Dukes v. Ymca of Selma Dallas County et al

REPLY Brief

S.D. Ala.August 19, 2016

28086779 v1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA NORTHERN DIVISION TREBOR J. DUKES, Plaintiff, v. YMCA OF SELMA DALLAS COUNTY AND ANN MURRAY, IN OFFICIAL CAPACITY Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 2:16-cv-00381 DEFENDANT ANN MURRAY'S REPLY IN SUPPORT OF MOTION TO DISMISS COMES NOW Defendant Ann Murray, by and through the undersigned counsel, and submits this Reply in support of her Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set out below, Defendant Ann Murray’s Motion to Dismiss is due to be granted: ARGUMENT I. Additional Facts Contained in Plaintiff's Response to Defendant's Motion to Dismiss and Plaintiff's Affidavit Should Not Be Considered at This Stage. In responding to Defendant Murray's Motion to Dismiss, Plaintiff submitted an affidavit and alleged additional facts not contained in his Complaint. In ruling on a Rule 12(b)(6) motion to dismiss, courts limit "consideration to the pleadings and exhibits attached thereto." Thaeter v. Palm Beach Cnt. Sheriff's Office, 449 Case 2:16-cv-00381-CG-B Document 11 Filed 08/19/16 Page 1 of 10 28086779 v1 2 F.3d 1342, 1352 (11th Cir. 2006)(quoting Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000)). Court "will not consider supplemental and conclusory 'facts' injected into [a] plaintiffs' [r]esponse" to a motion to dismiss. Jones v. Kent Sales & Servs. Corp., 2012 U.S. Dist. LEXIS 13210 at *15 (N.D. Ala. 2012). Furthermore, a plaintiff cannot "amend his complaint through new allegations raised when responding to a motion to dismiss." Wennersten v. Commercial Diver Servs., N.A., 2012 U.S. Dist. LEXIS 109466 at *2 n.1 (S.D. Fla. 2012). To the extent Plaintiff is attempting to convert Defendant Murray's Motion to Dismiss to a Motion for Summary Judgment, submission of his affidavit fails to do so. Lewis v. State Farm Fire & Cas. Co., 2011 U.S. Dist. LEXIS 47443 at *12 n.3 (S.D. Ala. 2011)("[T]he non-moving parties have attached the affidavit to their response in opposition apparently under 'the erroneous notion that including extraneous materials in opposition to [the] [d]efendant['s] motion forces the Court to treat the motion as one for summary judgment.")(quoting Ranch Realty, Inc. v. DC Ranch Realty, LLC, 614 F.Supp.2d 983, 988 (D. Ariz. 2007)). Based on the foregoing, the additional facts stated in Plaintiff's affidavit and within his Response to Defendant's Motion to Dismiss should not be considered at this stage. Case 2:16-cv-00381-CG-B Document 11 Filed 08/19/16 Page 2 of 10 28086779 v1 3 II. Plaintiff Has Failed to Allege a Claim Against Defendant Murray in Her Individual Capacity, and the Claims Against Defendant Murray in Her Official Capacity are Due to Be Dismissed. In support of his argument that he has stated a claim against Defendant Murray, Plaintiff cites Reeves v. Sanderson Plumbing Prods., 530 U.S. 133 (2000), McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and the Deputy Attorney General's Sept. 9, 2015 memorandum on Individual Accountability for Corporate Wrongdoing. None of these are in any way responsive to Defendant Murray's argument that the claims against her in her official capacity are due to be dismissed, and none support Plaintiff's argument that he has stated a claim against Defendant Murray in her individual capacity. In Reeves, the Supreme Court addressed the issue of "the kind and amount of evidence necessary to sustain a jury's verdict that an employer unlawfully discriminated on the basis of age." 530 U.S. at 137. Plaintiff has not alleged any age discrimination claim under federal or state law, and Reeves nowhere addresses the liability of individual officers or supervisors, whether in their official or individual capacity, under Title VII, § 1981, or § 1983. See id. Likewise, McDonnell Douglas never addresses the issue of liability of an officer or supervisor, whether in their individual or official capacity, much less what is required to allege an individual capacity or official capacity claim. See 411 U.S. 792. Case 2:16-cv-00381-CG-B Document 11 Filed 08/19/16 Page 3 of 10 28086779 v1 4 Plaintiff's reliance on the Deputy Attorney General's memorandum is also inapposite. The memorandum was directed towards "corporate investigations . . . in the aftermath of the financial crisis," and deals specifically with federal investigations into corporate misconduct. See Individual Accountability for Corporate Wrongdoing, Sept. 9, 2015, p. 1-2. One purpose of the investigations which are the subject of the memo is to "return government money to the public fisc (sic)." Id. at p. 6. Here, there is no government investigation and no allegation of corporate misconduct warranting the return of money to the public. Moreover, the memorandum nowhere addresses the liability of individuals for alleged racial discrimination and retaliation. See id. Not only does Plaintiff cite no case law or authority actually supporting his argument, but nowhere in Plaintiff's Complaint does he contend he is suing Defendant Murray in her individual capacity. In fact, his Complaint states the opposite. Defendant Murray is specifically listed in her "official capacity" in the caption of the Complaint, and Plaintiff specifically states, "Defendant, Ann Murray . . . is being sued in her official capacity." [Doc. 1-1, p. 7, ¶ 3]. Plaintiff further alleges Defendant Murray acted "in her capacity as Executive Director" of the YMCA. [Doc. 1-1, p. 8, ¶ 7]. Based upon the foregoing, the claims against Defendant Murray are due to be dismissed in their entirety because the official Case 2:16-cv-00381-CG-B Document 11 Filed 08/19/16 Page 4 of 10 28086779 v1 5 capacity claims are duplicative of those alleged against the YMCA, and Plaintiff has failed to allege a claim against Defendant Murray in her individual capacity. III. Defendant Murray Cannot Be Held Liable in Her Individual Capacity Under Title VII or § 1983. Even if Plaintiff had named Defendant Murray in her individual capacity, which he has not, his claims under Title VII and § 1983 would still warrant dismissal because there is no individual liability under Title VII, and, as stated in the Complaint, Defendant Murray was not a state actor as required for liability under § 1983. A. There is No Individual Liability under Title VII. Courts in the Eleventh Circuit have consistently held "[i]ndividual capacity suits under Title VII are . . . inappropriate." Powell v. Am. Remediation & Envtl., Inc., 618 Fed. Appx. 974, 977 n.4 (11th Cir. 2015)(quoting Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991)). Instead, "[t]he relief granted under Title VII is against the employer, not individual employees whose actions would constitute a violation of the Act." Id. (quoting Busby, 931 F.2d 764); see also Betts v. Conecuh Cnty Bd. of Educ., 2014 U.S. Dist. LEXIS 178587 at *8 (S.D. Ala. 2014). 1 Thus, to the extent Plaintiff contends he has named Defendant Murray in 1 This rule is not limited to public employers. Dearth v. Collins, 441 F.3d 931, 933 (11th Cir. 2006)("As the district court correctly recognized, there is nothing in Title VII, Hinson, Busby, or anywhere else in our precedent that suggests that Title VII's limitation of liability to employers is applicable only in situations where the employer is a public entity."). Case 2:16-cv-00381-CG-B Document 11 Filed 08/19/16 Page 5 of 10 28086779 v1 6 her individual capacity, Plaintiff's Title VII claim against Defendant Murray is still due to be dismissed. B. Defendant Murray Cannot Be Held Liable in Any Capacity under § 1983. To state a claim under § 1983, a plaintiff "must show that he was deprived of a right secured by the Constitution or laws of the United States, and that the person who committed the alleged deprivation acted under color of state law." Fleming v. Barber, 2008 U.S. Dist. LEXIS 54966 at *13 (N.D. Fla. 2008)(citing Focus on the Family v. Pinellas Suncoast Transit Authority, 344 F.3d 1263, 1277 (11th Cir. 2003). Given this standard, "only in rare circumstances can a private party be viewed as a 'state actor' for Section 1983 purposes." Id. (quoting Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992)). In other words, "the party charged with the deprivation must be a person who may fairly be said to be a state actor." American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999). For the reasons set out below, Defendant Murray is not, and cannot be said to be, a state actor. "There are three primary tests for evaluating whether a private individual may be considered a state actor: '(1) the public function test; (2) the state compulsion test; and (3) the nexus/joint action test.'" Fleming, 2008 U.S. Dist. LEXIS 54966 at *27-28 (quoting Nat'l Broad. Co. v. Communications Workers of America, 860 F.2d 1022, 1026 (11th Cir. 1988)). The public functions test is met only for activities that are "traditionally the exclusive prerogative of the state." Id. Case 2:16-cv-00381-CG-B Document 11 Filed 08/19/16 Page 6 of 10 28086779 v1 7 The state compulsion tests looks at whether the state "has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed that of the state." Blum v. Yaretsk, 457 U.S. 991, 1004 (1982). The nexus/joint action test is only met where the state "so far insinuated itself into a position of interdependence with the [private party] that it was a joint participant in the enterprise." Nat'l Broad. Co., 860 F.2d at 1027-26. Other than making the conclusory allegation that "[t]he officers said conduct was under color of state law," Plaintiff makes no allegations that Defendant Murray was a state actor in his Complaint. On the contrary, Plaintiff alleges that the YMCA is a non-profit corporation and Defendant Murray is its Executive Director. Plaintiff alleges absolutely no facts which would warrant holding Defendant Murray liable as a state actor under the public function test, state actor test, or nexus/joint action test. Therefore, to the extent Plaintiff contends he has named Defendant Murray in her individual capacity or official capacity, his § 1983 claim against Defendant Murray is still due to be dismissed. IV. Venue is Proper in This Court. While Plaintiff has not filed a motion seeking a transfer of venue, he briefly mentions in his Response to Defendant Murray's Motion to Dismiss that "he does take exception to the venue issue, as the Middle District of Alabama is a more convenient forum." [Doc. 10, p. 6]. Plaintiff filed this action in the Circuit Court Case 2:16-cv-00381-CG-B Document 11 Filed 08/19/16 Page 7 of 10 28086779 v1 8 of Dallas County, Alabama, and Defendants subsequently and properly removed the action to this Court pursuant to 29 U.S.C. § 1441. [Doc. 1]. Section 1441, therefore, governs venue for this removed action. See Cahaba Disaster Recovery, LLC v. DRC Emergency Servs., LLC, 2015 U.S. Dist. LEXIS 172769 at *15 (N.D. Ala. 2015)("28 U.S.C. § 1441(a), not § 1391, governs venue of removed actions.") Pursuant to 28 U.S.C. § 1441(a), "any civil action brought in a State court of which the district courts of the United states have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a); see also Cahaba Disaster Recovery, 2015 U.S. Dist. LEXIS 172769 at *15 (denying motion to transfer venue because case was filed in Jefferson County, Alabama and "the Northern District of Alabama is the proper district embracing the Circuit Court of Jefferson County."). Plaintiff filed his action in Dallas County, which sits in the Northern Division of the Southern District of Alabama. See Court Locations, www.alsd.uscourts.gov/court- info/court-locations. Therefore, pursuant to 28 U.S.C. § 1441(a), venue is proper in the Southern District of Alabama. Case 2:16-cv-00381-CG-B Document 11 Filed 08/19/16 Page 8 of 10 28086779 v1 9 CONCLUSION For the foregoing reasons, as well as the reasons set forth in Defendant Murray's Motion to Dismiss, Defendant Murray respectfully requests that each of Plaintiff's claims against her be dismissed with prejudice. Respectfully submitted, /s/ Kathryn M. Willis Kathryn M. Willis Meghan N. Cox Attorneys for Defendants YMCA OF SELMA-DALLAS COUNTY AND ANN MURRAY OF COUNSEL: BURR & FORMAN LLP 11 North Water Street Suite 22200 Mobile, AL 36602 Tel: 251-344-5151 Fax: 251-344-9696 Email: kwillis@burr.com 420 North 20th Street, Suite 3400 Birmingham, Alabama 35203 Tel: 205-251-3000 Fax: 205458-5100 Email: mcox@burr.com Case 2:16-cv-00381-CG-B Document 11 Filed 08/19/16 Page 9 of 10 28086779 v1 10 CERTIFICATE OR SERVICE I hereby certify that a copy of the foregoing has been served on counsel of record herein via CM/ECF, email, fax or First Class U.S. Mail, on this the 19th day of August, 2016, as follows: Danny W. Crenshaw Dawn M. Oliver CRENSHAW LAW FIRM 1425 J.L. Chestnut Blvd. Selma, AL 36703 crenshawlaw@att.net /s/ Kathryn M. Willis Of Counsel Case 2:16-cv-00381-CG-B Document 11 Filed 08/19/16 Page 10 of 10