Logan v. Hub Group Trucking et al
MEMORANDUM OPINION and ORDER; Defendants Motion to Dismiss is granted; Counts I, III, IV, and V of Plaintiffs complaint are dismissed with prejudice as to the Defendants Cheryl Bowie and Hub Group Trucking doing business as Comtrak Logistics, Inc.; Claims I, IV, and V remain pending against the other defendants. Signed by Judge C Lynwood Smith, Jr on 03/28/16. (SPT )
2016 Mar-28 AM 11:08
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
) Case No. 5:15-cv-01674-CLS
HUB GROUP TRUCKING, d/b/a
COMTRAK LOGISTICS, INC.,
CHERYL BOWIE, FTS FLEET
SERVICES, L.L.C., STEVE HESTER, )
and LINDSEY MARTIN
MEMORANDUM OPINION AND ORDER DISMISSING FEWER THAN
This action is before the court on the “Motion to Dismiss, or, in the Alternative,
for Summary Judgment,” filed by defendants Hub Group Trucking and Cheryl
Bowie.1 Defendants argue that plaintiff’s claims are barred by the applicable statutes
of limitations, and, therefore, should be dismissed for failure to state a claim upon
which relief can be granted. See Fed. R. Civ. P. 12(b)(6). In support of their motion,
defendants state the following facts:
The Plaintiff filed a Complaint against Hub Group, Bowie, and
three other Defendants on September 24, 2015. As to Hub Group
and Bowie, the Plaintiff is asserting claims for defamation and
Doc. no. 14.
libel per se (Count I); negligence/wantonness/willfulness/recklessness
(Count III); invasion of privacy (Count IV); and conspiracy
(Count V). (Doc. 1).
The Plaintiff contends that Hub Group, Bowie, and the other
Defendants disseminated false information about him in an effort
to “foul” his opportunity to obtain employment as a commercial
truck driver. (Doc. 1).
Defendant Hub Group is not identified correctly in the complaint.
The correct name of Defendant Hub Group is Hub Group
Trucking, Inc. (“Hub Group Trucking”). It was formerly known
as Comtrak Logistics, Inc. (“Comtrak”).
Comtrak received an owner-operator application from the
Plaintiff on or around April 18, 2013. Pursuant to the Federal
Motor Carrier Safety Regulations, Comtrak issued work
verification requests to companies for which the Plaintiff
previously worked as identified by him in his application.
(Affidavit of Cheryl Bowie, attached hereto as exhibit “1”).
One of the companies for which the Plaintiff previously worked
responded to Comtrak on or around April 23, 2013, that the
Plaintiff had refused to submit to a random drug test during the
course of his performance of services for the company. (Exhibit
As certain information contained in the response from the
company was inconsistent with the information the Plaintiff
provided to Comtrak in his owner-operator application, Comtrak
elected to terminate the Plaintiff as an owner-operator. (Exhibit
Comtrak submitted the information concerning the Plaintiff’s
work history with Comtrak — including the reason for his
termination — to HireRight which generates DAC Reports2 on
commercial truck drivers. The DAC Report concerning the
Plaintiff reflects that Comtrak submitted the information on May
3, 2013. (Exhibit “1”).
Doc. no. 14 (Motion to Dismiss, or, in the Alternative, for Summary Judgment), at
ECF 2-3 (footnote in original).3
“While Alabama law governs the length of the limitations period, federal law
determines at what point the limitations period begins to run.” Smith v. Duff &
Phelps, Inc., 891 F.2d 1567, 1571 (11th Cir. 1990) (citing Durham v. Business
Management Associates, 847 F.2d 1505, 1508 (11th Cir. 1988)) (in turn citing
Osterneck v. E.T. Barwick Indus., Inc., 825 F.2d 1521, 1531 (11th Cir. 1987)))
(emphasis supplied). “Under federal law, the statute of limitations begins to run
‘when the plaintiff discovers, or in the exercise of reasonable diligence should have
discovered the alleged violations.’” Smith, 901 F.2d at 1571 (quoting Durham, 847
F.2d at 1508)).
DAC Reports contain summaries of a commercial truck driver’s work history.
“ECF is the acronym for Electronic Case Filing, a filing system that allows parties to file
and serve documents electronically.” Atterbury v. Foulk, No. C-07-6256 MHP, 2009 WL 4723547,
*6 n.6 (N.D. Cal. Dec. 8, 2009). Bluebook Rule 7.1.4 allows citation to “page numbers generated
by the ECF header.” Wilson v. Fullwood, 772 F. Supp. 2d 246, 257 n.5 (D.D.C. 2011) (citing The
Bluebook: A Uniform System of Citation R. B. 7.1.4, at 21 (Columbia Law Review Ass’n et al. Eds.,
19th ed. 2010)). Even so, the Bluebook recommends “against citation to ECF pagination in lieu of
original pagination.” Wilson, 772 F. Supp. 2d at 257 n.5. Thus, unless stated otherwise, this court
will cite to the original pagination in the parties’ pleadings. When the court cites to pagination
generated by the ECF header, it will, as here, precede the page number with the letters “ECF.”
Under Alabama law, “[a]ll claims of libel or slander must be brought within
two years.” Ala. Code § 6-2-38(k) (1975) (alteration supplied). Moreover, “[a]ll
claims of injury to the person or rights of another not arising from contract and not
specifically enumerated in this section must be brought within two years.” Ala. Code
§ 6-2-38(l) (1975) (alteration supplied). The Alabama Supreme Court has construed
§ 6-2-38(l) as applying to negligence and wantonness claims. See Ex parte Tate &
Lyle Sucralose, Inc., 81 So. 3d 1217, 1220 (Ala. 2011) (negligence); Ex parte
Capstone Building Corp., 96 So. 3d 77, 86 (Ala. 2012) (wantonness). Finally,
although this court has not located any Alabama authority specifying which Alabama
Code provision applies to privacy-related torts, the Eleventh Circuit, applying
Alabama law, has held that § 6-2-38(l) applies to invasion of privacy claims. See
Chambless v. Louisiana-Pacific Corp., 481 F.3d 1345, 1350 (11th Cir. 2007).
Plaintiff alleges that Hub Group and Bowie defamed him by
disseminating information concerning the circumstances of his
termination to Hire Right, which, in turn, generated the DAC Report
referenced in the complaint. HireRight received the information from
the Defendants on May 3, 2013 which is the date on which the statute
of limitations for the defamation and libel claims began to run.
Plaintiff’s September 24, 2015 complaint was therefore filed over four
months late and, accordingly, his defamation and libel claims are due to
[T]he Plaintiff contends that Hub Group and Bowie were negligent
and/or wanton in submitting information concerning his work history to
HireRight. He is claiming damages due to the fact that he has not been
able to find employment as a truck driver since the information was
submitted. Again, HireRight’s records reflect that it received the
information from Hub Group on May 3, 2013. Based on the allegations
in the Plaintiff’s complaint, his negligence and wantonness claims
accrued at that time. Those claims were not asserted, however, until
September 24, 2015, over four months after the statute of limitations
expired. They are also due to be dismissed.
The Plaintiff states that the invasion of privacy occurred when Hub
Group and Bowie submitted the information to HireRight. Again, that
information was submitted on May 3, 2013 and, accordingly, Plaintiff’s
invasion of privacy claims are barred by the statute of limitations.
Doc. no. 14 (Motion to Dismiss, or, in the Alternative, for Summary Judgment), at
ECF 4-5 (ellipsis and alteration supplied).
Finally, defendants claim that, because the aforementioned claims are timebarred, plaintiff’s conspiracy claim also should be dismissed.4 The Alabama Supreme
Court has stated that “a conspiracy itself furnishes no cause of action. The gist of the
action is not the conspiracy but the underlying wrong that was allegedly committed.
If the underlying cause of action is not viable, the conspiracy claim must also fail.”
Spain v. Brown & Williamson Tobacco Corp., 872 So. 2d 101, 123 (Ala. 2003)
(quoting Allied Supply Co., Inc. v. Brown, 585 So. 2d 33, 36 (Ala. 1991)) (internal
Doc. no. 14 (Motion to Dismiss, or, in the Alternative, for Summary Judgment), at ECF 6.
quotation marks and citations omitted). Plaintiff’s complaint alleges that “Defendants
collectively conspired to damage Plaintiff’s reputation by reporting false information
to both Comtrak and Plaintiff’s DAC report.”5 Thus, it appears that plaintiff’s
conspiracy claim is premised upon his claims of defamation, negligence/wantonness,
and/or invasion of privacy, and cannot be viable if those claims are time-barred.
Plaintiff does not dispute that Counts I, III, and IV of his complaint are
governed by two-year statutes of limitations, but attempts to salvage them by
asserting the so-called “continuing violation doctrine.”6 That doctrine “permits a
plaintiff to sue on an otherwise time-barred claim when additional violations of the
law occur within the statutory period.” Center for Biological Diversity v. Hamilton,
453 F.3d 1331, 1334 (11th Cir. 2006). The Eleventh Circuit has limited the scope of
that doctrine in several ways. As an initial matter, that Court “has distinguished
between the continuing effects of a discrete violation and continuing violations. . . .”
Id. at 1335 (emphasis and ellipsis supplied). The doctrine also is restricted “to
situations in which a reasonably prudent plaintiff would have been unable to detect
that a violation had occurred.” Id. In other words, “if an event or series of events
should have alerted a reasonable plaintiff to act to assert his or her rights at the time
Doc. no. 1 (Complaint), ¶ 36.
See doc. no. 24 (Plaintiff’s Response in Opposition to Motion to Dismiss), at 4.
of the violation, the victim cannot later rely on the continuing violation doctrine. . .
.” Hipp v. Liberty National Life Insurance Co., 252 F.3d 1208, 1222 (11th Cir. 2001)
(quoting Berry v. Board of Supervisors, 715 F.2d 971, 981 (5th Cir. 1983)) (ellipsis
supplied); see also id. (quoting Alldread v. City of Grenada, 988 F.2d 1425, 1432
(5th Cir. 1993)) ( holding that the continuing violation doctrine rests upon the idea
that “the statute of limitations ought not to begin to run until facts supportive of the
cause of action are or should be apparent to a reasonably prudent person similarly
situated”) (internal quotation marks omitted, emphasis supplied).
Plaintiff contends that he “has not alleged only one isolated instance of
misconduct against defendants, but, rather, a series of continuing violations.”7 He
states that, although the harm “began in May of 2013,” the “information submitted
to HireRight has prevented [him] from obtaining employment as a truck driver on
numerous occasions since May of 2013.”8 Additionally, plaintiff’s attorney sent a
letter to defendant Hub Group Trucking (formerly known as Comtrak) on March 28,
2014, advising that entity that plaintiff “has never refused to take a drug test,” and
requesting that it “correct the report provided to HireRight to remove any negative
entries.”9 Under the Eleventh Circuit precedent set forth above, plaintiff cannot
Doc. no. 24 (Plaintiff’s Response in Opposition to Motion to Dismiss), at ECF 3.
Id. (emphasis and alteration supplied).
See doc. no. 24-1 (March 28, 2014 Letter).
benefit from the “continuing violation doctrine” simply by asserting that he still
experiences difficulty in finding employment as a truck driver: that is not a new
violation, but, rather, a continuing effect of defendants’ original act of reporting
allegedly false information to the HireRight database. Furthermore, even though
plaintiff’s attorney sent a letter to one of the defendants on March 28, 2014 requesting
that it rectify the inaccuracies, “facts supportive of” plaintiff’s causes of action
“[were] or should [have been] apparent” to plaintiff long before that date. See Hipp,
252 F.3d at 1222.
The record does not contain the first date on which plaintiff was refused
employment as a result of the allegedly false information reported by Comtrak. That
date would have provided a clear, bright line for determining when plaintiff knew or
should have known of facts supporting his claims. Even so, plaintiff’s employment
with Comtrak was terminated on some date between April 23, 2013, when plaintiff’s
previous employer reported that he had refused to undergo a random drug test, and
May 3, 2013, when Comtrak submitted that information, as the “reason for his
termination,” to the HireRight database.10 Because plaintiff earned his livelihood as
a truck driver, he probably began to seek employment as a truck driver immediately
See doc. no. 14 (Motion to Dismiss), at ECF 2-3. Plaintiff does not dispute the accuracy
of those dates in his responsive brief.
or shortly after the date on which his employment with Comtrak was terminated. This
court therefore concludes that plaintiff learned that defendants had submitted the
allegedly false information to HireRight long before September 24, 2013, the latest
date on which plaintiff could have learned of the alleged injury in order for his
September 24, 2015 filing to have been timely.
In light of all of the foregoing, defendants’ motion to dismiss is GRANTED.
Counts I, III, IV, and V of plaintiff’s complaint are DISMISSED with prejudice as to
the defendants designated in the complaint as “Cheryl Bowie” and “Hub Group
Trucking doing business as Comtrak Logistics, Inc.” (but which counsel for those
defendants alleges are correctly named “Hub Group Trucking, Inc., formerly known
as Comtrak Logistics, Inc.”). Claims I, IV, and V remain pending against the other
DONE and ORDERED this 28th day of March, 2016.
United States District Judge
Count III sought relief only from “Defendant Hub Group/Comtrak.” See doc. no. 1
(Complaint), at ECF 6.
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