Brown Jordan Int'l Inc. v. Carmicle

• Decision Date: 19 October 2015
• Docket Number: CASE NO. 0:14-CV-61415-ROSENBERG/BRANNON,CASE NO. 0:14-CV-60629-ROSENBERG/BRANNON
• Parties: BROWN JORDAN INTERNATIONAL INC., BJI HOLDINGS, LLC, BROWN JORDAN SERVICES & BROWN JORDAN COMPANY, Plaintiffs, v. CHRISTOPHER CARMICLE, Defendant, CHRISTOPHER CARMICLE, Plaintiff, v. BJI HOLDINGS, LLC, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

BROWN JORDAN INTERNATIONAL INC., BJI HOLDINGS, LLC, BROWN

JORDAN SERVICES & BROWN JORDAN COMPANY, Plaintiffs, v. CHRISTOPHER CARMICLE, Defendant,CHRISTOPHER CARMICLE, Plaintiff, v. BJI HOLDINGS, LLC, et al., Defendants.

CASE NO. 0:14-CV-60629-ROSENBERG/BRANNON

CASE NO. 0:14-CV-61415-ROSENBERG/BRANNON

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

October 19, 2015

ORDER GRANTING IN PART AND DENYING IN PART BROWN JORDAN'S MOTION FOR SUMMARY JUDGMENT

This cause is before the Court on Brown Jordan's Motion for Summary Judgment in case 0:14-CV-61415 at docket entry 86. The Motion has been fully briefed. The Court has reviewed the Motion and the court file and is otherwise fully advised in the premises. For the reasons set forth below, the Motion is granted as to Carmicle's wrongful termination claim, Count I, because Carmicle cannot state a claim for wrongful termination. The Motion is granted as to Count II because Brown Jordan's Code of Conduct cannot be construed as a contract. The Motion isgranted as to Count V because there is no evidence to support an essential element of Carmicle's Computer Fraud and Abuse Act claim: that Brown Jordan accessed his computer. The Motion is granted as to Count VI because Carmicle fails to identify the alleged statements, constituting defamation or false light, with sufficient particularity. The Motion is granted as to Counts VIII-X because there is no evidence Carmicle received a direct injury independent of any injury to the corporation. However, the Motion is denied as to Counts III, IV and XI because there is a material dispute of fact as to why Carmicle's employment was terminated.

I. BACKGROUND

Brown Jordan International, Inc. is a corporation owned by BJI Holdings, LLC. DE 71 ¶ 3. Brown Jordan International, Inc. owns and oversees Brown Jordan Company and Brown Jordan Services (all Brown Jordan parties are collectively referred to as "Brown Jordan" when distinction is unnecessary). Id. Christopher Carmicle ("Carmicle") worked for Brown Jordan from at least 2005 until his employment was terminated in February of 2014. Id. ¶¶ 6, 12. At the time his employment was terminated, Carmicle oversaw Brown Jordan Company and Brown Jordan Services. Id. ¶ 1. The crux of the dispute before the Court is whether Carmicle was terminated in retaliation for providing certain disclosures to the Brown Jordan Board of Directors. Those disclosures concerned the alleged wrongdoing of certain Brown Jordan corporate officers.

II. APPLICABLE LAW

Brown Jordan argues that it is entitled to summary judgment as to Count I, a wrongful termination claim, in Carmicle's operative complaint in case 14-61415. Brown Jordan arguesthat Florida law applies to this claim. Carmicle argues that Kentucky law applies. Neither party contests the law applicable to any other claim.¹

As an initial matter, Brown Jordan argues that Carmicle previously agreed to Florida law by virtue of a choice-of-law provision in an employment agreement he signed. The relevant provision reads as follows:

This Agreement shall be governed and construed in accordance with the laws of the State of Florida without regard to conflict of laws principles thereof and all questions concerning the validity and construction hereof shall be determined in accordance with the laws of said state.

DE 88-3 at 14.² Carmicle's wrongful termination claim does not concern the "validity" or "construction" of his employment agreement. The gravamen of Carmicle's wrongful termination claim is that he was fired for exercising his legal rights and for reporting wrongdoing. Neither contention is encompassed within the scope of the choice-of-law clause in the employment agreement. Instead, this choice-of-law clause resembles the clause in Green Leaf Nursery v. E.I. DuPont De Nemours & Co., 341 F.3d 1292, 1300 (11th Cir. 2003), which read as follows: "[t]his release shall be governed and construed in accordance with the laws of the State of Delaware." In analyzing the clause in Green Leaf, the Eleventh Circuit concluded: "The effect of this clause is narrow in that only the release itself is to be construed in accordance with the laws of the State of Delaware. The clause does not refer to related tort claims or to any and all claims or disputes arising out of the settlement or arising out of the relationship of the parties. This type of narrow choice-of-law clause calls for the application of the selected law to determine only the scope andeffect of the release." Id. The Court concludes that, like Green Leaf, the choice-of-law provision in this case is narrow and does not encompass Carmicle's wrongful termination claim. A conflict of laws analysis is therefore necessary.

A federal court sitting in diversity applies the conflict of law rules of the forum state. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). Before beginning a conflict of law analysis, a court should determine whether a conflict of laws truly exists. Fioretti v. Mass. Gen. Life Ins. Co., 53 F.3d 1228, 1234-35 (11th Cir. 1995). No conflict of laws exists when the asserted conflict is a false conflict. Tune v. Philip Morris, Inc., 766 So. 2d 350, 352 (Fla. Dist. Ct. App. 2000). A false conflict arises when: (1) the laws of the different sovereigns are the same, (2) the laws of the different sovereigns are different but produce the same outcome under the facts of the case, or (3) when the policies of one sovereign would be furthered by the application of its laws while the policy of the other sovereign would not be advanced by the application of its laws. Id.

Here, the claim at issue is a wrongful termination claim. "Florida does not recognize a common law cause of action for wrongful or retaliatory discharge, and there is no specific statutory authority granting a case of action for wrongful or retaliatory discharge." Saavedra v. USF Bd. of Trs., No. 8:10-CV-1935, 2011 WL 1742018, at *4 (M.D. Fla. May 6, 2011) (referencing a movant's summarization of Florida law and adopting it); see also Wiggins v. S. Mgmt. Corp., 629 So. 2d 1022, 1025 n.4 (1993) ("Florida does not recognize an exception to the at-will doctrine in the form of a common-law tort for retaliatory discharge from employment."). By contrast, Kentucky does recognize (to an extent) a claim for wrongful termination. See Firestone Textile Co. Div. v. Meadows, 666 S.W.2d 730, 731 (Ky. 1983). The Court thereforeconcludes that the laws of the respective states are not the same.

With respect to whether "the laws of the different sovereigns are different but produce the same outcome under the facts of the case," this is less clear. Carmicle argues in his response to Brown Jordan's Motion for Summary Judgment that his wrongful termination claim (which is clearly styled as a wrongful termination claim) should be construed under Florida law as a claim brought under the Florida Whistleblower Act.³ This presents a difficult question because there is an apparent conflict between the Florida Second District Court of Appeal and the Florida Fourth District Court of Appeal regarding the proper standard to evaluate the sufficiency of a Florida Whistleblower Act claim. Compare Kearns v. Farmer Acquisition Co., 157 So. 3d 458, 465 (Fla. Dist. Ct. App. 2015), with Aery v. Wallace Lincoln-Mercury, LLC, 118 So. 3d 904, 916 (Fla. Dist. Ct. App. 2013) (conflicting as to whether an employee must merely have a "good faith" basis to believe that a law has been violated to state a claim under the Florida Whistleblower Act). These state court appellate decisions make it difficult for the Court to ascertain whether Carmicle has properly pled a claim under the Florida Whistleblower Act, notwithstanding the fact that his claim is neither styled nor brought under that law. In an abundance of caution, the Court assumes that the laws of the respective sovereigns would not result in the same outcome, as applied to the facts of this case, and therefore a conflict of law does exist between the state of Kentucky and the state of Florida.⁴ Accordingly, the Court applies the conflict of law rules of the forum state, the state of Florida. Klaxon, 313 U.S. at 496.

Florida utilizes the "significant relationship" test for conflicts of law premised upon tort claims. See Bishop v. Fla. Specialty Paint Co., 389 So. 2d 999, 1001 (Fla. 1980). Under Florida law, a court should consider the following:

(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.

(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:

(a) the place where the injury occurred,

(b) the place where the conduct causing the injury occurred,

(c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and

(d) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance with respect to the particular issue.

Id.; Restatement (Second) of Conflict of Laws § 145 (1971).

The presumption of the significant relationship test is that generally the law of the forum where the injury occurred determines the substantive issues unless another state has a more compelling interest. See Bishop, 389 So. 2d at 1001. Applying the foregoing factors, the place of the alleged injury is in Kentucky—the state in which Carmicle worked and was fired. See 14-60629, DE 20-1 at 3. The place where the conduct causing the injury occurred is less clear. Brown Jordan International, Inc. is based in Florida and this is where at least two Defendants reside. See id. at 1-3. However, Carmicle was fired in Kentucky and this is where Carmicle was escorted off of the premises of the facility in which he worked. See id.

With respect to the locations...