Case of The Bluewater Circuit vs. Bluewater Department of Job And Family Services

Perkins

3 months ago

Case of The Bluewater Circuit vs. Bluewater Department of Job And Family Services

Pages

Western Division. i

TABLE OF CONTENTS. ii

Pages. ii

TABLE OF AUTHORITIES.. ii

INTRODUCTION.. 1

STATEMENT OF ISSUES PRESENTED FOR REVIEW… 3

STATEMENT OF THE CASE.. 3

(A) Nature of the Case. 3

(B) Course of Proceedings. 4

(C) Statement of the Facts. 5

ARGUMENT.. 7

The District Court erred in granting Appellee’s Second Motion for Judgment on the Pleadings as to Plaintiff’s reverse discrimination and equal protection claims when it found that Appellant’s First Amended Complaint lacked adequate specificity despite the fact that Appellant had attached as an Exhibit to her Amended Complaint a copy of her EEOC charge that contained examples of alleged African-American employees that she contended had been more favorably treated. 7
STANDARD OF REVIEW… 7
SUBSTANCE OF ARGUMENT.. 8

The district court then held that the Amended Complaint failed to allege sufficiently that Moore was treated differently than similarly situated nonprotected employees. The Court stated: 8

“According to Plaintiff, Defendant denied her equal protection “when it followed a custom and/or policy of inadequately investigating serious charges against Plaintiff before terminating her employment” (Docket No. 19, p. 4 of 9). She also alleges that “similarly situated employees of other races were treated more favorably . . . and were either disciplined in a less severe manner or were permitted to return to work” (Docket No. 19, p. 4 of 9). This claim is nothing more than a bare assertion of reverse racial discrimination: Plaintiff fails to elaborate or provide any examples of Defendant’s “custom and/or policy” of reverse racial discrimination (Docket No. 19).” (R. 37, Memorandum and Order, p. 12.) 8

The District Court erred in granting Appellee’s Second Motion for Judgment on the Pleadings when it held that Plaintiff had alleged only that she was an at will employee when in fact Plaintiff alleged her job title in the Amended Complaint which as a matter of Bluewater law was a protected civil service position. 12
STANDARD OF REVIEW… 13

Review of a grant of judgment on the pleadings is a review de novo utilizing the same test used by the District Court to determine whether judgment is appropriate. See Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir.1998). The standard of review for a motion for judgment on the pleadings is the same as for a motion to dismiss for failure to state a claim for relief under Rule 12(b)(6). EEOC v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir. 2001). For purposes of a motion for judgment on the pleadings, the Court must “construe the complaint in the light most favorable to the plaintiff, accept all of the complaint’s factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of the claims that would entitle relief.” Id. In its Order filed December 5, 2012, the District Court below properly set forth the standard for Judgment on the Pleadings. (R.37, Order). 13

SUBSTANCE OF ARGUMENT.. 13

III. The District Court erred in granting Appellee’s Motion for Extension of Deadline, prior to providing Appellant an opportunity to oppose said motion, effectually staying discovery which could have led to further amendment of the pleadings. 15

STANDARD OF REVIEW… 15
SUBSTANCE OF ARGUMENT.. 15

CONCLUSION.. 18

CERTIFICATE OF SERVICE.. 18

TABLE OF AUTHORITIES

Cases

Page

Grindstaff v. Green, 133 F.3d 416, pg. 421 (6th Cir.1998).………………………………………7

EEOC v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir. 2001)……………………………7

Newman v. Federal Express Corp., 266 F.3d 401, at page 406 (6th Cir. 2001)………………….8

Sutherland v. Michigan Department of Treasury, (2003) 344 F.3d 603, 614 (6th Cir.)………….8

Swierkiewicz v. Sorema, ,(2002) 534 U.S. 506, 510 (2002)……………………………………..9

Keys v. Humana, 684 F.3d 605, 609 (6th Cir. 2012) ……………………………………………10

Iqbal v. Ashcroft, 556 U.S. at 678, 679 (2009)…………………………………………………..10

Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir.1998)………………………………………….13

EEOC v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir. 2001)……………………………………13

Learn v. Daeschner, 228 F.3d 729, 741-42 (6th Cir. 2000)………………………………………13

Johnston-Taylor v. Gannon, 907 F.2d 1577, 1581(6th Cir. 1990)……………………………….13

Cleveland Board of Education v. Louderville, 470 U.S. 532, 542(1984)………………………..14

Morrison v. Warren, et al., 375 F.3d 468, 474 (6th Cir. 2004)…………………………………..14

Regents v. Roth, 408 U.S. 564, 577 (1972)………………………………………………………14

Cleveland Board of Education v. Louderville, 470 U.S. 532, 542 (1984)……………………….14

Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir.1998). ………………………………………..15

EEOC v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir. 2001)…………………………..15

Hollingsworth v. Perry, 558 U.S. 183, 130 S.Ct. 705, 710 (2010)………………………………16

Professional Programs Group v. Department of Commerce, 29 F.3d 1349, 1353 (9th Cir. 1994)……………………………………………………………………………………………..16

Statutes

42 U.S.C. § 1983………………………………………………………………………………….1

Bluewater Revised Code § 4112.02(A)………………………………………………………….1

Bluewater Revised Code § 4112.99………………………………………………………………1

28 U.S.C. § 1331…………………………………………………………………………………1

28 U.S.C. §1291………………………………………………………………………………….2

42 U.S.C. § 1983…………………………………………………………………………………3

Bluewater Revised Code § 4112.02(A)…………………………………………………………..3

Bluewater Revised Code § 4112.99………………………………………………………………3

INTRODUCTION

This case was originally filed by the Appellant in the United States District Court for the Northern District of Bluewater, Western Division, Case No. 3:12CV743. The case was assigned to Judge Jack Sprat and, upon the consent of the parties, was transferred to Magistrate Judge Joe Blues. (R. 1, Complaint; R. 12, Notice of Proposed Consent to Exercise Jurisdiction of Magistrate Judge). Appellee later filed its Answer, followed by a Motion for Judgment on the Pleadings. (R.15, Answer; R. 16, Motion for Judgment on the Pleadings). Appellant opposed the Motion for Judgment on the Pleadings and contemporaneously filed her First Amended Complaint with Jury Demand. (R. 18, Opposition to Motion for Judgment on the Pleadings; R. 19, First Amended Complaint with Jury Demand).

In her First Amended Complaint, the Appellant sought redress for a due process and equal protection violation of 42 U.S.C. § 1983, race discrimination under Title VII of the Civil Rights Act and under Bluewater Revised Code § 4112.02(A) made actionable pursuant to Bluewater Revised Code § 4112.99 as amended, and Bluewater common law claims of defamation and invasion of privacy. Jurisdiction of the District Court was claimed under 28 U.S.C. § 1331. (R. 19, First Amended Complaint with Jury Demand).

On September 10, 2012, Appellant served her first requests for Interrogatories and Request for Production of Documents upon Appellees. (R. 24, Notice of Service). Appellee filed its Answer to the Amended Complaint and Second Motion for Judgment on the Pleadings shortly thereafter. (R. 25, Answer to Amended Complaint; R. 27, Second Motion for Judgment on the Pleadings). Next, Appellee filed a motion requesting an extension of time to respond to the Appellant’s discovery requests until after its Second Motion for Judgment on the Pleadings was decided, effectively staying discovery in the case. (R. 29, Motion for Extension of Deadline). Appellee’s Motion for an Extension was granted six days later. (R. 30, Marginal Entry Order Granting Defendant’s Motion for Extension). Ms. Moore filed her Opposition to the Second Motion for Judgment on the Pleadings on October 22, 2012. (R. 31, Opposition to Second Motion for Judgment on the Pleadings). On November 25, 2012, Appellee filed its Reply. (R. 35, Reply).

The District Court entered a Memorandum and Order on December 5, 2012, granting the Defendant’s Second Motion for Judgment on the Pleadings. (R. 37, Memorandum and Order). Appellate jurisdiction is based upon 28 U.S.C. §1291. The appellant filed her Notice of Appeal to this Court on January 2, 2013. (R. 38, Notice of Appeal). This appeal is from a final judgment that disposes of all claims with respect to all parties.

STATEMENT OF ISSUES PRESENTED FOR REVIEW

The District Court erred in granting the Appellee’s Second Motion for Judgment on the Pleadings as to Plaintiff’s reverse discrimination and equal protection claims when it found that the Appellant’s First Amended Complaint lacked adequate specificity despite the fact that the Appellant had attached as an Exhibit to her Amended Complaint a copy of her EEOC charge that contained examples of alleged African-American employees that she contended had been more favorably treated.
The District Court erred in granting Appellee’s Second Motion for Judgment on the Pleadings when it held that Plaintiff had alleged only that she was an at-will employee when, in fact, Plaintiff alleged her job title in the Amended Complaint, which, as a matter of Bluewater law was a protected civil service position.

III. The District Court erred in granting Appellee’s Motion for Extension of Deadline, prior to providing Appellant an opportunity to oppose the said Motion, effectually staying discovery which could have led to further amendment of the pleadings.

STATEMENT OF THE CASE

(A) Nature of the Case

Appellant had been working for Appellee until her discharge on April 1, 2011. She sought redress for a due process and equal protection violation of 42 U.S.C. § 1983, race discrimination under Title VII of the Civil Rights Act and under Bluewater Revised Code § 4112.02 (A) made actionable pursuant to Bluewater Revised Code § 4112.99 as amended, and Bluewater common law claims of defamation and invasion of privacy.

In this action, Appellant Moore sought a judgment against Appellee for reinstatement, back pay, seniority, benefits, compensatory, liquidated, and punitive damages, prejudgment and post-judgment interest, and costs and attorney fees.

(B) Course of Proceedings

After the Appellant filed her Complaint (R. 1, Complaint), the Appellee filed its Answer, followed by a Motion for Judgment on the Pleadings. (R.15, Answer; R. 16, Motion for Judgment on the Pleadings). Appellant opposed the Motion for Judgment on the Pleadings and contemporaneously filed her First Amended Complaint with Jury Demand. (R. 18, Opposition to Motion for Judgment on the Pleadings; R. 19, First Amended Complaint with Jury Demand).

On September 10, 2012, Appellant served her first requests for Interrogatories and Request for Production of Documents upon Appellees. (R. 24, Notice of Service). Appellee filed its Answer to the Amended Complaint and Second Motion for Judgment on the Pleadings shortly thereafter. (R. 25, Answer to Amended Complaint; R. 27, Second Motion for Judgment on the Pleadings). Then, Appellee filed a motion requesting an extension of time to respond to the Appellant’s discovery requests until after its Second Motion for Judgment on the Pleadings was decided, effectively staying discovery in the case. (R. 29, Motion for Extension of Deadline). Appellee’s Motion for an Extension was granted six days later. (R. 30, Marginal Entry Order Granting Defendant’s Motion for Extension). Ms. Moore filed her Opposition to the Second Motion for Judgment on the Pleadings on October 22, 2012. (R. 31, Opposition to Second Motion for Judgment on the Pleadings). On November 25, 2012, Appellee filed its Reply. (R. 35, Reply). The District Court entered a Memorandum and Order on December 5, 2012, granting Defendant’s Second Motion for Judgment on the Pleadings. (R. 37, Memorandum and Order). This appeal followed.

(C) Statement of the Facts

The appellant is a Caucasian individual, a citizen of the United States, and a resident of the City of Bluewater. (R. 19, Amended Complaint p. 2). Appellee employed him as an Eligibility Specialist 2 (“Eligibility Specialist”) until her discharge on or about April 1, 2011. (Id.). Appellee is a department within the governmental structure of Bluewater under the authority of the Bluewater Board of County Commissioners. (Id). Appellee provides services to families throughout Bluewater, including temporary cash assistance, food stamps, subsidized child care, adult protection, disability assistance and prevention, retention and contingency services, and medical assistance. (Id). The appellant alleged that the Appellee accused her of dishonesty, failure of good behavior, and malfeasance and subsequently terminated her employment. (Id. at 3). The appellant also alleged that the Appellee failed to conduct an adequate investigation into the charges against her prior to terminating her employment. (Id).

SUMMARY OF ARGUMENT

Appellant Mary Moore contends that the District Court erroneously granted Appellee’s Second Motion for Judgment on the Pleadings to Plaintiff’s reverse discrimination and equal protection claims. It found that the Appellant’s First Amended Complaint lacked adequate specificity, despite the fact that the Appellant had attached as an Exhibit to her Amended Complaint a copy of her EEOC charge containing examples of alleged African-American employees that she contended had been more favorably treated than her.

Appellant further contends that the District Court erroneously granted Appellee’s Second Motion for Judgment on the Pleadings when it held that Plaintiff had only alleged that she was an at-will employee. In fact, the Appellant alleged her job title in the Amended Complaint, which was a protected civil service position as a matter of Bluewater law.

Finally, Appellant contends that the District Court erroneously granted Appellee’s Motion for Extension of Deadline prior to providing Appellant an opportunity to oppose said the Motion, which effectually stayed discovery which could have led to further amendment of the pleadings.

ARGUMENT

The District Court erred in granting the Appellee’s Second Motion for Judgment on the Pleadings as to Plaintiff’s reverse discrimination and equal protection claims when it found that the Appellant’s First Amended Complaint lacked adequate specificity despite the fact that the Appellant had attached as an Exhibit to her Amended Complaint a copy of her EEOC charge that contained examples of alleged African-American employees that she contended had been more favorably treated.

STANDARD OF REVIEW

Review of a grant of judgment on the pleadings is a review de novo utilizing the same test used by the District Court to determine whether a judgment is appropriate. See Grindstaff v. Green, 133 F.3d 416, pg. 421 (6th Cir.1998). The standard of review for a motion for judgment on the pleadings is the same as for a motion to dismiss for failure to state a claim for relief under Rule 12(b)(6). EEOC v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir. 2001). For purposes of a motion for judgment on the pleadings, the Court must “construe the complaint in the light most favorable to the plaintiff, accept all of the complaint’s factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of the claims that would entitle relief.” Id. In its Order filed December 5, 2012, the Trail Court below properly set forth the standard for Judgment on the Pleadings. (R.37, Order)

SUBSTANCE OF ARGUMENT

The District Court in this case recited the components of a prima facie case under McDonnell Douglas and stated that in a typical case, to allege Title VII discrimination, a plaintiff must assert that: 1) she is a member of a protected class; 2) was qualified for the job; 3) she suffered an adverse employment decision; and 4) was replaced by a person outside the protected class or treated differently than similarly non-protected employees. Newman v. Federal Express Corp., 266 F.3d 401, at page 406 (6th Cir. 2001). In a reverse discrimination case–where a member of the racial majority claims racial discrimination–the first and fourth prongs of the test are different. To satisfy the first prong of the test, “the plaintiff must allege background circumstances [to] support the suspicion that the defendant is that unusual employer who discriminates against the majority.” Sutherland v. Michigan Department of Treasury, (2003) 344 F.3d 603, 614 (6th Cir.). To satisfy the fourth prong in a reverse discrimination case, the plaintiff must allege that the defendant treated the minority employees who were similarly situated to the plaintiff more favorably than he was treated. Id.

The district court then held that the Amended Complaint failed to allege sufficiently that Moore was treated differently than similarly situated non-protected employees. The Court stated:

However, the Court was not entirely accurate.

The district court’s requirement that Moore’s Complaint establish a prima facie case under McDonnell Douglas and its progeny is contrary to Supreme Court and Sixth Circuit precedent. In Swierkiewicz v. Sorema, the Supreme Court unanimously held that the prima facie case under McDonnell Douglas is an evidentiary standard, not a pleading requirement. 534 U.S. 506, 510 (2002). As the Court reasoned, “it is not appropriate to require a plaintiff to plead facts establishing a prima facie case because the McDonnell Douglas framework does not apply in every employment discrimination case.” Id. at 511. The Court explained that the precise requirements of a prima facie case could vary depending on the context, and before discovery has unearthed the relevant facts and evidence, it may be difficult to define the appropriate formulation. Id. at 512. Significantly, the Supreme Court identified the possibility that discovery[1] may produce direct evidence of discrimination, rendering the McDonnell Douglas burden-shifting framework inapplicable to a plaintiff’s claims. Id. at 511-12.

Since Iqbal, and as recently as July of last year, this Court has also recognized the continuing viability of Swierkiewicz‘s holding. In Keys v. Humana, this Court faced a case where the Plaintiff, Keys, alleged racial discrimination in her Amended Complaint. 684 F.3d 605, 609 (6th Cir. 2012) There, this Court held that “it was error for the district court to require Keys to plead a prima facie case under McDonnell Douglas in order to survive a motion to dismiss.” (Id.)Although the Amended Complaint need not present “detailed factual allegations,” it must allege sufficient “factual content” from which a court, informed by its “judicial experience and common sense,” could “draw the reasonable inference,” Iqbal v. Ashcroft, 556 U.S. at 678, 679 (2009), that Moore was discriminated against because of her race. If a reasonable court can draw the necessary inference from the factual material stated in the complaint, the plausibility standard has been satisfied. The Amended Complaint contains allegations that are neither speculative nor conclusory; it alleges facts that easily state a plausible claim.

The Keys case is strikingly similar to this case. In Keys, the Amended Complaint “alleged a pattern or practice of discrimination against African American managers and professional staff in hiring, compensation, promotion, discipline, and termination. It details several specific events in each of those employment-action categories where Keys alleges she was treated differently than her Caucasian management counterparts; it identifies the key supervisors and other relevant persons by race and either name or company title, and it alleges that Keys and other African Americans received specific adverse employment actions notwithstanding satisfactory employment performances.” 684 F.3d 605, 610 (6th Cir.) This Court held that such “factual allegations are at least as detailed, if not more so, than those the Supreme Court found “easily satisfie[d] the requirements of Rule 8(a)” in Swierkiewicz. See 534 U.S. at 514.” Id.

In this case, the First Amended Complaint states that “the defendant is an employer who discriminates against Caucasian employees.” (R. 19, First Amended Complaint, p. 4). The First Amended Complaint also asserts that “similarly situated African American employees were more favorably treated than the plaintiff and were not subject to the same level of discipline as her,” and that “Caucasian employees, in general, are treated less favorably than African American employees, and are disciplined in a harsher manner.” (R. 19, First Amended Complaint, p. 4). Furthermore, and most importantly, attached to the Amended Complaint was a Charge of Discrimination filed by Ms. Moore with the Bluewater Civil Rights Commission and Equal Employment Opportunity Commission.

This Honorable Court has previously held that a court may consider “exhibits attached [to the complaint], public records…so long as they are referred to in the complaint and are central to the claims contained therein.” Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 430 (6^th Cir. 2008).

In her charge (R. 19, Exhibit A to the Amended Complaint), Ms. Moore specifically swore “Respondent has treated African Americans more lenient including Roberta G., who works in my classification and violated same or similar policies and Renee T. and Stephanie E., African Americans who committed more serious violations and were returned to work while I was terminated without the benefit of progressive discipline.” The District Court’s Order does not take the assertions made in Exhibit A into account. These factual allegations are at least as detailed, if not more so, than those the Supreme Court found “easily satisfie[d] the requirements of Rule 8(a)” in Swierkiewicz. See 534 U.S. at 514. Therefore, the First Amended Complaint pleads facts which specifically show “a history of unlawful consideration of race by the employer,” and the District Court erred in granting summary judgment.

The District Court erred in granting Appellee’s Second Motion for Judgment on the Pleadings when it held that Plaintiff had alleged only that she was an at will employee when in fact Plaintiff alleged her job title in the Amended Complaint which as a matter of Bluewater law was a protected civil service position.

A. STANDARD OF REVIEW

Review of a grant of judgment on the pleadings is a review de novo utilizing the same test used by the District Court to determine whether a judgment is appropriate. See Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir.1998). The standard of review for a motion for judgment on the pleadings is the same as for a motion to dismiss for failure to state a claim for relief under Rule 12(b)(6). EEOC v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir. 2001). For purposes of a motion for judgment on the pleadings, the Court must “construe the complaint in the light most favorable to the plaintiff, accept all of the complaint’s factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of the claims that would entitle relief.” Id. In its Order filed December 5, 2012, the District Court below properly set forth the standard for Judgment on the Pleadings. (R.37, Order).

SUBSTANCE OF ARGUMENT

Courts undertake a two-step analysis to determine if a plaintiff’s due process rights were violated. Learn v. Daeschner, 228 F.3d 729, 741-42 (6th Cir. 2000); Johnston-Taylor v. Gannon, 907 F.2d 1577, 1581(6th Cir. 1990). To properly assert a violation of due process in an employment termination case, the complaint must allege (1) that the plaintiff had a property interest in continued employment as determined under state law and (2) the constitutional minimum of due process was not provided before the plaintiff was deprived of their interest in public employment. Cleveland Board of Education v. Louderville, 470 U.S. 532, 542(1984); Morrison v. Warren, et al., 375 F.3d 468, 474 (6th Cir. 2004). Property rights are not created by the Constitution itself. McDaniel v. The Princeton City School District Board of Education, et al., (6th Circuit) 45 Fed. Appx. 354, 357(2002). Rather, they are created, and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law. Regents v. Roth, 408 U.S. 564, 577 (1972).

In this case, the District Court erred in Moore Plaintiff’s First Amended Complaint for allegations of a properly interest in her employment with the Appellee. The Court stated that “Plaintiff makes no claim or allegation that she was anything but an at-will employee.” (R.37, Memorandum and Order, p.10).”

However, the First Amended Complaint clearly alleges facts that create a property interest in plaintiff’s continued employment with the Appellee. Specifically, the First Amended Complaint states that Ms. Moore was “employed as an Eligibility Specialist 2.” (R.19, First Amended Complaint, p. 3). The Bluewater Revised Code plainly creates a property interest in such a position. Ms. Moore, as an Eligibility Specialist 2, was a “classified civil service employee, under Bluewater Rev. Code Ann. 124.11, and thus has a property interest in her position.” Cleveland Board of Education v. Louderville, 470 U.S. 532, 542 (1984). Therefore, the District Court erred in granting Defendant’s Second Motion for Judgment on the Pleadings, as Ms. Moore pled a property interest in her civil service position.

STANDARD OF REVIEW

Review of a grant of judgment on the pleadings is a review de novo utilizing the same test used by the Trail Court to determine whether judgment is appropriate. See Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir.1998). The standard of review for a motion for judgment on the pleadings is the same as for a motion to dismiss for failure to state a claim for relief under Rule 12(b)(6). EEOC v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir. 2001). For purposes of a motion for judgment on the pleadings, the Court must “construe the complaint in the light most favorable to the plaintiff, accept all of the complaint’s factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of the claims that would entitle relief.” Id. In its Order filed December 5, 2012, the District Court below properly set forth the standard for Judgment on the Pleadings. (R.37, Order).

SUBSTANCE OF ARGUMENT

A district court has the authority to adopt local rules, which have “the force of law.” Hollingsworth v. Perry, 558 U.S. 183, 130 S.Ct. 705, 710 (2010) (internal citation omitted). They “are binding upon the parties and upon the court, and a departure from local rules that affects substantial rights requires reversal.” Professional Programs Group v. Department of Commerce, 29 F.3d 1349, 1353 (9th Cir. 1994) (internal quotation marks omitted). In this matter, on September 10, 2012, Appellant served her first requests for Interrogatories and Request for Production of Documents upon Appellees, responses of which would be due October 10, 2012, pursuant to Fed. R. Civ. P. 34. (R. 24, Notice of Service). Appellee filed its Second Motion for Judgment on the Pleadings shortly thereafter on September 24, 2012. (R. 27 Second Motion for Judgment on the Pleadings). Then, six days after its responses to discovery were due, on October 16, 2012, Appellee filed a motion requesting an extension of time to respond to Appellant’s discovery requests until after its Motion for Judgment on the Pleadings was decided, effectively staying discovery in the case. (R. 29, Motion for Extension of Deadline). Appellee’s Motion for an Extension was granted only six days later, on October 22, 2012. (R. 30, Marginal Entry Order Granting Defendant’s Motion for Extension).

However, Local Rule 7.1(g) of the Northern District of Bluewater states “The Judicial Officer may rule on unopposed motions without hearing at any time after the time for filing an opposition has expired. The Judicial Officer may also rule on any opposed motion without hearing at any time after the time for filing a reply memorandum has elapsed.” (N.D. Bluewater L.R. 7.1(g) (emphasis added)). According to Local Rule 7.1(d), “Unless otherwise ordered by the Judicial Officer, each party opposing a motion must serve and file a memorandum in opposition … within fourteen (14) days after service of any non-dispositive motion.” Therefore, no motion should be granted in the Northern District of Bluewater until fourteen days after the Motion’s filing.

In this case, therefore, Ms. Moore should have had until October 30, 2012, to oppose Appellee’s request for an extension of time to respond to discovery. Ms. Moore’s Opposition to the Second Motion for Judgment on the Pleadings was not required to be filed until October 24, 2012, under L. R. 7.1(d). Therefore, Ms. Moore should have received the discovery from Appellees or have been permitted the opportunity to oppose the Motion for extension of time before opposing the Second Motion for Judgment on the Pleadings. Had Ms. Moore received the discovery in this matter according to the Federal Rules, or been permitted to oppose the Motion for extension of time pursuant to the local rules, she may have had the opportunity to request leave to amend her Complaint[2] to add newly acquired evidence pertaining to the discrimination committed against her. Instead, the District Court violated its own Local Rules by ruling on Appellee’s Motion for an extension of time to respond to discovery before the time for filing an opposition had expired, thus effectually staying discovery in the matter and denying Ms. Moore the opportunity to amend her pleading through motion of the court.

CONCLUSION

WHEREFORE, Appellant seeks reversal and remand by this honorable Cout.

Respectfully submitted,

__________________________________

Natasha Strauss

Attorney for Plaintiff-Appellant Moore

CERTIFICATE OF SERVICE

This is to certify that one original Brief of Plaintiff-Appellant Mary Moore has been filed electronically on ___________. Notice of this filing will be sent to all parties by operation of the Court’s electronic filing system (ECF System) through a Notice of Docket Activity (NDA). Parties may access this filing through the Court’s system.

________________________________

Natasha Strauss

122 Main Street

Whiteacre 48524

Telephone: (221) 524-1239

Facsimile: (221) 524-2719

Attorney for Plaintiff-Appellant

Mary Moore

APPENDIX

1 Complaint
15 Answer
16 Motion for Judgment on the Pleadings
18 Opposition to Motion for Judgment on the Pleadings
19 First Amended Complaint
24 Notice of Service
25 Answer to Amended Complaint
27 Second Motion for Judgment on the Pleadings
29 Motion for Extension of Deadline
30 Marginal Entry Order Granting Defendant’s Motion for Extension
31 Opposition to Second Motion for Judgment on the Pleadings
35 Reply to Opposition to Second Motion for Judgment on the Pleadings
37 Memorandum and Order
38 Notice of Appeal

[1] Significantly, Moore argued in her Opposition to the Second Motion for Judgment on the Pleadings that discovery was needed in this matter. (R. 31, Opposition, p. 8).

[2] Pursuant to Fed. R. Civ. P. 15 (a)(2) a party may amend its pleading with leave of court, which should be granted freely when justice so requires.

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Case of The Bluewater Circuit

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