Scarborough v. Federated Mutual Insurance Company
MEMORANDUM OPINION AND ORDER. 1. Defendant Federated Mutual Insurance Company's Motion for Summary Judgment (Doc. No. 77 ) is GRANTED IN PART and DENIED IN PART, as follows: a. Defendant's Motion is GRANTED as to Count I of Plaintiff 9;s Second Amended Complaint (Doc. No. 38 ). Therefore, Plaintiffs Second Amended Complaint is DISMISSED WITH PREJUDICE. b. Defendants Motion is GRANTED as to Defendants Counterclaim (Doc. No. 76 ), subject to the parties' submission as to the reasonableness of the attorney fees and a finding by the Court that the attorney fees are reasonable. 2. Within thirty (30) days of this Order, the parties will submit briefing and other documentation to demonstrating why Defendant's requested attorney fees are or are not reasonable. The briefing shall not exceed five (5) pages. The Court reserves the right to hold a hearing on the issue. (Written Opinion) Signed by Judge Donovan W. Frank on 2/1/2017. (BJS)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 15-1633 (DWF/FLN)
Federated Mutual Insurance Company,
OPINION AND ORDER
David H. Redden, Esq., and John A. Fabain, Esq., Fabian May & Anderson PLLP,
counsel for Plaintiff.
Britt M. Gilbertson, Esq., Danielle W. Fitzsimmons, Esq., and Gregory J. Stenmoe, Esq.,
Briggs & Morgan, PA, counsel for Defendant.
This matter is before the Court on a Motion for Summary Judgment brought by
Defendant Federated Mutual Insurance Company (generally, “Federated”). (Doc.
No. 77.) Plaintiff Jonathan Scarborough filed a claim against Federated alleging that he
was terminated in violation of Minnesota’s Whistleblower Act (“MWA”), Minnesota
Statute §§ 181.931–.932. Additionally, Federated moves for summary judgment for its
counterclaim for breach of a forum selection clause. For the reasons set forth below, the
Court grants the motion in part.
Until recently, Scarborough was a Regional Marketing Manager (“RMM”) for
Federated. (Doc. No. 84 (“Redden Decl.”) ¶ 3, Ex. 1. (“Scarborough Dep.”) at 12;
Redden Decl. ¶ 3, Ex. 2 (“Kerr Dep.”) at 23.) He had held that position since 2012. (Id.)
Scarborough supervised six District Marketing Managers (“DMM”). (Doc. No. 85
(“Scarborough Decl.”) ¶ 2.) Scarborough’s role as RMM included reviewing and
approving DMMs’ expense reports. (Doc No. 80 (“Fitzsimmons Aff.”) ¶ 2, Ex. 15.)
One of Scarborough’s DMMs was Frederick Johnston. (Scarborough Dep. 46.)
On July 1, 2014, Johnston’s assistant submitted Johnston’s expense report for his
company credit card. (Fitzsimmons Aff. ¶ 2, Ex. 16.) The report included a personal
expense for custom framing. (Id.) The next day, the Marketing Administration Manager
Rhonda Kath e-mailed Johnston about the framing expense. (Redden Decl. ¶ 2, Ex. 7
(“Kath Dep.”) at 28.) Johnston lied to Kath about the expense, claiming that it was for
laminating services or printer ink. (Id. at 25.) Unconvinced, Kath inquired directly with
the store and learned that the expense was for framing pictures of Johnston’s European
vacation. (Id. at 35.)
With the lie rooted out, Kath e-mailed her supervisor, who brought in
Scarborough’s supervisor Michael Pennington. (Fitzsimmons Aff. ¶ 2, Exs. 18 & 19.)
Pennington then updated Scarborough. (Fitzsimmons Aff. ¶ 2, Ex. 19.) When
Pennington and Scarborough spoke about Johnston’s frame expense, Scarborough
mentioned that Johnston liked expensive things, including that, “Johnston liked to hold
meetings at the law offices of Husch Blackwell, even though he could probably find a
less expensive venue to hold the meetings.” (Doc. No. 38 (“Second Amended Compl.”)
¶ 10.) Pennington replied, “What are you talking about? [Johnston] gets those meeting
rooms for free.” (Scarborough Dep. at 69.) Scarborough explained that Johnston had
been submitting invoices for those meetings. (Id.) Their conversation ended with
Scarborough telling Pennington that he would investigate the issue further. (Id. at 52.)
On July 14, 2014, Scarborough exchanged e-mails with Husch Blackwell, which
confirmed that the meetings were free. (Fitzsimmons Aff. ¶ 2, Ex. 21.) Scarborough
forwarded the e-mails to Pennington, and they agreed to talk with Johnston about the
invoices in addition to the framing expense. (Id.)
On July 21, 2014, Scarborough and Pennington met with Johnston. (Scarborough
Dep. at 87–88; Redden Decl. ¶ 3, Ex. 3 (“Pennington Dep.”) at 109.) Prior to the
meeting, Pennington asked if Scarborough had prior knowledge about the false invoices,
and Scarborough denied it. (See Fitzsimmons Aff. ¶ 2, Ex. 27.) In the meeting, Johnston
admitted to everything—to the falsified invoices and to the custom framing. (Pennington
Dep. at 109–110.) Later that day, Johnston called Pennington to tell him that
Scarborough had known about Johnston’s scheme “from the very beginning” and that
Scarborough had convinced Braxton Weaver to do the same thing. (Fitzsimmons Aff.
¶ 2, Ex. 27; Redden Decl. ¶ 3, Ex. 5 (“Johnston Dep.”) at 170–72.) Federated would later
determine that Johnston had expensed Husch Blackwell meetings since July 2012,
including a few invoices that occurred before Scarborough began supervising Johnston.
(See Pennington Dep. at 60-61.)
On July 24, 2014, Scarborough met with Pennington and Pennington’s supervisor
Mike Kerr. (Fitzsimmons Aff. ¶ 2, Ex. 27.) At the July 24 meeting, Kerr asked
Scarborough about whether he had prior knowledge of Johnston’s invoicing practice.
Again, Scarborough denied having any prior knowledge. (Id.)
Pennington and Kerr continued to investigate whether other DMMs had also
falsified invoices. Pennington spoke with Weaver on July 24, 2014. (Pennington Dep. at
135.) Weaver apparently confirmed that Scarborough had told Weaver to contact
Johnston about falsifying invoices. (Redden Decl. ¶ 3, Ex. 6 (“Weaver Dep.”) at 61.)
Then Weaver repeated that Scarborough knew about the fraudulent scheme in a later
meeting with both Kerr and Pennington. (Kerr Dep. 56–57; Weaver Dep. 67–71.)
On July 30, 2014, Scarborough met again with Kerr and Pennington. (Kerr Dep.
at 70.) At the meeting, Scarborough allegedly told Pennington and Kerr that Federated
likely violated tax laws because it had not applied the proper withholdings to the funds
that Johnston had taken. (Doc. No. 83 (“Pl.’s Opp.”) at 12; Scarborough Decl. ¶ 10.)
Neither Kerr nor Pennington remembers Scarborough bringing up tax violations or other
illegalities related to Johnston’s false invoices. (Kerr Dep. at 86; Pennington Dep. at
On August 4, 2014, Pennington, Scarborough, and Johnston met. (Scarborough
Dep. at 110.) At this point, Pennington wanted to keep Johnston at Federated, while
Scarborough wanted Johnston fired. (Scarborough Decl. ¶ 3.) Instead, Johnston was
offered a choice of resigning or being demoted. (Fitzsimmons Aff. ¶ 2, Ex. 28.) After
Johnston left the meeting, Pennington issued a warning letter to Scarborough because
Scarborough continued to deny his prior knowledge of Johnston’s fraudulent scheme.
(Fitzsimmons Aff. ¶ 2, Ex. 29.)
After the August 4 warning letter, from Federated’s perspective, Scarborough was
on thin ice. (Id. (“[A]ny future misconduct will likely result in the termination of your
employment with Federated.”).) And by August 20, 2014, Federated would demote and
then ultimately fire Scarborough. What happened between August 4 and August 20
depends on the party you ask. According to Scarborough, Pennington manufactured
evidence to create grounds to have Scarborough fired. (Doc. No. 79 (“Def.’s Memo.”) at
13–18.) According to Federated, after August 4, it learned that Scarborough had charged
personal expenses to his company credit card and that Scarborough began spreading
rumors that DMMs were being fired. 1 (Pl.’s Opp. 19–23.)
On December 26, 2014, Scarborough filed suit in District Court of Johnston
County, Kansas. (Doc. No. 1-1.) The complaint alleged claims for unjust enrichment
and breach of an implied contract. (Id.) Federated removed the case to the United States
District Court for the District of Kansas. (Doc. No. 1.) Federated then sought to have the
case transferred to the District of Minnesota. (Doc. No. 9.) In its motion to transfer,
Federated argued that Scarborough’s claims were governed by a forum selection clause in
his RMM Employment Agreement. (See Doc. No. 76-1.) Scarborough opposed the
transfer. (Doc. No. 10.) The Kansas court concluded that Scarborough’s claims were
A fuller summary of the facts leading up to Federated terminating Scarborough’s
employment is not necessary for the Court to resolve Federated’s motion, but additional
details can be found in the parties’ briefing.
subject to a valid forum selection clause and transferred the case. (Doc. No. 14.)
Plaintiff did not appeal that order.
Plaintiff then amended his complaint twice. (Doc. Nos. 32 & 38.) Scarborough’s
Second Amended Complaint, the one at issue here, alleges a single claim for breach of
the MWA. (Doc. No. 38.) In its Answer, Federated counterclaimed for breach of the
RMM Employment Agreement’s forum selection clause. (Doc. No. 39.)
Standard of Review
Summary judgment is proper if there are no disputed issues of material fact and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The
Court must view the evidence and the inferences that may be reasonably drawn from the
evidence in the light most favorable to the nonmoving party. Enter. Bank v. Magna Bank
of Mo., 92 F.3d 743, 747 (8th Cir. 1996). However, as the Supreme Court has stated,
“[s]ummary judgment procedure is properly regarded not as a disfavored procedural
shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed
‘to secure the just, speedy, and inexpensive determination of every action.’” Celotex
Corp. v. Catrett, 477 U.S. 317, 323–24, 327 (1986) (quoting Fed. R. Civ. P. 1).
The moving party bears the burden of showing that there is no genuine issue of
material fact and that it is entitled to judgment as a matter of law. Enter. Bank, 92 F.3d at
Plaintiff later filed a separate lawsuit in the Western District of Missouri, Case
No. 4:16-cv-00505-REL. That complaint alleges that Pennington, Johnston, and Weaver
defamed Scarborough and tortuously interfered with his employment contract with
Federated. (Fitzsimmons Aff. ¶ 2, Ex. 47.)
747. The nonmoving party must demonstrate the existence of specific facts in the record
that create a genuine issue for trial. Krenik v. Cty. of Le Sueur, 47 F.3d 953, 957 (8th Cir.
1995). A party opposing a properly supported motion for summary judgment “may not
rest upon the mere allegations or denials of his pleading, but must set forth specific facts
showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256 (1986).
The Minnesota Whistleblower Act (“MWA”) prohibits retaliation by an employer
when, among other things, an employee, “in good faith, reports a violation, suspected
violation, or planned violation of any federal or state law or common law or rule adopted
pursuant to law to an employer . . . .” Minn. Stat. § 181.932, subd. 1. Courts interpret
MWA claims narrowly. Pedersen v. Bio-Med. Applications of Minn., 992 F. Supp. 2d
934, 941 (D. Minn. 2014) (“The Minnesota Supreme Court has cautioned ‘against
construing section 181.932 too broadly.’” (quoting Kratzer v. Welsh Cos., 771 N.W.2d
14, 22 (Minn. 2009)), aff’d, 775 F.3d 1049 (8th Cir. 2015).
The first step for an MWA claim is determining whether the employee engaged in
statutorily protected conduct by, in this case, reporting in good faith a violation or
suspected violation of any federal or state law or common law or rule to his employer.
See, e.g., Pedersen, 992 F. Supp. 2d at 939. The plaintiff has the burden of
demonstrating that he engaged in statutorily protected conduct. Id.
Here, Defendant argues that Scarborough’s statements were not “reports.” Until
2013, “report” and “good faith” had been defined by courts. But in 2013, the Minnesota
Legislature amended the MWA to define both terms. Now report is defined as, “a verbal,
written, or electronic communication by an employee about an actual, suspected, or
planned violation of a statute, regulation, or common law, whether committed by an
employer or a third party.” Minn. Stat. § 181.931 subd. 6. Whether a statement
constitutes a “report” under the MWA is a question of law. E.g., Borgersen v.
Cardiovascular Sys., Inc., 729 N.W.2d 619, 624 (Minn. Ct. App. 2007); Cokley v. City of
Otsego, 623 N.W.2d 625, 630 (Minn. Ct. App. 2001).
Under earlier case law, to be considered a whistleblower, the employee must have
had the proper purpose of exposing an illegality. Obst v. Microtron, Inc., 614 N.W.2d
196, 202 (Minn. 2000). The court looked at both the substance of the statement and the
employee’s purpose for making the statement. Freeman v. Ace Tel. Ass’n,
404 F. Supp. 2d 1127, 1139 (D. Minn. 2005) (citing Obst, 614 N.W.2d at 202), aff’d sub
nom. Freeman v. Ace Tel. Ass’n., 467 F.3d 695 (8th Cir. 2006). Although the employee
did not need to identify a specific statute or rule to report a violation, the employee must
state “facts that, if proven, would constitute a violation of law or rule adopted pursuant to
law.” Abraham v. Cty. of Hennepin, 639 N.W.2d 342, 354–55 (Minn. 2002). As a result,
courts concluded that an employee did not make a report when, among other things, the
employer already knew about the misconduct or when the report was part of the
employee’s job duties. Hitchcock v. FedEx Ground Package Sys., Inc., 442 F.3d 1104,
1106 (8th Cir. 2006) (“Hitchcock had no whistle to blow because she reported to FedEx
only what it already knew.”); Pedersen, 992 F. Supp. 2d at 939 (“Reporting what an
employer already knows exposes nothing—the employee simply has no whistle to blow
in that circumstance.” (internal quotations mark omitted)); Freeman, 404 F. Supp. 2d at
1139 (“A report that is presented as part of an employee’s job duties is not a report under
Plaintiff argues that the 2013 amendment abrogated this prior case law defining
“report.” Thus, under Plaintiff’s interpretation, any good faith report counts—i.e.,
anytime the employee identifies a violation that he does not know is false or that is not
made with a reckless disregard for the truth. (Pl.’s Opp at 30.) Plaintiff, however, cites
to no case that finds the definitions abrogate the prior case law. Indeed, much of the case
law interpreting the 2013 amendment is against him. See, e.g., Becker v. Jostens, Inc.,
Civ. No. 14-5104, 2016 WL 5402189, at *13 (D. Minn. Sept. 26, 2016) (granting
employer’s summary judgment as to the employee’s MWA claim because the purpose of
the employee’s report was not to expose an illegality); Pedersen, 992 F. Supp. 2d at 938;
Childs v. Fairview Health Servs., Civ. No. A16-0849, 2016 WL 6923709, at *1 (Minn.
Ct. App. Nov. 28, 2016). But see Friedlander v. Edwards Lifesciences, LLC, Civ.
No. 16-1747, 2016 WL 7007489, at *5 (D. Minn. Nov. 29, 2016) (certifying the question
of whether the 2013 amendment abrogated the requirement of a proper purpose). For
instance, the Minnesota Court of Appeals in an unpublished opinion explicitly rejects the
argument that the amendment abrogated the prior case law. Childs, 2016 WL 6923709,
at *1 (“The clarification to the definition of good faith does not erase the common-law
interpretation of a statutorily protected report.”). Thus, absent contrary authority, the
Court concludes that the 2013 amendment did not abrogate the requirements that, to be
cloaked with the protections of the MWA, the employee must make his report be for the
purpose of exposing an illegality. Thus, Scarborough’s statements must have been
reports for the proper purpose.
Here, Scarborough alleges that he made three reports. First, Scarborough argues
that he reported a violation on July 7, 2014, when he told Pennington that Johnston liked
fancy things, including paying for meeting rooms at Husch Blackwell. (Pl.’s Opp. at 26.)
Second, Scarborough argues that he reported a violation on July 14, 2014, when he
forwarded an e-mail from Husch Blackwell confirming that the meetings were free. (Id.)
And third, Scarborough argues that he reported a violation on July 30, 2014, when he
allegedly told Pennington and Kerr that Johnston’s invoicing practice was illegal and that
Federated was violating tax law related to Johnston’s withholding taxes. (Id. at 26-27.)
To start, Scarborough’s July 7 and July 14 statements were not reports because
they were part of his job duties. An employee is not entitled to whistleblower protection
when the report is part of his job duties. Freeman, 404 F. Supp. 2d at 1139 (“A report
that is presented as part of an employee’s job duties is not a report under the Act.”).
Here, Scarborough’s job included reviewing and approving expense reports. Thus,
discovering inappropriate expenses, like Johnston’s falsified invoices, was part of his job
duties. Scarborough’s July 7 and July 14 statements, therefore, were not reports under
Scarborough’s only remaining statement—the one on July 30—also was not a
report because by then Federated knew about the misconduct. With minor exception not
relevant here, 3 an employee is not entitled to MWA protection when he reports a
violation that the employer is already aware of or by pointing out that a past practice did
not conform with the law. E.g., Pedersen, 992 F. Supp. 2d at 939 (“Reporting what an
employer already knows exposes nothing—the employee simply has no whistle to blow
in that circumstance.” (internal quotations mark omitted)); Freeman, 404 F. Supp. 2d at
1139; Cokley v. City of Otsego, 623 N.W.2d 625, 631 (Minn. Ct. App. 2001) (“As a
matter of law, this non-specific reference to past practices not in conformance with the
FLSA is insufficient.”).
Here, on July 30, Scarborough allegedly told Pennington and Kerr that Federated
may have violated tax laws by not withholding the proper amount. But by July 30,
Johnston had already confessed that he falsified the Husch Blackwell invoices, which he
would later repay. (See Pennington Dep. at 192; Kerr Dep. at 24 (“The debt was paid.
[Johnston] repaid us.”).) Because Federated was already aware of Johnston’s misconduct
and had put a stop to it, Scarborough’s additional statement regarding the practice does
not constitute a report.
Alternatively, Scarborough has failed to demonstrate that the allegations he made
on July 30 constituted a violation of federal law. Specifically, Scarborough alleges that
“To be sure, Minnesota courts have recognized that an employer’s prior
knowledge of a violation at the time of an employee’s report does not necessarily exempt
the employer from liability . . . . [L]iability may exist despite the employer’s prior
knowledge [when]: (i) an employee reports the violation to an outside government
official or law enforcement entity, or (ii) an employee reports the violation to her
employer without knowledge that the employer already was aware of it.” Pedersen,
992 F. Supp. 2d at 940 (citing Obst, 614 N.W.2d at 203 n.5) (internal citations omitted).
Federated could have violated tax laws by failing to withhold the proper amount from
Johnston. (Pl.’s Opp. at 27.) To support this argument, Plaintiff cites to four provisions
of the tax code and appears to argue that Johnston’s stolen funds were “wages,” which
trigger’s Federated’s withholding obligations. But Plaintiff provides no support that
stolen funds that are later repaid constitute “wages” under the tax code. See 26 U.S.C.
§ 3401(a) (“[W]ages means all remunerations . . . for services performed by an employee
for his employer.”). Scarborough’s July 30 statement, therefore, was not a report because
Plaintiff has failed to demonstrate that Scarborough’s articulations of the facts constituted
a violation of the tax code. Accordingly, for this separate reason, Scarborough’s July 30
statement does not constitute a report. Thus, because Scarborough has failed to show that
his statements to Federated constituted a “report” under the MWA, Federated is entitled
to summary judgment.
Federated also moves for summary judgment for its counterclaim for breach of the
RMM Employment Contract. Specifically, Federated moves to recoup the attorney fees
that it incurred to have the case transferred from Kansas to Minnesota.
The elements of a claim for breach of contract are well known: the non-breaching
party must show that “(1) a contract was formed, (2) the plaintiff performed the
conditions precedent, (3) the defendant breached the contract, and (4) damages resulted
from the defendant’s breach.” Datalink Corp. v. Perkins Eastman Architects, P.C., Civ.
No. 13-2978, 2015 WL 3607784, at *3 (D. Minn. June 8, 2015) (citing Thomas B. Olson
& Assocs., P.A. v. Leffert, Jay & Polglaze, P.A., 756 N.W.2d 907, 918 (Minn. Ct. App.
Here, much of the work has been done in the District of Kansas’s order granting a
transfer. In that order, the court found a valid contract that required Scarborough to file
his complaint in Minnesota. (Doc. No. 14.) Scarborough did not appeal this decision.
See In re Union Elec. Co., 787 F.3d 903, 908 (8th Cir. 2015) (“[W]e have permitted the
use of petitions for writs of mandamus or prohibition to review, in a narrow fashion, the
propriety of district court rulings on § 1404(a) motions.”). Further, Scarborough does not
point to any reason why the Kansas court erred. See Versatile Housewares & Gardening
Sys., Inc. v. Thill Logistics, Inc., 819 F. Supp. 2d 230, 238 (S.D.N.Y. 2011) (concluding
that the breaching party could not relitigate the validity of the forum selection clause
during the subsequent claim for breach of contract unless the breaching party
demonstrates why the court should not follow the transferring court’s decision). Indeed,
in his brief, Scarborough merely attempts to relitigate what has already been decided in
the transfer order: Scarborough’s equitable claims arose from or related to his RMM
employment agreement, which remained in effect on the date he was fired. (See Pl.’s
Opp. at 41-42.) Because those issues have already been decided, this Court will not
revisit them. Thus, Federated has demonstrated a valid contract existed between the
Next, Federated has demonstrated a breach of the agreement. Filing an applicable
claim outside of the designated forum is a cognizable breach of the forum selection
clause. Versatile Housewares, 819 F. Supp. 2d at 239. Here, Scarborough filed claims
covered by the forum selection clause outside of the designated forum. (See Doc.
No. 14.) Thus, Scarborough breached his RMM Employment Agreement.
Having found a breach of contract, the only remaining issue is damages. The only
damages that Federated seeks are its attorney fees related to the transfer. Scarborough
argues that such damages are not compensable for a breach of contract. (Pl.’s Opp. at
42.) As a general matter, under Minnesota law, parties must pay their own attorney fees
absent a specific statute or contract. E.g., Dunn v. Nat’l Beverage Corp., 745 N.W.2d
549, 554 (Minn. 2008); Barr/Nelson, Inc. v. Tonto’s, Inc., 336 N.W.2d 46, 53 (Minn.
1983). Here, the RMM Employment Contract explicitly provides for attorney fees:
The Regional Marketing Manager also agrees that in the event a suit or
action is instituted by Federated against the Regional Marketing Manager
for violation of any of the agreements contained in this Agreement,
Regional Marketing Manager will pay to Federated, in addition to any
costs and reimbursements provided by law, an additional sum in lawful
money as set by the court, for attorney fees and other expenses of
(Doc. No. 76-1 at ¶ 10(c). (emphasis added).) 4 Thus, Federated is entitled to attorney
fees for a breach of the forum selection clause.
But even when a contract provides for attorney fees, the fees must be reasonable.
Amerman v. Lakeland Dev. Corp., 203 N.W.2d 400, 400 (Minn. 1973). Here, Federated
has provided no evidence that the attorney fees were reasonable. See, e.g., HazTran, Inc.
v. German, Neil & Hasbrouck, Ltd., No. Civ. No. 00-1798, 2001 WL 741246, at *3
Plaintiff also argues that this clause has not been triggered because Federated has
not “instituted” an action. The Court, however, agrees with Federated that it instituted
the action by filing the counterclaim.
(Minn. Ct. App. July 3, 2001) (“Many factors should be considered in determining the
reasonableness of attorney fees, including the ‘time and effort required, value of the
interest involved, and results secured at trial.’”); see also Honeywell, Inc. v. Ruby
Tuesday, Inc., 43 F. Supp. 2d 1074, 1077 n.1 (D. Minn. 1999). Without information
supporting the reasonableness of the fees incurred, the Court cannot award Federated the
attorney fees that it seeks. Instead, within 30 days of this Order, the parties will each
submit briefing not to exceed five (5) pages regarding why the submitted fees are or are
not reasonable. The Court reserves the right to schedule the matter for a hearing.
For the foregoing reasons, the Court grants Federated’s motion for summary
judgment as to Scarborough’s MWA claim. The Court also grants Federated’s motion
for summary judgment as to Federated’s counterclaim, subject to a finding upon proper
documentation that the attorney fees are reasonable. Given that there is another pending
action in Missouri regarding Scarborough’s termination at Federated, the Court suggests
that it is in the best interests of the parties to negotiate a solution of this dispute. As the
parties are aware, Magistrate Judge Franklin L. Noel is available to assist in the
negotiation of a settlement should the parties find such services helpful.
Now, therefore, IT IS HEREBY ORDERED that:
Defendant Federated Mutual Insurance Company’s Motion for Summary
Judgment (Doc. No. ) is GRANTED IN PART and DENIED IN PART, as follows:
Defendant’s Motion is GRANTED as to Count I of
Plaintiff’s Second Amended Complaint (Doc. No. ). Therefore,
Plaintiff’s Second Amended Complaint is DISMISSED WITH
Defendant’s Motion is GRANTED as to Defendant’s
Counterclaim (Doc. No. ), subject to the parties’ submission as to the
reasonableness of the attorney fees and a finding by the Court that the
attorney fees are reasonable.
Within thirty (30) days of this Order, the parties will submit briefing
and other documentation to demonstrating why Defendant’s requested attorney
fees are or are not reasonable. The briefing shall not exceed five (5) pages. The
Court reserves the right to hold a hearing on the issue.
Dated: February 1, 2017
s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge
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