Builders Flooring Connection, LLC v. Brown Chambless Architects, LLC et al
OPINION AND ORDER that the 78 Motion to Dismiss filed by dft Wanda C. Blake is granted in part and denied in part as follows: (1) Count 1 of the first amended complaint, alleging a violation of the Sherman Antitrust Act, 15 USC § 1, et seq., i s dismissed as to dft Blake; (2) Count 3 of the first amended complaint, alleging a state-law claim of interference with business relations, is not dismissed and will proceed in this case. Signed by Honorable Judge Myron H. Thompson on 1/16/2014. (Attachments: # 1 Civil Appeals Checklist) (wcl, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
BROWN CHAMBLESS ARCHITECTS, )
LLC; et al.,
CIVIL ACTION NO.
OPINION AND ORDER
Plaintiff Builders Flooring Connection, LLC filed
this action against defendant Wanda C. Blake and others,
asserting a violation of the Sherman Antitrust Act, 15
U.S.C. § 1 et seq., as well as state-law claims of
Blake is named in the antitrust count
and one count of interference with business relations.
Jurisdiction is proper under 28 U.S.C. §§ 1331 (federal
question) and 1367 (supplemental).
This matter is now before the court on Blake’s motion
to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and (6),
based on (1) state-action immunity from the antitrust
laws; (2) Eleventh Amendment immunity; and (3) Alabama
The motion will be granted as
to the antitrust claim and denied as to the only statelaw claim against her.
I. MOTION-TO-DISMISS STANDARD
In considering a motion to dismiss, the court accepts
the plaintiff’s allegations as true, Hishon v. King &
Spalding, 467 U.S. 69, 73 (1984), and construes the
complaint in the plaintiff’s favor, Duke v. Cleland, 5
F.3d 1399, 1402 (11th Cir. 1993).
See also Sea Vessel,
Inc. v. Reyes, 23 F.3d 345, 347 (11th Cir. 1994) (for the
purposes of a “facial attack on the complaint” under rule
12(b)(1), “the allegations in [the] complaint are taken
as true”) (internal quotation marks omitted).
This case arises out of a dispute over bidding for
The plaintiff, Builders Flooring,
alleges that a competitor, defendant Weiss Flooring,
Inc., as well as its owner, defendant Robert P. Weiss,
colluded with various architecture firms and individual
architects, also named as defendants, to fix the bidding
contracts for flooring projects.
University Montgomery ("AUM"), conspired with the other
defendants “to rig the bid specifications so that Weiss
Flooring would receive a substantial advantage toward
being awarded the contracts.”
75) at 6.
First Am. Compl. (Doc. No.
Specifically, Builders Flooring alleges that
Blake conspired with defendant architecture-firm Goodwyn,
renovations at various AUM buildings.
Id. at 9, 10.
Blake was named in Count 1 (antitrust) and Count 3
The defendants moved to dismiss the case on the
insufficient to state a plausible claim for relief.
court summarily denied those motions. Blake also moved to
dismiss on immunity grounds.
The court initially denied
that motion as well, and, after she filed a motion for
reconsideration and to stay, Blake appealed the denial.
Because the motion for reconsideration was pending, the
court of appeals suspended the appellate case; it has
1. Builders Flooring sought and was granted leave to
file a second amended complaint (doc. nos. 140 & 153) but
has not yet done so. See Administrative Procedures for
Filing, Signing, and Verifying Pleadings and Documents in
the District Court Under the Case Management/Electronic
Case Files (CM/ECF) System in the United States District
Court for the Middle District of Alabama, at 6 (upon
receiving leave to file Amended Complaint, it is the
attorney’s obligation to file the amended complaint
The second amended complaint is
therefore not yet operative. Regardless, the relevant
portions of the proposed second amended complaint are
identical, and this opinion will apply to that complaint
if and when it is filed.
since been dismissed as moot.
The court granted Blake’s
motion for reconsideration, vacated the denial of her
motion to dismiss, and reinstated the motion to dismiss.
The court subsequently heard oral argument on Blake’s
defense of immunity and requested supplemental briefing.
The matter of Blake’s entitlement to immunity is now ready
As to the antitrust claim, Blake argues that she is
immune under both the specific doctrine of state-action
immunity from antitrust laws.
As to the single state-law
claim against her, she argues she is immune under the
Eleventh Amendment and Alabama state-sovereign immunity,
Ala. Const. Art. I, § 14. Finally, if the antitrust claim
is dismissed, Blake argues that the court should decline
to exercise its supplemental jurisdiction over her as to
any remaining state-law claim.
A. Parker Antitrust Immunity
Blake first argues that she is entitled to “stateaction” immunity from the federal antitrust laws as to
This so-called “Parker” immunity is grounded in
Parker v. Brown, 317 U.S. 341 (1943).
In Parker, the
Supreme Court considered a challenge under the Sherman Act
to a California regulatory program aimed at restricting
competition among growers in order to maintain prices.
317 U.S. at 346.
The Court rejected the argument that
this regulatory scheme violated the Sherman Act.
Court concluded that the State “as sovereign” had “imposed
the restraint as an act of government which the Sherman
Act did not undertake to prohibit.”
Id. at 352.
words, Parker immunity exempts from federal antitrust
sovereign. See F.T.C. v. Phoebe Putney Health Sys., Inc.,
133 S. Ct. 1003, 1010 (2013) (“the Act should not be read
to bar States from imposing market restraints ‘as an act
of government’”) (quoting Parker, 317 U.S. at 352).
Blake argues that she is entitled to Parker immunity.
As the complaint alleges, she was at all relevant times
the vice-chancellor of financial affairs for AUM.
specifications for buildings and renovations, including
the specifications for renovations that Builders Flooring
alleges she rigged.
Id. at 4, 9, 10.
It is well
established that AUM, as a public university, is an arm of
the State of Alabama.
See Cardwell v. Auburn Univ.
Montgomery, 941 F. Supp. 2d 1322, 1328 (M.D. Ala. 2013)
(Fuller, J.), and cases cited.
Thus, Blake argues, her
actions as alleged were acts of the State of Alabama, and
she therefore is entitled to the State’s Parker immunity.
Blake’s argument finds strong support in Saenz v.
Univ. Interscholastic League, 487 F.2d 1026, 1027 (5th
In Saenz, the plaintiff sued the University
Interscholastic League (“UIL”) and the State Director of
2. The Eleventh Circuit has adopted as precedent all
decisions of the former Fifth Circuit rendered prior to
October 1, 1981. Bonner v. City of Prichard, 661 F.2d
1206, 1207 (11th Cir. 1981)(en banc).
its Slide Rule Contest, a Mr. Lenhart.
Saenz had wanted
to enter his “Accuraspeed” slide rule in the contest and
alleged that Lenhart “defined UIL regulations arbitrarily
to exclude the Accuraspeed slide rule.”
sued a competitor, Ridgeway, which was allowed to enter
Saenz alleged that his exclusion “stemmed
from the defendants’ conspiracy to thwart Accuraspeed’s
originated in a financial relationship between Ridgway and
Lenhart.” Id. In other words, Saenz alleged that Lenhart
personally conspired to rig the UIL’s regulations in order
to benefit Ridgway.
Similarly, in this case, Builders
Flooring has alleged that Blake personally conspired to
rig the bid specifications in order to benefit Weiss
The former Fifth Circuit Court of Appeals granted
Parker immunity to UIL and Lenhart. It concluded that the
UIL, “[a]s an integral part of the University of Texas at
Austin,” constituted “a governmental entity outside the
ambit of the Sherman Act.”
Id. at 1028.
The court found
that, “This shield of immunity, of course, is not limited
to governmental agencies alone but extends as well to
officers or agents of the State.” Id. (citing Parker, 317
U.S. at 350-51).
“As the state director of the UIL’s
Slide Rule Contest,” the court continued, “Lenhart was
determining that Saenz’s Accuraspeed failed to meet the
requirements of a ‘standard slide rule’ and in submitting
this decision to the UIL’s Legislative Committee for
Saenz is factually and legally directly on point in
As noted above, AUM, like UIL, is part of the
State. See Cardwell, 941 F. Supp. 2d at 1328. Therefore,
under Saenz’s rule, AUM shares in the State’s Parker
Similarly, Builders Flooring has conceded that
its suit arises out of Blake’s actions as vice-chancellor.
Therefore she, like Lenhart, is entitled to share in AUM’s
This conclusion is only bolstered by the fact the
university officer in Saenz, like Blake, was accused of a
private conspiracy to rig the rules for some personal
motive. Despite that alleged malfeasance, the Saenz court
granted Lenhart immunity; therefore, Builder Flooring’s
architects does not affect her entitlement to immunity.
If Saenz is good law, then Blake is immune.
Builders Flooring does not dispute that Saenz is on
point; instead, it argues that subsequent developments
(both by the Supreme Court and the Fifth and Eleventh
Circuits) have established that only the legislatures and
supreme courts of States are ipso facto entitled to
immunity; all others must make the additional showing of
at least a clearly articulated and affirmatively expressed
Builders Flooring therefore argues that
Saenz is no longer good law.
argument. Saenz was decided 40 years ago, prior to nearly
all of Parker’s progeny; and, even at that time, the court
granted immunity without engaging in any significant legal
analysis. In the intervening years, the Supreme Court has
addressed Parker immunity in a variety of circumstances
and has articulated three different analyses for the
applicability of Parker immunity.
immunity, with no further analysis required, in very
limited circumstances: only where the challenged action
was undertaken by the State’s legislature or supreme
court, acting in a legislative capacity.
See Hoover v.
Ronwin, 466 U.S. 558, 567-68 (1984) (“under the Court’s
rationale in Parker, when a state legislature adopts
legislation, its actions constitute those of the State and
ipso facto are exempt from the operation of the antitrust
laws,” and “a state supreme court, when acting in a
Second, in the case of private
parties who seek to shield their anticompetitive conduct
in Parker immunity, the Court has required “first that
‘the challenged restraint ... be one clearly articulated
and affirmatively expressed as state policy,’ and second
Phoebe Putney, 133 S.Ct. at 1010 (quoting
California Retail Liquor Dealers Assn. v. Midcal Aluminum,
Inc., 445 U.S. 97, 105 (1980)). Third, the Court has held
that sub-state governmental units, such as municipalities
and counties, are not ipso facto entitled to Parker
See City of Columbia v. Omni Outdoor Adver.,
Inc., 499 U.S. 365, 370 (1991).
The Court’s test for
cities is the first prong of its test for private persons;
Town of Hallie v. City of Eau
Claire, 471 U.S. 34, 47 (1985).
The Supreme Court has never decided what analysis is
appropriate to determine whether a state-level executivebranch official or agency is entitled to Parker immunity.
It has not held that those agencies and officials are ipso
Indeed, the Court expressly reserved the
question of whether even the governor is ipso facto
Hoover, 466 U.S. at 568 n.17.
Every court of appeals addressing this issue has held
that state-level executive officials and agencies, like
the state legislature and supreme court, are ipso facto
See Saenz, 487 F.2d at 1027; Neo Gen Screening,
Inc. v. New England Newborn Screening Program, 187 F.3d
caveats”); Charley's Taxi Radio Dispatch Corp. v. SIDA of
Deak-Perera Hawaii, Inc. v. Dep't of Transp., 745 F.2d
1281, 1283 (9th Cir. 1984); see also S. Carolina State Bd.
of Dentistry v. F.T.C., 455 F.3d 436, 442 n.6 (4th Cir.
2006) (declining to address the question).
At least two
district courts in other circuits have held likewise in
Diagnostic Servs., Inc. v. Univ. of Utah, 801 F. Supp.
508, 513 (D. Utah 1990) (Jenkins, J.); Bd. of Governors of
Univ. of N. Carolina v. Helpingstine, 714 F. Supp. 167,
176 (M.D.N.C. 1989) (Bullock, J.).
The court acknowledges that, as Builders Flooring
argues, the Supreme Court’s Parker cases cast serious
doubt on that conclusion.
See Hoover, 466 U.S. at 568
(“Closer analysis is required when the activity at issue
is not directly that of the legislature or supreme court,
authorization.”); Southern Motor Carriers Rate Conference,
Inc. v. United States, 105 S.Ct. 1721, 1729 (1985) (“‘not
every act of a state agency is that of the State as
sovereign’”) (quoting Lafayette v. Louisiana Power 61 &
Light Co., 435 U.S. 389, 410, (1978) (plurality opinion));
Hoover, 466 U.S. at 591 (same); Southern Motor, 105 S.Ct.
at 1726 (“The circumstances in which Parker immunity is
available to private parties, and to state agencies or
officials regulating the conduct of private parties, are
defined most specifically by our decision in [Midcal].”)
(emphasis added); Town of Hallie, 471 U.S. at 46 n.10 (“In
cases in which the actor is a state agency, it is likely
that active state supervision would also not be required,”
suggesting by negative inference that the other part of
the Midcal test, clear articulation, would apply to those
cases); see also S. Carolina State Bd. of Dentistry, 455
“suggested” that executive branch officers are not ipso
However, in this case the court is bound by Saenz.
Under Eleventh Circuit law, trial courts “are bound to
follow a prior binding precedent ‘unless and until it is
overruled by [the Eleventh Circuit] en banc or by the
Supreme Court.’” United States v. Vega-Castillo, 540 F.3d
1235, 1236 (11th Cir. 2008) (quoting United States v.
Brown, 342 F.3d 1245, 1246 (11th Cir. 2003)). There is no
en banc Eleventh Circuit case overturning Saenz. Builders
Flooring argues in essence that Saenz has been overruled
by the subsequent Supreme Court cases.
But to overcome
the prior precedent rule, the Supreme Court’s “decision
must have actually overruled or conflicted with” the prior
Id. at 1237 (quotation marks omitted); see
also United States v. Archer, 531 F.3d 1347, 1352 (11th
Cir. 2008) (prior precedent may also be “undermined to the
point of abrogation”).
Because “[t]here is a difference
between the holding in a case and the reasoning that
supports that holding,” the Eleventh Circuit’s rule is
that “[e]ven if the reasoning of an intervening high court
decision is at odds with a prior appellate court decision,
that does not provide the appellate court with a basis for
departing from its prior decision.”
F.3d at 1237.
Applying these principles to the question of Parker
immunity, the court finds that it is bound.
Saenz may have been undercut, there is no Supreme Court
case that holds that executive officials and agencies are
not entitled to ipso facto immunity.
Rather, the Court’s
various statements about that issue were all made in the
individuals or sub-state entities.
Cases about Parker
immunity in other contexts cannot have overruled Saenz, a
case about immunity for an executive agency.
Accordingly, this court concludes that, under binding
precedent, Blake is entitled to Parker immunity as to the
B. State-Law Claim
Parker immunity disposes of only the antitrust claim;
the court must address Blake’s other arguments as to the
remaining claim against her of interference with business
She makes three arguments: first, that she is
entitled to Eleventh Amendment immunity; second, that she
is entitled to Alabama’s state-sovereign immunity; and
third, that the court should decline jurisdiction over
this claim in the exercise of discretion.
i. Eleventh Amendment Immunity
The Eleventh Amendment shields the State itself as
well as arms of the State from suit for damages.
v. McIntosh, 722 F.3d 1294, 1297 (11th Cir. 2013).
appears to be no dispute that this suit is for damages and
that AUM is an arm of the State.
See Cardwell, 941 F.
Supp. 2d at 1328 (finding AUM to be entitled to Eleventh
Instead, Builders Flooring argues
that it is suing Blake in only her individual capacity and
that it seeks no damages from the State or from AUM.
When a state officer is sued for damages in her
official capacity, she is entitled to the State’s Eleventh
Amendment immunity; when she is sued in her individual
capacity, she is not.
Hobbs v. Roberts, 999 F.2d 1526,
1528 (11th Cir. 1993).
To determine in what capacity an
officer is sued, the court looks to “the complaint and the
course of proceedings.”
Colvin v. McDougall, 62 F.3d
1316, 1317 (11th Cir. 1995). “The main concern of a court
in determining whether a plaintiff is suing defendants in
their official or individual capacity is to ensure the
defendants in question receive sufficient notice with
respect to the capacity in which they are being sued.”
Young Apartments, Inc. v. Town of Jupiter, FL, 529 F.3d
1027, 1047 (11th Cir. 2008). “In looking at the course of
proceedings, courts consider such factors as the nature of
plaintiff’s claims, requests for compensatory or punitive
damages, and the nature of any defenses raised in response
immunity which serve as an indicator that the defendant
had actual knowledge of the potential for individual
The complaint and course of proceedings in this case
3. The first amended complaint provides, “Defendant
Wanda C. Blake ... is an individual citizen and resident
of Alabama. At all times material hereto, Blake was the
University Montgomery and provided bid specifications for
Montgomery.” First Am. Compl. (Doc. No. 75) at 4. Each
Builders Flooring seeks compensatory and punitive damages
from Blake as to the state-law claim, which suggests that
it has sued Blake in her personal capacity.
her part, has not raised qualified immunity as a defense
to the federal claim against her, a defense that would
suggest that she understood this to be an individualcapacity suit.
Of course, the court is conscious of the
possibility that a litigant may refrain from asserting
qualified immunity precisely in the hopes that the court
will rely on that circumstance in characterizing the case
as an official-capacity suit.
Regardless, in its briefing on the motion to dismiss
Flooring has been perfectly clear that it is seeking to
sue Blake in her personal capacity only.
Eleventh Circuit’s guidance that the core issue is notice,
Builders Flooring’s statement at this early stage is
party claims this language supports its argument; in the
court’s view, it supports neither.
Nothing other than the motions to dismiss
have been litigated in this matter.
If she did not
before, Blake now has “actual knowledge of the potential
for individual liability.”
Young Apartments, 529 F.3d at
Alternatively, of course, the court could, and
complaint to explicitly state that it is suing Blake in
Blake is on notice; to insist on dismissal on this basis
now would be gamesmanship.
Blake argues that she must have been sued in her
operating in her official capacity” during the course of
conduct which Builders Flooring alleges.
Br. in Support
of Motion to Dismiss (Doc. No. 79) at 10.
officers sued in their personal capacities are almost
always sued for things they did while operating in their
See, e.g., Kentucky v. Graham, 473
U.S. 159, 165 (1985) (“Personal-capacity suits seek to
impose personal liability upon a government official for
actions he takes under color of state law.”).
the fact that her actions were taken as an AUM official
does not determine in what capacity she is being sued.
Her motion to dismiss to the extent it is based on the
Eleventh Amendment is denied.
ii. Alabama’s State-Sovereign Immunity
Next, Blake raises Alabama sovereign immunity, Ala.
Const. Art. I § 14.
Builders Flooring responds that
Alabama’s state immunity does not apply to an officer’s
actions that are malicious, fraudulent, or in bad faith.
Section 14 provides, “That the State of Alabama shall
never be made a defendant in any court of law or equity.”
Ex parte Davis, 930 So.2d 497, 500 (Ala.
2005) (internal quotation marks omitted).
with the Eleventh Amendment, § 14 does not necessarily
immunize state officers from civil liability in their
“Whether immunity serves as a
defense to an action against a state officer or employee
sued in his individual capacity depends upon the degree to
which the action involves a State interest. Our cases
adhere to the view that the State has an interest such as
will prohibit suit against the State official or employee
where the action is, in effect, against the State.”
(internal quotation marks omitted).
officer is, in fact, one against the State, [the Alabama
Supreme] Court considers  whether a result favorable to
the plaintiff would directly affect a contract or property
right of the State,  whether the defendant is simply a
conduit through which the plaintiff seeks recovery of
damages from the State, ... and  whether a judgment
against the officer would directly affect the financial
status of the State treasury.”
Bd. of Sch. Comm'rs of
Mobile Cnty. v. Weaver, 99 So. 3d 1210, 1218 (Ala. 2012)
(citations and internal quotation marks omitted).
In this case, Builders Flooring has alleged that
Blake herself conspired with the other defendants.
other words, the claim is not that AUM decided to conspire
with the other defendants and that Blake merely carried
out that decision.
There is, therefore, no reason to
contract or property right of the university, or that
Blake has been sued merely as a conduit, or that a
judgment will directly affect the university or state
Therefore, this suit is not, in effect, one
against the State.
recognized, as one of the classes of cases that are not
“against the state” and therefore not barred by § 14,
“actions for injunction or damages brought against State
individually where it was alleged that they had acted
fraudulently, in bad faith, beyond their authority or in
quotation marks omitted). In this case, Builders Flooring
has alleged, at the least, that Blake acted in bad faith;
as such, she is not entitled to immunity.
iii. Exercise of Supplemental Jurisdiction
Finally, Blake argues that the court should exercise
its discretion and dismiss the state-law claim against her
now that the federal claim will be dismissed.
supplemental jurisdiction under certain circumstances,
including if “the district court has dismissed all claims
over which it has original jurisdiction.”
§ 1367(c)(3); see also Carlsbad Tech., Inc. v. HIF Bio,
Inc., 556 U.S. 635, 639 (2009) (“A district court’s
jurisdiction is purely discretionary”).
Blake’s argument raises a legal question: does 28
U.S.C. § 1367(c) authorize a court to decline supplemental
jurisdiction over claims against a particular defendant
when it has dismissed all the federal claims against only
that defendant, as Blake argues? Or does it authorize the
court to decline supplemental jurisdiction only if it has
dismissed the federal claims as to all defendants? Courts
appear to be split on this issue.
Compare Gudenkauf v.
Stauffer Commc'ns, Inc., 896 F. Supp. 1082, 1084 (D. Kan.
1995) (Crow, J.) (“As long as one of the parties to the
suit has federal claims pending against it, the court has
mandatory supplemental jurisdiction over all claims and
parties related”) with Samedi v. Miami-Dade Cnty., 206 F.
Supp. 2d 1213, 1223 (S.D. Fla. 2002) (Hoeveler, J.)
(dismissing state-law claims against county despite live
federal claims against other defendants) (citing
County of Schuylkill, 866 F.Supp. 1462 (E.D.Pa. 1994)
However, the court need not reach this issue.
if the court had the discretion to dismiss the state-law
claim against Blake, it would decline to do so.
factors, such as “judicial economy, convenience, fairness
to the parties, and whether all the claims would be
expected to be tried together,” in determining whether to
dismiss the claim against Blake. Palmer v. Hosp. Auth. of
Randolph Cnty., 22 F.3d 1559, 1569 (11th Cir. 1994).
Here, it is clear that all the factors weigh in favor of
Blake remaining in this case.
To decline supplemental
jurisdiction would be to invite Builders Flooring to bring
its claim in state court; but this action will proceed in
federal court based on the same facts and arguments
wasteful, inconvenient, and unfair to Builders Flooring.
The court declines to dismiss the state-law claim against
Accordingly, it is ORDERED that the motion to dismiss
(Doc. No. 78) filed by defendant Wanda C. Blake is granted
in part and denied in part as follows:
(1) Count 1 of the first amended complaint, alleging
a violation of the Sherman Antitrust Act, 15 U.S.C. § 1,
et seq., is dismissed as to defendant Blake.
(2) Count 3 of the first amended complaint, alleging
a state-law claim of interference with business relations,
is not dismissed and will proceed in this case.
DONE, this the 16th day of January, 2014.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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