July v. Terminix International Company

          REPORT AND RECOMMENDATION

          SONJA F. BIVINS, UNITED STATES MAGISTRATE JUDGE

         This case is before the Court on Defendant's motion to dismiss amended complaint and memorandum in support. (Docs. 24, 25). The motion, which has been fully briefed, 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. GenLR 72(a)(2)(S). Upon consideration of all matters presented, the undersigned RECOMMENDS, for the reasons stated herein, that Defendant's motion be GRANTED, and that Plaintiff's amended complaint be dismissed.

         I. BACKGROUND FACTS

         Plaintiff Winfred M. July (“Plaintiff”) filed a pro se complaint for defamation (libel) on January 11, 2018. (Doc. 1). The factual allegations in his original complaint, in their entirety, were 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). No exhibits were attached to Plaintiff's original 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 body of the Notice of Determination stated:

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.).

         On May 15, 2018, Defendant Terminix International Company, Limited Partnership (“Defendant”)^[1] filed a motion to dismiss Plaintiff's complaint and supporting memorandum, wherein it asserted that Plaintiff had failed to plead the necessary factual allegations to state a defamation claim and that communications made in connection with Plaintiff's request for unemployment benefits were absolutely privileged and could not support Plaintiff's defamation claim. (Docs. 8, 9). On November 6, 2018, the undersigned entered a report and recommendation which recognized that Plaintiff's complaint was devoid of factual allegations stating the elements of a defamation claim and failed to provide notice as to the substance of Plaintiff's allegations. (Doc. 19 at 9-10). However, because the complaint did not make clear what Plaintiff was actually alleging, the undersigned found that it would be premature to rule on Defendant's absolute privilege argument. (Id. at 10). In view of Plaintiff's pro se status, the undersigned recommended that Plaintiff be given the opportunity to amend the complaint to plead his claims with sufficient specificity to conform to Rule 8 of the Federal Rules of Civil Procedure and the applicable pleading standards. (Id. at 10-12).

         In its motion to dismiss that complaint, Defendant appeared as “Terminix International Company, Limited Partnership” and stated that it was “incorrectly designated as ‘Service Master d/b/a Terminix' by Plaintiff in the Complaint[.]” (Doc. 8 at 1). The caption of Plaintiff's amended complaint lists “Terminix International Company, Limited Partnership” as the Defendant, while the body of the amended complaint refers to “Defendant (Terminix International Company)[.]” (Doc. 20 at 1-2).

         On November 20, 2018, before the district judge entered an order on Defendant's original motion to dismiss, Plaintiff filed a document entitled “Motion to Amendedment [sic] Complaint[.]” (Doc. 20). The body of the document states as follows:

Come now Plaintiff, Winfred M. July file this Amendment to a Previous Complaint order of the court dated November 06, 2018, (18-00024-TM-B) and state the following:

1. The Plaintiff, Winfred M. July is representing himself, Pro Se. Plaintiff now moves for motion to amend his complaint to include the necessary documents (see attachments).

2. Plaintiff noticed that his complaint lacked important evidence (documents) to give support to his complaint which was filed January 11, 2018 in The United States District Court For The Southern District of Alabama - Southern Division.

3. Plaintiff's reason for filing a complaint is Libel (Defamation of Character). Plaintiff feels Defendant (Terminix International Company) sent a false written document in its defense against the Plaintiff during a pre-Arbitration hearing. The document was submitted to Mr. Charles Paterson (who was the Arbitrator for the American Arbitration Association) for their evidence on October 26, 2017. The document title: U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION - Birmingham District Office. Plaintiff's evidence of the complaint was presented by the Defendant with the above document (EEOC).

4. The document is a duplicated copy that was sent to the Alabama Department of Labor | Unemployment Compensations by the Defendant.

5. Definition - “Libel is a method of defamation expressed by print, writing, pictures, signs, effigies, or any communication embodied in physical form that is injurious to a person's reputation, exposes a person to public hatred, contempt or ridicule, or injures a person in his/her business or profession.” [citation footnote omitted]

6. Plaintiff presents an attached copy of the document for proof of this violation of Civil Law. Page 20 is the page where Plaintiff states that the Defendant statement of him urinating in a customer's backyard is false.

7. Discovery from one case may be used in another Duling v. Gristede's Operating Corp., 266 F.R.D. 66, 75-76 (S.D.N.Y. 2010)(holding that “it is well established that the Federal Rules of Civil Procedure [] create no automatic prohibition against using ...