United States District Court, S.D. Florida
ORDER ON 12(D) MOTION FOR SUMMARY JUDGMENT
N. Scola, Jr., United States District Judge.
plaintiff Godbert Donjoie files suit to recover damages for
alleged discrimination and retaliation under 42 U.S.C. §
1981. The defendant Whitestone Gulf, Inc.
(“Whitestone”) moved for judgment on the
pleadings arguing that the suit is barred by the contractual
statute of limitations period in his employment contract.
(ECF No. 8.) The Court decided that it could not consider the
contract attached to Whitestone's answer and affirmative
defenses at the judgment on the pleadings stage because
Donjoie challenged its authenticity. (ECF No. 15.) However,
the Court decided to convert Whitestone's motion into a
summary judgment motion in accordance with Federal Rule of
Civil Procedure 12(d). (Id.) The Court allowed the
parties to file a supplemental brief by September 30, 2019 in
light of its decision to convert the motion. The parties each
filed a supplemental brief. After reviewing the parties
submissions, the record, and the applicable caselaw, the
Court grants Whitestone's motion
(ECF No. 8).
employed Donjoie, an African-American man, as an armed
security officer. (ECF No. 1-2 at ¶¶ 5-6.)
Whitestone fired him on February 18, 2017. (ECF No. 8 at 2.)
During his employment, Donjoie electronically signed two
employment agreements-although Donjoie alleges that he does
not recall signing the agreements. (ECF No. 3-1; 16-1 at
¶¶ 6-8.) Both agreements contain a six-month
contractual limitation period for claims relating to
Plaintiff's employment with Whitestone. It states:
Employee agrees to file all claims or lawsuits in any way
relating to employment with the Company no more than six
months after the date of the employment action that is the
subject of the lawsuit.
(ECF No. 1-3.) On October 29, 2018, Donjoie filed suit in
state court, alleging that Whitestone discriminated against
him and retaliated against him in violation of 42 U.S.C.
§ 1981. (ECF No. 1-2.) Whitestone subsequently removed
the case to federal court. (ECF No. 1.)
Federal Rule of Civil Procedure 56, “summary judgment
is appropriate where there ‘is no genuine issue as to
any material fact' and the moving party is
‘entitled to a judgment as a matter of law.'”
Alabama v. North Carolina, 130 S.Ct. 2295, 2308
(2010) (quoting Fed.R.Civ.P. 56(a)). Rule 56(c)
“requires the nonmoving party to go beyond the
pleadings and by her own affidavits, or by the depositions,
answers to interrogatories, and admissions on file, designate
specific facts showing that there is a genuine issue for
trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986) (internal quotation marks omitted). Thus, the
nonmoving party “may not rest upon the mere allegations
or denials of his pleadings, but . . . must set forth
specific facts showing that there is a genuine issue for
trial.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986) (internal quotation marks omitted);
see also Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1984) (stating
“[w]hen the moving party has carried its burden under
Rule 56(c), its opponent must do more than simply show that
there is some metaphysical doubt as to the material
Court must view the evidence in the light most favorable to
the nonmoving party, and summary judgment is inappropriate
where a genuine issue material fact remains. Adickes v.
S.H. Kress & Co., 398 U.S. 144, 158-59 (1970).
“An issue of fact is ‘material' if, under the
applicable substantive law, it might affect the outcome of
the case.” Hickson Corp. v. N. Crossarm Co.,
357 F.3d 1256, 1259-60 (11th Cir. 2004). “An issue of
fact is ‘genuine' if the record taken as a whole
could lead a rational trier of fact to find for the nonmoving
party.” Id. at 1260. A court may not weigh
conflicting evidence to resolve disputed factual issues; if a
genuine dispute is found, summary judgment must be denied.
Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1140
(11th Cir. 2007).
the Court analyzes whether this case is barred by the
contractual limitations period in the employment contracts,
it must determine whether there is any genuine dispute of
fact regarding whether Donjoie electronically signed the
contract. The Court finds that there is no genuine dispute
because Donjoie does not deny that he signed the contract.
Instead, he states that “Plaintiff disputes the
authenticity of the purported agreements, ” because
“there is no actual signature anywhere on the
documents” and “there is no evidence that
Plaintiff was ever presented with the agreements.” (ECF
No. 9 at 2-4.) In his supplemental brief and the attached
declaration, Donjoie states that he “do[es] not
recall” ever signing the agreements. (ECF No. 16-1 at
¶¶ 6-8.) Merely stating that he does not recall
signing the agreement is insufficient to raise a genuine
dispute of fact. See Torjagbo v. United States, 285
Fed. App'x 615, 619 (11th Cir. 2008) (although Torjagbo
testified that he did not remember signing the covenant not
to sue, a reasonable jury could not find in his favor on the
authenticity of the covenant.); see also, Melver v. Check
N' Go of Fla., Inc., 2013 WL 12148376, *2 (S.D. Fla.
July 22, 2013) (Williams, J.) (that Plaintiff claims the
electronic signature is invalid because he “does not
remember signing” it, does not invalidate the
agreement). Therefore, Donjoie has not demonstrated a genuine
issue of material fact regarding whether he electronically
signed the employment agreements.
determined that it is established for summary judgment
purposes that Donjoie signed the agreements, the Court can
now address whether this suit is barred by the six-month
contractual limitation provision in the employment agreement.
“It is well established that, in the absence of a
controlling statute to the contrary, a provision in a
contract may validly limit, between the parties, the time for
bringing an action on such contract to a period less than
that prescribed in the general statute of limitations,
provided that the shorter period itself shall be a reasonable
period.” Order of United Commercial Travelers of
Am. V. Wolfe, 331 U.S. 586, 608 (1947); see also
Northlake Regional Medical Center v. Waffle House System
Employee Benefit Plan, 160 F.3d 1301, 1303 (11th Cir.
1998) (“contractual limitations periods on ERISA
actions are enforceable, regardless of state law, provided
they are reasonable.”). Here, there is no controlling
statute to the contrary because there is no explicit statute
of limitations provision requiring a § 1981 claim to be
filed within a certain period and forbidding contractual
alterations to that period. Rather, a § 1981 action must
be filed within the four-year statute of limitations
prescribed by 28 U.S.C. § 1658, the catch-all statute of
limitations for federal statutes enacted after 1990.
Baker v. Birmingham Bd. Of Educ., 531 F.3d 1336,
1338 (11th Cir. 2008) (reversing the district court's
application of a two-year statute of limitations period to a
§ 1981 claim because the four-year one mandated by 28
U.S.C. § 1658 applies).
there is no controlling statute forbidding contractual
modification to the limitations period or mandating another
period, the Court must determine whether the modification is
reasonable. Wolfe, 331 U.S. at 608. Courts have held
limitations periods of six months to be reasonable. See
Northlake Reg'l Med. Ctr v. Waffle House Sys. Employee
Benefit Plan, 160 F.3d 1301, 1303 (11th Cir. 1998)
(enforcing 90-day contractual limitations period to ERISA
claims); see also Myers v. W.S. Life Ins. Co., 849
F.2d 259, 262 (6th Cir. 1998) (“there is nothing
inherently unreasonable about a six-month limitations
period”). A Section 1981 plaintiff can file suit
directly in federal court and, unlike a Title VII or ERISA
plaintiff, is not required to exhaust his administrative
remedies. See Price v. M & H Valve Co., 177 Fed.
App'x 1, 9 (11th Cir. 2006). This weighs in favor of
finding a six-month limitations period to be reasonable.
Moreover, courts have upheld six-month contractual
limitations periods in employment contracts for claims
brought under 42 U.S.C. § 1981. See Njang v.
Whitestone Group, Inc., 187 F.Supp.3d 172, 178 (D.D.C.
2016) (holding that § 1981 claim is barred because of
six-month contractual limitation); Thurman v.
DaimlerChrystler, Inc., 397 F.3d 352, 357-58 (6th Cir.
2004) (affirming lower court's dismissal of section 1981
claim due to six month contractual limitations period);
Taylor v. W. & S. Life Ins. Co., 966 F.2d 1188,
1193-94, 1206 (7th Cir. 1992) (affirming district court
dismissal of section 1981 claim based on six-month
limitations period in employment contract); Badgett v.
Fed. Express Corp., 378 F.Supp.2d 613, 626 (M.D. N.C.
2005) (holding that the Plaintiff's Section 1981 claim is
barred as untimely due to the six-month contractual
unsupported contention that § 95.03, Florida Statutes
voids the contractual limitation provisions is flawed because
§ 95.03 does not apply to federal claims. See, e.g.,
Life Sciences, Inc. v. Emery Air Freight Corp., 341
So.2d 272, 273 (Fla. Ed 1977) (§ 95.03 has “no
effect upon Rule 120 because the regulation of shipments of
goods in interstate commerce has been preempted by federal
authority.”). Moreover, his argument that the
employment agreements must be “analyzed pursuant to
Florida law because they were created pursuant to Florida
law” is not supported by the facts. The contracts do
not state that they were created pursuant to Florida law, nor
that Florida law applies. (ECF No. 3-1.) Instead, the
severability provision in both contracts states that terms
and provisions “shall be limited and reduced so as to
be enforceable under applicable law.” (Id.)