Prescott v. Wolff

          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.”).

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