United States District Court, M.D. Alabama, Northern Division
REPORT AND RECOMMENDATION OF THE MAGISTRATE
M. BORDEN, UNITED STATES MAGISTRATE JUDGE
to 28 U.S.C. § 636(b)(1) this case was referred to the
undersigned United States Magistrate Judge for consideration
and disposition or recommendation on all pretrial matters as
may be appropriate. Doc. 3. Pending before the court is the
Motion to Dismiss Plaintiff's Complaint filed by Gourmet
Services, Inc.; Al Baker; Gil Jones; Tia Benton; Charles
Jones; and Jasper Manuel. Doc. 17. Also pending before the
court are Plaintiff Lawrence Wells' Motion for Judgment
on the Pleadings (Doc. 23) and Motion for Rule 55 Default and
Default Judgment. Doc. 27.
case has been stayed pending the appeal of a decision in a
related case. Doc. 30. The appeal in that decision now has
been decided, Wells v. Gourmet Services, et al., No.
18-10149, slip op. (11th Cir. Aug. 31, 2018), and the stay is
due to be lifted. For the reasons stated herein, the
Magistrate Judge RECOMMENDS that the motion to dismiss (Doc.
17) be GRANTED and that the motions for judgment on the
pleadings and for default judgment (Docs. 23 & 27) be
FACTUAL AND PROCEDURAL BACKGROUND
has been the plaintiff in two relevant lawsuits: Lawrence
Wells v. Gourmet Services Inc., Al Baker, Gil Jones, Tia
Benton, Charles Jones, and Jasper Manuel,
2:13cv516-WKW-CSC (“Wells I”), and the
instant case, Lawrence Wells v. Gourmet Services Inc., Al
Baker, Gil Jones, Tia Benton, Charles Jones, and Jasper
Manuel, 2:18cv135-MHT-GMB (“Wells
the first of these cases was filed, Wells filed a charge of
discrimination with the Employment Opportunity Commission
(“EEOC”) on April 9, 2013. Wells I,
13cv515, Doc. 1-1 at 4. The EEOC issued a Notice of Right to
Sue on May 7, 2013. Wells I, 13cv515, Doc. 1-1 at 1.
12, 2013, Wells filed a second charge of discrimination with
the EEOC. Wells I, 13cv516, Doc. 47-2 at 4. The
second charge includes this statement: “On June 8,
2013, I filed two complaints with the City of Montgomery
Police Department and the Alabama State University Campus
Police, about Mr. Jones harassing me and threatening to shoot
me.” Wells I, 13cv516, Doc. 47-2 at 4.
I was filed on July 19, 2013 before Wells received a
Notice of Right to Sue on the second EEOC Charge. Wells
II, 18cv135, Doc. 1 at 3.
filed an amended complaint in Wells I on March 20,
2014. 13cv516, Doc. 47. In it, Wells brought a claim of
retaliation, stating that he was terminated from employment
on June 10, 2013 because he reported his problems with
Alabama State University to the EEOC and to the police.
13cv516, Doc. 47 at 26-27.
21, 2014, the magistrate judge in Wells I entered a
recommendation, stating that the following claims were stated
in the amended complaint: a hostile work environment claim
and deprivation of pay claim on the basis of race in
violation of Title VII; a claim of discharge in retaliation
for complaints; an FLSA claim; and various state-law claims.
13cv516, Doc. 64 at 8. On July 21, 2014, the Magistrate Judge
recommended that all of the federal claims except an FLSA
claim be dismissed with prejudice and the state law claims be
dismissed for lack of jurisdiction. 13cv516, Doc. 64 at
24-25. That recommendation was adopted and all of the claims
except the FLSA claim were dismissed on September 9, 2014.
13cv516, Doc. 68.
December 6, 2017, Wells received a right to sue letter from
the EEOC on his June 12, 2013 charge of discrimination.
Wells II, 18cv135, Doc. 1 at 3.
I proceeded on the FLSA claim, but ultimately that claim
also was dismissed with prejudice, and final judgment was
entered in the case on January 5, 2018. 13cv516, Doc. 197 at
1. Wells appealed the dismissal of his FLSA claim on January
12, 2018. 13cv516, Doc. 199.
filed his second case, Wells II, on February 27,
2018, bringing claims against Gourmet Services, Inc.; Al
Baker; Tia Benton; Charles Jones; and Jasper Manuel. Wells
alleges in his complaint that he suffered discrimination on
June 10, 2013. 18cv135 at Doc. 1 at 2. He states that his
claim relates to his termination. 18cv135, Doc. 1 at 2. The
factual basis of his complaint is that “Charles Jones
stated if he had a gun I would be the first one he would
shoot.” 18cv135, Doc. 1 at 2. He also claimed in his
charge filed with the EEOC that Gourmet Services, Inc.
retaliated against him. Wells II, 18cv135, Doc. 1-1
appeal of Wells I was decided on August 31, 2018.
Wells v. Gourmet Services, et al., Slip Op.,
18-10149 (11th Cir. Aug. 31, 2018). In the opinion, the
Eleventh Circuit noted that the Notice of Appeal did not
encompass the earlier 2014 dismissal order, and the brief did
not challenge that order, so the Eleventh Circuit did not
address the dismissal of Wells' Title VII and ...