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Ex parte University of South Alabama

Supreme Court of Alabama

May 29, 2015

Ex parte University of South Alabama
v.
Amber Bartlett et al. In re: Azin Agah Ex parte Amber Bartlett In re: Azin Agah
v.
Amber Bartlett et al.

Page 916

          (Mobile Circuit Court, CV-11-901689).

         1140440 -- Moore, C.J., and Bolin, Parker, Murdock, Shaw, Main, and Bryan, JJ., concur. Stuart, J., recuses herself. 1140441 -- Bolin, Parker, Murdock, Shaw, Main, and Bryan, JJ., concur. Moore, C.J., dissents. Stuart, J., recuses herself.

          OPINION

Page 917

         PETITION FOR WRIT OF MANDAMUS

         Per Curiam.

         The University of South Alabama (" USA" ), a state institution of higher learning, see § 16-55-1 et seq., Ala. Code 1975, contends that it is immune from civil actions and petitions this Court for a writ of mandamus directing the Mobile Circuit Court to dismiss it from an action filed by Azin Agah, a former USA employee. Additionally, Amber Bartlett, a student who worked under Agah's supervision in USA's research laboratory and a defendant in the same underlying action, petitions this Court for a writ of mandamus directing the Mobile Circuit Court to issue an order quashing the subpoena issued to Alabama Psychiatric Services, P.C. (" APS" ), ordering production of her mental-health records. We grant the petitions and issue the writs.

         Facts and Procedural History

         On or about August 1, 2006, USA hired Agah, a cell biologist, as a tenure-track employee, to teach biochemistry and to research the abnormalities in the extracellular matrix and angiogenesis associated with the pathogenesis of scleroderma. In 2010, USA did not reappoint Agah based on alleged research misconduct.

         In 2011, Agah sued Bartlett and Julio F. Turrens, associate dean of the College of Allied Health Professions at USA and chairman of the two ad hoc committees that evaluated Agah, and other fictitiously named parties, alleging theft of electronic computer data and her research logbook and intentional and malicious interference with her contractual relationship with USA and seeking recovery of chattels in specie for the electronic data and her research logbook.

         In June 2012, Agah served a notice of intent to subpoena APS to obtain " all records pertaining to the care and treatment of Amber Leigh Bartlett." In July 2012, Bartlett objected to the subpoena, arguing that the records were subject to the psychotherapist-patient privilege, see Rule 503, Ala. R. Evid., and § 34-26-2, Ala. Code 1975. Bartlett and APS moved to quash the subpoena and for an order declaring that the records of APS with regard to Bartlett remain confidential. On August 9, 2012, the trial court denied the motion filed by Bartlett and APS to quash the subpoena and to enter a protective order and ordered the production of the documents for an in camera review. On August 14, 2012, Bartlett moved the trial court to reconsider its orders directing the production of her records from APS and denying a protective order.

         On March 21, 2013, Agah amended her complaint adding USA and others as defendants and adding various claims. The only claim in her amended complaint that specifically names USA as a defendant " seeks a declaratory judgment, injunctive relief, and monetary damages against USA for the breach by USA of [her] tenure track employment contract with USA." [1] Against Bartlett and the other " defendants" Agah alleged tortious interference with contractual rights, " tortious violation of [her] rights guaranteeing her substantive and procedural due process," suppression, defamation of character, intentional

Page 918

infliction of emotional distress, negligent infliction of emotional distress, administrative abuse of process, conversion and detinue, and invasion of privacy.[2] She requests a judgment of $10,000,000, an order appointing a special master to conduct a fair and impartial investigation into the allegations against her of research misconduct, and an order requiring the return of her research logbook undamaged.

         On August 13, 2013, before the trial court ruled on Bartlett's motion to reconsider, Agah issued a subpoena for Bartlett's mental-health records from APS. On August 14, 2013, Bartlett again moved the trial court to quash the subpoena and to enter a protective order.

         On August 30, 2013, USA moved to dismiss Agah's claims against it, arguing, among other grounds, that it had absolute immunity from civil actions under § 14 of the Alabama Constitution 1901. With its motion, USA submitted evidentiary support for the trial court's consideration.

         On January 28, 2015, the trial court entered an order denying USA's motion to dismiss and Bartlett's motion to reconsider its order refusing to quash Agah's subpoena for her mental-health records from APS and to enter a protective order. On February 5, 2015, USA petitioned this Court for a writ of mandamus directing the trial court to vacate its order denying its motion to dismiss and to enter an order, based on § 14 immunity, dismissing USA from Agah's action. On March 2, 2015, Bartlett petitioned this Court for a writ of mandamus directing the trial court to quash the subpoena issued to APS seeking production of her mental-health records.

         Standard of Review

" 'The writ of mandamus is an extraordinary legal remedy. Ex parte Mobile Fixture & Equip. Co., 630 So.2d 358, 360 (Ala. 1993). Therefore, this Court will not grant mandamus relief unless the petitioner shows: (1) a clear legal right to the order sought; (2) an imperative duty upon the trial court to perform, accompanied by its refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the Court. See Ex parte Wood, 852 So.2d 705, 708 (Ala. 2002).'

         " Ex parte Davis, 930 So.2d 497, 499 (Ala. 2005)." Ex parte Troy Univ., 961 So.2d 105, 107-08 (Ala. 2007).

         Discussion

         Case no. 1140440

         USA contends in its petition that it is entitled to absolute immunity from the claims asserted against it in Agah's complaint; therefore, it says, it has a clear, legal right to a writ of mandamus directing ...


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