United States District Court, N.D. Illinois, Eastern Division
FRED L. NANCE, JR., Plaintiff,
NBCUNIVERSAL MEDIA, LLC, et al., Defendants.
MEMORANDUM OPINION AND ORDER
D. Leinenweber, United States District Judge.
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.
Court will first address several procedural issues related to
these summary judgment motions before turning to the
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.
Nance's Request to Defer Ruling on Motion for Summary
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.)
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).
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.
Nance's Compliance with Local Rules
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.)
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.)
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.
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.
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.
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.)
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 ...