231638.1

IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

STEVE ADAMS, 

Plaintiff, 

v. 

MERCHANTS FOODSERVICE, et al., 

Defendants. 

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CIVIL ACTION NO. 

2:06-cv-00707-ID-CSC 

DEFENDANT MERCHANTS FOODSERVICE’S REPLY IN

SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

Plaintiff’s opposition to defendant Merchants Foodservice’s Motion 

for Summary Judgment is filled with supposition and conjecture. However, 

Rule 56(e) of the Federal Rules of Civil Procedure provides, in part, that: 

[w]hen a motion for summary judgment is made and supported 

as provided in this rule, an adverse party may not rest upon the 

mere allegations or denials of the adverse party’s pleadings, but 

the adverse party’s response, by affidavits or as otherwise 

provided in this rule, must set forth specific facts showing that 

there is a genuine issue for trial. . . . 

Plaintiff’s opposition to summary judgment fails to set forth specific facts 

showing that there is a genuine issue for trial. As a result, defendant’s 

Motion for Summary Judgment is due to be granted. 

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A. Plaintiff’s Working Conditions Claims Fail1

Plaintiff’s allegations regarding his work hours, his schedule, his night 

shift work, his vacation, and his Saturday work are claims of promissory 

fraud because they relate to his future working conditions. 

 Plaintiff provides no argument or support that his reliance on the 

alleged misrepresentations was reasonable or to rebut defendant’s showing 

that any reliance was not reasonable. In fact, it is not reasonable for an 

employee to accept a job with more responsibility and a higher salary and 

believe that he will not have to work more hours. It is not reasonable for an 

employee to accept a job in which he is in charge of the night shift and 

believe that he will not have to work nights. It is not reasonable for an 

employee to think he can take vacation whenever he wants, without 

consideration of business needs. It is not reasonable for plaintiff to think he 

simply has to maintain the “status quo” to obtain his full bonus when his 

offer letter provides that he could “be eligible for up to a 30 percent bonus 

based on improving sales and improving current operational and 

 

1 Merchants Foodservice disputes that any misrepresentations were made to plaintiff. In 

his opposition and supporting affidavit, plaintiff indicates that the alleged 

misrepresentations were made by Henson, Mercier, and Suber. However, in his 

deposition, plaintiff testified that, with the exception of statements made by Suber and 

Mercier about the company being family oriented, all of the alleged misrepresentations 

were made by Henson. (Pl. Depo. p. 78, lines 11-23, p. 79, lines 1-3; p. 81, lines 7-23, p. 

82, line 1; p. 98, lines 7-23, p. 99, lines 1-18). 

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productivity standards.

2

” (Pl. Depo. p. 115, lines 19-22 & Exh. 7). As 

such, plaintiff’s fraudulent misrepresentation claims regarding his working 

conditions are due to be dismissed because he did not reasonably rely on any 

alleged misrepresentations. 

Moreover, plaintiff has offered conjecture as to what Merchants 

Foodservice knew when the alleged misrepresentations were made. Simply 

stating what “defendants knew” without offering any evidentiary support 

does not create a genuine issue of fact regarding whether Merchants 

Foodservice intended to deceive the plaintiff, which must be shown to prove 

promissory fraud. See Jabour v. Aetna U.S. Healthcare, Inc., No. CIV. A. 

98-D-900-N, 2000 WL 303639, at *7 (M.D. Ala. Feb. 15, 2000). The 

uncontradicted evidence is that three events occurred that Henson had not 

anticipated when he interviewed plaintiff for the job: (1) the night 

supervisor was discharged and the night manager resigned; (2) the facility 

had to undergo a YUM audit; and (3) plaintiff began reporting to Scott 

Casey, who required all managers to work longer hours and more nights. 

(Henson Dec. ¶¶ 10-13; Casey Dec. ¶¶ 2-6). These changes resulted in an 

increased workload, longer hours, more Saturday work to prepare for the 

 

2 Plaintiff was paid $62,500 a year and admits that he was eligible for a 30% bonus, 

which is what he was told in his interview and offer letter. (Pl. Depo. p. 89, lines 15-20; 

p. 111, lines 19-23). As such, any claims regarding his pay or bonuses fail. 

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audit, and fewer vacation opportunities. (Henson Dec. ¶ 14). Therefore, 

plaintiff has not shown that Merchants Foodservice had an intent to defraud 

him when the alleged misrepresentations were made. 

B. Plaintiff’s Claims Regarding the Workforce Fail 

Plaintiff also claims that Henson told him that they had a great 

workforce, including a great day shift, an excellent night shift, and a good 

core group of drivers. (Pl. Depo. p. 81, lines 9-23, p. 82, line 1). First, 

plaintiff does not address and does not dispute that any statements made by 

Henson regarding the workforce were puffery and did not constitute fraud. 

Additionally, plaintiff again fails to offer evidentiary support for his 

statements regarding what Merchants Foodservice’s intent was and why the 

alleged statements were false. Plaintiff cannot create an issue of fact by 

conjecture. Instead, plaintiff must offer evidence to support his positions, 

and he has not done so. 

Most importantly, Henson’s statements regarding the workforce were 

not false. Henson believed he had a good workforce; and, while there was 

significant turnover, he had a good core of hourly employees in the 

warehouse and drivers on whom he relied. (Henson Dec. ¶ 7). Further, the 

night shift, along with the other shifts, had all the pieces in place but needed 

the glue to hold them together, which is what Henson told plaintiff. (Henson 

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Dec. ¶ 7; Pl. Depo. p. 101, lines 8-16). As such, plaintiff’s claim regarding 

the work force is due to be dismissed. 

C. Any Claims Regarding Merchants Foodservice Being 

Family Oriented Are Due to Be Dismissed 

Plaintiff claims that Mercier misrepresented to him that Merchants 

Foodservice was family oriented. Plaintiff does not dispute that Mercier 

views Merchants Foodservice as family oriented. (Pl. Depo. p. 97, lines 6-

15; p. 98, lines 11-14; Mercier Dec. ¶ 3). Instead, plaintiff disagrees with 

what “family oriented” means to Mercier; but simply disagreeing with what 

Mercier meant by “family oriented” does not show fraud. Plaintiff attempts 

to argue that Mercier made statements to plaintiff about Merchants 

Foodservice being family oriented because Mercier knew the effect those 

statements would have on plaintiff. However, again, plaintiff offers no 

evidence to support his arguments and simply relies on unsupported 

conjecture. Further, any statement that Merchants Foodservice is family 

oriented is opinion and/or puffery and cannot form the basis of a fraud 

claim. 

D. Plaintiff’s Fraudulent Suppression Claim Fails 

Plaintiff claims that Merchants Foodservice fraudulently suppressed 

the condition of the equipment, the condition of the warehouse, and his 

ability to discipline. (Pl. Depo. p. 167, lines 2-15; p. 212, lines 1-10; p. 213, 

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lines 5-20). Plaintiff’s primary argument in support of his fraudulent 

suppression claim is that he was not allowed to tour the facility during his 

interview. However, plaintiff admits that, when he requested a warehouse 

tour, Henson told him he did not want him to tour the facility because no 

announcement had been made regarding the company’s intent to hire a 

replacement for the director of operations. (Pl. Depo. p. 91, lines 3-13). 

Plaintiff has offered no evidence to contradict Henson’s statement. Instead, 

plaintiff claims that the refusal was “done in an attempt to conceal the 

defective conditions . . . .” (Pl. Brief p. 12). However, plaintiff cites no 

authority for his conjecture and offers no evidence to support his arguments. 

In fact, plaintiff concedes that he never asked to go back another time to take 

a tour of the warehouse and has no explanation for not making such a 

request. (Pl. Depo. p. 91, lines 20-23, p. 92, lines 1-2). Had touring the 

facility been important to plaintiff he could have asked again or refused to 

accept the job without first seeing the facility. Plaintiff took no such action, 

and his fraudulent suppression claim is due to be dismissed. 

E. The Individual Defendants Should Be Dismissed

In footnote 1 of his opposition, plaintiff argues that the individual 

defendants were properly served by taking a statement made by defendant in 

its Notice of Removal out of context. While a summons dated July 10, 

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2006, does seem to indicate that the individual defendants were served with 

the complaint, (see Notice of Removal, Ex. 1, p. 4), the service was not 

proper pursuant to Rule 4(c)(1) of the Alabama Rules of Civil Procedure 

because the individuals were not served at their residence nor was an agent 

served on their behalf. Further, plaintiff has offered no evidence that any of 

the defendants were personally served with the Complaint on July 10, 2006, 

because there is no evidence any of the defendants were at the Clanton 

facility on or about July 10, 2006.3 In fact, Henson no longer worked for the 

company or lived in Alabama at that time; and Suber and Mercier both lived 

in Mississippi at that time. 

Defendant Merchants Foodservice removed the Complaint to this 

Court on August 9, 2006, and plaintiff has not made any efforts to properly 

serve Suber or Mercier or to serve Henson. Because well over 120 days 

have passed since defendant Merchants Foodservice removed plaintiff’s 

complaint to federal court, any claims against Suber, Mercier, and Henson 

are due to be dismissed pursuant to Rule 4(m) of the Federal Rules of Civil 

Procedure. 

 

3

Footnote 1 to the Notice of Removal contains a typographical error by referring to the summons as 

indicating service on “June 10, 2006.” That is an impossibility, as the suit was not even filed until June 29, 

2006. 

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CONCLUSION

Plaintiff accepted a job with Merchants Foodservice that resulted in an 

instant promotion and increase in pay. Unfortunately, plaintiff was not 

willing to accept the increased workload and responsibilities that came with 

the promotion. Therefore, plaintiff resigned his employment and filed this 

lawsuit alleging that he was fraudulently induced to accept the job with 

Merchants Foodservice. Plaintiff has failed to offer evidence of any 

fraudulent conduct by defendant. Instead, plaintiff has offered conjecture 

and supposition; but such do not create issues of material fact. Accordingly, 

for the reasons discussed above and for the reasons discussed in defendant’s 

opening brief in support of its Motion for Summary Judgment, defendant 

Merchants Foodservice respectfully requests that the Court grant its Motion 

for Summary Judgment and dismiss plaintiff’s claims with prejudice. 

 Respectfully Submitted, 

 /s/ J. Tobias Dykes 

J. Tobias Dykes (Bar No.: DYK002) 

Direct Dial No.: (205) 226-5469 

CONSTANGY, BROOKS & SMITH, LLC 

Suite 900, One Federal Place 

1819 Fifth Avenue North 

Birmingham, AL 35203 

Facsimile: (205) 323-7674 

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231638.1 9

CERTIFICATE OF SERVICE

I hereby certify that on July 27, 2007, I electronically filed the 

foregoing with the Clerk of the Court using the CM/ECF system which will 

send notification of such filing to the following: 

Derrick Blythe, Esq. 

126 Marshall Street 

Alexander City, AL 35010 

This 27th day of July 2007. 

 /s/ J. Tobias Dykes 

 J. Tobias Dykes 

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