Golloway v. The Board of Trustees of Auburn University et al (MAG2)

Filing 36

MEMORANDUM OPINION AND ORDER directing as follows: (1) The 33 Report and Recommendation of the Magistrate Judge is ADOPTED in part and REJECTED in part;(2) Plf's 34 objections are OVERRULED in part and SUSTAINED in part; (3) Defs 9 mot ion to dismiss is GRANTED as to Counts 1, 2, 3, and 4 of Mr. Golloway's 32 First Amended Complaint; (4) Counts 1, 2, 3, and 4 of Mr. Golloway's 32 First Amended Complaint are DISMISSED with prejudice; (5) Defs' 9 motion to dismi ss is DENIED as to Count 5 of Mr. Golloway's 32 First Amended Complaint ; and (6) This action is REFERRED back to the Magistrate Judge for further proceedings on Count 5. Signed by Chief Judge William Keith Watkins on 9/12/17. (Attachments: # 1 civil appeals checklist)(djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
SUNNY W. GOLLOWAY,
Plaintiff,
v.
THE BOARD OF TRUSTEES OF
AUBURN UNIVERSITY, JAY
JACOBS, DAVID BENEDICT,
RICH MCGLYNN, SCOTT
DUVAL, and JEREMY
ROBERTS,
Defendants.

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CASE NO. 3:16-CV-375-WKW
[WO]

MEMORANDUM OPINION AND ORDER
Before the court is the Recommendation of the Magistrate Judge (Doc. # 33),
to which Plaintiff Sunny Golloway filed objections (Doc. # 34). The court has
conducted an independent and de novo review of those portions of the
Recommendation to which objection is made. See 28 U.S.C. § 636(b).
The Magistrate Judge recommended that Defendants’ motion to dismiss (Doc.
# 9) be granted in its entirety. Mr. Golloway challenges this conclusion, alleging
that each count of his complaint should be allowed to go forward. Because the
Magistrate Judge properly applied the law to the facts of this case, the
Recommendation will be adopted (and Mr. Golloway’s objections overruled) in
large part. However, because Mr. Golloway alleged sufficient facts for his claim of

tortious interference to survive 12(b)(6) scrutiny, the Recommendation will be
rejected as to Count 5 of the complaint.
I. JURISDICTION AND VENUE
Subject-matter jurisdiction is exercised pursuant to 28 U.S.C. § 1332. The
parties do not contest personal jurisdiction or venue.
II. STANDARD OF REVIEW
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure tests the sufficiency of the complaint against the legal standard articulated
by Rule 8 of the Federal Rules of Civil Procedure. Rule 8 provides that the complaint
must include “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). When evaluating a motion to dismiss
pursuant to Rule 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). The court need not, however, accept
mere legal conclusions as true. Id. at 1325.
To survive a 12(b)(6) motion, the 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)). The complaint is facially plausible when “the plaintiff pleads

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factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id.
III. DISCUSSION
Because the Magistrate Judge already spelled out the facts and procedural
history of this case, the analysis starts at the crux of the matter: Does Mr. Golloway’s
operative complaint survive 12(b)(6) scrutiny?
A.

Counts 1 & 2: Claims against the Board of Trustees of Auburn University
Mr. Golloway objects to the Magistrate Judge’s conclusion that his claims

against the Board are due to be dismissed on sovereign-immunity grounds. It is
beyond dispute that Alabama’s state universities, including their boards of trustees,
are instrumentalities of the state. E.g., Harden v. Adams, 760 F.2d 1158, 1163 (11th
Cir. 1985); Rigby v. Auburn Univ., 448 So. 2d 345, 347 (Ala. 1984). Moreover, the
Magistrate Judge properly determined that the relief sought by Mr. Golloway does
not fall into the exception for injunctive relief carved out by Ex parte Young. See
Ala. State Univ. v. Danley, 212 So. 3d 112, 129 (Ala. 2016). Contrary to Mr.
Golloway’s objection, his case does not seek “a liquidated, certain amount” such that
his relief can be couched as injunctive in nature. (Doc. # 34 at 3.) Rather, because
Mr. Golloway could only receive his claimed damages after a judicial finding that
he was terminated without cause, his claim does not fall within the Ex parte Young
“ministerial act” exception. Danley, 212 So. 3d at 126; see also Woodfin v. Bender,
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No. 1150797, --- So. 3d ----, 2017 WL 1192891, at *8 (Ala. March 31, 2017)
(holding that “legitimate dispute” as to whether backpay was required entitled
defendant to sovereign immunity).

Therefore, the Magistrate Judge properly

recommended dismissal of Mr. Golloway’s claims against the Board.
B.

Count 3: Defamation
Mr. Golloway objects to the recommended dismissal of his defamation claim,

arguing that Defendant Jay Jacobs’s statement that he was terminated “with cause”
constituted defamation per se. It did not. “The first element of a cause of action in
defamation is a false statement.” Tidwell v. Winn-Dixie, Inc., 502 So. 2d 747, 748
(Ala. 1987). Mr. Jacobs’s statement, “I regret to announce that earlier today I
dismissed Auburn head baseball coach Sunny Golloway with cause,” does not meet
this threshold requirement. (Doc. # 32 at 77.) Auburn University dismissed Mr.
Golloway “with cause” rather than “without cause”—the manner of termination is
undeniable, regardless of whether cause actually existed. Because Mr. Jacobs’s
statement truthfully described the nature of the firing, the Magistrate Judge properly
recommended dismissal. Cf. McCarver v. PPG Indus., Inc., 552 F. Supp. 2d 1294,
1301 (N.D. Ala. 2008) (granting summary judgment against defamation claim where
defendant disclosed the basis for plaintiffs’ termination, even though one of the
plaintiffs disputed the accuracy of that basis of termination).

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Similarly, Mr. Jacobs did not defame Mr. Golloway in announcing his
“commitment . . . to provide the best student-athlete experience in the nation.” (Doc.
# 32 at 77.) The statement did not concern Mr. Golloway, but rather went to the
conditions that Auburn strives to create for its student athletes. See Skinner v.
Bevans, 116 So. 3d 1147, 1156 (Ala. Civ. App. 2012) (requiring that a defamatory
statement “concern[ ] the plaintiff”). Moreover, Mr. Jacobs’s announcement was
not “reasonably capable of a defamatory meaning.”

Harris v. Sch. Annual

Publishing Co., 466 So. 2d 963, 964–65 (Ala. 1985). Even stretched to its breaking
point, Mr. Jacobs’s statement means only that Mr. Golloway provided something
less than the best athletic experience in the nation. Announcing that someone falls
short of the absolute best is no more defamatory than giving them a runner-up ribbon
or an Olympic silver medal. The Magistrate Judge properly recommended dismissal
of Count 3.
C.

Count 4: Fraud
Alabama law embraces the “reasonable reliance” standard for claims of fraud.

Farmers Ins. Exch. v. Morris, No. 1121091, --- So. 3d ----, 2016 WL 661671, at *5–
*6 (Ala. Feb. 12, 2016). This standard allows a judge to dismiss a plaintiff’s claim
for fraud where he “w[as] fully capable of reading and understanding [his]
documents, but nonetheless made a deliberate decision to ignore written contract
terms.” Id. at *6 (quoting Foremost Ins. Co. v. Parham, 693 So. 2d 409, 421 (Ala.
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2008)). In other words, a plaintiff cannot state a claim for fraud (be it in the
inducement or otherwise) on the basis of oral promises if a valid, written contract
contradicts those promises. See id. Mr. Golloway objected to the Magistrate Judge’s
application of this legal standard, arguing that a jury should decide whether his
reliance on Mr. Jacobs’s oral representations was, in fact, reasonable. While this
would be true under the old rule, it was cases like this one that led the Alabama
Supreme Court to adopt the reasonable-reliance standard. Id. at *5 (“The problem
with those earlier decisions [applying the old standard] was that they ‘permitted a
fraud case to go to the jury in all circumstances where all the plaintiff had to say was
that he did not, in fact, know what the contract said.’”) (quoting Potter v. First Real
Estate Co., 844 So. 2d 540, 549 (Ala. 2002)). Accordingly, Mr. Golloway’s
objection pertaining to Count 4 is due to be overruled.
D.

Count 5: Tortious Interference
After three foul balls, Mr. Golloway finally gets a base hit in his objection to

the recommended dismissal of Count 5. But it is only a single. Under Alabama law,
“[t]he essential elements of the tort of intentional interference with contractual or
business relations are: ‘(1) the existence of a protectable business relationship; (2)
of which the defendant knew; (3) to which the defendant was a stranger; (4) with
which the defendant intentionally interfered; and (5) damage.’” Ex parte Hugine,
No. 1130428, --- So. 3d ----, 2017 WL 1034467, at *23 (Ala. March 17, 2017)
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(quoting White Sands Grp. v. PRS II, LLC, 32 So. 3d 5, 14 (Ala. 2009)). Where a
plaintiff sues coworkers or other parties who are not strangers to the relationship, he
can only state a claim if he “show[s] that the defendants acted outside their scope of
employment and did so maliciously.” Perlman v. Shurett, 567 So. 2d 1296, 1299
(Ala. 1990) (quoting Hickman v. Winston Cty. Hosp. Bd., 508 So. 2d 237, 241 (Ala.
1987) (Adams, J., concurring)). An action outside of the scope of employment, in
this context, is the same as an action outside of the employee’s scope of authority.
McGlathery v. Ala. A&M Univ., 105 So. 3d 437, 447 (Ala. Civ. App. 2012). And,
“in order to show malice the plaintiff must make a strong showing of a pattern of
interference,” which requires “more than an isolated incident” of actions beyond the
scope of the defendant’s employment. Id.
The Recommendation properly determined that Defendants David Benedict,
Rich McGlynn, Scott Duval, and Jeremy Roberts were not strangers to Mr.
Golloway’s employment with Auburn, but went too far in finding that Mr. Golloway
failed to allege that the four Defendants were acting outside the scope of their
employment. In his operative complaint, Mr. Golloway alleges that Defendants
“encouraged players and their parents to tell them negative things about Golloway,”
told a high school coach that Mr. Golloway improperly gave away school-owned
baseballs, and “withdr[ew] their blessing” for an all-star game at a recruiting camp

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in a manner calculated to put Mr. Golloway in hot water with the University. (Doc.
# 32 at 82–84.)
At this stage in the litigation, these purely factual allegations are presumed to
be true. Resnick, 693 F.3d at 1321–22. Alabama courts have recognized that a
coworker acts outside his authority and with malice when he repeatedly spreads
fabrications or otherwise maneuvers to get a plaintiff fired. E.g., Michelin Tire Corp.
v. Goff, 864 So. 2d 1068, 1078 (Ala. Civ. App. 2002) (holding that evidence of
defendant’s repeated attempts to get coworker fired, “if believed,” demonstrated
malice and actions outside scope of employment sufficient to justify trial court’s
grant of a new trial on tortious-interference claim); see also McGlathery, 105 So. 3d
at 448 (reversing trial court’s 12(b)(6) dismissal of tortious-interference claim
against coworker, reasoning that the plaintiff alleged that the defendant “act[ed]
without authority and maliciously”). Though it is a close call, Mr. Golloway has
alleged a “pattern of interference,” Perlman, 567 So. 2d at 1299, whereby
Defendants worked to undermine and eventually oust their baseball coach. Thus,
the operative complaint gets him to first base on his claim for tortious interference.
The objection to the Recommendation is due to be sustained as to Count 5.

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IV. CONCLUSION
Accordingly, it is ORDERED as follows:
1.

The Recommendation of the Magistrate Judge (Doc. # 33) is

ADOPTED in part and REJECTED in part;
2.

Plaintiff Sunny W. Golloway’s objections (Doc. # 34) are

OVERRULED in part and SUSTAINED in part;
3.

Defendants’ motion to dismiss (Doc. # 9) is GRANTED as to Counts

1, 2, 3, and 4 of Mr. Golloway’s First Amended Complaint (Doc. # 32);
4.

Counts 1, 2, 3, and 4 of Mr. Golloway’s First Amended Complaint

(Doc. # 32) are DISMISSED with prejudice;
5.

Defendants’ motion to dismiss (Doc. # 9) is DENIED as to Count 5 of

Mr. Golloway’s First Amended Complaint (Doc. # 32); and
6.

This action is REFERRED back to the Magistrate Judge for further

proceedings on Count 5.
DONE this 12th day of September, 2017.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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