and who made the termination decision, aver that race played no
role in those discussions and that the dealership was terminated for the reasons articulated

24

by Bridgestone. (Danielson Aff. ¶ 9; Gaines Aff. ¶ 5; Alberstadt Aff. ¶ 4.) Plaintiffs have
advanced no evidence that the declarations of these individuals are not credible, or
identified evidence in the record that contradicts their statements. See Stratienko, 429
F.3d at 598.
On summary judgment, the movant bears the burden of demonstrating the absence
of a genuine issue of material fact. But “within the context of the McDonnell
Douglas/Burdine burden-shifting framework, plaintiff[s] still must discharge [their]
burden of rebutting [defendants’] articulated non-discriminatory reason. . . . . At the
summary judgment stage, this requires plaintiff[s] to [produce] evidence from which a
jury could reasonably doubt the [defendants’] explanation.” Marsilio, 2013 WL 1855975,
at *11 (internal quotation marks and citations omitted).
As discussed in detail, supra, plaintiffs have advanced no evidence from which a
reasonable jury could conclude that plaintiffs have established a prima facie case, and
even if they had, that Bridgestone’s non-discriminatory reason for terminating B&S’s
dealership agreement was pretextual or otherwise not honestly held. In the absence of
such evidence advanced by plaintiffs, and in the face of the undisputed evidence
advanced by defendants, defendants have satisfied their burden on summary judgment of
establishing that there is no genuine dispute of material fact that Bridgestone terminated

25

B&S’s dealership agreement for reasons unrelated to race, and no reasonable jury could
find in favor of plaintiffs on this issue.13
Accordingly, Bridgestone is entitled to judgment as a matter of law on plaintiffs’
first claim for relief for intentional race discrimination in violation of 42. U.S.C. § 1981.
Defendants’ motion for summary judgment is granted with respect to plaintiffs’ § 1981
claim, and plaintiffs’ motion for summary judgment on their § 1981 claim is denied.

13

Plaintiffs’ § 1981 claim for relief alleges that defendants discriminated against plaintiffs on the basis of
race by terminating B&S’s dealership agreement, and after termination by providing Pomp’s with notice
and special pricing regarding upcoming government contracts, which allowed “Pomp’s [to] underbid other
suppliers, including B&S.” (FAC ¶¶ 56-62.) Defendants move for judgment on plaintiffs’ § 1981 claim,
focusing their argument on termination of the dealership agreement. Plaintiffs’ opposition to defendants’
motion with respect to the § 1981 claim responds to defendants’ arguments regarding termination, but is
silent with respect to the portion of their § 1981 claim regarding pricing. Plaintiffs’ own argument for
summary judgment on their § 1981 claim also focuses on termination—their arguments regarding pricing
are raised in the context of their state law claims for breach of contract and breach of implied covenant of
good faith.
In Anglers of the Au Sable v. United States Forest Service, 565 F. Supp. 2d 812 (E.D. Mich.
2008), plaintiffs alleged that defendants violated the NFMA by approving a project that would, among
other things, contribute to road density. In their motion for summary judgment, plaintiffs devoted one page
to their NFMA claim with “not a word” about road density. When defendants moved for summary
judgment on the NFMA claim, defendants also did not mention plaintiffs’ allegation regarding road
density, but “clearly sought to extinguish the whole of plaintiffs’ claim under the Act.” The court in
Anglers of the Au Sable concluded that “[b]ecause the plaintiffs have shown no inclination to proceed on
this allegation in the face of a motion for summary judgment seeking its resolution, the Court finds that the
claim has been abandoned.” Anglers of the Au Sable, 565 F. Supp. 2d at 839.
Plaintiffs have not addressed the issue of pricing in the face of defendants’ omnibus motion for
summary judgment on plaintiffs § 1981 claim. It is plaintiffs’ burden to properly present their arguments
for judgment to the Court, and not the Court’s burden to collect fragments of arguments scattered in the
context of other claims, and attempt to piece together plaintiffs’ arguments regarding pricing in the context
of their § 1981 claim. Accordingly, the Court deems plaintiffs’ § 1981 claim with respect to pricing
abandoned, and dismisses that portion of plaintiffs’ § 1981 claim. Anglers of the Au Sable, 565 F. Supp. 2d
at 839; see also Bauer v. Cnty. of Saginaw, 111 F. Supp. 3d 767, 782 (E.D. Mich. 2015), aff'd sub nom.
Bauer v. Saginaw Cnty., No. 15-1718, 2016 WL 502782 (6th Cir. Feb. 9, 2016) (claims may be abandoned
by failing to address or support them in response to a motion for summary judgment) (citing Clark v. City
of Dublin, OH., 178 F. App’x. 522, 524–25 (6th Cir. 2006) (when a plaintiff did not properly respond to
arguments asserted by a defendant’s motion for summary judgment as to two claims, “the District Court did
not err when it found that the Appellant abandoned [those] claims”) and Anglers of the Au Sable, 565 F.
Supp. 2d at 839 (“It is well settled that abandonment may occur where a party asserts a claim in its
complaint, but then fails to address the issue in response to an omnibus motion for summary judgment.”));
Moates v. Hamilton Cnty., 976 F. Supp. 2d 984, 997 (E.D. Tenn. 2013) (citing Anglers of the Au Sable, 565
F. Supp. 2d at 839) (other citations omitted)); Barrows v. City of Chattanooga, Tenn., No. 1:10-CV-280,
2012 WL 5451525, at *8 (E.D. Tenn. Nov. 7, 2012) (same) (citations omitted).

26

D. State Law Claims
Plaintiffs’ asserted basis for this Court’s jurisdiction is 28 U.S.C. §§ 1331 and
1343 (1), (2), (3), and (4). (FAC ¶ 1.) Plaintiffs ask the Court to exercise supplemental
jurisdiction over their state law claims pursuant to 28 U.S.C. 1367(a). (FAC ¶ 2.)14
Defendants counterclaims are also asserted pursuant to the Court’s supplemental
jurisdiction. (Counterclaim at 535.)
The Court has determined that defendants are entitled to summary judgment on
plaintiffs’ sole federal claim, which formed the basis for the Court’s original jurisdiction.
With the dismissal of plaintiffs’ § 1981 federal claim, the Court must now determine
whether to exercise its supplemental jurisdiction over plaintiffs’ state claims and
defendants’ state counterclaims. This decision is left to the sound discretion of the trial
court. 28 U.S.C. § 1367(c); United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S. Ct.
1130, 16 L. Ed. 2d 218 (1966); Pinney Dock & Transp. Co. v. Penn. Cent. Corp., 196
F.3d 617, 620 (6th Cir. 1999) (“[D]istrict courts have broad discretion in deciding
whether to exercise supplemental jurisdiction.”).
“[A] federal court that has dismissed a plaintiff’s federal-law claims should not
ordinarily reach the plaintiff’s state law claims.” Moon v. Harrison Piping Supply, 465
F.3d 719, 728 (6th Cir. 2006); see also Robert N. Clemens Trust v. Morgan Stanley DW,
Inc., 485 F.3d 840, 853 (6th Cir. 2007) (citing Carnegie–Mellon Univ. v. Cohill, 484 U.S.
14

28 U.S.C. 1367(a) provides in relevant part:
(a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by
Federal statute, in any civil action of which the district courts have original jurisdiction,
the district courts shall have supplemental jurisdiction over all other claims that are so
related to claims in the action within such original jurisdiction that they form part of the
same case or controversy under Article III of the United States Constitution. Such
supplemental jurisdiction shall include claims that involve the joinder or intervention of
additional parties.

27

343, 350 n. 7, 108 S. Ct. 614, 98 L. Ed. 2d 720 (1988)); City of Chicago v. Int’l Coll. of
Surgeons, 522 U.S. 156, 173, 118 S. Ct. 523, 139 L. Ed. 2d 525 (1997) (“‘(c) The district
courts may decline to exercise supplemental jurisdiction over a claim under subsection
(a) if ... (3) the district court has dismissed all claims over which it has original
jurisdiction[.]’”) (quoting 28 U.S.C. § 1367(c)(3)); Hall v. Hebrank, 102 F. Supp. 2d 844,
865 (S.D. Ohio 1999) (citing Saglioccolo v. Eagle Ins. Co., 112 F.3d 226, 233 (6th Cir.
1997) (“It is well settled that a District Court may decline to exercise supplemental
jurisdiction over state claims once it has dismissed all claims over which it possessed
original jurisdiction.”)); Musson Theatrical, Inc. v. Fed. Exp. Corp., 89 F.3d 1244, 1254–
55 (6th Cir. 1996) (“When all federal claims are dismissed before trial, the balance of
considerations usually will point to dismissing the state law claims, or remanding them to
state court if the action was removed.”).
After reviewing the relevant considerations,15 the Court declines to exercise
supplemental jurisdiction over plaintiffs’ state law claims and defendants counterclaims.
See Embassy Realty Investments, Inc. v. City of Cleveland, 976 F. Supp. 2d 931, 944
(N.D. Ohio 2013), aff'd, 572 F. App’x 339 (6th Cir. 2014); see also Province v.
Cleveland Press Publ’g Co., 787 F.2d 1047, 1055 (6th Cir. 1986) (“overwhelming
interest” in judicial economy may allow a district court to decide state law claims when
federal claim is dismissed before trial) (quoting Service, Hospital, Nursing Home and

15

“Depending on a host of factors, then—including the circumstances of the particular case, the nature of
the state law claims, the character of the governing state law, and the relationship between the state and
federal claims—district courts may decline to exercise jurisdiction over supplemental state law claims. The
statute thereby reflects the understanding that, when deciding whether to exercise supplemental
jurisdiction, ‘a federal court should consider and weigh in each case, and at every stage of the litigation, the
values of judicial economy, convenience, fairness, and comity.’” City of Chicago v. Int'l Coll. of Surgeons,
522 U.S. 156, 173, 118 S. Ct. 523, 534, 139 L. Ed. 2d 525 (1997) (quoting Cohill, 484 U.S. at 350).

28

Public Employees Union v. Commercial Property Services, 755 F.2d 499, 506 n. 9 (6th
Cir.1985) (“this circuit has moved away from the position that the court has discretion to
retain jurisdiction over a pendent state claim where the federal claim has been dismissed
before trial.”)).
Accordingly, plaintiffs’ state law claims, and defendants’ counterclaims, are
dismissed without prejudice, and the Court takes no position on the merits of these
claims.
III. CONCLUSION
For the reasons contained herein, defendants’ motion for summary judgment on
plaintiffs’ first claim for relief for race discrimination is GRANTED, and plaintiffs’
motion for summary judgment on that claim is DENIED. Plaintiffs’ state law claims, and
defendants’ counterclaims, are dismissed without prejudice, pursuant to 28 U.S.C. §
1367(c)(3).
IT IS SO ORDERED.

Dated: March 21, 2016
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

29