MEMORANDUM OPINION AND ORDER
W. KEITH WATKINS, Chief District Judge.
Before the court is the Recommendation of the Magistrate Judge (Doc. # 33), to which Plaintiff Sunny Golloway filed objections (Doc. # 34). The court has conducted an independent and de novo review of those portions of the Recommendation to which objection is made. See 28 U.S.C. § 636(b).
The Magistrate Judge recommended that Defendants' motion to dismiss (Doc. # 9) be granted in its entirety. Mr. Golloway challenges this conclusion, alleging that each count of his complaint should be allowed to go forward. Because the Magistrate Judge properly applied the law to the facts of this case, the Recommendation will be adopted (and Mr. Golloway's objections overruled) in large part. However, because Mr. Golloway alleged sufficient facts for his claim of tortious interference to survive 12(b)(6) scrutiny, the Recommendation will be rejected as to Count 5 of the complaint.
I. JURISDICTION AND VENUE
Subject-matter jurisdiction is exercised pursuant to 28 U.S.C. § 1332. The parties do not contest personal jurisdiction or venue.
II. STANDARD OF REVIEW
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the sufficiency of the complaint against the legal standard articulated by Rule 8 of the Federal Rules of Civil Procedure. Rule 8 provides that the complaint must include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). When evaluating a motion to dismiss pursuant to Rule 12(b)(6), the court must take the facts alleged in the complaint as true and construe them in the light most favorable to the plaintiff. Resnick v. AvMed, Inc., 693 F.3d 1317, 1321-22 (11th Cir. 2012). The court need not, however, accept mere legal conclusions as true. Id. at 1325.
To survive a 12(b)(6) motion, the complaint "must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The complaint is facially plausible when "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
III. DISCUSSION
Because the Magistrate Judge already spelled out the facts and procedural history of this case, the analysis starts at the crux of the matter: Does Mr. Golloway's operative complaint survive 12(b)(6) scrutiny?
A. Counts 1 & 2: Claims against the Board of Trustees of Auburn University
Mr. Golloway objects to the Magistrate Judge's conclusion that his claims against the Board are due to be dismissed on sovereign-immunity grounds. It is beyond dispute that Alabama's state universities, including their boards of trustees, are instrumentalities of the state. E.g., Harden v. Adams, 760 F.2d 1158, 1163 (11th Cir. 1985); Rigby v. Auburn Univ., 448 So.2d 345, 347 (Ala. 1984). Moreover, the Magistrate Judge properly determined that the relief sought by Mr. Golloway does not fall into the exception for injunctive relief carved out by Ex parte Young. See Ala. State Univ. v. Danley, 212 So.3d 112, 129 (Ala. 2016). Contrary to Mr. Golloway's objection, his case does not seek "a liquidated, certain amount" such that his relief can be couched as injunctive in nature. (Doc. # 34 at 3.) Rather, because Mr. Golloway could only receive his claimed damages after a judicial finding that he was terminated without cause, his claim does not fall within the Ex parte Young "ministerial act" exception. Danley, 212 So. 3d at 126; see also Woodfin v. Bender, No. 1150797, ___ So. 3d ____, 2017 WL 1192891, at *8 (Ala. March 31, 2017) (holding that "legitimate dispute" as to whether backpay was required entitled defendant to sovereign immunity). Therefore, the Magistrate Judge properly recommended dismissal of Mr. Golloway's claims against the Board.
B. Count 3: Defamation
Mr. Golloway objects to the recommended dismissal of his defamation claim, arguing that Defendant Jay Jacobs's statement that he was terminated "with cause" constituted defamation per se. It did not. "The first element of a cause of action in defamation is a false statement." Tidwell v. Winn-Dixie, Inc., 502 So.2d 747, 748 (Ala. 1987). Mr. Jacobs's statement, "I regret to announce that earlier today I dismissed Auburn head baseball coach Sunny Golloway with cause," does not meet this threshold requirement. (Doc. # 32 at 77.) Auburn University dismissed Mr. Golloway "with cause" rather than "without cause"—the manner of termination is undeniable, regardless of whether cause actually existed. Because Mr. Jacobs's statement truthfully described the nature of the firing, the Magistrate Judge properly recommended dismissal. Cf. McCarver v. PPG Indus., Inc., 552 F.Supp.2d 1294, 1301 (N.D. Ala. 2008) (granting summary judgment against defamation claim where defendant disclosed the basis for plaintiffs' termination, even though one of the plaintiffs disputed the accuracy of that basis of termination).
Similarly, Mr. Jacobs did not defame Mr. Golloway in announcing his "commitment . . . to provide the best student-athlete experience in the nation." (Doc. # 32 at 77.) The statement did not concern Mr. Golloway, but rather went to the conditions that Auburn strives to create for its student athletes. See Skinner v. Bevans, 116 So.3d 1147, 1156 (Ala. Civ. App. 2012) (requiring that a defamatory statement "concern[] the plaintiff"). Moreover, Mr. Jacobs's announcement was not "reasonably capable of a defamatory meaning." Harris v. Sch. Annual Publishing Co., 466 So.2d 963, 964-65 (Ala. 1985). Even stretched to its breaking point, Mr. Jacobs's statement means only that Mr. Golloway provided something less than the best athletic experience in the nation. Announcing that someone falls short of the absolute best is no more defamatory than giving them a runner-up ribbon or an Olympic silver medal. The Magistrate Judge properly recommended dismissal of Count 3.
C. Count 4: Fraud
Alabama law embraces the "reasonable reliance" standard for claims of fraud. Farmers Ins. Exch. v. Morris, No. 1121091, ___ So. 3d ____ 2016 WL 661671, at *5-*6 (Ala. Feb. 12, 2016). This standard allows a judge to dismiss a plaintiff's claim for fraud where he "w[as] fully capable of reading and understanding [his] documents, but nonetheless made a deliberate decision to ignore written contract terms." Id. at *6 (quoting Foremost Ins. Co. v. Parham, 693 So.2d 409, 421 (Ala. 2008)). In other words, a plaintiff cannot state a claim for fraud (be it in the inducement or otherwise) on the basis of oral promises if a valid, written contract contradicts those promises. See id. Mr. Golloway objected to the Magistrate Judge's application of this legal standard, arguing that a jury should decide whether his reliance on Mr. Jacobs's oral representations was, in fact, reasonable. While this would be true under the old rule, it was cases like this one that led the Alabama Supreme Court to adopt the reasonable-reliance standard. Id. at *5 ("The problem with those earlier decisions [applying the old standard] was that they `permitted a fraud case to go to the jury in all circumstances where all the plaintiff had to say was that he did not, in fact, know what the contract said.'") (quoting Potter v. First Real Estate Co., 844 So.2d 540, 549 (Ala. 2002)). Accordingly, Mr. Golloway's objection pertaining to Count 4 is due to be overruled.
D. Count 5: Tortious Interference
After three foul balls, Mr. Golloway finally gets a base hit in his objection to the recommended dismissal of Count 5. But it is only a single. Under Alabama law, "[t]he essential elements of the tort of intentional interference with contractual or business relations are: `(1) the existence of a protectable business relationship; (2) of which the defendant knew; (3) to which the defendant was a stranger; (4) with which the defendant intentionally interfered; and (5) damage.'" Ex parte Hugine, No. 1130428, ___ So. 3d ____, 2017 WL 1034467, at *23 (Ala. March 17, 2017) (quoting White Sands Grp. v. PRS II, LLC, 32 So.3d 5, 14 (Ala. 2009)). Where a plaintiff sues coworkers or other parties who are not strangers to the relationship, he can only state a claim if he "show[s] that the defendants acted outside their scope of employment and did so maliciously." Perlman v. Shurett, 567 So.2d 1296, 1299 (Ala. 1990) (quoting Hickman v. Winston Cty. Hosp. Bd., 508 So.2d 237, 241 (Ala. 1987) (Adams, J., concurring)). An action outside of the scope of employment, in this context, is the same as an action outside of the employee's scope of authority. McGlathery v. Ala. A&M Univ., 105 So.3d 437, 447 (Ala. Civ. App. 2012). And, "in order to show malice the plaintiff must make a strong showing of a pattern of interference," which requires "more than an isolated incident" of actions beyond the scope of the defendant's employment. Id.
The Recommendation properly determined that Defendants David Benedict, Rich McGlynn, Scott Duval, and Jeremy Roberts were not strangers to Mr. Golloway's employment with Auburn, but went too far in finding that Mr. Golloway failed to allege that the four Defendants were acting outside the scope of their employment. In his operative complaint, Mr. Golloway alleges that Defendants "encouraged players and their parents to tell them negative things about Golloway," told a high school coach that Mr. Golloway improperly gave away school-owned baseballs, and "withdr[ew] their blessing" for an all-star game at a recruiting camp in a manner calculated to put Mr. Golloway in hot water with the University. (Doc. # 32 at 82-84.)
At this stage in the litigation, these purely factual allegations are presumed to be true. Resnick, 693 F.3d at 1321-22. Alabama courts have recognized that a coworker acts outside his authority and with malice when he repeatedly spreads fabrications or otherwise maneuvers to get a plaintiff fired. E.g., Michelin Tire Corp. v. Goff, 864 So.2d 1068, 1078 (Ala. Civ. App. 2002) (holding that evidence of defendant's repeated attempts to get coworker fired, "if believed," demonstrated malice and actions outside scope of employment sufficient to justify trial court's grant of a new trial on tortious-interference claim); see also McGlathery, 105 So. 3d at 448 (reversing trial court's 12(b)(6) dismissal of tortious-interference claim against coworker, reasoning that the plaintiff alleged that the defendant "act[ed] without authority and maliciously"). Though it is a close call, Mr. Golloway has alleged a "pattern of interference," Perlman, 567 So. 2d at 1299, whereby Defendants worked to undermine and eventually oust their baseball coach. Thus, the operative complaint gets him to first base on his claim for tortious interference. The objection to the Recommendation is due to be sustained as to Count 5.
IV. CONCLUSION
Accordingly, it is ORDERED as follows:
1. The Recommendation of the Magistrate Judge (Doc. # 33) is ADOPTED in part and REJECTED in part;
2. Plaintiff Sunny W. Golloway's objections (Doc. # 34) are OVERRULED in part and SUSTAINED in part;
3. Defendants' motion to dismiss (Doc. # 9) is GRANTED as to Counts 1, 2, 3, and 4 of Mr. Golloway's First Amended Complaint (Doc. # 32);
4. Counts 1, 2, 3, and 4 of Mr. Golloway's First Amended Complaint (Doc. # 32) are DISMISSED with prejudice;
5. Defendants' motion to dismiss (Doc. # 9) is DENIED as to Count 5 of Mr. Golloway's First Amended Complaint (Doc. # 32); and
6. This action is REFERRED back to the Magistrate Judge for further proceedings on Count 5.
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C. § 158, generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983) (citing Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 S.Ct. 911 (1945)). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(b); Perez-Priego v. Alachua County Clerk of Court, 148 F.3d 1272 (11th Cir. 1998). However, under 28 U.S.C. § 636(c)(3), the Courts of Appeals have jurisdiction over an appeal from a final judgment entered by a magistrate judge, but only if the parties consented to the magistrate's jurisdiction. McNab v. J & J Marine, Inc., 240 F.3d 1326, 1327-28 (11th Cir. 2001).
(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988); LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a): Under this section, appeals are permitted from the following types of orders:
i. Orders granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions; However, interlocutory appeals from orders denying temporary restraining orders are not permitted. McDougald v. Jenson, 786 F.2d 1465, 1472-73 (11th Cir. 1986);
ii. Orders appointing receivers or refusing to wind up receiverships; and
iii. Orders determining the rights and liabilities of parties in admiralty cases.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 S.Ct. 1528 (1949); Atlantic Fed. Sav. & Loan Ass'n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).
2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:
(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the order or judgment appealed from is entered. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3): "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later."
(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend or reopen the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time to file an appeal may be reopened if the district court finds, upon motion, that the following conditions are satisfied: the moving party did not receive notice of the entry of the judgment or order within 21 days after entry; the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice, whichever is earlier; and no party would be prejudiced by the reopening.
(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.
4. Effect of a notice of appeal: A district court lacks jurisdiction, i.e., authority, to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).
