VIRGINIA EMERSON HOPKINS, District Judge.
"[A] party may file a motion for summary judgment
Two motions are before the Court. The first is the Motion To Dismiss (the "Defendants' Motion") Plaintiff Jennifer Smith's Complaint filed by Defendants City of Pelham, Gary Waters, and Larry Palmer (collectively "Defendants"). (Doc. 13). In the alternative, the Defendants' Motion seeks summary judgment in favor of the Defendants. (Doc. 13 at 1). The second is a motion, under Rule 56(d), for the Court to defer considering the Defendants' alternative argument for summary judgment (the "Rule 56(d) Motion"). (Doc. 22). Both motions are ripe for review. For the reasons herein stated, the Rule 56(d) Motion is due to be
Smith filed her complaint in the Northern District of Alabama on August 8, 2017. (Doc. 1). In her Complaint, she alleges ten counts against the Defendants stemming from her employment with the City of Pelham. (See Doc. 1 at 4-10). She claims violations under Title VII, 42 U.S.C. § 1983, the Fourth Amendment, the Fourteenth Amendment, the Stored Communications Act, the Wire and Electronic Communications Interception Act, and Alabama state law. (Id. at 1-2).
A Rule 12(b)(6) motion attacks the legal sufficiency of the complaint. See FED. R. CIV. P. 12(b)(6) ("[A] party may assert the following defenses by motion: (6) failure to state a claim upon which relief can be granted[.]"). The Federal Rules of Civil Procedure require only that the complaint provide "`a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L. Ed. 2d 80 (1957) (footnote omitted) (quoting FED. R. CIV. P. 8(a)(2)), abrogated by Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 1965, 167 L. Ed. 2d 929 (2007); see also FED. R. CIV. P. 8(a) (setting forth general pleading requirements for a complaint including providing "a short and plain statement of the claim showing that the pleader is entitled to relief").
While a plaintiff must provide the grounds of his entitlement to relief, Rule 8 does not mandate the inclusion of "detailed factual allegations" within a complaint. Twombly, 550 U.S. at 555, 127 S. Ct. at 1964 (quoting Conley, 355 U.S. at 47, 78 S. Ct. at 103). However, at the same time, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, 550 U.S. at 563, 127 S. Ct. at 1969.
"[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. (emphasis added). "Under Twombly's construction of Rule 8 . . . [a plaintiff's] complaint [must] `nudge[] [any] claims' . . . `across the line from conceivable to plausible.' Ibid." Iqbal, 556 U.S. at 680, 129 S. Ct. at 1950-51.
A claim is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556, 127 S. Ct. at 1965).
Under Federal Rule of Civil Procedure 56, summary judgment is proper if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) ("[S]ummary judgment is proper if the pleadings, Depo.s, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.") (internal quotation marks and citation omitted). The party requesting summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the moving party has met its burden, Rule 56(e) requires the non-moving party to go beyond the pleadings in answering the movant. Id. at 324. By its own affidavits — or by the depositions, answers to interrogatories, and admissions on file — it must designate specific facts showing that there is a genuine issue for trial. Id.
The underlying substantive law identifies which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. Chapman, 229 F.3d at 1023. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248. A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. If the evidence presented by the non-movant to rebut the moving party's evidence is merely colorable, or is not significantly probative, summary judgment may still be granted. Id. at 249.
How the movant may satisfy its initial evidentiary burden depends on whether that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant bears the burden of proof on the given issue or issues at trial, then it can only meet its burden on summary judgment by presenting affirmative evidence showing the absence of a genuine issue of material fact — that is, facts that would entitle it to a directed verdict if not controverted at trial. Id. (citation omitted). Once the moving party makes such an affirmative showing, the burden shifts to the non-moving party to produce "significant, probative evidence demonstrating the existence of a triable issue of fact." Id. (citation omitted) (emphasis added).
For issues on which the movant does not bear the burden of proof at trial, it can satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16. First, the movant may simply show that there is an absence of evidence to support the non-movant's case on the particular issue at hand. Id. at 1116. In such an instance, the non-movant must rebut by either (1) showing that the record in fact contains supporting evidence sufficient to withstand a directed verdict motion, or (2) proffering evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. Id. at 1116-17. When responding, the non-movant may no longer rest on mere allegations; instead, it must set forth evidence of specific facts. Lewis v. Casey, 518 U.S. 343, 358 (1996). The second method a movant in this position may use to discharge its burden is to provide affirmative evidence demonstrating that the non-moving party will be unable to prove its case at trial. Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering evidence sufficient to withstand a directed verdict at trial on the material fact sought to be negated. Id.
As an initial matter, Smith moves the Court to defer consideration of (or deny) the Motion For Summary Judgment until discovery has taken place. (Doc. 22). She argues that she needs to cross examine Palmer and gather more evidence. (See id. at 4-5). In support, Smith's attorney, Sonya C. Edwards, submitted a declaration. (Doc. 22-1). In that declaration, she refers to five relevant areas in which she would like more discovery. (See Doc. 22-1 at 3-4). Specifically, she states:
(Doc. 22-1 at 4).
In response, Defendants argues that "[Smith] has failed utterly to adduce what specific facts need to be discovered in order for her to respond to the Motion." (Doc. 29 at 2). They also argue that "[s]he has also failed to demonstrate why the information in her (or her attorney's) possession . . . do not sufficiently allow her to, at this juncture, identify facts creating a genuine dispute." (Id. at 3). Defendants argue that Smith could enter a sworn affidavit showing there is a dispute, but she has not done so. (See id. at 4-7).
Judge Steele in Vision Bank v. Merritt ably states the relevant rule:
Vision Bank v. Merritt, No. 10-0301-WS-C, 2010 WL 5474161, *2 (S.D. Ala. Dec. 8, 2010) (Steele, J.) (internal footnotes omitted). The case goes on to state that:
Id. at *3.
With those principles in mind, the Court turns to the Rule 56(d) Motion. The Court is not persuaded that Smith has met her burden. It is inadequate on its merits. In it, Smith recites the differences between what the Complaint alleges and what Defendants' Motion states are undisputed facts. (See id. at 2-4). She then lists six general areas where "[d]iscovery is needed." (See id. at 4). This is not enough.
This Court is particularly persuaded by the Eleventh Circuit in Garner v. City of Ozark, 587 F. App'x 515, 518 (11th Cir. 2014). In that case, the defendants filed a motion to dismiss almost every claim and also moved for summary judgment on every claim. See id. at 516-17. "The district court granted [the plaintiff] discovery under FED. R. CIV. P. 56(d) and denied the Defendants' summary judgment motion, but with leave to refile at an appropriate time." Id. at 517. The Eleventh Circuit reversed this decision. See id. at 518-519. "[The plaintiff] has not articulated what particular facts she expects to discover. Neither has she provided any explanation of how those facts would be relevant to the issue of immunity." Id. at 518. The Eleventh Circuit also noted the particular circumstances at play when, as in this case, qualified immunity is an issue:
Id. at 518.
Smith's attorney's declaration does not specifically stated what relevant
Smith's counsel declares that "[t]he United States Supreme Court acknowledges that employees are entitled to `broad access to an employer's records.' Wards Cove Packing Co. v. Antonio, 490 U.S. 642, 657 (1989)." (Id. at 5). The Court can only assume that Smith's counsel did not actually read the Wards Cove decision. Her declaration to the contrary notwithstanding, Wards Cove does not stand for the proposition that employment discrimination cases are accorded special treatment under Rule 56.
Further, in her Rule 56(d) Motion and accompanying "declaration" (Docs. 22, 22-1), Smith never even references qualified immunity, much less explains what facts she needs to develop to allow her to address this issue central to Defendants' Motion. This failure is particularly egregious in light of the fact that one of the purposes of qualified immunity is to alleviate discovery abuse. See Garner, 587 F. App'x at 518.
The Rule 56(d) Motion is
The Court now turns to the pending Motion To Dismiss and alternative Motion for Summary Judgment. Throughout her response, Smith addresses the Motion as if it was just under Rule 12(b)(6). (See generally Doc. 23 at 3-4) (only citing the standard for 12(b)(6) motions). It was filed on the same day as her Rule 56(d) Motion, and her response to the Defendants' Motion often refers to her Rule 56(d) Motion. (See id. at 2, 3, 7, 15). Smith does not adequately respond to the Defendants' facts in her fact section; she just refers the Court to her Complaint. (Id. at 3). Her response is also lacking citations to relevant case law that one would expect on a Motion For Summary Judgment. (See id. at 4-16). For example, this is particularly pronounced in her discussion regarding Count III and XI (though there are more examples). (See id. at 7, 14-15).
Additionally, Smith seems to use this Court's decision in White v. Vivier Pharma Corp. to argue that if a defendant does not cite to a case procedurally at the 12(b)(6) stage, then it is unsupported:
(See id. at 4). That is a clear misunderstanding of what the Court did in White. All the Court did in White was decline to dismiss a claim for invasion of privacy when the defendant failed "to persuade this court that the facts asserted by Ms. White do not plausibly support an invasion of privacy claim under Alabama law." White, 2012 WL 1424916, *3. The Court was not persuaded by the defendant's cases because they were not at the 12(b)(6) stage and the defendant was arguably trying to get the court to make favorable factual determinations. See id. The Court merely declined to require more of the plaintiff than applicable case law required. See id. Smith's interpretation of White goes too far.
The Court encourages parties to cite to whatever case best advances their client's position. Those cases don't have to be just at the 12(b)(6) stage. Indeed, often times cases at summary judgment may explain that area of the law the best. Sometimes the procedural posture of the case is crucial; however, there is nothing wrong with citing to a case in a different procedural posture to show a cause of action's elements.
The Court certainly hopes that it is misunderstanding what Smith is trying to take away from the White decision. Such an argument seems particularly weak-almost disingenuous-especially when Smith's own brief cites to a case on appeal from summary judgment. (See Doc. 23 at 10) (citing Diemert v. City of Mobile, 474 So.2d 663 (1985) (in the procedural posture of a case on "appeal from a summary judgment")). That is something Smith's own brief criticized the Defendants for doing just six pages before and arguably again in the very next sentence. (See id. at 4) ("Every case cited by Defendants in this section involves either an appeal from summary judgment or a post-trial judgment as a matter of law. . . Defendants fail to cite to any authority applying the correct standard for a Rule 12(b)(6) motion to dismiss."); (see id. at 10) ("Defendants fail to cite to any Rule 12(b)(6) authority in support of their motion to dismiss."). Smith later cites to another case at summary judgment. (See Doc. 23 at 11) (citing Hope For Families & Cmty. Serv., Inc. v. Warren, 721 F.Supp.2d 1079 (M.D. Ala. 2010) ("These claims are before the court on motions for summary judgment.")).
Smith clearly put most of her eggs in the Rule 56(d) basket.
In conclusion, the Court takes the following actions:
Wards Cove Packing Co., 490 U.S. at 657-58.
