Evans v. Talladega, City of et al

Filing 66

MEMORANDUM OPINION. Signed by Judge Madeline Hughes Haikala on 9/28/2015. (KEK)

FILED
2015 Sep-28 PM 02:25
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
JANET EVANS,
}
}
Plaintiff,
}
}
v.
} Case No.: 1:13-cv-00705-MHH
}
CITY OF TALLADEGA, et al.,
}
}
Defendants.
}

MEMORANDUM OPINION
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, the City of
Talladega has asked the Court to enter judgment in its favor on the breach of
contract and section 1983 claims that plaintiff Janet Evans has filed against the
City. (Doc. 48). Ms. Evans’s claims relate to her efforts to launch a production of
her play NaRu at the Ritz Theatre, a historic landmark that the City owns. Initially,
Ms. Evans contracted for her play to premiere at the theater in May 2012. Theater
personnel rescheduled Ms. Evans’s production for August 2012 and then
postponed the production again. Ms. Evans contends that the City, through the
Ritz Theatre’s personnel, violated 42 U.S.C. § 1983 because the theater personnel
discriminated against her by favoring a predominantly white production over her
predominantly black production. Ms. Evans also contends that the City is liable
for the Ritz Theatre’s breach of contract.
1

The City maintains that the allegedly discriminatory actions of the theater’s
personnel do not subject the City to liability under section 1983 and, alternatively,
that Ms. Evans has not provided evidence of discriminatory behavior. The City
also argues that the theater’s personnel lacked the authority to enter into contracts
on the City’s behalf. For the reasons stated below, the Court grants in part and
denies in part the City’s motion for summary judgment.
I.

STANDARDS OF REVIEW

A. Summary Judgment
“The court shall grant summary judgment if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). To demonstrate that there is a genuine
dispute as to a material fact that precludes summary judgment, a party opposing a
motion for summary judgment must cite “to particular parts of materials in the
record, including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ.
P. 56(c)(1)(A). When considering a summary judgment motion, the Court must
view the evidence in the record and draw reasonable inferences in the light most
favorable to the non-moving party. White v. Beltram Edge Tool Supply, Inc., 789
F.3d 1188, 1191 (11th Cir. 2015).

“The court need consider only the cited
2

materials, but it may consider other materials in the record.” Fed. R. Civ. P.
56(c)(3).
B.

Motions to Strike
Both parties ask the Court to disregard some of the evidence in the summary

judgment record. (Docs. 56, 57, 59). Under Federal Rule of Civil Procedure
56(c)(2), at the summary judgment stage, “[a] party may object that the material
cited to support or dispute a fact cannot be presented in a form that would be
admissible in evidence.” Fed. R. Civ. P. 56(c)(2). These objections function like
trial objections, and “[t]he burden is on the proponent [of the evidence] to show
that the material is admissible as presented or to explain the admissible form that is
anticipated.”

Fed. R. Civ. P. 56(c)(2) advisory committee’s note (2010

amendments).

If the Court finds that summary judgment evidence will be

available at trial in an admissible form, then the Court may consider the evidence
when deciding a summary judgment motion, even though the evidence is not in an
admissible form at the summary judgment stage. For example, “a district court
may consider a hearsay statement in passing on a motion for summary judgment if
the statement could be reduced to admissible evidence at trial or reduced to
admissible form.” Jones v. UPS Ground Freight, 683 F.3d 1283, 1293-94 (11th
Cir. 2012) (internal quotation marks omitted). A district court has broad discretion
to determine at the summary judgment stage what evidence it will consider
3

pursuant to Rule 56(c)(2). See Green v. City of Northport, 2014 WL 1338106, at
*1 (N.D. Ala. March 31, 2014).
II.

FACTUAL AND PROCEDURAL BACKGROUND
The City of Talladega owns the Ritz Theatre. (Doc. 55-1, p. 4). Each year,

the Talladega City Council appropriates money to Talladega First, Inc. (“Talladega
First”), a nonprofit organization, to operate the Ritz Theatre. (Docs. 55-1, p. 26;
55-12, p. 3).1 Talladega First entered into an express contract with the City to
“take[] the lead role in organizing various community resources with the mission
of developing, funding, operating and managing the Ritz Theatre.” (Doc. 52-1).
Talladega First has a board of directors that sets the policy for the theater. (Doc.
55-1, p. 6). The board is comprised of local citizens, leaders of the community,
volunteers, and representatives from different institutions in the community. (Doc.
55-1, p. 6).
On October 29, 2011, Ms. Evans met with Gail Montgomery to discuss
leasing the Ritz Theatre for a production of Ms. Evans’s gospel play, NaRu. (Doc.
55-2, p. 9).2 At the time, Ms. Montgomery was not the Ritz Theatre’s manager,
but she oversaw the theater’s operations while the theater tried to fill the
1

Ms. Evans’s amended complaint also contained claims against Talladega First, Inc. d/b/a
Antique Talladega, Inc. (Doc. 24). The Court dismissed Ms. Evans’s claims against Talladega
First on January 6, 2015 consistent with the parties’ joint stipulation of dismissal. (Docs. 61,
62).
2

NaRu is “an African-American gospel and modern-day interpretation of the story of Naomi
and Ruth.” (Doc. 52, p. 2).
4

management position. (Doc. 55-2, p. 11). Ms. Evans and Ms. Montgomery
executed and signed a written agreement stating that Ms. Evans would rent the Ritz
Theatre for her production on May 5, 2012 in exchange for $400.00. (Doc. 55-2,
p. 12). Ms. Evans paid $400.00 to the Ritz Theatre. (Doc. 55-2, p. 12). The
agreement also stated that Ms. Evans’s group could come to the theater on May 4,
2012 to set up for her May 5 production and that she would use the theater’s
technicians at a rate of fifteen dollars per hour. (Doc. 55-2, p. 12). Sometime in
November 2011, Ms. Evans and Ms. Montgomery met again and agreed that Ms.
Evans would rent the Ritz Theatre in October 2012 for a second production of Ms.
Evans’s play. (Doc. 55-2, p. 13). On the same day, Ms. Evans paid another
$400.00 to the Ritz Theatre. (Doc. 55-2, p. 13).
Also in November 2011, Talladega First hired George Culver to manage the
Ritz Theatre. (Doc. 55-1, p. 3). Talladega First employed Mr. Culver and paid
Mr. Culver’s salary. (Doc. 55-1, p. 12).
In February 2012, Ms. Evans spoke on the telephone with Mr. Culver and
told Mr. Culver that NaRu was scheduled for production at the Ritz Theatre on
May 5, 2012. (Doc. 55-2, p. 15). Mr. Culver told Ms. Evans that he was aware of
the play and that the theater was undergoing some maintenance. (Doc. 55-2, p.
15). A few weeks later, Ms. Evans and Mr. Culver spoke on the telephone again.
(Doc. 55-2, pp. 15-16). Mr. Culver asked Ms. Evans whether she was willing to
5

reschedule her May 5, 2012 production to accommodate a spelling bee. (Doc. 552, pp. 15-16).3 Ms. Evans told Mr. Culver that she would have to speak with her
cast before giving Mr. Culver an answer. (Doc. 55-2, p. 16). Ms. Evans called Mr.
Culver to let him know that she could switch dates to accommodate the spelling
bee, and Mr. Culver told Ms. Evans that he no longer needed the theater on May 5,
2012.

(Doc. 55-2, p. 16-17).

Ms. Evans told Mr. Culver that she would

nevertheless have to change the date of her production because her cast had already
agreed to change the date. (Doc. 55-2, p. 17). Ms. Evans and Mr. Culver agreed to
change the date of Ms. Evans’s production from May 5, 2012 to August 25, 2012.
(Doc. 55-2, p.18).
Over the next few months, Ms. Evans tried coordinating with the personnel
at the Ritz Theatre to prepare for her production, but she could not get anyone to
return her calls. (Doc. 55-2, pp. 19-21). Ms. Evans left several messages for Mr.
Culver, but Mr. Culver did not respond. (Doc. 55-2, pp. 20-21).
On August 8, 2012, Ms. Montgomery returned one of Ms. Evans’s calls and
told Ms. Evans that the Ritz Theatre likely would not be able to hold her
production on August 25, 2012. (Doc. 52-2, ¶ 8). Without success, Ms. Evans
3

Mr. Culver disputes this fact and claims that he contacted Ms. Evans in February 2012 to ask
Ms. Evans whether she was willing to reschedule her May 5, 2012 production to accommodate
the Talladega High School drama club’s production of a play called Our Town. (Doc. 55-1, p.
7). In April 2012, the Ritz Theatre held the Red Mountain Theater Company’s production of a
play called the 25th Annual Putnam County Spelling Bee. (Doc. 55-1, p. 15). The Ritz Theatre
eventually held the production of Our Town on May 3 and 4, 2012. (Doc. 55-3, p. 9).
6

tried contacting Mr. Culver to figure out why the Ritz Theatre could not
accommodate her August 25, 2012 production date. (Doc. 55-2, p. 20). On
August 15, 2012, Ms. Evans drove to Talladega and discussed her situation with
Talladega’s city manager, Brian Muenger. (Doc. 52-2, ¶ 10). Ms. Evans told Mr.
Muenger that she was having problems with the Ritz Theatre and that the theater’s
staff was not responding to her. (Doc. 55-2, p. 21). Mr. Muenger told Ms. Evans
that she would not be able to hold her production at the Ritz Theatre on August 25,
2012, because the theater was undergoing renovations, and the City could not
allow anyone to enter the theater until the renovations were complete. (Doc. 55-2,
p. 21). Mr. Muenger also told Ms. Evans that the personnel at the Ritz Theatre
knew about the renovations well in advance and that they should not have
scheduled her production for August 25, 2012. (Doc. 55-2, p. 21).
Ms. Evans did not reschedule her production and never held any productions
at the Ritz Theatre. (Doc. 55-3, p. 7). Mr. Culver contacted Ms. Evans around
October 2012 to tell her that he was refunding her money. (Doc. 55-2, p. 22).
Ms. Evans claims that she suffered $15,979.69 in economic damages as a
result of the production’s cancellation. (Doc. 55-7, pp. 10-34).4 Ms. Evans also

4

Ms. Evans provided the following itemized list of damages in an affidavit:
Ritz Theatre rental:
Full-page advertisement with Da-sh Magazine:
Promotional commercial with BMP:
7

$800.00
$150.00
$380.00

contends that the cancellation caused her to suffer physical, emotional, and
reputational harm.5
Ms. Evans filed a complaint against the City in federal court on April 15,
2013 (Doc. 1) and amended her complaint on August 14, 2014 (Doc. 24).6 Ms.
Evans claims that Mr. Culver, acting as a final policymaker for the City, favored a
predominantly white production over her predominantly black production, thereby
discriminating against Ms. Evans based on her race in violation of 42 U.S.C. §
1983. Ms. Evans also claims that Talladega First, as an agent of the City, breached
its contract with Ms. Evans.
Advertising posters and postcards:
Outbox poster for theater:
Ticket printing:
Programs printing:
Material and labor for custom Ritz stage backdrops:
Material and labor for custom set props:
Videographer and photos:
Musicians (saxophone, keyboard, drummer, bass player):
Food and refreshments for cast and crew:
Formal presentation gown:
Loss of income from missing two days of work
attempting to rectify the problem:
Loss of projected proceeds from ticket sales (500 @ $20):

$949.82
$40.00
$92.87
$200.00
$524.02
$400.00
$375.00
$1,200.00
$450.00
$165.98
$252.00
$10,000.00

(Doc. 55-2, p. 27).
5

Ms. Evans asserts that the cancellation and the surrounding circumstances were very stressful
to her, causing her to suffer mental anguish, anxiety, and elevated blood pressure. (Doc. 55-2, p.
5). Ms. Evans also claims that her “reputation in the performing arts community has suffered
greatly.” (Doc. 55-2, p. 5).
6

In ruling on the City’s motion to dismiss, the Court dismissed Ms. Evans’s section 1981 and
promissory fraud claims alleged against the City. (Doc. 37).
8

The parties engaged in discovery, and the City filed a motion for summary
judgment. (Doc. 26). After an unsuccessful mediation (Doc. 42), the City filed an
amended motion for summary judgment (Docs. 48, 49, 55). After the summary
judgment briefing, both parties filed motions to strike portions of each other’s
evidentiary submissions. (Docs. 56, 57, 59). On this record, the Court considers
the parties’ motions to strike and the City’s motion for summary judgment.
III.

MOTIONS TO STRIKE
Before the Court may decide whether the summary judgment record

contains disputed material facts that preclude summary judgment on Ms. Evans’s
section 1983 and breach of contract claims, the Court must determine the scope of
the summary judgment record. Ms. Evans asks the Court to strike from the record
portions of an affidavit from Brian Muenger (Doc. 56) and facts listed in the City’s
summary judgment motion (Doc. 57). The City asks the Court to strike from the
record statements that Ms. Evans made in two different affidavits and two of Ms.
Evans’s supporting exhibits. (Doc. 59). Because the Court did not rely on any of
the challenged evidence, the Court denies the parties’ motions to strike as moot.
IV.

MOTION FOR SUMMARY JUDGMENT

A.

§ 1983
42 U.S.C. § 1983 provides that anyone who, under color of state law,

“subjects, or causes to be subjected, any citizen of the United States or other
9

person within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law.” As a preliminary matter, the Court must determine
whether the City is subject to liability under section 1983 before reaching the issue
of whether Mr. Culver discriminated against Ms. Evans.
Municipalities may not be subject to liability under section 1983 on a theory
of respondeat superior.

Hill v. Cundiff, Nos. 14-12481, 13-15444 2015 WL

4747048, at *22 (11th Cir. Aug. 12, 2015) (citing Denno v. Sch. Bd. Of Volusia
Cty., Fla., 218 F.3d 1267, 1276 (11th Cir. 2000)).

Generally speaking,

municipalities may be subject to liability under section 1983 only when the
execution of a government policy or custom causes a constitutional violation. Id.
(citing Pembaur v. Cincinnati, 475 U.S. 469, 479-80 (1986) (plurality opinion)).
There is nothing in the record that indicates that the City has an official policy or
custom, the implementation of which directs the City’s officials to discriminate or
otherwise commit constitutional harms. Therefore, Ms. Evans may not pursue her
section 1983 claim under this general rule.
In the absence of a government policy or custom, “[m]unicipal liability may
be imposed for a single decision by municipal policymakers” under certain
circumstances. Cooper v. Dillon, 403 F.3d 1208, 1221 (11th Cir. 2005) (citing
Pembaur, 475 U.S. at 480). Specifically, “where action is directed by those who
10

establish governmental policy, the municipality is equally responsible whether that
action is to be taken only once or to be taken repeatedly.” Pembaur, 475 U.S. at
481 (majority opinion).

Such municipal liability attaches only where the

decisionmaker has final policymaking authority with respect to the action ordered.
Cooper, 403 F.3d at 1221; see also City of St. Louis v. Praprotnik, 485 U.S. 112,
123 (1988) (“Only those municipal officials who have ‘final policymaking
authority’ may by their actions subject the government to § 1983 liability.”)
(quoting Pembaur, 475 U.S. at 483). To determine whether Ms. Evans may pursue
her section 1983 claim under this theory, the Court must determine whether Mr.
Culver, the alleged perpetrator of the constitutional harm, is an official of the City
who possesses the authority to make final policy.
Whether an actor is a municipal official with final policymaking authority is
a question of state law. Pembaur, 475 U.S. at 483. “Authority to make municipal
policy may be granted directly by a legislative enactment or may be delegated by
an official who possesses such authority.” Id. As the Supreme Court stated in
Praprotnik:
The States have extremely wide latitude in determining the form that
local government takes, and local preferences have led to a profusion
of distinct forms. Among the many kinds of municipal corporations,
political subdivisions, and special districts of all sorts, one may expect
to find a rich variety of ways in which the power of government is
distributed among a host of different officials and official bodies.
Without attempting to canvass the numberless factual scenarios that
may come to light in litigation, we can be confident that state law
11

(which may include valid local ordinances and regulations) will
always direct a court to some official or body that has the
responsibility for making law or setting policy in any given area of a
local government’s business.
Praprotnik, 485 U.S. 124-25 (internal citations omitted).
The record here indicates that Mr. Culver is not an “official” of the City, let
alone one with final policymaking authority. Although the City owns the Ritz
Theatre, it neither employs Mr. Culver nor pays his salary. Rather, Mr. Culver is
an employee of Talladega First, a nonprofit organization that manages the cityowned theater.
Citing Buckner v. Toro, 116 F.3d 450 (11th Cir. 1997), Ms. Evans argues
that Talladega First’s contract with the City to operate the Ritz Theatre effectively
makes Talladega First an extension of the City, thereby making Mr. Culver, as
executive director of Talladega First, a municipal official with final policymaking
authority. In Buckner, the Eleventh Circuit held that a private entity contracting
with a municipality to provide medical services to inmates becomes functionally
equivalent to the municipality because it performs a function traditionally within
the exclusive prerogative of the state. Id. at 452.
Ms. Evans’s reliance on Buckner is misplaced. The principle articulated in
Buckner was limited to those specific circumstances in which a private entity
contracts with a municipality to provide medical services to inmates. See id.;
Howell v. Evans, 922 F.2d 712, 723-24 (11th Cir. 1991); Ort v. Pinchback, 786
12

F.2d 1105 (11th Cir. 1986). Ms. Evans provides no authority to support the
proposition that Buckner’s holding extends broadly to any situation in which a
private entity contracts with a municipality to perform some service. Additionally,
neither Buckner nor the cases cited therein suggest that a private entity contracting
with a municipality to operate a historic theater performs a function traditionally
within the exclusive prerogative of the state. At most, the contract between the
City and Talladega First establishes a principal-agent relationship, which is
insufficient to subject the City to section 1983 liability.

See Hill, 2015 WL

4747048, at *22.
Assuming that Mr. Culver was a municipal employee, he was not a “final
policymaker” in his capacity as the Ritz Theatre’s manager.

“[A] municipal

official does not have final policymaking authority over a particular subject matter
when that official’s decisions are subject to meaningful administrative review.”
Scala v. City of Winter Park, 116 F.3d 1396, 1401 (11th Cir. 1997). Mr. Culver’s
undisputed testimony establishes that his decisions with respect to the Ritz
Theatre’s operations were subject to the overriding authority of Talladega First’s
board of directors. (Doc.55-1, p. 6). Such overriding authority precludes Mr.
Culver from making final policy as it pertains to the Ritz Theatre, including the
negotiation and execution of contracts between Talladega First and third parties.
See, e.g., Manor Healthcare Corp. v. Lomelo, 929 F.2d 633, 638 (11th Cir. 1991)
13

(holding that a mayor was not a final policymaker with respect to zoning
ordinances when the city’s charter gave the city council the authority to override
the mayor’s veto of zoning ordinances). Therefore, the Court finds that Mr. Culver
is not a final policymaker for the City.
When a municipal official without final policymaking authority is
responsible for an alleged constitutional harm, a municipality may be liable if the
municipality’s authorized policymakers ratify the subordinate’s decision and the
basis for it. Praprotnik, 485 U.S. at 127. Nothing in the record suggests that Mr.
Muenger, acting as Talladega’s city manager, ratified either Mr. Culver’s decision
to reschedule Ms. Evans’s production or the basis for doing so. Mr. Muenger did
not learn of Mr. Culver’s decision to reschedule Ms. Evans’s production until
August 15, 2012, when Ms. Evans met with Mr. Muenger to discuss her problem.
By this time, her original production date of May 25, 2012 had already passed.
Even if Mr. Muenger wanted to override Mr. Culver’s decision and honor Ms.
Evans’s August 25, 2012 production date, the Ritz Theatre’s renovations would
have prevented Mr. Muenger from doing so. Mr. Muenger’s statement to Ms.
Evans—that the personnel at the Ritz Theatre knew about the renovations and
should not have scheduled Ms. Evans’s production for August 25, 2012—suggests
that Mr. Muenger disagreed with Mr. Culver’s scheduling decision, not that he was
aware of or approved any possible discriminatory basis for the decision. Thus, the
14

Court finds that Mr. Muenger did not ratify Mr. Culver’s alleged discriminatory
decision.
Based on the undisputed facts in the record, the Court finds that the City is
not subject to liability under section 1983 for the alleged discriminatory acts of Mr.
Culver or Talladega First.

Therefore, the Court grants the City’s motion for

summary judgment as to Ms. Evans’s section 1983 claim.7
B.

Breach of Contract
Under Alabama law, a plaintiff must establish the following to prevail on a

breach of contract claim: “(1) the existence of a valid contract binding the parties
in the action, (2) his own performance under the contract, (3) the defendant’s
nonperformance, and (4) damages.” City of Gadsden v. Harbin, 148 So. 3d 690,
696 (Ala. 2013) (internal quotation marks and citations omitted). Additionally,
when an agent with real or apparent authority enters into a contract on behalf of a
principal, the principal will be bound to the contract. Lee v. YES of Russellville,
Inc., 784 So. 2d 1022, 1027 (Ala. 2000).
There is substantial evidence in the record to establish that (1) Ms. Evans
entered into a contract with Talladega First, (2) Ms. Evans performed under the
contract by paying the theater $800 to hold her production on two separate

7

Because the Court finds that Mr. Culver’s actions do not subject the City to section 1983
liability, the Court need not decide whether Ms. Evans has presented sufficient evidence of
discrimination.
15

occasions, (3) Talladega First failed to perform under the contract by informing
Ms. Evans that she could not hold her production at the Ritz Theatre in August
2012, and (4) Ms. Evans suffered out-of-pocket losses and mental and reputational
damages as a result of Talladega First’s breach of contract. To hold the City liable
for Talladega First’s apparent breach of contract, Ms. Evans must demonstrate that
Talladega First had authority as the City’s agent to enter into a contract with Ms.
Evans on behalf of the City.
Under Alabama law, “[t]he test for agency is whether the alleged principal
has retained a right of control over the actions of the alleged agent.” Dickinson v.
City of Huntsville, 822 So. 2d 411, 416 (Ala. 2001). Establishing the right to
control requires substantial evidence that the principal retained the right to direct
the manner in which the agent conducted business. Kennedy v. Western Sizzlin
Corp., 857 So. 2d 71, 77 (Ala. 2003). “An agent’s authority to contract on behalf
of his principal must be either express, implied, or apparent.” Lawler Mobile
Homes, Inc. v. Tarver, 492 So. 2d 297, 304 (Ala. 1986). “[A]uthority can be
created by written or spoken words or other conduct of the principal which,
reasonably interpreted, causes the agent to believe that the principal desires him to
act on the principal’s behalf.” Treadwell Ford, Inc. v. Courtesy Auto Brokers, Inc.,
426 So. 2d 859, 861 (Ala. Ct. App. 1983).

16

According to Mr. Culver, the City could control the theater’s operations—
which presumably include the formation of contracts—by deciding not to renew
Talladega First’s contract with the City for the following year, thereby cutting off
Talladega First’s funding for the theater. (Doc. 55-1, p. 19). The contract between
the City and Talladega First, which directs Talladega First to report the details of
its operation to the City, also shows that Talladega First’s operations were under
the City’s control.8 This evidence creates a question of fact regarding agency.
The evidence also suggests that Talladega First had the authority to enter
into contracts on behalf of the City for matters concerning the theater’s operations.
The contract between Talladega First and the City expressly directs Talladega First
“[t]o work toward the complete development of the Ritz Theater and serve as
liaison to architects and contractors as needed, as well as plan the funding and
programming activities for its use after renovation.” (Doc. 52-1, p. 3). This
written delegation of authority—namely, to “serve as liaison to . . . contractors as
needed” and to “plan the funding and programming activities for its use”—

8

The contract provides: “The officers and representatives of Talladega First Inc. shall provide
the City an annual written report by August 1 of 2012, setting out all action taken by Talladega
First Inc. pursuant to this contract. The report shall be submitted to the City Manager of
Talladega. The report shall be specific and detailed and shall refer to all actions taken and
including a listing of the Board of Directors or members of the organization, a financial report, a
report detailing the number of citizens of the City of Talladega your agency has served, the types
of services provided and the accomplishments of the agency during the past fiscal year.” (Doc.
52-1, p. 3).
17

reasonably could cause Talladega First to believe that the City desired Talladega
First to act on the City’s behalf in forming contracts such as the one at issue.
Therefore, the Court denies the City’s motion for summary judgment as to
Ms. Evans’s breach of contract claim.
V.

SUPPLEMENTAL JURISDICTION OVER MS. EVANS’S STATE
LAW CLAIM
A district court may decline to exercise supplemental jurisdiction over a

pendent state law claim if “the district court has dismissed all claims over which it
has original jurisdiction.” 28 U.S.C. § 1367(c)(3). Once section 1367(c)(3) is
satisfied, “the district court possesses the discretion to dismiss supplemental
claims” and must weigh a “host of factors.” Ameritox, Ltd. v. Millennium Labs.,
Inc., No. 14-14281, 2015 WL 5155240, *10 (11th Cir. Sept. 3, 2015) (citing Utd.
Mine Workers of Am. v. Gibbs, 383 U.S. 715 (1966) and Carnegie-Mellon Univ. v.
Cohill, 484 U.S. 343, 350 (1988)).
The Court has examined the factors set out in Gibbs and Cohill. Those
factors weigh in favor of dismissing Ms. Evans’s breach of contract claim.
Therefore, the Court dismisses without prejudice Ms. Evans’s breach of contract
claim against the City.9
9

The Court reminds the parties that “[t]he period of limitations for any claim asserted under
[supplemental jurisdiction], and for any other claim in the same action that is voluntarily
dismissed at the same time as or after the dismissal of the claim under [supplemental
jurisdiction], shall be tolled while the claim is pending and for a period of 30 days after it is
dismissed unless State law provides for a longer tolling period.” 28 U.S.C. § 1367(d).
18

VI.

CONCLUSION
For the reasons stated above, the Court ORDERS as follows:
(1)

The Court GRANTS the City’s motion for summary judgment as to

Ms. Evans’s section 1983 claim and DENIES the City’s motion for summary
judgment as to Ms. Evans’s breach of contract claim (Doc. 48);
(2)

The Court DENIES both parties’ motions to strike as moot (Docs. 56,

57, and 59);
(3)

The Court directs the Clerk to please TERM Docs. 48, 56, 57, and 59;

(4)

The Court DISMISSES WITH PREJUDICE Ms. Evans’s section

1983 claim and DISMISSES WITHOUT PREJUDICE Ms. Evans’s breach of
contract claim.
The Court will enter a separate final judgment consistent with this
memorandum opinion.
DONE and ORDERED this September 28, 2015.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

19