McIntyre v. Calsonic Kansei North America, Inc. et al

Filing 120

ORDER granting 98 Motion to consider additional authority ; denying 101 Motion for leave to file affidavits; denying 104 Motion for leave to amend pretrial order ; denying as moot 106 Motion to Strike Signed by District Judge Henry T. Wingate on 3/1/2019 (CGC)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
MICHAEL WAYNE MCINTYRE

V.

PLAINTIFF

CIVIL ACTION NO. 3:16-CV-886-HTW-LRA

CALSONIC KANSEI NORTH AMERICA, INC.,
and NISSAN NORTH AMERICA, INC.

DEFENDANTS

ORDER ON MOTIONS
Before this court are four motions. Three of the motions are filed by the Plaintiff,
Michael McIntyre (hereafter “McIntyre”) and one motion is filed by one of the Defendants,
Nissan North America, Inc. (hereafter “Nissan”).
The Plaintiff’s motions are as follows: (1) McIntyre asks this court to consider additional
case law that he contends is relevant to the instant case [doc. no. 98]; 2) McIntyre seeks
permission from the court to file two additional affidavits in opposition to the motions for
summary judgment filed by the Defendants [doc. no. 101]; and 3) McIntyre asks to amend the
proposed pretrial order to embrace an additional issue that was not included in his Complaint,
nor previously briefed, nor argued [doc. no. 104]. The Defendants, Calsonic Kansei North
America, Inc., (hereafter “Calsonic”) and Nissan oppose these motions.
Defendant Nissan has filed a Motion to Strike McIntyre’s Motion for Leave to File
Affidavits [doc. no. 106] which also serves as Nissan’s Response in Opposition to that motion.
Briefing is completed and the court is prepared to make its decision.

1

BACKGROUND
The factual and procedural background of this case is thoroughly presented in this court’s
forthcoming “Opinion and Order on Defendants’ Summary Judgment Motion.” Therefore, only
an abbreviated version of the facts and procedural posture is here presented.
McIntyre filed his law suit in this court on November 14, 2016. This is a wrongful
discharge action brought by McIntyre against his former employer, Calsonic Kansei North
America, Inc. (“Calsonic”) and against Nissan North America, Inc. (“Nissan”). Calsonic is a
supplier for Nissan with a location on-site at Nissan’s manufacturing plant in Canton,
Mississippi. McIntyre says that he was discharged by Calsonic because he had a pistol in his
locked car on the parking lot of the Nissan plant, the parking lot reserved for employees of
Calsonic and other supplier companies. This discharge, he claims, was in violation of
Mississippi public policy, and specifically, Miss. Code Ann. §45-9-55 1. This code section makes
it unlawful for an employer to create or enforce a policy that prohibits a person from transporting
or storing a firearm in a locked vehicle on a company’s parking lot. McIntyre contends he has
suffered lost income, lost future income, mental anxiety and stress, because of his discharge. He
Miss. Code Ann. S 45-9-55 states as follows:
Employee parking lots; employer liability
(1) Except as otherwise provided in subsection (2) of this section, a public or private employer may not
establish, maintain, or enforce any policy or rule that has the effect of prohibiting a person from
transporting or storing a firearm in a locked vehicle in any parking lot, parking garage, or other designated
parking area.
(2) A private employer may prohibit an employee from transporting or storing a firearm in a vehicle in a
parking lot, parking garage, or other parking area the employer provides for employees to which access is
restricted or limited through the use of a gate, security station or other means of restricting or limiting
general public access onto the property.
(3) This section shall not apply to vehicles owned or leased by an employer and used by the employee in the
course of his business...
(4) This section does not authorize a person to transport or store a firearm on any premises where the
possession of a firearm is prohibited by state or federal law.
(5) A public or private employer shall not be liable in a civil action for damages resulting from or arising out of
an occurrence involving the transportation, storage, possession or use of a firearm covered by this
section.
Miss. Code Ann. § 45-9-55
1

2

seeks actual and punitive damages in an amount to be determined by a jury, attorney’s fees, costs
and expenses.
The Defendants, Calsonic and Nissan, contend that McIntyre was terminated for
cumulative reasons that include reasons other than having the firearm in his car. These
Defendants also assert that the employee parking lot at issue complies with the exception located
in §45-9-55(2), which, under certain parking lot security features, allows an employer to prohibit
firearms on an employee parking lot.
In sum, say Defendants, Calsonic did not wrongfully discharge McIntyre.
DISCUSSION
Federal subject matter jurisdiction in this matter is based on diversity of citizenship under
Title 28 U.S.C. § 1332. 2 In this diversity action, the substantive laws of the State of Mississippi
apply. See, e.g., Times-Picayune Pub. Corp. v. Zurich American Ins. Co., 421 F.3d 328, 334 (5th
Cir. 2005) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)); Klaxon Co. v. Stentor Elec.
Mfrg. Co 313 U.S. 487, 496 (1941); See also Boardman v. United Services Auto, Ass’n, 470
So.2d 1024, 1032 (Miss. 1985); Guaranty Nat. Ins. Co. v. Azcock Industries, Inc., 211 F.3d 239,
243 (5th Cir. 2000).

28 U.S.C. § 1332 provides as follows:
Diversity of citizenship; amount in controversy; costs
(a)
The district courts shall have original jurisdiction of all civil actions where the matter in controversy
exceeds the sum or value of $75,000, exclusive of interest and costs, and is between—
(1)
citizens of different States;
(2)
citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have
original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a
foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the
same State; . . .

2

3

1. Plaintiff’s Motion for Leave to File Affidavits of Michael McIntyre and Jeff
Stapelon [Doc. no. 101]
This court first takes up the matter of the additional affidavits that Plaintiff McIntyre seeks
to file for consideration by the court in ruling on the motions for summary judgment. [doc. no.
101]. In this motion, McIntyre moves this Court to grant McIntyre permission “to file the
Affidavits of McIntyre and of Jeff Stapelon. . . to refute various incorrect factual statements that
were made by defense counsel at the hearing held on June 5, 2018.” Plaintiff’s Motion [doc. no.
101].
According to McIntyre, Defendants offered allegedly incorrect factual statements during
their arguments on the summary judgment motions. In his “affidavit,” McIntyre testified on the
timing operation of Gate 1; his experience at a different Nissan employee parking lot; his denial
that he ever attended anger management classes, or that he ever had been counseled regarding his
relationships with other employees. Stapelon’s “affidavit” is not battle-tested by opposing
counsel, thus we do not know whether the submission is authentic or produced under credible
circumstances.
McIntyre had two opportunities to present his proof and opposing arguments regarding
these issues: First, in his brief in opposition to Defendants’ summary judgment motions; and
Secondly, during oral arguments on the summary judgment motions. Both sides had ample
opportunity during the hearing to refute the other’s contentions. Plaintiff did not offer these
affidavits at that time.
Plaintiff also has not provided this court with good cause nor established excusable
neglect for his failure to present these affidavits at the appropriate time as required. Fed. R. Civ.

4

P. 6(b) 3 See, e.g., Bernhardt v. Richardson-Merrell, Inc., 892 F.2d 440, 443-444 (5th Cir.
1990); Farina v. Mission Investment Trust et al., 615 F.2d 1068, 1073 (5th Cir. 1980) (absent
affirmative showing of excusable neglect, “a court does not abuse its discretion when it refuses
to accept out-of-time affidavits”); See also, Adams v. Travelers Indem. Co. of Connecticut, 465
F. 3d 156, 161 n. 8 (outlining excusable neglect factors).
Submissions and arguments on this motion must come to a close at some point, and this
court is persuaded that at this late stage of the litigation, that point has been reached. Leave is
not granted to plaintiff to submit the additional affidavits of Michael McIntyre and Jeff Stapelon.
2. Nissan’s Motion to Strike [Doc. no. 106]
Nissan has filed a motion [doc. no. 106] to strike Plaintiff’s motion seeking leave to file
additional affidavits [doc. no. 101]. This court having determined that Plaintiff’s motion for leave
to file the affidavits will not be granted, the motion to strike same [doc. no. 106] is denied as moot.
3. Plaintiff’s Motion To Consider Additional Authority [Doc. no. 98]
This court next considers Plaintiff’s motion [doc. no. 98] by which McIntyre brings to the
attention of the court, and asks this court to consider, the recent Mississippi Supreme Court
ruling in Ward v. Colom, 253 So.3d 265 (2018), interpreting Miss. Code Ann. § 45-9-101. Ward
was decided two days after this court heard oral arguments on Defendants’ motions for summary
judgment on June 5, 2018. The Defendants oppose the motion and claim that the issue and

Rule 6. COMPUTING AND EXTENDING TIME; TIME FOR MOTION PAPERS.
(b) Extending Time.
(1) In General. When an act may or must be done within a specified time, the court may, for good cause,
extend the time:
(A) with or without motion or notice if the court acts, or if a request is made, before the original time or
its extension expires; or
(B) on motion made after the time has expired if the party failed to act because of excusable neglect.

3

5

ruling in Ward are irrelevant to the instant case. Additionally, say Calsonic and Nissan, the
Plaintiff did not plead those matters.
This court takes note of the ruling in Ward v. Colom and considers it, only to the extent
that it would consider any other case brought to the court’s attention by the parties. This court,
therefore, grants Plaintiff’s motion only to the extent that this court agrees to look at and review
that additional authority. That case was concerned with the rights of persons holding “enhanced
carry” permits under Mississippi law and whether such persons could be prevented, by an order
of the state Circuit Court, from carrying a firearm into a state court building. This court has
thoroughly reviewed the ruling of the Mississippi Supreme Court in Ward. For reasons more
thoroughly discussed later in this opinion, this court is persuaded that Ward v. Colom does not
inform the issues sub judice.
4. Plaintiff’s Motion to Amend Proposed Pretrial Order [Doc. no. 104]
Plaintiff has also filed a motion to amend the proposed pre-trial order “to list as the final
contested issue of law the following: “Whether Plaintiff’s discharge violated Mississippi public
policy set forth in Miss. Code Ann. §45-9-101.” Plaintiff’s Motion to Amend Pretrial Order
[doc. no. 104 p.1]. McIntyre asks to be relieved of the requirement to submit a Memorandum
Brief in support of this motion.
The joint pretrial order was prepared based on the claims contained in Plaintiff’s
Complaint. That Complaint did not allege that Defendants had violated §45-9-101; nor did the
Complaint make averments that could be construed as giving rise to a cause of action under §459-101.

Summary judgment motions filed by both Nissan and Calsonic were fully briefed and

6

argued based on the contents of the Complaint. Nothing in the Complaint, the briefs or the
arguments before this court implicated Miss. Code Ann. § 45-9-101. 4
At the June 5th hearing, Plaintiff conceded and withdrew his claim against Nissan for
intentional and/or malicious interference with his employment, leaving Plaintiff’s claim of
wrongful discharge as the only remaining claim, based on Miss. Code Ann. § 45-9-55. This
claim is lodged against both Calsonic and Nissan.
Mississippi is an “at-will” employment state. An employer or employee may terminate
an employment relationship whenever one chooses, unless the parties are bound by contract,

Plaintiff contends that persons with an “enhanced carry” license are authorized to carry weapons in those places
listed in §45-9-101 (13), that are prohibited to persons with the ordinary license or no license, based on the
provisions of Miss. Code Ann. § 97-37-7 (2). The latter statute provides that under the “enhanced carry law” a
person “shall also be authorized to carry weapons in courthouses except in courtrooms during a judicial
proceeding, and any location listed in subsection (13) of Section 45-9-101, except any place of nuisance as defined
in Section 95-3-1, any police, sheriff or highway patrol station or any detention facility, prison or jail.” Miss. Code
Ann. §97-37-7(2).
4

§45-9-101(13) states in its entirety:
13) No license issued pursuant to this section shall authorize any person to carry a stun gun, concealed
pistol or revolver into any place of nuisance as defined in Section 95-3-1, Mississippi Code of 1972; any
police, sheriff or highway patrol station; any detention facility, prison or jail; any courthouse; any
courtroom, except that nothing in this section shall preclude a judge from carrying a concealed weapon or
determining who will carry a concealed weapon in his courtroom; any polling place; any meeting place of
the governing body of any governmental entity; any meeting of the Legislature or a committee thereof; any
school, college or professional athletic event not related to firearms; any portion of an establishment,
licensed to dispense alcoholic beverages for consumption on the premises, that is primarily devoted to
dispensing alcoholic beverages; any portion of an establishment in which beer or light wine is consumed on
the premises, that is primarily devoted to such purpose; any elementary or secondary school facility; any
junior college, community college, college or university facility unless for the purpose of participating in any
authorized firearms-related activity; inside the passenger terminal of any airport, except that no person
shall be prohibited from carrying any legal firearm into the terminal if the firearm is encased for shipment,
for purposes of checking such firearm as baggage to be lawfully transported on any aircraft; any church or
other place of worship, except as provided in Section 45-9-171; or any place where the carrying of firearms
is prohibited by federal law. In addition to the places enumerated in this subsection, the carrying of a stun
gun, concealed pistol or revolver may be disallowed in any place in the discretion of the person or entity
exercising control over the physical location of such place by the placing of a written notice clearly readable
at a distance of not less than ten (10) feet that the “carrying of a pistol or revolver is prohibited.” No license
issued pursuant to this section shall authorize the participants in a parade or demonstration for which a
permit is required to carry a stun gun, concealed pistol or revolver
Miss. Code Ann. § 45-9-101 (13).

7

Obene v. Jackson State Univ., 233 So. 3d 872, 875 (Miss. Ct. App. 2017), or unless there is some
other legally impermissible reason, McArn v. Allied Bruce-Terminix Co., Inc., 626 So2d 603, 606
(Miss. 1993). Plaintiff does not dispute that he was an “at-will” employee. Mississippi’s
adherence to the employment-at-will doctrine usually precludes an at-will employee from suing
for wrongful termination. Employees can be fired for any reason, or no reason at all, but cannot
be terminated for a legally impermissible reason. Obene v. Jackson State University, 233 So.2d
at 876 (quoting Galle v. Isle of Capri Casinos Inc., 180 So. 3d 619, 622 (Miss. 2015). Until
recently, McArn, supra, provided the only exceptions to the at-will doctrine under the laws of
Mississippi. McArn held that an employee could not be terminated for refusing to commit an
illegal act, or for reporting an illegal act committed by his or her employer. Id., 626 So.2d 603,
606 (Miss. 1993). An employee so terminated has a cause of action against his employer for
wrongful termination.
The Mississippi Supreme Court recently acknowledged, in Swindol v. Aurora Flight
Sciences Corp., that Miss Code Ann. § 45-9-55 creates another exception to the employment-atwill doctrine. Id., 194 So.3d 847, 849 (Miss. 2016). The Swindol court said employees cannot
be terminated for having a firearm in a locked vehicle on an employer’s parking lot, according to
§45-9-55, unless the employer’s parking area falls under the exception specified in subsection 2
of that statute. Swindol v. Aurora Flight Sciences Corp., 194 So.3d 847, 849 (Miss. 2016).
Unlike § 45-9-55, Miss. Code Ann. §45-9-101 does not, on its face, create a claim for
wrongful discharge and Mississippi jurisprudence has not so provided. Ward v. Colom, urged
upon this court by McIntyre, was concerned with a court’s ability to deny persons with
“enhanced carry” permits the right to bring firearms in and around state court buildings. The
Mississippi Supreme Court said that the state courts could not enact such a prohibition, at least

8

not in the manner enacted by the Chancery Court of Lowndes County. Such restrictions are the
sole province of the legislature.
The Ward case does not deal with the employment relationship and it does not create or
acknowledge another exception to the employment-at-will doctrine. Ward simply reiterates that
the “enhanced carry” laws, as written, should be enforced, even in our state’s court buildings.
Therefore, the principles it enunciates are not embraced by McIntyre’s Complaint sub judice.
This instant litigation is in its very last stages. To allow an amendment of the pleadings at this
point would cause significant delay and expense to the parties. Defendants claim that they would
be prejudiced by allowing Plaintiff to amend the pretrial order at this time and this court agrees.
Additional discovery would be required, new motions would be filed, additional briefing would
be required and the trial would be significantly delayed. This court is not persuaded to allow the
amendment.
The new “contested issue of law” Plaintiff seeks to bring into this case and to include in
the pretrial order is not relevant and comes too late. See, e.g., De Franceschi v. BAC Home
Loans Servicing, L.P., 477 F. App’x 200, 204 (5th Cir. 2012) (“district courts do not abuse their
discretion when they disregard claims or theories of liability not present in the complaint and
raised first in a motion opposing summary judgment”); Cutrera v. Board of Sup’rs of La. State
Univ., 429 F.3d 108, 113 (5th Cir. 2005) (“a claim raised only in response to a motion for
summary judgment is not properly before the court”).
Plaintiff cites Johnson v. City of Shelby, 135 S. Ct. 346 (2014) and Johnson v. Honda,
No. 3:15-cv-223-DPJ-FKB, 2015 WL 5794449 (S.D. Miss. Oct. 1, 2015) for the proposition that
a complaint need not cite a specific statutory provision or articulate a perfect statement of the
legal theory supporting the claim asserted. Nothing in those cases, however, excuses Plaintiff

9

from the fundamental obligation to give “fair notice of what [his] claim is and the grounds upon
which it rests” by pleading a sufficient factual predicate to state a plausible claim for whatever
purported liability he claims the defendants should have in this case. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (emphasis added).
CONCLUSION
For all the reasons herein stated, Plaintiff’s motion asking this court to consider additional
authority [doc. no. 98] is granted; Plaintiff’s Motion for Leave to File Additional Affidavits [doc.
no. 101] is denied; Plaintiff’s Motion for Leave to Amend Pretrial Order [doc. no. 104] is denied;
and Nissan’s Motion to Strike Plaintiff’s Motion for Leave to File Additional Affidavits [doc. no.
106] is denied as moot.
SO ORDERED AND ADJUDGED, this the 1st day of March, 2019.
s/ HENRY T. WINGATE
UNITED STATES DISTRICT JUDGE

10