McIntyre v. Calsonic Kansei N. Am., Inc.

MICHAEL WAYNE MCINTYRE PLAINTIFF v. CALSONIC KANSEI NORTH AMERICA, INC.,and NISSAN NORTH AMERICA, INC. DEFENDANTS

CIVIL ACTION NO. 3:16-CV-886-HTW-LRA

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI NORTHERN DIVISION

March 1, 2019

ORDER ON MOTIONS

Before this court are four motions. Three of the motions are filed by the Plaintiff, Michael McIntyre (hereafter "McIntyre") and one motion is filed by one of the Defendants, Nissan North America, Inc. (hereafter "Nissan").

The Plaintiff's motions are as follows: (1) McIntyre asks this court to consider additional case law that he contends is relevant to the instant case [doc. no. 98]; 2) McIntyre seeks permission from the court to file two additional affidavits in opposition to the motions for summary judgment filed by the Defendants [doc. no. 101]; and 3) McIntyre asks to amend the proposed pretrial order to embrace an additional issue that was not included in his Complaint, nor previously briefed, nor argued [doc. no. 104]. The Defendants, Calsonic Kansei North America, Inc., (hereafter "Calsonic") and Nissan oppose these motions.

Defendant Nissan has filed a Motion to Strike McIntyre's Motion for Leave to File Affidavits [doc. no. 106] which also serves as Nissan's Response in Opposition to that motion. Briefing is completed and the court is prepared to make its decision.

BACKGROUND

The factual and procedural background of this case is thoroughly presented in this court's forthcoming "Opinion and Order on Defendants' Summary Judgment Motion." Therefore, only an abbreviated version of the facts and procedural posture is here presented.

McIntyre filed his law suit in this court on November 14, 2016. This is a wrongful discharge action brought by McIntyre against his former employer, Calsonic Kansei North America, Inc. ("Calsonic") and against Nissan North America, Inc. ("Nissan"). Calsonic is a supplier for Nissan with a location on-site at Nissan's manufacturing plant in Canton, Mississippi. McIntyre says that he was discharged by Calsonic because he had a pistol in his locked car on the parking lot of the Nissan plant, the parking lot reserved for employees of Calsonic and other supplier companies. This discharge, he claims, was in violation of Mississippi public policy, and specifically, Miss. Code Ann. §45-9-55¹. This code section makes it unlawful for an employer to create or enforce a policy that prohibits a person from transporting or storing a firearm in a locked vehicle on a company's parking lot. McIntyre contends he has suffered lost income, lost future income, mental anxiety and stress, because of his discharge. Heseeks actual and punitive damages in an amount to be determined by a jury, attorney's fees, costs and expenses.

The Defendants, Calsonic and Nissan, contend that McIntyre was terminated for cumulative reasons that include reasons other than having the firearm in his car. These Defendants also assert that the employee parking lot at issue complies with the exception located in §45-9-55(2), which, under certain parking lot security features, allows an employer to prohibit firearms on an employee parking lot.

In sum, say Defendants, Calsonic did not wrongfully discharge McIntyre.

DISCUSSION

Federal subject matter jurisdiction in this matter is based on diversity of citizenship under Title 28 U.S.C. § 1332.² In this diversity action, the substantive laws of the State of Mississippi apply. See, e.g., Times-Picayune Pub. Corp. v. Zurich American Ins. Co., 421 F.3d 328, 334 (5th Cir. 2005) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)); Klaxon Co. v. Stentor Elec. Mfrg. Co 313 U.S. 487, 496 (1941); See also Boardman v. United Services Auto, Ass'n, 470 So.2d 1024, 1032 (Miss. 1985); Guaranty Nat. Ins. Co. v. Azcock Industries, Inc., 211 F.3d 239, 243 (5^th Cir. 2000).

1. Plaintiff's Motion for Leave to File Affidavits of Michael McIntyre and Jeff Stapelon [Doc. no. 101]

This court first takes up the matter of the additional affidavits that Plaintiff McIntyre seeks to file for consideration by the court in ruling on the motions for summary judgment. [doc. no. 101]. In this motion, McIntyre moves this Court to grant McIntyre permission "to file the Affidavits of McIntyre and of Jeff Stapelon. . . to refute various incorrect factual statements that were made by defense counsel at the hearing held on June 5, 2018." Plaintiff's Motion [doc. no. 101].

According to McIntyre, Defendants offered allegedly incorrect factual statements during their arguments on the summary judgment motions. In his "affidavit," McIntyre testified on the timing operation of Gate 1; his experience at a different Nissan employee parking lot; his denial that he ever attended anger management classes, or that he ever had been counseled regarding his relationships with other employees. Stapelon's "affidavit" is not battle-tested by opposing counsel, thus we do not know whether the submission is authentic or produced under credible circumstances.

McIntyre had two opportunities to present his proof and opposing arguments regarding these issues: First, in his brief in opposition to Defendants' summary judgment motions; and Secondly, during oral arguments on the summary judgment motions. Both sides had ample opportunity during the hearing to refute the other's contentions. Plaintiff did not offer these affidavits at that time.

Plaintiff also has not provided this court with good cause nor established excusable neglect for his failure to present these affidavits at the appropriate time as required. Fed. R. Civ.P. 6(b)³ See, e.g., Bernhardt v. Richardson-Merrell, Inc., 892 F.2d 440, 443-444 (5th Cir. 1990); Farina v. Mission Investment Trust et al., 615 F.2d 1068, 1073 (5th Cir. 1980) (absent affirmative showing of excusable neglect, "a court does not abuse its discretion when it refuses to accept out-of-time affidavits"); See also, Adams v. Travelers Indem. Co. of Connecticut, 465 F. 3d 156, 161 n. 8 (outlining excusable neglect factors).

Submissions and arguments on this motion must come to a close at some point, and this court is persuaded that at this late stage of the litigation, that point has been reached. Leave is not granted to plaintiff to submit the additional affidavits of Michael McIntyre and Jeff Stapelon.

2. Nissan's Motion to Strike [Doc. no. 106]

Nissan has filed a motion [doc. no. 106] to strike Plaintiff's motion seeking leave to file additional affidavits [doc. no. 101]. This court having determined that Plaintiff's motion for leave to file the affidavits will not be granted, the motion to strike same [doc. no. 106] is denied as moot.

3. Plaintiff's Motion To Consider Additional Authority [Doc. no. 98]

This court next considers Plaintiff's motion [doc. no. 98] by which McIntyre brings to the attention of the court, and asks this court to consider, the recent Mississippi Supreme Court ruling in Ward v. Colom, 253 So.3d 265 (2018), interpreting Miss. Code Ann. § 45-9-101. Ward was decided two days after this court heard oral arguments on Defendants' motions for summary judgment on June 5, 2018. The Defendants oppose the motion and claim that the issue andruling in Ward are irrelevant to the instant case. Additionally, say Calsonic and Nissan, the Plaintiff did not plead those matters.

This court takes note of the ruling in Ward v. Colom and considers it, only to the extent that it would consider any other case brought to the court's attention by the parties. This court, therefore, grants Plaintiff's motion only to the extent that this court agrees to look at and review that additional authority. That case was concerned with the rights of persons holding "enhanced carry" permits under Mississippi law and whether such persons could be prevented, by an order of the state Circuit Court, from carrying a firearm into a state court building. This court has thoroughly reviewed the ruling of the Mississippi Supreme Court in Ward. For reasons more thoroughly discussed later in this opinion, this court is persuaded that Ward v. Colom does not inform the issues sub judice.

4. Plaintiff's Motion to Amend Proposed Pretrial Order [Doc. no. 104]

Plaintiff has also filed a motion to amend the proposed pre-trial order "to list as the final contested issue of law the following: "Whether Plaintiff's discharge violated Mississippi public policy set forth in Miss. Code Ann. §45-9-101." Plaintiff's Motion to Amend Pretrial Order [doc. no. 104 p.1]. McIntyre asks to be relieved of the requirement to submit a Memorandum Brief in support of this motion.

The joint pretrial order was prepared based on the claims contained in Plaintiff's Complaint. That Complaint did not allege that Defendants had violated §45-9-101; nor did the Complaint make averments that could be construed as giving rise to a cause of action under §45-9-101. Summary judgment motions filed by both Nissan and Calsonic were fully briefed andargued based on the contents of the Complaint. Nothing in the Complaint, the briefs or the arguments before this court implicated Miss. Code Ann. § 45-9-101.⁴

At the June 5th hearing, Plaintiff conceded and withdrew his claim against Nissan for intentional and/or malicious interference with his employment, leaving Plaintiff's claim of wrongful discharge as the only remaining claim, based on Miss. Code Ann. § 45-9-55. This claim is lodged against both Calsonic and Nissan.

Mississippi is an "at-will" employment state. An employer or employee may terminate an employment relationship whenever one chooses, unless the parties are bound by contract,Obene v. Jackson State Univ., 233 So. 3d 872, 875 (Miss. Ct. App. 2017), or unless there is some other legally impermissible reason, McArn v. Allied Bruce-Terminix Co., Inc., 626 So2d 603, 606 (Miss. 1993). Plaintiff does not dispute that he was an "at-will" employee. Mississippi's adherence to the employment-at-will doctrine usually precludes an at-will employee from suing for wrongful termination. Employees can be fired for...