Posey v. Sandy Sansing Brookhaven, LLC
Filing
21
ORDER denying without prejudice 3 Motion for Summary Judgment Signed by Honorable David C. Bramlette, III on 8/18/2016 (ECW)
IN THE UNITED STATE DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
MIKE POSEY
PLAINTIFF
VS.
CIVIL ACTION 5:15-cv-103(DCB)(MTP)
SANDY SANSING BROOKHAVEN, LLC
DEFENDANT
MEMORANDUM OPINION AND ORDER
This cause is before the Court on the defendant Sandy Sansing
Brookhaven, LLC’s motion for summary judgment (docket entry 3).
Having carefully considered the motion and the plaintiff Mike
Posey’s response, as well as the arguments of counsel and the
applicable law, the Court finds as follows:
This action was originally filed in the Circuit Court of
Lincoln County, Mississippi, and removed to this Court by the
defendant.
The defendant’s Notice of Removal asserts that the
plaintiff is a Mississippi citizen, that the defendant is a Florida
limited liability company, and that the amount in controversy
exceeds $75,000.
The plaintiff’s Complaint alleges that he entered into a
written contract of employment with the defendant whereby plaintiff
was guaranteed $15,000 a month for a year to serve as the sales
manager of Toyota of Brookhaven.
Complaint, ¶ 14.
The Complaint
further alleges that on November 1, 2014, the plaintiff left work
“for two to three hours to watch his son’s last Pee Wee football
game” (¶ 11), and that on November 14, 2014, Mike Addison and David
Sansing, on behalf of the defendant, told him that “he was fired
because he left the dealership to attend his son’s ball game.”
13).
(¶
The plaintiff brings claims for breach of contract and
detrimental reliance (¶¶ 14-19), and seeks “compensatory damages”
and “other attendant damages.”
The
defendant
terminable
at
(¶ 21(c)).
contends
will,
and
that
cites
plaintiff’s
the
employment
plaintiff’s
was
Employment
Application, as well as the plaintiff’s Acknowledgment of Receipt
of
Employment
Policy
Manual,
At-Will
Probationary Employment Period.
Employment
Status
and
These documents are attached as
exhibits to the defendant’s Motion for Summary Judgment, and have
been properly authenticated (docket entry 12, exhibit A).
In response to the motion for summary judgment, the plaintiff
agrees with the defendant’s assertion that the
application for
employment, signed by the plaintiff on October 7, 2014, states: “I
understand that if I am hired, my employment will be for no
definite period, regardless of the period of payment of my wages.
I
further
understand
that
I
have
the
right
to
terminate
my
employment at will at any time with or without notice or reason,
and the Company has the same right.”
12-1, p. 2)(emphasis added).
(docket entry 12, Document
The plaintiff also admits that the
“Acknowledgment of Receipt of Employment Policy Manual,” which he
signed October 13, 2014, states:
I further understand that as a new employee, my first 90
days of employment is a probationary period. Should my
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performance become unsatisfactory at any time during this
probationary period, I will be subject to discharge at
that time. Furthermore, completion of the probationary
period does not confer any expectation of continuation in
employment; continuation depends on the needs of the
Company and the performance and conduct of the employee.
(docket entry 12, document 12-2, p. 1)(emphasis added).
The plaintiff alleges, however, that a third document he
signed on October 16, 2014 (a “Personal Pay Plan”), entitles him to
recover from the defendant one year’s worth of salary at $15,000
per month.
This document provides, in full:
Personal Pay Plan
NAME: MIKE POSEY
POSITION: GENERAL SALES MANAGER
Effective Date: 10/13/2014
GAURANTEE: [sic]
$15,000.00 A MONTH GAURANTEE [sic] FOR 1 YEAR
REIMBURSEMENT OF MONTHLY MORTGAGE NOTE UNTIL HOUSE SALES
[sic]
USE OF DEMO
(docket entry 12, Document 12-3, p. 1).
Rule 56(c) of the Federal Rules of Civil Procedure authorizes
summary judgment where “the pleadings, depositions, answers to
interrogatories and admissions on file, together with affidavits,
if any, show that there is no genuine dispute as to any material
fact and that the moving party is entitled to judgment as a matter
of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
If
the moving party carries its burden of showing that evidence in the
record contains insufficient proof concerning an essential element
of the nonmoving party’s claim, the burden shifts to the nonmoving
3
party to present evidence showing that there is a genuine issue for
trial.
Norwegian Bulk Transp. A/S v. International Marine, 520
F.3d 409, 412 (5th Cir. 2008).
Mississippi adheres to the employment at will doctrine, which
states: “absent an employment contract expressly providing to the
contrary, an employee may be discharged at the employer’s will for
good reason, bad reason, or no reason at all, excepting only
reasons independently declared legally impermissible.”
Burchfield, 481 So.2d 247, 253-54 (Miss. 1985).
Shaw v.
Mississippi law
recognizes three exceptions to the at-will rule: (1) “an employee
who refuses to participate in an illegal act ... shall not be
barred ... from bringing an action in tort for damages against his
employer,” McArn v. Allied Bruce-Terminiz Co., Inc., 626 So.2d 603,
607 (Miss. 1993); (2) “an employee who is discharged for reporting
illegal acts of his employer to the employer or anyone else is not
barred ... from brining action in tort for damages against his
employer,” id.; and (3) where an employer’s conduct serves to
modify the employment contract in such a way as to abrogate the atwill rule, Bobbit v. Orchard, Ltd., 603 So.2d 356, 361 (Miss.
1992).
In order to survive summary judgment, the plaintiff must show
that the defendant took some action that modified the employment
contract so that the plaintiff was no longer an at-will employee.
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The plaintiff claims that “the terms expressed in the documents are
open to more than one interpretation,” (docket entry 15, p. 2), and
further claims that “[b]ecause the terms of the three documents in
question in this case contrast, they are not facially unambiguous,
and thus are not subject to summary judgment.
A trial court may
only grant summary judgment as a matter of law where a contract is
unambiguous.”
(Docket
entry
15,
p.
2,
citing
Epperson
v.
Southbank, 93 So.3d 10, 17 (Miss. 2012)).
Rule 56 mandates the entry of summary judgment, after adequate
time for discovery, and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear
the burden of proof at trial.” Stahl v. Novartis Pharm. Corp., 283
F.3d 254, 263 (5th Cir. 2002)(emphasis added)(citing Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986)).
The defendant’s motion for summary judgment was filed the same
day this action was removed from state court.
propounded in the state court.
No discovery was
The Case Management Order was
entered in this case by Magistrate Judge Michael T. Parker on May
25, 2016, and includes a discovery deadline of March 1, 2017.
Because the parties have yet to conduct discovery in this
case, the Court finds that a motion for summary judgment is
premature.
The parties have not developed the record fully enough
for the Court to determine if any genuine issues of material fact
5
are present or whether the defendant is entitled to judgment as a
matter of law.
judgment
See Fed.R.Civ.P. 56(c) (indicating that summary
“shall
be
rendered
forthwith
if
the
pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.”).
The defendant’s motion shall therefore be denied without
prejudice.
Accordingly,
IT
IS
HEREBY
ORDERED
that
the
defendant
Sandy
Sansing
Brookhaven, LLC’s motion for summary judgment (docket entry 3) is
DENIED WITHOUT PREJUDICE.
SO ORDERED , this the 18th day of August, 2016.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
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