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McIntyre v. Calsonic Kansei North America, Inc.

United States District Court, S.D. Mississippi, Northern Division

March 1, 2019




         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.


         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. §45-9-55[1]. 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. He seeks 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.


         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 (5th 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 ...

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