Wingo v. Southern Company, The et al

Filing 66

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 5/29/2018. (PSM)

FILED
2018 May-29 PM 04:38
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BRETT WINGO,
Plaintiff,
v.
THE SOUTHERN
COMPANY, et al.,
Defendants.

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2:17-cv-01328-LSC

Memorandum of Opinion
Before this Court is a Partial Motion to Dismiss, (doc. 30), filed by
Defendants The Southern Company (“Southern Company”), Southern Company
Services, Inc. (“SCS”), and Thomas A. Fanning (“Fanning”) (collectively,
“Defendants”). In their Motion, Defendants argue that certain claims in Plaintiff’s
Complaint should be dismissed under Federal Rules of Civil Procedure 12(b)(1)
and 12(b)(6) for lack of subject-matter jurisdiction and for failure to state a claim
upon which relief can be granted. As stated more fully below, Defendants’ Partial
Motion is due to be GRANTED in PART and DENIED in PART.
I. FACTS AND PROCEDURAL BACKGROUND1

1

In evaluating a motion to dismiss, this Court “accept[s] the allegations in the complaint as true
and construe[s] them in the light most favorable to the plaintiff.” Lanfear v. Home Depot, Inc., 679
F.3d 1267, 1275 (11th Cir. 2012).
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In 2010 Southern Company and one of its subsidiaries, Mississippi Power
Company, began construction of a “clean coal” power plant in Kemper,
Mississippi (the “Kemper Project”). The Kemper Project was ultimately intended
to convert coal into synthetic gas, which would then be fed into a combustion
turbine in order to create electricity. Defendants intended to achieve the Kemper
Project commercial operations date (“COD”) by May 2014 in order to take
advantage of substantial federal tax credits and other financial incentives
contingent on the timely completion of the Kemper Project.
In August 2011, Southern Company promoted Plaintiff to be a Project
Manager at the Kemper Project, where he was responsible for the plaint’s coal
gasification and gas cleanup systems. For three consecutive years, Plaintiff received
positive performance review and prestigious Southern Company awards.
In June 2013, Southern Company employees were asked to participate in a
“cultural survey” to root out complacency and encourage persons to step forward
to report safety or ethical violations without fear of retaliation. The cultural survey
was apparently put in place following two public incidents that were disfavorable to
Defendants’ public image: (1) an explosion at another of Defendants’ power plants
caused by a failure to follow safety procedures, and (2) a recalled and amended
SEC filing where Southern Company was forced to admit “material weaknesses”
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in controls over financial reporting at Mississippi Power on the Kemper Project.
Plaintiff was selected by his supervisor Tim Pinkston (“Pinkston”) to participate in
the cultural survey.
During a June 20, 2013 interview as part of the cultural survey, Plaintiff
reported to Southern Company representatives that he believed the May 2014
COD was not achievable. Plaintiff told the representatives that he was concerned
about the Southern Company’s reporting of the May 2014 COD because the
allegedly unachievable date would mislead shareholders. Plaintiff also feared that
in a rush to comply with the May 2014 COD, the Southern Company would take
safety shortcuts that could potentially harm its employees. Southern Company
representatives were initially receptive to this information and directed Plaintiff to
create and supervise a new “resource loaded schedule” (“RLS”) in which the
various components of construction and testing are brought together to ensure
proper match-up with initial plans. Plaintiff was to complete the first RLS by midSeptember 2013.
After completing the first RLS in early September, Plaintiff informed his
supervisor at the time, Joe Miller (“Miller”), that based on Plaintiff’s experience
he believed the Kemper Project COD would run into the fourth quarter of 2014, if
not into 2015. This assessment was buttressed by a Quantitative Risk Assessment
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(“QRA”)’s finding conducted by Southern Company’s outside auditor PwC. The
QRA uses statistical analysis of thousands of individual tasks performed in the
Kemper Project to attempt to predict a COD. The January 2014 QRA, which relied
in part on Plaintiff’s RLS, reported a high probability that the COD would occur
later than 2015.
Despite Plaintiff’s RLS and PwC’s QRA, both of which predicted the
Kemper Project COD occurring in 2015, Southern Company management
manipulated Plaintiff’s RLS to claim that a 2014 COD was still achievable. Because
governmental and private incentives for the project of almost half a billion dollars
were contingent on a 2014 COD, Plaintiff alleges that Southern Company
management continued to repress Plaintiff’s conclusions and pressure employees
to take dangerous shortcuts that affected the viability of the Kemper Project.
Plaintiff sought to escalate his concerns about the viability of the 2014 COD
and his manager’s manipulation of Plaintiff’s RLS to upper level managers.
Following a meeting between engineers and Mississippi Power Company Vice
President John Huggins (“Huggins”) where Huggins emphasized meeting the
2014 COD, Plaintiff informed Huggins that he believed certain managers had
manipulated Plaintiff’s information to justify the viability of a 2014 COD. Huggins
appeared to brush off Plaintiff’s concerns, and Plaintiff reiterated these concerns in
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an email a day later. Huggins did not respond to the email, but called Plaintiff days
later to berate him for putting the concerns in writing and told him to meet in
person to discuss the issue.
On March 6, 2014, Plaintiff met with Huggins and another vice president
overseeing the Kemper Project to again inform them of the issues surrounding the
2014 COD. Huggins and the vice president both represented that they would take
corrective action, such as retracting the QRA, and generally told Plaintiff that his
concerns were too great for the problem at hand.
Out of fear that Huggins and other senior management were involved in
promulgating the fraudulent QRA, Plaintiff decided that he should inform
Defendant Fanning, who was and continues to be the CEO of Southern Company.
On March 10, 2014, Plaintiff called Fanning and detailed management’s alleged
manipulation of his RLS and the 2014 QRA to produce a false 2014 COD. He
informed Fanning that he had raised these issues with other upper-level
management, but no corrective action had been taken. Plaintiff also stated his fears
that Fanning could be personally liable for misrepresenting the COD to
stockholders. Fanning assured Plaintiff that Plaintiff had “done the right thing”
and that Fanning would ensure that the problem was dealt with.

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Following this meeting, Plaintiff alleges that Southern Company managers
began to retaliate against him for his whistleblowing activities. On March 13, 2014,
Plaintiff was excluded from a meeting among Southern Company managers to
address future QRA projections. On April 2, 2014, Plaintiff was instructed by
Senior Project Manager Brett Wingard to relinquish Plaintiff’s scheduling
responsibilities, supposedly because Plaintiff’s help was needed in location
instrument air stations. According to Plaintiff, this reassignment was a low-level
task and a clear demotion. On May 13, Plaintiff handed over his scheduling
responsibilities to Miller. Plaintiff urged Miller to keep the schedule “real.” Miller
replied that if he did that, he would be out of a job.
Plaintiff continued to report safety violations he observed to Southern
Company managers, even as he was marginalized and assigned to non-managerial
tasks. Other employees provided Plaintiff with reports and photographs of unsafe
conditions at the plant, such as improperly installed piping and valves which could
allow a dangerous release of high-pressure steam. Plaintiff reported those violations
as well, and management reacted by ignoring these obvious dangers and warning
Plaintiff that he was risking his position at the Southern Company.
On August 29, 2014, Plaintiff requested a two-week vacation. Southern
Company management instead placed Plaintiff on forced administrative leave.
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Before being escorted from his worksite, Plaintiff was instructed to turn over his
access card and collect his personal effects. In October, 2014, Plaintiff submitted a
Form Tip, Complaint, or Referral (“TCR”) to the SEC, alleging that the Southern
Company had engaged in fraudulent, material acts and practices in violation of Rule
10b-5 by misrepresenting the construction schedule and construction milestones to
regulators and investors. Plaintiff was eventually told by Southern Company
management in December 2014 that he would not be returning to work, although
Plaintiff alleges that he was not actually terminated until February 2016.
Plaintiff filed his first Sarbanes-Oxley Act (“SOX”) retaliation complaint
with the United States Department of Labor Occupational Safety and Health
Administration (“OSHA”) on February 15, 2015 (the “First Complaint”). Two
days later, Plaintiff supplemented the original retaliation complaint with an
additional, shorter document (the “Supplemental Complaint”). Defendants were
informed of Plaintiff’s charges against them later in February 2015, although
according to Defendants they only received the Supplemental Complaint, but did
not receive the First Complaint until a year later. Plaintiff instituted this action on
August 8, 2017.
II. STANDARD OF REVIEW

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The Eleventh Circuit has not spoken directly on whether a plaintiff’s failure
to exhaust administrative remedies under 18 U.S.C. § 1514A should be addressed
according to Federal Rule of Civil Procedure 12(b)(6) or 12(b)(1). “That motions
to dismiss for failure to exhaust are not expressly mentioned in Rule 12(b) is not
unusual or problematic.” Bryant v. Rich, 530 F.3d 1368, 1375 (11th Cir. 2008).
“Federal courts . . . traditionally have entertained certain pre-answer motions that
are not expressly provided for by the rules.” Id. (quoting Ritza v. Int'l
Longshoremen’s & Warehousemen’s Union, 837 F.2d 365, 368–69 (9th Cir. 1988)).
However, Bryant made clear that “[b]ecause exhaustion of administrative remedies
is a matter in abatement and not generally an adjudication on the merits, an
exhaustion defense . . . is not ordinarily the proper subject for a summary
judgment; instead, it should be raised in a motion to dismiss, or treated as such if
raised in a motion for summary judgment.” Id. at 1375–76 (quotation marks
omitted). Because exhaustion of nonjudicial remedies is “similar to motions
regarding jurisdiction and venue” they should be treated as a matter in
abatement.” Tillery v. U.S. Dep’t of Homeland Sec., 402 F. App’x 421, 424 (11th
Cir. 2010). In those types of Rule 12(b) motions, “it is proper for a judge to
consider facts outside of the pleadings and to resolve factual disputes so long as the
factual disputes do not decide the merits and the parties have sufficient opportunity
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to develop a record.” Bryant, 530 F.3d at 1376 (footnotes omitted). Alternatively,
in the 12(b)(6) context, the Court may “consider a document attached to a motion
to dismiss without converting the motion into one for summary judgment if the
attached document is (1) central to the plaintiff's claim and (2) undisputed.” Day v.
Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005) (citing Horsley v. Feldt, 304 F.3d 1125,
1134 (11th Cir. 2002)). In this context, “undisputed” means that the authenticity
of the document is not challenged. Id. Both Plaintiff and Defendants rely on the
attached First and Supplemental Complaints Plaintiff submitted to OSHA. (Docs.
31-1 – 31-7.). The First and Supplemental Complaints are central to Plaintiff’s SOX
exhaustion claims, and neither party challenges their authenticity.
In regards to Plaintiff’s tortious interference claim, which Defendants argue
is subject to dismissal under Federal Rule of Civil Procedure 12(b)(6), a pleading
must include “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). However, in order to withstand a motion
to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), a complaint “must plead enough
facts to state a claim to relief that is plausible on its face.” Ray v. Spirit Airlines,
Inc., 836 F.3d 1340, 1347–48 (11th Cir. 2016) (quoting Bell Atl. Corp v. Twombly,
550 U.S. 544, 570 (2007)) (internal quotation marks omitted). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
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the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Stated another way, the factual
allegations in the complaint must be sufficient to “raise a right to relief above the
speculative level.” Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th Cir. 2010)
(quotation omitted). A complaint that “succeeds in identifying facts that are
suggestive enough to render [the necessary elements of a claim] plausible” will
survive a motion to dismiss. Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1296 (11th Cir.
2007) (quoting Twombly, 550 U.S. at 556) (internal quotation marks omitted).
In evaluating the sufficiency of a complaint, this Court first “identif[ies]
pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth.” Iqbal, 556 U.S. 679. This Court then “assume[s] the[]
veracity” of the complaint’s “well-pleaded factual allegations” and “determine[s]
whether they plausibly give rise to an entitlement to relief. Id. Review of the
complaint is “a context-specific task that requires [this Court] to draw on its
judicial experience and common sense.” Id. If the pleading “contain[s] enough
information regarding the material elements of a cause of action to support
recovery under some ‘viable legal theory,’” it satisfies the notice pleading
standard. Am. Fed’n of Labor & Cong. of Indus. Orgs v. City of Miami, 637 F.3d 1178,

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1186 (11th Cir. 2011) (quoting Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d
678, 683–84 (11th Cir. 2001)).
III.

DISCUSSION
a. ADMINISTRATIVE EXHAUSTION

Section 806 of SOX provides “whistleblower” protection to employees of
publicly traded companies. Under this provision, a public company (or agent of a
public company) may not discriminate against any employee who “provide[s]
information, cause[s] information to be provided, or otherwise assist[s] in an
investigation regarding any conduct which the employee reasonably believes
constitutes a violation of . . . , any rule or regulation of the Securities and Exchange
Commission, or any provision of Federal law relating to fraud against shareholders,
when the information or assistance is provided to or the investigation is conducted
by . . . a Federal regulatory or law enforcement agency . . . .” 18 U.S.C.
§ 1514A(a)(1).
Before an employee can assert a cause of action in federal court under
Section 806 of SOX, that employee must first file a written complaint with OSHA
and allow OSHA to resolve the employee’s claims administratively. Id.
§ 1514A(b)(1)(A). The administrative complaint must be filed “[w]ithin 180 days
after an alleged violation of the Act occurs,” 29 C.F.R. § 1980.103(d), but “[n]o
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particular form of complaint is required.” Id. § 1980.103(b). If the employee has
met these requirements for a particular violation, and a final administrative
decision has not issued within 180 days of the filing, the employee can proceed with
an action in federal court based on that violation. 18 U.S.C. § 1514A(b)(1)(B).
If an employee has not exhausted their claims administratively, a court may
not hear those claims. The purpose of an administrative charge with OSHA “is to
trigger the agency’s defined investigation and conciliation procedures.” Wallace v.
Tesoro Corp., 796 F.3d 468, 476 (5th Cir. 2015) (citing Sanchez v. Standard Brands,
Inc., 431 F.2d 455, 466 (5th Cir. 1970)). In the absence of greater clarification by
§ 1980.103 of what information an administrative complaint must contain, the
Fourth and Fifth Circuits have ultimately shaped the requirements for the contents
of whistleblower’s complaint according to its purpose within the administrative
scheme.
When faced with the exhaustion requirements for a whistleblower complaint
under SOX, Wallace determined the bounds of the administrative exhaustion
requirement by reference to the similar requirements of Title VII’s exhaustion
requirements. 496 F.3d at 476-77. Because a complaint’s purpose is to initiate an
agency’s focused investigation, “allow[ing] plaintiffs to sue on claims that the
agency never had the chance to investigate and attempt to resolve” would
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undermine OSHA’s statutory mandate and authority. Id. at 476. On the other
hand, “the exhaustion requirement should go only as far as is necessary to give the
agency its initial crack at the case.” Id. The scope of the resulting action may
extend past the “four corners” of the administrative complaint to “the extent of
the investigation that the agency complaint can reasonably be expected to spawn.”
Id.; Jones v. Southpeak Interactive Corp., 777 F.3d 658, 669 (4th Cir. 2015)
(“[L]itigation may encompass claims reasonably related to the original complaint,
and those developed by reasonable investigation of the original complaint.”
(quotation marks and citation omitted)).
The Eleventh Circuit has not spoken directly on the requirements for the
contents of an administrative complaint sufficient to comply with § 1514A’s
exhaustion requirements. It has, however, spoken on the analogous Title VII
exhaustion requirements, and adopted a similar rule to above in relation to EEOC
exhaustion that a “plaintiff’s judicial complaint is limited by the scope of the
EEOC investigation which can reasonably be expected to grow out of the charge of
discrimination.” Gregory v. Georgia Dep’t of Human Res., 355 F.3d 1277, 1280 (11th
Cir. 2004) (quoting Alexander v. Fulton County, 207 F.3d 1303, 1332 (11th Cir.
2000). Given similarity of purpose between SOX and Title VII, and the agreement
of the Courts of Appeal to reach the issue of the scope of exhaustion of an SOX
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administrative complaint, the Court finds that the proper inquiry is whether
Plaintiff’s claims “can reasonably be expected to grow out of the charge”
contained in their otherwise compliant administrative complaint.
Defendants cite Bozeman v. Per-Se Techs., Inc., 456 F. Supp. 2d 1282, 1356
(N.D. Ga. 2006) and Order, Hanna v. WCI Communities, Inc., CASE NO. 0480595-CV-HURLEY/LYNCH (S.D. Fla. Nov. 15, 2004) (hereinafter “Hanna”)
for the proposition that Plaintiff’s failure to name Defendant Fanning in the
caption of his administrative complaint constitutes a per se failure to exhaust. After
review of those decisions, the Court respectfully departs from Bozeman and
Hanna’s overly formulaic exhaustion requirements. Both decisions hold that the
plaintiff had not exhausted administrative remedies, apparently because the
complainant did not name the defendant in the heading of the administrative
complaint as a “party” but only mentioned the defendant in the body of the
complaint. Bozeman, 456 F. Supp. 2d at 1357-58; Hanna, at 4-5. Neither of these
decisions is particularly persuasive as they are based on a former, more stringent
version of § 1980.103(b). Cf. Hanna, at 4 (“The administrative complaint must be
filed ‘within 90 days after an alleged violation of the Act occurs’ and include a full
statement of the acts and omissions, with pertinent dates, which are believed to
constitute the violations.” (citing 29 C.F.R. § 1980.103(b)(2002)) with 29 C.F.R.
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§ 1980.103(b) (2015) (“Nature of filing. No particular form of complaint is
required.”).
Defendants’ reading of Bozeman and Hanna is discordant with the purpose
of the exhaustion requirement, which is to put OSHA on notice of possible SOX
violations. The Court has been unable to find any law or regulation requiring the
complainant to include a caption of which defendants are to be sued, and pulling
such a requirement out of thin air directly contradicts the current version of
§ 1980.103(b), which states that “no particular form of a complaint is required.”
The Court cannot invent formalistic requirements and then fault the complainant,
who in this case drafted the administrative complaint without counsel, for failing to
follow them.
The Court thus must determine whether the counts asserted under SOX in
Plaintiff’s Complaint “can reasonably be expected to grow out of the charge”
contained in the two filings that constitute Plaintiff’s administrative complaint.
Plaintiff’s First Complaint was deemed filed on February 15, 2015, and by
Plaintiff’s own admission is “confusing” and “poorly communicates” his charges.
(Doc. 31-6 at 6.) In the First Complaint, Plaintiff identifies over sixty individuals or
entities that either violated SOX, retaliated against Plaintiff for his whistleblowing
activities, or were potential witnesses to these violations. Defendant Fanning is
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identified in the First Complaint among other actors in a list where Plaintiff uses
certain acronyms to indicate what violations of federal law he believes the
individual is liable for. Plaintiff states in reference to Defendant Fanning:
These are the INDIVIDUALS who should be held accountable for
breaking the law (including securities laws, retaliation laws and/or
OSHA laws) . . . and/or at least reprimanded for staying silent when
there was a duty to act. I also list some people who are not accused (by
me) of anything other than being witnesses caught up in a culture of
fear like me.
I’ve categorized each individual as follows:
...
SOX = I believe we can prove they were Complicit of Perpetrating
SEC/SOX violations
...
RETALIATION = I believe this person had a role in retaliation that
would rise to criminal
...
Tom Fanning (CEO of Southern Company) SOX/RETALIATION –I
talked with Fanning for 21 minutes on March 10th 2014 explaining, in
detail, the problems going on in Kemper, that the project had been
hijacked by an inner circle of friends and that 2014 COD was not
possible and that I was worried about him signing any financials based
on the current schedule. I gave him details and I named names. He
never followed back up with me, never thanked me afterwards and has
not intervened on my behalf to prevent my ouster from the company
since.
(Doc. 31-1 at 6-7, 31-2 at 1.)
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Plaintiff supplemented his First Complaint with the Supplemental
Complaint two days later on February 17, 2015 wherein Plaintiff sought to “distill”
his thirty-four page complaint down to “its essence” in order to “have a more
efficient administrative review process.” (Doc. 31-6 at 5.) In the Supplemental
Complaint, Plaintiff makes no reference to Defendant Fanning at all, nor Plaintiff’s
March 10, 2014 meeting with the executive. Instead, Plaintiff generally talks about
retaliatory acts that occurred much later and involved different actors. Importantly
for this Court’s inquiry, Plaintiff directed the recipient of the Supplemental
Complaint to “[i]gnore (for now) all the events that lead up to September 23rd,
2014” because “[t]he final events are all one really need consider when
determini[n]g the merits of a retaliation claim.” (Id. at 6.)
Accordingly, the Court must determine whether the claims against
Defendant Fanning “can reasonably be expected to grow out of the charges” found
in the First and Supplemental Complaints. Here, OSHA administrators cannot be
said to reasonably seek to investigate Defendant Fanning for SOX violations or
retaliation based on the reading of the two documents. While Plaintiff certainly
mentioned Defendant Fanning’s acts or omissions in the First Complaint, they
were spread among many other actors and were not conspicuously indicated in
comparison to other individuals. Plaintiff’s Supplemental Complaint likewise
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instructed OSHA to focus on later events that apparently did not involve
Defendant Fanning. Reading the two documents together, the Court cannot believe
that OSHA would properly seek to investigate Defendant Fanning more than the
other sixty individuals named—and it is certainly indisputable that Plaintiff has not
exhausted administrative remedies against all individuals named in the first
complaint. Rather, the Court finds that the specific acts or omissions in the
Supplemental Complaint, read in reference to the First Complaint, should properly
define the scope of administrative exhaustion. Thus, Defendants’ Motion to
Dismiss should be granted to the extent that it argues that Plaintiff has failed to
complete the prerequisite administrative exhaustion against Defendant Fanning.
b. TORTIOUS INTERFERENCE
Defendants additionally argue that Plaintiff’s claim of tortious interference
with an existing business relationship against Defendant Fanning should be
dismissed because the applicable statute of limitations has run, and Defendant
Fanning was not a stranger to Plaintiff’s employment contract. Defendants argue
that Alabama law should apply to this state-law claim. Plaintiff argues the claim is
properly governed by Mississippi law, which both allows for a longer statute of
limitations and creates an exception to the stranger-to-a-relationship requirement
where a plaintiff alleges the tortfeasor was an agent to one of the parties and acted
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with malice. Vaughan v. Carlock Nissan of Tupelo, Inc., 553 F. App’x 438, 444 (5th
Cir. 2014) (citing Shaw v. Burchfield, 481 So. 2d 247, 255 (Miss. 1985)); see also
Morrison v. Miss. Enter. for Tech., Inc., 798 So.2d 567, 575 (Miss. App. 2001). In
order to resolve this dispute, then, the Court must determine whether Alabama or
Mississippi law applies.
“Federal courts hearing state law claims under diversity or supplemental
jurisdiction apply the forum state’s choice of law rules to select the applicable state
substantive law.” Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sarris, D.D.S., P.A.,
781 F.3d 1245, 1260 (11th Cir. 2015) (quoting McCoy v. Iberdrola Renewables, Inc.,
760 F.3d 674, 684 (7th Cir. 2014)). “Alabama law follows the traditional conflictof-law principles of . . . lex loci delicti. . . . Under the principle of lex loci delicti, an
Alabama court will determine the substantive rights of an injured party according
to the law of the state where the injury occurred.” Precision Gear Co. v. Cont’l
Motors, Inc., 135 So. 3d 953, 956 (Ala. 2013) (quoting Lifestar Response of Alabama,
Inc. v. Admiral Ins. Co., 17 So.3d 200, 213 (Ala. 2009)). Regardless of whether a tort
claim arose from a business relationship, it is still treated as a tort claim for
purposes of Alabama’s conflict-of-law precedent. Batey & Sanders, Inc. v. Dodd, 755
So. 2d 581, 583 (Ala. Civ. App. 1999).

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Plaintiff’s tortious interference claim is based on the actions by Defendants
leading up to and including the termination of his employment. The parties dispute
where those actions occurred, often taking different inferences from the same
allegations in Plaintiff’s Complaint to do so. A review of these allegations shows
that Plaintiff was a resident of the State of Alabama, but that he worked extensively
on the Kemper Project in Mississippi. (Doc. 1 ¶ 11.) Plaintiff has pled in the
alternative that he was employed by either the Southern Company, incorporated
under the laws of Delaware with its headquarters in Atlanta, or SCS which is
incorporated and based in Alabama. The Complaint is silent on Plaintiff’s location
when he was terminated. (Id. at ¶ 90.) Defendants argue that Plaintiff was home on
administrative leave when he was informed that his employment was to be
terminated. Plaintiff disputes this conclusion, and states that he was actually
terminated in Mississippi.
Defendants acknowledge in their reply that “district courts commonly
reserve conflict of law questions for summary judgment.” (Doc. 34 at 6.)
Quixotically, Defendants then quibble with Plaintiff about facts outside the

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Complaint to establish that Plaintiff’s firing actually occurred in Alabama, and not
Mississippi.2 The issue is not as simple as where Plaintiff learned that he was fired:
It is true, on the one hand, that the state where the injury occurred
would, under most circumstances, be the decisive consideration in
determining the applicable choice of law. But it is equally true that the
state where the injury occurred may have little actual significance for
the cause of action, and that other factors may combine to outweigh
the place of injury as a controlling consideration. Conflict-of-laws
questions thus cannot be resolved by reciting general
pronouncements; to determine which sovereign has the most
significant relationship to a particular issue, a court must instead
examine the facts and circumstances presented in each particular case.
Judge v. American Motors Corp., 908 F.2d 1565, 1568 (11th Cir. 1990) (citations and
quotation marks omitted). The Court does not have before it the “facts and
circumstances” needed to decide this complex choice-of-law issue. It is unclear
from the complaint where Plaintiff was fired, where Plaintiff worked before and
during the facts that occurred on the Kemper Project, and other facts necessary to
make a choice-of-law holding. Given the fact-intensive inquiry required to
determine whether Alabama or Mississippi law applies, a choice-of-law analysis
would be better reserved for summary judgment, where the Court would have the
benefit of a proper and more-thoroughly developed record. AXA Pac. Ins. Co. v.
Piper Aircraft Corp. Irrevocable Tr., No. 15-24792-CV, 2017 WL 1439936, at *1 (S.D.
2

Defendants cite Plaintiff’s administrative complaint to OSHA for the proposition that he was
terminated in Alabama because Plaintiff listed his mailing address in Homewood, Alabama.
Whether Plaintiff resided in Alabama at the time of the First Complaint’s filing is not dispositive
of where Plaintiff was fired. (Doc. 31-5 at 32.)
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Fla. Jan. 25, 2017). Indeed, the Court instructed the parties during the January 4,
2018 discovery hearing that unless the motion to dismiss made an actual difference
to discovery and could properly be dealt with at the motion-to-dismiss stage, that
the Court would determine the issue at summary judgment. (Doc. 52 at 73-75.)
Given the dearth of factual disputes concerning the apparent choice-of-law issue,
the Court declines to decide the merits of this dispute until summary judgment.
Defendants argue that Plaintiff’s tortious interference claim should be
dismissed even under Mississippi law for the Plaintiff’s failure to plead bad faith.
They rightly point out that these allegations largely are legal conclusions without
operative fact. (See Doc. 1 ¶ 113.) Plaintiff has likewise asked for leave to amend his
complaint in the event that the Court finds that Plaintiff did actually fail to plead
bad faith, although Plaintiff also argues that his current pleadings are sufficient.
Plaintiff has leave within ten (10) days of the entry of this Memorandum of Opinion
to file an Amended Complaint to better articulate the basis for Defendants’ bad
faith in regards to Plaintiff’s tortious interference claim.
IV.

CONCLUSION

For the reasons stated above, Defendants’ Partial Motion to Dismiss is due
to be GRANTED in Part and DENIED in PART. An Order consistent with this
Memorandum of Opinion will be entered separately.
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DONE and ORDERED on May 29, 2018.

_____________________________
L. Scott Coogler
United States District Judge
190485

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