Hogrobrooks v. Bally's Olympia L P ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 02-60229
Summary Calendar
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HEATHER PATRICE HOGROBROOKS,
Plaintiff - Appellant,
versus
BALLY’S OLYMPIA L P,
Defendant - Appellee.
___________________________________________________
Appeal from the United States District Court
For the North District of Mississippi
(No. 2:01-CV-22-EMB)
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September 16, 2002
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM*:
Heather Patrice Hogrobrooks (Hogrobrooks) sued Bally’s Olympia
LP (Bally’s) for racial discrimination arising from termination of
her employment with Bally’s as a part-time blackjack dealer, in
violation of both Title VII of the Civil Rights Act of 1964 and 42
U.S.C. § 1981. Hogrobrooks also alleged Bally’s mandatory
Mississippi Gaming Commission filing regarding her termination was
per se defamation, and further alleged Bally’s violated the notice
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
requirements of the Consolidated Omnibus Budget Reconciliation Act
(COBRA). With the consent of both parties, the matter was referred
to a magistrate judge for decision pursuant to 28 U.S.C. §
636(b)(4), Fed. R. Civ. P. 73, and Uniform Local Rule 73.1. The
magistrate judge granted summary judgment in favor of Bally’s on
all issues. Hogrobrooks attempts to appeal the grant of summary
judgment on substantive and procedural grounds, denial of various
discovery rulings, reference to a magistrate judge, and imposition
of sanctions resulting from unexplained tardiness to a court-
ordered settlement conference. After a review of the record, we
affirm.
I. Facts and Procedural History
The undisputed facts underlying the present appeal are as
follows. Hogrobrooks was hired by Bally’s as a part-time blackjack
dealer in June, 2000. On July 23, 2000, Hogrobrooks received a
verbal warning after she was told to pick up a player’s cards but
refused the instruction and talked back to her supervisor. On
September 26, 2000, after further warnings and problems,
Hogrobrooks employment with Bally’s ended with her unfavorable
termination for uncooperative behavior.
Plaintiff brought suit in federal district court and a
magistrate judge was assigned to handle pretrial, non-dispositive
matters. The parties eventually consented to the referral of this
cause for trial by the magistrate judge and it was so ordered by
the district court judge. During the course of the proceedings
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below, the magistrate judge denied several of Hogrobrooks discovery
motions and two motions to vacate the order of reference. The
magistrate judge also sanctioned Hogrobrooks for arriving forty-
five minutes late to a court-ordered settlement conference.
On February 11, 2001, after the deadline for motions in the
case, Bally’s petitioned the court for leave to file a motion for
summary judgment and attached a proposed motion for summary
judgment. On February 17, 2001, prior to a ruling on the motion,
Hogrobrooks mailed correspondence to the magistrate judge informing
the court she would not be responding to Bally’s summary judgment
motion. The magistrate judge thereafter permitted filing of the
summary judgment motion and subsequently granted the motion on
March 7, 20001 with a clerk’s entry date of March 11, 2001.
II. Discussion
Appellant raises a litany of potential issues on appeal but
ultimately only presents two issues with sufficient legal analysis
to warrant consideration by the Court. First, Hogrobrooks argues
the magistrate judge erred procedurally by entering summary
judgment. Second, Hogrobrooks argues the magistrate judge abused
his discretion in sanctioning her for an unexplained tardy
appearance at a court-ordered settlement conference.
A. The Summary Judgment Ruling
Whether the district court correctly implemented the Federal
Rules of Civil Procedure regarding summary judgment is a question
of law that this Court reviews de novo review. Bellaire Gen. Hosp.
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V. Blue Cross Blue Shield of Mich., 97 F.3d 822, 826 (5th Cir.
1996).
Bally’s motion for summary judgment, though included with
Bally’s February 11, 2001 motion for leave to file summary
judgment, was not permitted to be filed until March 1, 2001. The
court granted summary judgment soon afterward on March 7, 2001.
Hogrobrooks believes the court’s rapid ruling robbed her of time to
respond and cites Judwin Properties, Inc. V. United States Fire
Ins. Co., 973 F.2d 432 (5th Cir. 1992) for the proposition that a
district court can enter summary judgment sua sponte, provided the
Court gives ten days notice to the adverse party. Hogrobrooks does
not explain why a case discussing rules for granting summary
judgment sua sponte is relevant to this case, where the court below
had before it a motion for summary judgment.1 Nor does she explain
why the plain language of the Federal Rule should not apply. “The
judgment sought shall be rendered forthwith if the pleadings...show
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Fed.
R. Civ. P. 56(c) (emphasis added).
1
Even were this a sua sponte case, Bally’s has a persuasive
argument that the goal by Judwin was satisfied in this case.
Judwin is premised on the desire to allow parties adverse to a
motion for summary judgment the opportunity to make their case to
the court before a ruling on the motion. Hogrobrooks informed
the court of her intention to not respond to Bally’s summary
judgment motion before the court even granted leave to Bally’s to
file for summary judgment.
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B. Sanctions
The imposition of sanctions by the district court is reviewed
for abuse of discretion. Where the basis for sanctions is
tardiness, the Court looks to counsel’s justification for
tardiness. In re Greene, 213 F.3d 223, 225 (5th Cir. 2000) (“When
an attorney fails to appear or makes a delayed appearance, however,
the conduct which is subject to sanction is not the absence itself
but the failure to provide sufficient justification for the absence
or delay.”)
On January 28, 2002, Hogrobrooks appeared forty-five minutes
late to a court-ordered settlement conference. Bally’s requested
sanctions against the Plaintiff for her tardiness on this occasion,
and noted plaintiff’s previous truancy from her own duly noticed
deposition. In her February 17, 2002 letter to the court,
Hogrobrooks declined to respond to the motion for sanctions. The
magistrate judge granted the motion. Only after sanctions were
imposed did Hogrobrooks file an objection to the order and explain
that her tardiness was based upon a miscalculation of travel times.
The magistrate judge deemed this submission as a “motion to
reconsider” and denied it.
By not objecting to the motion for sanctions, Hogrobrooks
waived her claim on appeal that the magistrate judge abused his
discretion when he initially ordered sanctions. On the related
question of whether the magistrate judge abused his discretion when
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denying the motion to reconsider, Hogrobrooks has failed to provide
any support for her position. Instead, she cited cases discussing
either Rule 11 sanctions or the inherent power of the court to
sanction in the absence of statutory authority. This Court
declines to rule the magistrate judge abused his discretion in
denying Hogrobrooks’ motion in the absence of relevant and
persuasive precedent to the contrary.
III. Conclusion
For the reasons stated, this Court affirms the district
court’s judgment.
AFFIRMED.
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