United States District Court, N.D. Mississippi, Aberdeen Division
MICHAEL P. MILLS, UNITED STATES DISTRICT JUDGE
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.
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,
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)).
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.
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)).
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).
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
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
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
42 U.S.C. § 1981 and 42 U.S.C. ...