United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE.
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.
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).
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).
Standard of Review
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.
Rule 12(b)(1) Motions
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
Rule 12(b)(6) Motions
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.
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.
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.