Burt v. Medquest Pharmacy

Filing 43

ORDER ADOPTING REPORT AND RECOMMENDATIONS granting 31 Motion for Summary Judgment, granting 41 Motion to Strike. Signed by Judge Robert J. Shelby on 5/1/2015. (las) Modified by adding order on motion 41 on 5/1/2015 (rks).

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
NORTHERN DIVISION

CARL W. BURT,
Plaintiff,

ORDER ADOPTING REPORT AND
RECOMMENDATION

v.
MEDQUEST PHARMACY,
Case No. 1:13-CV-00162
Defendant.
Judge Robert J. Shelby
This case has been referred to Magistrate Judge Furse pursuant to 28 U.S.C. §
626(b)(1)(B). Plaintiff Carl Burt brings suit under Title VII of the 1964 Civil Rights Act, 42
U.S.C. § 2000e et seq., alleging discriminatory termination. (Dkt. 3.)1 Defendant Medquest
Pharmacy has moved for summary judgment, arguing Mr. Burt lacks standing to bring his
complaint because he was not an employee of Medquest. (Dkt. 31.) In the alternative, Medquest
argues Mr. Burt cannot establish a prima facie case of employment discrimination, and that even
if he could, Medquest had legitimate, non-pretextual reasons for his termination. Id.
Mr. Burt’s deadline to reply to Medquest’s motion was March 2, 2015, which passed
without response. On April 1, Mr. Burt sought to extend this deadline to April 17. (Dkt. 36.)
Judge Furse denied the motion, citing a lack of excusable neglect. (Dkt. 38.) Subsequently,
Judge Furse issued a Report & Recommendation on April 3, 2015 (Dkt. 39), and recommended
granting summary judgment.

1

Defendant has raised the issue of whether Mr. Burt also asserts a hostile work environment claim. (Dkt. 31, p.
9.) The court finds that Mr. Burt has only brought a claim for unlawful termination. See Dkt. 3 (listing one “count,”
that “Defendant for discriminatory reasons terminated defendants’ employment leading to injuries both personal and
professional.”).

Timely objections to a report and recommendation must be filed within 14 days of
service. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72( b)(2). Mr. Burt did not object during this
period. On April 14, however, he filed a response to the motion for summary judgment, seeking
to have it “quashed.” (Dkt. 40.) Medquest has moved to strike this filing, arguing that because it
lacks specific reference to the report and recommendation, it should be construed as a response
to the underlying motion, and therefore deemed untimely. (Dkt. 41.)
The court GRANTS Medquest’s motion to strike. Mr. Burt did not receive an extension
of time from Judge Furse, and he has not requested one from this court, either by separate motion
or in the response itself. In the absence of good cause or excusable neglect under Federal Rule
of Civil Procedure 6(b)(1)(B), the court must strike an untimely response.2
Mr. Burt is proceeding in this litigation pro se. Unrepresented parties face significant
challenges, and the court is aware that it could construe the response as an objection. See
generally Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (holding that “[a] pro se
litigant's pleadings are to be construed liberally and held to a less stringent standard than formal
pleadings drafted by lawyers). Yet liberal construction of pro se pleadings, if carried over to all
pro se filings, runs contrary to the underlying principles of our adversary system. Castro v.
United States, 540 U.S. 375, 385-86 (2003) (Scalia, J., concurring in part and concurring in the
judgment) (noting “the exceptional nature of recharacterization within an adversarial system,”
and arguing that the reasons for liberal construction of pro se pleadings do not extend to other
types of pro se filings); see United States v. Tucker, 332 F. App'x 484, 486 (10th Cir. 2009)
(citing the cautionary instruction of the Castro concurrence).

2

Medquest has resubmitted all pending matters for decision, and thus incurs no prejudice from any opportunity
lost to file a reply. (Dkt. 42.)

Construing the response as an objection appears especially inappropriate in light of Mr.
Burt’s evident intentions. Mr. Burt titles his filing “Response to Request for Summary
Judgment,” does not reference the report and recommendation, and directs his argument toward
the underlying motion. Dkt. 40; see Castro, 540 U.S. at 386 (observing that “[o]ur adversary
system is designed around the premise that the parties know what is best for them, and are
responsible for advancing the facts and arguments entitling them to relief.”). The court will
therefore treat his filing in the manner in which it was presented.
In the absence of any timely objection to the report and recommendation, we review the
report and recommendation under a “clearly erroneous” standard. Thus, the court “will affirm
the Magistrate Judge’s ruling unless… left with the definite and firm conviction that a mistake
has been committed.” Thompson v. Astrue, 2010 WL 1944779, at *1 (D. Utah May 11, 2010)
(internal quotation marks and citations omitted). After reviewing the briefing, record, and
relevant legal authorities, the court concludes that Judge Furse did not err in her analysis.3 The
court therefore ADOPTS the Recommendation (Dkt. 39) and GRANTS Defendant’s Motion for
Summary Judgment. (Dkt. 31.) The Clerk of Court is directed to close the case.
SO ORDERED this 1st day of May, 2015.
BY THE COURT:

__________________________
ROBERT J. SHELBY
United States District Judge

3

The court would reach the same conclusion even if the response were construed as an objection, and the Report
and Recommendation was reviewed de novo as to any findings or conclusions specifically objected to by Mr. Burt.
Fed. R. Civ. P. 72(b)(2)-(3). Mr. Burt’s filing does not demonstrate good cause or excusable neglect for the failure to
timely respond to the motion for summary judgment. He is therefore deemed to have admitted Medquest’s
statement of undisputed facts. See DUCivR 56-1(c)(3). Upon that record, Mr. Burt cannot show a genuine issue of
material fact exists for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587.