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July v. Terminix International Company, Limited Partnership

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

November 6, 2018

WINFRED M. JULY, Plaintiff,
v.
TERMINIX INTERNATIONAL COMPANY, LIMITED PARTNERSHIP, Defendant.

          REPORT AND RECOMMENDATION

          SONJA F. BIVINS, UNITED STATES MAGISTRATE JUDGE.

         This case is before the Court on Defendant's motion to dismiss and memorandum in support. (Docs. 8, 9). The motion, which is ripe for resolution, has been referred to the undersigned for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. CivLR 72(a)(2)(S). Upon consideration of all matters presented, the undersigned RECOMMENDS, for the reasons stated herein, that Defendant's motion be DENIED without prejudice and that Plaintiff be given the opportunity to amend his complaint.

         I. BACKGROUND FACTS.

         Plaintiff Winfred M. July (“Plaintiff”) filed a pro se complaint for defamation (libel) against the Defendant[1] on January 11, 2018. (Doc. 1). His factual allegations in their totality are as follows:

(State briefly your legal claim or your reason for filing suit. Include the statue [sic] under which the suit is filed.)
4. Defamation (Libel) Alabama
(Give a brief, concise statement of the specific facts involved in your case)
5. File is attached (unemployment compensation)
(State the relief you are requesting.)
6. Full extent of the law, for Plaintiff believe [sic] the action cause [sic] him to lose credibility when he was seeking employment elsewhere.

(Doc. 1 at 2). Although paragraph 5 of the complaint refers to an attached file, no exhibits were attached to Plaintiff's complaint. However, a Notice of Determination from the State of Alabama, Department of Labor, Unemployment Compensation Division was attached to Plaintiff's motion to proceed without prepayment of fees. (Doc. 2 at 5). The document reflects that Plaintiff was disqualified or determined ineligible for benefits during the period beginning January 24, 2016, and ending March 19, 2016, for misconduct. (Id.). The body of the Notice of Determination states:

You were discharged from your most recent bona fide work with THE TERMINIX INTERNATIONAL for being observed on camera urinating in a customers [sic] backyard. This constitutes misconduct committed in connection with work. You are disqualified for the period indicated and the maximum amount of benefits to which you may become entitled after this period of disqualification is reduced by 8 times the weekly benefit amount established for your benefit year effective 01/24/16.

(Id.).

         In support of its motion to dismiss, Defendant argues that “Plaintiff's Complaint is devoid of any factual allegations to which Defendant is able to properly respond, ” and that the Court should dismiss the complaint because it “fails to allege a single fact supporting a defamation claim.” (Doc. 9 at 1). Defendant further contends that Plaintiff is bringing a defamation claim arising from “Terminix's communication with the Alabama Department of Industrial Relations made in connection with Plaintiff's request for unemployment benefits.” (Id. at 3). Defendant argues that communications made to the Alabama Department of Industrial Relations in connection with the administration of ...


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