Rogers v. Pilgrim's Pride Corporation et al

Filing 32

ORDER RULING ON REPORT AND RECOMMENDATIONS adopting 27 Report and Recommendations, granting 6 Motion to Dismiss for Failure to State a Claim as a motion for summary judgment; ORDER TO SHOW CAUSE regarding failure of service. (Show Cause Response due by 4/26/2012) Signed by Honorable Cameron McGowan Currie on 4/12/2012. (cbru, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
LORIE W. ROGERS,

)
)
Plaintiff,
)
)
v.
)
)
PILGRIM’S PRIDE CORPORATION,
)
JEFF MONROE and TINA FORD,
)
___________________________________ )

C.A. No. 3:11-3195-CMC-SHV

ORDER ON MOTION TO DISMISS
and
RULE TO SHOW CAUSE

Through this action, Plaintiff Lorie W. Rogers (“Rogers”) seeks to recover from her former
employer, Defendant Pilgrim’s Pride Corporation (“Employer”), and two former supervisors for
actions which occurred during and relating to Roger’s employment. That employment ended with
Roger’s termination on November 3, 2008.
The matter is before the court on Employer’s motion to dismiss. Employer argues that
Rogers’ claims are barred as to it because they were discharged in a bankruptcy proceeding. That
proceeding was instituted on December 1, 2008, and concluded with an order entered on December
10, 2009, which confirmed a Plan of Reorganization with an effective date of December 28, 2009.
PROCEDURAL BACKGROUND
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(e), (g), DSC, this
matter was referred to United States Magistrate Judge Shiva V. Hodges for pre-trial proceedings
and a Report and Recommendation (“Report”). On February 14, 2012, the Magistrate Judge issued
a Report recommending that Employer’s motion to dismiss be granted. Dkt. No. 27. Through the
same document, the Magistrate Judge granted Employer’s motion that the court take judicial notice
of certain documents filed in the bankruptcy proceeding.

The Magistrate Judge advised the parties of the procedures and requirements for filing
objections to the Report and the serious consequences if they failed to do so. Rogers filed a timely
objection on March 2, 2012, objecting to the recommended dismissal. Dkt. No. 28.
STANDARD
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight, and the responsibility for making a final determination remains with the
court. See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo
determination of any portion of the Magistrate Judge’s Report and Recommendation to which a
specific objection is made. The court may accept, reject, or modify, in whole or in part, the
recommendation made by the Magistrate Judge or recommit the matter to the Magistrate Judge with
instructions. See 28 U.S.C. § 636(b). In the absence of an objection, the court reviews the Report
and Recommendation only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005) (stating that “in the absence of a timely filed objection, a district court
need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on
the face of the record in order to accept the recommendation”) (citation omitted).
DISCUSSION
Rogers raises three arguments in her objection. The first two arguments relate to the
adequacy of Employer’s proof that Rogers was given notice of the bankruptcy proceeding and the
necessity for filing any claim she might have. These arguments are addressed together at Discussion
§ II below. Before addressing these arguments, the court addresses Rogers’ third argument which
challenges resolution of the issue on motion to dismiss.

2

I.

Treatment as Motion to Dismiss
Employer’s motion relies on various bankruptcy court filings of which the Magistrate Judge

took judicial notice.1 A court may consider such matters without converting a motion to dismiss
to a motion for summary judgment. See Sec’y of State for Defence v. Trimble Navigation, Ltd. 484
F.3d 700, 705 (4th Cir. 2007) (noting court may “take judicial notice of matters of public record”
without converting a motion under Fed. R. Civ. P. 12(b)(6) to a motion under Fed. R. Civ. P. 56).
Rogers’ only response to Employer’s motion was an affidavit, unaccompanied by any legal
argument.2 Nothing in the affidavit suggested any challenge to the propriety of resolving the motion
under Fed. R. Civ. P. 12(b)(6). Rogers submission of a responsive affidavit, nonetheless, arguably
converted the motion to one for summary judgment. See Report at 8 (discussing Bosiger v. U.S.
Airways, Inc., 510 F.3d 442 (4th Cir. 2007) (affirming district court dismissal under 12(b)(6) by
noting, inter alia, that court’s consideration of matters outside the pleadings triggered an implicit
conversion of the motion to one under Fed. R. Civ. P. 56)). The result is, however, the same under
either rule. See id. at 9 (making same recommendation if motion is considered under Rule 56).
In her objection, Rogers argues that the procedural posture of this case deprives her of “a fair
opportunity to prove her claims or determine the claims cannot be proven.” Dkt. No. 28 at 3. She

1

Rogers does not challenge the order taking judicial notice of bankruptcy court filings.

2

As explained in the Report, Rogers failed to file any opposition to the Employer’s motion
by the deadline allowed for doing so. Dkt. No. 27 at 1-2. Her only response was a later-filed
affidavit, which she submitted through counsel in response to an order directing her to advise the
court whether she “wishe[d] to continue with this case and to file a response to” the motion to
dismiss. Dkt. No. 12 (docket text order entered December 15, 2011, directing Rogers to respond);
Dkt. Nos. 13, 14 (request and grant of extension to respond); Dkt. No. 24 (affidavit filed January 9,
2012). That affidavit sets forth Rogers’ factual position that she has no recollection or record of
receiving “any documentation requiring her to file a claim in the bankruptcy proceeding[.]” Dkt.
No. 24 ¶¶ 10-13. Neither Rogers’ affidavit nor the cover document submitted by her attorney
includes any legal argument.
3

also suggests there are open issues “whether [she] has been afforded substantive or procedural due
process at this stage of her case development given the evidence developed to date.” Id.
These conclusory statements appear to be directed primarily to Rogers’ substantive claims.
She does not, in any event, suggest the need for any specific discovery on the issue of what notice
was given in the bankruptcy proceeding, which is the only issue of fact relevant to Employer’s
present motion.3 Neither does she proffer any additional evidence in support of her position that she
did not receive notice. Thus, while the court agrees that the motion should be considered a motion
for summary judgment under Fed. R. Civ. P. 56 in light of Rogers’ reliance on an affidavit, it finds
no impediment to ruling on that motion at this stage of the proceedings.
Because the matter will be considered under Rule 56, the court applies the following
standard. Summary judgment should be granted if “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). It is well established that summary judgment should be granted “only when it is clear
that there is no dispute concerning either the facts of the controversy or the inferences to be drawn
from those facts.” Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987).
The party moving for summary judgment has the burden of showing the absence of a genuine
issue of material fact, and the court must view the evidence before it and the inferences to be drawn
therefrom in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369
U.S. 654, 655 (1962).

3

Of course, if Rogers believed such discovery was necessary, she should have requested it
in response to Employer’s motion to dismiss and before the Report was issued. She should not have
waited until she received an unfavorable Report which, as noted above, was issued only after the
court sua sponte granted Rogers leave to file a belated response and then gave her an additional
extension of time to respond.
4

Rule 56(c)(1) provides as follows:
(1)
A party asserting that a fact cannot be or is genuinely disputed must support
the assertion by:
(A)

citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits
or declarations, stipulations . . . , admissions, interrogatory answers
or other materials; or

(b)

showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1).
A party “cannot create a genuine issue of material fact through mere speculation or the
building of one inference upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985).
Therefore, “[m]ere unsupported speculation . . . is not enough to defeat a summary judgment
motion.” Ennis v. National Ass’n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995).
II.

Failure of Notice

Rogers argues that her claims in this matter are not “claims” covered by 11 U.S.C. §
101(5)(A) (defining claims) because she did not receive the requisite notice of the bankruptcy
proceeding and necessity for filing a claim. This argument rests on a challenge to the adequacy of
Employer’s “evidence” that notice was provided. Specifically, Rogers argues:
Defendant has submitted a certificate of service and a copy of the bankruptcy filings
. . . as proof that Plaintiff was served with appropriate notice. However, these
documents only confirm that the bankruptcy proceeding was properly filed and that
notices were prepared. The certificate of service was prepared by an agent, servant,
or employee of Defendant which makes it self serving; no proof of actual mailing
(i.e. certificate of mailing from the Post Office, return receipt or other proof that the
documents were placed in the U.S. Mail have been provided.
Dkt. No. 28 at 1-2.4

4

This argument is raised for the first time in Rogers’ objection to the Report. See supra n.1.
5

The certificate of service on which Employer relies was filed in the United States Bankruptcy
Court for the Northern District of Texas. It is signed by Michael Paque of Kurtzman Carson
Consultants, LLC (“KCC”), of El Sequndo, California who states that KCC is “the claims and
noticing agent for the Debtor” and that “at my direction and under my supervision, employees of
KCC caused the following documents to be served via First Class mail on the service lists attached
hereto[.]”5 Rogers’ name and address are contained on one of those lists. For reasons explained
in the Report, this evidence raises a presumption that the notice was received by Rogers.
Rogers has pointed to no error in the listing of her name or address. Neither has she
identified any legal deficiency in the certificate of service or legal authority for her suggestion that
something more is required to raise a presumption of mailing and receipt. Rogers’ averment that
“she does not recall having received any documentation requiring her to file a claim in the
bankruptcy proceeding filed by [Employer]” does not defeat the presumption of receipt for reasons
addressed in the Report. Dkt. No. 27 at 7-8. Thus, this objection is without merit whether
considered under Rule 12(b)(6) or Rule 56.
CONCLUSION AS TO MOTION TO DISMISS
For reasons set forth above, the court finds Rogers objection to the Report to be without
merit. Finding no plain error, the court adopts the Report and grants Pilgrim’s Pride Corporation’s
motion, although it treats Employer’s motion as a motion for summary judgment in light of Rogers’
reliance on documents beyond the pleadings and other publicly available records.

RULE TO SHOW CAUSE

5

Contrary to Rogers’ suggestion, KCC appears to be an entity independent of Employer.
See Dkt. No. 30 (Employer’s response at 3, n.1).
6

The ruling above disposes of the claims against Employer. This leaves the claims against
Rogers’ former supervisors, Jeff Monroe and Tina Ford (collectively “Supervisors”). Despite the
passage of more than 120 days since this action was removed to this court, no proof of service has
been filed indicating service on either of the Supervisors. See Fed. R. Civ. P. 4(m) (setting 120 day
period for service). Rogers has also failed to comply with Local Civil Rule 4.01 which requires her
to give the court and any earlier-served party written notice at the expiration of the 120-day period
of the identity and reasons for non-service of any party who has not been served.
The court, therefore, gives notice under Fed. R. Civ. P. 4(m), that it will dismiss this action
without prejudice as to Defendants Jeff Monroe and Tina Ford for non-service if Rogers does not
show good cause for the failure of service within fourteen calendar days of entry of this order.
CONCLUSION
For the reasons set forth above, Defendant Pilgrim’s Pride Corporation’s motion is construed
as a motion under Fed. R. Civ. P. 56 and is granted. Plaintiff Lorie W. Rogers is directed to SHOW
CAUSE within fourteen calendar days of entry of this order why the remaining Defendants should
not be dismissed without prejudice for failure to serve them in a timely manner.
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
UNITED STATES DISTRICT JUDGE
Columbia, South Carolina
April 12, 2012

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