Glob. Freight, Inc. v. Tremell

633 F.Supp.3d 985

GLOBAL FREIGHT, INC., Plaintiff v. Sisson TREMELL, Defendant.

Case No. 2:21-cv-11337-APP

United States District Court, E.D. Michigan, Southern Division

Signed September 30, 2022

Daniel Randazzo, Rochester Hills, MI, for Plaintiff.

Kyle Patrick Murphy, All Law PLLC, Southfield, MI, for Defendant.

OPINION AND ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (ECF No. 17) and GRANTING IN PART PLAINTIFF'S MOTION FOR SANCTIONS (ECF No. 21)

Anthony P. Patti, UNITED STATES MAGISTRATE JUDGE

I. OPINION:

A. Background

Global Freight initiated this lawsuit in state court on January 15, 2021 ([Case No. 2021-185785-CB (Oakland County)]), pleading claims for: (I) breach of contract to the tune of $137,806.20 (ECF No. 1-1, ¶¶ 4-14); and, (II) conversion to the tune of $7,570.50 (id., ¶¶ 15-20). On June 7, 2021, Tremell removed the lawsuit to this Court. (ECF No. 1.) On June 14, 2021, Tremell filed his answer (ECF No. 2), and, on the following day, he filed a counter-complaint, which sets forth causes of action based on the Fair Labor Standards Act (FLSA), fraud, wage and hour violations, and overtime violations. (ECF No. 3.) He attached his supporting, identical declaration to each of these pleadings. (ECF Nos. 2-2 and 3-4.)

B. Instant Motions

Currently before the Court are: (1) Plaintiff's January 14, 2022 motion for summary judgment as to Defendant's counter-complaint (ECF No. 17), which the Court has effectively deemed unopposed after striking the response brief (ECF No. 25) for being over four months late without explanation or a showing of excusable neglect, in violation of Fed. R. Civ. P. 6(b)(1)(B) and E.D. Mich. LR 7.1(e)(1)(B) (see July 7, 2022 Text-Only Order);¹ and, (2) Plaintiff's March 17, 2022 motion for sanctions (ECF No. 21), regarding which Defendant has filed a response (ECF No. 22) and Plaintiff has filed a reply (ECF No. 23).

A hearing was held regarding both motions on July 12, 2022, at which counsel for both parties (Attorneys Daniel Randazzo and Kyle Patrick Murphy) appeared, "although the latter was 35 minutes tardy, admittedly because Mr. Murphy [defense counsel] had not read the Court's written notice of hearing, which [was] all the more dumfounding because the stakes were so high, including one dispositive motion and one for sanctions against his client." (ECF No. 27, PageID.296.) Per the Court's post-hearing, interim order, each side has filed a supplemental brief. (ECF Nos. 27-29.)

C. Standards

1. Summary Judgment

Under Federal Rule of Civil Procedure 56, "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is material if it might affect the outcome of the case under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court "views the evidence, all facts, and any inferences that may be drawn from the facts in the light most favorable to the nonmoving party." Pure Tech Sys., Inc. v. Mt. Hawley Ins. Co., 95 F. App'x 132, 135 (6th Cir. 2004) (internal citations omitted).

"The moving party has the initial burden of proving that no genuine issue of material fact exists . . . ." Stansberry v. Air Wis. Airlines Corp., 651 F.3d 482, 486 (6th Cir. 2011) (internal quotations omitted); cf. Fed. R. Civ. P. 56 (e)(2) (providing that if a party "fails to properly address another party's assertion of fact," then the court may "consider the fact undisputed for the purposes of the motion."). "Once the moving party satisfies its burden, 'the burden shifts to the nonmoving party to set forth specific facts showing a triable issue.' " Wrench LLC v. Taco Bell Corp., 256 F.3d 446, 453 (6th Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). The nonmoving party must "make an affirmative showing with proper evidence in order to defeat the motion." Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009); see also Lee v. Metro. Gov't of Nashville & Davidson Cnty., 432 F. App'x 435, 441 (6th Cir. 2011) ("The nonmovant must, however, do more than simply show that there is some metaphysical doubt as to the material facts . . . . [T]here must be evidence upon which a reasonable jury could return a verdict in favor of the non-moving party to create a genuine dispute.") (internal quotation marks and citations omitted).

Summary judgment is appropriate if the evidence favoring the nonmoving party is merely colorable or is not significantly probative. City Management Corp. v. United States Chem. Co., 43 F.3d 244, 254 (6th Cir. 1994). In other words, summary judgment is appropriate when "a motion for summary judgment is properly made and supported and the nonmoving party fails to respond with a showing sufficient to establish an essential element of its case . . . ." Stansberry, 651 F.3d at 486 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

2. Rule 37 sanctions

The Sixth Circuit reviews "a district court's decision to invoke discovery sanctions for an abuse of discretion." Harmon v. CSX Transp., Inc., 110 F.3d 364, 366 (6th Cir. 1997) (citing Regional Refuse Sys., Inc. v. Inland Reclamation Co., 842 F.2d 150, 154 (6th Cir. 1988)). "In assessing a district court's decision to dismiss a complaint, we consider four factors in particular:

(1) whether the party's failure to cooperate in discovery is due to willfulness, bad faith, or fault;

(2) "whether the adversary was prejudiced by the dismissed party's failure to cooperate in discovery";

(3) "whether the dismissed party was warned that failure to cooperate could lead to dismissal"; and

(4) "whether less drastic sanctions were imposed or considered before dismissal was ordered."

Harmon, 110 F.3d at 366-367 (quoting Regional Refuse Sys., Inc., 842 F.2d at 153-155). The district court does not abuse its discretion "by ordering dismissal as the first and only sanction[,]" where there is "sufficiently egregious conduct[.]" Harmon, 110 F.3d at 369; see also Universal Health Grp. v. Allstate Ins. Co., 703 F.3d 953, 956 (6th Cir. 2013) ("There is no magic-words prerequisite to dismissal under Rule 37(b)[.]").

D. Discussion

1. Plaintiff's Motion for Summary Judgment

In its motion for summary judgment, Plaintiff (Global Freight) seeks dismissal of Defendant's (Sisson's) counter-complaint, arguing, among other things, that the undisputed facts make clear that there was no employment relationship, in which case the counter-claims fail. Defendant's counter-complaint contains four causes of action.

• Count I alleges that Sisson was an employee of Global Freight within the meaning of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 203(e), and that Global Freight violated the statute by failing to pay him minimum wages, 29 U.S.C. § 206, et seq.

• Count II accuses Global Freight of common-law fraud, namely of forging his signature on the contract which forms the basis of Global Freight's lawsuit.

• Count III alleges that Global Freight violated the Michigan minimum wage and hours laws, Mich. Comp. Laws §§ 408.414 and 408.419.

• The final claim, also, but incorrectly labeled as Count III (hereinafter Count IV), alleges that Global Freight failed to pay him overtime wages as an employee and thus violated the Michigan overtime compensation statute, Mich. Comp. Laws §§ 408.414 and 408.419.

(ECF No. 3, ¶¶ 68-88.) All of the statutory claims are premised on Sisson's alleged status as an employee of Global Freight and, to some extent, turn on the content of a December 10, 2017 term sheet (ECF No. 17-2), which Global Freight considers binding and Sisson alleges he never signed.

In its motion for summary judgment, Global Freight posits as undisputed that Sisson was not an employee, but an independent contractor, and thus, he cannot prevail on any of his statutory claims, i.e., Counts I, III and IV. Global Freight further argues that Sisson's fraud claim must fail, because he cannot meet the elements under Michigan, law, including reliance and damages.

a. Plaintiff's motion is unopposed.

Local Rule 7.1(c)(1) states that a "respondent opposing a motion must file a response, including a brief and supporting documents then available." E.D. Mich. LR 7.1(c)(1). My Practice Guidelines for motion practice state that, "[i]n instances where the Court has issued a briefing schedule on a motion, that schedule applies. In all other instances, the parties should follow Local Rule 7.1(e)." There was no briefing schedule issued for this motion, and Local Rule 7.1(e) provides a 21-day response deadline for summary judgment motions, which would have applied here. Accordingly, the Court has discretion to refuse the late response and treat this as an unopposed motion. See Howard v. Nationwide Prop. & Cas. Ins. Co., 306 F. App'x 265 (6th Cir. 2009) (upholding district court's grant of summary judgment and refusal to consider late response in opposition to summary judgment where respondent made no showing of excusable neglect); see also Bonga v. Abdellatif, No. 2:16-CV-13685, 2017 WL 6276194, at *2 (E.D. Mich. Dec. 11, 2017) (Patti, M.J.) ("Plaintiff's motion is unopposed, as no existing Defendant has responded to Plaintiff's May 26, 2017 motion to amend."), report and recommendation adopted, No. 16-13685, 2018 WL 1312403 (E.D. Mich. Mar. 14, 2018) (Cox, J.); Powell v. Internal Revenue Serv., No. 2:15-CV-11033, 2016 WL 8253007, at *2 (E.D. Mich. Apr. 20, 2016) (Patti, M.J.) (noting a motion for summary judgment was technically unopposed but acknowledging the need to ensure Defendant had discharged its burden), report and recommendation adopted, No. 15-11033, 2016 WL 7473446 (E.D. Mich. Dec. 29, 2016) (Borman, J.). Since, by failing to respond in even close to a timely manner, Sisson has "failed to properly address" Global Freight's assertions of material fact, as required by ...