Clinkscales v. Walgreen Company
Filing
53
ORDER denying 42 Motion for Attorney Fees; granting in part and denying in part 27 Motion for Summary Judgment. Plaintiff Clinkscales federal claims are DISMISSED with prejudice. Defendant Walgreens Motion for Summary Judgm ent is DENIED to the extent the motion seeks dismissal with prejudice of the Plaintiff Clinkscales state law claims. Instead, pursuant to 28 U.S.C. § 1367(c), the Court declines to exercise supplemental jurisdiction over these state law claims. Accordingly, the Plaintiffs state law claims for breach of contract are DISMISSED without prejudice and this case is DISMISSED. Signed by Honorable Timothy M Cain on 1/11/12.(gpre, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENW OOD DIVISION
Charles W esley Clinkscales,
W algreen Company
)
)
)
)
)
)
)
)
d/b/a W algreens,
)
Plaintiff,
v.
C/A No. 8:10-2290-TMC
OPINION & ORDER
)
Defendant.
)
_________________________________
This matter is before the Court on Defendant W algreen Company’s (“W algreens’”)
Motions for Summary Judgment (Dkt. # 27) and Attorney’s Fees (Dkt. # 42). Plaintiff
Charles W esley Clinkscales (“Clinkscales”) filed responses opposing these motions.
(Dkt. # 35, 37, 46). On December 1, 2011, a hearing was held on W algreens’ Summary
Judgment Motion and the court took the motion under advisement. For the reasons set
forth below, W algreens’ Motion for Summary Judgment is granted on Clinkscales’ federal
claims. However, the court declines to exercise supplemental jurisdiction over
Clinkscales' state law claims for breach of contract. Additionally, W algreens’ Motion for
Attorney’s Fees is denied.
Background/Procedural History
In 2003, Clinkscales began working as a pharmacist for W algreens, and in the
summer of 2005, he began working the night shift at a W algreens in Anderson, South
Carolina. On June 9, 2010, due to a lighting strike, there was a problem with the
W algreens’
pharmacy
computer
which
caused
prescriptions
sales
not
to
be
acknowledged as sold, but rather to remain in “ready” status. On June 18, 2010,
Clinkscales was told by the W algreens’ store manager, Paul Morash (“Morash”), to
perform a bin reconciliation and cash out 204 prescriptions at the register for $0.00. A bin
reconciliation essentially entails comparing the list of the prescriptions that the pharmacy
computer indicates are ready with the prescriptions that are physically in the bins.
(Morash Aff. ¶ 9). If there are any prescriptions that should be ready and in the bins, but
are not, then the pharmacist is to investigate to determine whether those prescriptions
were sold without being properly scanned so as to move them from ready to sold status,
put back into stock, or stolen. (Morash Aff. ¶ 9).
Clinkscales initially began the bin reconciliation and discovered 204 prescriptions
were in ready status, but were not in the bins. Clinkscales discovered that 14 of those
prescriptions had comments in the computer indicating that they were sold. Clinkscales
was unsure about how to handle the remaining 190 prescriptions. On June 19, 2010,
Clinkscales sent the following email to Morash:
Paul,
Jackie told me tonight that you told her for me to do a
bin reconciliation to see if we could clear up the register
problem I believed occurred Tuesday 06/15 where rx’s were
sold but still say ready in work Q on intercom+. The report is
done over 200 rx’s were in (ready not in bin status)highlighted in blue or rx’s that were generated after 06/15? - (I
hope this makes verification of register transactions easier).
The report is in mgr. box in office.
W es
(Pl.’s Dep. Ex. 11).
Approximately an hour later, Clinkscales sent a second email to
Morash:
2
Paul,
I just saw the note I jotted down of what Jackie was
telling me that you were telling her for me to do. I wrote down
that any item I could not find on bin recon. - you wanted me to
price modify to $0. Does this mean I’ll need to print the 200
leaflets for the rx’s that showed up (ready not in bins) then
ring up at register. Also if there are rx’s on bin recon that
were not involved in the register problem how are they
accounted for? I’m not sure how to correctly do this.
W es
(Pl.’s Dep. Ex. 12).
Clinkscales alleges that he refused to perform the bin reconciliation because he
believed it would result in unlawful billing to government health care programs. Morash
stated that he thought Clinkscales did not understand how to perform the bin
reconciliation and he simply assigned the task to someone else. (Morash Aff. ¶ 12).
Morash and Plaintiff never spoke about the bin reconciliation and another pharmacist
ended up performing the bin reconciliation.
Clinkscales also alleges that on June 20 th , he sought advice from the W algreens’
Help Center which advised him that the prescriptions did not meet the criteria to be
marked as sold, as the prescriptions were not over eleven (11) days old.
The Help
Center also told him that when they were, the store should open a new ticket.
On July 1-2, 2010, Clinkscales was told by Morash to stock inventory and
according to Morash not much was stocked. (Morash Aff. ¶ 15). Morash reviewed the
store surveillance video which showed Clinkscales performing “lunges” with detergent
bottles, not wearing his pharmacy jacket as required by W algreens’ policy, snacking, and
filling prescriptions by staging them (i.e. filling numerous prescriptions at once which
W algreens prohibits because of the increased likelihood of mistakes). Id. On July 15,
2010, Clinkscales was given two written warnings for this conduct.
3
Clinkscales took
vacation days July 15th-18th.
On July 19, 2010, Clinkscales' psychiatrist of eleven years told him he should not
return to work due to his bi-polar condition. Beginning July 19, 2010, Clinkscales was
placed on short disability and later he was on long term disability. W hile it is unclear from
the record whether Clinkscales currently remains on long term disability, his employment
with W algreens ended on July 15, 2011. (Dkt. # 40-2). In September 2010, Clinkscales
brought this action alleging the following claims: 1) Retaliation under the False Claims
Act, 31 U.S.C. § 3730(h) ("FCA”), 2) Breach of Contract - Employee Contract, and 3)
Breach of Contract Accompanied by Fraud.
Standard of Review
The court shall grant summary judgment “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(a). The movant bears the initial burden of demonstrating
that summary judgment is appropriate; if the movant carries its burden, then the burden
shifts to the non-movant to set forth specific facts showing that there is a genuine issue for
trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 23 (1986). If a movant asserts that a
fact cannot be disputed, it must support that assertion either by “citing to particular parts of
materials in the record, including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for purposes of the motion
only), admissions, interrogatory answers, or other materials;” or “showing . . . that an
adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P.
56(c)(1).
Accordingly, to prevail on a motion for summary judgment, the movant must
4
demonstrate that: (1) there is no genuine issue as to any material fact; and (2) that he is
entitled to judgment as a matter of law. As to the first of these determinations, a fact is
deemed “material” if proof of its existence or non-existence would affect disposition of the
case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An
issue of material fact is “genuine” if the evidence offered is such that a reasonable jury
might return a verdict for the non-movant. Id. at 257. In determining whether a genuine
issue has been raised, the court must construe all inferences and ambiguities against the
movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654,
655 (1962).
Under this standard, the existence of a mere scintilla of evidence in support of the
Clinkscales’s position is insufficient to withstand the summary judgment motion.
Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are
insufficient to preclude the granting of the summary judgment motion.
Ross v.
Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985). “Only disputes over
facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.
Factual disputes that are irrelevant or
unnecessary will not be counted.” Anderson, 477 U.S. at 248.
Discussion
1) Claims under the False Claims Act
As noted above, Clinkscales raises a retaliation claim pursuant to the FCA. The
FCA prohibits any person from presenting a false or fraudulent claim for payment or
approval to the United States government. The FCA also contains a whistleblower
provision which provides, in relevant part:
5
Any employee, contractor, or agent shall be entitled to all relief
necessary to make that employee, contractor, or agent whole,
if that employee, contractor, or agent is discharged, demoted,
suspended, threatened, harassed, or in any other manner
discriminated against in the terms and conditions of
employment because of lawful acts done by the employee,
contractor, or agent on behalf of the employee, contractor, or
agent or associated others in furtherance of other efforts to
stop 1 or more violations of this subchapter
31 U.S.C. § 3730(h). To establish an FCA retaliation claim, a plaintiff must show
that: 1) he engaged in conduct protected under the FCA; 2) his employer knew of
these acts; and 3) the employer took an adverse employment action against him
because of those acts. See Mann v. Heckler & Koch Defense, Inc., 630 F.3d 338,
343 (4 th Cir. 2010).1
a) Protected Activity
W algreens argues, inter alia, that Clinkscales did not engage in protected
activity when he simply communicated with others regarding the appropriate
procedure for performing a bin reconciliation. Clinkscales argues that he expressed
his concerns about the bin reconciliation and refused to participate in the unlawful
action, i.e. he tried to stop it, and thus his actions are protected activity under the
FCA.
1
The elements differ for a FCA violation claim and an FCA retaliation claim in that
to state a claim for an FCA violation, a plaintiff must allege that the defendant actually
violated the FCA by knowingly submitting a false claim or providing faulty goods to the
government. To state an FCA retaliation claim, however, a plaintiff must show that he
suspected that the defendant submitted a false claim, not that the defendant actually
submitted one. Mendiondo v. Centinela Hosp. Medical Center, 521 F.3d 1097 (9th Cir.
2008). Thus, proving a violation of § 3729 is not an element of a § 3730(h) cause of
action. See Graham County Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, 545
U.S. 409, 416 n. 1 (2005) (citations omitted). See Harrison v. Westinghouse Savannah
River Co., 176 F.3d 776, 785 n. 7 (4 th Cir. 1999)(holding there is no requirement that the
government have suffered damages as a result of the fraud).
6
The FCA protects a wide variety of conduct, including actions that are taken
in furtherance of a whistleblower action under the FCA, as well as actions taken to
stop a violation of the FCA. 31 U.S.C. § 3730(h).2
The relevant inquiry when
determining whether an employee's actions are protected under § 3730(h) is
whether: (1) the employee in good faith believes, and (2) a reasonable employee in
the same or similar circumstances might believe, that the employer is committing
fraud against the government. Fanslow v. Chicago Mfg. Center, Inc., 384 F.3d 469,
480 (7th Cir. 2004). “[A]n employee who specifically characteriz[es] the employer's
conduct as illegal or fraudulent or recommend[s] that legal counsel become involved
may be engaging in protected activity.” Mann v. Heckler & Koch Defense, Inc., 639
F.Supp.2d 619, 627 (E.D.Va. 2009)(internal citation omitted). However, one who
simply reports “mischarging” or investigates “the employer's non-compliance with
federal or state regulations” does not. Zahodnick, 135 F.3d at 914.
Evaluating Clinkscales’ allegations, the court finds his statements to
W algreeens about the bin reconciliation do not constitute protected activity under the
FCA. See U.S. ex. rel. Owens v. First Kuwaiti Gen. Trading & Contracting Co., 612
F.3d 724, 735 (4th Cir. 2010) (affirming summary judgment against FCA retaliation
claim; “Simply reporting his concern of a mischarging to the government to his
supervisor does not suffice to establish that [an employee] was acting ‘in furtherance
of’ a qui tam action.
. . .
An employer is entitled to treat a suggestion for
improvement as what it purports to be rather than as a precursor to litigation”)
(internal quotation marks and citation omitted).
2
The courts find that Clinkscales’
Clinkscales correctly notes that a 2009 amendment to § 3730(h) expanded the
definition of protected activity to include “efforts to stop 1 or more violations” of the FCA.
7
conduct amounts to merely asking how he could correctly perform a job function, not
reporting or attempting to stop misconduct under the FCA. Clinkscales did not state
that he thought the bin reconciliation was illegal or unlawful or express any concerns
about it creating the potential for fraudulent billing.
He also did not refuse to
complete the bin reconciliation, he merely asked how to do it correctly. Such activity
is not protected by the FCA whistleblower provision. See Zahodnick, 135 F.3d at
914.
Courts draw the line, however, when plaintiffs simply
report their concerns to a supervisor, finding that such
conduct does not raise a “distinct possibility” of a suit
under the FCA. See Zahodnick v. Int'l Bus. Mach. Corp.,
135 F.3d 911, 914 (4th Cir. 1997) (plaintiff who reported
his co-workers' false billings to his supervisor did not
take acts “in furtherance of a qui tam suit” as “the record
disclosed that [he] merely informed a supervisor of the
problem and sought confirmation that a correction was
made. . . . Simply reporting his concern of a mischarging
to the government to his supervisor does not suffice to
establish that Zahodnick was acting ‘in furtherance of’ a
qui tam action”); McKenzie v. BellSouth Telecomms.,
Inc., 219 F.3d 508, 516 (6th Cir. 2000) (plaintiff who
informed supervisors, union stewards, and BellSouth
auditors about the falsification of repair records was not
engaged in protected activity because “[a]lthough internal
reporting may constitute protected activity, the internal
reports must allege fraud on the government” and legal
action was not a reasonable or distinct possibility where
the plaintiff was “merely reporting wrongdoing to
supervisors”).
Glynn v. Impact Science & Technology, Inc., --- F.Supp.2d ----, 2011 W L 3792358 *
6 (D.Md. 2011).
Clinkscales alleges only that he contacted Morash about the bin reconciliation
and how it should be performed.
Clinkscales does not allege that he informed
Moresh of his suspicions that false claims might be submitted by W algreens to a
government agency, nor is there any evidence he conveyed to Morash that he
8
questioned the legality of the reconciliation. As noted above, a plaintiff who reports
“mischarging” or investigates, without more, “the employer's non-compliance with
federal or state regulations” is not engaged in protected activity. Mann, 639
F.Supp.2d 619. Accordingly, the court finds that W algreens is entitled to summary
judgement on Clinkscales’ FCA retaliation claim as a matter of law.
b) Knowledge
Even if Clinkscales could show that he had engaged in protected activity,
W algreens argues it did not know that Clinkscales had engaged in any alleged
protected activity. The court agrees.
As noted above, Clinkscales’ email to Morash asked how to “correctly”
perform the bin reconciliation. Clinkscales argues he expected this to convey he
was concerned about its legality. (Pl.’s Dep. 114-116).
However, in FCA retaliation
cases, courts have found notice when “the plaintiff . . . produced evidence that he or
she voiced a concern about fraud on the federal government or referenced a qui tam
FCA action to the employer.” United States ex rel. Lockyer v. Haw. Pac. Health, 490
F.Supp.2d 1062, 1084–85 (9th Cir.2007) aff'd, 343 F. App'x 279 (9th Cir. 2009). On
the other hand, “when an employee voices complaints but does not refer to any
allegations of fraudulent conduct against the government, the employer lacks the
requisite knowledge to make out a FCA retaliation claim.” Id. at 1085.3 Accordingly,
3
The court notes that Clinkscales also contends that he informed the assistant
store managers that the bin reconciliation was illegal, but he specifically testified that he
did not know if this was ever conveyed to Morash. (Pl.’s Dep. at 96-97). As Morash is
the person who imposed the discipline on behalf of W algreens, it is his knowledge with
which the court is concerned because he cannot be found to have retaliated or
discriminate against Clinkscales because of whistle-blowing activities if he was unaware
of such activity.
9
here, W algreens lacked any knowledge that Clinkscales had engaged in protected
activity under the FCA.
c) Adverse Employment Action
Finally, even if Clinkscales could show that he had engaged in protected
activity and W algreens had knowledge of this, his claim nevertheless fails on the
third element, as Clinkscales has not shown that W algreens retaliated against him as
a result of any FCA protected activity.4
The Fourth Circuit has not decided whether the burden-shifting analysis
utilized by the courts in analyzing claims under Title VII of the Civil Rights Act applies
to whistleblowing claims under the FCA.
However, other courts addressing this
issue have concluded the McDonnell Douglas v. Green, 411 U.S. 792 (1973),
burden-shifting framework applies to FCA retaliation claims and an affirmative
defense is available to the employer. See, e.g., Hill v. Booz Allen Hamilton, Inc.,
2011 W L 6000501 (D.Guam Nov. 16, 2011); Scott v. Metro. Health Corp., 234 F.
App'x 341, 346 (6th Cir. 2007)(applying McDonnell Douglas framework to an FCA
retaliation claim).
U.S. ex rel. Karvelas v. Melrose–Wakefield Hospital, 360 F.3d
4
In his Complaint, Clinkscales also states that he was retaliated against through
the issuance of two written warnings and that he was constructively discharged. Under
the doctrine of constructive discharge, relief is available where the plaintiff establishes
"that working conditions were so intolerable that a reasonable employee would feel
compelled to resign." Tyler v. Union Oil Co. of California, 304 F.3d 379, 394 (5th Cir.
2002). Constructive discharge may be claimed when retaliation against a working
whistleblower becomes so severe that the individual terminates employment rather than
continue to tolerate the mistreatment, or when the working conditions become so
intolerable that a reasonable person "in the plaintiff's shoes" would quit working for the
employer. Other than his conclusory allegation that he was constructively discharged,
Clinkscales has not presented any evidence that the working conditions were intolerable.
Further, the issuance of two written warnings under the facts of this case was not such a
severe action so as to support a constructive discharge claim.
10
220, 235 (1st Cir. 2004); Dookeran v. Mercy Hospital of Pittsburgh, 281 F.3d 105,
107 (3rd Cir. 2002); Norbeck v. Basin Elec. Power Co-op., 215 F.3d 848, 850–51
(8th Cir. 2000). Moreover, the legislative history clearly indicates Congress intended
courts to apply a burden-shifting analysis.
The Senate Report for the False Claims Amendments Act of 1986 states, in
part:
Section [3730(h) ] provides relief only if the whistleblower
can show by a preponderance of the evidence that the
employer's retaliatory action resulted ‘because’ of the
whistleblower's participation in a protected activity. Under
other Federal whistleblower statutes, the ‘because’
standard has developed into a two-pronged approach.
One, the whistleblower must show the employer had
knowledge the employee engaged in ‘protected activity’
and two, the retaliation was motivated, at least in part, by
the employee's engaging in protected activity. Once
these elements have been satisfied, the burden of proof
shifts to the employer to prove affirmatively that the same
decision would have been made even if the employee
had not engaged in protected activity.
S.Rep. No. 99–345 at 35, reprinted in 1986 U.S.C.C.A.N. 5266, 5300.
U.S. ex rel. Berglund v. Boeing Co., 2011 W L 6182109 * 17-18 (D.Or. 2011).
Therefore, the court will apply the burden-shifting analysis in evaluating
Clinkscales’ claims. Pursuant to this framework, once a plaintiff establishes a prima
facie case of discrimination, the burden shifts to the defendant to produce evidence
of a legitimate, nondiscriminatory reason for the adverse action. Merritt v. Old
Dominion Freight, 601 F.3d 289, 294 (4th Cir. 2010) (Title VII action). The
defendant's burden “is a burden of production, not persuasion.” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000).
Once a defendant
demonstrates a legitimate, nondiscriminatory reason, the plaintiff must demonstrate
11
by a preponderance of the evidence that the proffered reason was “‘not its true
reason[ ], but [was] a pretext for discrimination.’” Merritt, 601 F.3d at 294 (internal
quotation omitted). “Notwithstanding the intricacies of proof schemes, the core of
every [discrimination] case remains the same, necessitating resolution of the ultimate
question of . . . whether the plaintiff was the victim of intentional discrimination.” Id.
at 294–95.
Clinkscales was issued two written warnings on July 15, 2010. As Clinkscales
admitted in his deposition, he was not suspended or fired, or given a decrease in pay
or a different job title. (Pl.’s Dep. 316-18). The FCA unambiguously limits retaliation
claims to adverse actions taken “in the terms or conditions of employment.” 31
U.S.C. 3730(h)(1). See also Moore v. Cal. Inst. of Tech. Jet Propulsion Lab., 275
F.3d 838, 847–48 (9th Cir. 2002) (holding conduct does not constitute “retaliation”
under the FCA unless it would be sufficient to constitute an adverse employment
action under Title VII). W algreens contends that a written warning does not rise to
the level of disciplinary action because it does not constitute an “adverse
employment action.” A written warning without more does not constitute an adverse
employment action. However, in certain situations, a written warning may constitute
an “adverse employment action.”
The Fourth Circuit has held that when an
employee is subjected to “progressive discipline,” a disciplinary action which
“thrust[s] [an employee] further along the discipline track and closer to termination,”
this constitutes a “tangible, adverse consequence.” Nye v. Roberts, 145 Fed. App'x
1, 6 (4th Cir. 2005). Because Clinkscales progressed from a verbal warning to a
more serious form of discipline, a written warning, he arguably suffered the same
type of “tangible, adverse consequence” that amounts to an adverse employment
12
action.
Assuming the written warnings do in this case, in fact, constitute adverse
employment actions, the court finds that Clinkscales has presented sufficient
evidence of causation to satisfy the final element of his prima facie case. The Fourth
Circuit has held that, to establish a prima facie case, “very little evidence of a causal
connection is required” and “merely the closeness in time between the filing of a
discrimination charge and an employer's firing an employee is sufficient” to satisfy
the causation element of a prima facie retaliation case. Tinsley v. First Union Nat.
Bank, 155 F.3d 435, 443 (4th Cir.1998). W algreens then has the burden to produce
a legitimate, non-retaliatory reason for taking the adverse actions.
Moresh was the sole person who decided to issue Clinkscales the two
warnings (Pl.’s Dep. 207; Moresh Aff. ¶ 16), and he testified he did not think
Clinkscales’ email questioning the bin reconciliation meant Clinkscales was objecting
to the legality of the reconciliation. Morash testified he gave Clinkscales the two
written warnings based upon misconduct which was captured on video - Clinkscales
not wearing a pharmacy jacket in violation of company policy, doing “lunges,”
snacking, and staging when filling prescriptions. Moreover, while he offers
explanations for his behavior, Clinkscales admits engaging in this conduct.
The
court finds W algreens has offered legitimate, non-retaliatory reasons for the
issuance of the warnings to Clinkscales.
Because W algreens has proffered a legitimate, non-retaliatory reason for its
actions, Clinkscales bears the burden of demonstrating that the real reasons were, in
fact, unlawful.
See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
142-43 (2000). Clinkscales argues that W algreens' proffered reasons are pretextual
13
or false. Clinkscales, however, has not presented any evidence that W algreens’
reasons for issuing the written warnings were false or pretextual. See Hawkins v.
PepsiCo, Inc., 203 F.3d 274, 278–81 (4th Cir. 2000) (poor performance was a
legitimate, non-pretextual reason for discharging employee). He admits the conduct
which resulted in the warnings being issued to him. Further, Clinkscales has put
forth no evidence from which a reasonable jury could conclude that the reasons
relied on by W algreens in making the decision to reprimand Clinkscales were false,
or were in any way pretextual. Accordingly, Clinkscales’ FCA retaliation claim fails
and W algreens is entitled to summary judgment.
2) State Law Claims
Clinkscales has brought two state law claims: breach of contract claim and
breach of contract accompanied by fraud.
“[D]istrict courts may decline to exercise
supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all
claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). The Fourth
Circuit has recognized that “trial courts enjoy wide latitude in determining whether or
not to retain jurisdiction over state claims when all federal claims have been
extinguished.” Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir.1995). This order
dismisses
Clinkscales’
federal
claims
and
the
court
declines
to
exercise
supplemental jurisdiction over Clinkscales' state law claims against W algreens.
Therefore, Clinkscales’ breach of contract claims are dismissed without prejudice.
28 U.S.C. § 1367(c).
3) Walgreens’ Motion for Attorney’s Fees
W algreens seeks attorney’s fees for having to respond to both Clinkscales’
14
Sur-Reply and an Affidavit which was filed in support of Clinkscales’ Sur-Reply Brief.
W algreens argues Clinkscales did not seek or obtain leave of Court pursuant to the
Local Rule 1.02 prior to filing his Sur-Reply. However, after W algreens filed this
motion, Clinkscales filed a Motion for Leave to File a Sur-Reply (Dkt. # 44) which
Judge Henry F. Floyd granted. (Dkt. # 45). Therefore, the court denies W algreens’
Motion for Attorney’s Fees.
Conclusion
For the foregoing reasons, Defendant W algreens’ Motion for Attorney’s Fees
(Dkt. # 42) is DENIED; and W algreens’ Motion for Summary Judgment (Dkt. # 27) is
GRANTED IN PART and DENIED IN PART. Plaintiff’ Clinkscales’ federal claims
are DISMISSED with prejudice. Defendant W algreens’ Motion for Summary
Judgment is DENIED to the extent the motion seeks dismissal with prejudice of the
Plaintiff Clinkscales’ state law claims. Instead, pursuant to 28 U.S.C. § 1367(c), the
Court declines to exercise supplemental jurisdiction over these state law claims.
Accordingly, the Plaintiff’s state law claims for breach of contract are DISMISSED
without prejudice and this case is DISMISSED.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
Greenville, South Carolina
January 11, 2012
15
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