Colby v. J.C. Penney Co.

128 F.R.D. 247, 11 Employee Benefits Cas. (BNA) 2121, 15 Fed. R. Serv. 3d 299, 1989 U.S. Dist. LEXIS 12965, 51 Fair Empl. Prac. Cas. (BNA) 340
District Court, N.D. Illinois·Decided October 31, 1989·No. No. 80 C 2032·Published·Cited by 4 cases

Opinion

MEMORANDUM OPINION

BRIAN BARNETT DUFF, District Judge.

Diane Colby filed this class action suit against J.C. Penney Company, Inc. on April [248]*24824, 1980. She could have sought discovery from Penney from that time until October 28, 1980, when Judge Moran of this district stayed discovery, but she did not. Judge Moran transferred this case to Judge Parsons of this district in August 1981; Judge Parsons lifted Judge Moran’s stay order on September 29, 1981. Again Colby did not seek discovery. This discovery opportunity closed January 6, 1984, when Judge Parsons stayed action in this suit pending related litigation elsewhere.

A third opportunity for discovery began on April 10, 1987, following the Seventh Circuit’s decision in Colby v. J.C. Penney Co., Inc., 811 F.2d 1119 (7th Cir.1987). This time Colby acted. On October 2,1987, she asked Penney to produce numerous documents which Penney had gathered in its other suits. Penney responded on November 2, 1987, that it objected to part of Colby’s request. Four days later, counsel for the parties purportedly discussed the request, and on January 6, 1988, Penney produced some, but not all, of the requested documents.

Colby’s counsel states that six days later he wrote to Penney’s attorneys, telling them that he was looking forward to seeing more documents. According to Colby’s counsel, those documents never came. Nevertheless, Colby and her attorneys waited throughout 1988, and never once asked this court to compel production of the desired materials under Rule 37, Fed.R. Civ.P. Colby and her attorneys also did not seek depositions, file interrogatories, or request admissions from Penney throughout that year.

Colby’s third (and in retrospect, last) opportunity for discovery closed January 31, 1989. On that date this court entered summary judgment in favor of Penney on all of Colby’s claims. See Colby v. J.C. Penney Co., Inc., 705 F.Supp. 425 (N.D.Ill.1989). The court granted summary judgment based on Penney’s ability to prove that it had a legitimate business justification for adopting its so-called “head of household” rule for allocating medical and dental benefits. This legitimate business justification defeated Colby’s claims that Penney’s rule violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (1982). See Colby, 705 F.Supp. at 432-33.

Key to this court’s January decision were the facts contained in ¶¶[ 28-29 of an affidavit by R.T. Messinger. Colby rightly noted that Penney did not properly put forth these sections of Messinger’s affidavit in support of its motion for summary judgment. Colby thus moved for reconsideration of the court’s judgment, and the court granted Colby’s motion on September 6, 1989. At the same time the court stated that

it has considered ¶¶ 28-29 of Messinger’s Affidavit, and has determined that they support Penney’s defenses under the Bennett Amendment [to Title VII, 42 U.S.C. § 2000e-2(h)]. They also rebut Colby’s claims of disparate impact of the head of household rule upon women, in violation of Title VII. The court will give Colby seven days from the entry of this order to respond to these two paragraphs. Colby shall treat them as if Penney had included them in its Local Rule 12(e) statement. Colby must respond to them under Local Rule 12(m), or otherwise move for a continuance under Rule 56(f), Fed.R.Civ.P.

Colby v. J.C. Penney Company, Inc., 127 F.R.D. 509, 512 (N.D.Ill.1989) (emphasis added).

The clerk of this court docketed the court’s order on September 7, 1989. By its terms and the operation of Rule 6(a), Fed.R.Civ.P., Colby’s response or motion was due on September 18, 1989. Colby filed a motion under Rule 56(f), according to the docket, on September 19, 1989. Colby never moved for an extension of time under Rule 6(b).

Penney has opposed Colby’s motion for a continuance under Rule 56(f). Penney’s first argument is that Colby filed her motion late, and thus the court should disregard it. In response, Colby’s attorney has filed his affidavit, which states that while he drafted Colby’s motion on September 12, he had unexplained problems obtaining the affidavit required under the [249] Rule from Colby before September 18. The attorney believed it would be inefficient to file for a continuance, so he thus intentionally delayed filing his motion until September 19, a day on which this court had set a status hearing for this case.

As has become apparent to this court— one need only read Colby, 705 F.Supp. at 428-29 (decertifying class for ineffectiveness of counsel), and the facts recounted above — dispatch and attentiveness to the rules are not characteristics of Colby’s attorneys. It was Colby’s attorneys themselves who originally suggested that a motion for a continuance under Rule 56(f) would be proper in this proceeding. See Colby, 127 F.R.D. at 511. If Colby’s attorneys believed, prior to September 18, that they had good cause for not filing their motion on time, they should have moved for a continuance under Rule 6(b). Instead, they took it upon themselves to determine what the court needed, and when.

To this day the court cannot determine if Colby’s neglect in timely filing her motion was excusable, and thus something warranting an extension. The court thus believes it is entirely within its power to disregard Colby’s motion for failure to comply with this court’s September 6th order, and will do so. Even if the court lacked the discretion to ignore Colby’s motion, however, Colby still would not be entitled to a continuance under Rule 56(f). That rule provides:

Should it appear from the affidavits of a party opposing the motion [for summary judgment under Rule 56] that the party cannot for reason stated present by affidavit facts essential to justify the party’s opposition, the court may ... order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

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Colby v. J.C. Penney Co., 128 F.R.D. 247, 11 Employee Benefits Cas. (BNA) 2121, 15 Fed. R. Serv. 3d 299, 1989 U.S. Dist. LEXIS 12965, 51 Fair Empl. Prac. Cas. (BNA) 340 (N.D. Ill. 1989).

128 F.R.D. 247 (Colby v. J.C. Penney Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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