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Jay v. Auburn University

United States District Court, S.D. Alabama, Northern Division

May 23, 2018

CHARLES A. JAY, et al., Plaintiffs,
v.
AUBURN UNIVERSITY, et al., Defendants.

          REPORT AND RECOMMENDATION

          WILLIAM E. CASSADY UNITED STATES MAGISTRATE JUDGE

         This cause is before the Magistrate Judge for issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. Gen. L.R. 72(a)(2)(S), on Defendants Auburn University's, Andrew Freear's, Dick Hudgens's, Xavier Vendrell's, and Chris Thompson's (collectively, the “Auburn Defendants”) Motion to Dismiss Plaintiffs' Second Amended Complaint (“motion to dismiss”), (Doc. 50), which was filed on January 25, 2018. Upon consideration of the parties' pleadings, (Docs. 50, 52, 53, & 55), and a review of the record, it is RECOMMENDED that the Auburn Defendants' motion to dismiss, (Doc. 50), be GRANTED IN PART AND DENIED IN PART.

         PROCEDURAL HISTORY

         On September 16, 2017, Plaintiff Charles Jay originally filed his Complaint with this Court, in which he named as defendants Auburn University, Auburn University Rural Studio, Auburn University Human Resources Department, the “Auburn EEO Department, ” “Auburn labeled employee ‘search committee, '” Andrew Freear, and Chris Thompson. (Doc. 1, at 4). Plaintiff Charles Jay brought claims for disability discrimination; age discrimination; failure to accommodate; negligent supervision; “[f]ailure to [i]mplement required policies;” and “failure to follow all rules, laws and requir[e]ments concerning a disabled applicant, the ADA, affirmative action or any and all other procedures required by law.” (Doc. 1, at 5). Plaintiff Charles Jay attached his Equal Employment Opportunity Commission Notice of Suit Rights, which was dated June 9, 2017. (Doc. 1, at 12). On August 25, 2017, summonses were issued for Auburn University, Auburn University Human Resources Department, Auburn University Rural Studio, Andrew Freear, Chris Thompson, Auburn Search and Hiring Committee, and Auburn Rural Studio Substitute Professor, (Doc. 9), all of which were executed on August 30, 2017, except for the Auburn Search and Hiring Committee, (Docs. 10-15 & 18).

         On September 18, 2017, Defendants Auburn University, Auburn University Rural Studio, Auburn University Human Resources Department, Auburn EEO Department, Auburn Search and Hiring Committee, Andrew Freear, and Chris Thompson, filed their Motion to Dismiss, (Doc. 20), for which the Court entered a submission Order, (Doc. 23). On October 4, 2017, Plaintiff Jay filed his Motion to Dismiss Less Than All Parties, (Doc. 25), in which he motioned the Court to dismiss Defendants Auburn University Rural Studio, Auburn University EEO Department, and Auburn University Human Resources Department. The Court construed Plaintiff Jay's Motion to Dismiss Less Than All Parties, (Doc. 25), as a notice of voluntary dismissal pursuant to Rule 41(a)(1)(A)(i), Federal Rules of Civil Procedure, (hereinafter “FRCP” followed by the Rule number) and dismissed without prejudice Plaintiff Jay's claims against Defendants Auburn University Rural Studio, Auburn University EEO Department, and Auburn University Human Resources Department. (Doc. 30, at 1-2).

         Also, on October 4, 2017, Plaintiff Jay filed his Motion for Leave to File Amended Complaint, (Doc. 27), as a matter of course pursuant to FRCP 15(a)(1)(B) and Motion to Amend Complaint to Add Party, (Doc. 28), pursuant to FRCP 15(a)(2) and FRCP 20. In Plaintiff Jay's Motion to Amend Complaint to Add Party, he motioned the Court to add Laurie Jay, his wife, as a plaintiff. (Doc. 28, at 1-2). In Plaintiffs' first amended complaint, they brought claims under 42 U.S.C. § 1983 for conspiracy, “mixed motive, ” “pretext, ” deprivation of federal rights, “liability in connection with the action of another-supervisory official, ” and “liability in connection with the actions of another-failure to intervene” against Andrew Freear, Dick Hudgens, Xavier Vendrell, Chris Thompson, and Auburn University's Search and Hiring Committee individual members, who are fictitious parties to be discovered.” (Doc. 27, at 4-6). The Court ordered the defendants to file on or before October 20, 2017, any opposition to either Plaintiff Jay's Motion for Leave to File Amended Complaint, (Doc. 27), or Motion to Amend Complaint to Add Party, (Doc. 28), (Doc. 30, at 4), which the defendants filed on October 20, 2017, (see Doc. 34). On October 19, 2017, Plaintiff Charles Jay filed his Motion for Leave to File Second Amended Complaint in which he and Laurie Jay claimed the “facts and causes of action within [Plaintiff Charles Jay's] initial complaint [and his] first and second amended complaint[s] have not changed;” they “request[ed] [the Court to] ‘relate back to all exhibited evidence, claims, averments[, ] and contentions of this case;” and they “request[ed] to include violations of [29 U.S.C. § 794(b)(2)(A)(B)].” (Doc. 33, ¶¶ 4-5). On December 8, 2017, the Court directed the Clerk of Court to withdraw Plaintiff Charles Jay's Motion for Leave to File Amended Complaint, (Doc. 27), because his Motion for Leave to File Amended Complaint was filed as a matter of course; the Court deemed as moot his Motion to Amend Complaint to Add Party, (Doc. 28), because it was repetitious of his Motion for Leave to File Amended Complaint; the Court determined that Defendants Auburn University's, Auburn University Rural Studio's, Auburn University Human Resources Department's, Auburn EEO Department's, Auburn Search and Hiring Committee's, Andrew Freear's, and Chris Thompson's Motion to Dismiss, (Doc. 20), was moot; and the Court ordered Plaintiff Charles Jay's Motion for Leave to File Second Amended Complaint, (Doc. 33), be granted if the defendants did not file opposition thereto. (Doc. 41).

         Plaintiffs filed their Second Amended Complaint on December 27, 2017, (Doc. 42), in which they named as defendants Auburn University, Andrew Freear, Dick Hudgens, Xavier Vendrell, Chris Thompson, and Auburn University's Search and Hiring committee individual members. (Doc. 42, at 3). Plaintiffs brought claims under 42 U.S.C. § 1983 and 29 U.S.C. § 794 for conspiracy, “mixed motive, ” “pretext, ” deprivation of federal rights, “liability in connection with the actions of another-supervisory official, ” “liability in connection with the actions of another- failure to intervene, ” negligence, and negligent supervision. (Doc. 42, at 4). On January 25, 2018, the Auburn Defendants filed their Motion to Dismiss Plaintiffs' Second Amended Complaint, (Doc. 50), to which, Plaintiffs filed their response, (Doc. 52), and the Auburn Defendants filed their reply, (Doc. 53).

         STANDARD OF REVIEW

         Pursuant to FRCP 12(b)(6) a defendant may move to dismiss a complaint on the basis that the plaintiff has failed to state a claim, upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, a plaintiff must plead “only enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' [Twombly, 550 U.S.] at 570, 127 S.Ct. [at] 1955. 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. Id. at 556, 127 S.Ct. [at] 1955.”). Since a FRCP 12(b)(6) motion questions the legal sufficiency of a complaint, in assessing the merits of a FRCP 12(b)(6) motion, the court must assume that all the factual allegations set forth in the complaint are true. See, e.g., United States v. Gaubert, 499 U.S. 315, 327, 111 S.Ct. 1267, 1276, 113 L.Ed.2d 335 (1991); Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir. 1990); but see also Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (“[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. [Twombly, 550 U.S.] at 555, 127 S.Ct. [at] 1955.”). Moreover, all factual allegations are to be construed in the light most favorable to the plaintiff. See, e.g., Brower v. County of Inyo, 489 U.S. 593, 598, 109 S.Ct. 1378, 1382, 103 L.Ed.2d 628 (1989). Obviously, therefore, a district court may not resolve factual disputes when adjudicating a motion to dismiss. Page v. Postmaster Gen. and Chief Exec. Officer of the U.S. Postal Serv., 493 Fed.Appx. 994, 995 (11th Cir. 2012) (citing, among other cases, Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (indicating that, under Rule 12(b)(6), the existence of disputed material facts precludes a district court from granting a motion to dismiss)). “‘When considering a motion to dismiss . . . the court limits its consideration to the pleadings and all exhibits attached thereto.'” Thaeter v. Palm Beach Cty. Sheriff's Office, 449 F.3d 1342, 1352 (11th Cir. 2006), quoting Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000) (per curiam); see also Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211, 1215-16 (11th Cir. 2012) (“Because the Ellis law firm's dunning letter and enclosed documents were attached to the Reeses' complaint as an exhibit, we treat them as part of the complaint for Rule 12(b)(6) purposes.”).

         Pro Se Litigants

         “Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.” Tannembaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). “Courts do and should show a leniency to pro se litigants not enjoyed by those with the benefit of a legal education.” GJR Invs., Inc. v. Cty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998), overruled in part on other grounds by Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “Yet even in the case of pro se litigants this leniency does not give a court license to serve as de facto counsel for a party or to rewrite an otherwise deficient pleading in order to sustain an action.” GJR Invs., Inc., 132 F.3d at 1369 (internal citations omitted).

         ANALYSIS

         The Auburn Defendants move for a dismissal with prejudice all of the claims in Plaintiffs' Second Amended Complaint or, in the alternative, motion the Court for a more definite statement. (Doc. 50, at 1).[1]

         In Plaintiffs' response to the Auburn Defendants' motion to dismiss, Plaintiffs make certain concessions to address and cure the deficiencies of their pleadings that are stated by the Auburn Defendants in their motion to dismiss. First, Plaintiffs withdraw their request for the Court to “relate back to all exhibited claims, averments, and contentions of this case, ” which is found in their Second Amended Complaint, (Doc. 42, ¶ 1), and claim Plaintiffs' “More Definite Statement, ” (Doc. 52-1), and Second Amended Complaint will contain the operative pleadings in this matter. (Doc. 52, at 3). Second, Plaintiffs clarify they do not bring claims under the Americans with Disabilities Act (“ADA”) or the Age Discrimination in Employment Act (“ADEA”), which the Auburn Defendants assumed in their motion to dismiss, (see Doc. 50, at 19-21). (Doc. 52, at 4). Third, Plaintiffs concede the Auburn Defendants' argument that Auburn University and the individual defendants, in their official capacities, are immune from Plaintiffs' state law claims against them; however, Plaintiffs maintain their claim against Auburn University that it violated the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq. (Doc. 52, at 5). Fourth, Plaintiffs concede the Auburn Defendants' argument that Plaintiff Laurie Jay's claim for loss of consortium should be dismissed with prejudice. (Doc. 52, at 6-7). Lastly, Plaintiffs concede fictitious party practice ...


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