Wimberly v. Fort Wayne Business Products
| Decision Date | 20 January 1989 |
| Docket Number | Civ. No. F 88-89. |
| Citation | 703 F. Supp. 1358 |
| Parties | Stanton WIMBERLY, Plaintiff, v. FORT WAYNE BUSINESS PRODUCTS, Defendant. |
| Court | U.S. District Court — Northern District of Indiana |
Stanton Wimberly, Fort Wayne, Ind., pro se.
Stanley L. Campbell, Swanson & Campbell, Fort Wayne, Ind., for defendant.
This matter is before the court on several pending motions including defendant Fort Wayne Business Products' September 21, 1988 motion for summary judgment.Plaintiff responded to that motion on September 26, 1988.On September 13, 1988, plaintiff filed a motion to reconsiderthis court's August 22, 1988 order which granted defendant Southern Copy Machines' June 22, 1988 motion for summary judgment.That defendant responded to defendant's motion to reconsider on September 26, 1988.On that same date defendant Southern Copy Machines filed a motion for entry of final judgment.Most recently, on January 9, 1989, plaintiff filed a document entitled "Additional Evidence."
For the reasons set forth below, defendant Fort Wayne Business Products' motion for summary judgment will be denied as will plaintiff's motion to reconsider.Defendant Southern Copy Machines' motion for entry of final judgment will also be denied.
On March 29, 1988, plaintiff filed suit in this court against two defendants, Fort Wayne Business Products and Southern Copy Machines, Inc.Plaintiff asserts federal question jurisdiction under 28 U.S.C. § 1331 as well as diversity jurisdiction with respect to defendant Southern Copy Machines under 28 U.S.C. § 1332.
According to the complaint, plaintiff was employed by defendant Fort Wayne Business Products beginning in June, 1985 as a service technician and at that time was allegedly the only black service technician employed by that defendant.Plaintiff contends that during all relevant periods his job performance was satisfactory.Prior to his employment with Fort Wayne Business Products, plaintiff had been employed by defendant Southern Copy Machines in Fulton County, Georgia.Plaintiff allegedly left his employment involuntarily as a result of an altercation with a customer.After the termination of employment with defendant Southern Copy Machines, plaintiff filed a lawsuit against that defendant in the Superior Court of Fulton County, Georgia.Plaintiff further alleges in his complaint that after becoming employed in Fort Wayne, the president of defendant Southern Copy Machines spoke by telephone with the president of defendant Fort Wayne Business Products and during the course of that conversation arranged to have plaintiff terminated from his employment at Fort Wayne Business Products.Plaintiff further alleges that shortly after that conversation he was in fact terminated and was replaced by a white male with much less experience.
Plaintiff contends that the foregoing conduct by the defendants discriminated against him on the basis of his race and as a result of said acts, plaintiff has lost wages, suffered injury and has been otherwise damaged.Plaintiff further contends that the defendants conspired together to deprive him of his rights secured under 42 U.S.C. § 1981 and that defendant Southern Copy Machines willfully and wantonly interfered with and denied plaintiff his gainful and advantageous business relationship with defendant Fort Wayne Business Products.
As indicated, this is not the first time plaintiff has sued defendant Southern Copy Machines.On May 7, 1986, plaintiff, by counsel, filed a civil action in the Superior Court of Fulton County, Georgia against defendant Southern Copy Machines and Arthur S. Karp and William V. Curran.
In the Fulton County lawsuit, plaintiff alleged that on or about June 21, 1984, while employed by defendant Southern Copy Machines, of which defendantWilliam Curran was president, he was sent to service copying machines at the Great American Chocolate Chip Cookie Company located in Atlanta, Georgia.DefendantArthur S. Karp was the president of that company.After plaintiff finished servicing a machine at the cookie company, defendant Karp spoke to plaintiff in an abusive, loud and boisterous manner because plaintiff had parked in Mr. Karp's reserved parking space.According to plaintiff, defendant Karp's abuse was not only verbal.Karp allegedly grabbed and twisted plaintiff's right arm and struck plaintiff in the chest.Mr. Karp then, so the story goes, refused to allow plaintiff to leave until he answered certain questions including who employed plaintiff.After being informed that the employer was Southern Copy Machines, defendant Karp allegedly made the statement that he would see to it that plaintiff never worked on his copy machine or any other copy machine ever again.Prior to leaving the premises, Mr. Karp allegedly cursed and abused plaintiff some more and then threatened to kill him if he ever returned.
The allegations do not stop here.According to plaintiff, Mr. Karp had one of his employees telephone plaintiff's employer in order to keep his promise that plaintiff would never work on another copy machine.Plaintiff was then allegedly fired the next day by defendant Curran from his job at Southern Copy Machines.Said termination was due to the scheme, plot and device of Karp, Curran and Southern Copy Machines.Because plaintiff found it impossible to work as a field technical engineer in Georgia due to the defendants' continual efforts to prevent him from being gainfully employed in this field of endeavor, plaintiff believed that they gave false and malicious reports to prospective employers both within and outside of Georgia.
In that Fulton County lawsuit, plaintiff went on to assert that because of the egregious conduct of the defendants, he was forced to move to Indiana and went to work for Fort Wayne Business Products for approximately 10 months until he was terminated.In rhetorical paragraph 18 of the Fulton County lawsuit, plaintiff alleged that his "termination in Indiana and Georgia was due solely to the acts individually and jointly of defendants to get him fired and see to it he never worked in his field again."Plaintiff sought a combined total of $1 million in actual and punitive damages together with attorney's fees in the amount of $5,000.
As here, defendant Southern Copy Machines filed a motion for summary judgment in the Fulton County lawsuit with respect to all claims alleged by plaintiff in his complaint in that court.The Superior Court of Fulton County, Georgia granted summary judgment in favor of defendant Southern Copy Machines in an order dated March 6, 1987, under Civil Action FileNo. D-29929.That order granting summary judgment was appealed by plaintiff's counsel to the Georgia Court of Appeals.In a published decision dated January 5, 1988, the Georgia Court of Appeals affirmed the trial court's order.Wimberly v. Karp,185 Ga.App. 571, 365 S.E.2d 131(1988).An application for a writ of certiorari to the Georgia Supreme Court was then filed by plaintiff's attorney.The Georgia Supreme Court denied this application on February 18, 1988.
Based on the foregoing events, defendant Southern Copy Machines moved for summary judgment asserting the plaintiff's present claims were barred by the doctrine of res judicata because of the litigation which had been concluded in the statecourt of Georgia.Since it was clear that defendant's position was well taken, this court entered summary judgment on its behalf on August 22, 1988.
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."Fed.R.Civ. P. 56(c).Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery, against a party"who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the burden of proof at trial."Celotex Corp. v. Catrett,477 U.S. 317, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265(1986).The standard for granting summary judgment mirrors the directed verdict standard under Rule 50(a), which requires the court to grant a directed verdict where there can be but one reasonable conclusion.Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202(1986).A scintilla of evidence in support of the nonmoving party's position is not sufficient to successfully oppose summary judgment; "there must be evidence on which the jury could reasonably find for the plaintiff."Id.106 S.Ct. at 2512;Valentine v. Joliet Tp. High School Dist. No. 204,802 F.2d 981, 986(7th Cir.1986).
Initially, Rule 56 requires the moving party to inform the court of the basis for the motion, and to identify those portions of the "pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, which demonstrate the absence of a genuine issue of material fact."Celotex,106 S.Ct. at 2553.The non-moving party may oppose the motion with any of the evidentiary materials listed in Rule 56(c), but reliance on the pleadings alone is not sufficient to withstand summary judgment.Posey v. Skyline Corp.,702 F.2d 102, 105(7th Cir.), cert. denied,464 U.S. 960, 104 S.Ct. 392, 78 L.Ed.2d 336(1983).In ruling on a summary judgment motionthe court accepts as true the non-moving party's evidence, draws all legitimate inferences in favor of the non-moving party, and does not weigh the evidence or the credibility of witnesses.Anderson,106 S.Ct. at 2511.
Substantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law.Id. at 2510.Irrelevant or unnecessary facts do not preclude...
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United States ex rel. Howze v. Allied Physicians Inc.
...parties in the actions "must either be identical or in privity with each other")(emphasis in original); Wimberly v. Fort Wayne Business Products, 703 F.Supp. 1358, 1363 (N.D.Ind. 1989). The first two elements have clearly been established. Finally, for res judicata to apply there must be an......