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Dunn v. Mississippi State University

United States District Court, N.D. Mississippi, Aberdeen Division

November 22, 2019




         Before the Court is defendant Mississippi State University's motion for partial dismissal pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) [Doc. 9] for the following claims alleged by plaintiff Autumn Dunn: retaliation under Title VII of the Civil Rights Act of 1964, retaliation under 42 United States Code § 1981, constitutional violations under 42 United States Code §1983, and punitive damages. Plaintiff Autumn Dunn has not responded to the motion. Having considered the memorandum and relevant law, the Court is prepared to rule.


         Autumn Dunn (hereinafter “Dunn”) was provided a graduate teaching assistantship position, under the supervision of Dr. Gary Ervin at Mississippi State University (hereinafter “MSU”) beginning on August 16, 2018 and ending on May 15, 2019. As compensation, she was to receive a monthly stipend of $1, 666.67 and reduced tuition and fees. Dunn alleges her stint in this position was terminated early by Dr. Ervin on November 20, 2018. She alleges that a research associate made inappropriate comments to her before and during an out of town conference. Dunn alleges she “advised other students that she would be discussing” her discomfort with the research associate's comments with Dr. Ervin. [Doc. 1, p. 3-5]. Dunn alleges that the research associate was aware of her intentions and “started conversations with [her supervising professor] about [Dunn's] behavior at the conference, ” which she claims ultimately led to the professor's termination of support for her studies and loss of her assistantship under his supervision. [Doc. 1, p.5-6].

         Standard of Review

         “When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack” prior to any other attack. Ramming v. U.S., 1 F.3d 158');">281 F.3d 158, 161 (5th Cir. 2001) (citing Hitt v. City of Pasadena, 1 F.2d 606');">561 F.2d 606, 608 (5th Cir. 1977)). A Rule 12(b)(1) motion “allows a party to challenge the subject matter jurisdiction of the district court to hear a case.” Id. If the court determines that it “lacks the statutory or constitutional power to adjudicate the case, ” then the court may properly dismiss the claim. Home Builders Assn'n v. City of Madison, Miss., 143 F.3d 1006');">143 F.3d 1006, 1010 (5th Cir. 1998). The court may base its consideration on (1) the complaint alone; (2) the complaint supplemented by undisputed facts; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Id. (citing Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996)).

         In dealing with a Rule 12(b)(1) motion, the court must first determine whether the motion is a facial or factual attack. A “facial attack” is one premised solely on the complaint and requires the court “merely to look to the sufficiency of the allegations in the complaint because they are presumed to be true.” Paterson v. Weinberger, 1');">644 F.2d 521, 523 (5th Cir. 1981). In contrast, a “factual attack” challenges the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered. Menchaca v. Chrysler Credit Corp., 13 F.2d 507');">613 F.2d 507, 511 (5th Cir. 1980). Whether the attack is facial or factual, the party asserting jurisdiction “constantly bears the burden of proof that jurisdiction does in fact exist.” Ramming, 281 F.3d at 161.

         Before the Court can grant a motion to dismiss, the Defendant must show that Plaintiff has not met the relevant pleading standard to state a claim. Defendant must show that Plaintiff's complaint fails to contain “enough facts to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 697, 129 S.Ct. 1937');">129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Plaintiff's complaint must set forth “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action” will not suffice. Colony Ins. Co. v. Peachtree Constr., Ltd., 647 F.3d 248, 252 (5th Cir. 2011) (quoting Twombly, 550 U.S. at 555 (2007)).

         This Court has previously recognized that “the purpose of a Rule 12(b)(6) motion [is] to test the formal sufficiency of the statement for relief; it is not a procedure to be invoked to resolve a contest about the facts or the merits of a case.” Edwards v. Coldwell Banker Real Estate Corp., 2006 WL 2404718, *1 (N.D. Miss. Aug. 18, 2006) (citing Murray v. Amoco Oil Co., 1385');">539 F.2d 1385 (5th Cir. 1976)). “When deciding a Rule 12(b)(6) motion to dismiss, the Court is limited to the allegations set forth in the complaint and any documents attached to the complaint.” Gatheright v. Barbour, 2017 WL 507603, *3 (N.D. Miss. Feb. 6, 2017) (citing Walker v. Webco Indus., Inc., 15');">562 Fed.Appx. 215, 216-17 (5th Cir. 2014) (per curiam)) (additional citation omitted). It is the responsibility of the Court to now 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) (additional citations omitted).


         Dunn argues that she is entitled to relief under the following: Title VII of the Civil Rights Act of 1964 for sex discrimination and retaliation, 42 United States Code § 1981 for retaliation, and 42 United States Code § 1983 for constitutional violations. Dunn also argues for punitive damages.

         MSU argues that, under Fed.R.Civ.P. 12(b)(1), Dunn's 42 U.S.C. § 1981 and 42 U.S.C. § 1983 claims should be dismissed because the Court lacks jurisdiction over those claims because of MSU's immunity under the Eleventh Amendment.

         MSU also argues under Fed.R.Civ.P. 12(b)(6), that Dunn's Title VII claim for retaliation also should be dismissed for failure to exhaust administrative remedies because the claim was not included in the Charge of Discrimination filed with the Equal Employment Opportunity Commission (hereinafter “EEOC”). MSU further argues based on Fed.R.Civ.P. 12(b)(6), that Dunn's claim for punitive damages must be dismissed because the Civil Rights Act of 1991 precludes a punitive damages recovery against governments, government agencies, and political subdivisions. However, MSU does not argue, at this time, to dismiss Dunn's Title VII sex discrimination claim.

         A. 42 U.S.C. § 1981 and 42 U.S.C. ...

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