United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
NANNETTE A. BAKER, Magistrate Judge.
This matter is before the Court on Defendant Missouri Department of Social Services, Division of Youth Services' Motion for Summary Judgment, Defendant's Supplemental Motion for Summary Judgment, and Plaintiff Marva Miller's Motion to Compel. [Docs. 52, 54, 62.] Based on the following, the Court will grant Defendant's original Motion for Summary Judgment, deny Plaintiff's Motion to Compel, and deny Defendant's Supplemental Motion for Summary Judgment as moot. Because the parties have not fully briefed all issues in Plaintiff's Complaint, the Court will set a new deadline for motions for summary judgment on the claims not addressed in Defendant's original Motion for Summary Judgment.
I. Procedural History
On June 10, 2013, Plaintiff filed this action against Defendants Missouri Department of Social Services, Division of Youth Services, Donald Pokorny, Sonja Williams, Janet Smiley, and Courtney Collier. [Doc. 1.] Plaintiff alleged that she was discriminated against based on her race and disability under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., as amended and claims of "whistleblower and retaliation for filing workers' compensation claims and complaining about a hostile work environment." The Court dismissed the individual defendants in an order dated July 1, 2013. [Doc. 4.] The Court also dismissed Plaintiff's claim of "whistleblower and retaliation for filing workers' compensation claims." [Doc. 4.] Plaintiff filed a motion for leave to file an amended complaint. [Doc. 19.] The Court denied Plaintiff's motion without prejudice. [Doc. 28.] The remaining Defendant Missouri Department of Social Services, Division of Youth Services has filed two motions for summary judgment. [Docs. 52, 60.] The first motion is based on the merits and the second motion is based on issue preclusion. The motions have been fully briefed. Plaintiff filed a Motion to Compel on February 17, 2015 within her response to Defendant's original Motion for Summary Judgment. [Doc. 54.]
II. Standard of Review
Pursuant to Federal Rule of Civil Procedure 56(c), a court may grant a motion for summary judgment if all of the information before the court shows "there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The initial burden is placed on the moving party. City of Mt. Pleasant, Iowa v. Assoc. Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988) (the moving party has the burden of clearly establishing the non-existence of any genuine issue of fact that is material to a judgment in its favor). Once this burden is discharged, if the record shows that no genuine dispute exists, the burden then shifts to the non-moving party who must set forth affirmative evidence and specific facts showing there is a genuine dispute on an issue of material fact. Miller v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Once the burden shifts, the nonmoving party may not rest on the allegations in its pleadings, but by affidavit and other evidence, he or she must set forth specific facts showing that a genuine issue of material fact exists. Fed.R.Civ.P. 56(c); Herring v. Can. Life Assur. Co., 207 F.3d 1026, 1029 (8th Cir. 2000). The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). A dispute about a material fact is "genuine" only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Herring, 207 F.3d at 1029 (quoting Miller, 477 U.S. at 248). A party resisting summary judgment has the burden to designate the specific facts that create a triable controversy. See Crossley v. Georgia-Pacific Corp., 355 F.3d 1112, 1114 (8th Cir. 2004). Self-serving, conclusory statements without support are not sufficient to defeat summary judgment. Armour and Co., Inc. v. Inver Grove Heights, 2 F.3d 276, 279 (8th Cir. 1993). In passing on a motion for summary judgment, it is not the court's role to decide the merits. The court should not weigh evidence or attempt to determine the truth of a matter. Rather, the court must simply determine whether a genuine issue of material fact exists. Bassett v. City of Minneapolis, 211 F.3d 1097, 1107 (8th Cir. 2000).
"There is no discrimination exception to the application of summary judgment, which is a useful pretrial tool to determine whether any case, including one alleging discrimination, merits a trial." Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011). "Although employment discrimination cases are often fact intensive and dependent on nuance in the workplace, they are not immune from summary judgment. If there is no dispute of material fact and reasonable fact finders could not find in favor of the nonmoving party, summary judgment is appropriate." Pye v. Nu Aire, Inc., 641 F.3d 1011, 1018 (8th Cir. 2011) (internal citations omitted).
A. Motion to Compel
Plaintiff filed a Motion to Compel within her response to Defendant's Motion for Summary Judgment. Plaintiff states that Defendant "maintain[s] records, including e-mails, telephone records... and other documents that have been requested by this Plaintiff that clearly identify patterns of collusion against this Plaintiff and other African-American employees who have been employed by the Defendant." [Doc. 54 at 1.] Plaintiff asks the court to compel Defendant to submit additional discovery "which indicates the retaliatory, hostile and discriminatory work environment that the Plaintiff was subjected to." [Doc. 54 at 2.] Plaintiff states that Defendant is withholding documents. [Doc. 64 at 10.] Defendant responds that Plaintiff has not made any discovery requests in this action, she has not conferred with Defendant before filing her motion, and her motion is untimely. Based on the following, the Court will deny Plaintiff's Motion to Compel.
First, Plaintiff's motion is untimely, because the Court's Case Management Order of June 26, 2014 stated that motions to compel discovery must be filed no more than eleven (11) days following the discovery deadline. [Doc. 46.] The discovery deadline in this case was December 1, 2014. [Doc. 46.] Plaintiff filed this motion on February 27, 2015. Plaintiff has failed to provide any reason for failing to file a timely motion to compel. See Firefighters' Inst. for Racial Equality v. City of St. Louis, 220 F.3d 898, 903 (8th Cir. 2000) (district court did not abuse discretion in denying late motion to compel where party did not provide reason to justify missing deadline).
Second, Plaintiff has not refuted Defendant's contention that she has not served any discovery requests in this matter, which is a prerequisite to filing a motion to compel. See Fed.R.Civ.P. 26(a)(3)-(4). "The usual method to acquire documents from a party defendant, to the extent such documents exist, is to serve a request for production of documents on the party defendant pursuant to Rule 34." Forest v. Barnes Jewish Hosp., No. 4:07-CV-258 DJS, 2008 WL 957681 at *1 (E.D. Mo. Apr. 7, 2008). If that defendant fails to respond or objects to the document production, and the plaintiff thinks that the defendant's failure to respond or objection is improper, then the plaintiff can file a motion to compel pursuant to Rule 37." Id. Plaintiff has not produced any discovery requests that she served upon Defendant in this case.
Third, Plaintiff has not conferred with the Defendant about any disputed discovery, in violation of the federal and local rules of civil procedure. A party may move for an order compelling disclosure or discovery. Fed.R.Civ.P. 37(a). The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action. Fed.R.Civ.P. 37(a). Local Rule 3.04 states that the court "will not consider any motion relating to discovery and disclosure unless it contains a statement that movant's counsel has conferred in person or by telephone with the opposing counsel or has made reasonable efforts to do so, but that after sincere efforts to resolve their dispute, counsel are unable to reach an accord." E.D.Mo. L. R. 3.04(A). Rule 3.04 further provides that the statement "shall recite the date, time, and manner of such conference, the names of the individuals participating therein, or shall state with specificity the efforts made to confer with opposing counsel." E.D.Mo. L.R. 3.04(A). Plaintiff's motion does not certify that she had any discussions regarding disclosure or discovery with opposing counsel. "A party's pro se status does not entitle him to ...