Opinion
Civil Action No.: 12-CV-00141
05-08-2012
IRENN H. JOHNSON Plaintiff, v. ORKIN, LLC; ORKIN PEST CONTROL; ORKIN EXTERMINATING, INC Defendant.
Irenn H. Johnson Pro Se
Judge Ruben Castillo
MOTION IN OPPOSITION TO VACATE DEFAULT ENTRY AND TO DISMISS AND TO
COMPEL ARBITRATION AND MOTION FOR FINAL JUDGMENT
COMES NOW, I, Irenn H. Johnson, Plaintiff, and pursuant Rule 55 and Rule 60 of the Federal Rules of Civil Procedure respectfully request the court to deny the Defendant's Motion To Vacate Entry of Default and For Leave To File Motion To Dismiss and To Compel Arbitration on the grounds that without regard to whether or not the default entered by the court constitutes a " default judgment" or "entry of default," the Defendant has not presented a sufficient basis to vacate the default order under Rule 55(c) or Rule 60(b) of the Federal Rules of Civil Procedure. Pursuant Title VII of the Civil Rights Act (as amended), and the Illinois Human Rights Act I hereby request the court to enter a judgment for the total damages as set forth in the complaint and whatever relief the court determines as appropriate.
In support of this motion, I, Irenn H. Johnson, Plaintiff, first being, duly sworn states under the oath the following as true and correct.
UNDISPUTED FACTS
1. On March 7, 2005, I completed an employment application with the Defendant, who has over 500 employees, and was interviewed by Mark Fuss ("Fuss"), Regional Sales Manager and Call Center Manager on March 9. He offered me a position contingent the results of a background check, physical, and drug test. Due to the inherent financial volatile nature of the business, I expressed concerns regarding being terminated or laid off during slow periods. Not only did Fuss state that he had not terminated any employees in 5 1/2 years for these reasons, but went on to say that he had in fact promoted 2 employees. See Exhibit 1. On said date, I completed the pre-employment requirements.
2. On March 15, 2005, Shawn Allen, notified Fuss that the results of my criminal background check was outside company policy. See Exhibit 2. The criminal background investigation indicated that I had been arrested for criminal trespass to land. I was never convicted of this charge.
3. On March 18, 2005, Fuss rescinded the job offer. The reason that he gave me involved hours of availability. On said date, I hand-delivered a written request for my pre-employment records. See Exhibit 3.
4. On April 4,2005,1 was re-offered employment contingent upon physical results. The very next day, I was notified that medical results were completed.
5. On April 21, 2005, I started employment. On said date, Melanie Watkins and Larry Black prohibited me from modifying the arbitration agreement with the threat of termination.
6. On April 25, 2005,1 submitted a written request for my employment records. See Exhibit 4.
7. On June 8, 2005, I submitted a written complaint opposing discrimination and violation of the Illinois Personnel Record Review Act. See Exhibit 5.
8. On August 31, 2005, I was terminated.
9. Between September 1, 2005 and January 8, 2012, all conciliation efforts have failed and applicable administrative remedies were exhausted. See Exhibit 6.
10. On January 9, 2012, I filed a complaint alleging violations of Title VII of the Civil Rights Act (as amended) and the Illinois Human Rights Act in the US District Court Northern District of Illinois.
11. On January 20, 2012, the Defendant received a request for waiver of summons and complaint as evident by certified mail return receipt hereto and marked as Exhibit 7.
12. On March 17, 2012, I unofficially notified the counsel for the Defendant of the pending Status Conference requesting that they advise their "client or former client" accordingly. See Exhibit 8.
13. On March 19, 2012, the Defendant's counsel responded stating that "Orkin was not a proper party to [my] lawsuit" and that they were "not authorized" to accept service of process. See Exhibit 9. On said date, a summons was issued.
14. On March 21, 2012, a copy of the summons and complaint was personally served on Fuss. He scanned the papers and sent them via e-mail to Ms. Meribetth Ehlers ("Enters"), Midwest Division Human Resources Manager Fuss Peel, Para. 6. On the same day, Ehlers had the documents sent to Jefferson Blandford ("Blandford"), Orkin/ Rollins' in-house legal counsel. Blandford made an inquiry as to the delivery of the documents and Ehlers replied to the inquiry Ehlers Decl. para 5. Also on said date, a copy of the summons and complaint were served certified mail to the Defendant's counsel and received on March 27, 2012. See Exhibit 10.
15. On March 22, 2012, the court held a Status Conference where the counsel for the Defendant appeared informally out of "courtesy" stating that they were not authorized to accept service of process.
16. On April 19, 2012, the court entered an Entry of Default.
17. On April 27, 2012, the Defendant moved to vacate default and to dismiss.
POINTS AND AUTHORITIES
18. Rule 55(c) of the Federal Rules of Civil Procedure provides for relief from entries of default, whereas Rule 60(b) provides for relief from judgments by default. See Fed. R. Civ. P. 55(c) and 60(h). Consistent with the traditional equitable powers of courts, Rule 55 provides relief from entries of default for "good cause shown." Fed. R. Civ. P. 55(c). With respect to default judgments, Rule 55(c) provides that "if a judgment by default has been entered, a court may likewise set it aside with Rule 60(b)." Fed. R. Civ. P. 55(c). The "standard to set aside the entry of default under Rule 55(c) is essentially the same as the standard for vacating a default judgment under Rule 60(b)." A motion to set aside a default requires a court to reconcile the goal of permitting the defaulting party an opportunity to contest the merits of the dispute with the practical requirements of judicial administration and the desire not to prejudice a blameless party that has acted diligently Chrysler Credit Corp. v. Macino, 710 F.2d 363, 367 (7th Cir. 1983). Precedent teaches that a party's failure to show good cause for entry of a default alone is sufficient to warrant denial of a motion to vacate. See Zuelzke Tool, 925 F.2d at 230 (collecting Seventh Circuit cases and holding that failure to show good cause for default was sufficient basis to refuse to vacate an entry of default, even if the defendant had a meritorious defense); accord, e.g., Travelodge Hotels. Inc. v. Taurus Hotels Corp., 179 F.R.D. 569, 571 (C.D. Ill. 1998) (citing Jones v. Phipps, 39 F.3d 158. 165 (7th Cir. 1994), and Pretzel & Stouffer. 28 F.3d at 46) (defendant must meet all three requirements necessary to justify relief)). Binding case law has elaborated upon Rule 55(c) by requiring vacatur if the defendant shows (1) good cause for his default; (2) quick action to correct it; and (3) a meritorious defense to the complaint. Pretzel & Stouffer v. Imperial Adjusters, Inc., 28 F.3d 42, 45 (7th Cir. 1994); O'Brien v. R.J. O'Brien & Assocs., 998 F.2d 1394. 1401 (7th Cir. 1993);United States v. Di Mucci, 879 F.2d 1488, 1495 (7th Cir. 1989).The first consideration -- good cause for the defendant's default — may consist of "mistake, inadvertence, surprise, or excusable neglect." Fed. R. Civ. P. 60(b)(l);f2] Tate v. Riverboat Servs., Inc., 305 F. Supp. 2d 916. 919 (N.D. Ind. 2004). The second consideration — quick action to correct — looks at the time that passed between entry of default and the defendant's motion, yet it ultimately turns on the particular situation presented. See Jones v. Phipps, 39 F.3d 158, 165 (7th Cir. 1994). Factors that define such a situation are the litigant's reason for delay, his ability to learn about the grounds for judgment earlier, and the extent of prejudice suffered by the party seeking default Tate, 305 F. Supp. 2d at 923 (relying upon Kagan v. Caterpillar Tractor Co., 795 F.2d 601. 610 (7th Cir. 1986)). Finally, the third consideration — the existence of a meritorious defense — does not necessarily require a winning defense but instead calls for "one which at least raises a serious question regarding the propriety of a default judgment and which is supported by a developed legal and factual basis." Jones, 39 F.3d at 165, In other words, a general denial or a bare legal conclusion that a defense exists will not suffice. See Pretzel & Stouffer, 28 F.3d at 46 .
19. The Federal Rules of Civil Procedure contemplate that any challenge to the court's jurisdiction will be brought at a prejudgment stage by way of a Rule 12(b)(2) or 12(b)(5) motion to dismiss. Where the jurisdictional predicates are so challenged, it is settled that the plaintiff has the burden of establishing the jurisdictional facts. See, e.g., RAR. Inc. v. Turner Diesel. 107 F.3d 1272. 1276 (7th Cir. 1997). However, in a situation where a party seeks to vacate a default on jurisdictional grounds, the Seventh Circuit has imposed the burden of proof on the movant, usually the defendant, to establish the nonexistence of the court's jurisdiction. See Bally Expert Corp. v. Balicar, Ltd., 804 F.2d 398, 401 (7th Cir. 1986). The fact that the defendant had notice of the original proceedings but chose not to contest the jurisdictional issue until after entry of default judgment was significant to the Bally Expert court. Id. at 401.
20. [The] lack of communication between attorney and client was not a basis for showing of good cause C.K.S. Engineers. Inc. v. White Mountain Gypsum Co., 726 F.2d 1202, 1207 (7th Cir. 1984).
21. It is held that "routine back-office problems ... do not rank high in the list of excuses for default..." Connecticut National Mortgage Co. v. Brandstatter, 897 F.2d 883. 884-85 (7th Cir.1990).
ANALYSIS
22. The Defendant's proffered reason to vacate the entry of default is not credible and the meritorious defense fails.
a. First, the Defendant suggests that Ehlers and Fuss, both whom by virtue of their education and experience hold titles and positions where effective communication has been proven, failed to accurately communicate how the summons and complaint were received. Their declarations are unworthy of belief.
b. Secondly, the Defendant failed to assert that the inadvertence or miscommunication between
Ehlers, Fuss, and Blanchard were the direct and proximate cause of the Defendants failure to timely respond or otherwise file a pleading.
c. Lastly, the defendant had actual knowledge of the court proceedings as evident by the informal appearance of counsel at the Status Hearing and receipt of the summons and complaint served certified mail to the counsel on March 21, 2012 and received on March 27, 2012.
23. The Defendant lacks a meritorious defense because this issue is not subject to the Dispute Resolution Policy. Sec. 11(A) defines the term "dispute" and states in pertinent part, [t]he term "dispute" excludes statutory claims that are subject to the exclusive jurisdiction of a state or federal agency.... See Defendant's Exhibit F. The Illinois Supreme Court has held that courts have no jurisdiction to hear independent actions for civil rights violations. The legislature intended by the Act to avoid direct access to the courts for the redress of civil rights violations Mein v. Masonite Corp., 109 Ill.2d 1, 7, 92 Ill.Dec. 501, 485 N.E.2d 312 (1985). Illinois courts, and hence, federal courts, consistently find that cases based upon state common-law claims "inextricably linked" to civil-rights violations are subject to the Act and thus, Illinois circuit courts do not have original jurisdiction over such claims. The administrative process under the Act must be completed before a circuit court can exercise jurisdiction over these types of claims. See, e.g., Ouantock v. Shared Mktg. Servs., Inc., 312 F.3d 899. 905 (7th Cir.2002): Talley v. Wash. Inventory Serv., 37 F.3d 310 (7th Cir.1994): Nanda v. Bd. of Trustees, 219 F.Supp.2d 911. 916 (N.D. Ill. 2001): Johnson v. Baxter Healthcare Corp., 907 F. Supp. 271 (N.D. Ill. 1995); Geise v. Phoenix Co. of Chicago, Inc., 159 Ill. 2d 507. 203 Ill. Dec. 454, 639 N.E.2d 1273 (1994): Welch v. Ill. Sup.Ct., 322 Ill.App.3d 345. 256 Ill.Dec. 350, 751 N.E.2d 1187 (2001). Because complaints alleging violations of Title VII and Illinois Human Rights must first be filed with the EEOC and the Illinois Department of Human Rights respectively, this claim is therefore not a dispute as defined and therefore excluded from mandatory arbitration.
24. Given that the Defendant's declarations are unworthy of belief, it failed to assert how inadvertence prevented a timely filed pleading pursuant Rule 12, and it had actual knowledge of litigation, it therefore failed to show good cause. Furthermore, seeing that it has no valid meritorious defense and it willfully chose not to conduct its litigation with the degree of diligence and expediency, Seventh Circuit precedent has repeatedly upheld the trial court's denial of a motion to vacate a default.
25. Because the Defendant failed to justify vacating the entry of default, it is appropriate to promptly endeavor to determine the amount of applicable damages.
DAMAGES
26. "Title VII makes it unlawful for any employer to discriminate against an employee for opposing a practice made unlawful by the Act." Fine v. Ryan Intern. Airlines, 305 F.3d 746, 751 (7th Cir. 2002) (citing 42 U.S.C. § 2000e-3(a)l.
27. Pursuant to the damages limitation (damages cap) imposed by 42 U.S.C. § 1981a(b)(3), the Civil Rights Act of 1991. Under the damages cap, the sum of compensatory and punitive damages is limited based on the number of persons employed by the employer. Damages are capped at $200,000 for employers with between 200 and 500 employees, and at $300,000 for employers with more than 500 employees. 42 U.S.C. § 1981a(b)(3)(C) and (D). The County asserted that the number of employees should be determined at the time damages were awarded.
28. Section 1981a(b)(1) provides, "A complaining party may recover punitive damages under this section against a respondent... if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual." 42 U.S.C. § 1981a(b)(1). The terms "malice" and "reckless indifference" refer to the employer's knowledge that it may be violating federal law. Cooke v. Stefani Management Services, Inc., 250 F.3d 564. 568 (7th Cir. 2001); Kolstad, 527 U.S. at 535. In Kolstad v. American Dental Ass'n, 527 U.S. 526 (1999). the Supreme Court rejected the requirement that punitive damages be available only in "extraordinarily egregious" cases, and instead found an award proper so long as the employer discriminates "in the face of a perceived risk that its action will violate federal law." Id. at 533, 536.
29. Relief which may be granted in a civil action under subsection (A) if the court finds that a civil rights violation has occurred or is about to occur, the court may award to the plaintiff actual and punitive damages, and may grant as relief, as the court deems appropriate, any permanent or preliminary injunction, temporary restraining order, or other order, including an order enjoining the defendant from engaging in such civil rights violation or ordering such affirmative action as may be appropriate 775 ILCS § 5/10-102(c).
30. The Illinois common law of retaliatory discharge has been preempted in the employment context by the Illinois Human Rights Act, 775 ILCS § 5/1-101, et seq. See Corluka v. Bridgford Foods of Ill., Inc., 671 N.E.2d 814. 817 (Ill. App. Ct 1996). The Illinois Human Rights Act makes it "a civil rights violation for a person, or for two or more persons to conspire, to: [r]etaliate against a person because he has opposed that which he or she reasonably and in good faith believes to be unlawful discrimination, [or] sexual harassment in employment." 775 ILCS § 5/6-10KA).
31. When a violation of the Act has occurred, the complainant should be placed in the position in which he would have been but the discrimination Clark v. Illinois Human Rights Commission, 141 Ill App 3d 178, (1st Dist 1986). The purpose of a damage award is to make the complainant whole.
32. In O'Sullivan v. City of Chicago, the complaint, fairly read, stated five separate claims against the City, the Police Department, and Perry (the Joint Defendants), including (1) a violation of 42 U.S.C. § 1983; (2) a violation of 42 U.S.C. § 1981; (3) a violation of the Illinois Human Rights Act (IHRA), 775 ILCS 5/1-101 et seq.; (4) discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C.2000e; and (5) retaliation in violation of Title VII. (Complaint at ¶¶ 25-29.) It is important to note, however, that although Plaintiffs pleaded a variety of legal claims, all relied upon the same two sets of facts — the discriminatory and retaliatory actions by Perry. The complaint also requested various forms of relief, including a declaratory judgment; an injunction; an order directing that the effects of the alleged practices be eliminated; compensatory damages for lost wages and other lost benefits; compensation for emotional and psychological damage; punitive damages; and costs, including reasonable attorney's fees. (Complaint at ¶¶ A-I.) The jury found for the City on the Plaintiffs' Title VII discrimination claim, but found for the Plaintiffs on their Title VII retaliation claim. As a result of the retaliation verdict, the jury awarded the Plaintiffs compensatory damages in the amounts of $250,000.00 for Lipman, $50,000.00 for O'Sullivan, and $25,000.00 for Roche, for a total of $325,000.00. See 833*833 O'Sullivan v. City of Chicago, 478 F.Supp.2d 1034 (N.D.Ill.2007); O'Sullivan v. City of Chicago, 2007 WL 671040 (N.D.Ill.2007); O'Sullivan v. City of Chicago, 474 F.Supp.2d 971 (N.D.Ill.2007), The City was also enjoined from further retaliation. See O'Sullivan v. City of Chicago. 2007 WL 951941 (N.D.111.2007)
33. In Blount v. Stroud 232 Ill.2d 302 904 N.E.2d 1 (2009). The principal issue on appeal is whether the circuit court had subject matter jurisdiction over plaintiffs claims or, stated differently, whether plaintiffs sole source of redress was through the administrative procedures set forth in the Illinois Human Rights Act (Act) (775 ILCS 5/1-101 (West 2000)). The jury returned a verdict in favor of plaintiff on her retaliation claims, awarding $257,350 in back pay, $25,000 for pain and suffering, and $2,800,000 as punitive damages.
CONCLUSION
34. Because the Defendant has 500 or more employees and engaged in discriminatory practices with malice or with reckless indifference to my federally and state protected rights by initially failing to hire me due to my race and arrest record, maintaining a policy that discriminates against members of a protected class, forcing me to sign an arbitration policy that limited my rights pursuant Title VII of the Civil Rights Act, and retaliating against me for opposing discriminatory conduct, compensatory & punitive damages, back pay, and future pay are therefore appropriate.
35. WHEREFORE I, Irenn Johnson, Plaintiff, request a final judgment order, as set forth in the computation of damages (see Exhibit 11), in the amount of $1,075,595.00 and whatever relief the court determines as appropriate.
______________________
Irenn H. Johnson
Pro Se