United States District Court, S.D. Mississippi, Eastern Division
Order Filed: August 21, 2014
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For Diane Stark, Plaintiff: Kim Turner Chaze, LEAD ATTORNEY, KIM T. CHAZE, ATTORNEY, Eufaula, AL.
For University of Southern Mississippi, Dr. Martha Saunders, Board of Trustees of State Institutions of Higher Learning, Defendants: Alan M. Purdie, LEAD ATTORNEY, PURDIE & METZ, PLLC, Ridgeland, MS.
For Jeff Hammond, Individually and Officially, Defendant: J. Cal Mayo, Jr., LEAD ATTORNEY, Paul B. Watkins, Jr., MAYO MALLETTE, PLLC, Oxford, MS; Alan M. Purdie, PURDIE & METZ, PLLC, Ridgeland, MS.
MEMORANDUM OPINION AND ORDER
Keith Starrett, UNITED STATES DISTRICT JUDGE.
This matter is before the Court on the Defendant Dr. Martha Saunders' Motion to Dismiss  and the Plaintiff Diane Stark's Motion to Strike Reply Since the Reply Was Filed Eleven Days Past Deadline Without Court Permission (" Motion to Strike" ) . Having considered the submissions of the parties, the record, and the applicable law, the Court finds that both motions should be granted in part and denied in part.
Plaintiff asserts numerous federal and state law claims relating to her former employment with the University of Southern Mississippi (" USM" ) as the Senior Associate Athletics Director for Internal Affairs. Defendant Dr. Martha Saunders was the President of USM at certain times relevant to the Plaintiff's employment. Defendant Jeff Hammond was the Interim Athletics Director at certain times relevant to the Plaintiff's employment. The Defendant Board of Trustees of State Institutions of Higher Learning (the " Board" ) is charged with the management and control of Mississippi's state institutions of higher learning, such as USM, under Mississippi law. See Miss. Const. art. 8, § 213A; Miss. Code Ann. § 37-101-1.
On November 7, 2012, Plaintiff filed suit against USM, Jeff Hammond, and Dr.
Saunders in the Circuit Court of Forrest County, Mississippi. ( See State Compl. [1-2 at ECF p. 4].) The Complaint asserts the following claims for relief under state law: intentional infliction of emotional distress; negligent infliction of emotional distress; breach of implied contract; constructive discharge; outrage; negligence; menace; promissory estoppel; equitable estoppel; and detrimental reliance. It is alleged, inter alia, that Hammond made the workplace intolerable, that USM and Dr. Saunders ratified Hammond's conduct, that USM breached a contractual obligation to compensate the Plaintiff through June of 2012, and that the Plaintiff was wrongfully terminated as a result of reporting Hammond's misconduct.
On February 6, 2013, the Plaintiff filed an amended pleading in the state court, adding federal claims under Title VII, the Equal Pay Act, and the Lilly Ledbetter Fair Pay Act. ( See State Am. Compl. [5 at ECF p. 74].) These federal claims center upon alleged gender discrimination.
On February 15, 2013, Hammond removed the proceeding to this Court. ( See Notice of Removal .) Subject matter jurisdiction is asserted under Title 28 U.S.C. § 1331 based on the federal claims alleged in the Plaintiff's amended state court pleading. On February 18, 2013, USM and Dr. Saunders joined in and consented to the removal. ( See Doc. No. .)
On July 10, 2013, Plaintiff filed her Amended Complaint  in this Court, adding the Board as a Defendant. The Amended Complaint also includes a cause of action under 42 U.S.C. § 1983 for alleged deprivations of Plaintiff's Equal Protection and Due Process rights, as well as her rights guaranteed by the First Amendment of the United States Constitution. ( See Am. Compl.  at ¶ 7.)
On August 26, 2013, Dr. Saunders filed her Motion to Dismiss  pursuant to Federal Rule of Civil Procedure 12(b)(6). Dr. Saunders seeks the dismissal of all claims asserted against her in her individual capacity under 42 U.S.C. § 1983. On November 27, 2013, the Plaintiff filed her Motion to Strike , arguing that Dr. Saunders' Reply  in support of the dismissal motion should not be allowed due to untimeliness.
I. Motion to Strike 
Dr. Saunders' Reply was due to be filed by November 14, 2013, since the Plaintiff filed her Response to the Motion to Dismiss  on November 4, 2013. See Fed.R.Civ.P. 6(a), (d); L.U.Civ.R. 7(b)(4). Dr. Saunders admits that the November 25 Reply  was untimely, but argues that the Plaintiff can show no prejudice as a result of the late filing. Dr. Saunders further asserts that she mistakenly believed Plaintiff's counsel would not object to the late filing since the Plaintiff obtained unopposed extensions of time from the Court on several occasions.
The Court agrees that there is no evidence of prejudice to the Plaintiff resulting from the eleven-day delay in Dr. Saunders' filing of the Reply. However, a party seeking an extension of time to act after a deadline expires must show " excusable neglect" under Federal Rule of Civil Procedure 6(b)(1)(B), and prejudice to the opposing side is only one factor that courts usually consider in such a determination. Other factors include " the length of the applicant's delay and its impact on the proceeding, the reason for the delay and whether it was within the control of the movant, and whether the movant has acted in good faith." 4B Charles Alan Wright et al., Federal Practice and Procedure § 1165 (3d ed.) (citations omitted). Dr. Saunders' mistaken assumption that Plaintiff's
counsel would voice no objection to the late filing of the Reply does not fit neatly within the scope of these other factors.
More important, Dr. Saunders has failed to move for leave to file the Reply out of time. Under Rule 6(b), a court may extend a period of time for a party to act " with or without motion or notice if the court acts, or if a request is made, before the original time or its expiration expires" . Fed.R.Civ.P. 6(b)(1)(A) (emphasis added). " [A]fter the time has expired", a party must file a " motion" in order to obtain relief from the expired deadline. Fed.R.Civ.P. 6(b)(1)(B); see also Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 896, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) (" [A]ny post deadline extension must be upon motion made, and is permissible only where the failure to meet the deadline was the result of excusable neglect." ) (citation and internal quotation marks omitted). Dr. Saunders' Response to Plaintiff's Motion to Strike  does not qualify as a motion. See L.U.Civ.R. 7(b)(3)(C). Accordingly, the Motion to Strike  is granted to the extent that Dr. Saunders' Reply  will not be considered in the Court's disposition of the Motion to Dismiss . The motion is denied to the extent that it may be construed to request that the Reply  be stricken from the record.
II. Motion to Dismiss 
A. Standard of Review
To withstand a motion to dismiss under Rule 12(b)(6), " a 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). " A claim has facial plausibility 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. ; see also In re Great Lakes Dredge & Dock Co., 624 F.3d 201, 210 (5th Cir. 2010) (" To be plausible, the complaint's '[f]actual allegations must be enough to raise a right to relief above the speculative level.'" ) (quoting Twombly, 550 U.S. at 555). A complaint containing mere " labels and conclusions, or a formulaic recitation of the elements" is insufficient. Bowlby v. City of Aberdeen, Miss., 681 F.3d 215, 219 (5th Cir. 2012) (citation and internal quotation marks omitted). Although courts are to accept all well-pleaded facts as true and view those facts in the light most favorable to the nonmoving party, courts are not required " to accept as true a legal conclusion couched as factual allegation." Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011) (citations omitted). Ultimately, the court's task " is to determine whether the plaintiff has stated a legally cognizable claim that is plausible, not to evaluate the plaintiff's likelihood of success." In re McCoy, 666 F.3d 924, 926 (5th Cir. 2012) (citing Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010)).
Dr. Saunders asserts that she is entitled to qualified immunity on the Plaintiff's constitutional claims brought under 42 U.S.C. § 1983. Section 1983 does not provide a general remedy for state law torts or allow access to federal courts for all individuals suffering injuries at the hands of state actors. White v. Thomas, 660 F.2d 680, 683 (5th Cir. 1981). The statute " affords a remedy only to those who suffer, as a result of state action, deprivation of 'rights, privileges, or immunities secured by the Constitution and
laws' of the United States." Id. (quoting 42 U.S.C. § 1983). To state a cognizable § 1983 claim, " 'a plaintiff must (1) allege a violation of a right secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law.'" Doe ex rel. Magee v. Covington County Sch. Dist., 675 F.3d 849, 854 (5th Cir. 2012) (quoting James v. Tex. Collin County, 535 F.3d 365, 373 (5th Cir. 2008)).
A state official sued in his individual capacity under § 1983 is protected by qualified immunity insofar as his " 'conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" McCreary v. Richardson, 738 F.3d 651, 655 (5th Cir. 2013) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). " 'Although nominally an affirmative defense, the plaintiff has the burden to negate the defense once properly raised.'" Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012) (quoting Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008)). " Overcoming qualified immunity requires showing that (1) an official's conduct violated a constitutional right of the plaintiff and (2) that right was clearly established at the time of the violation." Williams v. City of Cleveland, Miss., 736 F.3d 684, 688 (5th Cir. 2013) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). Courts have discretion to address the second inquiry first. See Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).
Plaintiff's First Amendment, Equal Protection, and Due Process claims will now be measured against the preceding standards.
1. First Amendment
" [T]he First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern." Garcetti v. Ceballos, 547 U.S. 410, 417, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) (citations omitted). To establish a First Amendment retaliation claim, a plaintiff must show " that: (1) he suffered an adverse employment decision; (2) his speech involved a matter of public concern; (3) his interest in speaking outweighed the governmental defendant's interest in promoting efficiency; and (4) the protected speech motivated the defendant's conduct." Gibson v. Kilpatrick, 734 F.3d 395, 400 (5th Cir. 2013) (citing Juarez v. Aguilar, 666 F.3d 325, 332 (5th Cir. 2011)). The Fifth Circuit has recognized that in Garcetti, the Supreme Court " added a threshold" consideration to the second " public concern" inquiry. Davis v. McKinney, 518 F.3d 304, 312 (5th Cir. 2008). " We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Garcetti, 547 U.S. at 421. Whether an employee's speech is protected under the First Amendment is an issue of law. Elizondo v. Parks, 431 F.Appx. 299, 303 (5th Cir. 2011) (citing Charles v. Grief, 522 F.3d 508, 512 (5th Cir. 2008)).
The following allegations of the Amended Complaint arguably implicate a First Amendment retaliation claim:
Mr. Jeff Hammond has used his position to threaten, intrude upon, frighten, attempt to extract funds from, act outrageously, intimidate, insult, disrespect, yell at, confront, and threaten ...