Swindol v. Aurora Flight Scis. Corp.

• Decision Date: 28 August 2015
• Docket Number: No. 14–60779.,14–60779.
• Citation: 805 F.3d 516
• Parties: Robert SWINDOL, Plaintiff–Appellant v. AURORA FLIGHT SCIENCES CORPORATION, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

805 F.3d 516

Robert SWINDOL, Plaintiff–Appellant

v.AURORA FLIGHT SCIENCES CORPORATION, Defendant–Appellee.

No. 14–60779.

United States Court of Appeals, Fifth Circuit.

Aug. 28, 2015.

David O. Butts, Tupelo, MS, for Plaintiff–Appellant.

Stephen William Robinson, Esq., Nicholas DelVecchio SanFilippo, McGuireWoods, L.L.P., Tysons Comer, VA, Robert Bradley Best, Holcomb, Dunbar, Watts, Best, Masters & Golmon, P.A., Oxford, MS, for Defendant–Appellee.

Appeal from the United States District Court for the Northern District of Mississippi.

Before WIENER, CLEMENT, and SOUTHWICK, Circuit Judges.

Opinion

LESLIE H. SOUTHWICK, Circuit Judge:

The district court dismissed Robert Swindol's wrongful discharge and defamation claims under Federal Rule of Civil Procedure 12(b)(6). It held that Mississippi's employment-at-will doctrine barred the wrongful discharge claim and that falsity had not been adequately alleged for the defamation claim. The wrongful discharge claim presents an important and determinative question of state law that has not been addressed by Mississippi courts. We conclude we should certify the question to the Mississippi Supreme Court.

Before explaining the reasons for the certification, we address an issue of jurisdiction. If we lack jurisdiction, we can neither certify a controlling legal question to a state court nor resolve the merits ourselves. After briefing was completed, this court noticed that Swindol, a Mississippi citizen, had not alleged Aurora's principal place of business in his complaint. A party claiming diversity of citizenship, as does Swindol, must allege the state of incorporation and the principal place of business of corporate parties. Nadler v. Am. Motors Sales Corp., 764 F.2d 409, 413 (5th Cir.1985). In his complaint, Swindol alleged only that Aurora “is a foreign corporation, organized and existing under the laws of the State of Delaware, qualified to do and doing business in the State of Mississippi,” with an agent there for service of process.

Though the complaint was deficient, “[d]efective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.” 28 U.S.C. § 1653. Motions to amend under Section 1653 may be considered when “our discretionary examination of the record as a whole establishes at least a substantial likelihood that jurisdiction exists.” Nadler, 764 F.2d at 413.

Because the appellate record was deficient, we ordered the parties to file a joint letter brief regarding jurisdiction. The parties responded by stipulating that Aurora's principal place of business is in Virginia. Further, the parties moved the court to take judicial notice of printouts of online state agency records that they submitted to us and that showed Aurora's principal office is located in Virginia. The records also list the same principal office as the business address of all of Aurora's officers and directors.

We find guidance on when to take judicial notice in an older opinion in which we questioned sua sponte whether the federal courts had diversity jurisdiction; that case involved an individual plaintiff and a corporate defendant. See Kaufman v. W. Union Tel. Co., 224 F.2d 723, 725 (5th Cir.1955). The plaintiff alleged that the defendant was “a corporation organized under law with an office and place of business in Dallas, Dallas County, Texas, where service of citation may be had.”¹ Id. We granted the plaintiff leave to amend her complaint because “[t]he 1950 edition of the Encyclopedia Britannica ... indicates that [Western Union] is a New York corporation.” Id. Because the court raised the jurisdictional question sua sponte without ordering additional briefing, it must have noticed the relevant facts listed in the encyclopedia. We follow Kaufman to the extent it supports the taking of judicial notice of public documents establishing Aurora's citizenship.²

Federal Rule of Evidence 201(b)(2) provides that courts “may judicially notice a fact that is not subject to reasonable dispute because it ... can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” We conclude that the accuracy of these public records contained on the Mississippi Secretary of State's and the Virginia State Corporation Commission's websites cannot reasonably be questioned. See Coleman v. Dretke, 409 F.3d 665, 667 (5th Cir.2005) (denying petition for rehearing en banc and explaining that panel took judicial notice of information contained on the Texas Council on Sex Offender Treatment website).

From those records, we discern two relevant facts. First, Aurora's principal office is located in Manassas, Virginia. Second, all of Aurora's corporate officers have an office in Virginia. The principal place of business is “where the corporation's high level officers direct, control, and coordinate the corporation's activities.” Hertz Corp. v. Friend, 559 U.S. 77, 80, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010). Based on these facts, as confirmed by the parties' joint stipulation, we find that Aurora's principal place of business is in Virginia. Because Swindol is a citizen of Mississippi and Aurora is a citizen of Delaware and Virginia, we have jurisdiction to consider Swindol's appeal.

Finally, we exercise our discretion to grant Swindol's motion for leave to amend under Section 1653 because the judicially noticed documents persuade us that the parties are completely diverse. Consequently, the complaint “is hereby deemed to have been amended to incorporate the additional allegations of citizenship.” Firemen's Insurance, 288 F.2d at 350.

* * * Having concluded that we have jurisdiction, we now turn to the issues surrounding certification. We may certify an unsettled question of state law to a state's highest court when that court has a procedure permitting such questions to be posed. See 17A Charles Alan Wright, et al., Federal Practice & Procedure § 4248 (3d ed.2015) (noting that “[c]ertification first came to public attention” in the 1960 Supreme Court decision, reviewing a Fifth Circuit opinion, of Clay v. Sun Ins. Office Ltd., 363 U.S. 207, 80 S.Ct. 1222, 4 L.Ed.2d 1170 (1960) ). Mississippi has such a procedural rule. See Miss. R.App. P. 20. We follow the guidelines of that rule in presenting this question to the Mississippi Supreme Court.

CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT TO THE MISSISSIPPI SUPREME COURT, PURSUANT TO MISSISSIPPI RULE OF APPELLATE PROCEDURE 20.

TO THE MISSISSIPPI SUPREME COURT AND THE HONORABLE JUSTICES THEREOF:

STYLE OF THE CASE

The style of this case is Swindol v. Aurora Flight Sciences Corp., No. 14–60779, in the United States Court of Appeals for the Fifth Circuit. The case is on appeal from a judgment of the United States District Court for the Northern District of Mississippi. Federal jurisdiction is based on diversity of citizenship.

STATEMENT OF FACTS

Swindol worked for Aurora Flight Sciences Corporation in Mississippi. He parked his car in Aurora's parking lot with a firearm locked inside. Aurora's managers learned about the firearm and fired Swindol later the same day for violating a company policy forbidding firearms on company property. Aurora then convened a plant-wide meeting during which its human resources manager told employees that Swindol was a security risk and instructed them to call the police if they saw him near the facility.

Swindol sued Aurora in United States District Court in Mississippi. He asserted there was diversity jurisdiction under 28 U.S.C. § 1332. He brought state-law claims for wrongful discharge and defamation. Aurora moved to dismiss Swindol's complaint under Rule 12(b)(6). The district court granted the motion, dismissing Swindol's wrongful discharge claim with prejudice and his defamation claim without prejudice.³ Swindol appealed.

DISCUSSION

A. Wrongful Termination Claim

This court gives de novo review to a district court's dismissal under Rule 12(b)(6). Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.2007). Swindol's wrongful termination claim is governed by Mississippi law in this diversity action. See Vaught v. Showa Denko K.K., 107 F.3d 1137, 1145 (5th Cir.1997).

Swindol was terminated because he violated company policy by having a firearm in his vehicle in the company parking lot. He argues that a Mississippi statute prohibits the enforcement of such a policy:

Except as otherwise provided in subsection (2) of this section, a public or private employer may not establish, maintain, or enforce any policy or rule that has the effect of prohibiting a person from transporting or storing a firearm in a locked vehicle in any parking lot, parking garage, or other designated parking area.

Miss.Code Ann. § 45–9–55(1). The cross-referenced subsection (2) provides a different rule for certain secured parking lots. Neither party claims that rule applies here. Also relevant is the final section of the statute, subsection (5), which exempts the employer from liability in some circumstances: “A public or private employer shall not be liable in a civil action for damages resulting from or arising out of an occurrence involving the transportation, storage, possession or use of a firearm covered by this section.” Id. at § 45–9–55(5).

The district court dismissed the wrongful discharge claim, concluding that Mississippi state courts would not recognize discharging an employee for possession of a weapon in his car in a manner compliant with this statute as an exception to that state's employment-at-will doctrine. Because of its ruling on subsection (1), the court did not analyze the effect of subsection (5).

Swindol contends that we should interpret Section 45–9–55 to create a “separate and additional public policy exception to the at-will doctrine” because doing so would fortify Mississippi's public policy supporting the right to bear arms. Such a policy, he argues, is also found in the Mississippi Constitution's provision protecting “[t]he right of every citizen to keep and bear arms.” Miss....