Wimberly v. Fort Wayne Business Products

703 F. Supp. 1358, 1989 U.S. Dist. LEXIS 552, 48 Fair Empl. Prac. Cas. (BNA) 1600, 1989 WL 3878
CourtDistrict Court, N.D. Indiana
DecidedJanuary 20, 1989
DocketCiv. No. F 88-89
StatusPublished

This text of 703 F. Supp. 1358 (Wimberly v. Fort Wayne Business Products) is published on Counsel Stack Legal Research, covering District Court, N.D. Indiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wimberly v. Fort Wayne Business Products, 703 F. Supp. 1358, 1989 U.S. Dist. LEXIS 552, 48 Fair Empl. Prac. Cas. (BNA) 1600, 1989 WL 3878 (N.D. Ind. 1989).

Opinion

ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court on several pending motions including defendant Fort Wayne Business Products’ September 21, 1988 motion for summary judgment. Plaintiff responded to that motion on September 26, 1988. On September 13, 1988, plaintiff filed a motion to reconsider this court’s August 22, 1988 order which granted defendant Southern Copy Machines’ June 22, 1988 motion for summary judgment. That defendant responded to defendant’s motion to reconsider on September 26,1988. On that same date defendant Southern Copy Machines filed a motion for entry of final judgment. Most recently, on January 9, 1989, plaintiff filed a document entitled “Additional Evidence.”

For the reasons set forth below, defendant Fort Wayne Business Products’ motion for summary judgment will be denied as will plaintiff’s motion to reconsider. Defendant Southern Copy Machines’ motion for entry of final judgment will also be denied.

I. Factual Background

On March 29, 1988, plaintiff filed suit in this court against two defendants, Fort Wayne Business Products and Southern Copy Machines, Inc. Plaintiff asserts federal question jurisdiction under 28 U.S.C. § 1331 as well as diversity jurisdiction with respect to defendant Southern Copy Machines under 28 U.S.C. § 1332.

According to the complaint, plaintiff was employed by defendant Fort Wayne Business Products beginning in June, 1985 as a service technician and at that time was allegedly the only black service technician employed by that defendant. Plaintiff contends that during all relevant periods his job performance was satisfactory. Prior to his employment with Fort Wayne Business Products, plaintiff had been employed by defendant Southern Copy Machines in Fulton County, Georgia. Plaintiff allegedly left his employment involuntarily as a result of an altercation with a customer. After the termination of employment with defendant Southern Copy Machines, plaintiff filed a lawsuit against that defendant in the Superior Court of Fulton County, Georgia. Plaintiff further alleges in his complaint that after becoming employed in Fort Wayne, the president of defendant Southern Copy Machines spoke by telephone with the president of defendant Fort Wayne Business Products and during the course of that conversation arranged to have plaintiff terminated from his employment at Fort Wayne Business Products. Plaintiff further alleges that shortly after that conversation he was in fact terminated and was replaced by a white male with much less experience.

Plaintiff contends that the foregoing conduct by the defendants discriminated against him on the basis of his race and as a result of said acts, plaintiff has lost wages, suffered injury and has been otherwise damaged. Plaintiff further contends that the defendants conspired together to deprive him of his rights secured under 42 U.S.C. § 1981 and that defendant Southern Copy Machines willfully and wantonly interfered with and denied plaintiff his gainful and advantageous business relationship with defendant Fort Wayne Business Products.

As indicated, this is not the first time plaintiff has sued defendant Southern Copy Machines. On May 7, 1986, plaintiff, by [1360]*1360counsel, filed a civil action in the Superior Court of Fulton County, Georgia against defendant Southern Copy Machines and Arthur S. Karp and William V. Curran.

In the Fulton County lawsuit, plaintiff alleged that on or about June 21, 1984, while employed by defendant Southern Copy Machines, of which defendant William Curran was president, he was sent to service copying machines at the Great American Chocolate Chip Cookie Company located in Atlanta, Georgia. Defendant Arthur S. Karp was the president of that company. After plaintiff finished servicing a machine at the cookie company, defendant Karp spoke to plaintiff in an abusive, loud and boisterous manner because plaintiff had parked in Mr. Karp’s reserved parking space. According to plaintiff, defendant Karp’s abuse was not only verbal. Karp allegedly grabbed and twisted plaintiff’s right arm and struck plaintiff in the chest. Mr. Karp then, so the story goes, refused to allow plaintiff to leave until he answered certain questions including who employed plaintiff. After being informed that the employer was Southern Copy Machines, defendant Karp allegedly made the statement that he would see to it that plaintiff never worked on his copy machine or any other copy machine ever again. Pri- or to leaving the premises, Mr. Karp allegedly cursed and abused plaintiff some more and then threatened to kill him if he ever returned.

The allegations do not stop here. According to plaintiff, Mr. Karp had one of his employees telephone plaintiff’s employer in order to keep his promise that plaintiff would never work on another copy machine. Plaintiff was then allegedly fired the next day by defendant Curran from his job at Southern Copy Machines. Said termination was due to the scheme, plot and device of Karp, Curran and Southern Copy Machines. Because plaintiff found it impossible to work as a field technical engineer in Georgia due to the defendants’ continual efforts to prevent him from being gainfully employed in this field of endeav- or, plaintiff believed that they gave false and malicious reports to prospective employers both within and outside of Georgia. In that Fulton County lawsuit, plaintiff went on to assert that because of the egregious conduct of the defendants, he was forced to move to Indiana and went to work for Fort Wayne Business Products for approximately 10 months until he was terminated. In rhetorical paragraph 18 of the Fulton County lawsuit, plaintiff alleged that his “termination in Indiana and Georgia was due solely to the acts individually and jointly of defendants to get him fired and see to it he never worked in his field again.” Plaintiff sought a combined total of $1 million in actual and punitive damages together with attorney’s fees in the amount of $5,000.

As here, defendant Southern Copy Machines filed a motion for summary judgment in the Fulton County lawsuit with respect to all claims alleged by plaintiff in his complaint in that court. The Superior Court of Fulton County, Georgia granted summary judgment in favor of defendant Southern Copy Machines in an order dated March 6, 1987, under Civil Action File No. D-29929. That order granting summary judgment was appealed by plaintiff’s counsel to the Georgia Court of Appeals. In a published decision dated January 5, 1988, the Georgia Court of Appeals affirmed the trial court’s order. Wimberly v. Karp, 185 Ga.App. 571, 365 S.E.2d 131 (1988). An application for a writ of certiorari to the Georgia Supreme Court was then filed by plaintiff’s attorney. The Georgia Supreme Court denied this application on February 18, 1988.

Based on the foregoing events, defendant Southern Copy Machines moved for summary judgment asserting the plaintiff’s present claims were barred by the doctrine of res judicata because of the litigation which had been concluded in the state court of Georgia. Since it was clear that defendant’s position was well taken, this court entered summary judgment on its behalf on August 22, 1988.

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Bluebook (online)
703 F. Supp. 1358, 1989 U.S. Dist. LEXIS 552, 48 Fair Empl. Prac. Cas. (BNA) 1600, 1989 WL 3878, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wimberly-v-fort-wayne-business-products-innd-1989.