Cleland v. Academy Sports and Outdoors et al
Filing
30
ORDER denying Plaintiff's 25 Motion for Reconsideration. Signed by District Judge Keith Starrett on October 24, 2013 (dsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION
EDDIE CLELAND
PLAINTIFF
V.
CIVIL ACTION NO. 2:13cv9-KS-MTP
ACADEMY SPORTS AND OUTDOORS
DEFENDANT
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Plaintiff Eddie Cleland’s Motion for Relief
from Judgment, which was docketed as a “Motion for Reconsideration” [25]. Having
considered the submissions of the parties, the record and the applicable law, the Court
finds that the motion is not well taken and should be denied.
I. BACKGROUND
On August 26, 2013, the Court entered its Memorandum Opinion and Order [23],
ruling on the Motion to Dismiss [6] of the Defendant Academy Sports and Outdoors
(“Academy”) and the Motion for Leave to File Second Amended Complaint (“Motion for
Leave”) [17] of the Plaintiff Eddie Cleland. Academy sought the dismissal of all of the
claims asserted against it in the Amended Complaint [6-1] pursuant to Federal Rule of
Civil Procedure 12(b)(6). Cleland sought leave to file a Second Amended Complaint
[17-1] “to add factual support for the pretextual reprimands made by [Louis] Tenney to
cause Academy to terminate Cleland.” (Pl.’s Mot. for Leave [17] at ¶ 3.) Louis Tenney
was Cleland’s immediate supervisor prior to the termination of his employment. Tenney
was dismissed from this action without prejudice on May 9, 2013. (See Op. & Order
Denying Mot. to Remand [16].) The Court granted Academy’s Motion to Dismiss [6] and
denied Cleland’s Motion for Leave [17]. Further, final judgment was entered given the
dismissal of Cleland’s claims. (See Final Judgment [24].) Cleland now contends that
the Court erred in certain respects, and requests that the “Court reconsider its Order . . .
.” (Pl.’s Mot. for Recon. [25] at p. 10.)1
II. DISCUSSION
A.
Standard of Review
Plaintiff’s Motion for Reconsideration [25] was filed ten (10) days after the entry
of judgment and requests that the Court reconsider its prior ruling. Thus, regardless of
the motion’s title, it will be construed as a motion to alter or amend a judgment under
Federal Rule of Civil Procedure 59(e). See Demahy v. Schwarz Pharma, Inc., 702 F.3d
177, 182 n.2 (5th Cir. 2012) (providing that Rule 59(e) governs a motion seeking
reconsideration of a ruling when the motion is filed within twenty-eight days of
judgment), cert. denied, 2013 WL 868621 (Oct. 7, 2013); Marlow LLC v. BellSouth
Telecomms., Inc., No. 2:10cv135, 2013 WL 1313093, at *1 (S.D. Miss. Mar. 26, 2013)
(Although the Federal Rules of Civil Procedure do not explicitly recognize a motion for
reconsideration, “this Court and others consider such motions under Federal Rule of
Civil Procedure 59(e) . . . when they are filed within the time period specified under this
Rule.”) (citations omitted).
The Court only recognizes three grounds for reconsideration under Rule 59(e):
“‘(1) an intervening change in controlling law, (2) the availability of new evidence not
previously available, and (3) the need to correct a clear error of law or prevent a
1
Further background information regarding the history of this dispute can be found in
the Court’s prior rulings. (See Op. & Order Denying Mot. to Remand [16]; Mem. Op. &
Order [23].)
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manifest injustice.’” Nationwide Mut. Fire Ins. Co. v. Pham, 193 F.R.D. 493, 494 (S.D.
Miss. 2000) (quoting Atkins v. Marathon LeTourneau Co., 130 F.R.D. 625, 626 (S.D.
Miss. 1990)); see also Demahy, 702 F.3d at 182. Cleland’s motion is limited to the third
ground of the above-quoted standard. With respect to this ground, a litigant should
carefully consider “whether what may seem to be a clear error of law is in fact simply a
point of disagreement between the Court and the litigant.” Atkins, 130 F.R.D. at 626.
“Reconsideration of a judgment after its entry is an extraordinary remedy that
should be used sparingly.” Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir.
2004) (citing Clancy v. Employers Health Ins. Co., 101 F. Supp. 2d 463, 465 (E.D. La.
2000)). In addition, a Rule 59(e) motion should not be used to rehash evidence or to
raise arguments or legal theories that could have been presented prior to the entry of
judgment. See id. at 478-79. “Whatever may be the purpose of Rule 59(e), it should
not be supposed that it is intended to give an unhappy litigant one additional chance to
sway the judge.” Pham, 193 F.R.D. at 494.
B.
Analysis
Cleland contends that the Court’s judgment is in error because: (a) Cleland
should be allowed to amend his Complaint to join Louis Tenney for maliciously
interfering with Cleland’s employment relationship with Academy; (b) Tenney’s request
for Cleland to commit forgery was illegal, and thus, the public policy exception to the
employment-at-will doctrine stated in McArn v. Allied Bruce-Terminix Co., 626 So. 2d
603 (Miss. 1993) applies;2 and (c) the Court should declare a public policy exception to
2
In McArn, the Mississippi Supreme Court recognized “a narrow public policy
exception to the” doctrine of employment-at-will in two circumstances: “(1) an employee
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the employment-at-will doctrine based on interference with political rights by predicting
the Mississippi Supreme Court’s ruling on the issue pursuant to Erie Railroad Co. v.
Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). Each of these
contentions will be addressed through the prism of Rule 59(e).
1.
Whether the Court Clearly Erred in Refusing to Allow Cleland
to File an Amended Complaint Joining Tenney to the Litigation
The Court refused to allow Cleland to amend his Complaint to join Tenney for
two reasons. First, Cleland failed to identify and brief the appropriate standard for leave
to amend since he and Tenney are both citizens of Mississippi. The Court explained:
Bringing Tenney back into the lawsuit would thus result in incomplete
diversity of citizenship between the parties and deprive the Court of
jurisdiction under 28 U.S.C. § 1332. Title 28 U.S.C. § 1447(e), as opposed
to Rule 15, governs a district court’s consideration of a request for joinder of
a non-diverse defendant. See White v. City Fin. Co., 277 F. Supp. 2d 646,
650 n.7 (S.D. Miss. 2003). “The district court must scrutinize an amendment
[to a pleading] that would add a non-diverse party more closely than an
ordinary amendment.” Priester v. JP Morgan Chase Bank, N.A., 708 F.3d
667, 679 (5th Cir. 2013) (citation and internal quotation marks omitted).
(Mem. Op. & Order [23] at p. 20.) Cleland’s Motion for Leave [17] addressed none of
the factors identified by the Fifth Circuit to guide a district court’s scrutiny of an
amendment that would join a non-diverse party. See Priester, 708 F.3d at 679.
Second, the unique procedural circumstance of Cleland attempting to add Tenney, who
had been previously dismissed without prejudice, to a suit where he could not state a
who refuses to participate in an illegal act . . . shall not be barred by the common law
rule of employment at will from bringing an action in tort for damages against his
employer; (2) an employee who is discharged for reporting illegal acts of his employer to
the employer or anyone else is not barred by the employment at will doctrine from
bringing action in tort for damages against his employer.” 626 So. 2d at 607.
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claim against Academy made denial of the request for leave to amend appropriate. The
Court explained:
If the Court were to grant the Motion for Leave [17], it would have to remand
Cleland’s suit against Tenney due to an absence of subject matter
jurisdiction. See 28 U.S.C. § 1447(e). If the Court were to deny the motion,
the prior dismissal of Tenney without prejudice would remain in place and
Cleland could obtain the effective result of a remand by refiling his claims
against Tenney in state court. The Court finds the denial of Tenney’s request
for leave to amend without further delay to be the soundest and most
expeditious method of resolving this issue under this unique set of
circumstances.
(Mem. Op. & Order [23] at pp. 20-21.)3
Cleland’s Motion for Reconsideration [25] considers neither of the preceding
bases outside of the following conclusory and unsupported statement: “The fact that
the addition of Tenney would destroy diversity and remand this matter to State Court
should not be weighed against Cleland.” (Pl.’s Mot. for Recon. [25] at p. 3.) Instead,
Cleland largely argues the purported merits of his malicious interference claim against
Tenney. Since Cleland has failed to address and show any error in the Court’s actual
reasons for the denial of his request to add Tenney to the action, the Court finds no
“clear error of law” or “manifest injustice” warranting relief from judgment. Pham, 193
F.R.D. at 494.
3
Cleland’s request for leave to amend his Complaint as to Academy was denied on
the basis of futility. Cleland’s proposed Second Amended Complaint [17-1] contained
no new causes of action, and its additional fact allegations were aimed at Cleland’s
malicious interference claim against Tenney. Thus, the Court’s findings in favor of
Academy’s request for dismissal of the Amended Complaint [6-1] applied equally to
Cleland’s proposed second amended pleading.
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2.
Whether the Court Clearly Erred in Finding that the Amended
Complaint Failed to State a Claim for Wrongful Discharge
Under McArn v. Allied Bruce-Terminix Co.
As an initial matter, the Court addresses Cleland’s assertion that the Court held
Tenney did nothing illegal. Cleland misreads the Court’s Memorandum Opinion and
Order [23]. As opposed to issuing any ultimate ruling regarding the criminality vel non
of any and all of Tenney’s purported actions, the Court held that “the allegations of the
Amended Complaint fall short of evincing any criminal ‘forgery’ under Mississippi law.”
(Mem. Op. & Order [23] at p. 11.) The Court focused on the crime of “forgery” under
Mississippi statutory and case law because Cleland cited to certain Mississippi penal
statutes and identified “forgery” as the criminal act underlying his McArn claim in
opposition to Academy’s request for dismissal. As discussed below, Cleland should
have specifically alleged the commission of other crimes prior to the entry of judgment if
he expected the Court to consider them in its McArn analysis. Further, the Court’s
Memorandum Opinion and Order [23] does not preclude any appropriate law
enforcement or prosecuting authority from considering Cleland’s old and new
allegations of criminal wrongdoing.
Cleland also argues that Tenney intended to deceive various government
agencies in asking him to forge customer information on ATF Form 4473, and that
Tenney put customers at risk of perjury by altering their information on the Form. It is
further alleged that even if Tenney did not violate Mississippi’s forgery statutes, his
actions were illegal under 18 U.S.C. § 922(m)4 and section 97-9-63 of the Mississippi
4
“It shall be unlawful for any licensed importer, licensed manufacturer, licensed
dealer, or licensed collector knowingly to make any false entry in, to fail to make
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Code.5 The problem for Cleland is that he waited until after the entry of judgment to
make these arguments.
Neither the Amended Complaint [6-1], Cleland’s Response to Defendant’s Motion
to Dismiss [20], nor Cleland’s proposed Second Amended Complaint [17-1] referenced
the preceding statutes. As noted by the U.S. District Court for the Northern District of
Mississippi in considering a McArn claim, the criminality of the conduct must be
demonstrated via “‘substantial evidence or citation to binding statutory and/or case
law.’” Vaughn v. Carlock Nissan of Tupelo, Inc., No. 1:09cv293, 2011 WL 3651271, at
*4 (N.D. Miss. Aug. 18, 2011) (quoting Kyle v. Circus Circus Miss., Inc., 430 Fed. Appx.
247, 252 (5th Cir. 2011)). Tenney’s intent in purportedly asking Cleland to forge
information on ATF Form 4473 is also not mentioned in the Amended Complaint [6-1] or
proposed Second Amended Complaint [17-1]. Although Cleland’s opposition to
dismissal shed some light on Tenney’s motivation, the Court previously found that light
to further Academy’s request for dismissal. “It is implausible that Tenney intended to
injure anyone by trickery or deceit in requesting that Cleland correct customer errors on
ATF Forms.” (Mem. Op. & Order [23] at p. 11.) Accepting Cleland’s new arguments
appropriate entry in, or to fail to properly maintain, any record which he is required to
keep pursuant to section 923 of this chapter or regulations promulgated thereunder.” 18
U.S.C. § 922(m).
5
“Every person who shall unlawfully or corruptly procure any witness, by any means
whatever, to commit wilful and corrupt perjury in any case, matter, or proceedings, in or
concerning which such witness shall be legally sworn and examined, shall be guilty of
subornation of perjury, and shall not thereafter be received as a witness to be sworn in
any matter or cause whatever, until the judgment against him be reversed, and shall be
punished by imprisonment in the penitentiary not exceeding ten years.” Miss. Code
Ann. § 97-9-63.
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regarding Tenney’s intent and the above-listed statutes would be essentially giving him
a fourth “bite at the apple”, representing his McArn claim. Bell v. Texaco, Inc., No.
5:09cv192, 2010 WL 1490144, at *3 (S.D. Miss. Apr. 13, 2010). Such a result is not
countenanced under Rule 59(e). See id; see also Templet, 367 F.3d at 478-79
(providing that Rule 59(e) is an improper “vehicle for rehashing evidence, legal theories,
or arguments that could have been offered or raised before the entry of judgment”).
Cleland’s request for leave to file an amended complaint including criminal law
violations under § 922(m) and section 97-9-63 is rejected on similar grounds. The Fifth
Circuit has “‘consistently upheld the denial of leave to amend [following the entry of
judgment] where the party seeking to amend [his complaint] has not clearly established
that he could not reasonably have raised the new matter prior to the trial court’s merits
ruling.’” Rosenblatt v. United Way of Greater Houston, 607 F.3d 413, 420 (5th Cir.
2010) (quoting Vielma v. Eureka Co., 218 F.3d 458, 468 (5th Cir. 2000)); see also
Benson v. St. Joseph Reg’l Health Ctr., 575 F.3d 542, 550 (5th Cir. 2009). No showing
has been made as to why it would have been unreasonable for Cleland to raise
Tenney’s alleged violations of § 922(m) and section 97-9-63 prior to the entry of
judgment.
For all the preceding reasons, the Court finds Cleland’s suggestion that there
was clear error in the dismissal of his wrongful discharge claim under McArn to be
without merit.
3.
Whether the Court Clearly Erred in Refusing to Declare a
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Public Policy Exception to Mississippi’s Employment-at-Will
Doctrine Based on an Employer’s Interference with an
Employee’s Political Rights
The Court previously held that its task is to apply Mississippi law, not to make it,
and declined “Cleland’s request for it to act effectively as the Mississippi Legislature or
Mississippi Supreme Court and establish a new public policy exception to Mississippi’s
longstanding employment-at-will doctrine based on interference with political rights.”
(Mem. Op. & Order [23] at p. 14.) Cleland’s Motion for Reconsideration [25]
acknowledges that the Court cannot make Mississippi law. Nonetheless, Cleland
requests that the Court find that Mississippi would recognize such a public policy
exception “based upon the Erie-bound guess doctrine.” (Pl.’s Mot. for Recon. [25] at pp.
8-9.)
Cleland finds the following statement from the Fifth Circuit pertinent with respect
to his Erie guess argument: “We are emphatically not permitted to do merely what we
think best; we must do that which we think the Mississippi Supreme Court would deem
best.” Jackson v. Johns-Manville Sales Corp., 781 F.2d 394, 397 (5th Cir. 1986)
(citation omitted), abrogated in part by Salve Regina Coll. v. Russell, 499 U.S. 225, 111
S. Ct. 1217, 113 L. Ed. 2d 190 (1991). That statement is instructive, but so are the
following statements explaining a federal court’s limited role in predicting state law:
In matters of [Mississippi] substantive law, our relationship to the [Mississippi]
Supreme Court is all but identical to that of a [lower Mississippi] court.
Indeed, if it differs at all as regards substantive innovation, it is weaker
instead of stronger than that of such a court. Even in the rare case where a
course of [Mississippi] decisions permits us to extrapolate or predict with
assurance where that law would be had it been decided, we should perhapsbeing out of the mainstream of [Mississippi] jurisprudential developments-be
more chary of doing so than should an inferior state tribunal.
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Id.; see also Learmonth v. Sears, Roebuck & Co., 710 F.3d 249, 258 (5th Cir. 2013)
(“‘In making an Erie-guess in the absence of explicit guidance from the state courts, we
must attempt to predict state law, not to create or modify it.’”) (quoting Coe v.
Chesapeake Exploration, L.L.C., 695 F.3d 311, 316 (5th Cir. 2012)).
The Court’s refusal to declare a public policy exception to Mississippi’s
longstanding employment-at-will doctrine based on interference with political rights is
sound regardless of whether Cleland’s request for the declaration is framed under the
guise of an Erie guess or limited to his original arguments in opposition to dismissal.
The authorities cited in the Court’s Memorandum Opinion and Order [23] evince the
unwillingness of state and federal courts to broaden the public policy exception
announced by the Mississippi Supreme Court in McArn beyond its “narrow”6 scope.
See Wheeler v. BL Dev. Corp., 415 F.3d 399, 404 (5th Cir. 2005); Medina v. Mims Oil
Co., No. Civ.A. 4:04cv236, 2005 WL 1629800, at *1 (N.D. Miss. July 11, 2005); Cook v.
Wallot, No. 2011-CA-01056-COA, 2013 WL 1883533, at *6 (¶¶ 29-30) (Miss. Ct. App.
May 7, 2013). The following opinions further undermine Cleland’s request for an
exception to the rule of employment-at-will heretofore unrecognized by the Mississippi
Supreme Court: DeCarlo v. Bonus Stores, Inc., 989 So. 2d 351, 358 (¶ 21) (Miss.
2008) (“We find nothing in McArn or its progeny which would extend the narrowly
carved-out exceptions to our employment-at-will doctrine to create individual liability for
the tort of retaliatory discharge if the individual defendant/co-employee’s participation in
the discharge was deemed to be in the course and scope of the individual defendant’s
6
McArn, 626 So. 2d at 607.
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employment.”); Jones v. Fluor Daniel Servs. Corp., 959 So. 2d 1044, 1047 (¶ 13) (Miss.
2007) (holding that alleged criminal activity having nothing to do with an employer’s
business failed “to fit into the very narrow exceptions to the employment-at-will
doctrine”); HeartSouth, PLLC v. Boyd, 865 So. 2d 1095, 1108-09 (¶¶ 39-40) (Miss.
2003) (rejecting HeartSouth’s implied contract theory of recovery since it conflicted with
the Court’s prior holdings regarding employment at will).
Accordingly, Cleland’s final basis for reconsideration of the Court’s Memorandum
Opinion and Order [23] is overruled.
III. CONCLUSION
Cleland has failed to show that he is entitled to the “extraordinary remedy” of
reconsideration of the Court’s judgment. Templet, 367 F.3d at 479.
IT IS THEREFORE ORDERED AND ADJUDGED that the Motion for
Reconsideration [25] is denied.
SO ORDERED AND ADJUDGED this the 24th day of October, 2013.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE
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