Montgomery v. The Board of Trustees of Alabama Agricultural & Mechanical Univeristy

          MEMORANDUM OPINION AND ORDER

          LILES C. BURKE UNITED STATES DISTRICT JUDGE

         Plaintiff 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.)

         Plaintiff 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).

         This 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.) ^[1]

         For the 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).

         I. MOTION TO DISMISS STANDARD ^[2]

         Rule 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)).

         II. FACTUAL BACKGROUND

         In 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. ¶ 10).

         From 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.)

         In 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.)

         In 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. ¶ 17.)

         According 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.)

         According to Plaintiff, some of the Board's members began a campaign of harassment against him due to his speaking out on ...