Opinion
Civil Action No. 3-2747 Section "K" (3).
December 13, 2004
ORDER AND REASONS
Before the Court is Defendant's Motion for Summary Judgment (Doc. No. 27) filed by Courtyard Management Corporation ("Courtyard") set for on December 8, 2004, and taken on the papers. This suit for wrongful termination and defamation based on state law was filed in Civil District Court for the Parish of Orleans and timely removed to this Court by Courtyard based on diversity of jurisdiction. The Court has reviewed the pleadings, memoranda, exhibits, affidavits, deposition testimony and the relevant law and finds the motion to have merit.
Plaintiff's counsel has consistently attempted to defeat the Court's diversity jurisdiction. He filed a First Amended Complaint seeking to add four non-diverse defendants. The magistrate judge denied that motion finding, inter alia, the basis for the late addition disingenuous (that he did not know the names of some the defendants he sought to add). (Doc. 8).
Plaintiff's counsel also on December 1, 2004, filed a Motion for Leave of Court to File a Stipulation that plaintiff does not seek damages in excess of $75,000 exclusive of interest and costs, and noted with the filing of the stipulation that he intended to file an Ex Parte Motion to Remand. There is no explanation in the motion concerning why such a change in the evaluation of damages is sought. Plaintiff's counsel's attempt at defeating the Court's jurisdiction in this manner is likewise misguided as removal jurisdiction is determined as of the time the case is removed, and a subsequent stipulation of this nature cannot divest the Court of its jurisdiction, particularly in light of plaintiff's response on June 18, 2004, that he sought damages of $2,550,000, not including medical expenses, attorneys' fees, or court costs. (Memorandum in Opposition to Plaintiff's Ex Parte Motion for Leave of Court to File Stipulation Exhibit A, Answer to Interrogatory No. 10). Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 265 (5th Cir. 1995); St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 292 (1938).
As a preamble to this ruling, the Court must note a pattern of plaintiff's counsel's failure to comply with this Court's Local Rules and the Rules of Civil Procedure. To begin, this motion was set for hearing on December 8, 2004, thus a memorandum in opposition was required to be filed on or before November 30, 2004. No such memorandum was filed. Instead, the Court received a Memorandum in Opposition to Plaintiff's Motion to Continue Pre-trial Hearing and Trial Dates filed by defendant (Doc. 29). Upon receipt of this memorandum in opposition to a motion not received by the Court, the Court contacted plaintiff's counsel and requested a faxed version of the motion. To date, the actual Motion to Continue has never been properly filed with this Court. The Court denied the "motion for continuance" and granted plaintiff's counsel in essence a week extension to file a proper opposition to the instant motion.
The Court then received Plaintiff's Memorandum in Opposition to the Defendants' (sic) Motion for Summary Judgment. This document likewise does not comport with L.R. 56.2 which provides:
Each copy of the papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts as to which there exists a genuine issue to be tried. All material facts set forth in the statement required to be served by the moving party will be deemed admitted, for purposes of the motion, unless controverted as required by this rule. [Amended June 28, 2002].
L.R. 56.2 (emphasis added). In addition, the memorandum filed is devoid of any legal analysis or citation to case law to support plaintiff's contention that this motion should be denied. The sole case cited is Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) providing the Court with the appropriate standard to employ for determining the merit of a motion for summary judgment.
Likewise, Courtyard served Requests for Admissions on plaintiff through his counsel on April 23, 2004. (See Memorandum in Support of Motion for Summary Judgment, Exh. 4, Req. for Admissions). Rule 36 of the Rules of Federal Civil Procedure provides in relevant part:
a) Request for Admission. A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Rule 26(b)(1) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. . . . Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow or as the parties may agree to in writing, subject to Rule 29, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party's attorney. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that the party has made reasonable inquiry and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny. . . .
The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served. . . . .
Counsel did not respond to the Request for Admissions until June 18, 2004, well beyond the 30 day required under the rule apparently without the consent of defense counsel. His responses are single word statements of "Denied" or "Admitted". These "responses" ignore in totality the above-noted rule. Indeed, plaintiff's counsel has denied Requests for Admission that are actually the factual underpinnings of his claim for wrongful termination. He denied Request of Admission No. 13 — that his employment was terminated, and Request No. 11 — that on April 3, 2003, Latonia Bickham, Courtyard's Guest Care Manager, and Jay Dahlke, the Courtyard's General Manager met with plaintiff to discuss credit card information being stolen from guests of Courtyard and the internal investigation in connection therewith.
In response to defendant's seeking to have the Court recognize the Request for Admissions as deemed to be admitted, the plaintiff's counsel responded as follows:
All the defendants' (sic) discovery was answered although there were minimal delays. Defendants conducted depositions of plaintiff. Plaintiff proposed discovery to the defendants. The fact that a request for admission was not answered does not constitute automatic admission. Defendants' memorandum agreed that their discovery was answered.
(Memorandum in Opposition at 3). Apparently, counsel has either failed to apprise himself of the provisions of the Rule 36(a) or has chosen to simply ignore it. Counsel again has not provided a single case to support his proposition that the Court should not grant defendant's request in this regard.
This blatant disregard of the Local Rules and the Rules of Civil Procedure cannot be countenanced. Thus, considering the foregoing, the Court must deem the Statement of Uncontested Material Facts in Support of Defendant's Motion for Summary Judgment as admitted. This conclusion is further buttressed by the Court's review of the "evidence" filed to support plaintiff's opposition to the motion. The only "evidence" presented to the Court by plaintiff's counsel is plaintiff's deposition and the medical record of Dr. Ogbuokiri which are attached to plaintiff's opposition memorandum. Indeed, Exhibits 1, 3, 4, and 5 referenced in the memorandum are not included. However, even the description of their contents does not indicate any proof other than (1) Mr. Stewart has consistently denied wrongdoing (Exh. 1 and 3) and (2) that the Manager of the Front Desk told Ms. Casnave that Donald Stewart no longer worked at Courtyard due to his involvement in fraud issues at the hotel (Exh. 4). Simply put, the record is devoid of competent evidence to create questions of fact to preclude summary judgment or the refute the facts as set forth in Courtyard's Statement of Facts. Furthermore, unsupported allegations made by plaintiff of "coercion" by Courtyard of those persons who provided affidavits implicating him in the illegal scheme is insufficient to create a fact question without testimony or affidavit proof that those persons had been coerced or threatened and that their statements are indeed false.
Exhibit 1 is noted as the "false" Marriott's Loss Prevention Report prepared by Mark Castillo.
On December 10, 2004, plaintiff's counsel filed a Motion for Leave of Court to File Exhibits into the Record. The exhibits are the deposition of plaintiff's treating physician and a duplicate audiotape which the Court assumes is the one to which reference was made in plaintiff's deposition which he contends he "accidently" made during one of the meetings of the process of his termination. The Court assumes that this tape is Exhibit 3 referenced in the opposition memorandum. Again, without an affidavit from the defendant as to the authenticity of the tape, this "evidence" is not of a nature that this Court can consider in the context of a motion for summary judgment. Plaintiff's counsel appears to have chosen to ignore the Rules of Evidence as well.
The Court has reviewed an affidavit of Nina Casnave which was attached to Plaintiff's Position Memorandum (Doc. 36) and which is insufficient on its own to support a claim for defamation, which is discussed infra.
Exhibit 5 was the "well-pleaded complaint" which does not constitute admissible evidence.
Background
Donald Stewart was an hourly employee working as a Night Audit Associate/Front Desk Clerk at the Courtyard property on St. Charles Avenue in New Orleans. Courtyard did not have a contract for his employment; thus he was an at-will employee. (Statement of Facts, ¶ 1).
At all times relevant to this dispute, Loss Prevention Department of the New Orleans Marriott Hotel on Canal Street was acting as Courtyard's agent for security related services at the Courtyard on St. Charles. The Courtyard on St. Charles and the Marriott on Canal are managed, ultimately, by the same entity, Marriott International.
On March 28, 2003, Officer Mike Castillo of Marriott's Loss Prevention Team received a report from Wendell Johnson, a front desk clerk at Courtyard's Julia Street property in New Orleans, that she was involved in a credit card fraud scheme with Mr. Stewart. Ms. Johnson alleged that Charles Villa, a guest in the hotel and Norman Andrews a Loss Prevention Officer, had presented Ms. Johnson and Mr. Stewart with an opportunity to aid in the commission of credit card fraud by obtaining credit card information from guest accounts.
Under the scheme, Ms. Johnson and Mr. Stewart allegedly were provided with a battery-operated, handheld device with which each could randomly swipe guests' credit cards at check-in. With each swipe, the device would record the guest's credit card information. The devices would be later returned to Mr. Villa and, in return, Mr. Stewart and Ms. Johnson would receive twenty dollars per credit card number stored on the device. Ms. Johnson prepared a written statement admitting to this misconduct and implicating Mr. Stewart in the fraud.
Later that day, Officer Castillo briefed the Assistant Director of Loss Prevention, Rodney J. Burke, Jr., regarding the situation. Mr. Burke then contacted Mr. Andrews and instructed him to come to the Loss Prevention Office. In that meeting, which was attended by Mr. Burke, Mr. Andrews, and the Director of Loss Prevention, Frank Romano, Mr. Andrews admitted having knowledge of the ongoing fraud, the use of the credit card access device, and that Mr. Stewart and Ms. Johnson were using it to obtain guest credit card information. However, Mr. Andrews denied personally using the device. Mr. Andrews prepared a written statement admitting to the misconduct and implicating Mr. Stewart in the fraud.
Thereafter, Mr. Burke briefed Latonia Bickham, the Guest Care Manager of the Courtyard on St. Charles, of the situation. Further, Mr. Romano briefed Jay Dahlke, the General Manager of the Courtyard on St. Charles. The decision was made for Mr. Burke and Ms. Bickham to meet with Mr. Stewart regarding the investigation.
On the night in question, Mr. Stewart arrived at the hotel at approximately 10:45 p.m. At that time, Ms. Bickham, along with Mr. Burke and Tyler Parker, another Marriott Loss Prevention Officer involved in the investigation, approached Mr. Stewart in the lobby of the hotel and asked him to come meet with them in private. The four individuals then went to the manager's office and discussed the ongoing investigation. The meeting was held outside of the presence of any other Courtyard employees, and no person other than Mr. Stewart, Ms. Bickham (his supervisor), or the two Loss Prevention Officers investigating the scheme could overhear any discussions with Mr. Stewart.
During that brief meeting, Mr. Stewart was presented generally with the information contained in the Marriott Loss Department's Report and the fact that two employees had implicated him. The officers asked Mr. Stewart whether he participated in the credit card scheme, and Mr. Stewart denied doing so. Mr. Stewart was also requested to write a statement regarding his knowledge of the scheme, in which he denied any involvement. Based on the evidence at that time, Ms. Bickham placed Mr. Stewart on a three-day suspension pending completion of the investigation and a review of the evidence by Jay Dahlke, the General Manager of the Courtyard St. Charles.
Three days later, on April 3, 2003, Mr. Stewart met with Ms. Bickham and Mr. Dahlke. In that meeting, Mr. Stewart was again presented with the information gathered in the investigation regarding the credit card scheme. Based on the evidence before him, Mr. Dahlke made the decision to terminate Mr. Stewart's employment. In connection with that decision, Mr. Stewart was presented with a disciplinary action sheet documenting his discharge for the "unauthorized review, disclosure or distribution of confidential guest associate information," which form he refused to sign.
All communications among Courtyard employees and agents regarding Mr. Stewart's role in the credit card fraud were made within the course and scope of their duties. Further, all communications were made by persons with a duty or interest in the communication or interest in or in reference to which that person has a duty to person having corresponding interest or duty.
Standard for Summary Judgment
Summary judgment should 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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). "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." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Substantive law determines the materiality of facts, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] . . . which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp v. Catrett, 477 U.S. 317, 323 (1986). Once the movant meets this burden, the burden shifts to the non-movant "to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. "[M]ere allegations or denials" will not defeat a well-supported motion for summary judgment. Fed.R.Civ.P. 56(e). Rather, the non-movant must come forward with "specific facts" that establish an issue for trial. Id.
When deciding a motion for summary judgment, the Court must avoid a "trial on affidavits. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts" are tasks for the trier-of-fact. Anderson, 477 U.S. at 255. To that end, the Court must resolve disputes over material facts in the non-movant's favor. "The party opposing a motion for summary judgment, with evidence competent under Rule 56, is to be believed." Leonard v. Dixie Well Service Supply, Inc., 828 F.2d 291, 294 (5th Cir. 1987).
Wrongful Discharge
As stated in Wallace v. Shreve Memorial Library, 79 F.3d 427 (5th Cir. 1996):
Under Louisiana law, a person employed for an indefinite period is an employee at will. Gilbert v. Tulane University, 909 F.2d 124, 125 (5th Cir. 1990); La. Civ. Code Ann. art. 1778. Even a person with permanent employment is employed for an indefinite time and thus terminable at will. O'Neal v. Chris Steak House, Inc., 525 So. 2d 325 (La.Ct.App. 1988). "An at-will employee is free to quit at any time without liability to his or her employer and may be terminated at any time, for any reason or for no reason at all, provided the termination does not violate any statutory or constitutional provision." Gilbert, 909 F.2d at 125: la. Civ. Code Ann. art. 2747. Any ambiguity should be construed in favor of employment at will. Thorne v. Monroe City School Bd., 542 So.2d 490, 492 (La. 1989).Id. at 429 (footnotes omitted); Johnson v. Delchamps, Inc., 897 F.2d 808 (5th Cir. 1990). As such, as there is no claim of a statutory or constitutional violation urged by plaintiff, there is no cause of action for his termination. Simply put, even if Stewart was not involved in any illegal scheme, Courtyard could fire Mr. Stewart without redress so long as it was not violative of a statute or the Constitution. Thus, the motion for summary judgment is well founded in this regard.
Defamation
Four elements must be satisfied to prevail on a claim of defamation: (1) a false and defamatory statement concerning another, (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury. "Thus a plaintiff, in order to prevail in a defamation action, must prove `that the defendant, with actual malice or other fault, published a false statement with defamatory words which caused plaintiff damages.'" Trentecosta v. Beck, 703 so.2d 552, 559 (La. 1997). The absence of any one of these elements renders the claim baseless. Lee v. Pennington, 830 So. 2d 1037, 1044-45 (La.App. 4th Cir. 2003).
To begin, plaintiff has presented no evidence to demonstrate the falsity of these allegations other than his own declarations that he was not involved in the subject scheme. Plaintiff's claim that the affidavits of his co-workers were gotten by coercion is not supported by any evidence, competent or not. See Brown v. Chalmette Medical Center, 1999 WL 820550, *4(E.D.La. Oct. 14, 1999) (no evidence other than plaintiff's erstwhile insistence that she did not perform acts that led to discharge did not constitute sufficient proof that the grounds for termination were false in a claim for defamation). No affiant has come forth to swear that his or her representations to Courtyard were not true.
In addition, it is clear that all discussions within Courtyard's investigation as alleged were privileged and, as such, not subject to suit. "Louisiana courts have held that an employer who undertakes an investigation of employee misconduct enjoys a qualified or conditional privilege when she makes a statement in good faith, concerning a subject in which she has an interest or duty, to another having a similar interest or duty." Id. citing Hines v. Arkansas Louisiana Gas Co., 613 So.2d 646, 656 (La.App. 2nd Cir. 1993). Thus, any claim arising out of the investigation is not actionable.
The only allegation of a "publication" outside of the company is presented in the affidavit of Nina Casnave, a person who would contact plaintiff whenever she needed reservations. She asserts that after calling for Donald Stewart about three times in March of 2002, a person identified as "the Manager of the Front Desk" stated that "Donald Stewart no longer worked there due to his involvement in fraud issues at the hotel." Pretermitting whether this statement is defamatory per se, shifting the burden of proof to Courtyard, "malice (or fault), for purposes of the tort of defamation, is a lack of reasonable belief in the truth of the statement giving rise to the defamation." Costello v. Hardy, 864 So.2d 129, 143 (La. 2004). Considering the facts surrounding this matter, certainly this unidentified Courtyard employee had a reasonable basis for the statement made. The defamation claim fails as well. Accordingly,
Again, the Court must note that technically, that affidavit is not even before the Court in that it was not properly attached to the subject motion. Nonetheless, the Court has used the version attached to Plaintiffs Position Memorandum (Doc. 36).
IT IS ORDERED that Defendant's Motion for Summary Judgment (Doc. No. 27) is GRANTED and judgment shall be entered in favor of defendant Courtyard Management Corporation and against plaintiff Donald Stewart dismissing this complaint with prejudice.