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Tisdale v. Wilson

United States District Court, Middle District of Alabama, Northern Division

June 2, 2014

JOHN W. TISDALE, JR., Plaintiff,
BLAINE WILSON, et al., Defendants. JOHN W. TISDALE, JR., Plaintiff,



Before the court is Defendant Blaine Wilson’s motion to dismiss (Doc. # 5) pursuant to Federal Rule of Civil Procedure 12(b)(6).[1] Plaintiff John W. Tisdale, Jr., filed a response in opposition to the motion. (Doc. # 7.) For the reasons that follow, the motion is due to be granted in part and denied in part.


Subject-matter jurisdiction is proper pursuant to 28 U.S.C. § 1332(a). Personal jurisdiction and venue are not contested.


When evaluating a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must take the facts alleged in the complaint as true and construe them in the light most favorable to the plaintiff. Resnick v. AvMed, Inc., 693 F.3d 1317, 1321–22 (11th Cir. 2012). To survive Rule 12(b)(6) scrutiny, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[F]acial plausibility” exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).


Plaintiff filed this diversity lawsuit, see § 1332(a), after the court denied his untimely and prejudicial motion for leave to amend the complaint in a previously filed, but related, action. See Tisdale v. Wilson (Tisdale I), No. 12cv837 (M.D. Ala. Feb. 4, 2014) (Order denying motion to amend the complaint for a third time). The claims in this action (Tisdale II) are the claims that Plaintiff was not permitted to assert in Tisdale I in a Third Amended Complaint.

Some background of the pleadings in Tisdale I and Tisdale II is helpful for resolution of Defendant’s motion to dismiss. In the operative Second Amended Complaint, filed June 5, 2013, in Tisdale I, Plaintiff, a real estate developer in Covington County, Alabama, alleges that in August 2012, Defendant Wilson decided to run for mayor of the City of Andalusia, Alabama. During his campaign, at a public meeting Defendant allegedly made false statements about Plaintiff, insinuating that Plaintiff entered into a corrupt deal with the City of Andalusia. The deal, according to Defendant, included the City’s purchase of the Bass Building at a grossly inflated price with a requirement that Plaintiff use one-half of the sale proceeds to renovate the Prestwood Building in Andalusia. But allegedly in exchange for Plaintiff’s support of the incumbent mayor, including the posting of the mayor’s campaign signs on Plaintiff’s properties, the City subsequently overlooked Plaintiff’s failure to make improvements to the Prestwood Building and refrained from enforcing the City’s nuisance laws against Plaintiff. Defendant’s comments at the public meeting resulted in a heated exchange between Plaintiff, Defendant, and the incumbent mayor. Information about this exchange appeared in the Andalusia Star-News in August 2012. Defendant also placed information about it on his Facebook page in August 2012 and made additional similar comments about Plaintiff during a speech given the same month. Parts of the speech were replayed on Defendant’s television station, W40BE, in Andalusia. Plaintiff claims that these statements were false and hurt his professional reputation.

In Tisdale II, filed on April 11, 2014, Plaintiff goes back in time to June and July 2012, alleging that Defendant Wilson “began making defamatory comments about [him] and his properties on Facebook before numerous viewers.” (Compl. ¶ 9.) Those comments concerned a deal between the City and Plaintiff for an exchange of properties for the purpose of the City’s development of an entertainment district. Defendant’s insinuation again was that Plaintiff and the City were in cahoots, that Plaintiff was making a sizeable profit at the expense of the City, and that the City continued to overlook enforcement of nuisance laws against Plaintiff. In Tisdale II, Plaintiff also fast forwards to January 2013 and September 2013, when Defendant allegedly posted negative comments on his Facebook page about other property Plaintiff owned. In the January post, Defendant called Plaintiff a “greedy soul” in connection with Plaintiff’s alleged overpricing of lots in a subdivision he developed in Andalusia, and in the September post, Defendant called Plaintiff a “bastard” and falsely accused Plaintiff of not paying workers’ compensation benefits that were owed. (Compl. ¶¶ 20, 21.) Plaintiff also makes other allegations that in November 2013, a state employee, who is Defendant’s “close friend, ” removed signs from Plaintiff’s property in Andalusia and that Defendant watched from a distance in a parked car. (Compl. ¶¶ 39–41.)

The causes of action in Tisdale I and II are the same. They are state-law causes for defamation, intentional interference with business relations, and wantonness. Plaintiff and Defendant also are parties in both actions. Tisdale I includes an additional Defendant, Three Notch Communications, LLC, which operates a local radio and television station in Andalusia, and is owned by Defendant Wilson.


Defendant argues, first, that Plaintiff has filed this lawsuit “to harass Defendant . . . in a blatant attempt to circumvent the parallel proceedings” and contends that dismissal is appropriate to prevent Plaintiff “from pursuing this multiplicative and vexatious litigation.” (Doc. # 5, at 1–2.) Alternatively, Defendant moves for dismissal for failure to state a claim upon which relief can be granted. Plaintiff opposes the motion on both grounds. Each ground is addressed in turn.

A. Duplicative Litigation

Although Defendant cites no case law to support its argument, the Eleventh Circuit has recognized that, “as between federal district courts, . . . the general principle is to avoid duplicative litigation.” I.A. Durbin, Inc. v. Jefferson Nat’l Bank, 793 F.2d 1541, 1551 (11th Cir. 1986) (quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)). “Although no precise test has been articulated for making this determination, the general rule is that a suit is duplicative of another suit if the parties, issues and available relief do not significantly differ between the two actions.” Id. To this end, “[t]rial courts are afforded broad discretion in determining whether to stay or dismiss litigation in order to avoid duplicating a proceeding already pending in another federal court.”[2]Id.

The Ninth Circuit’s decision in Adams v. California Department of Health Services, 487 F.3d 684 (9th Cir. 2010), overruled on other grounds by Taylor v. Sturgell, 553 U.S. 880, 904 (2008)), also is instructive. In Adams, the Ninth Circuit recognized, consistent with the Eleventh Circuit, that district courts have considerable discretion in deciding how to handle duplicative litigation. It explained that a district court has discretion “to dismiss a duplicative later-filed action, to stay that action pending resolution of the previously filed action, to enjoin the parties from proceeding with it, or to consolidate both actions.” Id. at 688.

Adams bears similarities to Tisdale’s predicament. In Adams, the plaintiff, who was challenging a state agency’s decision not to hire her, moved to amend her complaint to add new claims more than three months after the deadline for amendment. The district court denied the plaintiff’s motion to amend for failure to show “good cause for the undue delay in seeking leave to amend” and on the basis that the amendment would prejudice the defendants. Id. at 687. “[I]n an attempt to avoid the consequences of her own delay and to circumvent the district court’s denial of her untimely motion, ” the plaintiff then filed a second lawsuit that “set forth the four additional claims she had sought to add by her previously denied motion for leave to amend her complaint in the first case.” Id. The Ninth Circuit affirmed the district court’s dismissal of the second lawsuit on grounds that it duplicated the first. See Id . at 688.

The Ninth Circuit explained that “‘the fact that plaintiff was denied leave to amend does not give h[er] the right to file a second lawsuit based on the same facts.”’ Id. (quoting Hartsel Springs Ranch of Col., Inc. v. Bluegreen Corp., 296 F.3d 982, 989 (10th Cir. 2002)). “Plaintiffs generally have no right to maintain two separate actions involving the same subject matter at the same time in the same court and against the same defendant.” Id. To decide whether the plaintiffs’ two lawsuits were duplicative, the court borrowed from the test for claim preclusion: “[I]n assessing whether the second action is duplicative of the first, we examine whether the causes of action and relief sought, as well as the parties or privies to the action, are the same.” Id. at 688–89. The Ninth Circuit set out a two-part analysis.

First, it adopted the transaction test to decide whether successive causes of action are the same. “Whether two events are part of the same transaction or series depends on whether they are related to the same set of facts and whether they could conveniently be tried together.” Id. at 689. Several criteria are relevant to the application of the transaction test, including “whether substantially the same evidence is presented in the two actions, ” and “whether the two suits arise out of the same transactional nucleus of facts.” Id. (citation and internal quotation marks omitted). The latter criteria “is the most important.” Id. (citation and internal quotation marks omitted). Second, a court must “examine whether . . . the parties or privies to the action[ ] are the same.” Id. The Ninth Circuit indicated, however, that if the events in the second suit occurred after the filing of the complaint in the first suit so that the plaintiff did not have a “full and fair opportunity” to litigate the claims in the first suit, then dismissal may not be appropriate. Id. at 692.

The Ninth Circuit’s reasoning in Adams is applicable, persuasive, and not contrary to the Eleventh Circuit general pronouncements in I.A. Durbin, and, thus, will be applied to this action.

Here, the second part of the test is satisfied easily because the parties in Tisdale II also are parties in Tisdale I. The first part of the test – whether the conduct alleged in Tisdale I and II are part of the same transaction or series – requires more discussion. For this purpose, it is helpful to compartmentalize the conduct in Tisdale I and II temporally. Tisdale I alleges conduct occurring in 2012 (August), and Tisdale II alleges conduct occurring in 2012 (June and July) and in 2013 (January, September, and November).

Based upon careful consideration, Plaintiff will not be permitted to proceed on his claims in Tisdale II that are based upon Defendant’s conduct occurring in June 2012, July 2012, and January 2013. As to the June 2012 and July 2012 episodes, they are temporally connected to the August 2012 episodes in Tisdale I. They also are related to and not significantly different from the Tisdale I claims that have at their core Defendant’s allegedly defamatory statements concerning Plaintiff and the City of Andalusia’s purportedly shady business dealings together. In fact, in Tisdale I, in his belatedly filed motion to amend, Plaintiff argued that the June 2012 and July 2012 conduct fell within the original scope of the claims he had alleged in the operative Second Amended Complaint. (See, e.g., Doc. # 62 ¶ 8 (No. 12cv837) (taking the position that the proposed new claims “add[ed] new facts, not new claims”).) Moreover, and importantly, the June 2012 and July 2012 conduct occurred prior to the filing of Plaintiff’s operative Second Amended Complaint in Tisdale I on June 5, 2013. Plaintiff has not presented any reason why he could not have raised these claims in a timely manner in Tisdale I, where he would have had a full and fair opportunity to litigate the claims.[3] Cf. Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979) (“[T]he requirement of determining whether the party against whom an estoppel is asserted had a full and fair opportunity to litigate is a most significant safeguard.”); see also Adams, 487 F.3d at 693 (relying on Parklane for the same proposition). Accordingly, all claims in Tisdale II based upon the June and July 2012 conduct are due to be dismissed as duplicative of Tisdale I.

The same conclusion is reached with respect to the January 2013 conduct, which involves Defendant’s Facebook posting that brands Plaintiff a “greedy soul” in connection with Plaintiff’s alleged overpricing of lots in a subdivision he developed in Andalusia. This conduct occurred approximately five months prior to the filing of the Second Amended Complaint, and Plaintiff does not contend that he could not have alleged this conduct in a timely manner in Tisdale I. In short, all claims in Tisdale II based upon the January 2013 conduct are due to be dismissed.

Plaintiff will be permitted to proceed, however, on his claims predicated on the additional conduct occurring in September 2013 and November 2013. The September 2013 and November 2013 conduct occurred subsequent to the filing of the Second Amended Complaint in Tisdale I, and, although the conduct involves the same parties, it is based upon different events than those in Tisdale I. Moreover, because judgment has not been entered in Tisdale I (a fact that distinguishes this case from Adams), the court, in the exercise of its discretion, will consolidate Tisdale I and II and permit Plaintiff to pursue the claims in Tisdale II that are based upon the September 2013 and November 2013 conduct. Consolidation will serve the interests of avoiding duplication of litigation and promoting judicial economy, and no reason can be envisioned how preparation for trial on the additional conduct will unduly burden the parties. See Fed. R. Civ. P. 42(a) (providing for consolidation of actions that “involv[e] a common question of law or fact”).

For the foregoing reasons, Defendant’s motion for dismissal on the basis that Tisdale II is duplicative of Tisdale I is due to be granted in part and denied in part.

B. Failure to State a Claim

Defendant’s Rule 12(b)(6) arguments for dismissal of the claims in Tisdale II have been considered carefully, but are not persuasive. Accordingly, Defendant’s alternative motion for dismissal for failure to state a claim is due to be denied.[4]


Accordingly, it is ORDERED that Defendant’s motion to dismiss is GRANTED with prejudice in part and DENIED in part.

It is further ORDERED that, pursuant to Rule 42(a) of the Federal Rules of Civil Procedure, what remains of this action is consolidated with Civil Action No. 12cv837 for a pretrial hearing on June 26, 2014, and for trial on July 28, 2014. The lead case shall be Tisdale I, No. 12cv837, and future filings shall be in Tisdale I.


1.Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:

(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C.§ 158, generally are appealable. A final decision is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983). A magistrate judge’s report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(c).

(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885- 86 (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys’ fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S.196, 201, 108 S.Ct. 1717, 1721-22, 100 L .Ed.2d 178 (1988); LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).

(c) Appeals pursuant to 28 U.S.C. § 1292(a): Appeals are permitted from orders “granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . .” and from “[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed.” Interlocutory appeals from orders denying temporary restraining orders are not permitted.

(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court’s denial of a motion for certification is not itself appealable.

(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); Atlantic Fed. Sav. & Loan Ass’n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).

2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:

(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD – no additional days are provided for mailing. Special filing provisions for inmates are discussed below.

(b) Fed.R.App.P. 4(a)(3): “If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later.”

(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.

(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension.

(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution’s internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.

3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.

4. Effect of a notice of appeal: A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).

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