       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206             2     McKinnie, et al. v.                          No. 02-3058
    ELECTRONIC CITATION: 2003 FED App. 0294P (6th Cir.)          Roadway Express, Inc.
                File Name: 03a0294p.06
                                                           Charles J. French III, BAKER & HOSTETLER, Cleveland,
                                                           Ohio, for Appellee.
UNITED STATES COURT OF APPEALS
                                                                               _________________
              FOR THE SIXTH CIRCUIT
                _________________                                                  OPINION
                                                                               _________________
 ROVEAIL MCKINNIE, et al.,       X
        Plaintiffs-Appellants, -                             KENNEDY, Circuit Judge. Plaintiffs appeal the district
                                  -                        court’s grant of summary judgment in favor of Roadway
                                  -  No. 02-3058           Express, Inc., entered after Plaintiffs failed to oppose the
          v.                      -                        motion. Finding Plaintiffs’ failure is not excused, we
                                   >                       AFFIRM the judgment of the district court.
                                  ,
 ROADWAY EXPRESS , INC.,          -
         Defendant-Appellee. -                                                            I.
                                N                            On April 13, 2001, Roveail McKinnie, Derryl Matthews,
     Appeal from the United States District Court          Dwayne Lopp, Anthony Brunson, and Henry Baddley filed
      for the Northern District of Ohio at Akron.          suit against Roadway Express claiming racial discrimination
      No. 01-00901—James Gwin, District Judge.             in violation of Title VII of the Civil Rights Act of 1964 and
                                                           intentional infliction of severe emotional distress. McKinnie
                 Argued: July 31, 2003                     additionally claimed that Roadway racially harassed him,
                                                           retaliated against him for exercising his rights under Title VII,
          Decided and Filed: August 18, 2003               discriminated against him and failed to accommodate his
                                                           disability in violation of the Americans with Disabilities Act.
 Before: KENNEDY, GILMAN, and GIBBONS, Circuit
                    Judges.                                   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
                       COUNSEL                             access documents electronically, and informs counsel of
                                                           filings by email.
ARGUED: Joseph K. Grant, SAFFOLD, GRANT &
MASON, Cleveland, Ohio, for Appellants. Jeremy R. Sayre,     On September 7, 2001, Plaintiffs’ counsel filed a motion
BAKER & HOSTETLER, Cleveland, Ohio, for Appellee.          for leave for mandatory withdrawal, which the district court
ON BRIEF: Joseph K. Grant, SAFFOLD, GRANT &                granted on September 13, 2001. On that same day, the
MASON, Cleveland, Ohio, for Appellants. Jeremy R. Sayre,   district court ordered that dispositive motions be filed by
                                                           October 17, 2001, with responses due on October 31 and

                            1
No. 02-3058                            McKinnie, et al. v.          3    4    McKinnie, et al. v.                         No. 02-3058
                                    Roadway Express, Inc.                     Roadway Express, Inc.

reply briefs due on November 7. The trial was tentatively                time. On December 11, 2001, the district court granted
scheduled to start December 17, 2001.                                    Roadway’s summary judgment motion in a seventeen-page
                                                                         opinion dealing with each Plaintiff’s claims.
  On October 16, 2001, the day before dispositive motions
were due, the district court received a letter from McKinnie               Roadway filed a motion for costs on December 21, 2001.
advising the court that Plaintiffs had not been able to retain           On January 11, 2002, present counsel filed an appearance. At
replacement counsel and asking that Plaintiffs’ claims be                the costs hearing before the magistrate judge, present counsel
remanded to the Equal Employment Opportunity Commission                  opposed the motion on the grounds that Plaintiffs could not
(EEOC) for mediation. The district court did not grant                   afford to pay costs because most of them were unemployed
Plaintiffs’ request for a remand.1 On that same day, the                 and an award of costs would discourage Plaintiffs from filing
district court extended the deadline for filing dispositive              future civil rights litigation. Plaintiffs again made no
motions to October 22, 2001, with responses due on                       argument about not having had adequate time to respond to
November 5 and reply briefs due on November 13.                          Roadway’s motion for summary judgment. On January 31,
                                                                         2002, the magistrate judge recommended that the district
   On October 22, 2001, Roadway filed a motion for summary               court grant the motion for costs, which the district court did
judgment, which drew support from deposition testimony                   on February 21, 2002.
given by each of the Plaintiffs and affidavits of Roadway
personnel. Roadway certified that its motion was filed                     With the assistance of counsel, Plaintiffs filed a notice of
electronically, that notice of the filing was to be sent                 appeal on January 11, 2002, which was followed, on
electronically to all parties by operation of the district court’s       January 18, by a motion for extension of time to file a notice
electronic filing system, and that all parties could access the          of appeal. The district court granted the extension on January
filing through the court’s system.                                       22, 2002, and this appeal followed. No appeal was filed from
                                                                         the award of costs.
  On November 26, 2001, McKinnie, proceeding pro se, filed
a motion to stay the case. The district court denied the                                               II.
motion on November 30 and ordered Plaintiffs to respond to
Roadway’s summary judgment motion by December 5 and                        Plaintiffs contend that the district court’s grant of summary
encouraged the parties to mediate their dispute. Plaintiffs do           judgment in favor of Roadway should be reversed because
not deny their timely receipt of the court’s November 30                 Roadway failed to serve its summary judgment motion in
order, yet they failed to respond by December 5 either on the            conformity with Federal Civil Procedure Rule 5(b). Plaintiffs
merits of Roadway’s motion or by requesting an extension of              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
    1
     The district court had referred the case to mediation on June 13,   Roadway’s summary judgment motion. This Court reviews
2001, apparently through the district court’s mediation program. On      de novo the district court’s disposition of a motion for
August 31, 2001, the ADR administrator reported that a mediation         summary judgment. Mulhall v. Ashcroft, 287 F.3d 543, 550
conference was held on August 28, 2001 and the mediation process was     (6th Cir. 2002). Summary judgment is appropriate where
complete. The case was returned to chambers for further settlement       there is no genuine issue as to any material fact and the
negotiations and case processing.
No. 02-3058                                  McKinnie, et al. v.             5    6    McKinnie, et al. v.                         No. 02-3058
                                          Roadway Express, Inc.                        Roadway Express, Inc.

moving party is entitled to judgment as a matter of law. Fed.                     judgment because Plaintiffs had actual notice that the
R. Civ. P. 56(c). Material facts are those facts defined by the                   summary judgment motion had been filed. In their appellate
substantive law and that are necessary to apply it. Anderson                      brief, Plaintiffs admit that they learned that “Roadway had
v. Liberty Lobby, 477 U.S. 242, 248 (1986). While a court                         filed for summary judgment sometime in December, after
must draw all inferences in a light most favorable to the non-                    they had received the district court’s Order dated
moving party, it may grant summary judgment if the record,                        November 30, 2001, informing the Appellants that they must
taken as a whole, could not lead a rational trier of fact to find                 respond to Roadway’s motion.” In three unreported cases
for that party. Matusushita Elec. Indus. Co. v. Zenith Radio                      where a non-moving party has attempted to excuse his or her
Corp., 475 U.S. 574, 587 (1986).                                                  failure to oppose a summary judgment motion on the ground
                                                                                  that the non-moving party did not receive a copy of the
                                     A.                                           motion, the Sixth Circuit has affirmed a district court’s grant
                                                                                  of summary judgment when the non-moving party has failed
  Plaintiffs contend that the district court’s grant of summary                   to demonstrate on appeal that the existence of a genuine issue
judgment in favor of Roadway should be reversed because                           of material fact precluded summary judgment. See L’Bert v.
Roadway failed to serve its summary judgment motion in                            West, 2001 WL 11450734 (6th Cir. Oct. 30, 2001)
conformance with Federal Civil Procedure Rule 5(b).                               (unpublished) (affirming summary judgment in favor of
Roadway argues that even if Plaintiffs were not served in                         defendant even though plaintiff claimed to have not received
accordance with Rule 5(b), the district court’s decision must                     notice of motion because nothing in the record established the
be affirmed because Plaintiffs have failed to present any                         existence of genuine issue of material fact); Shy v. Bhatt,
evidence that Roadway is not entitled to summary judgment.2                       1990 WL 115854 (6th Cir. Aug. 9, 1990) (unpublished)
                                                                                  (affirming summary judgment in favor of defendant prison
  Plaintiffs’ counsel consented to participation in the district                  officials even though pro se prisoner claimed to have never
court’s electronic filing system. Electronic service, however,                    received motion because plaintiff had not raised any argument
was inadequate once Plaintiffs’ counsel withdrew. Thus,                           on appeal establishing the existence of a genuine issue of
Roadway’s summary judgment motion was not served on                               material fact); Person v. Norris, 1990 WL 75250 (6th Cir.
Plaintiffs in conformity with Rule 5(b).                                          June 6, 1990) (unpublished) (affirming summary judgment
                                                                                  against pro se prisoner even though prisoner claimed to have
  The violation of Rule 5(b), however, does not provide a                         not received notice of motion because prisoner had not
sufficient basis to reverse the district court’s summary                          demonstrated that he could have produced any evidence that
                                                                                  would have required the district court to change its decision
                                                                                  on the merits).
    2
       Roadway argues that this Court should not reach the merits of this
claim because the issue of inadequate service was never presented to the            If reversal is not appropriate when the complaining party
district court. Plaintiffs did not raise the issue in a Rule 59 motion to alter   did not receive a properly served motion and ostensibly did
or amend or in a Ru le 60(b) motion for relief from judgment, nor did they        not have actual knowledge that the motion was pending,
raise the issue in their oppo sition to Road way’s motion for co sts.             reversal can hardly be appropriate when a party has actual
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              knowledge of a pending motion despite legally inadequate
district co urt.                                                                  service. Consequently, we hold that when a party is not
No. 02-3058                           McKinnie, et al. v.    7    8    McKinnie, et al. v.                         No. 02-3058
                                   Roadway Express, Inc.               Roadway Express, Inc.

properly served but nonetheless has actual notice of a                                         III.
summary judgment motion prior to its disposition, the district
court’s summary judgment decision should be affirmed unless         Because Plaintiffs had actual notice of Roadway’s pending
the party who failed to oppose the motion demonstrates on         summary judgment motion and Plaintiffs have not
appeal that the existence of a genuine issue of material fact     demonstrated on appeal that a genuine issue of material fact
precludes summary judgment as a matter of law. Because            existed for trial, we affirm the district court’s grant of
Plaintiffs had actual notice of Roadway’s pending summary         summary judgment to Roadway. We further hold they did
judgment motion and Plaintiffs have not demonstrated on           not have to notify Plaintiffs of the requirements of Rule 56(e)
appeal that a genuine issue of material fact existed for trial,   or inform Plaintiffs of the consequences of failing to oppose
we affirm the district court’s grant of summary judgment to       Roadway’s summary judgment motion.
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.
