Goley v. Elwood Staffing Inc. et al
Filing
39
ORDER denying 32 Motion to Strike; granting in part and denying in part 20 Motion to Dismiss as set out in the order. Signed by District Judge Daniel P. Jordan, III on July 1, 2016. (SP)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
AMY GOLEY
PLAINTIFF
v.
CIVIL ACTION NO. 3:15cv277-DPJ-FKB
ELWOOD STAFFING, INC.; MARK S.
ELWOOD; MICHAEL STOCKARD, JR.;
and LIA ELLIOTT
DEFENDANTS
ORDER
This case is before the Court on the Motion to Dismiss [20] and the Motion to Strike [32]
filed by Defendants Mark S. Elwood, Michael Stockard, Jr., and Lia Elliott. For the reasons that
follow, the motion to dismiss is granted in part and denied in part, and the motion to strike is
denied.
I.
Facts and Procedural History
Plaintiff Amy Goley (“Goley”), a recovering alcoholic, began her employment with SOS
Employment Group in August 2012. In January 2013, Defendant Elwood Staffing, Inc.
(“Elwood Staffing”) purchased SOS. Goley then worked for Elwood Staffing until October 24,
2014, when Elwood Staffing terminated her employment. Believing that Elwood Staffing
terminated her as a result of her disability or perceived disability (alcoholism), Goley filed this
lawsuit against Elwood Staffing; Mark S. Elwood (“Elwood”), its CEO; Michael Stockard, Jr.
(“Stockard”), Elwood Staffing’s Senior Vice President; and Lia Elliott (“Elliott”), Elwood
Staffing’s in-house counsel. The Complaint [1] states claims under the Americans with
Disabilities Act (“ADA”) for discrimination, retaliation, and harassment, as well as state-law
claims for defamation and tortious invasion of privacy.
Elwood, Stockard, and Elliott (collectively, “the Individual Defendants”) filed their
motion to dismiss on January 12, 2016. Goley failed to timely respond, and on May 12, 2016,
the Court entered a Show Cause Order [28] directing Plaintiff to respond to the Individual
Defendants’ motion on or before Friday, May 20, 2016. Goley missed that deadline too, and
filed her belated response [29] on Sunday, May 22, 2016. The Individual Defendants filed a
rebuttal [34] in support of their motion as well as a motion [32] to strike Goley’s late response.
The Court has personal and subject-matter jurisdiction and is prepared to rule.
II.
Analysis
A.
Motion to Strike
The Individual Defendants urge the Court to strike Goley’s belated response to their
motion to dismiss, noting that she missed both her original response deadline, necessitating the
entry of a Show Cause Order, and the deadline set by that order.1 The Individual Defendants
correctly note that Goley failed to file a motion under Federal Rule of Civil Procedure 6(b)(1)(B)
to extend the deadline set in the Show Cause Order and she instead asked in a footnote in her
response that the Court “consider [her late response] as a motion or request for a two-day
extension and grant it given the circumstances.” Pl.’s Resp. [29] at 1 n.1. Those
“circumstances” are unspecified “issues with a computer” her counsel experienced in attempting
to file her response by the May 20, 2016 deadline. Pl.’s Mem. [36] at 4. This request in a
1
Goley’s response to the motion to strike indicates that the initial failure to respond was
based on an understanding between counsel “that at least some of the issues in [the Individual
Defendants’] Motion [to Dismiss] might be resolved without the necessity of the intervention of
the Court.” Pl.’s Mem. [36] at 1. In rebuttal, the Individual Defendants deny any such
agreement. Rebuttal [37] at 1 n.1. Assuming an agreement to delay Goley’s response deadline
existed, the Court was unaware of it and could have ruled on the motion without the benefit of a
response from Goley. The better practice, therefore, is to move for additional time to respond.
2
footnote in her response fails to comply with local rules. See L.U. Civ. R. 7(b) (“Any written
communication with the court that is intended to be an application for relief or other action by
the court must be presented by a motion in the form prescribed by this Rule.”); id. R. 7(b)(3)(C)
(“A response to a motion may not include a counter-motion in the same document. Any motion
must be an item docketed separately from a response.”).2
While the Court shares the Individual Defendants’ frustration with Goley’s failures to
meet deadlines and follow local rules, the Court will excuse the late filing at this stage. Goley’s
response to the Show Cause Order was filed prior to the business day following Goley’s
deadline, and there was no prejudice. The Court also prefers to have a response from the
plaintiff where a defendant seeks dismissal. That said, the Court will not be as forgiving if
Goley misses additional deadlines in the case. The motion to strike is denied.
B.
Motion to Dismiss
1.
Standard
In considering a motion under Rule 12(b)(6), the “court accepts ‘all well-pleaded facts as
true, viewing them in the light most favorable to the plaintiff.’” Martin K. Eby Constr. Co. v.
Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004) (quoting Jones v. Greninger, 188
F.3d 322, 324 (5th Cir. 1999) (per curiam)). But “the tenet that a court must accept as true all of
the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”
2
Similarly, Goley’s request in footnote three of her response “that the Court grant
Plaintiff leave to amend the Complaint to assert a claim of intentional and negligent infliction of
emotional distress”—coming more than nine months after the deadline to amend pleadings
established by the Case Management Order—is not properly before the Court.
3
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). To overcome a Rule 12(b)(6) motion, a plaintiff must plead “enough facts to state a
claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “Factual allegations
must be enough to raise a right to relief above the speculative level, on the assumption that all
the allegations in the complaint are true (even if doubtful in fact).” Id. at 555 (citations and
footnote omitted).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). It follows that “where the
well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,
the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id.
at 679 (quoting Fed. R. Civ. P. 8(a)(2)). “This standard ‘simply calls for enough fact to raise a
reasonable expectation that discovery will reveal evidence of’ the necessary claims or elements.”
In re S. Scrap Material Co., LLC, 541 F.3d 584, 587 (5th Cir. 2008) (quoting Twombly, 550 U.S.
at 556).
Goley premises large swaths of her response on factual arguments that are not reflected
in the operative complaint. She promises, for example, that certain unidentified documents or
testimony will produce a jury question. To be clear, the Court has not considered the factual
assertions in either parties’ briefs unless they are found on the face of the complaint. See Fed. R.
Civ. P. 12(d).
4
2.
Analysis
At the outset, the Court must identify the operative pleading. In her response, Goley
repeatedly refers to the Amended Complaint. But Goley has not filed an Amended Complaint.
Instead, on August 31, 2015—the deadline for motions to amend under the Case Management
Order—Goley filed a motion to amend attaching a Proposed Amended Complaint. Mot. to
Amend [17]. The Court granted the motion in a September 18, 2015 Text Order, which
provided: “Plaintiff shall file her amended complaint within fourteen (14) days of the date of
this order.” Sept. 18, 2015 Text Order. Goley never filed the Amended Complaint.
Nevertheless, the Individual Defendants, “out of an abundance of caution” addressed the
allegations in the Amended Complaint. Defs.’ Mem. [21] at 11.
While Goley certainly should have complied with Judge Ball’s directive and separately
filed her Amended Complaint having received leave to do so, the Court will consider the
Amended Complaint [17-1] as the operative pleading. See Smith v. City of Gulfport, Miss., No.
1:09cv423-HSO-JMR, 2011 WL 5035976, at *2 (S.D. Miss. Oct. 21, 2011). But according to
the Individual Defendants, that Complaint still fails to state claims against them for:
(1) violations of the ADA; (2) defamation; or (3) invasion of privacy.
a.
ADA
The Individual Defendants assert that they are not employers under the ADA and cannot
be held liable thereunder. For her part, Goley does not address the argument, so she has
effectively abandoned the ADA claims against the Individual Defendants. See Black v. N.
Panola Sch. Dist., 461 F.3d 584, 588 n.1 (5th Cir. 2006). The motion is granted as to those
claims.
5
b.
Defamation
To establish a prima facie defamation case, Goley
must show: (1) a false and defamatory statement concerning the plaintiff; (2) an
unprivileged publication to a third party; (3) fault amounting at least to negligence
on the part of the publisher; and (4) either actionability of the statement
irrespective of special harm or the existence of special harm caused by the
publication.
Simmons Law Grp. P.A. v. Corporate Mgmt., Inc., 42 So. 3d 511, 517 (Miss. 2010) (quoting
Moon v. Condere Corp., 690 So. 2d 1191, 1195 (Miss. 1997)). Goley’s defamation claim is
based on her assertion that “Defendants . . . told Plaintiff’s coworkers that Plaintiff had ‘fallen
off the wagon’ and was abusing alcohol.” Am. Compl. [17-1] ¶ 73. But a review of the factual
averments of the Amended Complaint reveals that Goley charges only Stockard with making
such a statement, id. ¶ 28; no allegedly defamatory remarks are attributed to Elwood or Elliott.
The defamation claim is dismissed as to those defendants.
As to Stockard, Goley alleges that he “had ridden home from [a] sales convention” with
Kim Staggs, a regional sales manager. Id. ¶¶ 22, 28. During that car ride, Stockard “discussed
the potential for Goley’s falling ‘off the wagon’ as a worry in her employment.” Id. ¶ 28; see
also id. ¶ 23 (recounting that Skaggs spoke to Goley’s co-workers and expressed “that managers
thought Goley had ‘fallen off the wagon’ because of her weight loss and high energy at [a] sales
conference”). So, while Goley’s history of alcoholism was well known according to her, the
“false and defamatory statement” was that she had “fallen off the wagon.”
Stockard contends that Goley cannot establish the second element of a defamation
claim—“an unprivileged publication to a third party”—because the statement was privileged.
Specifically, Stockard contends that his statement is covered by qualified privilege under
6
Mississippi law. See Barmada v. Pridjian, 989 So. 2d 359, 362 (Miss. 2008). But assuming the
privilege applies, it may be “overcome by malice, bad faith, or abuse.” Id. Here, Goley has
pleaded that Stockard’s statement was “malicious . . . .” Am. Compl. [17-1] ¶ 74. And “[m]alice
. . . and other conditions of a person’s mind may be alleged generally.” Fed. R. Civ. P. 9(b).
Because Goley has effectively pleaded around the sole basis for dismissing the defamation claim
offered by Stockard, Stockard’s motion is denied as to the defamation claim.3
c.
Invasion of Privacy
Finally, Goley bases her invasion-of-privacy claim on her allegation that “Defendant
intentionally publicized Plaintiff’s private medical information by releasing it to her coworkers.”
Am. Compl. [17-1] ¶ 85. She does not specify which of the Individual Defendants disclosed her
private medical information, and the only possible factual basis for the claim is the averment that
Stockard made reference to Goley’s alcoholism to Skaggs. Because there is no factual basis for
finding Elwood or Elliott liable for invasion of privacy, the claim against them is dismissed.
Goley contends that her allegations state a claim for invasion of privacy under two of the
methods of proving such a claim: public disclosure of private facts and holding another to the
3
Goley also responds that qualified privilege is an affirmative defense that Stockard
should have raised in his answer and that his failure to do so waives the defense. The Court
disagrees. An affirmative defense “is properly concerned with the pleading of a matter not
within the plaintiff’s prima facie case, that is, pleading matter to avoid plaintiff’s cause of
action.” Emmons v. S. Pac. Transp. Co., 701 F.2d 1112, 1118 (5th Cir. 1983) (citation and
quotation marks omitted). On the other hand, a so-called “negative defense . . . tends to disprove
one or all of the elements of a complaint” and is “governed by [Federal] Rule [of Civil
Procedure] 8(b) . . . .” Id. Because Goley has the burden to establish “unprivileged publication,”
Stockard’s “defense” that his publication was privileged is a negative defense and is not waived
by failure to affirmatively plead it under Rule 8(c).
7
public in a false light. See McCorckle v. McCorckle, 811 So. 2d 258, 268 (Miss. Ct. App. 2001)
(citing Deaton v. Delta Democrat Publishing Co., 326 So. 2d 471, 473 (Miss. 1976)).4
Looking first to the public-disclosure-of-private-facts species of invasion of privacy, a
claim arises when the defendant “‘gives publicity’” to a private matter. Ayles ex rel. Allen v.
Allen, 907 So. 2d 300, 306 (Miss. 2005) (quoting Young v. Jackson, 572 So. 2d 378, 382 (Miss.
1990)). “Publicity” requires “‘communicat[ion] to the public at large, or to so many persons that
the matter must be regarded as substantially certain to become one of public knowledge.’”
Williamson ex rel. Williamson v. Keith, 786 So. 2d 390, 396 (Miss. 2001) (quoting Restatement
(Second) of Torts § 652D cmt. a)). Goley makes no allegation that Stockard communicated his
statement to “the public at large”; instead, she avers only that he disclosed the fact to one person.
Goley’s allegations do not state a claim for public disclosure of private facts. Id.
To state a false-light invasion-of-privacy claim, Goley must show: “(a) the false light in
which [she] was placed would be highly offensive to a reasonable person, and (b) [Stockard] had
knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false
light in which [Goley] would be placed.” Cook v. Mardi Gras Casino Corp., 697 So. 2d 378,
382 (Miss. 1997). As with the public-disclosure-of-private-facts claim, “[t]he tort of false light
4
The sum total of Goley’s argument in support of the claim is as follows:
The same analysis [as applicable to the defamation claim] applies to Plaintiff’s
claim for invasion of privacy. Ms. Goley’s Amended Complaint plainly sets forth
sufficient facts to make a plausible claim that Defendants intentionally made
public private facts about Ms. Goley and put her forth to the public in a false
light. The evidence should be presented to the jury on these claims, or at least
fully developed and subject to testing on a motion for summary judgment before
being dismissed on their face as Defendants claim.
Pl.’s Resp. [29] at 6.
8
also requires[] ‘publicity’ . . . .” McGrath v. Empire Inv. Holdings, LLC, No. 1:11cv209-A-S,
2013 WL 85205, at *6 (N.D. Miss. Jan. 7, 2013); see Restatement (Second) of Torts § 652E
(“One who gives publicity to a matter concerning another that places the other before the public
in a false light is subject to the other for invasion of his privacy . . . .” (emphasis added)). As
noted above, Goley does not allege that Stockard communicated the suggestion that she had
“fallen off the wagon” to the public at large. The false-light claim against Stockard therefore
fails under Rule 12(b)(6).
III.
Conclusion
The Court has considered all the parties’ arguments. Those not specifically addressed
would not have changed the outcome. For the foregoing reasons, the Individual Defendants’
Motion to Dismiss [20] is granted in part. The ADA claims against Elwood, Stockard, and
Elliott are dismissed with prejudice, and the state-law claims against Elwood and Elliott, as well
as the invasion-of-privacy claim against Stockard, are dismissed without prejudice. See
Piotrowski v. City of Hous., 51 F.3d 512, 518 n.14 (5th Cir. 1995) (explaining dismissal without
prejudice is appropriate where the dismissal is based on pleading deficiency).5 The motion is
denied as to the defamation claim against Stockard. Finally, the Individual Defendants’ Motion
to Strike [32] is denied.
SO ORDERED AND ADJUDGED this the 1st day of July, 2016.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE
5
The Court will leave to Goley whether she chooses to seek leave to amend, out of time,
to attempt to cure the pleading deficiencies as to the state-law claims against Elwood and Elliott
and the invasion-of-privacy claim against Stockard.
9
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