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Nicholson v. Bush Hog, Inc.

United States District Court, S.D. Alabama, Northern Division

September 13, 2018

BUSH HOG, INC., Defendant.



         This matter comes before the Court on Defendant's Motion for Summary Judgment (doc. 8). The Motion has been briefed and is now ripe.

         I. Factual and Procedural Background.

         The relevant facts and procedural history appear undisputed. Back on October 23, 2013, plaintiff, Curtis Nicholson, by and through then-counsel of record, Donnis Cowart, filed a Complaint (doc. 1-1, at 5-8) against Bush Hog, Inc. in the Circuit Court of Wilcox County, Alabama. In that Complaint, Nicholson alleged that he had worked for Bush Hog as a painter from 1997 until October 20, 2011, when Bush Hog terminated his employment for purportedly sleeping on the job. Nicholson “strongly denie[d] that he was sleeping on the job.” (Doc. 1-1, at 6 ¶ 8.) On that basis, Nicholson asserted state-law claims of wrongful termination (on the theory that he was “terminated without good cause” and “without good faith and fair dealing on the part of the Defendant”) and breach of unilateral contract (on the theory that Bush Hog made “a specific offer of employment for a continuous period of time” to him through its company handbook and then breached the parties' agreement by firing him without good cause and without good faith and fair dealing). (Id. at 6-7.) No. other claims or causes of action appeared on the face of Nicholson's Complaint.

         Significantly, Nicholson did not perfect service of process on Bush Hog in 2013. To be sure, the court file reflects that plaintiff requested service of the Summons and Complaint via certified mail contemporaneously with filing the Complaint on October 23, 2013, and paid $6.31 in postage for that purpose. (Doc. 1-1, at 9-10.) On November 2, 2013, however, the U.S. Postal Service returned that mailing to the Wilcox County Circuit Clerk, bearing the notation “Return to Sender / Not Deliverable as Addressed / Unable to Forward.” (Id. at 12.)[1] The record contains no evidence and no indication that Nicholson ever attempted to serve process on Bush Hog through any means at any other time between October 2013 and February 2018.

         The “Case Action Summary” maintained by the state Alacourt electronic filing system reflects no docket activity in the case from the “Return of Non Service” on November 15, 2013, until the court set the matter for Status Review to be held on February 22, 2018, well over four years later. (Doc. 1-1, at 2.) On February 16, 2018, plaintiff's current counsel, Al Jones, filed a Notice of Appearance (doc. 1-1, at 14) with the Wilcox County Circuit Clerk, as well as a motion to continue the Status Review (id. at 19). As grounds for the motion, Jones indicated that Nicholson “was without representation for some time, ” that Jones “was recently retained on the case, ” that Jones had a scheduling conflict with the present setting of the Status Review conference, and that “[t]he Defendant has not been served and would suffer no prejudice.” (Id. at 19.) The relief sought in the motion to continue was that the court (i) “continue the case until the status docket” and (ii) “additionally allow ninety (90) days for service of the complaint upon the Defendant before dismissal.” (Id.) On February 20, 2018, Circuit Judge Pettaway entered an Order stating in its entirety as follows: “MOTION TO CONTINUE filed by NICHOLSON CURTIS is hereby GRANTED. Case reset to 5/9/18 at 9:00 a.m.” (Doc. 1-1, at 28.) The February 20 Order neither acknowledged nor addressed Jones' request for a 90-day extension to serve process on Bush Hog.

         Plaintiff finally, successfully served the Summons and Complaint on Bush Hog via certified mail delivered to its registered agent for service of process in Alabama on February 22, 2018. (Doc. 1-1, at 2, 32-33.) On March 23, 2018, Bush Hog filed a motion to dismiss the Complaint for the stated reasons that (i) the Complaint was untimely, because Nicholson did not show a bona fide intent to have it served on defendant immediately, and the statute of limitations expired prior to service; (ii) defendant was not timely served with process within 120 days, as required by Rule 4(b), Ala.R.Civ.P.; (iii) plaintiff's excessive delay amounts to failure to prosecute; and (iv) there was no unilateral contract, and Nicholson was an at-will employee who could be fired without cause. (Doc. 1-1, at 39-53.) As part of his response to the motion to dismiss, Nicholson purported to file an “Amendment to Complaint, ” which read in its entirety as follows: “Plaintiff amends the original complaint by right, and adds racial discrimination as a cause of action, stating that his actions on the job were no different than any other employed Caucasian employee, by Defendant, and he was singled out and accused of sleeping, when he clearly was not sleeping.” (Doc. 1-1, at 72-73.) On May 7, 2018, Judge Pettaway entered an Order stating, “Upon Consideration of the Pleadings, Defendants' Motion to Dismiss is DENIED.” (Doc. 1-1, at 79.)

         On May 10, 2018, Bush Hog filed a Notice of Removal (doc. 1) removing this action to this District Court. Subject matter jurisdiction was predicated on the federal question provisions of 28 U.S.C. § 1331, with defendant reasoning that Nicholson's race discrimination claim presents a federal question because it must be asserted under 42 U.S.C. § 1981 and/or Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. Bush Hog now moves for summary judgment, principally on grounds of timeliness. Plaintiff opposes the motion.

         II. Summary Judgment Standard.

         Summary judgment should be granted only “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.” Rule 56(a), Fed.R.Civ.P. The party seeking summary judgment bears “the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). Once the moving party has satisfied its responsibility, the burden shifts to the non-movant to show the existence of a genuine issue of material fact. Id. “If the nonmoving party fails to make 'a sufficient showing on an essential element of her case with respect to which she has the burden of proof,' the moving party is entitled to summary judgment.” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317 (1986)) (footnote omitted). “In reviewing whether the nonmoving party has met its burden, the court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir. 1992) (internal citations and quotations omitted). “Summary judgment is justified only for those cases devoid of any need for factual determinations.” Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1016 (11th Cir. 1987) (citation omitted).

         The Eleventh Circuit has expressly rejected the notion that summary judgment should seldom be used in employment discrimination cases because they involve issues of motivation and intent. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079 (11th Cir. 2004). Rather, “the summary judgment rule applies in job discrimination cases just as in other cases. No. thumb is to be placed on either side of the scale.” Id. at 1086 (citation omitted); see also Williamson v. Clarke County Dep't of Human Resources, 834 F.Supp.2d 1310, 1318 (S.D. Ala. 2011) (recognizing and applying rule that summary judgment standard is applied equally in employment discrimination cases as in other kinds of federal actions).

         III. Analysis.

         As noted, Nicholson's original Complaint filed on October 23, 2013 purported to assert two contract-based claims against Bush Hog relating to the October 27, 2011 termination of his employment. First, the Complaint alleged a claim of wrongful termination predicated on the notion that Nicholson was fired “without good cause” and “without good faith and fair dealing.” Second, the Complaint alleged that Bush Hog “through its company handbook made Plaintiff a specific offer of employment for a continuous period of time, ” which Nicholson accepted “by performing his duties throughout his employment, ” and that Bush Hog breached that agreement by firing Nicholson “without good cause” and “without good faith and fair dealing.” As a threshold matter, Bush Hog argues that both of these claims must be dismissed as untimely. Under Alabama law, the limitations period for contract actions is six years. See Ala. Code § 6-2-34(9) (“[t]he following must be commenced within six years: … Actions upon any simple contract”); Cockrell v. Pruitt, 214 So.3d 324, 330 n.2 (Ala. 2016) (“The statute of limitations for a breach-of-contract claim is six years.”). On its face, the Complaint alleges that Bush Hog breached its purported contract with Nicholson by firing him without cause in October 2011. Nicholson filed his Complaint in October 2013, well within the requisite six-year limitations period. Nonetheless, defendant contends these claims are untimely because of plaintiff's extreme delay in serving process on defendant. The record confirms that service of process was not perfected on Bush Hog until February 2018, more than four years after the Complaint was filed and some four months after expiration of the six-year limitations period prescribed by § 6-2-34(9). In so arguing, Bush Hog relies on a line of Alabama authority providing that the filing of a complaint does not commence an action for limitations purposes unless there was a bona fide intent to have it served promptly. See, e.g., ENT Associates of Alabama, P.A. v. Hoke, 223 So.3d 209, 214 (Ala. 2016) (“For statute-of-limitations purposes, the complaint must be filed and there must also exist a bona fide intent to have it immediately served.”) (citations, internal marks and emphasis omitted). “The question whether such a bona fide intent existed at the time the complaint was filed must be determined by an objective standard.” Id. (citation omitted).

         Defendant's record evidence shows the following: Nicholson, by and through counsel, filed the Complaint against Bush Hog in Wilcox County Circuit Court on October 23, 2013. On the same date, Nicholson made a written request to the Wilcox County Circuit Clerk for service of the Summons and Complaint by certified mail. (Doc. 1-1, at 9.) Contemporaneously, Nicholson paid postage of $6.31 for the Clerk to serve Bush Hog via certified mail at a specific address in Montgomery, Alabama. (Id. at 10.) There is no evidence that the service address was incorrect; however, it appears that Nicholson erroneously formatted it by placing the “Attn:” line below the street address line. On October 28, 2013, the Clerk mailed a certified envelope to Bush Hog using the exact address provided by Nicholson and the exact postage paid by Nicholson. (Id. at 12.) Apparently because of the aforementioned formatting error, however, the U.S. Postal Service returned the mailing to the Clerk, marked “Return to Sender / Not ...

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