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Peck v. Naes Corp.

United States District Court, D. Columbia.

October 1, 2014

JASON PECK, and ROMEO NOLASCO, Plaintiffs,
v.
NAES CORPORATION, Defendant

For NAES CORPORATION, Defendant: Richard J. DeFortuna , LEAD ATTORNEY, PAISNER-LITVIN, LLP, Bala Cynwyd, PA.

Page 443

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge.

On February 8, 2012, plaintiffs Jason Peck and Romeo Nolasco filed this action, which alleges that defendant NAES Corporation, their employer, discriminated against them based on their race, subjected them to a hostile work environment, and retaliated against them for engaging in protected activity, in violation of the District of Columbia Human Rights Act, D.C. Code § § 2.1401.01 et seq. Compl. [Dkt. # 1] at 1; Am. Compl. [Dkt. # 3] at 1. Plaintiffs amended their complaint on February 21, 2012. Am. Compl. Plaintiff Peck is white and claims that he was subjected to " reverse" discrimination. Id. ¶ ¶ 82-83. Plaintiff Nolasco is Latino. Id. ¶ 81. Defendant contends that plaintiffs have failed to establish a prima facie case of race discrimination or retaliation, and that plaintiffs have failed to establish the existence of a hostile working environment. Def.'s Mot. for Summ. J. [Dkt. # 31] at 1 (" Def.'s Mot." ).

Defendant answered the amended complaint on March 9, 2012, Answer [Dkt. # 4], and the Court referred the dispute to a Magistrate Judge for settlement purposes starting on April 12, 2012. April 12, 2012 Order [Dkt. # 8]. The parties' settlement negotiations were unsuccessful, and they embarked on discovery. Then, on May 6, 2013, the parties jointly notified the Court that they wished to resume discussing settlement, 5th Joint Mot. to Modify Scheduling Order [Dkt. # 19] at 2, and so the Court referred the case back to the same Magistrate Judge. May 7, 2013 Order [Dkt. # 20]. Again, the parties were unable to reach a settlement agreement, and defendant filed a motion for summary judgment on May 22, 2014. Def.'s Mot.

On June 11, 2014, plaintiffs' counsel filed a motion for leave to withdraw their appearances as counsel on the grounds that " [p]laintiffs ha[d] failed to meet their contractual payment obligations, and failed to make payment of any kind in more than 14

Page 444

months." Mot. for Leave to Withdraw [Dkt. # 32] ¶ 3. The Court denied counsel's motion without prejudice because it did not comport with all of the requirements of Local Rule 83.6(c), June 12, 2014 Minute Order, and counsel filed a revised motion to withdraw on June 12, 2014. [Dkt. # 34]. The revised motion included the notice required by Local Rule 83.6(c), which informed plaintiffs that they should obtain other counsel, or notify the Court within seven days of service of the motion if they intended to conduct their case pro se or to object to counsel's withdrawal. [Dkt. # 34-1]. Plaintiffs neither informed the Court of an intent to proceed pro se, nor objected to counsel's motion to withdraw within seven days of service of the motion, or at any time thereafter.

On July 2, 2014, the Court issued a minute order granting counsel's motion to withdraw and instructing plaintiffs that " if new counsel has not entered an appearance on behalf of plaintiffs by July 18, 2014, plaintiffs must file a notice informing the Court of whether or not they intend to proceed pro se, and if not, of the status of their efforts to obtain counsel." July 2, 2014 Minute Order. Plaintiffs have not responded to the Court's minute order and no new counsel has entered an appearance on their behalf. The Court's minute order also granted in part a motion for extension of time filed by plaintiffs' counsel on June 11, 2014, see [Dkt. # 33], giving plaintiffs until August 15, 2014 to file an opposition to defendant's motion for summary judgment. July 2, 2014 Minute Order.

On July 23, 2014, the Court issued an Order to Show Cause that instructed plaintiffs to show cause why this case should not be dismissed for want of prosecution by August 14, 2014. [Dkt. # 35]. Plaintiffs have not responded to that order. In addition, plaintiffs did not file an opposition to defendant's motion for summary judgment by the August 15, 2014 deadline, or at any time thereafter.

On September 9, 2014, the Court notified the pro se plaintiffs that the Court " may grant [defendant's] motion and dismiss the case if [they] fail[ed] to respond." Fox/Neal Order [Dkt. # 36] at 1, citing Fox v. Strickland, 837 F.2d 507, 509, 267 U.S.App.D.C. 84 (D.C. Cir. 1988) (holding that a district court must take pains to advise a pro se party of the consequences of failing to respond to a dispositive motion and that the notice " should include an explanation that the failure to respond . . . may result in the district court granting the motion and dismissing the case" ); id. at 3. The Court also directed plaintiff to Federal Rule of Civil Procedure 56 and set forth those portions of the rule related to supporting factual positions at summary judgment. Id. at 2, quoting Fed.R.Civ.P. 56(c), (e). The Court explained that " parties such as plaintiffs, who are on the opposing side of a motion for summary judgment, must rebut the moving party's affidavits with evidence, such as other affidavits or sworn statements; mere statements that the moving party's affidavits are inaccurate or incorrect are not sufficient." Id. The Court gave plaintiffs until September 30, 2014 to respond. Id. at 3. As of October 1, 2014, plaintiffs have not responded to defendant's motion for summary judgment.

STANDARD OF REVIEW

Summary judgment is appropriate " 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." Fed.R.Civ.P. 56(a). The party seeking summary judgment bears the " initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, ...


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