Tisdale v. Wilson
MEMORANDUM OPINION AND ORDER: that Dft's 5 Motion to Dismiss is GRANTED with prejudice in part and DENIED in part; further ORDERED that, pursuant to Rule 42(a) FRCP, what remains of this action is consolidated with Civil Action No. 12cv837 for a pretrial hearing on 6/26/2014, and for trial on 7/28/2014; The lead case shall be Tisdale I, No. 12cv837, and future filings shall be in Tisdale I. Signed by Chief Judge William Keith Watkins on 6/2/2014. (Attachments: # 1 Civil Appeals Checklist) (wcl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
JOHN W. TISDALE, JR.,
BLAINE WILSON, et al.,
) CASE NO. 2:12-CV-837-WKW
JOHN W. TISDALE, JR.,
CASE NO. 2:14-CV-271-WKW
MEMORANDUM OPINION AND ORDER
Before the court is Defendant Blaine Wilson’s motion to dismiss (Doc. # 5)
pursuant to Federal Rule of Civil Procedure 12(b)(6).1 Plaintiff John W. Tisdale,
Jr., filed a response in opposition to the motion. (Doc. # 7.) For the reasons that
follow, the motion is due to be granted in part and denied in part.
Defendant filed the motion in Civil Action Number 14cv271.
I. JURISDICTION AND VENUE
Subject-matter jurisdiction is proper pursuant to 28 U.S.C. § 1332(a).
Personal jurisdiction and venue are not contested.
II. STANDARD OF REVIEW
When evaluating a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), the court must take the facts alleged in the complaint as true
and construe them in the light most favorable to the plaintiff. Resnick v. AvMed,
Inc., 693 F.3d 1317, 1321–22 (11th Cir. 2012). To survive Rule 12(b)(6) scrutiny,
“a complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[F]acial
plausibility” exists “when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550 U.S. at 556).
Plaintiff filed this diversity lawsuit, see § 1332(a), after the court denied his
untimely and prejudicial motion for leave to amend the complaint in a previously
filed, but related, action. See Tisdale v. Wilson (Tisdale I), No. 12cv837 (M.D.
Ala. Feb. 4, 2014) (Order denying motion to amend the complaint for a third time).
The claims in this action (Tisdale II) are the claims that Plaintiff was not permitted
to assert in Tisdale I in a Third Amended Complaint.
Some background of the pleadings in Tisdale I and Tisdale II is helpful for
resolution of Defendant’s motion to dismiss. In the operative Second Amended
Complaint, filed June 5, 2013, in Tisdale I, Plaintiff, a real estate developer in
Covington County, Alabama, alleges that in August 2012, Defendant Wilson
decided to run for mayor of the City of Andalusia, Alabama. During his campaign,
at a public meeting Defendant allegedly made false statements about Plaintiff,
insinuating that Plaintiff entered into a corrupt deal with the City of Andalusia.
The deal, according to Defendant, included the City’s purchase of the Bass
Building at a grossly inflated price with a requirement that Plaintiff use one-half of
the sale proceeds to renovate the Prestwood Building in Andalusia. But allegedly
in exchange for Plaintiff’s support of the incumbent mayor, including the posting
of the mayor’s campaign signs on Plaintiff’s properties, the City subsequently
overlooked Plaintiff’s failure to make improvements to the Prestwood Building
and refrained from enforcing the City’s nuisance laws against Plaintiff.
Defendant’s comments at the public meeting resulted in a heated exchange
between Plaintiff, Defendant, and the incumbent mayor.
Information about this
exchange appeared in the Andalusia Star-News in August 2012. Defendant also
placed information about it on his Facebook page in August 2012 and made
additional similar comments about Plaintiff during a speech given the same month.
Parts of the speech were replayed on Defendant’s television station, W40BE, in
Plaintiff claims that these statements were false and hurt his
In Tisdale II, filed on April 11, 2014, Plaintiff goes back in time to June and
July 2012, alleging that Defendant Wilson “began making defamatory comments
about [him] and his properties on Facebook before numerous viewers.” (Compl.
¶ 9.) Those comments concerned a deal between the City and Plaintiff for an
exchange of properties for the purpose of the City’s development of an
entertainment district. Defendant’s insinuation again was that Plaintiff and the
City were in cahoots, that Plaintiff was making a sizeable profit at the expense of
the City, and that the City continued to overlook enforcement of nuisance laws
against Plaintiff. In Tisdale II, Plaintiff also fast forwards to January 2013 and
September 2013, when Defendant allegedly posted negative comments on his
Facebook page about other property Plaintiff owned.
In the January post,
Defendant called Plaintiff a “greedy soul” in connection with Plaintiff’s alleged
overpricing of lots in a subdivision he developed in Andalusia, and in the
September post, Defendant called Plaintiff a “bastard” and falsely accused Plaintiff
of not paying workers’ compensation benefits that were owed. (Compl. ¶¶ 20, 21.)
Plaintiff also makes other allegations that in November 2013, a state employee,
who is Defendant’s “close friend,” removed signs from Plaintiff’s property in
Andalusia and that Defendant watched from a distance in a parked car. (Compl.
The causes of action in Tisdale I and II are the same. They are state-law
causes for defamation, intentional interference with business relations, and
wantonness. Plaintiff and Defendant also are parties in both actions. Tisdale I
includes an additional Defendant, Three Notch Communications, LLC, which
operates a local radio and television station in Andalusia, and is owned by
Defendant argues, first, that Plaintiff has filed this lawsuit “to harass
Defendant . . . in a blatant attempt to circumvent the parallel proceedings” and
contends that dismissal is appropriate to prevent Plaintiff “from pursuing this
multiplicative and vexatious litigation.”
(Doc. # 5, at 1–2.)
Defendant moves for dismissal for failure to state a claim upon which relief can be
granted. Plaintiff opposes the motion on both grounds. Each ground is addressed
Although Defendant cites no case law to support its argument, the Eleventh
Circuit has recognized that, “as between federal district courts, . . . the general
principle is to avoid duplicative litigation.” I.A. Durbin, Inc. v. Jefferson Nat’l
Bank, 793 F.2d 1541, 1551 (11th Cir. 1986) (quoting Colorado River Water
Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)). “Although no
precise test has been articulated for making this determination, the general rule is
that a suit is duplicative of another suit if the parties, issues and available relief do
not significantly differ between the two actions.” Id. To this end, “[t]rial courts
are afforded broad discretion in determining whether to stay or dismiss litigation in
order to avoid duplicating a proceeding already pending in another federal court.”2
The Ninth Circuit’s decision in Adams v. California Department of Health
Services, 487 F.3d 684 (9th Cir. 2010), overruled on other grounds by Taylor v.
Sturgell, 553 U.S. 880, 904 (2008)), also is instructive. In Adams, the Ninth
Circuit recognized, consistent with the Eleventh Circuit, that district courts have
considerable discretion in deciding how to handle duplicative litigation.
explained that a district court has discretion “to dismiss a duplicative later-filed
action, to stay that action pending resolution of the previously filed action, to
enjoin the parties from proceeding with it, or to consolidate both actions.” Id.
Durbin’s principles still are relevant, notwithstanding that Tisdale I and Tisdale II
happen to be pending in the same federal court.
Adams bears similarities to Tisdale’s predicament. In Adams, the plaintiff,
who was challenging a state agency’s decision not to hire her, moved to amend her
complaint to add new claims more than three months after the deadline for
amendment. The district court denied the plaintiff’s motion to amend for failure to
show “good cause for the undue delay in seeking leave to amend” and on the basis
that the amendment would prejudice the defendants. Id. at 687. “[I]n an attempt to
avoid the consequences of her own delay and to circumvent the district court’s
denial of her untimely motion,” the plaintiff then filed a second lawsuit that “set
forth the four additional claims she had sought to add by her previously denied
motion for leave to amend her complaint in the first case.” Id. The Ninth Circuit
affirmed the district court’s dismissal of the second lawsuit on grounds that it
duplicated the first. See id. at 688.
The Ninth Circuit explained that “‘the fact that plaintiff was denied leave to
amend does not give h[er] the right to file a second lawsuit based on the same
facts.”’ Id. (quoting Hartsel Springs Ranch of Col., Inc. v. Bluegreen Corp., 296
F.3d 982, 989 (10th Cir. 2002)). “Plaintiffs generally have no right to maintain
two separate actions involving the same subject matter at the same time in the
same court and against the same defendant.” Id. To decide whether the plaintiffs’
two lawsuits were duplicative, the court borrowed from the test for claim
preclusion: “[I]n assessing whether the second action is duplicative of the first, we
examine whether the causes of action and relief sought, as well as the parties or
privies to the action, are the same.” Id. at 688–89. The Ninth Circuit set out a
First, it adopted the transaction test to decide whether successive causes of
action are the same. “Whether two events are part of the same transaction or series
depends on whether they are related to the same set of facts and whether they could
conveniently be tried together.” Id. at 689. Several criteria are relevant to the
application of the transaction test, including “whether substantially the same
evidence is presented in the two actions,” and “whether the two suits arise out of
the same transactional nucleus of facts.” Id. (citation and internal quotation marks
omitted). The latter criteria “is the most important.” Id. (citation and internal
quotation marks omitted). Second, a court must “examine whether . . . the parties
or privies to the action[ ] are the same.” Id. The Ninth Circuit indicated, however,
that if the events in the second suit occurred after the filing of the complaint in the
first suit so that the plaintiff did not have a “full and fair opportunity” to litigate the
claims in the first suit, then dismissal may not be appropriate. Id. at 692.
The Ninth Circuit’s reasoning in Adams is applicable, persuasive, and not
contrary to the Eleventh Circuit general pronouncements in I.A. Durbin, and, thus,
will be applied to this action.
Here, the second part of the test is satisfied easily because the parties in
Tisdale II also are parties in Tisdale I. The first part of the test – whether the
conduct alleged in Tisdale I and II are part of the same transaction or series –
requires more discussion. For this purpose, it is helpful to compartmentalize the
conduct in Tisdale I and II temporally. Tisdale I alleges conduct occurring in 2012
(August), and Tisdale II alleges conduct occurring in 2012 (June and July) and in
2013 (January, September, and November).
Based upon careful consideration, Plaintiff will not be permitted to proceed
on his claims in Tisdale II that are based upon Defendant’s conduct occurring in
June 2012, July 2012, and January 2013. As to the June 2012 and July 2012
episodes, they are temporally connected to the August 2012 episodes in Tisdale I.
They also are related to and not significantly different from the Tisdale I claims
that have at their core Defendant’s allegedly defamatory statements concerning
Plaintiff and the City of Andalusia’s purportedly shady business dealings together.
In fact, in Tisdale I, in his belatedly filed motion to amend, Plaintiff argued that the
June 2012 and July 2012 conduct fell within the original scope of the claims he had
alleged in the operative Second Amended Complaint. (See, e.g., Doc. # 62 ¶ 8
(No. 12cv837) (taking the position that the proposed new claims “add[ed] new
facts, not new claims”).) Moreover, and importantly, the June 2012 and July 2012
conduct occurred prior to the filing of Plaintiff’s operative Second Amended
Complaint in Tisdale I on June 5, 2013. Plaintiff has not presented any reason why
he could not have raised these claims in a timely manner in Tisdale I, where he
would have had a full and fair opportunity to litigate the claims. 3 Cf. Parklane
Hosiery Co. v. Shore, 439 U.S. 322 (1979) (“[T]he requirement of determining
whether the party against whom an estoppel is asserted had a full and fair
opportunity to litigate is a most significant safeguard.”); see also Adams, 487 F.3d
at 693 (relying on Parklane for the same proposition). Accordingly, all claims in
Tisdale II based upon the June and July 2012 conduct are due to be dismissed as
duplicative of Tisdale I.
The same conclusion is reached with respect to the January 2013 conduct,
which involves Defendant’s Facebook posting that brands Plaintiff a “greedy soul”
in connection with Plaintiff’s alleged overpricing of lots in a subdivision he
developed in Andalusia. This conduct occurred approximately five months prior to
the filing of the Second Amended Complaint, and Plaintiff does not contend that
he could not have alleged this conduct in a timely manner in Tisdale I. In short, all
claims in Tisdale II based upon the January 2013 conduct are due to be dismissed.
In his motions to consolidate Tisdale I and Tisdale II, filed on May 30, 2014, Plaintiff
asserts that he learned of the new allegations in Tisdale II during the discovery phase in Tisdale
I. (See, e.g., Doc. # 77 ¶ 1.) He does not identify the date he first learned of the allegedly new
allegations, and the only discovery he specifically identifies is his own deposition. His
conclusory assertion does not warrant a contrary finding. In light of the findings in this Order,
the motions to consolidate will be denied as moot by separate order.
Plaintiff will be permitted to proceed, however, on his claims predicated on
the additional conduct occurring in September 2013 and November 2013. The
September 2013 and November 2013 conduct occurred subsequent to the filing of
the Second Amended Complaint in Tisdale I, and, although the conduct involves
the same parties, it is based upon different events than those in Tisdale I.
Moreover, because judgment has not been entered in Tisdale I (a fact that
distinguishes this case from Adams), the court, in the exercise of its discretion, will
consolidate Tisdale I and II and permit Plaintiff to pursue the claims in Tisdale II
that are based upon the September 2013 and November 2013 conduct.
Consolidation will serve the interests of avoiding duplication of litigation and
promoting judicial economy, and no reason can be envisioned how preparation for
trial on the additional conduct will unduly burden the parties. See Fed. R. Civ. P.
42(a) (providing for consolidation of actions that “involv[e] a common question of
law or fact”).
For the foregoing reasons, Defendant’s motion for dismissal on the basis that
Tisdale II is duplicative of Tisdale I is due to be granted in part and denied in part.
Failure to State a Claim
Defendant’s Rule 12(b)(6) arguments for dismissal of the claims in Tisdale
II have been considered carefully, but are not persuasive.
Defendant’s alternative motion for dismissal for failure to state a claim is due to be
Accordingly, it is ORDERED that Defendant’s motion to dismiss is
GRANTED with prejudice in part and DENIED in part.
It is further ORDERED that, pursuant to Rule 42(a) of the Federal Rules of
Civil Procedure, what remains of this action is consolidated with Civil Action No.
12cv837 for a pretrial hearing on June 26, 2014, and for trial on July 28, 2014.
The lead case shall be Tisdale I, No. 12cv837, and future filings shall be in
DONE this 2nd day of June, 2014.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
In a single sentence, Defendant also lists a number of other Rule 12(b) defenses as
additional grounds for dismissal. (See Doc. # 5, at 3–4.) These grounds will not be addressed
because they are undeveloped and include no application to the facts or citation to authority.
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