Phifer v. Hyundai Power Transformers USA et al
Filing
35
OPINION AND ORDER: Accordingly, it is ORDERED as follows: (1) The motion to dismiss by defendants Ted Arkuszeski, Clayton Payne, and Tony Wojchiehowsk (doc. no. 22 ) will be granted. As a result, counts 1, 3, and 4 will be dismissed as to these d efendants. There will be no claims that remain pending a to these defendants, and these three defendants will be terminated as parties in this litigation. (2) The motion for a more definite statement by defendants Arkuszeski, Payne, and Wojchiehowski (doc. no. 22 ) will be denied. (3) The motion to dismiss by defendant Hyundai Power Transformers (doc. no. 23 ) will be granted. As a result, counts 1 and 2 will be dismissed as to this defendant. Counts 3 and 4 will proceed as to this defendant. (4) The motion for a more definite statement by defendant Hyundai Power Transformers (doc. no. 23 )) will be denied. (5) To the extent that plaintiff Robert Phifer, Jr., believes that granting the motions to dismiss by either defendants Arkuszeski, Payne, and Wojchiehowski (doc. no. 22 ) or by defendant Hyundai Power Transformers (doc. no. 23 ) as set forth above would be in error, plaintiff Phifer should file, within five business days, a full explanation as to why the court is incorrect, in cluding why plaintiff Phifer failed to respond to the motions in a timely manner and, if the lack of response was due to a failure, why the court should entertain a late response and what sanctions would be appropriate in light of the failure. If the court does not hear from plaintiff Phifer within this time, it will make all of the above dismissals and terminations final. Signed by Honorable Judge Myron H. Thompson on 6/11/2020.(kh, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
ROBERT PHIFER, JR.,
)
)
Plaintiff,
)
)
v.
)
)
HYUNDAI POWER TRANSFORMERS )
USA, et al.,
)
)
Defendants.
)
CIVIL ACTION NO.
2:19cv166-MHT
(WO)
OPINION AND ORDER
Plaintiff Robert Phifer, Jr. brought this lawsuit
naming as defendants his former employer, Hyundai Power
Transformers (HPT), as well as several HPT employees,
including
Ted
Wojchiehowski.
Arkuszeski,
Clayton
Payne,
and
Tony
Phifer asserts violations of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§§ 1981a and 2000e through 2000e-17; § 1981, originally
part of the Civil Rights Act of 1866, as amended, 42
U.S.C. § 1981; and the Family and Medical Leave Act of
1993 (FMLA), 29 U.S.C. §§ 2601-54.*
jurisdiction
VII);
29
U.S.C.
§§ 1343(a)(3)
(federal
under
42
§
(civil
U.S.C.
§
2000e-5(f)(3)
2617(a)(2)
rights);
question).
This court has
(FMLA);
and
The
28
28
U.S.C.
amended
(Title
U.S.C.
§
1331
complaint
specifically sets forth four counts: (1) a count under
§ 1981 for “race discrimination, race harassment, and
retaliation”; (2) a count under Title VII for “race
discrimination,
harassment,
and
retaliation”;
(3)
a
count under the FMLA for interference; and (4) a count
under the FMLA for retaliation.
The
case
is
currently
before
the
court
on
two
motions to dismiss or, in the alternative, motions for
a more definite statement.
The first is a motion to
dismiss by the three HPT employees.
motion to dismiss by HPT.
The second is a
Although both motions were
filed in May 2019, more than one year ago, Phifer has
*
The lawsuit was also brought against HPT
employee Luther Scull.
Defendant Scull has filed his
own motion to dismiss to which the plaintiff has
responded.
The court will address this motion in a
later order.
2
not responded.
In the absence of any argument, the
court has assumed that Phifer is not opposed to the
motions.
See Defs.’ Reply (doc. no. 26) (making this
argument).
Although it is not completely clear to the
court how many distinct legal claims or theories are
contained
Phifer
within
has
count
filed
1
and
absolutely
count
2,
and
because
nothing
to
indicate
or
clarify what, if any, legal claims or theories he still
wants to pursue in this litigation (that is, he has sat
on his hands), the court will further assume, for the
same reason, that all parts of any count challenged by
defendants are due to be dismissed.
will
allow
Phifer
an
opportunity
However, the court
to
correct
this
defendants
Ted
assumption.
***
Accordingly, it is ORDERED as follows:
(1) The
motion
to
dismiss
by
Arkuszeski, Clayton Payne, and Tony Wojchiehowski
(doc. no. 22) will be granted.
As a result,
counts 1, 3, and 4 will be dismissed as to these
3
defendants.
There will be no claims that remain
pending as to these defendants, and these three
defendants will be terminated as parties in this
litigation.
(2) The
motion
for
a
more
definite
statement
by
defendants Arkuszeski, Payne, and Wojchiehowski
(doc. no. 22) will be denied.
(3) The motion to dismiss by defendant Hyundai Power
Transformers (doc. no. 23) will be granted.
As a
result, counts 1 and 2 will be dismissed as to
this defendant.
Counts 3 and 4 will proceed as
to this defendant.
(4) The
motion
defendant
for
Hyundai
a
more
Power
definite
statement
Transformers
(doc.
by
no.
23)) will be denied.
(5) To the extent that plaintiff Robert Phifer, Jr.,
believes that granting the motions to dismiss by
either
defendants
Wojchiehowski
Arkuszeski,
(doc.
no.
22)
or
Payne,
by
and
defendant
Hyundai Power Transformers (doc. no. 23) as set
4
forth above would be in error, plaintiff Phifer
should file, within five business days, a full
explanation as to why the court is incorrect,
including why plaintiff Phifer failed to respond
to the motions in a timely manner and, if the
lack of response was due to a failure, why the
court should entertain a late response and what
sanctions would be appropriate in light of the
failure.
If
the
court
does
not
hear
from
plaintiff Phifer within this time, it will make
all
of
the
above
dismissals
and
terminations
final.
DONE, this the 11th day of June, 2020.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
5
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