McCray v. Auburn University Montgomery

Filing 2

MEMORANDUM OPINION AND ORDER (entered in Civil Action No. 2:11cv503-WHA) directing that: (1) plaintiffs Singleton, McCray, and Martin are severed from the present action; (2) the clerk is directed to assign new case numbers for separate Singleton, Mc Cray, and Martin actions, with those actions to be assigned to the undersigned district judge and the same magistrate judge; (3) the clerk is directed to open each new case with the Complaint (Doc. #1) from this case, and to file this order also with each new case; (4) the clerk is directed to open each new case with the original filing date June 24, 2011; (5) Singleton, McCray, and Martin are directed to file amended complaints to appropriately plead their case as a single plaintiff pursuant to the relevant Federal Rules of Civil Procedure and MD AL Rule 15.1 by 9/16/2011; (6) Foster is directed to file an amended complaint to appropriately plead her case as a single plaintiff pursuant to the relevant Federal Rules of Civil Procedure and MD AL Rule 15.1 by 9/9/2011. Signed by Honorable Judge W. Harold Albritton, III on 9/1/11. (djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

DEBRA S. FOSTER; BEASLEY
SINGLETON; LOUVENIA MCCRAY;
DR. RICHARD MARTIN,
Plaintiffs,
v.
CSC
AUBURN UNIVERSITY
MONTGOMERY; KATHERINE
JACKSON
Defendants.

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(WO)

MEMORANDUM OPINION AND ORDER
I. INTRODUCTION AND PROCEDURAL HISTORY
This case is before the court on a Motion to Sever (Doc. # 11) filed by Defendants
Auburn University Montgomery (“AUM”) and Dr. Katherine Jackson (“Jackson”) on July 20,
2011.
The Plaintiffs, Debra S. Foster (“Foster”), an African-American female, Beasley
Singleton (“Singleton”), an African-American male, Louvenia McCray (“McCray”), an AfricanAmerican female, and Dr. Richard Martin (“Martin”), a white male, filed a Complaint in this
court on June 24, 2011, alleging violations of Title VII of the Civil Rights Act of 1964 (“Title
VII”), the Age Discrimination in Employment Act (“ADEA”), and the Americans with
Disabilities Act (“ADA”). Those claims are as follows: all the Plaintiffs bring claims for a
racially hostile working environment in violation of Title VII (Count One), race and gender
discrimination in violation of Title VII (Count Two), retaliation in violation of Title VII (Count

Three), negligence and wantonness in the hiring and supervision of its agents (Count Four), age
discrimination in violation of the ADEA (Count Six1), and Foster alone brings an ADA violation
claim (Count Seven). On July 20, 2011, the Defendants jointly moved this court to sever the
Plaintiffs’ claims into four separate suits on the basis that the Plaintiffs were joined improperly
under Rule 20(a) of the Federal Rules of Civil Procedure. On August 8, 2011, the Plaintiffs filed
an Opposition to the Defendants’ Motion to Sever, and on August 18, 2011, the Defendants filed
a Reply to the Plaintiffs’ Opposition.
For reasons to be discussed, the Motion to Sever is due to be granted.

II. MOTION TO SEVER STANDARD
“Under Rule 20 of the Federal Rules of Civil Procedure, people may join in one action as
plaintiffs if they (1) assert any right to relief jointly, severally, or in the alternative with respect
to or arising out of the same transaction, occurrence, or series of transactions or occurrences, and
(2) any question of law or fact common to all plaintiffs will arise in the action.” Weatherly v.
Alabama State University, No. 2:10cv192-WHA, 2010 WL 1753190, at *2 (M.D. Ala April 30,
2010) (emphasis added). When evaluating the propriety of a specific instance of joinder, the
court “is guided by the underlying purpose of joinder, which is to ‘promote trial convenience and
expedite the resolution of disputes, thereby eliminating unnecessary lawsuits.’” Swan v. Ray, 293
F.3d 1252, 1253 (11th Cir.2002) (per curiam) (quoting Alexander v. Fulton County, Ga., 207
F.3d 1303, 1323 (11th Cir.2000)).

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The Plaintiffs appear to have skipped from Count Four to Count Six in the complaint.
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Whenever a court has found that parties have been misjoined under Rule 20(a) of the
Federal Rules of Civil Procedure, Rule 21 allows the court to “add or drop a party. The court
may also sever any claim against a party.” Fed. R. Civ. P. 21. It is important to note that
“[m]isjoinder of parties is not a grounds for dismissing an action,” but rather gives the court the
opportunity to “drop all but the first named plaintiff ... on condition that [the other plaintiffs]
having been dropped from this lawsuit [are] without prejudice to their institution, individually, of
suit against some or all of the present defendants based on the claims or claims attempted to be
set forth in the present complaint.” Aaberg v. AcandS Inc., 152 F.R.D. 498, 501 (D. Md. 1994).

III. DISCUSSION
A. Rule 20(a) Analysis
In order for the Plaintiffs in this case to remain properly joined, their claims must meet
the “arising out of the same transaction” prong and the “common question of law and fact” prong
of Rule 20(a).
“‘In ascertaining whether a particular factual situation constitutes a single transaction or
occurrence for purposes of Rule 20, a case by case approach is generally pursued. No hard and
fast rules have been established under the rule.’” Grayson v. K-Mart Corp., 849 F. Supp. 785,
787 (N.D. Ga 1994) (quoting Mosley v. General Motors Corp., 497 F.2d 1330, 1333 (8th
Cir.1974)). In this case, even assuming the facts supporting the claims in the complaint to be
true, the court cannot find any link among the Plaintiffs substantial enough to constitute a same
transaction, occurrence, or series of transactions.

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For instance, it does not appear that Plaintiffs’ racially hostile work place claim and their
race and gender discrimination claims are based on common proof. Any racial discrimination
claim will necessarily rest on separate evidence since three plaintiffs are African American and
one plaintiff is white. The gender discrimination claim will also be based on different evidence,
since two plaintiffs are female and two are male. Therefore, the court finds that the Plaintiffs
have not demonstrated a common transaction or series of transactions for the race and gender
discrimination claims.
The Plaintiffs’ retaliation claims, age discrimination claims, and negligence claims, as
alleged in the Complaint, also stem from discrete factual scenarios. Foster was terminated from
her position as Senior Director in the Department of Human Resources by Jackson on July 31,
2009. Singleton was laid off from his position as Housing Facilities Supervisor with the
Department of Housing and Residence Life on September 30, 2010. McCray was laid off from
her position as custodian with AUM on March 16, 2010. Lastly, Martin resigned after being
denied tenure as AUM’s Justice and Public Safety Department Head. Given the different
departments, decision makers, and discrete dates associated with each Plaintiff’s claim, the
Complaint does not show any transaction or series of transaction that links these Plaintiffs for the
retaliation, age discrimination, and negligence claims. The reasons given for these actions,
which Plaintiffs contend were pretextual, are different.
Obviously, Foster’s ADA claim is unique unto to her. Therefore, any facts relating to
that claim will not form a transaction or series of transaction relating to the five claims.
Plaintiffs, in their Opposition to Defendant’s Motion to Sever, attempt to find a unifying
transaction or series of transactions by naming Chancellor Veres as the final decision maker for

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AUM’s actions against each individual Plaintiff. (Doc. # 10 at 10). By doing this, the Plaintiffs
change the problem from one of unrelated evidence presented by each Plaintiff to prove his or
her claim to a problem of contradictory evidence presented by each Plaintiff to prove his or her
claim. If Chancellor Veres is the person with ultimate responsibility, then the Plaintiffs will
have to prove that he is discriminating against both African-Americans and whites, both males
and female, etc. This does not remedy the problem. In fact, it serves to complicate the matter.
In the absence of a same transaction, occurrence, or series of transactions, this court need
not continue in a Rule 20(a) analysis. See Fed. R. Civ. P. 20(a) (requiring both a transaction and
a common question of law or fact for proper permissive joinder). It is unlikely, however, that
this court could find any question of law or fact common to all four Plaintiffs beyond the most
basic: all four brought claims under the same laws, all worked at AUM, and all would have been
subject to Chancellor Veres’s authority as ultimate decision maker for AUM. Moreover, the
mere fact that all Plaintiffs claim harm under the same statute is not a sufficient basis for joinder.
See, e.g., Grayson v. K-Mart Corp., 849 F. Supp. 785, 789 (N.D.Ga. 1994) (citing Smith v. North
Am. Rockwell Corp., 50 F.R.D. 515, 524 (N.D.Okla. 1970), to explain that a common theory of
law “is not sufficient” for permissive joinder).
A review of similar cases shines light on examples of appropriate and inappropriate
joinder. This court in Weatherly v. Alabama State University, denied a motion to sever the
claims of three plaintiffs who claimed sexual harassment by the same individual. No.
2:10cv192-WHA, 2010 WL 1753190, at *3 (M.D. Ala April 30, 2010) . Furthermore, two of the
three plaintiffs originally supported the defendant during the in-house investigation about
Weatherly’s original claims. Id. Those two then alleged similar sexual harassment at the hand of

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the defendant. Id. This court found that the plaintiffs suffered under a series of similar
transactions and that the plaintiffs had overlapping evidence that would be best served by
litigating the claims together. Id. Accordingly, this court denied the motion to sever.
In contrast, the court in Grayson, found that severance was appropriate. 849 F. Supp. at
787-89 . In that case, eleven K-Mart store managers were all demoted, and all claimed that the
demotion was part of K-Mart’s corporate age discrimination policy. Id. Each of these managers
ran a different store in different locations throughout the southeastern United States. Id. at 786.
The court found that each demotion was its own discrete act and not part of a transaction or
series of transactions. Id. at 788-789. The court granted the severance despite the fact that the
plaintiffs were able to name one particular K-Mart corporate manager as an ultimate decision
maker. Id. at 789. The fact that every plaintiff held the same job, received the same demotion,
sued under the same law, sued for age discrimination, and could trace the harm back to an
ultimate decision maker was not enough for the court to deny severance. Id. at 787-789.
This court finds that the present Plaintiffs’ situation is akin to the Grayson facts and
reaches the same result as that court. The Plaintiffs, while more geographically centered than
those in Grayson, held different jobs, had different chains of command, belonged to different
departments, left AUM’s employ in different manners, and suffered different and contradictory
types of discrimination. As in Grayson, the fact that all of the Plaintiffs can point towards
Chancellor Veres as the ultimate decision maker is of no avail.
Given that the Plaintiffs have not demonstrated a transaction, occurrence, or series of
transactions from which their claims arise, this court finds that the claims are due to be severed.
B. Potential Prejudice

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To reiterate, a court’s decision to sever parties under Rule 21 should be tempered by the
possibility of prejudice to the severed party. See Aaberg v. AcandS Inc., 152 F.R.D. 498, 501 (D.
Md. 1994). One such concern is the ability of the severed Plaintiffs to bring their claims without
being barred by the statute of limitations. Claims brought under Title VII, the ADA, and the
ADEA all must be brought within 90 days of receipt of the right-to-sue letter and each Plaintiff
met this statute of limitations for the present law suit. See 42 U.S.C. § 2000e-5(f)(1) (providing
for a 90 day statute of limitations for Title VII); see also Zillyette v. Capital One Financial
Corp., 179 F.3d 1337, 1339 (11th Cir.1999) (“It is settled law that, under the ADA, plaintiffs
must comply with the same procedural requirements to sue as exist under Title VII of the Civil
Rights Act of 1964”); see also Kerr v. McDonald's Corp., 427 F.3d 947, 951 (11th Cir.2005)
(explaining the ADEA’s statute of limitations). Furthermore, negligence claims brought under
Alabama law must be brought within two years of the harm. See Ala. Code § 6-2-38(l).
Rule 21 relief for the Defendants, however, does not require, or ever allow for, dismissal
of severed parties’ claims, but instead requires the court to sever the cases into separate actions.
Fed. R. Civ. P. 21. Accordingly, this court will sever the Plaintiffs claims and will retain the
first-named Plaintiff’s action. The remaining three cases will be split and appropriately assigned
new case numbers. However, this court will direct the Clerk of the Court to use the original
Complaint (Doc. # 1) and its original filing date as the opening document for each of these three
new actions. In this way, the parties will not suffer prejudice through a time bar to their claims.
IV. CONCLUSION
For the foregoing reasons, it is hereby ORDERED that:
Defendants’ Motion to Sever (Doc. # 11) is GRANTED.

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It is further ORDERED that:
1. Plaintiffs Singleton, McCray, and Martin are severed from the present action.
2. The Clerk is directed to assign new case numbers for separate Singleton, McCray, and
Martin actions, with those actions to be assigned to the undersigned district judge and
the same magistrate judge.
3. The Clerk is directed to open each new case with the Complaint (Doc. #1) from this
case, and to file this order also with each new case.
4. The Clerk is directed to open each new case with the original filing date June 24, 2011.
5. Singleton, McCray, and Martin are DIRECTED to file amended complaints to
appropriately plead their case as a single plaintiff pursuant to the relevant Federal
Rules of Civil Procedure and Middle District of Alabama Rule 15.1 by September 16,
2011.
6. Foster is DIRECTED to file an amended complaint to appropriately plead her case as a
single plaintiff pursuant to the relevant Federal Rules of Civil Procedure and Middle
District of Alabama Rule 15.1 by September 9, 2011.

Done this 1st day of September, 2011.

/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE

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Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00.

CIVIL APPEALS JURISDICTION CHECKLIST
1.

Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by
statute:
(a)

Appeals from final orders pursuant to 28 U.S.C. § 1291: Only final orders and
judgments of district courts, or final orders of bankruptcy courts which have been
appealed to and fully resolved by a district court under 28 U.S.C.§ 158, generally are
appealable. A final decision is one that “ends the litigation on the merits and leaves
nothing for the court to do but execute the judgment.” Pitney Bowes, Inc. v. Mestre,
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(b)

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issues except matters, such as attorneys’ fees and costs, that are collateral to the
merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486
U.S.196, 201, 108 S.Ct. 1717, 1721-22, 100 L .Ed.2d 178 (1988); LaChance v.
Duffy’s Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).

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(e)

Appeals pursuant to judicially created exceptions to the finality rule: Limited
exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial
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Atlantic Fed. Sav. & Loan Ass’n v. Blythe Eastman Paine Webber, Inc., 890 F.2d
371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157,
85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).
Rev.: 4/04

2.

Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional.
Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a)
and (c) set the following time limits:
(a)

Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set
forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the
entry of the order or judgment appealed from. However, if the United States or an
officer or agency thereof is a party, the notice of appeal must be filed in the district
court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND
FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF
THE APPEAL PERIOD – no additional days are provided for mailing. Special
filing provisions for inmates are discussed below.

(b)

Fed.R.App.P. 4(a)(3): “If one party timely files a notice of appeal, any other party
may file a notice of appeal within 14 days after the date when the first notice was
filed, or within the time otherwise prescribed by this Rule 4(a), whichever period
ends later.”

(c)

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appeal for all parties runs from the date of entry of the order disposing of the last
such timely filed motion.

(d)

Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district
court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may
be extended if a motion for an extension is filed within 30 days after expiration of the
time otherwise provided to file a notice of appeal, upon a showing of excusable
neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district
court finds upon motion that a party did not timely receive notice of the entry of the
judgment or order, and that no party would be prejudiced by an extension.

(e)

Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in
either a civil case or a criminal case, the notice of appeal is timely if it is deposited in
the institution’s internal mail system on or before the last day for filing. Timely filing
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statement, either of which must set forth the date of deposit and state that first-class
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3.

Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of
Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of
appeal must be signed by the appellant.

4.

Effect of a notice of appeal: A district court loses jurisdiction (authority) to act after the
filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule
on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).