Mcdaniel v. Dekalb County Watershed

REPLY BRIEF re MOTION to Dismiss

N.D. Ga.May 16, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION NAYMON MCDANIEL, Plaintiff, v. DEKALB COUNTY WATERSHED DEPARTMENT, and ALLEN MOORE (INDIVIDUALLY), Defendants. ______________________________ CIVIL ACTION FILE NO. 1:16-CV-4596-SCJ-CMS DEFENDANTS’ REPLY BRIEF IN SUPPORT OF THEIR MOTION TO DISMISS COME NOW, Defendants DeKalb County Watershed Department (“Watershed Department”) and Allen Moore, in his individual capacity, (collectively, “Defendants”), by and through their undersigned counsel, and file this Reply Brief in Support of their Motion to Dismiss Plaintiff’s Complaint. INTRODUCTION Plaintiff’s Response in Opposition to Defendants’ Motion to Dismiss (“Plaintiff’s Response” or “Response”) (Doc. 18) is insufficient to undermine Defendants’ argument that the Complaint should be dismissed, in its entirety, because the Complaint fails to state a claim against Defendants upon which relief Case 1:16-cv-04596-SCJ-CMS Document 19 Filed 05/16/17 Page 1 of 8 2 can be granted. Specifically, as detailed in Defendants’ Memorandum of Law in Support of their Motion to Dismiss (“Defendants’ Brief in Support of MTD”) (Doc. 15-1), the DeKalb County Department of Watershed Management is not an entity capable of being sued and this Court lacks subject matter jurisdiction as to the claims against Defendant Allen Moore because individual capacity FMLA claims are not cognizable against individual public officials in the Eleventh Circuit. Additionally, Plaintiff’s claims should be dismissed for insufficient service of process. For the reasons set forth herein and in Defendants’ Brief in Support of their MTD, Plaintiff’s Complaint must be dismissed in its entirety. ARGUMENT AND CITATIONS TO AUTHORITY I. The DeKalb County Watershed Department is Not an Entity Capable of Being Sued As stated in Defendants’ Brief in Support of their MTD, in federal court, the capacity of an entity to be sued is determined by the law of the state where the court is located. Fed. R. Civ. P. 17(b)(3). Georgia law is well settled that absent a special act by the General Assembly, non-legal entities, such as school boards and departments of local governments are not entities with the capacity to be sued. See Cook v. Colquitt County Bd. of Educ., 261 Ga. 841 (1992); Tidwell v. Coweta County Bd. of Educ., 240 Ga. App. 55 (1999); Brownlee v. Dalton Bd. of Water, 59 Ga. App. 538 (1939). Case 1:16-cv-04596-SCJ-CMS Document 19 Filed 05/16/17 Page 2 of 8 3 There is no special act conferring the capacity to be sued upon the DeKalb County Watershed Department. Plaintiff, in his Response, has not cited to a single case, or act, to the contrary. Much of Plaintiff’s Response is dedicated to the argument that DeKalb County Watershed Department is not entitled to Eleventh Amendment immunity. Defendants will not address this argument, as it is a straw man invented by Plaintiff--Defendants never contended that the Watershed Department was an arm of the state or entitled to Eleventh Amendment immunity. However, Defendants will briefly address what Plaintiff identifies as an important case. Plaintiff relies upon the case of Mt. Healthy Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977), as the “seminole [sic] case announcing that school boards and local government departments do not escape liability by way of immunity.” (Response, Doc. 18, p. 2). It is worth noting that the Court relied upon Ohio law in reaching this determination. Again, Defendants have not asserted in their Motion to Dismiss Plaintiff’s Complaint (Doc. 15) or their Brief in Support of their MTD that the DeKalb County Watershed Department is entitled to immunity. Rather, Defendants assert that as a matter of clearly established law in the state of Georgia, the DeKalb County Department of Watershed is not an entity capable of being sued Case 1:16-cv-04596-SCJ-CMS Document 19 Filed 05/16/17 Page 3 of 8 4 - an assertion that Plaintiff has not rebutted with relevant case law or identification of a special act by the General Assembly. As stated in Defendants’ Brief in Support of their MTD, departments and divisions within DeKalb County are merely departments and divisions, and not natural persons, partnerships, or artificial persons capable of either suing or being sued as recognized by the laws of the State of Georgia. Lovelace v. DeKalb Cent. Probation, 144 Fed. Appx. 793, 795 (11th Cir. 2005). As such, Plaintiff’s claims against the DeKalb County Watershed Department should be dismissed as a matter of law because it is not a legal entity capable of being sued. II. FMLA Claims are not Cognizable Against Public Officials, in their individual capacities, in the Eleventh Circuit Allen Moore was sued in his individual capacity, only, as apparent on the face of the Complaint. As detailed in Defendants’ Brief in Support of their MTD, in Wascura v. Carver, 169 F. 3d 683 (1999), the Eleventh Circuit Court of Appeals held: that a public official sued in his or her individual capacity is not an 'employer' under the FMLA, and therefore there is no federal subject matter jurisdiction over such a claim. The district court should have dismissed the FMLA claim insofar as it is asserted against the defendants in their individual capacities. Wascura v. Carver, 169 F.3d 683, 687 (1999); see also Dawkins v. Fulton County Government, 733 F. 3d 1084, 1090 (2013)(in accordance with Wascura, public Case 1:16-cv-04596-SCJ-CMS Document 19 Filed 05/16/17 Page 4 of 8 5 officials sued in an individual capacity were not employers subject to individual liability under the FMLA) and Mumphrey v. Fulton County Government, 2008 WL 1722256, *6 (N.D. Ga. 2008)(individual capacity claims against public officials under the FMLA should be dismissed under Wascura). In his Response, Plaintiff cites to Wascura for the definition of employer under the FMLA. There is no question as to the Eleventh Circuit Court’s holding in Wascura and pursuant to that holding, which is controlling in this circuit, Plaintiff’s Complaint against Defendant Allen Moore should be dismissed in its entirety for lack of subject matter jurisdiction. III. Plaintiff’s Claims Should Be Dismissed For Insufficient Service of Process Defendants will not dwell upon this point, because the grounds discussed above are sufficient to require dismissal. However, Ms. Blair-Muhammad is not an agent authorized to receive service on behalf of Defendant Allen Moore or DeKalb County Watershed Department. Stating that Ms. Blair-Muhammed is an authorized agent does not make it so. Plaintiff has failed to serve Defendants in accordance with Fed. R. Civ. P. 4(e) and as such, Plaintiff’s Complaint should be dismissed. CONCLUSION Contrary to Plaintiff’s assertion that the Defendants’ Motion to Dismiss and Brief in Support thereof were filed for the sole purpose of delay, the same were filed Case 1:16-cv-04596-SCJ-CMS Document 19 Filed 05/16/17 Page 5 of 8 6 because Plaintiff has failed to state a claim against Defendants upon which relief can be granted, and failed to properly serve Defendants, as detailed in their Brief in Support of their MTD and herein. As such, Defendants respectfully request that Plaintiff’s Complaint be dismissed in its entirety. Respectfully submitted this 16th day of May, 2017. LAURA K. JOHNSON DEPUTY COUNTY ATTORNEY Georgia Bar No. 392090 TIFFANY B. HARLOW ASSISTANT COUNTY ATTORNEY Georgia Bar No. 141386 /s/ Nicole W. Aigner NICOLE WARE AIGNER ASSISTANT COUNTY ATTORNEY Georgia Bar No. 268564 Attorneys for Defendants PLEASE ADDRESS ALL COMMUNICATIONS TO: Nicole W. Aigner Assistant County Attorney 1300 Commerce Drive, 5th Floor Decatur, GA 30030 (404) 371-3011 nwaigner@dekalbcountyga.gov Case 1:16-cv-04596-SCJ-CMS Document 19 Filed 05/16/17 Page 6 of 8 7 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION NAYMON MCDANIEL, Plaintiff, v. DEKALB COUNTY (WATERSHED), AND ALLEN MOORE (INDIVIDUALLY), Defendants. ______________________________ CIVIL ACTION FILE NO. 1:16-CV-4596-SCJ-CMS CERTIFICATE OF SERVICE AND CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 5.1 I certify that on May 16, 2017, I electronically filed the DEFENDANTS REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS with the Clerk of Court using the CM/ECF system, which will automatically send e-mail notification of such filing to the following attorney of record: Sadiqa Banks Banks Law, P.C. 4062 Peachtree Road, Suite A420 Atlanta, Georgia 30319 I further certify that the foregoing document was prepared using 14 point Times New Roman font, one of the font and point selections approved by the Court in N.D. Ga. L.R. 5.1(C). Case 1:16-cv-04596-SCJ-CMS Document 19 Filed 05/16/17 Page 7 of 8 8 This 16th day of May, 2017. /s/ Nicole W. Aigner NICOLE WARE AIGNER ASSISTANT COUNTY ATTORNEY Georgia Bar No. 268564 Attorneys for Defendants Case 1:16-cv-04596-SCJ-CMS Document 19 Filed 05/16/17 Page 8 of 8