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Threadford v. Board of Trustees of University of Alabama

United States District Court, N.D. Alabama, Southern Division

May 14, 2018




         This case is before the court on Defendant's Motion to Dismiss. (Doc. # 4). Defendant Board of Trustees of the University of Alabama (“Board of Trustees”) moves to dismiss Plaintiff's claims based on Eleventh Amendment immunity and sovereign immunity. Before this case was reassigned to the undersigned, a Magistrate Judge directed Plaintiff to file any opposition to the Motion by March 30, 2018. (Doc. # 5). To date, Plaintiff has not opposed the Motion, and it is ripe for review. After careful review, and for the reasons explained below, the court concludes that Defendant's Motion to Dismiss is due to be granted.

         I. Background

         In her Complaint, Plaintiff alleges that the University of Alabama at Birmingham (“UAB”) or its agents repeatedly called her cell phone, even though she informed UAB that it was contacting the wrong number. (Doc. # 1 at ¶¶ 5-7). She claims that Defendant used an autodialer, predictive dialer, or pre-recorded calls without permission. (Id. at ¶ 8).

         Plaintiff raises a claim under the Telephone Consumer Protection Act (“TCPA”) based on Defendant's use of an automatic telephone dialing system to call her cell phone. (Id. at ¶¶ 24- 32). Plaintiff also raises a state-law invasion of privacy claim based on Defendant's intrusion into her seclusion. (Id. at ¶¶ 33-40).

         II. Standard of Review

         Because Defendant's Motion to Dismiss is based on Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), the court outlines the applicable standards of review for both types of motions.

         A. Rule 12(b)(1) Motions

         Challenges to subject matter jurisdiction under Rule 12(b)(1) can exist in two different forms: facial attacks and factual attacks. McElmurray v. Consol. Gov't of Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11th Cir. 2007). When presented with a facial attack on a plaintiff's complaint, a court determines whether the complaint has sufficiently alleged subject-matter jurisdiction. Id. The court proceeds as if it were evaluating a Rule 12(b)(6) motion, views the complaint in the light most favorable to the plaintiff, and accepts any well-pled facts alleged in the complaint as true. Id. Factual attacks, on the other hand, question “the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered.” Id. (quoting Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)). Here, Defendant's motion is properly characterized as a facial challenge because Defendant has not contested the veracity of the Complaint and has not submitted additional evidence.

         B. Rule 12(b)(6) Motions

         The Federal Rules of Civil Procedure require that a complaint provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). However, the complaint must include enough facts “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Pleadings that contain nothing more than “a formulaic recitation of the elements of a cause of action” do not meet Rule 8 standards, nor do pleadings suffice that are based merely upon “labels and conclusions” or “naked assertion[s]” without supporting factual allegations. Id. at 555, 557. In deciding a Rule 12(b)(6) motion to dismiss, courts view the allegations in the complaint in the light most favorable to the non-moving party. Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007).

         To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although “[t]he plausibility standard is not akin to a ‘probability requirement, '” the complaint must demonstrate “more than a sheer possibility that a defendant has acted unlawfully.” Id. A plausible claim for relief requires “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence” to support the claim. Twombly, 550 U.S. at 556.

         In considering a motion to dismiss, a court should “1) eliminate any allegations in the complaint that are merely legal conclusions; and 2) where there are well-pleaded factual allegations, ‘assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.'” Kivisto v. Miller, Canfield, Paddock & Stone, PLC, 413 Fed.Appx. 136, 138 (11th Cir. 2011) (quoting Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)). That task is context specific and, to survive the motion, the allegations must permit the court based on its “judicial experience and common sense . . . to infer more than the mere possibility of misconduct.” Iqbal, 556 U.S. at 679. If the court determines that all of the well-pleaded facts, accepted as true, do not state a claim that is plausible, the claims are due to be dismissed. Twombly, 550 U.S. at 570.

         III. ...

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