United States District Court, S.D. Alabama, Northern Division
ORDER
KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE
Defendant
the City of Greensboro, Alabama (“the City”), has
filed a motion to dismiss the claims asserted against it in
Counts II, III, and V of the complaint under Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim upon
which relief can be granted. (Doc. 10). Those counts allege
state law causes of action for, respectively, assault and
battery, outrage, and wanton hiring, training, and
supervision. (See Doc. 1 at 11 - 12, 13 - 14).
The
City asserts that it is immune from liability for such claims
under Ala. Code § 11-47-190, which provides, in relevant
part: “No city or town shall be liable for damages for
injury done to or wrong suffered by any person or
corporation, unless such injury or wrong was done or suffered
through the neglect, carelessness, or unskillfulness of some
agent, officer, or employee of the municipality engaged in
work therefor and while acting in the line of his or her
duty…” Thus, “under § 11-47-190, a
city is liable for negligent acts of its employees within the
scope of their employment, but not intentional torts of its
employees.” Brown v. City of Huntsville, Ala.,
608 F.3d 724, 743 (11th Cir. 2010). See also Ex parte
City of Gadsden, 718 So.2d 716, 721 (Ala. 1998)
(“Section 11-47-190, Ala. Code 1975, absolves a city
from liability for an intentional tort committed by one of
its agents…”); Morrow v. Caldwell, 153
So.3d 764, 769 (Ala. 2014) (per curiam) (“There is no
exception in [§ 11-47-190] allowing an action against a
municipality for the wanton or willful conduct of its agents
or employees.”). In her response to the motion,
Plaintiff Sarah Banks does not dispute the application of
Alabama law to the subject claims, acknowledges that
“the City cannot be liable” for the intentional
conduct of its employees, and agrees that the claims against
the City in Counts II, III, and V “must be dismissed
with prejudice.” (Doc. 15).
The
Court agrees that, under § 11-47-190, the City is immune
from liability on the claims against it in Counts II,
[1]
III, [2] and V.[3] Accordingly, the City's Rule
12(b)(6) motion to dismiss (Doc. 10) is
GRANTED, and those claims are hereby
DISMISSED with prejudice.[4]
DONE
and ORDERED.
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Notes:
[1] While the Alabama Supreme Court has
recognized certain kinds of “negligent assault and
battery” can “f[a]ll within the conduct for which
the legislature has prescribed a remedy under s 11-47-190[,
]” City of Birmingham v. Thompson, 404 So.2d
589, 592 (Ala. 1981), Count II alleges that the unwanted
touching giving rise to Banks's assault and battery
claims “was intentional, ” (Doc. 1 at 11), and
Banks has not attempted to argue otherwise in opposition to
the present motion.
[2] See Ex parte Bole, 103 So.3d
40, 52 (Ala. 2012) (“The
intentional infliction of emotional
distress is also known as the tort of outrage.”
(emphasis added))
[3] See Town of Loxley v.
Coleman, 720 So.2d 907, 909 (Ala. 1998) (“This
Court has construed § 11-47-190 to exclude liability for
wanton misconduct.”); Hilliard v. City of
Huntsville, 585 So.2d 889, 892 (Ala. 1991)
(“Section 11-47-190 limits the liability of
municipalities to injuries suffered through ‘neglect,
carelessness or unskillfulness.' Neighbors v. City of
Birmingham, 384 So.2d 113 (Ala. 1980). To construe this
statute to include an action for wanton conduct would expand
the language of the statute beyond its plain meaning. For
this reason, Hilliard's claim of wantonness was properly
dismissed.”).
[4] Under S.D. Ala. GenLR 73(c) and 28
U.S.C. § 636(c), this case has been randomly assigned to
the undersigned Magistrate Judge for all purposes, as set out
in the Notices of Assignment to United States Magistrate
Judge for Trial entered January 16, 2019 (Doc. 6), and
February 14, 2019. (Doc. 14). The second Notice of Assignment
informs the parties that, if the parties do not file written
consent to the Magistrate Judge's jurisdiction by March
12, 2019, “the Clerk of Court will presume that the
parties do not consent to the Magistrate Judge's
jurisdiction and the action will be assigned to a United
States District Judge.” However, both Notices of
Assignment make clear that the parties “have the right
to have this action reassigned to a United States District
Judge for trial and disposition, ” and the first Notice
of Assignment states that “[a]ny party may request
reassignment by” confidentially emailing the Clerk of
Court a “Request for Reassignment to a United States
District Judge.” See also S.D. Ala. GenLR
73(c)(3) (“Prior to formal reference…, any party
to a referred action may obtain reassignment to a District
Judge by sending the Clerk a Request for Reassignment to a
United States District Judge for Trial and
Disposition.”).
Inasmuch as no party, to date, has sent the Clerk of
Court a Request for Reassignment, there presently exists
implicit consent to the undersigned conducting all
proceedings in this case, including ruling on the present
dispositive motion. See Chambless v. Louisiana-Pac.
Corp., 481 F.3d 1345, 1350 (11th Cir. 2007)
(“[T]he Supreme Court held in Roell v.
Withrow, 538 U.S. 580, 123 S.Ct. 1696, 155 L.Ed.2d 775
(2003), that consent to a magistrate judge's jurisdiction
can be inferred from a party's conduct during litigation.
Id. at 582, 123 S.Ct. 1696. The Court refused to
adopt a bright-line rule requiring express consent, instead
accepting implied consent ‘where ... the litigant or
counsel was made aware ...