United States District Court, M.D. Alabama, Northern Division
MEMORANDUM OPINION AND ORDER
M. BORDEN UNITED STATES MAGISTRATE JUDGE
before the court is a Motion for Preliminary Injunction filed
by Plaintiff Martin Brooks (Doc. 22), a Motion for Summary
Judgment filed by Defendants June Barrett and Perry Fulton
(Doc. 27), a Motion to Compel filed by Brooks (Doc. 35), and
a Motion for Sanctions filed by the defendants. Doc. 43.
filed this lawsuit on June 7, 2018, alleging several state
and federal claims arising out of his attempt to have a
barbeque sauce sold to public schools in Alabama in 2012.
Doc. 1. Pursuant to 28 U.S.C. § 636(c) and Federal Rule
of Civil Procedure 73, the parties have consented to the
jurisdiction of the undersigned United States Magistrate
Judge. Docs. 16 & 17.
court granted in part and denied in part a previous motion to
dismiss and gave Brooks leave to file an amended complaint
clarifying whether he intended to seek prospective injunctive
relief. Brooks filed an amended complaint seeking prospective
injunctive relief and the case has proceeded against Barrett
and Fulton in their individual and official capacities.
careful consideration of the parties' submissions and the
applicable law, for reasons to be discussed below, the motion
for summary judgment is due to be GRANTED as to the federal
claims, the motion for preliminary injunction is due to be
DENIED as to the federal claims, and the court will decline
to exercise supplemental jurisdiction over the remaining
state-law claims. The motions to compel and for sanctions
also are due to be DENIED.
JURISDICTION AND VENUE
court has subject-matter jurisdiction over the claims in this
action pursuant to 28 U.S.C. § 1331 and § 1367. The
parties do not contest personal jurisdiction or venue, and
the court finds adequate allegations to support both.
facts viewed in a light most favorable to the non-movant are
as follows: Brooks makes a barbeque sauce which he identifies
in his affidavit as “Dat Good Sauce.” Doc. 49-2
at 2. Brooks contacted Fulton with the Child Nutrition
Program (“CNP”) for the State of Alabama
Department of Education (“ALDOE”) in February
2011 about selling his sauce to the department. Doc. 49-2 at
told him to call back in November 2011, and Brooks did. Doc.
49-2 at 3. Fulton did not inform Brooks of the “bid
nomenclature” or that the bid process involved the
Department of Finance. Doc. 49-2 at 3. Fulton alleges in an
affidavit that there is a three-step prequalification process
before submitting a bid in response to an ALDOE invitation to
bid: (1) an initial review of the product for conformance to
specifications, (2) product advisory committee review, and
(3) student taste testing. Doc. 29-1 at 3. Products to be
placed on bids must receive at least a 75% approval rating by
students in at least three or four school systems chosen for
testing. Doc. 29-1 at 3.
received a letter from Fulton on November 7, 2011. Doc. 49-2
at 3. The letter, which Brooks provided to the court, states
that the State of Alabama Statewide Purchasing Committee had
scheduled a time to meet with Brooks at 2:00 p.m. on December
7, 2011. Doc. 49-2 at 11. The letter sets out what Brooks
must provide at the meeting and that the meeting is the
second step in the “possibility of approving your
products for inclusion in the upcoming State of Alabama Child
Nutrition Program bid.” Doc. 49-2 at 11. Brooks
participated in the meeting and was informed that he could
proceed to the next step, which is taste testing by students.
Doc. 49-2 at 12. A letter to Brooks set out the names of the
Child Nutrition Program (“CNP”) Directors and the
phone numbers at Russellville City Schools, Sheffield City
Schools, Geneva County Schools, Hoover City Schools, Wilcox
County Schools, and Jefferson County Schools, and told Brooks
to contact each school to make arrangements for providing
sauce for the taste tests. Doc. 49-2 at 12. Brooks states in
the affidavit that he dropped the sauce off with the CNP
Directors but had not been provided information relating to
the specific contract under bid on or how long the contract
would last. Doc. 49-2 at 4.
to Fulton, Dat Good Mustard Barbeque Sauce was tested in six
school districts, the school districts provided him with the
results of the taste tests, and the “taste test results
revealed Mr. Brooks' product did not receive at least a
75% approval rating by students in the school districts
chosen for testing. Therefore, Dat Good Mustard BBQ sauce was
not-prequalified for the next invitation to bid.” Doc.
29-1 at ¶ 18.
February 28, 2012, Brooks sent an email to Fulton requesting
the test results, and on March 1, 2012 he received a package
with the manual for procurement for CNP in the mail. Doc.
49-2 at 5. He again contacted Fulton to request the complete
taste test results but he received incomplete testing
documentation. Doc. 49-2 at 5.
April 2, 2013, Brooks filed a complaint with the Office of
Inspector General. Doc. 49-2 at 6. Brooks received a letter
from Stephen G. Hortin, Deputy Director of the School and
Family Nutrition Program with the United States Department of
Agriculture (“USDA”), which, according to Brooks,
informed him that he would be allowed to have his product
re-tested. Doc. 49-2 at 6.
20, 2013, Barrett received a letter from Kirk Farquharson of
the USDA stating that the USDA had evaluated Brooks'
complaint and determined that “the procedures were
followed except for two elements.” Doc. 30-11. The USDA
said that the ALDOE could not provide documentation that
Brooks had been formally notified of the taste test results
and could not provide documentation that the ALDOE notified
Brooks of his appeal rights, so the USDA expected the ALDOE
to allow Brooks to submit his product again for taste testing
in the 2013-14 school year. Doc. 30-11.
then contacted several schools and could not get a
“clear verification” that the taste tests had
been conducted so he asked for an investigation from Program
Specialist Michelle Morris with the USDA. Doc. 49-2 at 6. In
2016, he received notice that the Office of Inspector General
would be reopening an investigation, but he never received a
status update or outcome of any investigation. Doc. 49-2 at
8. In 2017, Brooks received an electronic mail message from
Swanson Hall of the USDA that informed him that the taste
test was “valid.” Doc. 49-2 at 8.
states in his affidavit that he spoke to a “few
principals from some of the schools” who told him that
no test had been conducted at their schools, so he contacted
legal counsel whose investigator spoke with “several
current and retired principals and they could never recall
any of those specific schools conducting a food test.”
Doc. 49-2 at 8. The affidavit of the investigator states that
he contacted “all of the schools listed” and
“could not get a clear ‘yes' we conducted a
food test in that year.” Doc. 49-4 at 2.
STANDARDS OF REVIEW
Motion for Preliminary Injunction
district court may grant injunctive relief if the movant
shows (1) a substantial likelihood of success on the merits;
(2) that irreparable injury will be suffered unless the
injunction issues; (3) the threatened injury to the movant
outweighs whatever damage the proposed injunction may cause
the opposing party; and (4) if issued, the injunction would
not be adverse to the public interest. McDonald's
Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir.
1998). “A preliminary injunction is an extraordinary
and drastic remedy not to be granted unless the movant
clearly established the ‘burden of
persuasion'” as to the four requisites.”
judgment is proper “if there is no genuine issue as to
any material fact and . . . the moving party is entitled to a
judgment as a matter of law.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The party asking for
summary judgment “always bears the initial
responsibility of informing the district court of the basis
for its motion, ” relying on submissions “which
it believes demonstrate the absence of a genuine issue of
material fact.” Id. at 323. Once the moving
party has met its burden, the nonmoving party must “go
beyond the pleadings” and show that there is a genuine
issue for trial. Id. at 324.
party “asserting that a fact cannot be” and a
party asserting that a fact is genuinely disputed must
support their assertions by “citing to particular parts
of materials in the record” or by “showing that
the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed.R.Civ.P.
56 (c)(1)(A)-(B). Acceptable materials under Rule 56(c)(1)(A)
include “depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials.”
avoid summary judgment, the nonmoving party “must do
more than show that there is some metaphysical doubt as to
the material facts.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). On the
other hand, the evidence of the nonmovant must be believed
and all justifiable inferences must be drawn in its favor.
See Anderson v. Liberty Lobby, 477 U.S. 242, 255
the nonmoving party has responded to the motion for summary
judgment, the court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(a).
Motion to Compel
notice to other parties and all affected persons, a party may
move for an order compelling the disclosure of discovery.
Fed.R.Civ.P. 37(a)(1). The motion must include a
certification that the movant has in good faith conferred or
attempted to confer with the person or party failing to make
disclosure or discovery in an effort to obtain it without
court action. Fed.R.Civ.P. 37(a)(1). “A motion to
compel discovery is committed to the discretion of the trial
court.” Commercial Union Ins. Co. v. Westrope,
730 F.2d 729, 731 (11th Cir. 1984).
district court denies a motion to compel discovery, the court
must require the movant, the attorney filing the motion, or
both, to pay the party who opposed the motion its reasonable
expenses incurred in opposing the motion, but the court must
not order the payment if the motion was substantially