Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Turecky v. Boomtown Entertainment, LLC

United States District Court, S.D. Ohio, Western Division

March 30, 2018

Stephanie Turecky, individually, and on behalf of all those similarly situated Plaintiff,
v.
Boomtown Entertainment, LLC, et al., Defendants.

          OPINION AND ORDER

          Hon. Michael R. Barrett United States District Judge.

         This matter is before the Court on Plaintiff's Motion for Summary Judgment against Defendant Frank Capri, individually. (Doc. 29). Despite an opportunity to do so, Defendant never filed an opposition to Plaintiff's Motion for Summary Judgment. Accordingly, Plaintiff's Motion is now ripe for disposition.

         I. BACKGROUND

         On August 12, 2015, Plaintiff filed a complaint alleging that the Defendants in this matter operated a restaurant in Cincinnati known as “Toby Keith's I Love This Bar and Grill, ” and failed to pay more than 50 employees wages for an extended period of time. (Doc. 1). Defendant Frank Capri was one of the Defendants named in the complaint in his individual capacity. Id. Defendant Capri was served with the complaint on January II, 2016 and proof of service was filed with this Court on January 29, 2016. (Doc. 12).

         Defendant Capri filed an answer to Plaintiff's complaint, through counsel, on February 1, 2016 with general denials. (Doc. 16). On March 15, 2015, Plaintiff moved for conditional certification of the proposed opt-in class (Doc. 22), which was granted by this Court on June 29, 2016. (Doc. 27).

         On April 15, 2016, Defendant Capri was served with discovery including requests for admissions, through his counsel. (Doc. 29-1). Pursuant to Rule 36 of the Federal Rules of Civil Procedure, Defendant Capri had 30 days thereafter to deny the requests; otherwise they would be deemed admitted as a matter of law. Plaintiff has alleged, and no contrary evidence has been submitted to the Court, that Defendant Capri failed to respond to Plaintiff's discovery request. (Doc. 29, PageID 127, 133).

         On May 27, 2016, ten days after the expiration of the allotted 30 days, Defendant Capri's counsel was granted leave to withdraw his representation of the Defendant. (Doc. 26). On June 26, 2017, Plaintiff filed the instant Plaintiff's Motion for Summary Judgment against Defendant Capri in his individual capacity, which was served upon the Defendant. (Doc. 29). As of the date of this Court's opinion, Defendant Capri has neither responded to this summary judgment motion, the Plaintiff's discovery requests, nor filed motion with this Court to request an extension of time to do so.

         II. LEGAL STANDARD

         Federal Rule of Civil Procedure 56(a) provides that summary judgment is proper “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. The moving party has the burden of showing an absence of evidence to support the non-moving party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has met its burden of production, the non-moving party cannot rest on his pleadings, but must present significant probative evidence in support of his complaint to defeat the motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).

         Even where a party “offer[s] no timely response to [a] motion for summary judgment, the District court [may] not use that as a reason for granting summary judgment without first examining all the materials properly before it under Rule 56(c).” Smith v. Hudson, 600 F.2d 60, 65 (6th Cir. 1979). This is so because “[a] party is never required to respond to a motion for summary judgment in order to prevail since the burden of establishing the nonexistence of a material factual dispute always rests with the movant.” Id. at 64. Therefore, even where a motion for summary judgment is unopposed a district court must review carefully the portions of the record submitted by the moving party to determine whether a genuine dispute of material fact exists. F.T.C. v. E.M.A. Nationwide, Inc., 767 F.3d 611, 629 (6th Cir. 2014).

         III. ANALYSIS

         Plaintiff contends in her Motion that because the Defendant failed to timely respond to the Plaintiff's Requests for Admissions, contained in Plaintiff's First Set of Written Discovery Requests to Defendant Frank Capri, as required by Rule 36 of the Federal Rules of Civil Procedure, those facts are deemed admitted pursuant to Rule 36(b), and no genuine issues of material fact exist. The Plaintiff argues that she is therefore entitled to summary judgment.

(a) Scope and Procedure.

(1) Scope. A party may serve on any other party a written request to admit, for purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1) relating to:

(A) Facts, the application of law to fact, or opinions about either; and

(B) The genuineness of any described documents. …

(3) Time to Respond; Effect of Not Responding. A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney. A shorter or longer time for responding may be stipulated to under Rule 29 or be ordered by the court. …

(b) Effect of an Admission; Withdrawing or Amending It. A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended.”

         Applying the principles of the above rule to the undisputed facts of this case yields the following results. The Plaintiff's First Set of Written Discovery Requests to Defendant Frank Capri was served on the Defendant on April 15, 2016. The court file contains no indication that the Defendant served a response to the requests. The Plaintiff requested that the Defendant admit the following relevant statements, among others:

1. Capri was an officer of, owned, and exercised control over Defendants. (Doc. 29-1, PageID 141-142).
2. Capri is an employer as the term is defined in 29 U.S.C. § 203(d) with respect to the employees of Defendants. (Doc. 29-1, PageID 142).
3. Plaintiff and the proposed class performed work at the restaurant from June 29, 2015 through the restaurant's closure. (Doc. 29-1, PageID 144-145).
4. Capri agreed to pay Plaintiff and that Plaintiff was not paid for her hours worked at Toby Keith's I Love This Bar and Grill from June 29, 2015 to the closure of the restaurant. (Doc. 29-1, PageID 145).
5. Capri did not pay members of the class for work performed from June 29, 2015 through the closure of Toby Keith's I Love This Bar and Grill. (Doc. 29-1, PageID 145).
6. Capri benefited from the work of Plaintiff and other members of the proposed Class performed during the pay period from June 29, 2015 through the restaurant's ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.