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Jones v. FXI, Inc.

United States District Court, N.D. Mississippi, Aberdeen Division

May 15, 2017

KEITH JONES PLAINTIFF
v.
FXI, INC. d/b/a Foamex Innovations Operating Company DEFENDANT

          MEMORANDUM OPINION GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

         Presently before the Court is a motion for summary judgment [44] filed by Defendant FXI, Inc. doing business as Foamex Innovations Operating Company ("Defendant"). Plaintiff Keith Jones ("Plaintiff) has filed a response, and Defendant has filed a reply. Upon due consideration, the Court finds that the motion for summary judgment must be granted in part and denied in part, as demonstrated below.

         I. Factual and Procedural Background

         Plaintiff brings this fraud action against Defendant, his former employer. Defendant previously employed Plaintiff as an AutoCAD technician. Pl.'s First Am. Compl. [25] ¶ 6; Def.'s Answer [30] ¶ 6. Defendant terminated Plaintiffs employment for violations of Defendant's attendance policy, which provides for employment termination when an employee accrues four negative occurrences of absences and/or tardiness. Pl.'s First Am. Compl. [25] ¶¶ 7-8; Def.'s Answer [30] ¶¶ 7-8. Defendant utilized Attendance Status Notification forms as documentation of the employee's absences and tardiness. Pl.'s First Am. Compl. [25] ¶ 10; Def.'s Answer [30] ¶ 10. Plaintiff alleges, but Defendant denies, that Defendant was required by its own attendance policy to notify Plaintiff of each occurrence of a violation of the attendance policy through the Attendance Status Notification form; that the form was signed by the employee, the employee's supervisor, and the human resources manager; and that at the time of Plaintiff's termination, Defendant had not provided Plaintiff with an Attendance Status Notification form for each occurrence upon which the termination was based. Pl.'s First Am. Compl. [25] ¶¶ 9-11; Def.'s Answer [30] ¶¶ 9-11. The parties do not dispute, however, that following Plaintiffs termination he applied to the Mississippi Department of Employment Security ("MDES") for unemployment compensation benefits. Pl.'s First Am. Compl. [25] ¶ 12; Def.'s Answer [30] ¶ 12.

         Plaintiff alleges that "[i]n an effort to deprive [Plaintiff] of his unemployment compensation benefits, [Defendant], acting through its employees and agents, devised a scheme to forge [Plaintiffs] signature on several Attendance Status Notification forms and submit the forged forms to the [MDES]." Pl.'s First Am. Compl. [25] ¶ 13. Plaintiff further alleges that "[i]f successful in convincing the MDES to deny [Plaintiffs] claim for unemployment compensation benefits [Defendant] would reduce its potential tax liability to the State of Mississippi by avoiding an increase in its employer rating upon which its tax liability is based." Id. ¶ 14. The parties do not dispute that on September 15, 2014, Defendant's agent, ADP, faxed Attendance Status Notification forms to the MDES and that the MDES subsequently denied Plaintiffs claim for unemployment compensation benefits. Id. ¶¶ 15, 20; Def.'s Answer [30] ¶¶ 15, 20. Plaintiff alleges that five of the forms were "forgeries created by [Defendant] by using [Plaintiffs] signature from [another form] and mechanically reproducing his signature, apparently along with the signature of his supervisor and the human resources coordinator . . . ." and that these forms were both faxed and mailed in interstate commerce to the MDES. Pl.'s First Am. Compl. [25] ¶¶ 18, 21.

         Plaintiff timely appealed the MDES denial of his claim for unemployment compensation benefits. Id. ¶ 24; Def.'s Answer [30] ¶ 24. Defendant faxed exhibits to the MDES and mailed those exhibits to Plaintiff, as well. Pl.'s First Am. Compl. [25] ¶ 25; Def.'s Answer [30] ¶ 25. Plaintiff alleges, and Defendant denies, that Defendant took this action in furtherance of its continuing scheme to deprive Plaintiff of unemployment compensation benefits. Pl.'s First Am. Compl. [25] ¶ 26. On October 31, 2014, the MDES-assigned Administrative Law Judge ("ALJ") held a telephonic appeal hearing; in connection with those proceedings, Defendant introduced into evidence Attendance Status Notification forms. Id. ¶¶ 24, 28; Def.'s Answer [30] ¶¶ 24, 28. Plaintiff alleges, and Defendant denies, that during the hearing, Defendant made materially false statements under oath through its employer representative and human resources coordinator in furtherance of its continuing scheme to deprive Plaintiff of unemployment compensation benefits. Pl.'s First Am. Compl. [25] ¶ 29; Def.'s Answer [30] ¶ 29. During the hearing, Plaintiff claimed that several of the forms were forgeries. Pl.'s First Am. Compl. [25] ¶ 30; Def.'s Answer [30] ¶ 30. Defendant's human resources coordinator and Plaintiffs former supervisor testified at the appeal hearing; this testimony was within the course of scope of their respective employment with Defendant. Pl.'s First Am. Compl. [25] ¶¶ 32, 40; Def.'s Answer [30] ¶¶ 32, 40. After the hearing, the ALJ issued his decision, which Plaintiff attaches to his first amended complaint. See ALJ Decision [25-2]. In that decision, the ALJ found that Plaintiffs signature had been forged on several of the Attendance Status Notification forms and that Defendant had predicated fraud upon the court. Pl.'s First Am. Compl. [25] ¶¶ 34-35; Def.'s Answer [30] ¶ 34-35. Aggrieved, Defendant filed an appeal with the MDES Board of Review. Pl.'s First Am. Compl. [25] ¶ 36; Def.'s Answer [30] ¶ 36. Plaintiff alleges, and Defendant denies, that the filing of this appeal with the MDES Board of Review was an act in furtherance of a continuing scheme to deny Plaintiff unemployment compensation benefits. Pl.'s First Am. Compl. [25] ¶ 37. The Board of Review affirmed the ALJ's decision. Pl.'s First Am. Compl. [25] ¶¶ 38-39; Def.'s Answer [30] ¶¶ 38-39. Plaintiff asserts the following state-law claims against Defendant: fraud, forgery, the common-law tort of outrage, tortious interference with prospective advantage, and negligent training/failure to train and supervision.

         After Defendant filed its amended answer [30] to Plaintiffs first amended complaint [25], the parties engaged in discovery. Subsequently, on November 21, 2016, Defendant filed the present motion for summary judgment [44].

         II. Summary Judgment Standard

         This Court grants summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir. 2008). The rule "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing 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." Celotex Corp., Ml U.S. at 322, 106 S.Ct. 2548.

         The party moving for summary judgment bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the record it believes demonstrate the absence of a genuine dispute of material fact. Id. at 323, 106 S.Ct. 2548. Under Rule 56(a), the burden then shifts to the nonmovant to "go beyond the pleadings and by . . . affidavits, or by the 'depositions, answers to interrogatories, and admissions on file, ' designate 'specific facts showing that there is a genuine issue for trial.' " Id. at 324, 106 S.Ct. 2548; Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir. 2001); Willis v. Roche Biomedical Labs., Inc., 61 F.3d 313, 315 (5th Cir. 1995). Where, as here, the parties dispute the facts, the Court must view the facts and draw reasonable inferences in the light most favorable to the plaintiff. See Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (internal citations omitted). "However, a nonmovant may not overcome the summary judgment standard with conciusional allegations, unsupported assertions, or presentation of only a scintilla of evidence." McClure v. Boles, 490 F.App'x 666, 667 (5th Cir. 2012) (per curiam) (citing Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)).

         III. Analysis and Discussion

         As stated above, Plaintiff asserts the following claims against Defendant under Mississippi law: fraud, forgery, the common-law tort of outrage, [1] tortious interference with prospective advantage, and negligent training/failure to train and supervision.

         Defendant argues that summary judgment is appropriate for the following reasons: (1) Plaintiffs intentional infliction of emotional distress claim fails, because it is (a) barred by the applicable statute of limitations and (b) fails on its merits; (2) Plaintiffs fraud claim fails, because Plaintiff never relied on the allegedly forged Attendance Status Notification forms; (3) Plaintiffs tortious interference with a prospective advantage claim fails, because Plaintiff did not have a business relationship with the MDES; and (4) Plaintiffs negligent training and supervision claim fails, because Defendant did not owe a duty to Plaintiff to train its employees on their ethical obligations in handling unemployment claims. The Court examines these arguments with respect to the claims asserted by Plaintiff. The Court then examines the argument raised by Plaintiff in its response that Defendant is collaterally estopped from denying it committed forgery based on the factual findings of the MDES.

         (1) Intentional Infliction of Emotional Distress

         In the motion for summary judgment, Defendant makes two arguments supporting dismissal of the intentional infliction of emotional distress claim: (a) that the claim is barred by the statute of limitations, and (b) that the claim fails as a matter of law. As demonstrated below, the Court finds that both of these arguments are not well taken and that the intentional infliction of emotional distress claim survives summary judgment.

         (a) Intentional Infliction of Emotional Distress-Statute of Limitations

         First, Defendant argues that the intentional infliction of emotional distress claim is barred by the statute of limitations, which began to run no later than October 24, 2014, when Plaintiff received the copies of the allegedly forged documents submitted to the MDES, and that because Plaintiff failed to file his complaint on or before October 24, 2015, the claim is time barred by Mississippi's one-year statute of limitations for intentional torts. See Raddin v. Manchester Educ. Found, Inc., 175 So.3d 1243, 1252 (Miss. 2015) (citing Miss. Code Ann. § 15-1-35).

         Plaintiff argues in response that his claim did not accrue until the date of the appeal hearing before the MDES on October 31, 2014, because the outrageous acts constituting the tort did not occur until that day. Specifically, Plaintiff maintains that on the day of the MDES appeal hearing Defendant admitted into evidence documents containing Plaintiffs forged signature to persuade the MDES to deny Plaintiffs claim for unemployment benefits. Further, Plaintiff maintains that Defendant also on that day made false representations under oath regarding the validity of the signatures on the forged documents. Thus, Plaintiff maintains that his intentional infliction of emotional distress claim is not barred by the statute of limitations.

         With respect to the statute of limitations on an intentional infliction of emotional distress claim, the Court looks to the intentional act or acts which the plaintiff alleges form the basis of his claim. See CitiFinancial Mortg. Co. v. Washington,967 So.2d 16, 19 (Miss. 2007). "The limitations period begins to run as soon as the events giving rise to the distress occur." Gatheright v. Clark, No. 16-60364, 2017 WL 728698, at *4 (5th Cir. Feb. 23, 2017) (per curiam) (citing CitiFinancial Mortg. Co., 967 So.2d at 19). However, consideration is made for a continuing tort, a repeated injury, such as the one present in the case sub judice; in such a situation, the statute of limitations begins to run on the date of the last injury or when the tortious acts cease. See Smith v. Franklin Custodian Funds, Inc.,726 So.2d 144, 148 (Miss. 1998). See also Smith v. Isle of Capri Casinos, Inc., No. 4:I3CV6O-M-V, 2014 WL 2533181, at *6 (N.D. Miss. June 5, 2014) (statute of limitations began to run on ...


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