United States District Court, N.D. Alabama, Northeastern Division
JAMES D. MONTGOMERY, Plaintiff,
THE BOARD OF TRUSTEES OF ALABAMA AGRICULTURAL & MECHANICAL UNIVERSITY, et. al., Defendants.
MEMORANDUM OPINION AND ORDER
C. BURKE UNITED STATES DISTRICT JUDGE
James Montgomery is a member of the Board of Trustees (the
“Board”) of Alabama Agricultural & Mechanical
University (the “University”). (Doc. 25 ¶
6.) Plaintiff brings this action against defendants former
Alabama State Representative Oliver Robinson, Dr. Andrew
Hugine (the University's President), the Board, and eight
members of the Board: Kevin Ball, Ginger Harper, Dr. Hattie
Myles, Perry Jones, Chris Robinson, Andre Taylor, Velma
Tribue, and Dr. Jerome Williams (collectively, the
“Trustees”). (Id. at 1-2.)
alleges that he spoke about issues concerning the University,
and, as a result, certain defendants retaliated against him,
defamed him, and filed a false government report about him.
(Id. ¶¶ 42-55.) Plaintiff asserts a claim
under 42 U.S.C. § 1983 for First Amendment retaliation
(id. ¶¶ 42-47), a state law defamation
claim (id. ¶¶ 48-52), and a claim
asserting a violation of Alabama Code §§
36-25-24(c) and 36-25-27(a)(4), which govern a public
employee's filing of a complaint against another public
employee (id. ¶¶ 53-55).
case comes before the Court on Oliver Robinson's motion
to dismiss (doc. 30) for lack of subject-matter jurisdiction,
pursuant to Federal Rule of Civil Procedure 12(b)(1) and for
failure to state a claim against him upon which relief can be
granted pursuant to Rule 12(b)(6). (Doc. 30 at 1-2.) 
reasons explained below, the Court grants Oliver
Robinson's motion to dismiss for lack of subject-matter
jurisdiction insofar as it requests dismissal pursuant to
Rule 12(b)(1), and denies as moot the motion to dismiss
insofar as it requests dismissal for failure to state a claim
pursuant to Rule 12(b)(6).
MOTION TO DISMISS STANDARD 
12(b)(1) permits a defendant to move to dismiss a complaint
for lack of subject matter jurisdiction. Fed.R.Civ.P.
12(b)(1). “Facial challenges to subject matter
jurisdiction are based solely on the allegations in the
complaint.” Carmichael v. Kellogg, Brown & Root
Servs., Inc., 572 F.3d 1271, 1279 (11th Cir. 2009).
“When considering such challenges, the court must, as
with a Rule 12(b)(6) motion, take the complaint's
allegations as true.” Id. (citing Morrison
v. Amway Corp., 323 F.3d 920, 925 n.5 (11th Cir. 2003)).
2006, Plaintiff was appointed to the Board, and in 2014, he
was reappointed to serve a term expiring on January 31, 2020.
(Doc. 25 ¶¶ 6-7.) In 2006, Plaintiff was appointed
to be the Chair of a board committee, and in 2007, he was
appointed to be the Chair of another board committee.
(Id. ¶ 7.) He worked on both committees until
2009. (Id. ¶ 7.) In 2009, Dr. Hugine became the
University's President (id. ¶ 9), and Kevin
Rolle became the Executive Vice-President (id.
2009 to 2015, Plaintiff alleges that he learned of various
questionable financial expenditures, including a payment to
Mr. Rolle for moving expenses in the amount of $6500, as well
as a $75, 000 monthly expense for private auditors.
(Id. ¶ 12.) Plaintiff raised his concerns about
these expenditures with the Board and the press.
(Id. ¶ 12.)
August of 2011, the Board, over Plaintiff's objections,
passed a resolution to revise the University's bylaws.
(Id. ¶ 29.) Plaintiff raised his concerns about
the resolution with the Board, the University's counsel,
and the press. (Id. ¶¶ 29 & 31.)
2014, Plaintiff asked Alabama's Chief Examiner of Public
Accounts to audit the University's finances.
(Id. ¶ 13.) In January of 2015, a state audit
report was released and found that the receipt for the moving
expenses submitted by Mr. Rolle was fraudulent; the state
audit report also included several findings and provided
recommendations to the University to achieve financial
compliance. (Id. ¶ 14.) Plaintiff raised his
concerns about the state audit report and other issues with
the Board, Dr. Hugine, the University's counsel, and the
press. (Id. ¶ 15.) Dr. Hugine asked Plaintiff
to “cease to talk about the issue.” (Id.
¶ 16.) In October of 2015, Mr. Rolle was indicted with
respect to the moving expenses receipt. (Id. ¶
to plaintiff, Dr. Hugine later sought to rebut the state
audit report, and the Board, over Plaintiffs objections,
passed a resolution supporting Dr. Hugine's rebuttal.
(Id. ¶ 22.) Plaintiff publicly requested that
the Board rescind the resolution and that the members who had
vote for the resolution resign. (Id.) The Board did
not act upon the request. (Id.) Plaintiff raised his
concerns about the resolution, the state audit report, and
the University's private auditors with the Governor's
office and the press. (Id.)
to Plaintiff, some of the Board's members began a
campaign of harassment against him due to his speaking out on