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Nance v. NBCUniversal Media, LLC

United States District Court, N.D. Illinois, Eastern Division

July 29, 2019

FRED L. NANCE, JR., Plaintiff,
NBCUNIVERSAL MEDIA, LLC, et al., Defendants.


          Harry D. Leinenweber, United States District Judge.

         Plaintiff Fred Nance Jr. (“Nance”) alleges that his employers unlawfully discriminated against him on the basis of his age, sex, and race, during his time working as an extra on the television show Chicago Med. For the reasons stated herein, Defendant Empire Casting's Motion for Summary Judgment (Dkt. No. 119) is granted. Defendants NBCUniversal Media, LLC, Universal Television LLC, Open 4 Business Productions LLC, and Joan Philo Casting's (collectively, the “Universal Defendants”) Motion for Summary Judgment (Dkt. No. 114) is also granted.

         I. BACKGROUND

         The Court will first address several procedural issues related to these summary judgment motions before turning to the undisputed facts.

         A. Procedural History

         Nance filed this suit in December 2016. After amending his pleadings several times, the Universal Defendants moved to dismiss various counts in Nance's Third Amended Complaint. The Court granted in part and denied in part that motion. See Nance v. NBCUniversal Media, LLC, No. 16-11635, 2018 WL 1762440 (N.D. Ill. Apr. 12, 2018). Thus, the entirety of Nance's Third Amended Complaint remains pending against Empire Casting, while only certain claims from the Third Amended Complaint remain pending against the Universal Defendants. The Universal Defendants and Empire Casting have moved separately for summary judgment on the remainder of Nance's claims.

         1. Nance's Request to Defer Ruling on Motion for Summary Judgment

         In his response brief in opposition to summary judgment, Nance invokes Federal Rule of Civil Procedure 56(d) and asks the Court to defer ruling on the motions for summary judgment so that Nance may conduct additional discovery. (See Pl.'s Resp. to Summ. J. at 17-18, Dkt. No. 129.) Rule 56(d) states that if the non-movant in a summary judgment proceeding shows by affidavit or declaration that, for specified reasons, he cannot present facts essential to justify his opposition, the Court may defer considering the motion or deny it and allow time to take additional discovery. Fed.R.Civ.P. 56(d). Nance filed a lengthy declaration to support his Rule 56(d) and his Statement of Additional Facts. (See Nance Decl., Dkt. No. 132.)

         However, Nance's request fails both procedurally and substantively. Procedurally, Nance's Rule 56(d) argument is unavailing because he has not made any motion under that rule. The Seventh Circuit has made clear that Rule 56(d) requires a motion. See Deere & Co. v. Ohio Gear, 462 F.3d 701, 706 (7th Cir. 2006) (“When a party thinks it needs additional discovery in order to oppose a motion for summary judgment . . . Rule 56(f) [now Rule 56(d)] provides a simple procedure for requesting relief: move for a continuance and submit an affidavit explaining why the additional discovery is necessary.”); Farmer v. Brennan, 81 F.3d 1444, 1449 (7th Cir. 1996) (“When a party is unable to gather the materials required by Rule 56(e), the proper course is to move for a continuance under Rule 56(f) [now Rule 56(d)].”). A Rule 56(d) motion “must state the reasons why the party cannot adequately respond to the summary judgment motion without further discovery and must support those reasons by affidavit.” Deere & Co., 462 F.3d at 706. Nance has yet to make a Rule 56(d) motion, which constitutes procedural error. See Spierer v. Rossman, No. 1:13-CV-00991, 2014 WL 4908023, at *7 (S.D. Ind. Sept. 30, 2014) (finding that plaintiffs committed procedural error by filing a Rule 56(d) affidavit contemporaneously with their response to summary judgment, rather than moving for 56(d) relief), aff'd, 798 F.3d 502 (7th Cir. 2015).

         Furthermore, Nance's request is substantively deficient. Nance's declaration addresses his Rule 56(d) argument only briefly. (See Nance Decl. ¶¶ 4-5, 17 (“Plaintiff is requesting more discovery . . . to find out if [Defendants] have any signed, written statements from the primary accusers, Ashland Thomas and Jennyfer Mumfer; and to get a written response from Attorneys Michael Tracy and Mark Trapp[.]”) Nance does not explain what facts he seeks to gain from these statements, why they are essential to justify his opposition, or why he was not able to obtain such facts in the allotted discovery period, as Rule 56(d) requires. See Fed. R. Civ. P. 56(d); Deere & Co, 462 F.3d at 706. Fact discovery in this case was originally open for seven months, a period of time to which Nance stated he had no objection. (See 5/3/18 Status Hr'g Tr.) When Nance requested an extension to pursue additional discovery after discovery closed, the Court granted it. (See 1/9/19 Minute Order, Dkt. No. 105.) Nance's declaration now alludes to new documents he claims to need. But Rule 56(d) “does not allow a party to block summary judgment simply by offering generalities about the need for further discovery.” Staten v. Nissan N. Am., Inc., 134 Fed.Appx. 963, 964-65 (7th Cir. 2005) (citation omitted). Thus, Nance's Rule 56(d) argument fails, and the Court will judge Defendants' summary judgment motions on the record as it stands.

         2. Nance's Compliance with Local Rules

         Both Empire Casting and the Universal Defendants argue in their reply briefs that Nance failed to comply with Local Rule 6.1(b)(3), which states the requirements for responding to a summary judgment movant's statement of undisputed material facts. Empire Casting and the Universal Defendants moved separately for summary judgment, each submitting their own statement of undisputed material facts. (See Universal Defs. Stmt. of Facts, Dkt. No. 116; Empire Casting Stmt. of Facts, Dkt. No. 121.) The Universal Defendants' statement of facts contains 52 paragraphs; Empire Casting adopted these 52 paragraphs in its statement of facts and added 16 paragraphs of its own. Nance responded to all 68 paragraphs in his Response to Defendants' Statements of Facts. (See Pl.'s Resp. to Defs.' Stmts. of Fact (“DSOF”), Dkt. No. 128.)

         Local Rule 56.1 requires the party opposing summary judgment to file a “concise response” to each numbered paragraph in the movant's statement of facts, including, in the case of any disagreement, “specific references to the affidavits, parts of the record, and other materials relied upon.” N.D.Ill. L. R. 56.1(b)(3). Any facts not specifically controverted by the opposing party will be deemed admitted. N.D.Ill. L. R. 56.1(b)(3)(C). Nance responded by agreeing with or admitting that he does not have evidence to controvert 36 of the Defendants' statements. (See DSOF ¶¶ 1, 3-4, 6, 8, 10-12, 20-21, 26-27, 31, 34-41, 45, 51, 53-58, 60-61, 63, 65-68.) Nance's responses to the remaining 32 statements are either unresponsive, not supported by citations to admissible record evidence, or otherwise improper. (See DSOF ¶¶ 2, 5, 7, 9, 13-19, 22-25, 28-30, 32-33, 42-44, 46-50, 52, 59, 62, 64.) For example, Nance's response to paragraphs 48-50 consists largely of a series of sarcastic questions. (Id. ¶¶ 48-50.) At times, Nance supports his denials of Defendants' statements with a citation to his own declaration, but when the Court follows that trail, the cited portion of the declaration consists of a citation to another individual's declaration. (Id. ¶¶ 13-14.) Nance often used his responses as an opportunity to argue the facts rather than admit or deny them. (See, e.g., DSOF ¶¶ 9, 30.) Other denials were simply unresponsive to the facts at issue. (See, e.g., id. ¶ 5.)

         Overall, Nance's references make it difficult for the Court to determine which facts are disputed in this case. Judges are not like pigs, hunting for truffles buried in briefs. United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991). While courts liberally construe pleadings of individuals who proceed pro se, district courts are not obliged to “scour the record looking for factual disputes.” Zoretic v. Darge, 832 F.3d 639, 641 (7th Cir. 2016) (citation omitted). Thus, a court may require strict compliance with Rule 56.1 even for a pro se plaintiff. Id. Accordingly, the Court will disregard Plaintiff's response to Defendants' statements of fact and deem the material facts in Defendants' statements admitted. See id.; Cady v. Sheahan, 467 F.3d 1057, 1060 (7th Cir. 2006); Stoltey v. Brown, 283 Fed.Appx. 402, 405 (7th Cir. 2008). The Court will rely on Defendants' statements of fact, but as Nance is opposing summary judgment, the Court will view these facts in the light most favorable to Nance. Stoltey, 283 Fed.Appx. at 405.

         Additionally, Empire Casting notes that Nance's response brief is 33 pages long, in excess of Local Rule 7.1's 15-page limitation for such a brief. See N.D. Ill. L. R. 7.1. Empire Casting asks the Court to strike Nance's response brief because he failed to seek prior approval from the Court to file his excessive brief pages. Moreover, Empire Casting stresses that Nance's brief often veers off-topic from the dispute at hand, does not clearly identify which undisputed facts he relies on, and thus is difficult to parse for plausible legal arguments. However, given Nance's pro se status, the Court declines to strike his brief. The Court turns to the facts of the case as set forth in the Defendants' Statements of Fact.

         B. Facts

         This case concerns Nance's allegations of employment discrimination during his time as a background actor, or “extra, ” on a television series named Chicago Med. Nance contends that Defendants treated him differently than white and female extras when the Universal Defendants instructed Empire Casting to stop casting Nance as an extra on Chicago Med after an internal investigation concluded that Nance threatened another extra while vying for screen time.

         Nance is a 69-year-old African-American resident of Illinois. (Pl.'s Resp. to Defs.' Stmt. of Facts ¶¶ 3, 53 (“DSOF”), Dkt. No. 128.) NBCUniversal is a media company headquartered in New York, New York. (DSOF ¶ 1.) Open 4 Business Productions and Universal Television are wholly-owned subsidiaries of NBC Universal. (Id.) Empire Casting is a company that casts extras on various film and television productions. (Id. ¶ 54.) Joan Philo is an Illinois resident who worked first for Universal Television, and then for Empire Casting, as a Casting Director. (Id. ¶ 2.)

         Universal Studios produces the television show Chicago Med, a drama set in a fictional hospital in Chicago. (DSOF ¶¶ 5-6.) In September of 2015, Joan Philo offered Nance a role as an extra playing an Emergency Room (“ER”) doctor in Season One of Chicago Med. (Id. ¶ 8.) Nance was considered a “core” extra, meaning he would appear in multiple episodes of Chicago Med, rather than being hired to appear in ...

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