Gray v. Arkansas Game And Fish Commission

MOTION to Dismiss for Lack of Jurisdiction

W.D. Ark.July 11, 2017

1 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS - FORT SMITH DIVISION MICHAEL D. GRAY PLAINTIFF v. 2:17-cv-02100-PKH ARKANSAS GAME AND FISH COMMISSION DEFENDANT MOTION TO DISMISS COMPLAINT COMES NOW the Arkansas Game and Fish Commission (“AGFC” or the “Commission”), by and through its undersigned counsel, and for its Motion to Dismiss Complaint pursuant to Fed. R. Civ. P. 12(b)(1) (lack of subject matter jurisdiction due to AGFC’s Eleventh Amendment immunity), 12(b)(5) (insufficient service of process), and 12(b)(6) (failure to state a claim), states as follows: 1. AGFC is a constitutionally-created agency of the State of Arkansas. See Ark. Const. amend 35; Doc. 1, ¶ 2. 2. As an agency of the State, AGFC, under the Eleventh Amendment to the U.S. Constitution, generally enjoys sovereign immunity from suit brought in federal courts by private parties. See U.S. Const. amend. XI; Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (holding that “in the absence of consent a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment”); Monroe v. Arkansas State Univ., 495 F.3d 591, 594 (8th Cir. 2007) (holding that the Eleventh Amendment “bars suit against the [State entity] for any kind of relief, not merely monetary damages,” including injunctive relief) (emphasis added). Similarly, it is generally immune from suit in Arkansas state courts. See Ark. Const. art. 5, § 20 (“The State of Arkansas shall never be made a defendant in any of her courts.”); Arkansas Game & Fish Comm’n v. Eddings, 2011 Ark. Case 2:17-cv-02100-PKH Document 9 Filed 07/11/17 Page 1 of 5 PageID #: 24 2 47, 5, 378 S.W.3d 694, 697 (2011) (holding that AGFC is a representative of the State that is entitled to assert the defense of sovereign immunity). 3. Plaintiff’s Complaint alleges that AGFC discriminated against him on the basis of a disability when it terminated his employment on April 20, 2016. Doc. 1, ¶ 12. Plaintiff seeks relief under Title II of the Americans with Disabilities Act of 2009 (the “ADA”) (42 U.S.C. § 12132) or, alternatively, under Title I of the ADA (42 U.S.C. § 12112). Doc. 1, ¶ 3. Plaintiff requests a judgment for reinstatement of his employment, various compensatory damages totaling at least $500,000, and punitive damages, plus costs and a reasonable attorney’s fee. Doc. 1, ¶¶ 29-30, Prayer. 4. Pursuant to Fed. R. Civ. P. 12(b)(1) (lack of subject matter jurisdiction), this Court must dismiss Plaintiff’s Complaint in its entirety with prejudice because Eleventh Amendment immunity specifically bars Plaintiff’s ADA Title I and Title II claims against AGFC. See Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 368, 374 (2001) (holding, in the context of a Title I claim, that in enacting the ADA Congress failed to validly abrogate the States’ Eleventh Amendment immunity); Alsbrook v. City of Maumelle, 184 F.3d 999, 1010 (8th Cir. 1999) (en banc), cert. granted, 528 U.S. 1146, and dismissed, 529 U.S. 1001 (2000) (holding that Congress failed to validly abrogate the States’ Eleventh Amendment immunity from ADA Title II claims); Trickey v. Selig, No. 4:12-CV-285-DPM, 2012 WL 3245956, at *1 (E.D. Ark. Aug. 8, 2012) (concluding that Garrett’s “constitutional bar is no less present against a Title II employment-discrimination claim”) (citing Clifton v. Georgia Merit System, 478 F. Supp. 2d 1356, 1368 (N.D. Ga. 2007) (“[T]he Supreme Court’s holding in Garrett that the legislative record of the ADA simply fails to show that Congress did in fact identify a pattern of irrational state discrimination in employment against the disabled is equally Case 2:17-cv-02100-PKH Document 9 Filed 07/11/17 Page 2 of 5 PageID #: 25 3 applicable to employment[-]discrimination claims under Title I and Title II of the ADA.”) (quotation and alteration omitted); Klingler v. Director, Dep’t of Revenue, State of Missouri, 455 F.3d 888 (8th Cir. 2006) (Title II abrogation analysis); Phiffer v. Columbia River Correctional Institute, 384 F.3d 791, 793 (9th Cir. 2004) (O’Scannlain, J., concurring)). 5. Pursuant to Fed. R. Civ. P. 12(b)(6), this Court alternatively must dismiss with prejudice Plaintiff’s ADA Title II claim for failure to state a claim. The overwhelmingly prevailing view of the circuits is that, unlike ADA Title I, Title II simply does not create a cause of action for employment discrimination. See Reyazuddin v. Montgomery Cty., Maryland, 789 F.3d 407, 420 (4th Cir. 2015) (collecting cases from the Second, Third, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits and noting that only the Eleventh Circuit has held that Title II applies to employment discrimination); Taylor v. City of Shreveport, 798 F.3d 276, 282-83 (5th Cir. 2015); but see Bradley v. Little Rock Wastewater Util., 517 F. App’x 530, 533 (8th Cir. 2013) (unpublished) (noting that the Eighth Circuit “has not decided whether Title II applies to employment discrimination cases filed against public employers, and the circuits that have addressed this question are split”). Therefore, even if the Garrett analysis and Eleventh Amendment immunity do not extend to an ADA Title II claim (and they do), Plaintiff simply cannot state his employment discrimination claim against AGFC under Title II. 6. Pursuant to Fed. R. Civ. P. 12(b)(6), this Court alternatively must dismiss with prejudice Plaintiff’s request for punitive damages on his ADA claims against AGFC. See Barnes v. Gorman, 536 U.S. 181, 189-90 (2002); Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 784-85 (2000) (noting the traditional “presumption against imposition of punitive damages on government entities”). Case 2:17-cv-02100-PKH Document 9 Filed 07/11/17 Page 3 of 5 PageID #: 26 4 7. Pursuant to Fed. R. Civ. P. 12(b)(5), this Court must dismiss Plaintiff’s Complaint in its entirety for insufficient service of process. On June 20, 2017, Plaintiff purported to serve upon AGFC by certified mail a copy of a summons and Plaintiff’s Complaint, which was filed on June 16, 2017. Docs. 1, 6. The service mailing was addressed to James Goodhart. Doc. 6, ¶ 3. Plaintiff’s attempted service was deficient because Mr. Goodhart is AGFC General Counsel, not the chief executive officer of AGFC. See Fed. R. Civ. P. 4(j)(2) (requiring that service be made upon the chief executive officer of a state-created governmental organization or otherwise in compliance with state law); Ark. R. Civ. P. 4(d)(7) (requiring that service be made upon the chief executive officer of a government agency). 8. A Memorandum in Support of this Motion to Dismiss Complaint is being filed simultaneously with this motion and is incorporated herein by reference. 9. To the extent all or part of this motion is denied, AGFC reserves the right to file an answer and otherwise plead; to plead any and all applicable immunities or defenses found in Federal Rule of Civil Procedure 8(c) or other applicable rules or laws, including but not limited to, Eleventh Amendment immunity, absolute immunity, qualified immunity, statutory immunity, punitive damages immunity, sovereign immunity, legitimate and non-discriminatory justification, at-will employment, after-acquired evidence, after-discovered misconduct, statutory damages limitation, unclean hands, estoppel, Plaintiff’s own conduct, same-decision defense, business-judgment rule, failure to exhaust administrative remedies, and failure to mitigate damages; and to file such other pre-trial and dispositive motions as discovery and circumstances may warrant. WHEREFORE, Defendant Arkansas Game and Fish Commission moves this Honorable Court for an Order dismissing Plaintiff’s Complaint against it with prejudice in accordance with Case 2:17-cv-02100-PKH Document 9 Filed 07/11/17 Page 4 of 5 PageID #: 27 5 Fed. R. Civ. P. 12(b)(1) (lack of subject matter jurisdiction), 12(b)(5) (insufficient service of process), and 12(b)(6) (failure to state a claim); for its attorneys’ fees and costs in connection with filing this Motion to Dismiss Complaint and Memorandum in Support; and for all other just and proper relief to which it is entitled. Respectfully submitted, Arkansas Game and Fish Commission Defendant By: /s/ John P. Marks James F. Goodhart, ABA #92080 John P. Marks, ABA #2003132 ARKANSAS GAME AND FISH COMMISSION Legal Division 2 Natural Resources Drive Little Rock, AR 72205 Tele: (501) 223-6327 Fax: (501) 223-6463 Email: james.goodhart@agfc.ar.gov Email: john.marks@agfc.ar.gov Attorneys for Defendant Arkansas Game and Fish Commission CERTIFICATE OF SERVICE I hereby certify that on this 11th day of July, 2017, I electronically filed the foregoing with the Clerk of Court using the CM/ECF System, which will send notification of such filing to all CM/ECF participating counsel of record below: Thomas W. Mickel Dustin Chapman Brooklyn Parker MICKEL & CHAPMAN 1319 Main Street Conway, AR 72034 Phone: 501-328-5500 Fax: 501-499-9841 /s/ John P. Marks John P. Marks, ABA #2003132 Attorney for Defendant Arkansas Game and Fish Commission Case 2:17-cv-02100-PKH Document 9 Filed 07/11/17 Page 5 of 5 PageID #: 28