United States District Court, S.D. Alabama, Southern Division
WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE
matter is before the Court on the motion of defendant City of
Mobile (“the City”) to dismiss Count VII. (Doc.
17). The plaintiff has filed a response, (Doc. 22), the
defendant elected to rest on its principal brief, (Doc. 23),
and the motion is ripe for resolution.
amended complaint begins with 53 numbered paragraphs spanning
thirteen pages. (Doc. 53 at 1-13). It then sets forth eight
claims; Count VII asserts “breach of contract.”
Id. at 19-20). The City's motion, brought
pursuant to Rule 12(b)(6), first argues that the amended
complaint does not satisfy the plausibility standard of Rule
8(a) and Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007). (Doc. 17 at 3-4). The City also argues that the
amended complaint seeks only damages that are unavailable
under Alabama law. (Id. at 4-5). Finally, the City
argues that the plaintiff impermissibly seeks both damages
and specific performance of the contract. (Id. at
incorporating by reference paragraphs 9-53, Count VII
Both the employee manual and the Personnel Board Rules and
[R]egulations created a binding contract with respect to the
terms and conditions of employment. The City breach[ed] its
contract with the Plaintiff when it divested him of the
emoluments of employment, without giving him prior notice or
an opportunity to challenge the City's action.
15 at 20). The City complains that the amended complaint
fails to “attach a copy” of the contract, fails
to “set forth the terms of the contract, ” and
fails to “cite any contractual provision which he
contends was breached.” (Doc. 17 at 3-4). The City
offers no further argument in support of its position.
City identifies no rule that a plaintiff must attach a copy
of any contract on which he sues, and there is no such rule.
Count VII expressly identifies the contract as the employee
manual and Personnel Board rules, and the City does not
purport to be ignorant of these documents or their contents;
nor does the City offer any authority for the proposition
that a complaint must set forth all terms of a contract, even
terms not alleged to have been breached.
noted, Count VII incorporates paragraphs 9-53. Paragraphs
31-37 describe how the City “stripp[ed] the Plaintiff
of all of his supervision responsibilities” by
internal, unilateral action, resulting in a “de
facto demotion.” (Doc. 15 at 10). Paragraphs 49-51
identify three Personnel Board rules that the City violated
by demoting the plaintiff. (Id. at 12-13). Paragraph
53 notes that the employee manual provides that the Personnel
Board rules were created for certain specified reasons.
(Id. at 13). The amended complaint thereby
identifies the provisions of the employee manual and the
Personnel Board rules that the plaintiff alleges were
breached. Whether those documents actually
constitute a contract between the plaintiff and the City, and
whether action contrary to the cited provisions did or could
constitute a breach of contract, are not issues presented by
the City's motion.
VII alleges that the plaintiff “suffered humiliation[,
] embarrassment and emotional distress” as a result of
the breach of contract. (Doc. 15 at 20). Count VII also
asserts the plaintiff is “entitled” to
“economic damages.” (Id.). The ad
damnum clause claims compensatory damages for breach of
contract in the form of “emotional pain, suffering,
inconvenience, mental anguish, loss of enjoyment of
life.” (Id. at 22). The City argues that
emotional distress damages are non-recoverable for breach of
an employment contract as a matter of law. (Doc. 17 at 4-5).
recovery has ever been allowed for mental distress arising
from the wrongful discharge of an employee in breach of an
employment contract.” Southern Medical Health
Systems, Inc. v. Vaughn, 669 So.2d 98, 101 (Ala. 1995)
(internal quotes omitted). That result has remained
consistent in the intervening years. Hobson v. American
Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala. 1997)
(“This Court has not recognized claims for emotional
distress in an employment case. … We conclude that our
law would preclude [the plaintiff] from any recovery for
emotional distress on a claim of wrongful
termination.”); Wyatt v. BellSouth, Inc., 757
So.2d 403, 408 (Ala. 2000) (“Our law also requires that
the plaintiff prove an independent tort in order to recover
damages for mental anguish in an employment setting. …
Surely, as an employee at will, [a terminated employee]
cannot recover compensatory damages for mental anguish when
employees whose employment was not at will could not have
recovered.”); Carraway Methodist Health Systems v.
Wise, 986 So.2d 387, 400 (Ala. 2007) (“Based upon
all the facts and circumstances presented here, we do not
consider this to be ‘the case' in which we should
recognize the availability of mental-anguish damages arising
out [of] the breach of an employment contract.”).
plaintiff does not dispute the import of these cases: Alabama
law does not permit him to recover emotional distress damages
because he was constructively demoted without following
proper procedures. Instead, he asserts that, “[p]rior
to a final determination of liability, the damages sought
hardly seems a proper subject for a Rule 12(b)(6) pleading
stage dismissal.” (Doc. 22 at 3). Were the plaintiff
seeking only emotional distress damages as relief, his legal
inability to recover such damages would defeat an element of
his claim and thus subject Count VII to dismissal for failure
to state a claim. But, as noted, the plaintiff also seeks
“economic damages” and damages for
“inconvenience” and “loss of enjoyment of
life.” (Doc. 15 at 22). Because the City has not
addressed these elements of alleged damage, it has failed to
show that they are all non-recoverable as a matter of law. It
has therefore failed to demonstrate its entitlement to the
only relief it seeks, viz., dismissal of Count VII.
(Doc. 17 at 1, 5).
addition to damages for breach of contract, the plaintiff
seeks “an order compelling specific performance,
consistent with the terms of the contract.” (Doc. 15 at
20). The City points out that the plaintiff cannot both
recover damages and receive specific performance. “As
… Plaintiff improperly asserts that he is entitled to
both of two mutually exclusive remedies, Plaintiff's
claim for breach of contract is due to be dismissed.”
(Doc. 17 at 5). The City, however, engages in no discussion
of election of remedies, when that election must occur, and
what the consequences are of not making an election. The
Court will not undertake such an effort on the City's
reasons set forth above, the City's motion ...