United States District Court, S.D. Alabama, Southern Division
ROBERT L. PRESCOTT, et al., Plaintiffs,
v.
PETE WOLFF, et al., Defendants.
ORDER
SONJA
F. BIVINS UNITED STATES MAGISTRATE JUDGE.
This
action is presently before the Court[1] on the motion for summary
judgment filed by Defendants the City of Evergreen, Mayor
Pete Wolff, and the City Council of the City of Evergreen
(Docs. 29, 30), the motion for summary judgment filed by
Defendant Robert Skipper (Docs. 45, 46), the motion for
summary judgment filed by Defendant Al Etheridge (Docs. 69,
70), Plaintiffs' response and evidentiary materials in
opposition thereto (Docs. 38, 39, 51, 73), and
Defendants' replies and evidentiary materials in support
thereof.[2] (Docs. 42, 75, 76, 77). Also pending
before the Court are Plaintiffs' motion to amend the
complaint (Doc. 43) and Defendants the City of Evergreen,
Mayor Pete Wolff, and the City Council of the City of
Evergreen's motion to stay discovery. (Doc. 31). These
motions have been fully briefed and are ripe for
resolution.[3]
I.
INTRODUCTION
This
case arises from a series of failed business dealings between
Plaintiffs and Defendants in relation to Plaintiffs'
efforts to open a cabinet making facility in Evergreen,
Alabama during the August 2013 through May 2015 time frame.
(Doc. 25 at 3-8). Plaintiffs Robert Prescott, Robert Miller,
Evergreen Wood Products, LLC, and Evergreen-Miller Products,
LLC, set forth a long and winding account of meetings between
the parties, agreements, disagreements, and ultimately a
complete breakdown in negotiations related to the proposed
project. (Id.). According to Plaintiffs, the
negotiations deteriorated to the point that they were turned
away from a City Council meeting in March 2015 without being
given the opportunity to speak, and then an altercation took
place between Plaintiff Miller and Defendant Skipper in May
2015 involving the brandishing of a gun. (Id.).
In
their amended complaint, Plaintiffs assert thirteen claims
against Defendants, the City of Evergreen, Mayor Pete Wolff,
Robert Skipper, the City Council of the City of Evergreen,
and Al Etheridge as Chairman of the Industrial Development
Board, based on Defendants' alleged misconduct from
August 2013 to May 2015 related to the parties' failed
business negotiations. (Doc. 25). Those claims are: Count
One, against Defendant Wolff, pursuant to 42 U.S.C. §
1983, asserting violations of Plaintiffs' rights under
the First and Fourteenth Amendments for denying Plaintiffs
the right to speak at the March 2015 City Council meeting;
Count Two, against Defendants the City of Evergreen and the
City Council, pursuant to 42 U.S.C. § 1983, asserting
violations of Plaintiffs' rights under the First and
Fourteenth Amendments for denying Plaintiffs the right to
speak at the March 2015 City Council meeting; Count Three,
against Defendants Wolff, the City of Evergreen, and the City
Council, pursuant to 42 U.S.C. § 1983, asserting
violations of Plaintiffs' due process rights under the
Fifth and Fourteenth Amendments for denying Plaintiffs their
right to speak at the March 2015 City Council meeting; Count
Four, against Defendants Skipper and Etheridge, pursuant to
42 U.S.C. § 1983, asserting violations of
Plaintiffs' rights under the Fourteenth Amendment for
depriving Plaintiffs of their liberty interests by
confiscating Plaintiffs' personal items located in the
Gerber building on December 26, 2013; Count Five, against the
City of Evergreen, asserting a claim for breach of contract;
Count Six, against Defendant Skipper, asserting a claim for
breach of implied or quasi contract; Count Seven, against
Defendant Wolff, pursuant to 42 U.S.C. § 1983, asserting
a violation of Plaintiffs' rights under the Fourteenth
Amendment for failing to properly supervise Defendant
Skipper; Count Eight, against all Defendants, asserting a
claims for common law fraud; Count Nine, against all
Defendants, asserting a claim for fraudulent inducement and
fraudulent concealment; Count Ten, against all Defendants,
asserting a claim for “infliction of emotional distress
in contract;” Count Eleven, against all Defendants,
asserting a claim for “commercial disparagement;”
Count Twelve, against all Defendants, asserting a claim for
“tortious interference with prospective business
relations;” and Count Thirteen, against Defendant
Skipper, asserting a claim for assault and
battery.[4](Doc. 25 at 7, 9-23).
II.
RELEVANT UNDISPUTED FACTS
As
stated, in the amended complaint, as well as their briefing
and documents submitted in opposition to Defendants'
motions for summary judgment, Plaintiffs provide a lengthy
chronological account of the events surrounding their
proposed opening of a cabinet making facility in an empty
warehouse (referred to as the Gerber Building) in Evergreen,
Alabama, and Defendants' alleged misconduct related
thereto.[5] Significantly, Plaintiffs aver that the
project began in the summer of 2013 and ended in May
of 2015, when Defendant Skipper delivered the “final
blow” to the ill-fated project by pulling a gun on
Plaintiff Miller. (Doc. 25 at 3-8).
Specifically,
Plaintiffs state that, in 2013, Defendant Skipper contacted
Plaintiffs Miller and Prescott about opening a cabinet making
business in Evergreen and introduced Miller to Defendant
Mayor Wolff and to Defendant Etheridge, the chair of the
Industrial Development Board (“IDB”). (Doc. 25 at
4). Thereafter, as an inducement to Miller to locate his
business, Evergreen Wood Products, LLC (“EWP”),
to Evergreen, Skipper proposed a package which included
transfer of ownership of the Gerber Building to EWP,
equipment guarantees, and loan advancements from the IDB, the
City, and Conecuh County. (Id.). Based on these
inducements, Miller abandoned another business opportunity in
Piedmont, Alabama. (Id. at 5). In September of 2013,
EWP and the IDB entered into a non-binding letter of intent,
and Plaintiffs Miller and Prescott began working with Skipper
to obtain funding for the project. (Id.). Miller and
Prescott continued working to obtain funding until December
19, 2013, when the County held a public hearing regarding the
project. (Id. at 7). On December 26, 2013, the IDB,
through its attorney, locked Plaintiffs out of the Gerber
Building, resulting in the loss of Plaintiffs' personal
property. (Id.). Notwithstanding, in March 2014, the
City, IDB, and EWP attempted to restructure the financing of
the project so that the project could move forward. Due to
continued delays, Plaintiffs lost their funding source, and
EWP's Memorandum of Understanding with the City and the
IDB expired in August 2014. (Id. at 7-8). The IDB,
through Defendant Etheridge, continued to try to move forward
with the project, and Plaintiffs secured a new source of
funding, namely Gaffney Funding, LLC. (Id.).
However, in February 2015, Defendants ceased communication
with Plaintiffs. (Id.). In an effort to obtain
information, Plaintiffs went to the Evergreen City Council
meeting in March of 2015, but they were not allowed to speak.
(Id.). In May of 2015, the “final blow”
to the project occurred when Defendant Skipper pulled a gun
on Plaintiff Miller. (Id.).
III.
PROCEDURAL HISTORY
Plaintiffs
instituted this action on July 6, 2018, by filing their
initial complaint against Defendants. (Doc. 1). On October
16, 2018, Plaintiffs filed an amended complaint. (Doc. 25).
Defendants, the City of Evergreen, the City Council, and
Wolff, filed a motion to dismiss the amended complaint on
October 23, 2018, as well as a motion to stay discovery.
(Docs. 29, 30, 31). On November 20, 2018, Plaintiffs filed a
motion for leave to file a second amended complaint. (Doc.
43). On November 26, 2018, Defendant Skipper filed a motion
to dismiss Plaintiffs' amended complaint. (Doc. 45). On
January 31, 2019, Defendant Etheridge filed a motion to
dismiss Plaintiffs' amended complaint. (Doc. 69).
As
previously noted, Defendants' motions to dismiss were
converted into motions for summary judgment. Also pending is
Plaintiff's motion for leave to file a second amended
complaint. The motions have all been fully briefed and are
now ripe for resolution.
IV.
SUMMARY JUDGMENT STANDARD
Summary
Judgment is proper “if the movant shows that there is
no genuine dispute as to any material fact and that the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Garczynski v. Bradshaw, 573 F.3d 1158, 1165 (11th
Cir. 2009) (“[S]ummary judgment is appropriate even if
‘some alleged factual dispute' between the
parties remains, so long as there is ‘no
genuine issue of material fact.'”
(citation omitted) (emphasis in original)). The party seeking
summary judgment bears “the initial burden to show the
district court, by reference to materials on file, that there
are no genuine issues of material fact that should be decided
at trial.” Clark v. Coats & Clark, Inc.,
929 F.2d 604, 608 (11th Cir. 1991).
When
faced with a properly supported motion for summary judgment,
the burden shifts to the non-movant to show the existence of
a genuine issue of material fact. Id. A plaintiff
may not simply rest on the allegations made in the complaint,
but must instead, as the party bearing the burden of proof at
trial, come forward with at least some evidence to support
each element essential to her case at trial.
Anderson, 477 U.S. at 248 (“[A] party opposing
a properly supported motion for summary judgment ‘may
not rest upon the mere allegations or denials of [her]
pleading but . . . must set forth specific facts showing that
there is a genuine issue for trial.”). Summary judgment
is mandated in the absence of such a showing. Celotex
Corp., 477 U.S. at 322; see also Webb v. Ocwen Loan
Servicing, LLC, 2012 U.S. Dist. LEXIS 167079, *4-5, 2012
WL 5906729, *1 (S.D. Ala. Nov. 26, 2012) (“[a] moving
party is entitled to summary judgment if the nonmoving party
has failed to make a sufficient showing on an essential
element of her case with respect to which she has the burden
of proof.”) (quoting In re Walker, 48 F.3d
1161, 1163 (11th Cir. 1995); and Celotex Corp., 477
U.S. at 323) (internal quotation marks omitted)).
“[A]t
the summary judgment stage, the judge's function is not
[herself] to weigh the evidence and determine the truth of
the matter but to determine whether there is a genuine issue
for trial.” Anderson, 477 U.S. at 249.
“Essentially, the inquiry is ‘whether the
evidence presents a sufficient disagreement to require
submission to the jury or whether it is so one-sided that one
party must prevail as a matter of law.'” Sawyer
v. Southwest Airlines Co., 243 F.Supp.2d 1257, 1262 (D.
Kan. 2003) (quoting Anderson, 477 U.S. at 251-52);
see also LaRoche v. Denny's Inc., 62 F.Supp.2d
1366, 171 (S.D. Fla. 1999) (“The law is clear . . .
that suspicion, perception, opinion, and belief cannot be
used to defeat a motion for summary judgment.”).
V.
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