Morgan v. Fed. Express Corp., Civ. A. H–13–2464.

• Decision Date: 10 July 2015
• Docket Number: No. Civ. A. H–13–2464.,Civ. A. H–13–2464.
• Citation: 114 F.Supp.3d 434
• Parties: Roddie MORGAN, Plaintiff, v. FEDERAL EXPRESS CORPORATION, Defendant.
• Court: U.S. District Court — Southern District of Texas

114 F.Supp.3d 434

Roddie MORGAN, Plaintiff,

v.FEDERAL EXPRESS CORPORATION, Defendant.

No. Civ. A. H–13–2464.

United States District Court, S.D. Texas, Houston Division.

Signed July 10, 2015.

Marcellous Scott McZeal, Grealish McZeal, Houston, TX, for Plaintiff.

Angela N. Prince, Ogletree Deakins Nash Smoak and Stewart, Houston, TX, P. Daniel Riederer, Federal Express Corporation, Memphis, TN, for Defendant.

OPINION AND ORDER

MELINDA HARMON, District Judge.

Pending before the Court in the above referenced cause, seeking compensatory and punitive damages for a racially discriminatory termination of employment in violation of 42 U.S.C. § 1981, are Defendant Federal Express Corporation's ("FedEx's") motion for summary judgment (instrument # 22) and Plaintiff Roddie Morgan's ("Morgan's") opposed motion for leave to file a late response to FedEx's motion for summary judgment (# 28).

After a careful review of the record and the applicable law, for the reasons indicated below the Court finds Morgan's motion for leave to file a response should be denied and FedEx's motion for summary judgment should be granted.

Morgan's Opposed Motion for Leave to File Late Response (# 29)

A. Standard of Review

Morgan originally filed this action pro se but recently obtained counsel. Pro se plaintiffs are held to a less stringent pleading standard than documents drafted by attorneys and are entitled to a liberal construction, allowing all reasonable inferences that can be drawn from their pleadings. Haines v. Kerner, 404 U.S. 519, 521, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Nevertheless, they must "still comply with the rules of civil procedure and make arguments capable of withstanding summary judgment." Ogbodiegwu v. Wackenhut Corr. Corp.,

202 F.3d 265, 1999 WL 1131884, at *2 (5th Cir. Nov. 10, 1999) ; Yazdchi v. Am. Honda Fin. Corp., 217 Fed.Appx. 299, 304 (5th Cir.2007) ("The right of self-representation does not exempt a party from compliance with the relevant rules of procedural and substantive law."), citing Hulsey v. Texas, 929 F.2d 168, 171 (5th Cir.1991). Pro se litigants have a duty to prosecute their claims with due diligence, as do all other litigants, and must comply with all deadlines set by the court. Lowman v. Whitaker, 2012 WL 3779159, at *3 (W.D.La. Aug. 31, 2012) ("Federal Rules of Civil Procedure and Local Rules are sufficient to advise pro se litigants of their burden in timely opposing a summary judgment motion.").

It is well established in the Fifth Circuit that "[a] federal court may not grant a ‘default’ summary judgment where no response has been filed." Bradley v. Chevron U.S.A., Inc., No. Civ.A. 204CV092J, 2004 WL 2847463, *1 (N.D.Tex. Dec. 10, 2004), citing Eversley v. MBank of Dallas, 843 F.2d 172, 174 (5th Cir.1988) ; Hibernia Nat. Bank v. Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir.1985). Nevertheless, if no response to the motion for summary judgment has been filed, the court may find as undisputed the statement of facts in the motion for summary judgment. Id. at *1 and n. 2, citing id.; see also Thompson v. Eason, 258 F.Supp.2d 508, 515 (N.D.Tex.2003) (where no opposition is filed, the nonmovant's unsworn pleadings are not competent summary judgment evidence and movant's evidence may be accepted as undisputed). See also UNUM Life Ins. Co. of America v. Long, 227 F.Supp.2d 609 (N.D.Tex.2002) ("Although the court may not enter a ‘default’ summary judgment, it may accept evidence submitted by [movant] as undisputed."); Bookman v. Shubzda, 945 F.Supp. 999, 1002 (N.D.Tex.1996) ("A summary judgment nonmovant who does not respond to the motion is relegated to [his] unsworn pleadings, which do not constitute summary judgment evidence."). The court has no obligation to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.1994).

In the context of a summary judgment, a pro se plaintiff's failure to file a timely response, by itself, alone will not support a default judgment; the movant must still show there is no genuine issue of material fact and that it is entitled to summary judgment as a matter of law. Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 362 n. 3 (5th Cir.1995). If the moving party fails to meet its initial burden, the court must deny the motion for summary judgment even if there is no response. Baton Rouge Oil & Chem. Workers Union v. ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir.2002). Rule 56(c)"mandates the entry of summary judgment, after adequate time for discovery and upon motion, 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 will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

B. Motion for Leave to File Untimely Response

This suit was filed on August 22, 2013 by Morgan proceeding pro se. Although at the initial scheduling conference on March 5, 2014, United States Magistrate Judge Frances Stacy urged Morgan to retain counsel by March 31, 2014 and provided him with a list of potential attorneys, Morgan failed to do so. Meanwhile, the case proceeded, with discovery closing on October 28, 2014. Morgan did not take any depositions or serve any written discovery requests. FedEx deposed Morgan on May 8, 2014. During the deposition Morgan admitted that an attorney had been assisting him with this suit. Ex. A, p. 1 (stating that attorney Alan Quiles drafted his complaint and went over it with him and was continuing to assist him). FedEx claims that certain pleadings filed by Morgan along with his discovery responses reflect that they were ghost-written by an attorney. # 1 (Complaint), 6 (Amended Complaint), and 7 (Response to FedEx's motion to dismiss, which FedEx subsequently withdrew). FedEx filed its motion for summary judgment on December 1, 2014. Morgan's response was due no later than December 22, 2014, but he did not file one nor request an extension of time to do so before the deadline.

On January 19, 2015 FedEx filed a supplemental brief in support of its motion for summary judgment, arguing that a pro se party has an obligation to file a response, that Morgan's failure to do so should be taken as a representation of no opposition under Local Rule 7.4, and that no leniency should be granted to him since he was being aided by an undisclosed attorney. See Kersh v. Derozier, 851 F.2d 1509, 1512 (5th Cir.1988) (the right of self-representation does not exempt a party from compliance with relevant rules of procedural and substantive law); Garcia v. Jenkins/Babb, LLP, 2012 WL 3846539, at *1 (N.D.Tex. Sept. 5, 2012) ("Courts have considered the propriety of attorneys not of record drafting pleadings to be filed by ostensibly pro se litigants, and have raised concerns, including wrongly giving a lenient reading to ostensibly pro se pleadings actually drafted by attorneys."), citing Duran v. Carris, 238 F.3d 1268, 1271–73 (10th Cir.2001), Wesley v. Don Stein Buick, Inc., 987 F.Supp. 884 (D.Kan.1997), Laremont–Lopez v. Southeastern Tidewater Opportunity Ctr., 968 F.Supp. 1075 (E.D.Va.1997), and In re Mungo, 305 B.R. 762, 767–70 (Bankr.D.S.C.2003). FedEx contends that Morgan's failure to file a response means that FedEx's material facts are deemed admitted, that Morgan failed to raise a genuine dispute for trial, and that he failed to make a prima facie case of racial discrimination under § 1981 or to present any evidence to suggest, no less prove, that FedEx's reasons for his termination were false and merely a pretext for unlawful discrimination. Thus FedEx is entitled to summary judgment as a matter of law.

Only on February 5, 2015, two and a half months after FedEx filed its motion for summary judgment, did attorney Marcellous S. McZeal file a notice of appearance on behalf of Morgan, along with the opposed motion for leave of 21 days to file a late response. Counsel states that Morgan "realized he was out matched and in an effort to obtain an opportunity to fully present his claims and the evidence in support," he retained counsel. # 28 at p. 2. It is not clear from the motion whether Morgan seeks to reopen discovery.

FedEx argues that because Morgan failed to respond, FedEx's material facts are admitted. In addition, because Morgan failed to present any admissible evidence in support of his complaint's allegations and failed to demonstrate a genuine issue of material fact for trial, while FedEx's motion for summary judgment proves that as a matter of law Morgan could not establish a prima facie case to support his racial discrimination claims under 42 U.S.C. § 1981, FedEx is entitled to summary judgment in its favor as a matter of law.

C. Court's Ruling

After reviewing the record and the applicable law, the Court concludes that leave should not be granted to Morgan to file an untimely response. Morgan received clear notice of deadlines from the scheduling order, from the Federal Rules of Civil Procedure, and from this district's Local Rules. Morgan is not proceeding in forma pauperis and apparently could have and has now finally obtained counsel. His lack of diligence is obvious. He not only failed to obtain counsel for more than nineteen months after he filed suit, more than twelve months after Judge Stacy urged him to do so, and more than two months after FedEx filed its motion for summary judgment, but he failed to take any discovery in all this time. Moreover he offers no excuse, no less a reasonable one, for his lengthy delay. FedEx followed its summary judgment with its supplement to that motion and its trial brief, none of which elicited a response from Morgan. Morgan's conduct does not merit an extension of time. Thus the Court denies the motion for leave to file a late response and addresses the motion for summary judgment on the merits.

FedEx's Motion for...