United States District Court, S.D. Ohio, Western Division
Stephanie Turecky, individually, and on behalf of all those similarly situated Plaintiff,
Boomtown Entertainment, LLC, et al., Defendants.
OPINION AND ORDER
Michael R. Barrett United States District Judge.
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
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.
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).
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).
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.
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).
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).
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.”
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
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
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 ...