Brooks v. Complete Warehouse & Distribution LLC et al

Filing 41

ORDER signed by Judge Pamela Pepper on 1/12/2017 GRANTING 34 the plaintiff's Motion for Extension of Time; GRANTING 22 the defendants' Motion to Dismiss; and DENYING AS MOOT 22 the defendants' Motion for Summary Judgment. (cc: all counsel; by US Mail to plaintiff) (pwm)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
LARRY DONNELL BROOKS,
Plaintiff,
v.

No. 15-CV-564-pp

COMPLETE WAREHOUSE &
DISTRIBUTION LLC, JOHN ARCURI,
MIKE MILLER, RON MALVICK,
REBECCA VUCKOVIC, JIM HANSON, and
RONALD NEUMUTH,
Defendants.

DECISION AND ORDER GRANTING PLAINTIFF’S MOTION FOR AN
EXTENSION OF TIME (DKT. NO. 24), AND GRANTING DEFENDANTS’
MOTION TO DISMISS OR IN THE ALTERNATIVE, FOR SUMMARY
JUDGMENT (DKT. NO. 22)
_____________________________________________________________________________
The defendants have filed a motion to dismiss the plaintiff’s case under
Federal Rule of Civil Procedure 12(b)(6). Dkt. No. 22. In the event that the court
does not think it appropriate to dismiss the case, the defendants ask the court
to grant them summary judgment under Federal Rule of Civil Procedure 56. Id.
After reviewing the motion, the court construes it as a motion for judgment on
the pleadings under Fed. R. Civ. P. 12(c). The court will grant that motion,
because the plaintiff’s third amended complaint—his fourth in the course of
this litigation—fails to state a claim for which relief can be granted and violates
Civil Local Rules 10 and 15 and the court’s May 31, 2016 order. The court also
finds that granting the plaintiff an additional opportunity to plead his claims
would be futile. Because the court will grant the defendants’ motion under Rule
1

12(c), the court will deny as moot the defendants’ motion for summary
judgment.
I.

BACKGROUND
A.

Original Complaint

The plaintiff, representing himself, filed a complaint alleging that the
defendants discriminated against him on the basis of race. Dkt. No. 1. The
complaint named seven defendants: Complete Warehouse & Distribution, LLC;
John Arcuri; Mike Miller; Ron Malvick; Rebecca Vuckovic; Jim Hanson; and
Ronald Neumuth. Id.
In the complaint, the plaintiff alleged that he’d started working at
Complete Warehouse as a truck driver in November 2007. Id. at 3. He alleges
that in January 2008, another employee addressed him using a racial slur, in
front of defendant Malvick (a part-owner and supervisor). When the plaintiff
protested, Malvick said the other employee was “only joking.” Id. The next day,
the plaintiff complained to Malvick, telling him that the slur was offensive, that
he wanted the behavior stopped, and that Malvick was racist for allowing it to
occur. Malvick responded that he had “black grandchildren.” Id.
Other events followed—another employee made racist remarks about
President Obama in front of the plaintiff; the original employee continued to
use the racial slur; other employees used racist language in front of and
around the plaintiff. Id. The plaintiff alleges that the environment worsened
over time. Id. at 3-4. In June of 2008, two employees got into an altercation in
front of the plaintiff, and one of them pulled out a pistol. Id. at 4. When the
2

plaintiff reported this incident to Malvick, Malvick stated that it probably
wasn’t a real gun. Id. Eventually, after further issues, the plaintiff alleges that
Malvick ordered white employees to stop talking to the defendant, and began
making truck assignments based on drivers’ race. Id. The plaintiff also asserted
that he received “harsh discipline” for an “uninvestigated incident,” while white
co-workers were not disciplined for “major infraction[s].” Id. at 4-5.
The plaintiff also alleged that in February 2009, he met with defendant
Neumuth (the safety director) to discuss an accident, and realized that he knew
Neumuth from the plaintiff’s prior job. Id. at 5. The plaintiff “got a three day
suspension and a company handbook.” Id. He indicates that in contrast, white
drivers were damaging their trucks, and receiving no discipline. Id. When the
plaintiff came off suspension, he was not allowed to drive a truck, but was
placed on part-time duty in the warehouse. Id. The plaintiff ended up
complaining about this, and how he was treated differently than white
employees and was subjected to continuing racist remarks, to defendant Miller,
the company president. Id. By May 2009, the plaintiff claims, he was required
to load his own freight before transporting it, while white employees had their
freight loaded by warehouse workers. Id.
On May 19, 2009, defendant Neumuth “rubber stamp[ed] the company
policy [illegible] suspending [the plaintiff], this time citing improper per-trip.”
Id. Again, white drivers were rolling their trucks due to failure to properly
secure their loads, but not being disciplined. In June 2009, the plaintiff told
Neumuth that he was going to court for a ticket he’d received while on duty.
3

When the plaintiff arrived at court, defendant Hanson met him on the
courthouse steps and said he was there to fight the ticket. Hanson “plead no
contest and paid the ticket.” Id. On the way out of the courthouse, the plaintiff
asked Hanson that he be “dispatch[ed]” from West Allis, and Hanson said “ok.”
Id. On June 4, 2009, however, Hanson terminated the plaintiff for the
unauthorized use of government equipment. Id. The plaintiff challenged his
termination with defendant Miller; Miller reiterated that the plaintiff was fired.
Id.
The original complaint made no mention of defendant John Arcuri, and
mentioned defendant Rebecca Vuckovic only to state that the plaintiff
approached Malvick to “discuss” her on one occasion. Id. at 4. The complaint
did not state any causes of action, or list any statutes under which the plaintiff
was suing.
B.

First Amended Complaint

Two and a half months later, the plaintiff filed an amended complaint.
Dkt. No. 7. This document was one page long. It stated that the plaintiff was
asking the court to include one count of negligent failure to prevent racial
harassment in the workplace; one count of negligence in response to racial
harassment; one count of intentional infliction of emotional distress; one count
of hostile work environment based on racial discrimination in violation of 42
U.S.C. §1981; one count of disparate treatment based on racial discrimination
in violation of 42 U.S.C. §1981; one count of hostile work environment in
violation of Title VII; and one count of disparate treatment in violation of Title
4

VII. Dkt. No. 7. (The plaintiff also asked the court to appoint a lawyer to
represent him. Id.) This first amended complaint did not state any facts. Nor
did it state against which defendants he was bringing which claims.
C.

Second Amended Complaint

After the defendants filed their answer, the court held a scheduling
conference, setting discovery deadlines, motions deadlines, and a trial date.
Dkt. No. 15. About forty-five days later, the plaintiff filed a motion, asking the
court to allow him to amend his complaint a second time. Dkt. No. 16. The
motion stated that he wanted to amend the complaint “to include . . . Count
One: retaliation; negligence failure to prevent retaliation from co-owner Ron
Malvick and Rebecca Vuckovic. Count two: gross negligence and negligence in
participation of retaliation in violation of Title VII based upon racial
discrimination.” Id.
The court granted the plaintiff’s motion for leave to amend but, for
several reasons, ordered the plaintiff to file a third amended complaint. Dkt.
No. 17. The court found that the original complaint contained three pages of
factual allegations, but did not state any causes of action. Id. at 2. In contrast,
the court pointed out that the first and the second amended complaints listed
of causes of action, but did not link the causes of action to any of the facts
alleged in the original complaint. Id. Neither the first nor the second amended
complaint alleged which defendants were involved in which of the causes of
action. Id. The court found that “[i]t would be an insurmountable task for the
defendants to figure out what to call which counts, which counts relate to
5

which defendants, and what actions the plaintiff believes that each defendant
took that violated the law.” Id. at 3.
The court gave the plaintiff specific instructions regarding how to prepare
his third amended complaint. The order stated that the plaintiff “must list, in
numerical order: (a) each cause of action he wants to bring; (b) the names of
each defendant against whom he brings that particular cause of action; and (c)
the particular facts that he believes show that that defendant (or those
defendants) violated the law alleged in that cause of action.” Id. Along with this
order, the court provided the plaintiff with a clean, blank copy of the complaint
form, as well as copies of his original, first amended and second amended
complaints, in the hope that he could organize his third amended complaint so
that “all of the plaintiff’s factual allegations and claims will be set out in one
document.” Id. at 4.
The court vacated all of the deadlines it had set at the scheduling
conference, indicating that after the plaintiff filed his third amended complaint,
the court would set new dates. Id.
D.

Third Amended Complaint

The plaintiff timely filed the third amended complaint. Dkt. No. 19. The
defendants answered, denying all of the plaintiff’s allegations. Dkt. No. 20. A
couple of months later, they filed this motion to dismiss or, in the alternative,
for summary judgment. Dkt. No. 22.

6

E.

Motion to Dismiss/Motion for Summary Judgment

In their brief supporting the motion to dismiss, the defendants argue that
the plaintiff’s third amended complaint violates Civil Local Rule 10, because
the plaintiff failed to state his claims in numbered paragraphs limited to a
single set of circumstances. Dkt. No. 23 at 13. They also argue that the third
amended complaint violates Civil Local Rule 15, and the court’s May 31, 2016
order, because it fails to describe the facts underlying the basis for the
plaintiff’s claims against each of the defendants, and repeatedly incorporates
his prior insufficient pleading by reference (which the court admonished him
not to do). Id. at 14. They also that the plaintiff did not state any viable claims
against Rebecca Vuckovic, Jim Hanson or Complete Warehouse & Distribution.
Id. at 12-13. Finally, they argue that the plaintiff failed to state claims upon
which a federal court could grant relief (and thus ask for dismissal under Fed.
R. Civ. P. 12(b)(6)). For example, the defendants argue that the plaintiff brought
claims against individual defendants under Title VII, and argue that individual
defendants “cannot be held liable under statute.” Id. at 14. They argue that
several of the causes of action he alleges don’t exist, such as gross negligence
in response to racial harassment, or “never imposed zero tolerance.” Id. at 15.
In the alternative, the defendants ask the court to grant summary
judgment in their favor. Id. at 15. They argue that the plaintiff did not exhaust
his administrative remedies, because, while he filed a charge with the Equal
Rights Division, that charge did not allege harassment—a claim the plaintiff
makes several times in his third amended complaint. Id. at 18. They also argue
7

that any claims the plaintiff seeks to raise under Title VII and 42 U.S.C. §1981
are barred by the statute of limitations. Id. at 19. They argue that he has not
proved any retaliation claims, id. at 20-23, and that he failed to show that
Complete Warehouse discriminated against him, or fired him, based on race,
id. at 23-27.
II.

DISCUSSION
A.

Motion for Extension of Time

The defendants filed the motion to dismiss/motion for summary
judgment on September 12, 2016. Dkt. No. 22. On September 21, 2016, the
defendants asked the court to give the plaintiff more time to respond to their
motion, because they’d accidentally sent the motion to the plaintiff at the
wrong address. Dkt. Nos. 28, 28-1. The court granted that request, and gave
the plaintiff a deadline of October 21, 2016 to file his response. Dkt. No. 29.
On October 24, 2016, the plaintiff filed a motion for default and motion
for default judgment. Dkt. No. 31. The court denied that motion, but again
extended the plaintiff’s deadline for responding to the motion to dismiss to
December 2, 2016. Dkt. No. 33.
On December 6, 2016, the clerk’s office received a motion from the
defendant, asking the court to give him a bit more time to file his response.
Dkt. No. 34. He explained that he’d tried to come downtown to file the response
on December 2 (the due date), but between traffic and finding a parking place,
he didn’t arrive at the federal building until after it was locked. Id. The date on

8

that motion was December 2. Id. Along with the motion, the clerk’s office
received the plaintiff’s response to the motion to dismiss. Dkt. No. 35.
The court will grant the plaintiff’s motion; it is clear he made the effort to
get his response filed on time, and the court received it only four days late. The
court has considered the plaintiff’s response in ruling on the defendants’
motion.
B.

Standards of Review

Although the defendants captioned their motion as a motion to dismiss
under Rule 12(b)(6), the court construes the motion as one for judgment on the
pleadings under Rule 12(c), because they filed it after they had answered the
complaint. See Lanigan v. Vill. of E. Hazel Crest, Ill., 110 F.3d 467, 470 n.2
(7th Cir. 1997). Courts apply the same standards of review when considering
dismissal under either section of Rule 12. Adams v. Indianapolis, 742 F.3d
720, 727–28 (7th Cir. 2014) (“A motion for judgment on the pleadings under
Rule 12(c) . . . is governed by the same standards as a motion to dismiss for
failure to state a claim under Rule 12(b)(6).”)
To survive a motion to dismiss pursuant to Rule 12(b)(6), “a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 1949
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In the
complaint, a plaintiff must include “enough detail to give the defendant fair
notice of what the claim is and the grounds upon which it rests, and, through
his allegations, show that it is plausible, rather than merely speculative, that
9

he is entitled to relief.” Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir.
2008) (quoting Lang v. TCF Nat’l Bank, 249 F. App’x 464, 466 (7th Cir. 2007)).
A plaintiff must allege “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Iqbal, 556 U.S. at
678 (quotations omitted). On a Rule 12(b)(6) motion, “courts must accept as
true all material allegations of the complaint, and must construe the complaint
in favor of the complaining party.” Silha v. ACT, Inc., 807 F.3d 169, 173 (7th
Cir. 2015) (quotation omitted).
F.R.C.P. 8(a)(2) requires “a short and plain statement of the claim
showing that the pleader is entitled to relief[.]” The rule does not require
detailed factual allegations, “but it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 555). For a complaint to survive a Rule 12(b)(6)
challenge, the plaintiff must give the defendant fair notice of what the claim is
and the grounds upon which it rests. See Huri v. Office of the Chief Judge of
the Cir. Ct. of Cook County, 804 F.3d 826, 832 (7th Cir. 2015). “Neither
conclusory legal statements nor abstract recitations of the elements of a cause
of action add to the notice that Rule 8 demands, so they do not help a
complaint survive a Rule 12(b)(6) motion.” Id.
F.R.C.P. 10(b) and this court’s Civil Local Rule 10(a) provide that claims
should be set out “in numbered paragraphs, each limited as far as practicable
to a single set of circumstances.” Rule 10(b) further provides, “[i]f doing so
would promote clarity, each claim founded on a separate transaction or
10

occurrence . . . must be stated in a separate count or defense.” “The primary
purpose of [these rules] is to give defendants fair notice of the claims against
them and the grounds supporting the claims.” Stanard v. Nygren, 658 F.3d
792, 797 (7th Cir. 2011).
C.

The Third Amended Complaint Does Not Comply with the Court’s
Local Rules or the Court’s Prior Order, and Fails to State a Claim
for Which Relief May Be Granted.

The court has construed the third amended complaint liberally, both
because Rule 12(b)(6) requires it to do so and because the plaintiff is
representing himself. E.g., Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015)
(“Because [the plaintiff’s] complaint is pro se, we construe it liberally, holding it
to a less stringent standard than formal pleadings drafted by lawyers.”)
(quotation omitted). Even so, despite the clear instructions that the court gave
the plaintiff in its May 31, 2016 order, the plaintiff’s third amended complaint
consists of a “vague, confusing, and conclusory articulation of the factual and
legal basis for the claim[s],” that fails to give the defendants adequate notice of
his claims against them. Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 946
(7th Cir. 2013) (quoting Stanard, 658 F.3d at 798). The third amended
complaint is a list of legal conclusions and causes of action which the plaintiff
has not supported by facts that plausibly show that the defendants are liable
for the conduct alleged. It is not a short and plain statement of the plaintiff’s
claims, (as required by Rule 8); it does not distinguish the factual
circumstances supporting each separate claim (as required by Rule 10 and
Civil Local Rule 10); it cross-references the plaintiff’s prior complaints (in
11

violation of Civil Local Rule 15 and the court’s prior order); and it does not give
each defendant notice of the factual basis for the claims against them.
In his response brief, the plaintiff did not address the defendants’
argument that the third amended complaint violates Civil Local Rules 10 and
15 and the court’s prior order. See generally, Dkt. No. 35. Instead, he reiterated
the allegations from his administrative discrimination charge, and added other
factual allegations, which the defendants construed as the plaintiff’s Civil Local
The plaintiff has not disputed the defendants’ allegation that the third
amended complaint violates Civil Local Rules 10 and 15 and the court’s May
31, 2016 order. For this reason alone, the court dismisses the case.
In addition, though, the third amended complaint fails to state a claim
for which a federal court may grant relief. The plaintiff mentions Title VII
several times in the third amended complaint. Title VII makes it illegal for “an
employer” to discriminate against an individual based on race. Meritor Sav.
Bank, FSB v. Vinson, 477 U.S. 57, 63 (1986). It does not impose individual
liability on agents of the employer. Williams v. Banning, 72 F.3d 552, 554-555
(7th Cir. 1995). Defendant Neumuth (the safety director), as well as Vuckovic,
Hanson and Arcuri, were agents of Complete Warehouse, not the plaintiff’s
employers. They are not liable under Title VII even if they did something
inappropriate, they cannot be held liable under Title VII.
Despite filing four complaints, the plaintiff has not made any claims
identifying what these, what actions they took that violated a law. None of the
claims identify defendant Complete Warehouse & Distribution, LLC as the
12

wrong-doer. The third amended complaint is the only one that mentions Arcuri;
it asserts that Arcuri was “gross negligence and negligence in response to racial
harassment,” and “negligence in the participation of retaliation in violation of
Title VII based upon racial discrimination.” Dkt. No. 19 at 3. It also mentions
Arcuri in relation to other claims. This is the first complaint in which the
plaintiff identifies Arcuri’s role—vice president—but in none of the complaints
(including the third amended one) does he say what Arcuri actually did. The
third amended complaint alleges that defendant Hanson “racially targeted and
stalked” him on June 3, 2009. Id. at 3. But the very spare facts the plaintiff
alleged in his original claim show only that Hanson showed up at the
courthouse and, it appears, helped the plaintiff resolve a traffic ticket, and that
Hanson was the person who fired him (for, as the plaintiff himself says, misuse
of company equipment). Dkt. No. 1 at 5. The third amended complaint
identifies defendant Vuckovic as the dispatcher for the drivers, dkt. no. 19 at 3,
but none of the complaints explain what the plaintiff thinks that Vuckovic did
to him.
With regard to Malvic and Miller, the plaintiff’s original complaint (not
the third amended one) asserts that they failed to intervene when other
employees subjected him to harassment. These claims fall short of making out
a prima facie case for hostile work environment; the defendants’ uncontested
proposed statements of material fact do not support the plaintiff’s allegations.
See Dkt. Nos. 24, 25. It appears that the plaintiff did not raise hostile work
environment claims in his ERD charge. The federal claims also appear to be
13

barred by the statutes of limitation, as the defendants discuss in their opening
brief. Dkt. No. 23 at 19-21. The plaintiff did not dispute the argument that his
federal claims are time-barred. Without federal claims, any state-law
allegations the plaintiff was attempting to bring, such as negligence and
intentional infliction of emotional distress, cannot stand in federal court. For
all of these reasons, the plaintiff has failed to state claims upon which this
court can grant relief.
The court will not give the plaintiff another opportunity to file a
complaint that complies with Federal Rules of Civil Procedure 8(a)(2), 10(b),
and 15, the court’s corresponding Civil Local Rules, and the specific
instructions the court provided in its May 31, 2016 order. The case has been
pending for twenty months. The plaintiff now has had four chances to plead a
complaint that conforms to the rules, and has failed to do so. Because the
plaintiff did not have a lawyer, the court’s May 31, 2016 order gave the plaintiff
clear instructions to follow when drafting his third amended complaint, after
the court found that the defendants could not be expected to respond to the
plaintiff’s second amended complaint. Still, the plaintiff failed to succinctly
state the causes of action he wanted to bring, the defendant(s) against whom
he brought each particular cause of action, and the facts that he believed
showed that that defendant was liable for each that cause of action. Under
these circumstances, it would be futile to instruct the plaintiff to follow an
order he already has violated and grant him yet another opportunity to amend
his complaint.
14

III.

CONCLUSION
The court GRANTS the plaintiff’s motion for an extension of time to file

his response to the defendants’ motion. Dkt. No. 34. The court ORDERS that
the plaintiff’s December 6, 2016 response was timely filed.
The third amended complaint fails to state a claim for which relief can be
granted, and fails to comply with Federal Rules of Civil Procedure 8, 10, and
15, Civil Local Rules 10 and 15, and this court’s May 31, 2016 order. Based on
the plaintiff’s failure to follow the court’s prior instructions, it would be futile to
grant him another opportunity to amend his complaint.
The court GRANTS the defendants’ motion to dismiss (construed as a
motion for judgment on the pleadings under Rule 12(c)), dkt. no. 22; DENIES
AS MOOT the defendants’ for summary judgment, dkt. no. 22; and
DISMISSES the plaintiff’s complaint in its entirety. The clerk will enter
judgment accordingly.
This order and the judgment to follow are final. A dissatisfied party may
appeal this court’s decision to the Court of Appeals for the Seventh Circuit by
filing in this court a notice of appeal within thirty days of the entry of
judgment. See Federal Rule of Appellate Procedure 3, 4. This court may extend
this deadline if a party timely requests an extension and shows good cause or
excusable neglect for not being able to meet the thirty-day deadline. See
Federal Rule of Appellate Procedure 4(a)(5)(A).
Under certain circumstances, a party may ask this court to alter or
amend its judgment under Federal Rule of Civil Procedure 59(e) or ask for relief
15

from judgment under Federal Rule of Civil Procedure 60(b). Any motion under
Federal Rule of Civil Procedure 59(e) must be filed within twenty-eight days of
the entry of judgment. The court cannot extend this deadline. See Federal Rule
of Civil Procedure 6(b)(2). Any motion under Federal Rule of Civil Procedure
60(b) generally must be filed within a reasonable time, and under subsections
(1), (2), and (3) no more than one year after the entry of the judgment. The
court cannot extend this deadline. See Federal Rule of Civil Procedure 6(b)(2).
Dated in Milwaukee, Wisconsin this 12th day of January, 2017.

16