United States District Court, W.D. Arkansas, Hot Springs Division
REPORT AND RECOMMENDATION OF THE UNITED STATES
BARRY A. BRYANT U.S. MAGISTRATE JUDGE
the Court are Defendants' Motion for Judgment on the
Pleadings and Defendants' Amended Motion for Judgment on
the Pleadings. ECF Nos. 11, 13. Plaintiffs have responded
to these Motions and request they be denied. ECF No. 16. This
matter has been referred to the undersigned, and it is now
ripe for consideration.
filed their Complaint on May 7, 2018. ECF No. 1. In this
Complaint, Plaintiffs “bring both federal and
supplemental causes of action based on [Plaintiff] Dan's
employment relationship being unlawfully discontinued.”
Id. at 7. Thus, the Complaint only relates to
Plaintiff Danny Bugg's employment relationship with
contrast to Plaintiff Danny Bugg, Plaintiff Eldon Bugg is
only a part of this lawsuit because he was purportedly
assigned at least part of Plaintiff Danny Bugg's rights
in this lawsuit. See ECF No. 1-1. This assignment
was attached to Plaintiffs' Complaint.
motion for judgment on the pleadings under Rule 12(c) of the
Federal Rules of Civil Procedure is determined under the same
standard as a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure. See Ashley County, Ark.
v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009). The
Court accepts as true all the factual allegations in the
complaint and construes the complaint in the light most
favorable to Plaintiff. Id.
only issue with Defendants' Motion is whether Plaintiff
Eldon Bugg has standing to bring this lawsuit. ECF No. 13. As
noted above, his only standing is “conferred” by
an assignment from Plaintiff Danny Bugg to Plaintiff Eldon
Bugg of rights to at least part of this lawsuit. ECF No. 1-1.
Plaintiff Danny Bugg claims such an assignment is proper as
an assignment of a “chose in action.”
Id. In response, Defendants claim such an assignment
is improper and invalid and should not be enforced. ECF No.
review of the briefing on this issue, the Court finds no
basis for invalidating this assignment. For tort claims,
Defendants are correct that such claims are generally not
assignable in Arkansas. Indeed, the Arkansas Supreme Court
has not hesitated “in joining those courts which hold
that a survival statute does not confer the power of
assignment upon the holder of an unliquidated tort claim for
personal injuries.” S. Farm Bureau Cas.
Ins. Co. v. Wright Oil Co., Inc., 248 Ark. 803, 809, 454
S.W.2d 69, 72 (1970) (emphasis added). The Arkansas Supreme
Court has applied that reasoning to all tort cases. See
Mallory v. Hartsfield, Almand & Grisham, LLP, 350
Ark. 304, 309, 86 S.W.3d 863, 866 (2002) (recognizing that
“[a]lthough Southern Farm Bureau reviewed the
assignability of tort litigation based upon the
survival statute, Ark. Code Ann. § 16-62-101
(1987), and the assignment statute, Ark. Code Ann. §
16-65-102 (1987), was not considered in that case, we hold
that Southern Farm Bureau in no way overrules the
common-law prohibition of assignments in tort cases, but
rather conforms with our common law. Therefore, we affirm the
trial court's finding that the assignment of the proceeds
of tort litigation in this case was invalid.”).
a tort action, however, this action arises out of an
allegedly wrongful employment termination. Although
Plaintiffs do raise supplemental state claims that are tort
claims, Plaintiff's federal causes of action are age
discrimination under 29 U.S.C. § 623(a) and civil rights
violations under 42 U.S.C. § 1983. Accordingly, at this
time and based upon these facts, Defendants have supplied no
basis for invalidating this assignment. Thus, at this time,
the Court cannot dismiss Plaintiff Eldon Bugg from this
upon the foregoing, the Court finds Defendants' Motion
for Judgment on the Pleadings (ECF No. 11) and Amended Motion
for Judgment on the Pleadings (ECF No. 13) should be
DENIED. Plaintiffs' Motion to Strike
(ECF No. 16) should be DENIED AS MOOT.
Parties have fourteen (14) days from receipt of this Report
and Recommendation in which to file written objections
pursuant to 28 U.S.C. § 636(b)(1). The failure to file
timely objections may result in waiver of the right to appeal
questions of fact. The Parties are reminded that objections
must be both timely and specific to trigger d ...