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Ferguson v. Nissen Staffing Continuum, Inc.

United States District Court, E.D. Wisconsin

March 27, 2018

TRYONE FERGUSON, SR., Plaintiff,
v.
NISSEN STAFFING CONTINUUM, INC. and BUYSEASONS, INC., Defendants.

          ORDER GRANTING DEFENDANT NISSEN STAFFING CONTINUUM, INC.'S MOTION TO DISMISS (DKT. NO. 14), GRANTING DEFENDANT BUY SEASONS, INC.'S MOTION TO DISMISS (DKT. NO. 20), AND GRANTING THE PLAINTIFF LEAVE TO FILE AN AMENDED COMPLAINT BY APRIL 27, 2018

          PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.

         On February 14, 2017, the plaintiff, who is representing himself, filed a complaint alleging various claims, including race and age discrimination. Dkt. No. 1. Both defendants filed motions to dismiss. Dkt. Nos. 14, 20. Defendant Nissen Staffing Continuum, Inc. moves to dismiss for lack of subject matter jurisdiction as to the forgery claim, and failure to state a claim on all remaining claims. Dkt. No. 14. Defendant BuySeasons, Inc. joins in Nissen's motion to dismiss, but also moves to dismiss because the plaintiff's prayer for relief did not mention BuySeasons, and because BuySeasons alleges that it has not been properly served with a summons and complaint. Dkt. No. 20. The plaintiff has not responded to the motions to dismiss. The court will grant the motions to dismiss, but will give the plaintiff the opportunity to file an amended complaint.

         I. Defendant Nissen Staffing Continuum's Motion to Dismiss (Dkt. No. 14)

         A. Standard of Review

         To survive a motion to dismiss under Rule 12(b)(6), a complaint must provide a “short and plain statement of the claim” showing that the pleader merits relief, Fed.R.Civ.P. 8(a)(2), so the defendant has “fair notice” of the claim “and the grounds upon which it rests, ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint must also contain “sufficient factual matter” to state a facially plausible claim to relief-one that “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). This plausibility standard “asks for more than a sheer possibility” that a defendant acted unlawfully. Boucher, et al. v. Finance System of Green Bay, Inc., 880 F.3d 362, 366 (7th Cir. 2018) (quoting Iqbal, 556 U.S. at 678). A plaintiff's failure to respond to an argument raised in a motion to dismiss forfeits any argument on that issue. See Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011) (“[A] litigant effectively abandons the litigation by not responding to alleged deficiencies in a motion to dismiss.”); Lekas v. Briley, 405 F.3d 602, 614 (7th Cir. 2005).

         B. The Complaint

         The plaintiff begins his complaint by alleging that Nissen and BuySeasons violated “Title VII of the Civil Rights Act of 1964” and the “Age Discrimination Act of 1975.” Dkt. No. 1 at 1. The plaintiff says that on August 16, 2016, he filed two separate charges with the Equal Employment Opportunity Commission (“EEOC”). Id. at 2. He says that in these charges, he alleged that he was discriminated against on the basis of his age (he is almost 56), and that he was fired in violation of the Age Discrimination in Employment Act. Id.

         The plaintiff next says that on December 19, 2016, several months after he filed the EEOC charges, he filed a formal written request with the EEOC, asking for “all documents.” Id. He alleges that it was then that he discovered that defendant Nissen had forged his signature on a document that stated that the applicant understood Nissen's policies and procedures regarding employment. Id. (citing Dkt. No. 1-1 at 1, “Exhibit 1”). The plaintiff alleges that this forgery violated the Forgery and Counterfeiting Act of 1981 (“an Act of the Parliament of the United Kingdom”). Id.

         The plaintiff then discusses a standup forklift test, and points the court to a series of recordings that he submitted as exhibits to the complaint. Id. In this section of the complaint, the plaintiff says that one of Nissen's recruiters, Luis Rodriguez, was “Latin America, ” and that although Rodriguez was late several times, Nissen never fired Rodriguez. Id. at 3. The plaintiff says that Nissen also did not fire Rodriguez's son son, who is “between 26 and 29 years old.” Id. The plaintiff alleges that his is an African American who, at the time, was 54 years old, and that his work was so outstanding that Nissen and BuySeasons asked him to come “back to work for BuySeasons.” Id.

         The plaintiff continues over the next two pages by describing conversations he had with Rodriguez (and a few others, but mostly Rodriguez)-it appears to the court that all of these conversations related to the plaintiff trying to get Nissen to place him at BuySeasons. Id. at 3-4.

         After returning to his claim that Nissen forged his signature on Exhibit 1, id. at 5, the plaintiff alleges that he is filing suit to “correct unlawful employment practices on the basis of race, sex and age discrimination, ” id. He also alleges that forgery is a crime under Wisconsin law “punished as a Class H felony.” Id. In his prayer for relief, he asks the court to issue an injunction against Nissen, preventing Nissen from taking various actions against him. Id. He also seeks compensation for past and future “pecuniary and non-pecuniary losses resulting from the unlawful and intimidating employment practices.” Id.

         The plaintiff attached a number of items to the complaint, including the document that allegedly has the plaintiff's signature forged on it, dkt. no. 1-1 at 1; a letter from Lori Gengler at Nissen Staffing Continuum stating that the plaintiff “is no longer working through our agency, ” id. at 2; and his notices of right to sue letter from the EEOC, id. at 3-4. He also filed with the court an audio disc containing a series of unauthenticated, recorded telephone phone calls; the plaintiff asserts that these calls are from him to Rodriguez, Mr. Gamboe (a supervisor) and Mr. Duke to find out why he was not supposed to report to work. Dkt. No. 1, CD on file. As the court noted above, the plaintiff referenced the conversations on the CD numerous times in the complaint.[1] Id. at 3-4.

         C. Plaintiff's Claims

         In its screening order, the court allowed the plaintiff to proceed only on his employment discrimination claims against both defendants on the basis of race and age under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §2000e et seq., and on the basis of age under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §621 et seq. Dkt. No. 4 at 3. Despite that fact, the defendants have moved to dismiss all of the claims the plaintiff appears to have been trying to raise: (1) race and sex discrimination under Title VII; (2) race and sex discrimination under Title I; (3) age discrimination; (4) fraud or forgery under the Forgery and Counterfeiting Act of 1981; (5) fraud or forgery under Wis.Stat. §943.38; and (6) defamation.

         1. Plaintiff's Claims for Forgery and Counterfeiting Act of 1981

         The plaintiff asserted that the alleged forgery of his name on Exhibit 1 violated the “Forgery and Counterfeiting Act of 1981;” according to the plaintiff, this is an “Act of the the Parliament of the United Kingdom which makes it illegal to make fake versions of many things, including legal documents, contracts, audio and visual recordings, and money of the United Kingdom and certain protected coins.” Dkt. No. 1 at 4. As far as the court can tell, the plaintiff is asserting that the alleged forgery of his name violates a statute from the country of England.

         Federal district courts have limited jurisdiction. District courts have original jurisdiction over civil case arising under the Constitution, laws or treaties of the United States, 28 U.S.C. §1331, and cases in which the amount in controversy exceeds $75, 000 and involves citizens of different states (or citizens of a state and subjects of a foreign state), 28 U.S.C. §1332. The plaintiff's allegation that Nissen violated a statute from England do not arise under the Constitution, the laws or any treaties of the United States. That means the court does not have what is known as “federal question” jurisdiction over that allegation. The plaintiff lives in Milwaukee, Wisconsin, and alleges that Nissen (the defendant who he claims committed the forgery) operates a “staffing corporation” “headquartered in Waukesha, Wisconsin.” In other words, the plaintiff has sued a defendant who lives in the same state that he lives in. This means that the court does not have what is known as “diversity jurisdiction” over the plaintiff's forgery claim against Nissen.

         Because the court does not have jurisdiction over the plaintiff's claim that Nissen forged his name in violation of a statute from the country of England, the court will ...


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