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RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0294P (6th Cir.)

File Name: 03a0294p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

ROVEAIL MCKINNIE, et al.,

Plaintiffs-Appellants,

v.

ROADWAY EXPRESS, INC.,

Defendant-Appellee.

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No. 02-3058

Appeal from the United States District Court

for the Northern District of Ohio at Akron.

No. 01-00901—James Gwin, District Judge.

Argued: July 31, 2003

Decided and Filed: August 18, 2003 

Before: KENNEDY, GILMAN, and GIBBONS, Circuit

Judges.

_________________

COUNSEL

ARGUED: Joseph K. Grant, SAFFOLD, GRANT &

MASON, Cleveland, Ohio, for Appellants. Jeremy R. Sayre,

BAKER & HOSTETLER, Cleveland, Ohio, for Appellee.

ON BRIEF: Joseph K. Grant, SAFFOLD, GRANT &

MASON, Cleveland, Ohio, for Appellants. Jeremy R. Sayre,

2 McKinnie, et al. v.

Roadway Express, Inc.

No. 02-3058

Charles J. French III, BAKER & HOSTETLER, Cleveland,

Ohio, for Appellee.

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OPINION

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KENNEDY, Circuit Judge. Plaintiffs appeal the district

court’s grant of summary judgment in favor of Roadway

Express, Inc., entered after Plaintiffs failed to oppose the

motion. Finding Plaintiffs’ failure is not excused, we

AFFIRM the judgment of the district court.

I.

On April 13, 2001, Roveail McKinnie, Derryl Matthews,

Dwayne Lopp, Anthony Brunson, and Henry Baddley filed

suit against Roadway Express claiming racial discrimination

in violation of Title VII of the Civil Rights Act of 1964 and

intentional infliction of severe emotional distress. McKinnie

additionally claimed that Roadway racially harassed him,

retaliated against him for exercising his rights under Title VII,

discriminated against him and failed to accommodate his

disability in violation of the Americans with Disabilities Act.

On May 7, 2001, the district court ordered that the case be

entered into the court’s electronic filing system, and that all

further documents, notices, and orders be filed electronically.

The electronic filing system permits counsel to submit and

access documents electronically, and informs counsel of

filings by email.

On September 7, 2001, Plaintiffs’ counsel filed a motion

for leave for mandatory withdrawal, which the district court

granted on September 13, 2001. On that same day, the

district court ordered that dispositive motions be filed by

October 17, 2001, with responses due on October 31 and
No. 02-3058 McKinnie, et al. v.

Roadway Express, Inc.

3

1

The district court had referred the case to mediation on June 13,

2001, apparently through the district court’s mediation program. On

August 31, 2001, the ADR administrator reported that a mediation

conference was held on August 28, 2001 and the mediation process was

complete. The case was returned to chambers for further settlement

negotiations and case processing.

reply briefs due on November 7. The trial was tentatively

scheduled to start December 17, 2001.

On October 16, 2001, the day before dispositive motions

were due, the district court received a letter from McKinnie

advising the court that Plaintiffs had not been able to retain

replacement counsel and asking that Plaintiffs’ claims be

remanded to theEqualEmployment Opportunity Commission

(EEOC) for mediation. The district court did not grant

Plaintiffs’ request for a remand.1 On that same day, the

district court extended the deadline for filing dispositive

motions to October 22, 2001, with responses due on

November 5 and reply briefs due on November 13.

On October 22, 2001, Roadway filed a motion for summary

judgment, which drew support from deposition testimony

given by each of the Plaintiffs and affidavits of Roadway

personnel. Roadway certified that its motion was filed

electronically, that notice of the filing was to be sent

electronically to all parties by operation of the district court’s

electronic filing system, and that all parties could access the

filing through the court’s system.

On November 26, 2001, McKinnie, proceeding pro se, filed

a motion to stay the case. The district court denied the

motion on November 30 and ordered Plaintiffs to respond to

Roadway’s summary judgment motion by December 5 and

encouraged the parties to mediate their dispute. Plaintiffs do

not deny their timely receipt of the court’s November 30

order, yet they failed to respond by December 5 either on the

merits of Roadway’s motion or by requesting an extension of

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Roadway Express, Inc.

No. 02-3058

time. On December 11, 2001, the district court granted

Roadway’s summary judgment motion in a seventeen-page

opinion dealing with each Plaintiff’s claims. 

Roadway filed a motion for costs on December 21, 2001.

On January 11, 2002, present counsel filed an appearance. At

the costs hearing before the magistrate judge, present counsel

opposed the motion on the grounds that Plaintiffs could not

afford to pay costs because most of them were unemployed

and an award of costs would discourage Plaintiffs from filing

future civil rights litigation. Plaintiffs again made no

argument about not having had adequate time to respond to

Roadway’s motion for summary judgment. On January 31,

2002, the magistrate judge recommended that the district

court grant the motion for costs, which the district court did

on February 21, 2002.

With the assistance of counsel, Plaintiffs filed a notice of

appeal on January 11, 2002, which was followed, on

January 18, by a motion for extension of time to file a notice

of appeal. The district court granted the extension on January

22, 2002, and this appeal followed. No appeal was filed from

the award of costs.

II.

Plaintiffs contend that the district court’s grant of summary

judgment in favor of Roadway should be reversed because

Roadway failed to serve its summary judgment motion in

conformity with Federal Civil Procedure Rule 5(b). Plaintiffs

also contend that the district court should have given them

notice as to the requirements of Federal Civil Procedure Rule

56(e), as well as the consequences of failing to oppose

Roadway’s summary judgment motion. This Court reviews

de novo the district court’s disposition of a motion for

summary judgment. Mulhall v. Ashcroft, 287 F.3d 543, 550

(6th Cir. 2002). Summary judgment is appropriate where

there is no genuine issue as to any material fact and the
No. 02-3058 McKinnie, et al. v.

Roadway Express, Inc.

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Roadway argues that this Court should not reach the merits of this

claim because the issue of inadequate service was never presented to the

district court. Plaintiffs did not raise the issue in a Rule 59 motion to alter

or amend or in a Rule 60(b) motion for relief from judgment, nor did they

raise the issue in their opposition to Roadway’s motion for costs.

Roadway, however, does not point to any precedent dismissing an appeal

such as this on the ground that the claim was never presented to the

district court. 

moving party is entitled to judgment as a matter of law. Fed.

R. Civ. P. 56(c). Material facts are those facts defined by the

substantive law and that are necessary to apply it. Anderson

v. Liberty Lobby, 477 U.S. 242, 248 (1986). While a court

must draw all inferences in a light most favorable to the nonmoving party, it may grant summary judgment if the record,

taken as a whole, could not lead a rational trier of fact to find

for that party. Matusushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986). 

A.

Plaintiffs contend that the district court’s grant of summary

judgment in favor of Roadway should be reversed because

Roadway failed to serve its summary judgment motion in

conformance with Federal Civil Procedure Rule 5(b).

Roadway argues that even if Plaintiffs were not served in

accordance with Rule 5(b), the district court’s decision must

be affirmed because Plaintiffs have failed to present any

evidence that Roadway is not entitled to summary judgment.2

Plaintiffs’ counsel consented to participation in the district

court’s electronic filing system. Electronic service, however,

was inadequate once Plaintiffs’ counsel withdrew. Thus,

Roadway’s summary judgment motion was not served on

Plaintiffs in conformity with Rule 5(b).

The violation of Rule 5(b), however, does not provide a

sufficient basis to reverse the district court’s summary

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Roadway Express, Inc.

No. 02-3058

judgment because Plaintiffs had actual notice that the

summary judgment motion had been filed. In their appellate

brief, Plaintiffs admit that they learned that “Roadway had

filed for summary judgment sometime in December, after

they had received the district court’s Order dated

November 30, 2001, informing the Appellants that they must

respond to Roadway’s motion.” In three unreported cases

where a non-moving party has attempted to excuse his or her

failure to oppose a summary judgment motion on the ground

that the non-moving party did not receive a copy of the

motion, the Sixth Circuit has affirmed a district court’s grant

of summary judgment when the non-moving party has failed

to demonstrate on appeal that the existence of a genuine issue

of material fact precluded summary judgment. See L’Bert v.

West, 2001 WL 11450734 (6th Cir. Oct. 30, 2001)

(unpublished) (affirming summary judgment in favor of

defendant even though plaintiff claimed to have not received

notice of motion because nothing in the record established the

existence of genuine issue of material fact); Shy v. Bhatt,

1990 WL 115854 (6th Cir. Aug. 9, 1990) (unpublished)

(affirming summary judgment in favor of defendant prison

officials even though pro se prisoner claimed to have never

received motion because plaintiff had not raised any argument

on appeal establishing the existence of a genuine issue of

material fact); Person v. Norris, 1990 WL 75250 (6th Cir.

June 6, 1990) (unpublished) (affirming summary judgment

against pro se prisoner even though prisoner claimed to have

not received notice of motion because prisoner had not

demonstrated that he could have produced any evidence that

would have required the district court to change its decision

on the merits).

If reversal is not appropriate when the complaining party

did not receive a properly served motion and ostensibly did

not have actual knowledge that the motion was pending,

reversal can hardly be appropriate when a party has actual

knowledge of a pending motion despite legally inadequate

service. Consequently, we hold that when a party is not
No. 02-3058 McKinnie, et al. v.

Roadway Express, Inc.

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properly served but nonetheless has actual notice of a

summary judgment motion prior to its disposition, the district

court’ssummaryjudgment decision should be affirmed unless

the party who failed to oppose the motion demonstrates on

appeal that the existence of a genuine issue of material fact

precludes summary judgment as a matter of law. Because

Plaintiffs had actual notice of Roadway’s pending summary

judgment motion and Plaintiffs have not demonstrated on

appeal that a genuine issue of material fact existed for trial,

we affirm the district court’s grant of summary judgment to

Roadway for the reasons stated in its order filed December

11, 2001.

B.

Plaintiffs also contend that the district court should have

given them notice as to the requirements of Federal Civil

Procedure Rule 56(e), as well as the consequences of failing

to oppose Roadway’s summary judgment motion. Ordinary

civil litigants proceeding pro se, however, are not entitled to

special treatment, including assistance in regards to

responding to depositive motions. Brock v. Hendershott, 840

F.2d 339, 343 (6th Cir. 1988). “A panel of this Court cannot

overrule the decision of another panel. The prior decision

remains controlling authority unless an inconsistent decision

of the United States Supreme Court requires modification of

the decision or this Court sitting en banc overrules the prior

decision.” Salmi v. Sec’y of Health & Human Servs., 774

F.2d 685, 689 (6th Cir. 1985); see also 6th Cir. Rule 206(c)

(stating that a published panel opinion is binding on all

subsequent panels). Thus, the district court did not have to

notify Plaintiffs of the requirements of Rule 56(e) or inform

Plaintiffs of the consequences of failing to oppose Roadway’s

summary judgment motion.

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Roadway Express, Inc.

No. 02-3058

III.

Because Plaintiffs had actual notice of Roadway’s pending

summary judgment motion and Plaintiffs have not

demonstrated on appeal that a genuine issue of material fact

existed for trial, we affirm the district court’s grant of

summary judgment to Roadway. We further hold they did

not have to notify Plaintiffs of the requirements of Rule 56(e)

or inform Plaintiffs of the consequences of failing to oppose

Roadway’s summary judgment motion.