July v. Terminix Int'l Co.

• Decision Date: 30 April 2019
• Docket Number: CIVIL ACTION NO. 18-00024-TFM-B
• Citation: 387 F.Supp.3d 1306
• Parties: Winfred M. JULY, Plaintiff, v. TERMINIX INTERNATIONAL COMPANY, LIMITED PARTNERSHIP, Defendant.
• Court: U.S. District Court — Southern District of Alabama

387 F.Supp.3d 1306

Winfred M. JULY, Plaintiff,

v.TERMINIX INTERNATIONAL COMPANY, LIMITED PARTNERSHIP, Defendant.

CIVIL ACTION NO. 18-00024-TFM-B

United States District Court, S.D. Alabama, Southern Division.

Signed April 30, 2019

Winfred M. July, Chickasaw, AL, pro se.

Russell Windell Jackson, Ford & Harrison LLP, Memphis, TN, Wesley C. Redmond, Ford & Harrison LLP Birmingham, Al, for Defendant.

REPORT AND RECOMMENDATION

SONJA F. BIVINS, UNITED STATES MAGISTRATE JUDGE

This case is before the Court on Defendant's motion to dismiss amended complaint and memorandum in support. (Docs. 24, 25). The motion, which has been fully briefed, has been referred to the undersigned for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. GenLR 72(a)(2)(S). Upon consideration of all matters presented, the undersigned RECOMMENDS, for the reasons stated herein, that Defendant's motion be GRANTED, and that Plaintiff's amended complaint be dismissed.

I. BACKGROUND FACTS

Plaintiff Winfred M. July ("Plaintiff") filed a pro se complaint for defamation (libel) on January 11, 2018. (Doc. 1). The factual allegations in his original complaint, in their entirety, were as follows:

(State briefly your legal claim or your reason for filing suit. Include the statue [sic] under which the suit is filed.)

4. Defamation (Libel) Alabama

(Give a brief, concise statement of the specific facts involved in your case)

5. File is attached (unemployment compensation)

(State the relief you are requesting.)

6. Full extent of the law, for Plaintiff believe [sic] the action cause [sic] him to lose credibility when he was seeking employment elsewhere.

(Doc. 1 at 2). No exhibits were attached to Plaintiff's original complaint. However, a Notice of Determination from the State of Alabama Department of Labor, Unemployment Compensation Division was attached to Plaintiff's motion to proceed without prepayment of fees. (Doc. 2 at 5). The body of the Notice of Determination stated:

You were discharged from your most recent bona fide work with THE TERMINIX INTERNATIONAL for being observed on camera urinating in a customers [sic] backyard. This constitutes misconduct committed in connection with work. You are disqualified for the period indicated and the maximum amount of benefits to which you may become entitled after this period of disqualification is reduced by 8 times the weekly benefit amount established for your benefit year effective 01/24/16.

(Id. ).

On May 15, 2018, Defendant Terminix International Company, Limited Partnership ("Defendant")¹ filed a motion to dismiss Plaintiff's complaint and supporting memorandum, wherein it asserted that Plaintiff had failed to plead the necessary factual allegations to state a defamation claim and that communications made in connection with Plaintiff's request for unemployment benefits were absolutely privileged and could not support Plaintiff's defamation claim. (Docs. 8, 9). On November 6, 2018, the undersigned entered a report and recommendation which recognized that Plaintiff's complaint was devoid of factual allegations stating the elements of a defamation claim and failed to provide notice as to the substance of Plaintiff's allegations. (Doc. 19 at 9-10). However, because the complaint did not make clear what Plaintiff was actually alleging, the undersigned found that it would be premature to rule on Defendant's absolute privilege argument. (Id. at 10). In view of Plaintiff's pro se status, the undersigned recommended that Plaintiff be given the opportunity to amend the complaint to plead his claims with sufficient specificity to conform to Rule 8 of the Federal Rules of Civil Procedure and the applicable pleading standards. (Id. at 10-12).

On November 20, 2018, before the district judge entered an order on Defendant's original motion to dismiss, Plaintiff filed a document entitled "Motion to Amendedment [sic] Complaint[.]" (Doc. 20). The body of the document states as follows:

Come now Plaintiff, Winfred M. July file this Amendment to a Previous Complaint order of the court dated November 06, 2018, (18-00024-TM-B) and state the following:

1. The Plaintiff, Winfred M. July is representing himself, Pro Se. Plaintiff now moves for motion to amend his complaint to include the necessary documents (see attachments).

2. Plaintiff noticed that his complaint lacked important evidence (documents) to give support to his complaint which was filed January 11, 2018 in The United States District Court For The Southern District of Alabama – Southern Division.

3. Plaintiff's reason for filing a complaint is Libel (Defamation of Character). Plaintiff feels Defendant (Terminix International Company) sent a false written document in its defense against the Plaintiff during a pre-Arbitration hearing. The document was submitted to Mr. Charles Paterson (who was the Arbitrator for the American Arbitration Association) for their evidence on October 26, 2017. The document title: U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION – Birmingham District Office. Plaintiff's evidence of the complaint was presented by the Defendant with the above document (EEOC).

4. The document is a duplicated copy that was sent to the Alabama Department of Labor | Unemployment Compensations by the Defendant.

5. Definition – "Libel is a method of defamation expressed by print, writing, pictures, signs, effigies, or any communication embodied in physical form that is injurious to a person's reputation, exposes a person to public hatred, contempt or ridicule, or injures a person in his/her business or profession." [citation footnote omitted]

6. Plaintiff presents an attached copy of the document for proof of this violation of Civil Law. Page 20 is the page where Plaintiff states that the Defendant statement of him urinating in a customer's backyard is false.

7. Discovery from one case may be used in another Duling v. Gristede's Operating Corp., 266 F.R.D. 66, 75-76 (S.D.N.Y. 2010) (holding that "it is well established that the Federal Rules of Civil Procedure [ ] create no automatic prohibition against using discovery obtained in one litigation in another litigation")

Conclusion

Plaintiff states he did not urinate in a customer's backyard therefore, Defendant accusation is false. According to Federal Rules of Civil Procedure, Plaintiff has met the right for trial to prove his innocence and to prove Defendant's civil violation in the matter of Defamation of Character (Libel).

(Doc. 20 at 1-3).

Attached to Plaintiff's pleading are various Bates-stamped documents that, according to Defendant, it produced to Plaintiff during the course of a prior arbitration between the parties.² (See id. at 5-31; Doc. 25 at 3-4). These include various documents produced to Defendant's counsel by the U.S. Equal Employment Opportunity Commission in response to a September 2017 Freedom of Information Act request (Doc. 20 at 6-28), an internal email relating to Plaintiff's termination (id. at 29-30), and a redacted termination notice (id. at 31), along with an email from Defendant's counsel to Plaintiff forwarding him the Bates-stamped documents (id. at 5).³

As indicated above, Plaintiff alleges that "Page 20 [of the attached documents] is the page where Plaintiff states that the Defendant statement of him urinating in a customer's backyard is false." (Id. at 2). The document that Plaintiff refers to as "Page 20" is a Corrective Action Form, signed by Plaintiff, his supervisor, and a witness on December 7, 2015. (See id. at 25). The form contains the Bates stamp "TERMINIX000034" and states the following: "On 11/17/15 management received an email from a customer stating associate was caught on camera urinating in the backyard of his property. Management received photographic evidence of the incident confirming the associate was Winfred July." (Id. ). The form goes on to detail the action taken by Defendant: "Company code of conduct policy states that an associate is to act in an ethical manner at all times and treat customers and their property with respect. The associate's actions violate this policy and as a result the associates [sic] employment is terminated 12/7/15." (Id. ).

On December 28, 2018, the district judge entered an order that adopted the undersigned's report and recommendation as to Defendant's original motion to dismiss and denied the motion as moot without prejudice as to any arguments asserted. (Doc. 23 at 1). The Court also found that Plaintiff's pleading entitled "Motion to Amendedment Complaint" complied with the requirement from the report and recommendation that Plaintiff file an amended complaint and, therefore, the Court construed the pleading as an amended complaint. (Id. ).

On January 10, 2019, Defendant filed the instant motion to dismiss Plaintiff's amended complaint and a supporting memorandum. (Docs. 24, 25). Defendant contends that Plaintiff's amended complaint does not cure the pleading deficiencies outlined in the report and recommendation adopted by the Court. (Doc. 25 at 4). Defendant asserts that, to the extent Plaintiff alleges it committed libel when it produced a document containing an allegedly defamatory statement to the arbitrator, the claim is barred by the absolute litigation privilege. (Id. at 6-7). Defendant further argues that if the Court finds that Plaintiff is alleging he was defamed when Defendant submitted documentation to the Alabama Department of Labor, communications made in connection with the administration of unemployment benefits are absolutely privileged and cannot support a defamation claim. (Id. at 7-8). Defendant also argues that, to the extent Plaintiff alleges it defamed him by creating and internally distributing the Corrective Action Form within the company, Plaintiff's claim fails because it is untimely and because he cannot establish that there was publication to a third party. (Id. at 8-9). Finally, Defendant asserts that this action is barred by the res judicata doctrine. (Id. at 8).

In his response to Defendant's...