United States District Court, N.D. Mississippi, Greenville Division
DR. WILLIAM BILL HAYS, Plaintiff,
WILLIAM N. LAFORGE, in his official capacity as President of Delta State University and in his individual capacity, Defendant.
MEMORANDUM OPINION GRANTING DEFENDANT'S MOTION TO DISMISS
GLEN H. DAVIDSON, Senior District Judge.
Presently before the Court is Defendant William N. LaForge's motion to dismiss  filed pursuant to Rules 12(b)(l) and 12\(b)(6) of the Federal Rules of Civil Procedure. Upon due consideration, the Court finds that the motion is well taken and should be granted, for the reasons set forth below.
A. Factual and Procedural Background
On October 20, 2014, Plaintiff Dr. William Bill Hays ("Plaintiff'), former Chair of the Division of Languages and Literature at Delta State University, filed this action against Defendant, William N. LaForge, in his official capacity as President of Delta State University and in his individual capacity ("Defendant"). Plaintiff asserts a federal claim for First Amendment free speech retaliation under 42 U.S.C. § 1983 against Defendant in his official capacity and state law claims for slander, slander per se, false light invasion of privacy, and intentional infliction of emotional distress against Defendant in his individual capacity. Plaintiff alleges the following facts in support of his claims:
Delta State University hired Plaintiff in August of 1981. Pl.'s 2d Am. Compl.  ¶ 4. For many years, Plaintiff served as Chair of the Division of Languages and Literature, a position which carried an enhancement to his teaching salary. Id. On May 22, 2014, Plaintiff was notified by letter from Paul Hankins, Interim Dean of the College of Arts and Sciences, that Plaintiff would not be reappointed to the administrative office of Chair of the Division; no explanation was given for the decision, which was made by Defendant. Id. ¶¶ 5-6. Plaintiff approached Hankins for an explanation but was repeatedly told, "It's not for cause. It's not for cause." Id. ¶ 7. Plaintiff now serves as a professor of English at Delta State University. Id. ¶ 2.
Plaintiff alleges that his removal from the division chair position occurred even though he "regularly received top ratings on annual evaluations, " id. ¶ 8; over the years "demonstrated a deep commitment to advocacy for all faculty, not just those in his Division, as well as for all students, not just those within his Division, " id. ¶ 9; and "routinely sought transparency of University financial matters, including access by the public at large to the University budget, " id. Plaintiff maintains that his "efforts on behalf of all students and faculty, for academic freedom and fairness, as well as for public access to the budget and transparency of University administration decisions, frequently put him at odds with University administration." Id. ¶ to. Plaintiffs second amended complaint sets out in detail several of his alleged activities on behalf of students and faculty, as well as the alleged opposition he received from university administration as a result of these activities. See id. ¶ 11 (a)-(x). Plaintiff alleges that during a departmental meeting of the Division of Languages and Literature on August 15, 2014, Defendant, Dean of Arts and Sciences David Breaux, and Provost Charles McAdams "unexpectedly arrived" and that "[f]or at least 15 minutes [Defendant] launched a tirade of criticism and threats, directed at [Plaintiff], in a deliberate attempt to humiliate him before his peers and intimidate him and them"; Plaintiffs second amended complaint recounts Defendant's alleged statements at that meeting. See id. ¶¶ 12-19.
On April 10, 2015, Defendant filed the present motion to dismiss  pursuant to Rules 12(b)(1) and 12(b)(6). Plaintiff has filed a response, and Defendant has filed a reply. The matter is now ripe for review.
B. Analysis and Discussion
In his motion to dismiss, Defendant contends that Plaintiffs 42 U.S.C. § 1983 First Amendment free speech retaliation claim must be dismissed for the following reasons. First, Plaintiff contends pursuant to Rule 12(b)(1) that Defendant is subject to Eleventh Amendment immunity on the claim. Second, Defendant contends pursuant to Rule 12(b)(6) that Plaintiff has failed to state a claim for First Amendment free speech retaliation. In addition, Defendant contends that in the event the Court dismisses the federal claim the Court should decline to exercise supplemental jurisdiction over the remaining state law claims.
"When a Rule 12(b)(1) motion is filed in conjunction with a Rule 12(b)(6) motion, ... courts must consider the jurisdictional challenge first." McCasland v. City of Castroville, Tex., 478 F.Appx. 860, 860 (5th Cir. 2012) (per curiam) (citing Wolcott v. Sebelius, 635 F.3d 757, 762 (5th Cir. 2011); Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir. 1994)). This "prevents a court without jurisdiction from prematurely dismissing a case with prejudice.'" Id. at 860-61 (quoting Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam)); accord Hitt v. City of Pasadena, Tex., 561 F.2d 606, 608 (5th Cir. 1977) (per curiam). Accordingly, the Court will first address Defendant's arguments for dismissal under Rule 12(b)(1) and will then address Defendant's arguments for dismissal under Rule 12(b)(6).
A Rule 12(b)(1) motion allows a party to challenge the Court's subject matter jurisdiction. "[A] factual attack under Rule 12(b)(I) may occur at any stage of the proceedings, and plaintiff bears the burden of proof that jurisdiction does in fact exist.'" Arena v. Graybar Elec. Co., 669 F.3d 214, 223 (5th Cir. 2012) (quoting Menchaca v. Chrysler Credit. Corp., 613 F.2d 507, 511 (5th Cir. 1980) (citations omitted)).
The Fifth Circuit has instructed:
A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case. In considering a challenge to subject matter jurisdiction, the district court is free to weigh the evidence and resolve factual disputes in order to satisfy itself that it has the power to hear the case. Thus, under Rule 12(b)(I), the district court can resolve disputed issues of fact to the extent necessary to determine jurisdiction[.]
Smith v. Reg'l Transit Auth., 756 F.3d 340, 347 (5th Cir. 2014) (quotation marks and citation omitted).
In ruling on a Rule 12(b)(1) motion to dismiss, the Court may rely on (1) the complaint alone, presuming the allegations to be true; (2) the complaint supplemented by undisputed facts; or (3) the complaint supplemented by undisputed facts and by the Court's resolution of disputed facts. See Freeman v. United States, 556 F.3d 326, 334 (5th Cir. 2009) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)). "Dismissal with prejudice for failure to state a claim is a decision on the merits and essentially ends the plaintiffs lawsuit, whereas a dismissal on jurisdictional grounds alone is not on the merits and permits the plaintiff to pursue his claim in the same or in another forum." Hitt, 561 F.2d at 608.
In the case sub judice, Defendant contends pursuant to Rule 12(b)(I) that he is entitled to sovereign immunity on the First Amendment free speech retaliation claim. "The Eleventh Amendment strips courts of jurisdiction over claims against a state that has not consented to suit." Pierce v. Hearn Indep. Sch. Dist., 600 F.Appx. 194, 197 (5th Cir. 2015) (per curiam) (citing Pennhurst State Sch. & Hasp. v. Halderman, 465 U.S. 89, 100-Dl, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984)).
Sovereign immunity is a broad jurisdictional doctrine prohibiting suit against the government absent the government's consent. Sovereign immunity was assumed at common law, brought from England to the colonies, and existed prior to the ratification of the United States Constitution. Although the term "sovereign immunity" nowhere appears in the Constitution, the concept was perhaps woven into the very fabric of the document. Andrew Hamilton explained:
It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union.
The Federalist No. 81, at 511 (Alexander Hamilton) (Wright ed., 1961). At the Virginia ratifying convention, James Madison stated: "Jurisdiction in controversies between a state and citizens of another state is much objected to, and perhaps without reason. It is not in the power of any individuals to call any state into court." 3 Debates on the Federal Constitution 533 (J. Elliot 2d ed., 1854). At that same convention, John Marshall stated: "With respect to disputes between a state and the citizens of another state, its jurisdiction has been decried with unusual vehemence. I hope no gentleman will think that a state will be called at the bar of the federal court." 3 id., at 555.
Despite the long-standing principle of sovereign immunity, in 1793, the United States Supreme Court held that a state could be sued by a citizen of another state or a foreign country. See Chisolm v. Georgia, 2 Dall. 419, 1 L.Ed. 440 (1793). But five years later, the states ratified the Eleventh Amendment, which provides: "The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI; see C. Jacobs, The Eleventh Amendment and Sovereign Immunity 64-75 (1972). The Fifth Circuit has stated: "Eleventh Amendment immunity operates like a jurisdictional bar, depriving federal courts of the power to adjudicate suits against a state." Union P. R. Co. v. La. Pub. Servo Comm'n, 662 F.3d 336, 340 (5th Cir. 2011) (internal citations omitted). "The Eleventh Amendment grants a State immunity from suit in federal court by citizens of other States, and by its own citizens as well." Lapides v. Bd. of Regents, 535 U.S. 613, 616, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002) (citation omitted). Indeed, "[t]he amendment has been judicially construed to bar federal jurisdiction over suits brought against a state by its own citizens, despite the absence of language to that effect." See Jagnandan v. Giles, 538 F.2d 1166, 1177 (5th Cir.), cert. denied, 432 U.S. 910, 97 S.Ct. 2959, 53 L.Ed.2d 1083 (1977) (citations omitted). Both federal and state law claims are barred from being asserted against a state in federal court. Pennhurst State Sch. & Hosp., 465 U.S. at 119-21, 104 S.Ct. 900.
State immunity "extends to any state agency or entity deemed an alter ego' or arm' of the state." Perez v. Region 20 Educ. Servo Ctr., 307 F.3d 318, 326 (5th Cir. 2002). "This immunity also extends to state officials who are sued in their official capacities because such a suit is actually one against the state itself." New Orleans Towing Ass'n, Inc. v. Foster, 248 F.3d 1143, 2001 WL 185033, at *3 (5th Cir. Feb. 6, 2001); see Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) (citing Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)); Pennhurst, 465 U.S. at 117, 104 S.Ct. 900.
As its name implies, Delta State University is a state university in Mississippi and is managed and controlled by the Board of Trustees of State Institutions of Higher Learning. See Miss. Const. art. VIII, § 213A; Miss. Code Ann. § 25-65-5(a); United States v. Fordice, 505 U.S. 717, 721, 112 S.Ct. 2727, 120 L.Ed.2d 575 (1992); Ayers v. Thompson, 358 F.3d 356, 360 n.3 (5th Cir. 2004). Therefore, Delta State University is an arm of the State of Mississippi unless an exception applies. See Jagnandan, 538 F.2d at 1175. There are three possible exceptions to Eleventh Amendment immunity: (i) ...