Starnes v. Veeder-Root

DE'ANDRE STARNES, Plaintiff, v. GILBARCO VEEDER-ROOT, Defendant.

1:15CV1002

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

March 7, 2017

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Presently before this court is a Motion to Dismiss or in the Alternative Motion for Summary Judgment filed by Defendant Gilbarco Veeder-Root ("Gilbarco"). (Doc. 15).) Pro se Plaintiff De'Andre Starnes ("Plaintiff") opposes the motion, (Docs. 21, 22, 23, 24), and Defendant has filed a reply (Doc. 25). Plaintiff has filed a surreply.¹ (Doc. 30.) Plaintiff has alsofiled a Motion to Strike Defendant's Joint Affidavit (Doc. 26), which was filed as an attachment to Defendant's motion to dismiss (Doc. 15-1).

Plaintiff seeks leave to file a Third Amended Complaint and add Teamsters Union, Local 391 ("Teamsters Union") as a party defendant. (Doc. 27.) In seeking to amend, Plaintiff restates the Second Amended Complaint in its entirety, proposes to file against Teamsters Union the same hybrid § 301/fair representation claim that is pending against Gilbarco, and seeks to add a claim as to both Defendants under 42 U.S.C. §§ 1985 and 1986. (Doc. 27-1.) Defendant has in turn responded in opposition to Plaintiff's motion for leave to amend, claiming that allowing Plaintiff leave to amend his complaint will not cure any defects, will be futile, and was made with undue delay. (Doc. 29.)

These matters are now ripe for adjudication. The procedural posture of this case, that is, with a pending motion to dismiss as well as a motion to amend that is objected to on the ground of futility, somewhat complicates this matter. The motion to dismiss encompasses similar issues to those raised in the objection to the motion to amend. In the interests of justice, judicial economy, and in an effort to address the issues in a coherent manner, this court finds that it is appropriate toaddress the motion to dismiss and the motion to amend in this Memorandum Opinion and Order.

For the reasons stated herein, this court finds Plaintiff's pending claims deficient and that such deficiencies are not resolved by the proposed amendment. This court finds that re-pleading the deficient hybrid claim to include Teamsters Union would be futile and will therefore deny Plaintiff's request for leave to amend as to those claims. Further, this court finds Plaintiff's additional claims under §§ 1985 and 1986 are deficient and that allowing the motion to amend as to these claims would also be futile. Therefore, this court will deny Plaintiff's request for leave to amend, grant Defendant's motion to dismiss or in the alternative motion for summary judgment, and will deny Plaintiff's motion to strike.

I. LEGAL STANDARD

Pursuant to Fed. R. Civ. P. 12(d), courts have discretion to convert a Rule 12(b)(6) motion into one for summary judgment. Finley Lines Joint Protective Bd. Unit 200 v. Norfolk S. Corp., 109 F.3d 993, 996 (4th Cir. 1997). A motion to dismiss pursuant to Rule 12(b)(6) is not converted into a motion for summary judgment by the mere submission or service of extraneous materials. Id. (considering issue in context of voluntary dismissal under Federal Rule of Civil Procedure 41(a)). However,if on a Rule 12(b)(6) motion, "matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Fed. R. Civ. P. 12(d). If the court opts to convert the motion, "[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed. R. Civ. P. 12(d); see Gay v. Wall, 761 F.2d 175, 177 (4th Cir. 1985) (stating the opposing party has the right to file counter affidavits or pursue reasonable discovery). Generally, parties are on notice of a potential Rule 12(d) conversion if they are aware that materials outside the pleadings are before the court. Gay, 761 F.2d at 177.

Here, both parties were on notice of the potential conversion. Gilbarco's motion was one for summary judgment in the alternative (Doc. 15), and Gilbarco submitted a joint affidavit and various exhibits in support of its motion (Docs. 15-1 through 15-19). Plaintiff's responsive pleadings to Gilbarco's motion was captioned as an opposition to the motion to dismiss or in the alternative the motion for summary judgment (Docs. 23, 24), and Plaintiff likewise submitted materialoutside the pleadings, including a counter affidavit (Doc. 24-2).²

Under similar circumstances, the Fourth Circuit concluded that on the basis of the plaintiff's own actions it appeared that the plaintiff had actual notice that the motion could be disposed of as one for summary judgment. Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998) ("The district court, while it clearly has an obligation to notify parties regarding any court-instituted changes in the pending proceedings, does not have an obligation to notify the parties of the obvious."). This is particularly true when plaintiffs and defendants refer to exhibits and affidavits in support of their arguments, as is the case here. See Tsai v. Md. Aviation, 306 F. App'x 1, 3-5 (4th Cir. 2008) (unpublished per curiam) (finding case before it distinguishable from Finley Lines and facts in accord with Laughlin) ("[The plaintiff] cannot plausibly argue that he lacked notice that [the defendant] was moving for summary judgment, given that heacknowledged as much in the title of his responsive pleading and even put additional evidence before the court of his own volition.").

Plaintiff has not objected to Gilbarco's motion in the alternative and has referenced it in his own pleadings and submitted a counter affidavit in support of his response. Nor has Plaintiff sought relief under Fed. R. Civ. P. 56(d).³ As a result, this court finds the issues before the court may be decided based upon the pleadings and affidavits submitted. See Bullock v. United States, 176 F. Supp. 3d 517, 522-23 (M.D.N.C. 2016).

Summary judgment is appropriate where an examination of the pleadings, affidavits, and other proper discovery materials before the court demonstrates that no genuine issue of material fact exists, thus entitling the moving party to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party bears the burden of initially demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323.

If the moving party has met that burden, then the nonmoving party must persuade the court that a genuine issue remains for trial. This requires "more than simply show[ing] that there is some metaphysical doubt as to the material facts"; the "nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (citations omitted) (quoting Fed. R. Civ. P. 56(e)). In considering a motion for summary judgment, the court is not to weigh the evidence, but rather must determine whether there is a genuine dispute as to a material issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

Nonetheless, the court must ensure that the facts it considers can be "presented in a form that would be admissible in evidence" and that any affidavits or evidence used to support or oppose a motion are "made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." See Fed. R. Civ. P. 56(c)(2), (4).

The court must view the facts in the light most favorable to the nonmoving party, drawing inferences favorable to that party if such inferences are reasonable. Anderson, 477 U.S. at 255. However, there must be more than a factual dispute, thefact in question must be material, and the dispute must be genuine. Fed. R. Civ. P. 56(c); Anderson, 477 U.S. at 248. A dispute is only "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.

When a party is proceeding pro se, that party's filings are "to be liberally construed and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted). However, the principles calling for this "special judicial solicitude" in viewing pro se filings "does not transform the court into an advocate." United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012) (internal quotation marks and citation omitted); see also Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). If the non-movant fails to meet his burden, summary judgment must be granted. Celotex, 477 U.S. at 322.

II. MOTION TO STRIKE

As an initial matter, Plaintiff filed a motion to strike (Doc. 26) Defendant's joint affidavit of Brad Brown and Katelyn McGahey, which was filed in support of Defendant's motion to dismiss or alternatively for summary judgment (Doc. 15-1).Plaintiff alleges in his motion to strike that Defendant's joint affidavit "does not adhere to Federal guidelines" pursuant to 28 U.S.C. § 1746. (Doc. 26 at 1.) Section 1746 states that:

Wherever . . . any matter is required or permitted to be supported . . . by the sworn . . . affidavit, in writing of the person making the same . . . , such matter may, with like force and effect, be supported . . . by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated . . . .

28 U.S.C. § 1746. Rule 56(c) of the Federal Rules of Civil Procedure provides that a party asserting that there is no genuine dispute as to any material fact must support the assertion by "citing to particular parts of materials in the record, including . . . affidavits or declarations." Fed. R. Civ. P. 56(c)(1)(...