Raymond v. Ameritech Corp., 05-1855.

• Decision Date: 29 March 2006
• Docket Number: No. 05-1855.,05-1855.
• Citation: 442 F.3d 600
• Parties: Wanda RAYMOND, Plaintiff-Appellant, v. AMERITECH CORPORATION, d/b/a SBC Ameritech, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

442 F.3d 600

Wanda RAYMOND, Plaintiff-Appellant, v. AMERITECH CORPORATION, d/b/a SBC Ameritech, Defendant-Appellee.

No. 05-1855.

United States Court of Appeals, Seventh Circuit.

Argued November 8, 2005.

Decided March 29, 2006.

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James T. Derico, Jr. (argued), Derico & Associates, Chicago, IL, for Plaintiff-Appellant.

John F. Kuenstler (argued), Wildman, Harrold, Allen & Dixon, Chicago, IL, for Defendant-Appellee.

Before CUDAHY, KANNE, and SYKES, Circuit Judges.

KANNE, Circuit Judge.

Wanda Raymond appeals the district court's grant of summary judgment in favor of Ameritech Corp., d/b/a SBC Ameritech ("SBC"),¹ which disposed of her employment discrimination lawsuit. Raymond initially claims the district court abused its discretion by refusing to consider her brief and supporting materials opposing SBC's motion for summary judgment (her "response"), which Raymond purportedly filed by mailing it the day it was due. Raymond asserts that as a result, summary judgment was erroneously granted in favor of SBC. For the following reasons, we affirm the grant of summary judgment.

I. BACKGROUND

Wanda Raymond filed a complaint in June 2003 alleging SBC fired her because of her age (in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA")), and her race and sex (in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII")). For nearly a year after the complaint was filed, the parties engaged in discovery under the supervision of Magistrate Judge Edward Bobrick, who twice extended the discovery cutoff and twice extended the summary judgment briefing schedule.

After the first extension of summary judgment briefing, the magistrate judge ordered discovery to be closed on February 27, 2004, allowing only scheduled depositions to take place thereafter. Raymond deposed Cinthia Williams, employed in SBC's human resources department, and claimed from that deposition she determined Eliska Paratore, the human resources director, would have more knowledge of Raymond's termination. Raymond gave SBC notice of Paratore's deposition on March 24.

On March 25, 2004, the magistrate judge held a status hearing, during which the parties quibbled about discovery. Raymond asked that discovery be extended so that she could depose Paratore because Paratore had received an email relating to Raymond's termination. SBC opposed the deposition, noting that the email was provided to Raymond in December 2003. Despite expressing strong doubts about the relevance of what Paratore, and another SBC employee Raymond sought to depose, would have to say, initially the magistrate judge was inclined to allow Raymond to schedule two new depositions. But that initial view changed when the magistrate judge then turned to the subject of Raymond's deposition.

SBC previously had deposed Raymond for seven hours and asked for permission to complete it. Raymond sought to limit the remainder of the deposition to one hour. The magistrate judge declined to do so, however, observing that Raymond had brought a wide array of claims, including a claim for emotional distress, and noting that SBC previously had treated Raymond in a civil manner. Again Raymond balked at the notion of being deposed without a time limit. Citing Raymond's reluctance to cooperate and her prior knowledge of the individuals she wanted to depose, the magistrate judge ordered discovery to be closed and that no further discovery efforts be made aside from the completion of SBC's deposition of Raymond. On May 6, 2004, District Judge Ronald A. Guzman issued an order adopting the magistrate judge's rulings denying further discovery by Raymond.²

On May 25, 2004, the magistrate judge extended the summary judgment briefing schedule for the second time, establishing the following deadlines: SBC's summary judgment motion was to be filed by August 2, 2004; Raymond's response was to be filed by September 3, 2004; and SBC's reply was to be filed by September 20, 2004.

On August 2, 2004, SBC filed its motion for summary judgment. SBC served the motion by mailing it to Raymond's counsel but used an old address, which resulted in Raymond's counsel not receiving the motion until August 10. On August 16, Raymond asked the court for an extension until October 4 to file her response, citing the delay in service and a planned extended vacation that would keep Raymond's counsel out of the country from August 24 to September 13. On August 18, the district judge granted in part Raymond's request by giving eighteen additional days, making the response due September 21, 2004. The order granting this extension request made no mention of whether or not additional extensions would be given.

On September 16, Raymond's counsel filed a second motion for an extension of time, citing as reasons for delay his vacation, his illness, his personal business matters, and his co-counsel's busy schedule. The district judge denied this motion the next day, keeping the September 21, 2004, deadline intact. Upon learning of the denial, Raymond's counsel worked "almost around the clock" on the response.

On September 20, the attorneys for each party spoke on the phone, as confirmed by SBC's follow-up letter and fax to Raymond's counsel. In part, SBC's writing stated, "[I]f we are unable to pick up the response brief tomorrow night, we will pick it up on [the morning of September 22]." SBC's agent obtained Raymond's response at her counsel's office on the afternoon of September 22. On September 24, SBC complained in writing (again by fax and mail) to Raymond's counsel that the papers SBC was given did not include a copy of the notice of filing or a complete Local Rule 56.1 statement, as required by the Northern District of Illinois Local Rules. Additionally, SBC's September 24 writing indicates that Raymond remained obligated to mail the response to SBC.

Raymond's counsel mailed the response to the district court clerk some time before midnight on September 21, the filing deadline imposed by the court. The U.S. Postal Service's tracking system confirmed that the response was delivered to the district court clerk's office at 10:24 a.m. on September 22. Raymond's response was not stamped "filed" until September 24.

On September 24, noting that Raymond did not file her response on or before the September 21 deadline, the district judge informed the parties that it would rule on SBC's summary judgment motion on the merits and without Raymond's response. On September 29, Raymond filed a motion for reconsideration, asserting that her late filing was an excusable mistake and that she had new evidence. That same day, Raymond filed an amended certificate of service, in which Raymond's counsel certified that a copy of Raymond's response was given to SBC's counsel on September 22. The district judge rejected these arguments and denied the motion to reconsider.

On March 4, 2005, the district judge issued a ruling holding that because of Raymond's failure to comply with Local Rule 56.1, SBC's submitted facts were deemed admitted. Judge Guzman examined SBC's motion on the merits, and, finding no genuine issues of material fact, granted summary judgment. On appeal, Raymond argues first, that her response was timely, and second, if late, her negligence should have been excused. Either way, according to Raymond, the district court erred by refusing to take into account her opposition to SBC's motion for summary judgment, which she claims raises a dispute of material fact.

II. ANALYSIS

A. Raymond's Response

Raymond argues that the district court abused its discretion by determining she filed her response late and by subsequently refusing to consider it. "We review a district court's decision concerning whether a litigant complied with a local rule, such as Local Rule 56.1, for an abuse of discretion." Cichon v. Exelon Generation Co., 401 F.3d 803, 809 (7th Cir.2005) (citation omitted). Specifically, we have held that district courts are entitled to expect strict compliance with Local Rule 56.1, which requires that a party opposing summary judgment "serve and file" its brief and supporting materials. N.D. Ill. R. 56.1(b); Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004) (citations omitted).

Raymond claims she either complied with, or substantially complied with, Rule 5(d) of the Federal Rules of Civil Procedure, depending upon which of her acts constitute a "filing." For her "actual compliance" argument, Raymond asserts she met the district court's deadline because she mailed her response prior to midnight on the day it was due. For her "substantial compliance" argument, Raymond claims that with no firm deadline in the Rules, she was subject only to Rule 5(d)'s requirement merely to file within a "reasonable time" after serving SBC. Raymond says she did this by "filing" her response when it was received by the clerk's office at 10:42 a.m. the day after the deadline. Raymond is wrong in all respects.

Filing with the court is defined in Rule 5(e) which states: "The filing of papers with the court . . . shall be made by filing them with the clerk of court, except that the judge may permit the papers to be filed with the judge . . ." (See also N.D. Ill. Rule 5.4.) The posting of papers addressed to the clerk's office does not constitute "filing" under Rule 5(e). Unlike some state court rules³ the Federal Rules of Civil Procedure do not authorize filing to be accomplished by deposit of papers in the mail.

Thus, Raymond could not have filed her response on September 21 by dropping it in the mail before midnight, or the next morning, when according to the postal receipt it was received. Raymond has not provided any detail regarding the district court's or Judge Guzman's filing procedure that would explain the two-day lag between when the response was allegedly received by the district court clerk and when it was processed. Therefore...