Mitchell v. Consolidated Freightways Corp. of Del., 89-626-Civ-J-12.

• Decision Date: 24 September 1990
• Docket Number: No. 89-626-Civ-J-12.,89-626-Civ-J-12.
• Citation: 747 F. Supp. 1446
• Parties: Kimberly MITCHELL, an individual, Plaintiff, v. CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE, a Delaware corporation, Defendant.
• Court: U.S. District Court — Middle District of Florida

747 F. Supp. 1446

Kimberly MITCHELL, an individual, Plaintiff, v. CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE, a Delaware corporation, Defendant.

No. 89-626-Civ-J-12.

United States District Court, M.D. Florida, Jacksonville Division.

September 24, 1990.

Marlene Hammock and Dennis L. Pratt, Leboeuf, Lamb, Leiby & MacRae, Jacksonville, Fla., for plaintiff.

Peter Reed Corbin and John F. Dickinson, Corbin, Dickinson & Duvall, Jacksonville, Fla., for defendant.

ORDER CONCERNING OBJECTIONS TO MAGISTRATE'S ORDER

MELTON, District Judge.

This cause is before the Court on defendant's Objections to Magistrate's Order, filed herein on February 27, 1990. Plaintiff responded with a memorandum in opposition to the objections, filed herein on March 13, 1990. For the reasons stated herein the Court will sustain the objection on the issue of punitive damages and overrule the objection on the issue of jury trial.

At issue is the order entered February 14, 1990, denying defendant's motion to strike the punitive damages claim and the demand for jury trial. The Magistrate heard the motion pursuant to 28 U.S.C. § 636(b)(1)(A) (1988) and defendant made its timely objections to the Magistrate's order.¹ This Court can sustain those objections only if the Magistrate's order is clearly erroneous or contrary to law. See, e.g., Robinson v. Jacksonville Shipyards, Inc., 118 F.R.D. 525, 526 (M.D.Fla.1988). The nature of defendant's objections confines the inquiry to alleged errors of law.

Plaintiff's cause of action relies upon Fla.Stat. § 61.1301(2)(j). In short, plaintiff alleges that defendant fired him, in violation of that section, because it was served with an income deduction order. Defendant argued before the Magistrate that punitive damages are not available under the statute. Defendant additionally argued that the statute did not give rise to a right to jury trial. The Court turns to the objections raised on each issue in turn.

PUNITIVE DAMAGES CLAIM

Defendant objects to the Magistrate's punitive damages ruling on three grounds. First, defendant urges that its interpretation of the statute, which excludes punitive damages, is correct and the Magistrate's interpretation is erroneous. Second, defendant seeks to bar the punitive damages claim for failure to comply with Fla.Stat. § 768.72. Last, defendant argues that the cause of action raised by plaintiff lies in contract, not tort, so punitive damages are unavailable.

The last two arguments may be disregarded. Defendant did not present these grounds to the Magistrate. His decision should not be disturbed on the basis of arguments not presented to him. See, e.g., Doe v. Garrett, 903 F.2d 1455, 1463 (11th Cir.1990); Brown v. Blue Cross Blue Shield of Ala., 898 F.2d 1556, 1571 n. 17 (11th Cir.1990); Denis v. Liberty Mutual Ins. Co., 791 F.2d 846, 848-49 (11th Cir. 1986).

The central contention before the Court, then, is the proper construction of Fla.Stat. § 61.1301(2)(j)(2). The Magistrate found the remedy of punitive damages available because this remedy appears to be available under a different retaliatory discharge statute, Fla.Stat. § 440.205, and the Florida legislature has explicitly excluded the remedy in some statutes. The presence of a civil penalty in § 61.1301(2)(j)(1), the Magistrate opined, is less significant than these other indicia of legislative intent. In denying the motion to strike, the Magistrate added, "since no court has expressly addressed the question of whether punitive damages are recoverable under § 61.1301, the Court's denial is without prejudice so that any forthcoming cases might be considered on a later motion." Order entered February 14, 1990, at 2-3.

Defendant's appeal is not based on new authority; rather, defendant offers a critique of the Magistrate's construction of § 61.1301. Defendant proposes that the purpose of punitive damages is fully accomplished by the presence of a civil penalty in the statute. Moreover, the listing of available remedies within § 61.1301(2)(j)(2), defendant argues, excludes those remedies not listed, such as punitive damages.

The Court agrees with plaintiff that the presence of the penalty provision is not dispositive in this instance. The civil penalty, by its plain terms, applies to an adverse personnel action taken against an employee "because of the enforcement of an income deduction order." By way of contrast, the civil action is available when an adverse personnel action occurs "because of an income deduction order." Thus it appears that the civil penalty is invoked only when an enforcement action is pending, a suggestion buttressed by the provision for payment of the penalty to the child support obligee or the enforcing agency, while a civil action is available more broadly to redress an employer's response to the imposition of an income deduction order, regardless of the status of enforcement proceedings.

The divisibility of the civil penalty from the civil action, however, does not settle the punitive damages issue. As the parties concede, the common law of Florida does not recognize the tort of retaliatory discharge. See, e.g., Scott v. Otis Elevator Co., 524 So.2d 642, 643 (Fla.1988). Section 61.1301(2)(j)(2) created a new cause of action and stated a list of remedies: "The employee is entitled to reinstatement and all wages and benefits lost plus reasonable attorney's fees and costs incurred." Defendant urges that this listing be read as all inclusive and the Court concurs.

The significance of the listing of remedies may be understood better by examining other statutes. For example, Fla. Stat. § 440.205 protects employees from discharge or other retaliation "by reason of such employee's valid claim for compensation or attempt to claim compensation under the Workers' Compensation Law." The Florida Supreme Court in Scott intimated that punitive damages may be available for suits brought pursuant to § 440.205. The statute does not yield this conclusion because it has no list of available remedies. The Scott opinion gives rise to the inference that punitive damages are available by describing the common law tort of retaliatory discharge and the remedies available in states in which it is recognized. This construction of the statute is consistent with the general principle that an open-ended legislative choice to resort to traditional principles of tort law implicitly includes punitive damages, see, e.g., Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 255, 104 S.Ct. 615, 625, 78 L.Ed.2d 443 (1984), although it should be emphasized that the actual scope of damages under the statute remains undetermined.² It does not suggest how to interpret the specific listing of remedies in § 61.1301(2)(j)(2).

The statute providing employment protection to jurors, however, gives some insight into the legislative significance of a list of remedies. A person dismissed from employment because of jury service is "entitled to collect not only compensatory damages, but, in addition thereto, punitive damages and reasonable attorney fees for violation of this act." Fla.Stat. § 40.271(3). The statute creates a new remedy for the wrong committed. See, e.g., Pier 66 Co. v. Poulos, 542 So.2d 377, 381 (Fla.Dist.Ct. App.1989); Blangy v. State, 481 So.2d 940, 942 (Fla.Dist.Ct.App.1985), rev. denied, 492 So.2d 1330 (Fla.1986). Thus, the availability of punitive damages in a cause of action to redress the retaliatory discharge of a juror required the statutory creation of such a right with an express reference to the punitive damages remedy. If punitive damages may be implied as a remedy in addition to any already enumerated in a statute, then the reference in § 40.271(3) is superfluous.

Without question, a legislature can expressly supplant traditional tort law principles. See Silkwood, 464 U.S. at 255, 104 S.Ct. at 625. A list of specific remedies is one measure by which this goal may be achieved. The wrongful death statute illustrates this point. Indeed, the 1927 Florida wrongful death statute did not authorize punitive damages; the Florida Supreme Court held, "the language of the statute creating a new statutory action for wrongful death, affirmatively negatives the idea that punitive damages are to be considered as an incident to the damages allowed for the new statutory cause of action." Florida E. Coast Ry. Co. v. McRoberts, 111 Fla. 278, 149 So. 631, 635-36 (1933). This rule remained unchanged until the reform of the wrongful death statute, into which the survival statute, under which punitive damages were available, see Atlas Properties, Inc. v. Didich, 226 So.2d 684, 688 (Fla.1969), was merged. See Martin v. United Security Servs., Inc., 314 So.2d 765, 771-72 (Fla.1975).

By analogy to the jury service anti-retaliation statute and the evolution of the wrongful death cause of action, the Court concludes that the enumeration of specific remedies in § 61.1301(2)(j)(2) constitutes an exclusion of the remedies not so listed. The absence of punitive damages from the statutory list renders that remedy unavailable.³ Cf. Bennett v. Southern Marine Mgmt. Co., 531 F.Supp. 115, 116-17 (M.D. Fla.1982) (comparing enumeration of punitive damages among remedies in Florida equal pay statute with absence of mention of that remedy in Florida Human Rights Act to conclude punitive damages are not available under latter), cited with approval in Florida Public Util. Co. v. Large, 493 So.2d 491, 493 (Fla.Dist.Ct.App.1986), rev. denied, 506 So.2d 1041 (Fla.1987). Defendant's motion to strike the punitive damages claim, properly construed as a motion to dismiss, see supra note 1, will be granted.

JURY TRIAL RIGHT

Defendant objects to the Magistrate's ruling on the right to a jury trial on a single ground. The parties agree that the issue is governed by federal law. The most recent statement of the relevant test holds:

To determine whether a particular action will resolve legal rights, we examine both the nature of the issues involved

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