Filed: Jun. 08, 1999
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS For the Fifth Circuit _ No. 98-60758 Summary Calendar _ ANTHONY MACKEY, Plaintiff-Appellant, VERSUS DAVID OWENS d/b/a TUPELO TIRE LOADING SERVICE, Defendant-Appellee. _ Appeal from the United States District Court for the Northern District of Mississippi (1:98-CV-166-JAD) _ June 2, 1999 Before DAVIS, DUHÉ, and PARKER, Circuit Judges. PER CURIAM:* Plaintiff-Appellant Anthony Mackey appeals from a final judgment of the magistrate court granting summary judgment again
Summary: UNITED STATES COURT OF APPEALS For the Fifth Circuit _ No. 98-60758 Summary Calendar _ ANTHONY MACKEY, Plaintiff-Appellant, VERSUS DAVID OWENS d/b/a TUPELO TIRE LOADING SERVICE, Defendant-Appellee. _ Appeal from the United States District Court for the Northern District of Mississippi (1:98-CV-166-JAD) _ June 2, 1999 Before DAVIS, DUHÉ, and PARKER, Circuit Judges. PER CURIAM:* Plaintiff-Appellant Anthony Mackey appeals from a final judgment of the magistrate court granting summary judgment agains..
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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 98-60758
Summary Calendar
___________________________
ANTHONY MACKEY,
Plaintiff-Appellant,
VERSUS
DAVID OWENS d/b/a
TUPELO TIRE LOADING SERVICE,
Defendant-Appellee.
___________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
(1:98-CV-166-JAD)
___________________________________________________
June 2, 1999
Before DAVIS, DUHÉ, and PARKER, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Anthony Mackey appeals from a final
judgment of the magistrate court granting summary judgment against
him on his action to recover damages for discharge in violation of
public policy. For reasons that follow, we affirm.
I.
Defendant-Appellee Tupelo Tire Loading Service ("TTLS") is a
minority general partnership consisting of approximately eighteen
general partners, of which Defendant-Appellee David Owens is the
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
managing partner. The partnership contracts with various trucking
companies to load and unload tractor-trailers at the Cooper Tire
plant in Tupelo, Mississippi. In addition to its general partners,
TTLS periodically employs a small number of employees who generally
work for a few weeks or months and are then invited to become
partners.
Mackey began working for TTLS in 1996, and worked there until
his termination in May 1998. TTLS alleges that during this time
Mackey was treated as a general partner, received distributions of
profits along with the other general partners, and received
Internal Revenue Service Schedules K-1 on the money he received
from the partnership. Mackey denies that he was ever a partner at
TTLS.
In May 1998, Owens called a meeting at which he instructed
Mackey and others to sign a document indicating that they were
partners. Mackey refused to sign the document. He alleges that the
document was fraudulent, and was designed to defraud the Internal
Revenue Service. Two days later, Mackey missed work due to a back
injury. Owens terminated Mackey, stating as his reason that Mackey
had missed work. Mackey contends that this was just a pretext, and
that he was actually discharged for refusing to sign the fraudulent
document.
Mackey filed the present action alleging discharge in
violation of public policy in May 1998. Owens filed his answer and
defenses in August 1998. Along with the answer and defenses, Owens
filed a motion to dismiss. Attached to the motion were four
exhibits. Exhibit 1 was a copy of Mackey's Complaint. Exhibit 2 was
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a document styled "General Articles of Partnership" dated April 30,
1990, along with an addendum dated May 7, 1998. Exhibits 3 and 4
were Internal Revenue Service Schedules K-1 setting forth
partnership distributions received by Mackey in 1996 and 1997.
Mackey filed a motion for additional time to respond to the
motion to dismiss, which the district court granted. The parties
then consented to trial before a magistrate judge. Mackey filed a
second motion for additional time to respond to the motion to
dismiss, which the magistrate judge granted. Mackey ultimately
filed his response to the motion to dismiss in October 1998. The
magistrate judge elected to treat the motion to dismiss as a motion
for summary judgment, and granted summary judgment on November 20,
1998. This appeal followed.
II.
The central focus of Mackey's appeal is on the magistrate
judge's decision to convert Owens's motion to dismiss into a motion
for summary judgment. Mackey argues that this decision was
erroneous for two reasons. First, he contends that the three
documents on which the magistrate judge relied (the General
Articles of Partnership and the two Schedules K-1) were
unauthenticated, and therefore could not properly be considered on
summary judgment. This argument is unpersuasive. Although Mackey
correctly observes that inadmissible evidence may not be considered
on summary judgment, Horta v. Sullivan, 4 F.3d 2 (1st Cir. 1993),
the fact that a document is unauthenticated does not mean that it
is inadmissible for purposes of summary judgment. Admissible
evidence may be submitted in an inadmissible form at the summary
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judgment stage, although at trial such evidence must be submitted
in admissible form. See McMillan v. Johnson, 88 F.3d 1573, 1584
(11th Cir. 1996). All of the documents attached to Owens's motion
to dismiss could have been easily authenticated through testimony
at trial. Thus, the documents were admissible even though submitted
in inadmissible form. Moreover, this court has recognized that
"[d]ocuments submitted in support of a motion for summary judgment
may be considered even though they do not comply with the
requirements of Rule 56 if there is no objection to their use."
Eguia v. Tompkins,
756 F.2d 1130, 1136 (5th Cir. 1985). At no time
prior to the magistrate judge's decision did Mackey move to strike
the documents or argue that their consideration was inappropriate.
In light of Mackey's failure to object, the magistrate judge was
entitled under Equia to consider the documents on summary judgment.
Second, Mackey contends that the magistrate judge failed to
provide adequate notice that the motion to dismiss would be treated
as a motion for summary judgment. Again, this argument is
unpersuasive. A motion to dismiss may be converted into a motion
for summary judgment so long as the notice and hearing requirements
of Rules 12(b) and 56(c) of the Federal Rules of Civil Procedure
are followed. Estate of Smith v. Tarrant County Hosp. Dist., 691
F.2d 207, 208 (5th Cir. 1982). The requirements of both rules were
satisfied in this case.
Rule 12(b) states, in pertinent part:
If, on a motion asserting the defense numbered (6) to dismiss
for failure to state a claim upon which relief can be granted,
matters outside the pleading are presented to and not excluded
by the court, the motion shall be treated as one for summary
judgment and disposed of as provided in Rule 56, and all
parties shall be given reasonable opportunity to present all
4
material made pertinent to such a motion by Rule 56.
Nothing in this rule requires that a party be given express notice
by the district court that it intends to treat a motion to dismiss
as a motion for summary judgment. Indeed, given the rule's express
declaration that a motion to dismiss shall be treated as a motion
for summary judgment where matters outside the pleadings are
presented to and not excluded by the court, the simple act of
placing matters outside the pleadings before the court provides
adequate notice that a motion to dismiss may be converted into a
motion for summary judgment. See Gay v. Wall, 761 F.2d 175 (4th
Cir. 1985) ("When a party is aware that material outside the
pleadings is before the court, the party is on notice that a Rule
12(b)(6) motion may be treated as a motion for summary judgment.").
Here, Owens attached three documents besides the complaint to his
motion to dismiss. That was more than sufficient to put Mackey on
notice that Owens's motion to dismiss might be treated as a motion
for summary judgment under Rule 12(b).
Rule 56(c) requires that a motion for summary judgment be
served at least 10 days prior to the time fixed for hearing, so
that the adverse party may have time to present opposing evidence.
Here, Mackey had over two months between the date that the motion
was served and the date that summary judgment was granted in which
to object or to present opposing evidence. That he chose not to do
so does not invalidate the magistrate judge's decision. This court
confronted a similar situation in Isquith v. Middle South
Utilities, Inc., 847 F.2d 186 (5th Cir. 1988). In Isquith, the
defendants filed a motion to dismiss, attached to which were
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various affidavits and supporting documents. The district court
treated the motion as a motion for summary judgment, and granted
summary judgment. On appeal, this court stated that the notice
requirement of Rule 56(c) does not mean that a party is "entitled
to notice that the court would, as opposed to could, treat the
motion as one for summary judgment." Id. at 195. Rather, we found
that "[t]he proper question . . . is whether the plaintiffs had ten
days' notice after the court accepted for consideration matters
outside the pleadings."
Id. at 196. Here, as in Isquith, the
plaintiff had well over ten days' notice after the district court
accepted for consideration the General Articles of Partnership and
the two Schedules K-1. Rule 56(c)'s notice requirement was
therefore satisfied, and the magistrate judge acted properly in
treating the motion to dismiss as a motion for summary judgment.
III.
A district court's decision to grant summary judgment is
reviewed de novo. Moore v. Eli Lily & Co., 990 F.2d 812, 815 (5th
Cir. 1993). Summary judgment shall be granted "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law." Fed. R. Civ. P. 56(c). The burden
rests upon the party seeking summary judgment to show the absence
of a genuine issue of material fact in the non-moving party's case.
Celotex Corp. v. Catrett,
477 U.S. 317, 325 (1986). Once such a
showing has been made, the burden shifts to the non-moving party to
demonstrate, by specific facts, that a genuine issue of material
6
fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). "Where the record, taken as a whole, could not lead a
rational trier of fact to find for the non-moving party, there is
no genuine issue for trial."
Id. at 248 (citation omitted).
Mackey's theory of liability rests on 18 U.S.C. § 1001 and
this court's decision in Drake v. Advance Construction Service,
Inc., 117 F.3d 203 (5th Cir. 1997). In Drake, this court recognized
a "narrow public policy exception" to Mississippi's employment-at-
will doctrine; namely, that "an employee discharged either for
refusing to participate in an illegal act, or for reporting illegal
acts of his employer to the employer or anyone else, is not barred
by the employment-at-will doctrine from bringing a tort action
against his employer."
Id. at 204 (citing McArn v. Allied Bruce-
Terminix Co., Inc.,
626 So. 2d 603, 607 (Miss. 1993)). Section 1001
is a criminal provision prohibiting, inter alia, the making or use
of "any false writing or document knowing the same to contain any
materially false, fictitious, or fraudulent statement or entry" in
any matter within the jurisdiction of the government of the United
States. The Drake panel expressly recognized that the Mississippi
public policy exception extends to employees who refuse to violate
Section
1001. 117 F.3d at 204. Mackey alleges in his complaint that
the document Owens instructed him to sign was "a fraudulent
document designed to defraud the Internal Revenue Service of the
United States." As such, he claims, his termination for refusal to
sign the document gives rise to a tort action under Drake.
The magistrate judge found, and we agree, that there is no
genuine issue of material fact sufficient to sustain Mackey's
7
claim. Central to Mackey's action is his allegation that the
document Owens instructed him to sign--which identified Mackey as
a "partner" at TTLS--was false or fraudulent. If the document was
not false or fraudulent, then signing it could not have given rise
to a Section 1001 violation, and hence termination for refusal to
sign could not give rise to a Drake action. The 1996 and 1997
Schedules K-1 that Owens attached to his motion to dismiss identify
Mackey by name as a general partner at TTLS and list the
partnership distributions that Mackey received each of those years.
These documents satisfy Owens's burden to show the absence of a
genuine issue of material fact. If Mackey was in fact a general
partner at TTLS, then the document he refused to sign identifying
him as such could not have been false or fraudulent.
The burden thus shifts to Mackey to demonstrate by specific
facts that a genuine issue of material fact exists. Mackey has not
met this burden. He argues that there is no evidence that these
forms were ever given to him or that he knew of their existence.
Alternatively, he argues that a jury could conclude that Mackey, as
an unskilled laborer, did not understand the significance of the
Schedules K-1. These arguments are conjecture, not specific facts.
Conjecture alone is insufficient to defeat summary judgment.
Lechuga v. Southern Pacific Transportation Co., 949 F.2d 790, 798
(5th Cir. 1992).
In short, Mackey has failed to meet his burden to demonstrate
by specific facts that a genuine issue of material fact exists as
to whether the document he refused to sign was false or fraudulent.
The Schedules K-1 identify him as a general partner, and he points
8
to no specific fact or piece of evidence contradicting that
identification. As such, no rational trier of fact could find in
favor of Mackey, and the magistrate judge's final judgment in favor
of Owens must be affirmed.
AFFIRMED.
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