Henry v. Celadon Trucking Services, Inc.

Filing 32

ORDER: For the reasons stated below, Plaintiff's Motions 19 , 22 , 27 and 28 are DENIED. Signed by Senior Judge John T. Nixon on 12/9/11. (tmw)

IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
LINDA J. HENRY,

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Plaintiff,
v.
CELADON TRUCKING SERVICES, INC.,
Defendant.

3:10-cv-00618
Judge Nixon
Magistrate Judge Griffin
JURY DEMAND

ORDER
Pending before the Court are three motions filed by Plaintiff Linda J. Henry in response
to Defendant Celadon Trucking Services, Inc.’s Motion for Summary Judgment (“Defendant’s
Motion”) (Doc. No. 19): (1) Motion to Strike Defendant’s Motion or, in Alternative, to Treat as
Motion to Dismiss for Failure to State a Claim (“Motion to Strike”) (Doc. No. 22); (2) Rule 32
Objection to Use of, and Motion to Suppress, Depositions Filed by Defendant (“Motion to
Suppress”) (Doc. No. 27); and (3) Federal Rule of Civil Procedure 56(d) Motion to Defer or
Deny Defendant’s Motion (“Rule 56(d) Motion”) (Doc. No. 28). Defendant has filed a single
Response in Opposition to all of Plaintiff’s pending Motions. (Doc. No. 31.) For the reasons
stated below, Plaintiff’s Motions are DENIED.
Plaintiff initiated this suit for statutory and common law retaliatory discharge in the
Circuit Court for Davidson County on June 14, 2010. (Doc. No. 1-1.) On June 24, 2010,
Defendant removed the case to federal court. (Doc. No. 1.) Plaintiff later moved to voluntarily
dismiss her statutory retaliatory discharge claim (Doc. No. 16), which the Court granted in July
of 2011 (Doc. No. 18). On October 31, 2011, Defendant filed a Motion for Summary Judgment,
seeking an “entry of summary judgment dismissing this action in its entirety” (Doc. No. 19),

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along with a Memorandum in Support (Doc. No. 19-1) and a Concise Statement of Undisputed
Facts (Doc. No. 19-2).
On November 21, 2011, Plaintiff filed her Motion to Strike, asking the Court to either
strike Defendant’s Motion or treat it as a motion under Rule 12(b)(6) on the grounds that there
was no filed record for the Court to consider other than the pleadings. (Doc. No. 22.)
Subsequently, on November 23, 2011, Defendant filed two depositions in support of its Motion
for Summary Judgment. (Doc. Nos. 24 & 25.) On November 28, 2011, Plaintiff then filed her
Motion to Suppress (Doc. No. 27) and Rule 56(d) Motion (Doc. No. 28). In her Motion to
Suppress, Plaintiff argues that the depositions should be suppressed because they were not
authenticated by a signature and certificate, as required by Rule 30, and not filed with
Defendant’s Motion, as required by Rule 6(c)(2). (Doc. No. 27.) In her Rule 56(d) Motion,
Plaintiff argues that, should the Court deny her other two Motions, the Court should defer
consideration of Defendant’s Motion or deny Defendant’s Motion “for failure to comply with the
order deadline.” (Doc. No. 28 at 1.) Plaintiff notes that the depositions were filed by Defendant
on November 23, 2011, twenty-three days after Defendant filed its Motion—which was also the
parties’ motions deadline—and five days before Plaintiff’s response deadline. (Id.) Plaintiff
stated that she could not adequately respond to Defendant’s Motion and the depositions within
that short time period, which included the Thanksgiving holiday and a weekend. (Id. at 1-2.)
Upon receipt of Plaintiff’s Rule 56(d) Motion, the Court issued an Order extending Plaintiff’s
deadline to respond to Defendant’s Motion to December 20, 2011 and noted that it was taking
Plaintiff’s pending Motions under consideration. (Doc. No. 29.)
On December 2, 2011, Defendant filed a Response in Opposition to Plaintiff’s Pending
Motions. (Doc. No. 31.) Defendant first argues that, to the extent that Plaintiff’s Motions are

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“based upon the length of time needed to respond” to Defendant’s Motion, they have been
rendered moot in light of the Court’s extension of Plaintiff’s response deadline. (Id. at 1.)
Defendant further asserts that the Court’s Order “resolves” Plaintiff’s objections under Rule
6(c)(2) in her Motion to Suppress and Plaintiff’s Rule 56(d) Motion in its entirety. (Id.)
Defendant also argues that, to the extent that Plaintiff complained that the depositions were not
filed with Defendant’s Motion, Defendant simply states that the depositions have been filed “and
the issue is resolved.” (Id.) Furthermore, Defendant states that in terms of substantive
objections, Plaintiff will have the opportunity to “create a genuine issue of material fact by filing
the pertinent opposition testimony.” (Id.) Defendant also argues that Plaintiff’s Rule 30
complaint is baseless because an original copy of the deposition of Darryl Routh, which
Defendant attached to its Response and which is identical in substance to the copy previously
filed, is certified by the Court Reporter. (Doc. No. 31 at 2.) Lastly, Defendant states that
Plaintiff cannot object to Plaintiff’s deposition because the Court Reporter has testified that
Plaintiff failed to sign and return the original transcript within thirty days, as she was required to
do. (Id.; Doc. No. 31-2.) Thus, Defendant argues that “Plaintiff’s failure to sign and return the
original cannot now serve as a basis to complain about the lack of a signed original.” (Doc. No.
31 at 2.)
Plaintiff’s Motion to Strike (Doc. No. 22) is DENIED as moot because Defendant has
filed the necessary documents to support its Motion, and thus the Court now has a record on
which to decide Defendants’ Motion. Further, given that Defendant has explained why the
originally-filed depositions lacked an authenticating signature, the Court DENIES Plaintiff’s
Motion to Suppress (Doc. No. 27). Finally, because the Court has extended the deadline for
Plaintiff to provide substantive responses to Defendant’s Motion, the Court DENIES Plaintiff’s

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Rule 56(d) Motion (Doc. No. 28). Although Defendant may not have complied with the Rules
governing filing depositions supporting a motion for summary judgment, the Court finds that any
such defects have now been cured. Plaintiff has been granted an additional three weeks to
respond to Defendant’s Motion, and the Court expects that Plaintiff will use that time to produce
an appropriate response to Defendant’s Motion.
For the reasons stated above, Plaintiff’s Motions are DENIED.
It is so ORDERED.
Entered this the __9th___ day of December, 2011.

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JOHN T. NIXON, SENIOR JUDGE
UNITED STATES DISTRICT COURT

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