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