Opinion
CIV NO. 00-379 DJS/RLP
August 4, 2000
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before this Court on Defendants Board of Regents of the University of New Mexico and Julie Weaks (Defendants) Motion to Dismiss Pursuant to Rule 12(b)(1) filed May 22, 2000 (Docket No. 9) and Defendants Motion to Dismiss Pursuant to Rule 12(b)(6) filed May 22, 2000 (Docket No. 13). The parties have consented, pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 to the undersigned to conduct any and all proceedings in this case, including the entry of a final judgment. Defendants seek an order dismissing certain counts of the complaint pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction and pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim.
FACTUAL BACKGROUND
The instant action is a civil action brought pursuant to 42 U.S.C. § 1983 seeking injunctive and declaratory relief. Plaintiff is a University of New Mexico alumnus and a fan of the University's athletic teams. He operates two unofficial Internet web sites which report information and contain articles regarding University of New Mexico athletics. Those sites are named lobobasketball.com and lobofootball.com. Plaintiff asserts that before he started the web sites, he contacted Rudy Davalos, the athletic director for the University of New Mexico, as well as other University officials.
Plaintiff contends that Davalos and the other officials agreed that he could use insignia associated with the University's athletic teams on his sites and that he could use the names lobobasketball.com and lobofootball.com. Plaintiff further asserts that the University officials also agreed that his web sites would be given the same access to news and press releases regarding UNM athletics as were provided to other news media covering the teams.
Plaintiff set up the web sites lobobasketball.com and lobofootball.com in February, 1999.
He registered them in the name of American Information Services, a corporation which provides technical support, computers, and software for Internet web hosting services to individuals and organizations and which is owned by Plaintiff. Plaintiff asserts that his relationship with the University of New Mexico was cordial and cooperative until he began to report unfavorable news about UNM athletics.
Plaintiff contends that, in retaliation for his news coverage and opinion commentary, Defendants singled him out for unfavorable treatment. That treatment includes dropping him from the distribution of press releases and other publicity materials from the UNM Athletic Department.
In addition, Plaintiff claims that Defendants maligned him and made false statements about him and his company by accusing him of being a pornographer, by claiming that the web sits are linked to pornographic sites, and by claiming that he does not have the right to use the names lobobasketball. com and lobofootball. com.
Plaintiff asserts that Defendants actions are an attempt to punish him for the exercise of his First Amendment right to free speech and to chill further such speech. He further argues that Defendants treatment of him is discriminatory and violates the Equal Protection Clause of the Fourteenth Amendment. Plaintiff requests that the Court declare that Defendants have acted unconstitutionally and illegally and enjoin them from such conduct and from impeding his reporting or retaliating against him. Plaintiff further requests that the Court declare that he has the right to continue to use the domain names lobobasketball.com and lobofootball.com and declare that he has the right to continue using terms and insignia concerning UNM athletics so long as he continues to make it clear that his web sites are unofficial.
In addition, Plaintiff requests that the Court order Defendants to extend to him and his web sites the same treatment, access, information, and privileges as they extend to other news media and that the Court enjoin Defendants from threatening or retaliating against athletes or UNM employees who communicate with him. Finally, Plaintiff seeks an award of attorneys fees and costs.
In their 12(b)(1) motion, Defendants argue that the complaint must be dismissed against them because they are entitled to immunity pursuant to the Eleventh Amendment.
In their 12(b)(6) motion, Defendants further argue that Plaintiff fails to state a claim upon which he is entitled to relief.
STANDARD OF LAW
"[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Moreover, in passing on a motion to dismiss, the allegations of the complaint must be construed in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
"It is well-established, however, that in determining whether to grant a motion to dismiss, the district court . . . [is] limited to assessing the legal sufficiency of the allegations contained within the four corners of the complaint."
Jojola v. Chavez, 55 F.3d 488, 494 (10th Cir. 1995) (citing Doyle v. Oklahoma Bar Ass'n, 998 F.2d 1559, 1566 (10th Cir. 1993) (in reviewing an order granting a motion to dismiss, a court of appeals "confin[es] [its] review to the allegations of the complaint")).
Under Fed.R.Civ.P. 12(b)(6), a district court may dismiss a complaint that fails to comply with Fed.R.Civ.P. 8(a)(2) 's requirement of a "short and plain statement of the claim" if there appears to be no set of facts on which the plaintiff may state a claim for relief. See Monument Builders of Greater Kansas City, Inc. v. American Cemetery Ass'n, 891 F.2d 1473, 1480 (10th Cir. 1989).
If it appears that no amendment of a plaintiff's complaint will satisfy the requirement for stating a claim upon which relief may be granted, then a district court may dismiss the case even without resort to the procedure for amending a complaint under Rule 15(a). See Mountain View Pharmacy v. Abbott Labs., 630 F.2d 1383, 1389 (10th Cir. 1980) (noting that permission to amend a complaint need not be given when the "futility of amendment" is "apparent") (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).
The Federal Rules have established a liberal standard of "notice pleading" in which "technical forms of pleading" are not required, but instead, a plaintiff's factual pleading must merely contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2) (e)(1).
The Supreme Court has explained that the Federal Rules "do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the rules require is 'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957) (quoting Fed.R.Civ.P. 8(a)(2)).
Courts have interpreted this requirement to mean that "factual pleading is required only insofar as it is necessary to place a defendant on notice as to the type of claim alleged and the grounds upon which it rests, thereby enabling a defendant to prepare a responsive pleading." Mountain View Pharmacy, 630 F.2d at 1388.
However, the Court may not accept as true those allegations that are conclusory in nature, i.e., which state legal conclusions rather than factual assertions. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) ("[C]onclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based.").
A complaint has an additional obligation to "apprise the court of sufficient allegations to allow it to conclude, if the allegations are proved, that the claimant has a legal right to relief." See Perrington Wholesale, Inc. v. Burger King Corp., 631 F.2d 1369, 1371 (10th Cir. 1979) (quoted in Monument Builders, 891 F.2d at 1480).
RULE 12(b)(1) MOTION-ELEVENTH AMENDMENT
In their Rule 12(b)(1) motion, Defendants argue that Plaintiffs claims are barred by the Eleventh Amendment. As described by the Tenth Circuit Court of Appeals in J. B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1285 (10th Cir. 1999):
"The Eleventh Amendment generally bars suits against a state in federal court commenced by citizens of that state or citizens of another state." Elephant Butte Irrigation Dist. of N.M. v. Department of the Interior, 160 F.3d 602, 607 (10th Cir.)
(citing Hans v. Louisiana, 134 U.S. 1, 13-15 (1890)), cert. denied sub nom. Salisbury v. Elephant Butte Irrigation Dist. of N.M., ___ U.S. ___, 119 S.Ct. 1255 (1999).
However, three primary methods exist "for circumventing the Eleventh Amendment and allowing federal courts to ensure state compliance with federal laws." ERWIN CHEMERINSKY, FEDERAL JURISDICTION, 389 (3d ed. 1999); see also Elephant Butte, 160 F.3d at 607; ANR Pipeline Co. v. Lafaver, 150 F.3d 1178, 1187-88 (10th Cir.), cert. denied, ___ U.S. ___, 119 S.Ct. 904 (1999). First, a state may consent to the action. See, e.g., Elephant Butte, 160 F.3d at 607; ANR Pipeline, 150 F.3d at 1188. Second, "Congress may clearly and expressly abrogate the states' immunity." Elephant Butte, 160 F.3d at 607; see also, e.g., ANR Pipeline, 150 F.3d at 1188. Third, a party may sue a state official pursuant to Ex Parte Young, 209 U.S. 123 (1908). See Elephant Butte, 160 F.3d at 607. Under the Ex Parte Young doctrine, "the Eleventh Amendment generally does not bar a suit against a state official in federal court which seeks only prospective equitable relief for violations of federal law, even if the state is immune." Id. at 607-08 (citing Ex parte Young, 209 U.S. at 159-60).
In this case, Plaintiff argues that the Ex parte Young exception to New Mexico's Eleventh Amendment Immunity should apply. To the extent that Plaintiff seeks injunctive relief preventing the continued prospective violation of his First Amendment right to free speech, the exception does apply and Plaintiffs suit is not barred. Consequently, Plaintiffs claim that Defendants have violated his First Amendment rights by ceasing to treat him in parity with other news media will not be dismissed.
To the extent that Plaintiff seeks redress for past wrongs, Eleventh Amendment immunity prohibits his suit. See Puerto Rico Aqueduct v. Metcalf Eddy, Inc. 506 U.S. 139, 146 (1993); Johns v. Stewart, 57 F.3d 1544, 1553 (10th Cir. 1995) (holding that Eleventh Amendment bars federal court from ordering notice or declaratory relief in a suit against the state "unless it is ancillary to a judgment awarding prospective injunctive relief") (citing Green v. Mansour, 474 U.S. 64, 70-74 (1985)).
For example, Plaintiffs request that the Court declare that he has the right to continue to use the domain names lobobasketball. com and lobofootball. com and declare that he has the right to continue using terms and insignia concerning UNM athletics is not ancillary to his claim that Defendants retaliated against him by directing athletes and coaches not to talk to him and ceased press releases to him in retaliation for articles he published.
Rather, the right to use those domain names is a separate matter of trademark law.
Plaintiffs request for attorneys fees and for a declaration that Defendants actions were a retaliatory violation of his First Amendment right to free speech is ancillary to the prospective injunctive relief which he seeks and those claims may proceed as well. See Lawson v. Shelby Co., Tenn., 211 F.3d 331, 335 (6th Cir. 2000).
RULE 12(b)(6) MOTION
In ruling on a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim, the Court must accept as true all well-pleaded facts, as distinguished from conclusory allegations, and view those facts in the light most favorable to the nonmoving party. Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998).
Dismissal of a complaint pursuant to Rule 12(b)(6) will be upheld only if it appears beyond doubt that Plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Further, under Rule 12(b)(6), the Court has broad discretion in determining whether to consider materials outside of the pleadings, and if it chooses to consider such material, it must treat a motion to dismiss as a motion for summary judgment. See Lowe v. Town of Fairland, 143 F.3d 1378, 1381 (10th Cir. 1998).
If the court decides to convert a motion to dismiss into a summary judgment motion, it must provide notice to the opposing party and an opportunity for him to serve opposing affidavits. See Hall v. Bellmon, 935 F.2d 1106, 1110-11 (10th Cir. 1991).
In this instance, Defendants attached numerous exhibits to their motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). However, the Court will exercise its discretion and refuse to consider the motion in light of those exhibits. The exhibits which Defendants ask the Court to consider cannot result in judgment in their favor in any event because they do not support Defendants assertions. For example, Defendants contend that Plaintiffs websites are linked to pornographic websites and include a printed page from a site advertising Adult-Net, which states that it is powered by Plaintiffs company, American Information Services.
The Court would indicate the numbers of the Exhibits being discussed; however, most of the exhibit stickers are illegible on the photocopies which Defendants attached to their motion as exhibits.
However, none of Defendants exhibits show any connection between lobobasketball.com or lobofootball.com and Adult-Net other than their common genesis by American Information Services.
Similarly, Defendants assert that an arbitration with the National Arbitration Forum established that Plaintiff does not have the right to use the domain names lobobasketball. com or lobofootball. com. As Exhibit A in support of their Reply in support of their Rule 12(b)(6) motion, Defendants attach findings and a decision by the National Arbitration Forum that those domain names be canceled. However; Defendants provide no law to this Court regarding whether that finding is binding on this Court. Further, they do not indicate whether there is an appeal process for such findings. Another exhibit submitted by Defendants is the Declaration of Julie C. Weaks in support of Defendants complaint leading to the above mentioned arbitration.
That declaration is insufficient to be considered as an affidavit, as it is only partially based upon personal knowledge. Given the extremely limited utility of Defendants exhibits, the Court will limit its consideration of Defendants Rule 12(b)(6) motion to the pleadings and treat it solely as a motion to dismiss.
FIRST AMENDMENT
Defendants assert that the actions alleged by Plaintiff do not describe a violation of First Amendment Rights. Defendants state that government officials do not have to make available to journalists sources of information which are not available to members of the public generally, citing Pell v. Procunier, 417 U.S. 817, 834 (1974), among other cases.
They argue that Plaintiff has not alleged that the public had access to the press releases and information which he contends they deprived him of and, consequently, has not alleged a constitutional violation. Defendants further argue that the only claim which Plaintiff can assert is that he is not given access to information as early as others.
The First Amendment to the Constitution provides in part that
"Congress shall make no law . . . abridging the freedom of speech . . . or the right of the people peaceably to assemble."
These rights have long been made applicable to the states by the Fourteenth Amendment. Gitlow v. New York, 268 U.S. 652, 666 (1925) (speech); DeJonge v. Oregon, 299 U.S. 353, 364 (1937) (assembly).
Generally speaking, government action which chills constitutionally protected speech or expression contravenes the First Amendment. Wolford v. Lasater, 78 F.3d 484, 488 (10th Cir. 1996) (citing Riley v. National Federation of the Blind of North Carolina, 487 U.S. 781, 794 (1988); Gehl Group v. Koby, 63 F.3d 1528, 1534 (10th Cir. 1995)).
Plaintiffs allegations are sufficient to serve as the basis of a claim that Defendants retaliated against him for the exercise of his First Amendment right to free speech. To prevail on a claim of unconstitutional retaliation in violation of the First Amendment, a plaintiff must establish:
(1) he was engaged in constitutionally protected activity;
(2) the defendants actions caused him to suffer an injury that likely would chill a person of ordinary firmness from continuing to engage in that activity; and
(3) the defendants adverse action was substantially motivated as a response to the plaintiff's exercise of constitutionally protected conduct.
Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998); see Connell v. Signoracci, 153 F.3d 74, 79 (2d Cir. 1998) See, generally, Mt. Healthy City School Dist. Bd. of Education v. Doyle, 429 U.S. 274 (1977).
The fact that Plaintiff, as a member of the press, has no greater right to press releases than the general public is immaterial to the proper analysis in light of his allegation that he had been provided press releases early, at the same time as other media, but that Defendants ceased distributing the releases to him in retaliation for publishing articles unfavorable to them.
"An act taken in retaliation for the exercise of a constitutionally protected right is actionable under § 1983 even if the act, when taken for a different reason, would have been proper."
DeLoach v. Bevers, 922 F.2d 618, 620 (10th Cir. 1990) (citation omitted); See McBride v. Village of Michiana, 100 F.3d 457, 461 (6th Cir. 1996), (Even though individuals have not right to certain government benefits, those benefits may not be denied because of constitutionally protected speech) (citing Perry v. Sinderman, 408 U.S. 593, 597 (1972)).
In addition, Plaintiff claims that Defendants retaliated against him by discouraging coaches and athletes from talking to him. Those acts, which are not constitutional violations in themselves, are sufficient to state a claim for retaliation in violation of § 1983. Defendants motion will be denied with regard to Plaintiffs First Amendment claim.
IT IS THEREFORE ORDERED that Defendants Motion to Dismiss Pursuant to Rule 12(b)(1) filed May 22, 2000 (Docket No. 9) is granted in part and denied in part and Defendants Motion to Dismiss Pursuant to Rule 12(b)(6) filed May 22, 2000 (Docket No. 13) is denied.
Plaintiff has stated a claim that Defendants unconstitutionally retaliated against him in violation of his First Amendment right to free speech. This action will proceed with regard to that claim for a declaration that Defendants actions were unconstitutional, for injunctive relief preventing further such violations, and for attorneys fees.
All of Plaintiffs other claims are dismissed.