United States District Court, S.D. Mississippi, Northern Division
ORDER ON MOTIONS
T. WINGATE UNITED STATES DISTRICT JUDGE
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
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.
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.
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.
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. 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.
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.
say Defendants, Calsonic did not wrongfully discharge
subject matter jurisdiction in this matter is based on
diversity of citizenship under Title 28 U.S.C. §
1332. 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).
Plaintiff's Motion for Leave to File Affidavits of
Michael McIntyre and Jeff Stapelon [Doc. no. 101]
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].
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
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.
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)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