Dates v. Frank Norton, LLC

• Decision Date: 02 June 2016
• Docket Number: Case No.: 1:14-CV-1464-VEH
• Citation: 190 F.Supp.3d 1037
• Parties: Isha Dates, Plaintiff, v. Frank Norton, LLC d/b/a Milo's Hamburgers, Defendants.
• Court: U.S. District Court — Northern District of Alabama

190 F.Supp.3d 1037

Isha Dates, Plaintiff,

v.Frank Norton, LLC d/b/a Milo's Hamburgers, Defendants.

Case No.: 1:14-CV-1464-VEH

United States District Court, N.D. Alabama, Eastern Division.

Signed June 2, 2016

Jessica Lauren Fleming, The Law Offices of Jessica Fleming, LLC, Birmingham, AL, Joshua Friedman, Max P. Barack, Law Offices of Joshua Friedman, Mamaroneck, NY, for Plaintiff.

Sean C. Pierce, Harbuck Keith & Holmes LLC, Birmingham, AL, for Defendants.

VIRGINIA EMERSON HOPKINS, United States District Judge

MEMORANDUM OPINION AND ORDER

This action was filed on July 28, 2014, by the Plaintiff, Isha Dates, against her former employer, Defendant Frank Norton, Inc., doing business as Milo's Hamburgers ("Milo's"). (Doc. 1). The Complaint sets out counts for: sexual harassment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII") (Count One); disparate treatment in violation of 42 U.S.C. § 1981 (" Section 1981") (Count Two); retaliation in violation of Title VII (Count Three); retaliation in violation of Section 1981 (Count Four); and the Alabama state law tort of outrage (Count Five). All counts arise out of Dates's employment with, and eventual termination by, the Defendant.

The case comes before the Court on the Motion for Summary Judgment filed by the Defendant (doc. 29), and the Defendant's Motion for Sanctions Pursuant to Rule 11 of the Federal Rules of Civil Procedure¹ , contained within its reply brief to the Motion for Summary Judgment (doc. 43). For the reasons stated herein, the Motion for Summary Judgment will be GRANTED in part and DENIED in part . Additionally, new arguments are improper if presented for the first time in a reply brief, as they were in this case. Herring v. Sec'y, Dep't of Corr. , 397 F.3d 1338, 1342 (11th Cir.2005) ; Distrib. Res. Mgmt., Inc. v. Peacock , No. 2:12–CV–00188–SLB, 2012 WL 2930787, at *2 (N.D.Ala. July 13, 2012). The Motion for Sanctions will be DENIED .

I. RULE 11 SANCTIONS

The Defendant argues:

If this Court disagrees that Milo's has not met its summary-judgment burden of proof as to all of these claims, Milo's respectfully submits that its failure to be able to do so is the direct result of Dates' false testimony and bad-faith pursuit of her claims against Milo's. As clearly demonstrated by the Declarations of Annetta Datcher and Cora Datcher, Dates unsuccessfully attempted to bribe and suborn perjury from them. She then compounded her potentially criminal actions by denying them under oath in a Declaration filed in response to Milo's summary-judgment motion, thus perjuring herself.

The irony should not be lost on this Court that Dates had not falsely testified about the Datcher's accusations of bribery and suborning perjury (because she had not been confronted with them when under oath), until that Declaration was submitted to this Court on September 5, 2105 [sic].

Such behavior by Dates, if proven true, is inappropriate, illegal and potentially criminal. It is overwhelmingly evident that Dates has filed this lawsuit in bad faith for an improper purpose, in violation of Rule 11 of the Federal Rules of Civil Procedure and well-established precedent.

(Doc. 43 at 7). The Defendant then continues, for the next 6 pages of its brief, to explain why Rule 11 mandates that Dates's claims should be dismissed as a sanction for her alleged conduct. (Doc. 43 at 8-13).

Rule 11 provides:

A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney's fees, incurred for the motion.

FED. R. CIV. P. 11(c) (emphasis added). Not only is the motion not made "separately from any other motion," there is no indication in the motion that the pre-filing service described in the rule occurred. The motion is DENIED .²

II. STANDARD SUMMARY JUDGMENT

Under Federal Rule of Civil Procedure 56, summary judgment is proper if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a) ; see also Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ("[S]ummary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.") (internal quotation marks and citation omitted). The party requesting summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings that it believes demonstrate the absence of a genuine issue of material fact. Celotex , 477 U.S. at 323, 106 S.Ct. 2548. Once the moving party has met its burden, Rule 56(e) requires the non-moving party to go beyond the pleadings in answering the movant. Id. at 324, 106 S.Ct. 2548. By its own affidavits—or by the depositions, answers to interrogatories, and admissions on file—it must designate specific facts showing that there is a genuine issue for trial. Id.

The underlying substantive law identifies which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. Chapman , 229 F.3d at 1023. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson , 477 U.S. at 248, 106 S.Ct. 2505. A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. If the evidence presented by the non-movant to rebut the moving party's evidence is merely colorable, or is not significantly probative, summary judgment may still be granted. Id. at 249, 106 S.Ct. 2505.

How the movant may satisfy its initial evidentiary burden depends on whether that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v. City of Atlanta , 2 F.3d 1112, 1115 (11th Cir.1993). If the movant bears the burden of proof on the given issue or issues at trial, then it can only meet its burden on summary judgment by presenting affirmative evidence showing the absence of a genuine issue of material fact—that is, facts that would entitle it to a directed verdict if not controverted at trial. Id. (citation omitted). Once the moving party makes such an affirmative showing, the burden shifts to the non-moving party to produce "significant, probative evidence demonstrating the existence of a triable issue of fact." Id. (citation omitted) (emphasis added).

For issues on which the movant does not bear the burden of proof at trial, it can satisfy its initial burden on summary judgment in either of two ways. Id. at 1115–16. First, the movant may simply show that there is an absence of evidence to support the non-movant's case on the particular issue at hand. Id. at 1116. In such an instance, the non-movant must rebut by either (1) showing that the record in fact contains supporting evidence sufficient to withstand a directed verdict motion, or (2) proffering evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. Id. at 1116–17. When responding, the non-movant may no longer rest on mere allegations; instead, it must set forth evidence of specific facts. Lewis v. Casey , 518 U.S. 343, 358, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). The second method a movant in this position may use to discharge its burden is to provide affirmative evidence demonstrating that the non-moving party will be unable to prove its case at trial. Fitzpatrick , 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering evidence sufficient to withstand a directed verdict at trial on the material fact sought to be negated. Id.

III. FACTS

A. An Introductory Note

In its reply brief, the Defendant did not respond to the facts proffered by Dates in opposition to the Motion for Summary Judgment.³ This Court's Uniform Initial Order states:

The reply submission, if any, shall consist of only the moving party's disputes, if any, with the non-moving party's additional claimed undisputed facts. The moving party's response to the non-moving party's additional claimed undisputed facts shall be in separately numbered paragraphs that coincide with those of the non-moving party's additional claimed undisputed facts. Any statements of fact that are disputed by the moving party must be followed by a specific reference to those portions of the evidentiary record upon which the disputation is based. All additional material facts set forth in the statement required of the opposing parties will be deemed to be admitted for summary judgment purposes unless controverted by the statement of the movant .

(Doc. 2 at 18-19) (emphasis in original). The Defendant's failure to reply to Dates's proffered facts means that all facts proffered by Dates should be deemed to be admitted for the purpose of ruling on the Motion for Summary judgment.

The Court also cannot ignore facts proffered in the Defendant's initial brief in support of its motion, and Dates's response to those facts. Dates admitted some of those fact and denied others. Of course the Court must, and has, resolved any evidentiarily-supported factual disputes in the light most favorable to the non-movant.⁴ This process sometimes creates an inconsistency with Dates's facts which are "deemed admitted."...