Freeman v. Koch Foods of Alabama

Filing 56

ORDER: This cause is before the Court on Koch Foods of Alabama's ("Koch Foods") Motion for Summary Judgment (Doc. 41 ), filed on 5/3/2010. Any party wishing to oppose the Court's proposed action shall SHOW CAUSE on or before 12/30/2010, with specific legal authority for their arguments, as to why summary judgment should not be granted on Freeman's reinstatement claim. Show Cause Response due by 12/30/2010. Signed by Hon. Chief Judge Mark E. Fuller on 12/21/2010. (dmn)

Freeman v. Koch Foods of Alabama

Doc. 56

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION E V E T T E S. FREEMAN, P la in tif f , v. K O C H FOODS OF ALABAMA, D e f e n d a n t. ) ) ) ) ) ) ) )

C A S E NO. 2:09-cv-270-MEF

(W O ­ DO NOT PUBLISH)

ORDER T h is cause is before the Court on Koch Foods of Alabama's ("Koch Foods") M o tio n for Summary Judgment, (Doc. # 41), filed on May 3, 2010. In her Response to K o c h Foods' summary judgment motion, Plaintiff Evette S. Freeman ("Freeman") a p p e a rs to contend that she has a viable reinstatement claim under the Family and M e d ic a l Leave Act of 1993 ("FMLA"), 29 U.S.C. §§ 2601 et seq. (Doc. # 49, at 23) (" P e rh a p s most importantly, an employee who takes FMLA leave is guaranteed her job, o r one substantially similar upon returning from leave. That did not happen here. . . . Thus she was retaliated against by not receiving her old job back.") (citing 29 U.S.C. § 2 6 1 4 (a )). However, this Court is inclined to grant summary judgment to Koch Foods on th e reinstatement claim pursuant to Federal Rule of Civil Procedure 56(f)(2) on the g ro u n d s that the claim was not raised in Freeman's Complaint, (Doc. # 1), and because th e Complaint cannot be amended by an argument made in a response to a motion for s u m m a ry judgment. See Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1314 (11th C ir.2 0 0 4 ) (per curiam) (liberal pleading standard does not allow plaintiff to raise a new

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claim at the summary judgment stage). Any party wishing to oppose the Court's p ro p o s e d action shall show cause on or before December 30, 2010, with specific legal a u th o rity for their arguments, as to why summary judgment should not be granted on F re e m a n 's reinstatement claim. DONE this the 21 day of December, 2010. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE
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