Jones v. OCE Imagistics, Inc.
ORDER granting 26 Motion for Summary Judgment filed by Oce Imagistics, Inc. Signed by Judge Callie V. S. Granade on 12/3/2012. (mab)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
OCÉ IMAGISTICS, INC.,
CASE NO. 1:12-cv-163-CG-M
This matter is before the court on the motion for summary judgment
filed by the defendant, Océ Imagistics, Inc. (“OCE”) (Doc. 26). The court has
reviewed the parties’ respective briefs (Docs. 27, 34, and 35), and the case is
now ripe for resolution. For the reasons stated herein, the court finds that
OCE’s motion is due to be GRANTED.
The plaintiff, Paul Jones (“Jones”), was employed as a salesperson by
Harris Business Machines, Inc. (“Harris”), until January 2011. (Doc. 1-1 at
11). Previously, as part of his employment with Harris, Jones had executed a
non-compete agreement (the “non-compete agreement”) in which he agreed
that “[f]or a period of 12 months following [his] termination, [Jones] will not,
without the prior written consent of [Harris] … be employed by … any
business which is competitive with [Harris] and which is located within a
seventy-five (75) mile radius of any office of [Harris].” (Doc. 28-2 at 2).
In approximately January 2011, Jones applied for a sales position with
OCE, and attached a copy of the non-compete agreement to his employment
application. (Doc. 28-3 at 1, ¶2(a)). Jones also told OCE’s Mobile branch
manager, Rick Lose (“Lose”), that he was bound by the non-compete
agreement, (Doc. 34-1 at 1, ¶ 4), to which Lose replied, “Don’t worry about it;
everybody has a non-compete agreement in this industry.” (Doc. 34-1 at 1, ¶
5). Shortly thereafter, Lose told Jones that OCE’s legal department wanted
to review the non-compete agreement, and then reported back later that
“[t]he Legal Department says that the non-compete agreement is not
enforceable. Within a couple of weeks, you will get a letter from Harris.
Bring it in, and we’ll handle it.” (Doc. 34-1 at 1-2).
On January 7, 2011, OCE sent Jones a letter containing an
employment offer (the “offer letter”). (Doc. 35-1). The offer letter expressly
stated the following:
“[y]ou have acknowledged to Océ that you have signed a
non-compete/confidentiality agreement (“Confidential
Information Agreement”) with your current or former
employer and you agree to abide by its terms and
conditions. You should retain your own attorney to
advise you on the enforceability of the Confidential
Information Agreement you signed with your current or
former employer. Océ offers no opinion as [to] the
enforceability of the Confidential Information
In the event that you are sued by your current or
former employer, you must retain your own attorney
since Océ will not hire legal counsel to represent you.
Should such a lawsuit be filed against you or should
Océ be named as a defendant in a lawsuit as a result of
hiring you, Océ may take additional actions in response
to the lawsuit.
Id. at 3 (emphasis added).
Jones subsequently signed the offer letter, resigned from Harris, and
began working at OCE on January 18, 2011. (Doc. 27 at 4). Just over two
weeks later, on February 4, Harris’ attorneys sent a letter to Jones (the
“Harris letter”) stating that Harris considered Jones’ employment at OCE to
be a violation of the non-compete agreement. (Doc. 28-5). As previously
discussed, Jones brought the letter to Lose, who told Jones, “Don’t worry
about it. Just stay out of their accounts, and it will be just fine.” (Doc. 34-1
at 2, ¶ 10). Lose subsequently reported back to Jones that OCE’s regional
vice president had agreed to pay up to $10,000.00 for Jones to hire an
attorney to “handle” the case. Id. at ¶ 11.
On February 11, OCE responded through counsel to the Harris letter
stating that it had “serious questions” about the enforceability of the noncompete agreement. (Doc. 28-6). Harris replied with yet another letter on
February 17, threatening to file suit unless OCE confirmed within seven days
that Jones was no longer employed at OCE. (Doc. 28-7).
After Harris threatened to file suit, Lose told Jones that OCE’s legal
department overrode the regional vice president regarding the $10,000.00
payment to “handle” the Harris case, and told Jones that he could either (1)
resign his position with OCE and be eligible for rehiring if and when Jones
resolved the issue of the non-compete agreement with Harris, or (2) OCE
would fire Jones and he would not be eligible for rehiring. Id. at ¶ 12. Jones
reluctantly chose the former option. (Doc. 1-1 at 12).
Jones now alleges a state law claim against OCE for fraudulent
misrepresentation. (Doc. 1-1 at 13). Although Jones initially filed suit in the
Circuit Court of Mobile County, see id. at 10, OCE removed the case to this
court pursuant to 28 U.S.C. §§ 1441 and 1446. (Doc. 1). This court
previously denied Jones’ motion to remand on August 2, 2012. (Doc. 25).
SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56(a) provides that summary judgment
shall be granted “if the pleadings, the discovery and disclosure materials on
file, and any affidavits show that there is no genuine dispute as to any
material fact and that the movant is entitled to judgment as a matter of law.”
The trial court=s function is not “to weigh the evidence and determine the
truth of the matter but to determine whether there is a genuine issue for
trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986). “The mere existence of some evidence to support the
non-moving party is not sufficient for denial of summary judgment; there
must be ‘sufficient evidence favoring the nonmoving party for a jury to return
a verdict for that party.’” Bailey v. Allgas, Inc., 284 F.3d 1237, 1243 (11th Cir.
2002) (quoting Anderson, 477 U.S. at 249). “If the evidence is merely
colorable, or is not significantly probative, summary judgment may be
granted.” Anderson, 477 U.S. at 249-250. (internal citations omitted).
The basic issue before the court on a motion for summary judgment is
“whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail
as a matter of law.” See Anderson, 477 U.S. at 251-252. The moving party
bears the burden of proving that no genuine issue of material fact exists.
O'Ferrell v. United States, 253 F.3d 1257, 1265 (11th Cir. 2001). In
evaluating the argument of the moving party, the court must view all
evidence in the light most favorable to the non-moving party, and resolve all
reasonable doubts about the facts in its favor. Burton v. City of Belle Glade,
178 F.3d 1175, 1187 (11th Cir. 1999). “If reasonable minds could differ on
the inferences arising from undisputed facts, then a court should deny
summary judgment.” Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d
1518, 1534 (11th Cir. 1992) (citing Mercantile Bank & Trust v. Fidelity &
Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)).
Once the movant satisfies his initial burden under Rule 56(c), the nonmoving party “must make a sufficient showing to establish the existence of
each essential element to that party's case, and on which that party will bear
the burden of proof at trial.” Howard v. BP Oil Company, 32 F.3d 520, 524
(11th Cir. 1994)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).
Otherwise stated, the non-movant must “demonstrate that there is indeed a
material issue of fact that precludes summary judgment.” See Clark v. Coats
& Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The non-moving party
“may not rely merely on allegations or denials in [the non-moving party=s]
pleading; rather, its response .... must B by affidavits or as otherwise
provided in this rule B set out specific facts showing a genuine issue for trial.”
FED. R. CIV. P. 56(e). “A mere ‘scintilla’ of evidence supporting the [nonmoving] party=s position will not suffice; there must be enough of a showing
that the jury could reasonably find for that party.” Walker v. Darby, 911
F.2d 1573, 1577 (11th Cir. 1990) (citation omitted). “[T]he nonmoving party
may avail itself of all facts and justifiable inferences in the record taken as a
whole.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th Cir.
1992). “Where the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party, there is no genuine issue for trial.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587,
106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal quotation and citation
FRAUDULENT MISREPRESENTATION v. PROMISSORY FRAUD
The elements of fraud are: (1) a false representation (2) of a material
existing fact (3) relied upon by the plaintiff (4) who was damaged as a
proximate result of the misrepresentation. Robinson v. Sovran Acquisition
Ltd. P’ship, 70 So.3d 390, 396 (Ala.Civ.App. Feb. 11, 2011) (citing Coastal
Concrete Co. v. Patterson, 503 So.2d 824, 826 (Ala. 1987). Jones points to his
own affidavit as evidence of Lose’s statements and argues that they satisfy
these four elements. (Doc. 34-1 at 1-2). However, Jones has not presented
evidence that Lose’s first statement – i.e., that Jones should not worry and
that “everybody has a non-compete agreement in this industry” – was either
false or a material fact. Nor has Jones presented evidence which suggests
that Lose’s second statement – that “the Legal Department says that the noncompete agreement is not enforceable” – was either false or a material fact.
See RBC Bank v. CMI Electronics, Inc., 2010 WL 2719096, *8 (M.D. Ala.
2010) (quoting McCutchen Co., Inc. v. Media Gen'l, Inc., 988 So.2d 998, 1002
(Ala.2008)) (“[A] mere statement of opinion or prediction as to events to occur
in the future is not a statement of a ‘material fact’ upon which individuals
have the right to rely and, therefore, it will not support a fraud claim.”).
Furthermore, it is self-evident that Lose’s third statement – that Jones
would receive a letter from Harris “in a couple of weeks,” and should bring it
in to OCE and “we’ll handle it” – was a statement “relating to an event to
occur in the future.” See National Security Ins. Co. v. Donaldson, 664 So.2d
871, 876 (Ala. 1995). If, as here, the alleged fraud is based upon a promise to
perform or abstain from performing in the future, then the claim is one of
promissory fraud and two additional elements must be proved: (1) the
defendant's intention, at the time of the alleged misrepresentation, not to do
the act promised, coupled with (2) an intent to deceive. Robinson at 396.
Jones has presented neither evidence nor argument concerning either of
these additional two elements.
Jones argues that Lose’s statements were representations of material
existing facts, i.e.. “that [Jones’] non-compete agreement with Harris would
not be an issue effecting [sic] Jones [sic] employment with OCE even if Harris
sought to enforce the agreement.” (Doc. 34 at 2). But this characterization of
Lose’s statement clearly constitutes an allegation of promissory fraud, where
“the material existing fact that is misrepresented is the defendant's state of
mind, when the defendant represents that he intends to perform some act
although he does not in fact intend to perform it.” Id. (quoting Spring Hill
Lighting & Supply Co. v. Square D Co., 662 So.2d 1141, 1149 (Ala. 1995)).
Accordingly, the court finds that Jones has failed to make out a prima
facie case of fraudulent misrepresentation and has failed to make a prima
facie case of promissory fraud with regard to Lose’s third statement. The
remaining statements quoted in Jones’ affidavit allegedly occurred after
Jones accepted employment at OCE, and therefore Jones cannot claim to
have relied upon them. Consequently, OCE’s motion for summary judgment
is due to be granted.
OCE’S WRITTEN DISCLOSURES
Even if Jones had established a prima facie case of fraudulent
misrepresentation and promissory fraud, the court would still find that the
defendant’s summary judgment motion was due to be granted. This is
because Jones has not presented evidence to counter OCE’s express written
warnings in its January 7, 2011, offer letter. See Doc. 35-1 at 3. These
warnings included a statement that Jones should retain his own attorney to
review the enforceability of the non-compete agreement. The warnings in the
January 7 letter also included a statement that, notwithstanding the OCE
legal department’s previously stated opinion that the non-compete agreement
was not enforceable, “Océ offers no opinion as [to] the enforceability of this
Confidential Information Agreement.” Id.
Under the law of Alabama, there is a general duty on the part of a
person to read the documents received in connection with a particular
transaction. Foremost Ins. Co. v. Parham, 693 So.2d 409, 421 (Ala. 1997)
(overruling Hickox v. Stover,
551 So.2d 259 (Ala.1989)).
Therefore, “an oral
misrepresentation, even if proven, does not give rise to a fraud claim where a
party receives written disclosures which contradict the oral statements.
Those written statements place a party on notice that the oral
representations may not be true. This notice undercuts any reasonable
reliance, which is an essential element of a fraud claim.” Harris v. Howell,
739 F.Supp. 565, 567-68 (N.D. Ala. 1989) (citing Bedwell Lumber Co., Inc. v.
T & T Corp., 386 So.2d 413, 415 (Ala. 1980)). A plaintiff cannot blindly
accept statements from the defendant as true, as “it is the policy of courts not
only to discourage fraud but also to discourage negligence and inattention to
one's own interests.” Alfa Life Ins. Corp. v. Green, 881 So.2d 987, 991-92
(Ala. 2003) (quoting Torres v. State Farm Fire & Casualty Co., 438 So.2d 757,
758 (Ala. 1983)). A party has a “duty to read and inspect any document
which might affect that person's legal rights or liabilities.” Ramp Operations,
Inc. v. Reliance Insurance Co., 805 F.2d 1552, 1556 (11th Cir. 1986).
While the court is sympathetic to Jones’ situation, it nevertheless finds
that OCE’s motion for summary judgment is due to be GRANTED for the
reasons stated above.
DONE and ORDERED this 3rd day of November, 2012.
/s/ Callie V.S. Granade
UNITED STATES DISTRICT JUDGE
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