HENRY T. WINGATE, District Judge.
Before this Court is the Defendants' motion for summary judgment
Plaintiff Eddie Pennypacker (hereinafter individually named "Pennypacker") is an adult resident of the City of Pearl, Mississippi.
Plaintiff Blake Lewis (hereinafter individually named "Lewis") is also an adult resident of the City of Pearl, Mississippi.
Defendant Melvin Myers (hereinafter individually named "Myers") is an adult resident of the State of Mississippi and employee of the City of Pearl, Mississippi.
Defendant Mayor Brad Rogers
Defendant City of Pearl (hereinafter individually named "Pearl") is a municipality in the State of Mississippi.
Pennypacker was hired by Pearl in July, 2005. Lewis was employed by Pearl in 2009. Pennypacker and Lewis (hereinafter named collectively "Plaintiffs") allegedly documented the misuse of Pearl's property by Myers for his own personal gain. Myers, a Pearl employee, was the supervisor for the Pearl municipal golf course and the Plaintiffs' direct supervisor.
Plaintiffs allege Myers sent golf course employees on errands for himself while the employees, including Plaintiffs, were supposed to be working for Pearl. Myers, say the Plaintiffs, ordered Pearl municipal golf course employees to take Pearl's property to Myers' personal residence, his deer camp, and to his family members' homes. Further, say the Plaintiffs, Myers had the Plaintiffs load 23 bags of fertilizer, owned by Pearl, into a vehicle, also owned by Pearl, and deliver the fertilizer to Myers' deer camp. Myers, the Plaintiffs continue, also instructed Pearl employees to drive to Muscle Shoals, Alabama, to pick up his personal 4 wheeler ATV.
Plaintiffs further assert that Myers ordered them and other Pearl employees, after hours, to purchase supplies from Ace Hardware in Pearl, Mississippi, and go to Myers' father-in-law's house to repair a water line. The Plaintiffs purchased the supplies on Pearl's account at Ace Hardware under the direction of Myers.
Myers would inform Pearl that he was at work for 50 hours a week, when, in actuality, accuse the Plaintiffs, he was at work for only 18 to 24 hours during a normal work week.
The Plaintiffs presented the information they had collected over a period of months on Myers to Alderman Michael Sartor (hereinafter named "Sartor"). Sartor supposedly reviewed the documentation and informed the Plaintiffs that Rogers and Myers were best friends. Allegedly, Sartor cautioned that they probably would be fired upon presenting this evidence to Rogers. Reportedly, Sartor asked the Plaintiffs to continue documenting Myers' misdeeds.
The Plaintiffs then went to Alderman Casey Foy (hereinafter named "Foy") with their accusations. They told Foy they were considering taking their information to Rogers. Foy allegedly instructed the Plaintiffs that since Rogers' administration would not be kind to them and their accusations, instead they should talk with the State of Mississippi Auditor's Office.
Despite the warnings of both Sartor and Foy, the Plaintiffs say that they took their documentation to Rogers. In turn, they say Rogers reviewed the information and gave it to Pearl Police Department Detective Jake Windham (hereinafter named "Windham"). Windham, Myers, and Rogers, according to the Plaintiffs, are childhood friends.
Windham telephoned Pennypacker and asked him to come to the police department to discuss the documentation. When Pennypacker arrived at the Pearl police station, he was taken by an officer to an investigation room. There, Windham and Rogers were waiting for him. During the investigative interview, Rogers became irate and began yelling and pounding his fist on the table says Pennypacker. Rogers reportedly said "Heads were going to roll for this." Windham allegedly had to remove Rogers from the investigation room. When Rogers and Windham returned to the room, Rogers allegedly apologized to Pennypacker and left.
Subsequently, the Board of Alderman for Pearl spoke with Rogers. According to the Plaintiffs, Rogers told the Board Pennypacker had admitted he knew he was doing something wrong by following Myers' orders and that he knew he should be fired. Pennypacker denies he ever admitted any fault, or that he should be fired.
On Friday, September 13, 2013, the Plaintiffs received a Letter of Intent to Dismiss from Employment signed by Rogers. The letter stated the following specific reasons: the Plaintiffs were at will employees; the Plaintiffs had failed properly to perform duties; the Plaintiffs had committed misconduct; and the Plaintiffs had committed potential criminal acts involving Pearl assets. The letter also informed the Plaintiffs they would have the opportunity for a hearing, which would be held at 9:00 am on September 20, 2013 in the boardroom at city hall.
Contemporaneously, allege the Plaintiffs, Rogers also gave the Plaintiffs a letter of resignation, which he had prepared for the Plaintiffs to sign. He instructed the Plaintiffs, if they signed the letter of resignation, they would not face any further action brought by Pearl against them. Rogers then gave the Plaintiffs a choice of which letter to sign. Both Plaintiffs chose to sign the Letter of Intent to Dismiss and requested the hearing.
At the September 20, 2013 hearing, the Plaintiffs gave the hearing board
The same day the Plaintiffs appealed the decision of the hearing board, the Plaintiffs were arrested by Pearl police officers at their respective homes and charged with felony embezzlement under Miss. Code. Ann. § 97-11-25.
On October 1, 2013, the Plaintiffs met with the Board of Aldermen, Rogers and Windham. After the hearing, the Board of Aldermen, by a vote of three (3) in favor and four (4) against, decided to affirm the decision of the hearing board. The four (4) members who voted against reinstating the Plaintiffs cited Rogers' statement regarding Pennypacker's disputed admission of fault.
The Plaintiffs filed for unemployment insurance with the Mississippi Department of Employment Security and were awarded unemployment benefits, despite the Defendants' efforts to prove alleged misconduct on the part of the Plaintiffs.
The Defendants next submitted to the grand jury the criminal charges that had been filed against the Plaintiffs. The grand jury returned a "no bill," that is "[a] grand jury's notation that insufficient evidence exists for an indictment on a criminal charge." NO BILL, Black's Law Dictionary (10th ed. 2014).
Pearl operates a municipal golf course, which is organized into a "pro shop" and "grounds" departments. Pennypacker was hired as the superintendent of the grounds department in 2005. Lewis was hired as a laborer for the grounds department in 2009 and was later promoted to laborer foreman. Pennypacker was Lewis' supervisor and Myers was the director of the entire municipal golf course. Myers was supposedly the Plaintiffs' friend.
When the Plaintiffs took their alleged documentation of Myers' alleged misdeeds to Sartor, he [Sartor] scheduled a committee meeting of Pearl's golf committee. Both Alderman Johnny McHenry (hereinafter named "McHenry") and Alderman Todd Jenkins (hereinafter named "Jenkins") were the other two members of the golf committee. McHenry notified Rogers before the committee meeting "there were some things going on" at the golf course. Windham was assigned as the investigator. Windham interviewed witnesses and collected documentation regarding the complaint against Myers.
Myers contends he never sent any employees, while they were on the clock, to his father-in-law's house. Myers asserts he asked the Plaintiffs to go, after hours, as his friends, to turn off the water supply to the house, but did not ask the Plaintiffs to fix the water line.
Windham's investigation uncovered no evidence to support the Plaintiffs' claims against Myers. Windham's investigation did uncover evidence that the Plaintiffs purchased supplies on Pearl's account for non-related business. As a result, the Defendants assert, Pearl terminated the Plaintiffs' employment and filed criminal charges against them. The Plaintiffs had a hearing before the Board of Aldermen, requesting that their employment be reinstated, but were denied.
A City of Pearl Municipal Judge issued arrest warrants for the Plaintiffs on September 24, 2013.
The Defendants filed a notice of removal on March 27, 2014, to this federal forum, [Docket no. 1] asserting that this court has federal question subject matter jurisdiction. Whether a complaint raises a federal question is "determined from what necessarily appears in the plaintiffs statement of his own claim in the bill or declaration. . . ." Francise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 10 (1983).
The Plaintiffs' Complaint alleges various claims under 42 U.S.C. §§ 1983
In the Plaintiffs' Memorandum in Support of their opposition to the motion for summary judgment, the Plaintiffs have expressly conceded various claims of their complaint. [Docket no. 39]. The Plaintiffs have conceded:
Therefore, this court is convinced the Plaintiffs have withdrawn the above mentioned claims from their complaint and grants summary judgment as outlined above.
"Failure to address a claim results in the abandonment thereof." Sanders v. Sailormen, Inc., No. 3:10-CV-00606-CWR, 2012 WL 663021, at *3 (S.D. Miss. Feb. 28, 2012), aff'd, 506 F. App'x 303 (5th Cir. 2013)
Therefore, this court is convinced the Plaintiffs have abandoned the above-mentioned claims from their complaint and grants summary judgment as outlined above.
In deciding a motion for summary judgment, this court must consider the dictates of Rule 56 of the Federal Rules of Civil Procedure.
Cruz v. Mississippi Dep't of Human Servs., 9 F.Supp.3d 668, 679 (S.D. Miss. 2014).
This court finds that this lawsuit features genuine disputes about many of the material facts. Further, this court does not find that any of the submissions of the parties allow this court to dismiss any of the claims not already dismissed supra as a matter of law. Therefore, the remainder of the Defendant's motion for summary judgment is denied. [Docket no. 36].
Based upon the foregoing, this court is persuaded to GRANT in part and DENY in part the Defendants' Motion for Summary Judgment
The Plaintiffs have CONCEDED their claims as follows: their 42 U.S.C. § 1985 claim against all defendants; their COBRA claim against Rogers and Myers; and their wrongful termination claims against Rogers and Myers. Therefore this Court GRANTS the Defendants' Motion for Summary Judgment as to the aforementioned claims.
This Court finds the Plaintiffs have ABANDONED their claims as follows: their malicious prosecution claim against Myers; their tortious interference claim against Pearl; their tortious interference claim against Myers; and their tort of outrage claim against Pearl. Therefore, this Court GRANTS the Defendants' Motion for Summary Judgment as to the aforementioned claims.
The material facts of this case, as above stated, are in dispute, thus preventing this Court from granting judgment as a matter of law on the remainder of the claims alleged by the Plaintiffs against the Defendants and therefore, DENIES the Defendants' Motion for Summary Judgment on said claims.
(2) Obstructing justice; intimidating party, witness, or juror — If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror; or if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws;
(3) Depriving persons of rights or privileges — If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators." 42 U.S.C.A. § 1985 (West).
29 U.S.C.A. § 1161
"A claim of intentional infliction of emotional distress ("IIED") under Mississippi law requires a defendant's conduct to be `so outrageous in character, and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Claiborne v. Mississippi Bd. of Pharmacy, No. 3:07-CV-277-HTW-LRA, 2011 WL 3684431, at *5 (S.D. Miss. Aug. 22, 2011)
