Jones et al v. Scott Davis Chip Mill et al

Filing 42

MEMORANDUM OPINION and ORDER. Signed by Magistrate Judge T Michael Putnam on 1/21/16. (MRR, )

FILED
2016 Jan-21 PM 01:13
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
CHRISTOPHER JONES, et al.,
Plaintiffs,
v.
SCOTT DAVIS CHIP MILL,
et al.,
Defendants.

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Case No. 7:15-cv-00661-TMP

MEMORANDUM OPINION and ORDER
Pending before the court are Motions to Dismiss the Amended Complaint by
defendants Jamie Brasher (doc. 28), Mike McMillan, and McMillan Trucking (doc.
30) (together “the defendants”).1 The motions have been fully briefed, and the
parties have consented to the exercise of dispositive jurisdiction by the
undersigned. (Doc. 26).

STANDARD OF REVIEW
Before the Supreme Court decided Bell Atlantic v. Twombly, 550 U.S. 544,
127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007), a court could dismiss a complaint only
1

Also named in the Amended Complaint as defendants are Brett Davis and Scott Davis Chip
Mill. Those defendants, however, have not filed motions to dismiss and, accordingly, are not
addressed in the instant Order.

where it was clear that no relief could be granted under any set of facts that could
be proved consistent with the allegations,” as set forth in Conley v. Gibson, 355
U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). The well-established Rule 12(b)(6)
standard set forth in Conley was expressly rejected in Twombly when the Supreme
Court examined the sufficiency of a plaintiff’s complaint and determined:

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and
plain statement of the claim showing that the pleader is entitled to
relief,” in order to “give the defendant fair notice of what the ... claim
is and the grounds upon which it rests,” Conley v. Gibson, 355 U.S.
41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). While a complaint
attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiff's obligation to provide the “grounds” of
his “entitle[ment] to relief” requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not
do. Factual allegations must be enough to raise a right to relief above
the speculative level.

550 U.S. at 555 (citations omitted). The Court went on to criticize Conley, stating
that “[t]he ‘no set of facts’ language has been questioned, criticized, and explained
away long enough” by courts and commentators, and “is best forgotten as an
incomplete, negative gloss on an accepted pleading standard: once a claim has
been stated adequately, it may be supported by showing any set of facts consistent
with the allegations in the complaint.” Twombly, 550 U.S. at 562-63.

The

Supreme Court emphasized, however, that “we do not require heightened fact

2

pleading of specifics, but only enough facts to state a claim to relief that is
plausible on its face.” 550 U.S. at 570. The Supreme Court expanded on the
Twombly standard when it decided Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct.
1937, 1949–50, 173 L. Ed. 2d 868 (2009), reiterating the Twombly determination
that a claim is insufficiently pleaded if it offers only “labels and conclusions” or “a
formulaic recitation of the elements of a cause of action.” Iqbal, 129 S. Ct. at 1949.
The Court further explained:

Two working principles underlie our decision in Twombly. First, the
tenet that a court must accept as true all of the allegations contained in
a complaint is inapplicable to legal conclusions. Threadbare recitals of
the elements of a cause of action, supported by mere conclusory
statements, do not suffice.... Rule 8 marks a notable and generous
departure from the hyper-technical, code-pleading regime of a prior
era, but it does not unlock the doors of discovery for a plaintiff armed
with nothing more than conclusions. Second, only a complaint that
states a plausible claim for relief survives a motion to dismiss.
Determining whether a complaint states a plausible claim for relief
will, as the Court of Appeals observed, be a context-specific task that
requires the reviewing court to draw on its judicial experience and
common sense. But where the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the
complaint has alleged—but it has not “show[n]”—“that the pleader is
entitled to relief.”

Iqbal, 129 S. Ct. at 1949–50 (citation omitted). See also Sinaltrainal v. Coca–Cola
Co., 578 F.3d 1252 (11th Cir. 2009) (“The mere possibility the defendant acted
unlawfully is insufficient to survive a motion to dismiss” and “the well-pled
3

allegations must nudge the claim ‘across the line from conceivable to plausible’”
(quoting Iqbal and Twombly)). Applying these standards, the court examines the
merits of the defendants’ motions to dismiss the Amended Complaint.

FACTS
The plaintiffs both are African American residents of Alabama who, as sole
proprietors, own and operate separate trucking businesses that regularly did
business with the defendants during the relevant time. Plaintiffs Jones and Jackson
had been hauling loads of wood chips for Scott Davis Chip Mill (“the Chip Mill”)
for approximately two years prior to the incidents at issue in the instant case.
(Doc. 24, pp. 2-3). Both plaintiffs regularly were hired by the Chip Mill to haul
wood chips from the Chip Mill to Beaumont, Texas, as well as other locations.
(Id.)

The Chip Mill is an incorporated entity in Bibb County, Alabama and

defendant Brett Davis (“Davis”) is the principal owner of the Chip Mill. Plaintiffs
allege that defendant Jamie Brasher (“Brasher”) is an agent of the Chip Mill,
though not an employee. Rather, he is the employee of defendant McMillan
Trucking, which plaintiffs allege is an incorporated entity located in Bibb County,
Alabama.

McMillan Trucking worked with the Chip Mill to assign loads to

various truckers.

Defendant Mike McMillan (“McMillan”) is the owner of

McMillan Trucking. Brasher is the employee of McMillan Trucking responsible
4

for assigning loads from the Chip Mill to truckers. Plaintiffs allege that “[t]he
arrangement entered into with Defendant Brasher by Defendants McMillan
Trucking, owner Mike McMillan, Scott Davis Chip Mill and owner Brett Davis
resulted in their not having to hire a dispatcher to distribute loads for transport.”
(Doc. 35, p. 5).
In July and August of 2014, Brasher began asking for $100 per load in cash
from the plaintiffs and other African American drivers. (Doc. 24, p. 3). There are
both African American and Caucasian truckers hauling for the Chip Mill, but
Caucasian drivers were not asked to pay the $100 kickback. (Id. at 3-4). Brasher
would pressure the African-American truckers into paying him when they arrived
to get their loads. (Id. at 3). Plaintiff Jones refused to pay, and plaintiff Jackson
paid once, but refused to pay thereafter. (Id.) Following Brasher’s request for
money, the plaintiffs met with Davis, the owner of the Chip Mill, to discuss the
kickback. Davis acknowledged the illegality of the kickback and assured the
plaintiffs that he would look into it. (Id.) However, Davis said Brasher was too
valuable for him to do anything about the issue. (Id.) After complaining to Davis,
neither plaintiff was assigned any more hauls from the Chip Mill. (Id.)

5

DISCUSSION
Federal Law Claims
I.

42 U.S.C. § 1981
In the Amended Complaint, the plaintiffs allege that the defendants violated

42 U.S.C. § 1981 by depriving them of the equal opportunity to contract due to
racial discrimination. The plaintiffs allege that Brasher required the plaintiffs and
other African American truckers to pay him a $100 “kickback” to be assigned
loads to haul. The plaintiffs assert that this “kickback” fee was not required of
Caucasian drivers. The plaintiffs met with Davis regarding Brasher’s behavior,
and Davis told the plaintiffs that Brasher’s behavior was “illegal” and that he
would “look into it.” Ultimately, however, he told the plaintiffs that Brasher was
“too valuable” for him to take any action. Although the plaintiffs had been hauling
for the Chip Mill for around two years, they were not given further work after they
complained to Davis about Brasher’s behavior. The plaintiffs argue that Brasher’s
actions benefitted all of the defendants, making all of them responsible for it.
A claim under 42 U.S.C. § 1981 requires the plaintiff to allege and make a
prima facie showing “(1) he or she is a member of a racial minority; (2) the
defendant had intent to discriminate on the basis of race; and (3) the discrimination
concerned one or more activities enumerated in the statute.” Rutstein v. Avis
Rent-A-Care Systems, Inc., 211 F.3d 1228, 1235 (11th Cir. 2000). The activities
6

enumerated in the statute are the rights to “make and enforce contracts, to sue, be
parties, give evidence, and to the full and equal protection of all laws . . . .”
42 U.S.C. § 1981. “[T]he term ‘make and enforce contracts’ includes making,
performance, modification, and termination of contracts, and the enjoyment of all
benefits, privilege, terms, and conditions of the contractual relationship.”
42 U.S.C. § 1981(b).
Defendants Brasher, Mike McMillan, and McMillan Trucking first argue
that the plaintiffs do not have standing to sue under 42 U.S.C. § 1981 because it is
the plaintiffs’ trucking businesses, not the plaintiffs individually, that contract with
the Chip Mill and were later deprived of business from the mill. The defendants
cite Domino’s Pizza, Inc. v. McDonald, in which the Supreme Court determined
that the sole shareholder and president of a corporation did not, individually, have
the right to sue for alleged violations of § 1981 against the corporation. 546 U.S.
470, 479-80, 126 S. Ct. 1246, 1252 (2006).

Domino’s is fundamentally

distinguishable from the instant case, however, because the plaintiff in Domino’s
was operating an incorporated entity, while the plaintiffs in the instant case own
and operate unincorporated sole proprietorships. (Doc. 34, p. 7; Doc. 35, pp. 7-8).
Under Alabama law, a sole proprietorship and the owner of that business
generally are considered to be the same legal entity. See Carolina Casualty Ins.
Co. v. Williams, 945 So. 2d 1030, 1040 (Ala. 2006) (“Under Alabama law,
7

Williams Trucking, a sole proprietorship, is considered the same legal entity as
Williams, the individual. Therefore, Williams is deemed to own the 1984 Mack
dump truck titled in the name of his sole proprietorship.”); Clardy v. Sanders, 551
So. 2d 1057, 1059-1060 (Ala. 1989) (“Clardy the individual and Clardy Realty, a
sole proprietorship, are but a single legal entity; and the two separate capacities
(Clardy as an individual, and Clardy as a sole proprietor) cannot be separated into
two legal entities for the purpose of testing Clardy Realty, Inc.’s liability as a
successor in interest to the liabilities of Clardy’s estate.”); see also Berry v. Smith,
2008 WL 3211305, at *1 (S.D. Ala. Aug. 6, 2008).
If the individual sole proprietor is liable on behalf of his or her business, it
stands to reason that the reverse is true—the individual sole proprietor holds the
rights of his or her business. Indeed, that was the holding in Carolina Casualty,
cited above; the owner of the sole proprietorship was the owner of a truck titled in
the name of the proprietorship. The same is true here. Plaintiffs Jones and
Jackson, as the sole proprietors of their respective businesses, own all of the rights
and interests claimed by the businesses. Accordingly, to the extent defendants
Brasher, McMillan, and McMillan Trucking argue that the plaintiffs lack standing
because they brought the suit in their individual capacities rather than under the
names of their sole proprietor trucking companies, this is not a basis for dismissing
the Amended Complaint.
8

Additionally, however, defendants Mike McMillan and McMillan Trucking
argue that the plaintiffs do not allege in the Amended Complaint any wrongdoing
on their part and, accordingly, fail to state a prima facie case against either
McMillan individually or the corporation, McMillan Trucking, for violation of
§ 1981. The plaintiffs assert that Brasher was an employee of McMillan Trucking,
and that part of his employment duties was to assign loads for truckers to haul
wood chips from the Chip Mill. Defendants McMillan and McMillan Trucking do
not dispute that Brasher was an employee of McMillan Trucking during the
relevant time period. They do, however, argue that “there are no allegations that
Mr. Brasher was acting in the line and scope of his employment with McMillan
Trucking when these alleged acts occurred.” (Doc. 30-1, p. 7).
According to the plaintiffs, as alleged in the Amended Complaint, Brasher
demanded the kickbacks while he was at the Chip Mill assigning loads to be
hauled, and that whether a kickback was paid directly affected the way in which he
carried out his employment duties. If African-American truckers, like plaintiffs,
refused to pay the kickback, they would not be assigned a load in the ordinary
course of business, but would have to wait to see if there were any “left over”
loads. Assuming these allegations of the plaintiffs to be true, as the court must on
a motion to dismiss, Brasher was employed by McMillan Trucking and at least part
of his employment duties was to assign loads to be hauled from the Chip Mill.
9

Therefore, the fact that he required a racial discriminatory “fee” to allow African
American truck drivers to be assigned to particular haul routes would be an
abstraction of Brasher’s normal duties and, for § 1981 purposes, within the line and
scope of his employment, even if not for the benefit of his employer. 2 Because it is
at least plausible that McMillan Trucking, as Brasher’s employer, is vicariously
liable for Brasher’s racially discriminatory actions, the motion to dismiss as it
pertains to the plaintiffs’ § 1981 claims against McMillan Trucking is due to be
denied. See Arguello v. Conoco, Inc., 207 F.3d 803 (5th Cir. 2000).
Vicarious liability on the part of Mike McMillan, individually, however, is a
different matter. According to the Amended Complaint, McMillan Trucking is an
incorporated entity located in Bibb County, Alabama, and Mike McMillan is the
owner and operator of the corporation. (Doc. 24, ¶¶ 5, 6). A primary purpose for
incorporating a business is to protect the owner or owners from individual liability.
Because McMillan Trucking is a corporation, action taken by McMillan Trucking

2

Discussed later in this opinion is whether, under Alabama state law, Brasher’s extraction of a
$100 kickback was within the “line and scope” of his employment for purposes of making
McMillan Trucking vicariously liable for his intention torts. The court concludes that it was not.
This is not inconsistent with the instant finding that, under federal law, the same act is regarded
as being within the line and scope of his employment for purposes of vicarious liability under
§ 1981. The difference lies in the sources of the respective rules. One derives from federal law
and the other from Alabama state law. The Supreme Court, in Faragher v. City of Boca Raton,
524 U.S. 775, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998), cast a somewhat more elastic and
expansive view of the “line and scope” concept than Alabama law does, as explained below.
Thus it is not inconsistent that the same act is within the line and scope of the employee’s
employment under § 1981, but not so under Alabama tort law.
10

cannot be attributed to McMillan, individually. For purposes of § 1981, however,
McMillan may be liable for racial discrimination that he himself causes or
participates in, even if not an “employer.” See Moss v. W & A Cleaners, 111 F.
Supp. 2d 1181, 1187 (M.D. Ala. 2000) (“individual employees can be held liable
for discrimination under § 1981”) (citing Leige v. Capitol Chevrolet, Inc., 895
F.Supp. 289, 293 (M.D.Ala. 1995); Perrymond v. Lockheed Martin Corp., 2009
WL 2474226, at *6 (N.D. Ga. Aug. 12, 2009) (“Such an individual will be liable
under § 1981 if he is personally involved in a racially discriminatory employment
decision”) (citing Burstein v. Emtel, Inc., 137 Fed. Appx. 205, 208 (11th Cir.
2005) (finding individual was not liable under § 1981 where he did not participate
in decision); Crawley v. Pakert–Johnson Co., 2008 WL 4793650, *1 (M.D.Fla.
Nov. 3, 2008) (“A claim for individual liability under Section 1981 requires some
affirmative link to causally connect the actor with the discriminatory action.”)).
The Amended Complaint in this case fails to allege any facts showing that
Mike McMillan, individually, participated in or was even aware of Brasher’s
discriminatory scheme. McMillan cannot be liable simply because he is the sole
owner of the corporate employer of Brasher, absent a factual allegation that he
knew of, allowed, or facilitated the discriminatory scheme. Although the employer
corporation may be vicariously liable for the actions of an employee, such liability
does not extend to the owners of the corporation without separate allegations that
11

the owner participated directly in the discriminatory action or ratified such action.
Because that is not alleged here, Mike McMillan individually is entitled to
dismissal of this claim against him personally. The plaintiff has not alleged any
wrongdoing by Mike McMillan, individually, or even that he was aware of
Brasher’s wrongdoing. Accordingly, Mike McMillan’s Motion to Dismiss the
plaintiff’s § 1981 claim against him is due to be granted.
II.

Conspiracy
Count Two of the Amended Complaint alleges that “[t]he Defendants have

contrived, combined, federated, and conspired amongst themselves to do the acts
herein described in violation of state and federal law.” (Doc. 24, ¶ 26). Although
this seems to allege a free-standing claim for civil conspiracy, it appears to allege
that defendants conspired to cause the claims alleged in every other count of the
Amended Complaint. Even so, Counts Three and Five allege expressly that the
defendants engaged, respectively, in a civil RICO conspiracy and a § 1985
conspiracy to deprive them of their civil rights. While Count Four does not
explicitly refer to a conspiracy, it does allege that the defendants “collectively”
required African-American truckers to pay a kickback not required from white
truckers, in violation of the Equal Protection clause of the Fourteenth Amendment.
None of the remaining counts, alleging claims under State law, makes any explicit
reference to a conspiracy among the defendants. Nevertheless, Count Two seems
12

to incorporate into its broad conspiracy theory all of the claims alleged elsewhere
in the Amended Complaint.
Defendants McMillan and McMillan Trucking assert that the plaintiffs have
failed to state sufficient facts to support a claim of either civil or criminal
conspiracy against them. Defendant Brasher does not address the conspiracy claim
in his Motion to Dismiss other than the general statement that all of the plaintiffs’
claims should be dismissed pursuant to Rule 12(b)(6). 3
The plaintiffs argue in response to the motions to dismiss that all of the
defendants “conspired to carry out their illegal scheme demanding $100 in secret
cash kickbacks per load from Plaintiffs and other African American drivers in
order to secure loads to haul for Defendants. Defendant Brasher made those
demands and pocketed that money acting as their agent and employee while they
were in contractual relationships with all the parties involved.” (Doc. 35, p. 11).
The plaintiffs have not, however, alleged any facts showing that defendants Mike
McMillan or McMillan Trucking (or any representative or supervisor thereof, other
than Brasher) had knowledge of or participated in Brasher’s kickback scheme or
3

To the extent Brasher intends his motion to dismiss to apply to the plaintiffs’ conspiracy
claims, the Motion is DENIED. As discussed infra, the plaintiffs allege that Brasher indicated
Davis had given him the idea for the scheme and that the plaintiffs received no more work after
communicating with Davis regarding Brasher’s actions. Accordingly, it is at least plausible that
a conspiracy existed between Brasher and Davis. Neither Davis nor Chip Mill has filed a motion
to dismiss, and the court has no occasion to consider the sufficiency of the factual allegations of
conspiracy involving them.
13

otherwise ratified it. Indeed, plaintiffs expressly allege that Brasher pressured
them to make “secret” payments to him. (See Amended Complaint, doc. 24, ¶ 11).
Allegations of conspiracy must be supported by “particularized allegations that a
conspiracy exists.” See Phillips v. Mashburn, 746 F.2d 782, 784 (11th Cir.1984);
Kivisto v. Miller, Canfield, Paddock & Stone, PLC, 413 F. App'x 136, 139 (11th
Cir. 2011). This includes a factual allegation plausibly showing a “meeting of the
mind” between the purported conspirators to carry out the object of the conspiracy.
There simply is no such factual allegation made in this case that Brasher, who was
receiving “secret” kickback payments, reached a meeting of minds with Mike
McMillan or McMillan Trucking to do so. Plaintiffs’ allegations of a conspiracy
between Brasher and McMillan and McMillan Trucking are insufficient “labels
and conclusions” and, therefore, cannot withstand a motion dismiss. See Iqbal,
129 S. Ct. at 1949.
Further, insofar as plaintiffs contend that Brasher’s position as an employee
of McMillan Trucking shows a conspiracy between him and McMillan Trucking,
the intracorporate conspiracy doctrine bars such a finding. “The intracorporate
conspiracy doctrine holds that acts of corporate agents are attributed to the
corporation itself, thereby negating the multiplicity of actors necessary for the
formation of a conspiracy. Simply put, under the doctrine, a corporation cannot
conspire with its employees, and its employees, when acting in the scope of their
14

employment, cannot conspire among themselves.” McAndrew v. Lockheed Martin
Corp., 206 F.3d 1031, 1036 (11th Cir. 2000).4

The plaintiffs’ allegations of

conspiracy against McMillan or McMillan Trucking amount to nothing more than
an attempt to allege a conspiracy among the employees of a corporation and the
corporation itself, which is barred by the intracorporate conspiracy doctrine.
Because the plaintiff has not set forth facts to make a conspiracy claim
plausible as required by Twombly and Iqbal, the motion to dismiss plaintiffs’
conspiracy claims against McMillan and McMillan Trucking are due to be granted.
III.

Racketeering
The Racketeer Influenced and Corrupt Organizations Act (“RICO”)

“imposes criminal and civil liability upon persons who engage in certain
‘prohibited activities,’ each of which is defined to include, as a necessary element,
proof of a ‘pattern of racketeering activity.’”

H.J. Inc. v. Northwestern Bell

Telephone Co., 492 U.S. 229, 229, 109 S. Ct. 2893, 2895, 106 L. Ed. 2d 195
(1989). Racketeering activity includes “any act or threat involving specified state4

The Eleventh Circuit has held that the doctrine does not apply to criminal conspiracies and,
therefore, does not bar civil actions for conspiracy under 42 U.S.C. § 1985(2), alleging a criminal
conspiracy to intimidate a federal witness. Plaintiffs here, however, do not allege a criminal
conspiracy, but only a conspiracy to deprive them of the equal protection of the law to contract
without racial discrimination, under the first clause of § 1985(3). The doctrine does apply to
conspiracies under § 1985(3). “[I]n Dickerson v. Alachua County Comm'n, 200 F.3d 761 (11th
Cir. 2000), a panel of this Court followed Chambliss [v. Foote, 562 F.2d 1015 (5th Cir.1977)
(per curiam)] and held that the intracorporate conspiracy doctrine barred plaintiff's § 1985(3)
claim alleging a conspiracy among employees of the same public entity to deprive him of his
civil rights.” McAndrew v. Lockheed Martin Corp., 206 F.3d 1031, 1038 (11th Cir. 2000).
15

law crimes, any ‘act’ indictable under specified federal statutes, and certain federal
‘offenses.’” Id. The plaintiffs allege that defendants engaged in the following
ongoing racketeering activities: seeking and accepting kickbacks from the
plaintiffs and others, wire fraud, and extortion. (Doc. 24, ¶ 29). The plaintiffs also
accuse the defendants of “conspiring to violate state and federal law, engaging in
an ongoing illegal enterprise, . . . and engaging in an ongoing pattern of actions in
violation of Plaintiffs’ legal rights.” (Id.)
The Eleventh Circuit sets out the elements of a cognizable RICO claim in
Williams v. Mohawk Industries, Inc., 465 F.3d 1277 (11th Cir. 2006):

Pursuant to 18 U.S.C. § 1962(c), it is illegal “for any person employed
by or associated with any enterprise engaged in, or the activities of
which affect, interstate or foreign commerce, to conduct or participate,
directly or indirectly, in the conduct of such enterprise’s affairs
through a pattern of racketeering activity. . . .” 18 U.S.C. § 1962(c).
Thus, in order to establish a federal civil RICO violation under
§ 1962(c), the plaintiffs “must satisfy four elements of proof:
‘(1) conduct (2) of an enterprise (3) through a pattern (4) of
racketeering activity.’” Jones v. Childers, 18 F.3d 899, 910 (11th Cir.
1994) (quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105
S. Ct. 3275, 3285, 87 L. Ed. 2d 346 (1985)). These requirements
apply whether the RICO claim is civil or criminal in nature.
In civil cases, however, RICO plaintiffs must also satisfy the
requirements of 18 U.S.C. § 1964(c). Section 1964(c) states that
“[a]ny person injured in his business or property by reason of”
RICO’s substantive provisions has the right to “recover threefold the
damages he sustains. . . .” 18 U.S.C. § 1964(c). Thus, under
§ 1964(c), civil RICO claimants, such as the plaintiffs here, must
16

show (1) the requisite injury to “business or property,” and (2) that
such injury was “by reason of” the substantive RICO violation.

Id. at 1282-1283.
The plaintiffs must first allege sufficient facts to show a plausible RICO
enterprise. “In defining ‘enterprise’, Congress made clear that the statute extended
beyond conventional business organizations to reach ‘any . . . group of individuals’
whose association, however loose or informal, furnishes a vehicle for the
commission of two or more predicate crimes. . . .” U.S. v. Hewes, 729 F.2d 1302,
1310 (1984), quoting United States v. Elliott, 571 F.2d 880, 898 (5th Cir. 1978),
cert denied., 439 U.S. 953, 99 S. Ct. 349, 58 L. Ed. 2d 344 (1978). 5 In other
words, “a RICO enterprise exists where a group of persons associates, formally or
informally, with the purpose of conducting illegal activity.” Id. at 1311 (emphasis
added). Accordingly, the plaintiffs not only must plausibly allege that more than
one person engaged in predicate crimes falling within the RICO statute, but that
the defendants associated with the purpose of conducting such illegal activities.
Id., see also U.S. v. Goldin Industries, Inc., 219 F.3d 1271, 1275 (11th Cir. 2000).

5

In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981)(en banc), the Eleventh
Circuit Court of Appeals adopted as precedent decision of the former Fifth Circuit rendered prior
to October 1, 1981.
17

The plaintiffs have asserted, and the defendants do not deny, that defendant
Brasher, at the relevant time, was an employee of McMillan Trucking and that, as
part of his employment, Brasher assigned loads for truckers to haul from the Chip
Mill. (Doc. 24, ¶ 10). Brasher attempted to extort kickbacks from the plaintiffs to
secure loads, and Brasher called the plaintiffs on the phone to initiate the deal,
constituting wire fraud.6 The plaintiffs also state that “Jamie Brasher said that
Brett Davis gave him the idea for the secret cash kickback of $100 per load for
certain drivers.” (Doc. 24, ¶ 12). Finally, the plaintiffs allege they met with Davis
about the issue, but no recourse was taken against Brasher and, after they
complained, the plaintiffs were not assigned any further loads from the Chip Mill.
(Doc. 24, ¶¶ 14, 16). None of the facts set out by the plaintiffs even plausibly
indicate that defendants Mike McMillan or McMillan Trucking were involved or
even aware of Brasher’s “secret” activities.
Because there is no factual allegation that McMillan or McMillan Trucking
knew of, participated in, or ratified Brasher’s kickback scheme, the Amended
Complaint fails to allege a RICO claim against them. “Section 1962(d) of the
RICO statutes make it illegal for anyone to conspire to violate one of the
substantive provisions of RICO, including § 1962(c). ‘A plaintiff can establish a
6

The plaintiffs do not assert that Brasher discussed the kickback over the phone, but that he
called the plaintiffs to come to the Chip Mill and “get their loads to haul,” at which time he told
them that they would be required to pay a $100 “fee” to be assigned a load.
18

RICO conspiracy claim in one of two ways: (1) by showing that the defendant
agreed to the overall objective of the conspiracy; or (2) by showing that the
defendant agreed to commit two predicate acts.’” Kivisto v. Miller, Canfield,
Paddock & Stone, PLC, 413 F. App'x 136, 139 (11th Cir. 2011) (internal citations
omitted), quoting American Dental Association v. Cigna Corp., 605 F.3d 1283,
1288, 1293 (11th Cir.2010). Plaintiffs allege no facts showing that McMillan or
McMillan Trucking agreed to the “overall objective” of Brasher extorting
kickbacks from African-American truckers or to “commit two predicate acts” in
furtherance of the alleged conspiracy.
The plaintiffs argue that Brasher’s actions benefited all of the defendants
because having a McMillan Trucking employee determine load assignments for the
Chip Mill allowed the Chip Mill to forego hiring an employee to determine load
assignments. (Id. at ¶ 20). This explains how the business model is beneficial,
generally, but it fails to allege how Brasher’s particular illegal activity benefitted
any defendant other than Brasher himself. The plaintiffs have failed to allege a
RICO enterprise, because they failed to allege that anyone other than Brasher
himself acted with the intent of benefitting from illegal activity. To constitute an
enterprise, at least two people must associate with the purpose of conducting
illegal activity.

The plaintiffs have failed to state such a claim.

While the

plaintiffs claim that Davis gave Brasher the idea for the illegal activity and did
19

nothing to reprimand Brasher once the plaintiffs brought the activity to Davis’
attention, mere “ratification” of Brasher’s actions is not sufficient to show purpose
on the part of Davis.7 Absent some other person or entity acting in concert with
Brasher, there was no RICO enterprise, and, thus, even Brasher cannot be liable
under the Act.
Because the plaintiffs have failed to put forth facts asserting that defendants
McMillan or McMillan Trucking were involved in any enterprise for the purpose
of conducting illegal activity, the motion to dismiss by those defendants (doc. 30)
is due to be granted. Likewise, Brasher’s motion to dismiss also is due to be
granted as to the plaintiffs’ RICO claims because there .
IV.

Violation of Civil Rights
In Count IV of the Amended Complaint, the plaintiffs argue that their civil

rights were violated because they “were discriminated against on the basis of race”
and that the discrimination violated “the Equal Protection clause of the Fourteenth
Amendment to the United States Constitution and federal statutory law including
7

“We decline to hold that even absent a benefit, the NMDU can be held liable for acquiescing
in the fraudulent scheme. Although agency law does recognize that failure to repudiate can act
as an affirmance of an unauthorized transaction, see Restatement (Second) of Agency § 94
(1958), we do not think that this doctrine should be used to undermine the federal policy of
punishing only culpable RICO parties. . . . While there might be some circumstance when
multiple officers of a principal are so involved in a RICO enterprise and in attempts to cover up
the principal’s involvement that, even if the principal received no benefit from the conspiracy, it
can be held liable through acquiescence, we do not think that the instant facts warrant such a
conclusion.” Volmar Distributors, Inc. v. New York Post Co., Inc., 899 F. Supp. 1187, 1198 n. 8
(S.D.N.Y. 1995).
20

42 U.S.C. § 1981.” (Doc. 24, ¶ 38). The alleged violation of § 1981 already was
discussed herein, and to that extent, Count IV is redundant of the § 1981 claim in
Count One. The court is not required to guess what other “federal statutory law”
the plaintiffs allege was violated. Accordingly, the court will discuss Count IV
only as it pertains to the alleged violation of the plaintiffs’ Fourteenth Amendment
equal protection rights. Neither of the motions to dismiss directly addresses the
plaintiffs’ Fourteenth Amendment claims, beyond asserting that all of the
plaintiffs’ claims should be dismissed.
The plaintiffs have not asserted anywhere in the Amended Complaint that
the actions at issue in the above-styled case were anything other than purely private
acts. “Since the decision of [the Supreme Court of the United States] in the Civil
Rights Cases, 1883, 109 U.S. 3, 3 S. Ct. 18, 27 L. Ed. 835, the principle has
become firmly embedded in our constitutional law that the action inhibited by the
first section of the Fourteenth Amendment is only such action as may fairly be said
to be that of the States. That Amendment erects no shield against merely private
conduct, however discriminatory or wrongful.” Shelley v. Kraemer, 334 U.S. 1,
13, 68 S. Ct. 836, 842, 92 L. Ed. 1161 (1948). Accordingly, to the extent that the
plaintiffs attempt to assert claims under the Fourteenth Amendment equal
protection clause, such claims are due to be dismissed.

21

V.

42 U.S.C. § 1985
Defendants Brasher, McMillan, and McMillan Trucking move to dismiss the

plaintiffs’ claim that the defendants conspired against them in violation of 42
U.S.C. § 1985, which makes it unlawful for “two or more persons in any State or
Territory to conspire or go in disguise on the highway or on the premises of
another, for the purpose of depriving, either directly or indirectly, any person or
class of persons of the equal protection of the laws, or of equal privileges and
immunities under the laws.” 42 U.S.C. § 1985(3). Similarly to the plaintiffs in the
instant case, the plaintiff in Jimenez v. Wellstar Health System, claimed that his
employers had “violated 42 U.S.C. § 1985(3) by conspiring to deprive him of his
right to contract, his right to practice his profession, and his rights under § 1981.”
596 F.3d 1304, 1311-12 (11th Cir. 2010). The Eleventh Circuit determined that
the plaintiff in Jimenez was unable to support a claim under § 1985(3), stating:

To state a claim under § 1985(3), a plaintiff must allege (1)
defendants engaged in a conspiracy; (2) the conspiracy’s purpose was
to directly or indirectly deprive a protected person or class the equal
protection of the laws, or equal privileges and immunities under the
laws; (3) a conspirator committed an act to further the conspiracy; and
(4) as a result, the plaintiff suffered injury to either his person or his
property, or was deprived of a right or privilege of a citizen of the
United States. Johnson v. City of Fort Lauderdale, 126 F.3d 1372,
1379 (11th Cir. 1997). When the alleged § 1985(3) conspirators are
private actors, the plaintiff must demonstrate that the conspiracy was
aimed at rights constitutionally protected against private impairment.
Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 274, 113 S.
22

Ct. 753, 763, 122 L. Ed. 2d 34 (1993); Park v. City of Atlanta, 120
F.2d 1157, 1162 (11th Cir. 1997). These rights include only select
“serious constitutional right[s].” Cook v. Randolph County, 573 F.3d
1143, 1157 (11th Cir. 2009)(quotation omitted).
The only rights the Supreme Court has expressly declared enforceable
against private conspirators under § 1985(3) are the right to interstate
travel and the right against involuntary servitude. See Bray, 506 U.S.
at 278, 113 S. Ct. at 764. Conversely the Supreme Court has declared
the freedom of speech, id., and the rights protected under Title VII,
Great Am. Fed. Sav. & Loan Ass’n v. Novotny, 442 U.S. 366, 378, 99
S. Ct. 2345, 2352, 60 L. Ed. 2d 957 (1979), insufficient to form the
basis of § 1985(3) actions against private conspirators. Other than the
few rights the Supreme Court has addressed, district and circuit courts
differ as to which rights warrant § 1985(3) protection.
This Circuit has routinely and systematically grouped Title VII and
§ 1981 claims for analytic purposes. See, e.g., Standard v. A.B.E.L.
Servs., 161 F.3d 1318, 1330 (11th Cir. 1998) (analyzing Title VII and
§ 1981 claims concurrently because of their similarity). Thus,
because conspiracies to violate rights protected by Title VII cannot
form the basis of § 1985(3) suits, Novotny, 442 U.S. at 378, 99 S. Ct.
at 2352, and because the Supreme Court has been conservative in
designating which rights litigants may enforce against private actors
under § 1985(3), we hold conspiracies to violated rights protected
under § 1981 are likewise insufficient to form the basis of a §1985(3)
claim…. The district court, therefore, did not err in ruling Jimenez
failed to state a claim under § 1985(3).

Jimenez, 596 F.3d 1304, 1312. This holding makes clear that allegations of a
conspiracy to violate the equal protection rights of a person to contract or own
property are not sufficient to state a claim for violation of § 1985(3). In the instant
case, the plaintiffs do not claim that the defendants violated or attempted to violate
their right to interstate travel or right against involuntary servitude. Any claims
23

asserted by the plaintiffs that the defendants violated 42 U.S.C. § 1981 cannot
sustain the plaintiffs’ § 1985(3) claims, as stated in Jimenez.
Moreover, as already discussed above, the factual allegations of the
Amended Complaint fail to show any basis for finding that Mike McMillan and
McMillan Trucking participated in a conspiracy to deprive the plaintiffs of
anything. Plaintiffs have not alleged particularized facts allowing even a plausible
inference that McMillan and McMillan Trucking participated in or were even
aware of Brasher’s admittedly “secret” scheme to extort kickbacks from AfricanAmerican truckers. Because the plaintiffs have failed to adequately state a claim
under § 1985, the defendants’ motions to dismiss the plaintiffs’ § 1985 claims are
due to be granted.

State Law Claims
VI.

Unjust Enrichment
The plaintiffs allege that the defendants were unjustly enriched by Brasher’s

kickback scheme. Because plaintiff Jones asserts in the Amended Complaint that
he never paid Brasher the $100 kickback, he cannot assert that any defendant was
“enriched” at his expense. Therefore, the motions to dismiss plaintiff Jones’s state
law claim of unjust enrichment are due to be granted. Plaintiff Jackson states that
he made one $100 payment to Brasher, but he does not allege any facts supporting
24

the claim that defendants McMillan or McMillan Trucking received any benefit
from Brasher’s kickback scheme. 8

Accordingly, defendants McMillan and

McMillan Trucking’s motion to dismiss (doc. 30) is due to be granted as it pertains
also to plaintiff Jackson’s state law claim of unjust enrichment.
Defendant Brasher argues in his motion to dismiss that the plaintiffs’
allegations do not allege the elements for unjust enrichment under Alabama law.
However, the standard cited by Brasher is not the only standard for assessing an
unjust enrichment claim under Alabama law. Brasher cites Portofino Seaport Vill.,
LLC v. Welch, 4 So. 3d 1095, 1098 (Ala. 2008) which states that “[t]o prevail on a
claim of unjust enrichment under Alabama law, a plaintiff must show that (1) the
defendant knowingly accepted and retained a benefit, (2) provided by another,
(3) who has a reasonable expectation of compensation.” (citations omitted). As
Brasher notes, he did not fail to pay Jackson for a retained benefit; the only time
Jackson paid the $100 kickback, he received a load to haul. However, more
importantly, Alabama case law also notes that “[o]ne is unjustly enriched if his
retention of a benefit would be unjust. Retention of a benefit is unjust if (1) the
donor of the benefit . . . acted under a mistake of fact or in misreliance on a right or
8

As discussed infra, the plaintiffs have set out how Brasher’s employment arrangement
benefited all defendants, but the benefit of the employment arrangement does not create
enrichment from Brasher’s illegal activity. The employment benefit existed separate and apart
from Brasher’s kickback scheme. Importantly, there is no allegation that anyone other than
Brasher received any kickback proceeds.
25

duty, or (2) the recipient of the benefit . . . engaged in some unconscionable
conduct, such as fraud, coercion, or abuse of a confidential relationship.” Jordan v.
Mitchell, 705 So. 2d 453, 458 (Ala. Civ. App. 1997) (internal citations omitted).
Both forms of unjust enrichment are recognized as valid in Matador Holdings, Inc.
v. HoPo Realty Investments, L.L.C., 77 So. 3d 139, 145-146 (Ala. 2011).
Plaintiff Jackson alleges that, on one occasion, he paid $100 in a “secret
kickback scheme” to have Brasher assign him a load to haul to Beaumont, Texas,
and that Brasher told him that, if he failed to pay, he would “only get loads if there
were loads left after those who paid the $100 secret cash per load got their loads.”
(Doc. 24, ¶ 11). Based on the Amended Complaint, plaintiff Jackson has alleged
sufficient facts to support a claim that Brasher “engaged in some unconscionable
conduct” to obtain $100 from Jackson, causing Brasher to be unjustly enriched by
that amount. Accordingly, Brasher’s motion to dismiss plaintiff Jackson’s claim of
unjust enrichment is due to be denied.
VII. Fraud and Deceit
In the Amended Complaint, the plaintiffs allege that all of the defendants
committed acts of fraud and deceit “in violation of Alabama law, including
Alabama Code §§ 6-5-100 through 104.” (Doc. 24, ¶ 49). The plaintiffs contend
in response to defendant Brasher’s motion to dismiss that “[i]n July and August of
2014, Defendant Brasher falsely [told the plaintiffs] that a monetary kick back was
26

required to obtain loads to haul for the Defendants. Brasher said that they could
get left over [loads] but knew that no loads would be left over. He intentionally
did not inform the Plaintiffs that this ‘requirement’ was only for Black drivers and
not for White drivers. In July and August of 2014, Brasher called Plaintiffs on
their phones to summon them to get loads to haul. Once the Plaintiffs traveled to
Defendant Brasher, he did not assign them loads as he indicated he would on the
phone. Only once they made the trip to see him to get a load did Brasher add the
‘requirement’ of [a] $100 kick back in order for them to haul a load.” (Doc. 34, p
19).
The Alabama Code defines fraud as “[m]isrepresentations of a material fact
made willfully to deceive, or recklessly without knowledge, and acted upon by the
opposite party, or if made by mistake and innocently and acted on by the opposite
party, constitute legal fraud.” Ala. Code § 6-5-101 (1975). Fraud “accompanied
with damage to the party defrauded” provides a civil right of action. Ala. Code
§ 6-5-100 (1975). The Alabama Code defines fraudulent deceit as:

(a) One who willfully deceives another with intent to induce him to
alter his position to his injury or risk is liable for any damage
which he thereby suffers.
(b) A deceit within the meaning of this section is either:
(1) The suggestion as a fact of that which is not true by one who
does not believe it to be true;
27

(2) The assertion as a fact of that which is not true by one who
has no reasonable ground for believing it to be true;
(3) The suppression of a fact by one who is bound to disclose it
or who gives information of other facts which are likely to
mislead for want of communication of that fact; or
(4) A promise made without any intention of performing it.

Ala. Code § 6-5-104 (1975). A right of action arises under this code section if
there is “[w]illful misrepresentation of a material fact made to induce another to
act, and upon which he does act to his injury.” Ala. Code § 6-5-103 (1975).
“Mere concealment of such a fact, unless done in such a manner as to deceive and
mislead, will not support an action,” and “knowledge of a falsehood constitutes an
essential element.” Id.
Although the plaintiffs allege the fraud and deceit claim against all
defendants, the only behavior specifically alleged in the Amended Complaint to be
fraudulent was by Brasher. 9 The plaintiffs allege that Brasher “falsely alleged that
a monetary kick back was required to obtain loads to haul for the Defendants.”
(Doc. 34, p. 19). The plaintiffs do not allege that Brasher told them the $100
9

The plaintiffs do state in the Amended Complaint and the response to defendant Brasher’s
motion to dismiss that defendant Davis, owner of defendant Scott Davis Chip Mill, falsely told
the plaintiffs that he would address Brasher’s activity. However, defendants Davis and Scott
Davis Chip Mill filed an Answer (doc. 31) to the Amended Complaint and, therefore, the
plaintiffs’ claims against those defendants are not currently at issue.
28

payment was a company policy or required by anyone other than Brasher himself.
In fact, the pleadings indicate that the plaintiffs knew the $100 fee was not
company policy because they complained to Davis regarding the issue. (Doc. 24,
¶ 14). The plaintiffs also call such payment a “secret,” indicating their awareness
that the payment was required only by Brasher himself and not by Chip Mill or
McMillan Trucking. (Id. at ¶ 11). The fact that Brasher required the payment
before assigning a load was, while corrupt, true; there was no false statement of
fact or attempt to deceive. Plaintiffs were not misled about the purpose or effect of
the $100 payment. Although the demand for the payment may be many things, it
simply was not a fraud under any definition of the tort cognizable in Alabama.
The plaintiffs further allege that Brasher “intentionally did not inform the
Plaintiffs that [the payment] was only for Black drivers and not for White drivers.”
(Doc. 34, p. 19). The plaintiffs do not allege, however, that Brasher had any duty
to disclose such information and, therefore, a suppression claim cannot stand. Ala.
Code §§ 6-5-102, 6-5-104(b)(3) (1975). The plaintiffs also do not indicate what
damage they suffered from Brasher’s suppression of that fact. The damage to the
plaintiffs was the same whether the kickback was required from all drivers or was
racially discriminatory. If Brasher had candidly disclosed to them that he required
the payment only from African-American drivers, it would have made no
difference in plaintiffs’ ability or opportunity to secure loads to haul. Further, the
29

pleadings clearly suggest that the plaintiffs did know about the racial disparity of
the kickback scheme, because the Amended Complaint states that the plaintiffs met
with Davis to “complain about the shakedown of themselves and other African
American drivers.” (Doc. 24, ¶ 14).
Plaintiffs also argue that Brasher called them to come to the Chip Mill plant
to get a load without telling them they had to pay $100 to get a load. This, they
say, was a fraudulent suppression because they changed their position by traveling
to the plant without knowing the condition attached to getting a load. This,
however, also fails to state a fraud. First, Brasher was under no duty to disclose to
the plaintiffs his extortionate scheme at the time he called them to come to the
plant, nor was he obligated to outline for them all of the conditions, legal and
illegal, that could be attached to the assignment of a load to them. 10 They do not
allege any fiduciary relationship or other circumstances that imposed a duty to
disclose, so the mere failure of Brasher to tell them about the $100 kickback before
they came to the plant is not a cognizable suppression. Second, it also was not
deceit. There is no allegation that, when he called them, Brasher had no intention
10

Plaintiffs’ position essentially contends that, unless Brasher fully disclosed to them every
condition attached to a load assignment, whether legal or illegal, his summoning of them to the
plant was an actionable suppression. Certainly shippers may impose commercially reasonable
conditions to the assignment of loads to truckers without having to disclose them to the truckers
before they even arrive to pick up the load. The court is not implying that Brasher’s kickback
scheme was a commercially reasonable precondition to assigning a load to the plaintiffs, but only
that the essence of the argument applies to all preconditions, legal as well as illegal.
30

of assigning them a load if they complied with his conditions. A deceit occurs
only if there are facts showing that Brasher never had any intention of assigning
them a load, even if they were willing to pay the kickback. This is belied by
plaintiff Jackson’s allegation that, on the one occasion he acquiesced and paid the
kickback, he was assigned a load. For all that appears in the Amended Complaint,
Brasher’s intent was to assign loads to the plaintiffs if they were willing to pay the
kickback. Thus, his call for them to come to the plant, at the time it was made, was
not a deceit, made by Brasher knowing it to be false. Third, when Brasher called
the plaintiffs to come to the plant, absent a deceit as described above, his statement
to them that they would be assigned a load when they arrived was a prediction
concerning a future event, not a false statement of a current fact. Except for
intentional deceits, Alabama law does not recognize fraud with respect to a
statement concerning a future event. As the Alabama Supreme Court has stated:

This Court has stated that “[a] mere statement of opinion or prediction
as to events to occur in the future is not a statement of a ‘material fact’
upon which individuals have the right to rely and, therefore, it will not
support a fraud claim.” Crowne Invs., Inc. v. Bryant, 638 So.2d 873,
877 (Ala. 1994). “Where the representation of an opinion is involved,
a person must prove not only that there was an intent to deceive, but
also that his reliance was reasonable.” Reynolds v. Mitchell, 529
So.2d 227, 231 (Ala. 1988) (citing Bedwell Lumber, Inc. v. T & T
Corp., 386 So.2d 413 (Ala. 1980)).

31

McCutchen Co. v. Media Gen., Inc., 988 So. 2d 998, 1002 (Ala. 2008). Similarly,
the court has stated:

To establish a cause of action for fraud, a plaintiff must prove that the
defendant knowingly made a false representation of a material,
existing fact on which the plaintiff relied to his detriment. Parker v.
Thyssen Mining Construction, Inc., 428 So.2d 615 (Ala. 1983).
Woodard v. Woodard, 413 So.2d 1060 (Ala. 1982). In cases of
misrepresentation of existing facts, a reckless misrepresentation might
constitute fraud. The rule is different where the alleged representation
relates to some future event, such as the promises which
Westinghouse allegedly made. In such a situation, the law requires, in
addition to the normal elements of falsity, reliance and damage, proof
that, at the time the statement or promise about the future was made,
there was an actual fraudulent intent not to perform the act promised
and an intent to deceive the plaintiff. Birmingham Broadcasting Co.
v. Bell, 259 Ala. 656, 68 So.2d 314 (1953); accord, Robinson v.
Allstate Insurance Company, 399 So.2d 288 (Ala.1981).

Kennedy Elec. Co. v. Moore-Handley, Inc., 437 So. 2d 76, 80 (Ala. 1983). For the
reasons already explained, the plaintiffs have alleged no facts showing an
intentional deceit by Brasher when he summoned them to come to the plant, and
his prediction about future events cannot form the basis for a fraud claim.
Finally, the plaintiffs allege that “Brasher said that [the plaintiffs] could get
left over [loads] but knew that no loads would be left over.” (Doc. 34, p. 19). The
plaintiffs argue that they relied upon Brasher’s statement to their detriment by
waiting for “leftover” loads that were never assigned. Aside from the concerns
that this was a statement related to a future event (i.e., assignment of load if any
32

were left over after all the kickbacks were paid), plaintiffs have failed to allege any
injury or a detriment from the statement. Even assuming that Brasher’s statement
that they could get leftover loads was knowingly false and deceitful, they do not
allege any facts showing they lost other jobs or forwent other opportunities while
waiting for leftover loads. Absent a factual allegation showing that plaintiffs were
injured by waiting for a load that never came, they have not alleged an element of
fraud. 11 Accordingly, Brasher’s Motion to Dismiss regarding the plaintiffs’ claims
of fraud and deceit is due to be granted.
The plaintiffs assert their claim of fraud and deceit against all defendants,
but do not set out any facts supporting such a claim against McMillan or McMillan
Trucking. The plaintiffs entire argument against the McMillan defendants appears
to be based upon the fact that defendant Brasher was, at the relevant time, an
employee of McMillan Trucking. This basis alone is not enough to hold the
McMillan defendants liable for Brasher’s actions. Under Alabama law, “[a]n
employer is liable for the intentional torts of its employee if: (1) the employee’s
acts are committed in furtherance of the business of the employer; (2) the
employee’s acts are within the line and scope of his employment; or (3) the
employer participated in, authorized, or ratified the tortious acts.” Ex parte Atmore
11

Although the court will dismiss plaintiffs’ fraud claims by this Order, they are given
fifteen (15) days’ leave to amend the Amended Complaint to allege such facts, if they can do so
consistent with Rule 11.
33

Community Hosp., 719 So. 2d 1190, 1194 (Ala. 1998), citing Potts v. BE&K
Construction Co., 604 So.2d 398, 400 (Ala.1992). For an act to be within the “line
and scope” of the employee’s employment, the acts must be “‘so closely connected
with what the servant is employed to do and so fairly and reasonably incidental to
it, that they may be regarded as methods, even though quite improper ones, of
carrying out the objectives of the employment.’” Id., quoting Prosser & Keeton,
The Law of Torts 503 (5th ed.1984).
For the reasons already discussed above, the plaintiffs have not alleged any
fact showing plausibly that McMillan and McMillan Trucking knew of, authorized,
or ratified Brasher’s “secret” kickback payments. Certainly Brasher’s receipt of
the kickback payment did not benefit or further the business interests of McMillan
or McMillan Trucking. The payments benefitted only Brasher, and were received
secretly by him for that sole purpose. Although it is true that Brasher used his
position as a McMillan Trucking employee to extract the payments, doing so was
not “so closely connected with what [Brasher was] employed to do and so fairly
and reasonably incidental to it, that they may be regarded as methods, even though
quite improper ones, of carrying out the objectives of the employment.” The fact
that Brasher received the payments secretly makes clear that McMillan Trucking
had not authorized him to request them from truckers of any race. The kickbacks
to Brasher simply were not what he “was employed to do” or incidental to his
34

legitimate employment objectives. 12

Absent some factual allegations that

McMillan Trucking and Mike McMillan knew what Brasher was doing, they are
not vicariously liable for his misconduct.
Accordingly, McMillan Trucking’s and Mike McMillan’s motion to dismiss
the plaintiffs’ claims for fraud and deceit is due to be granted.
VIII. Violation of Article 1, Section 1 of the Constitution of Alabama
The plaintiffs have stipulated that “because the Defendants are not state actors,
existing law does not support Count Eight of the Plaintiffs Amended Complaint.”
(Doc. 34, p. 20; Doc. 35, p. 27). Accordingly, the motions to dismiss (docs. 28,
30) are due to be granted as to the plaintiff’s count VIII, for violation of Article 1,
Section 1 of the Constitution of Alabama.

CONCLUSION
For the reasons set forth herein, it is ORDERED and ADJUDGED that the
motion to dismiss by defendant Brasher (doc. 28) be and hereby is GRANTED IN
PART and DENIED IN PART, as follows:
12

The court believes it is important to note the differences between the wrongs sought to be
prevented respectively by § 1981 and Alabama fraud law. The essential wrong targeted by
§ 1981 is racial discrimination, not the fairness or efficacy of contracts. Alabama fraud law
seeks to bring truth and fair-dealing to commercial activity, and makes no attempt to proscribe
racial or other forms of discrimination. These different purposes further underscore the
rationales for different approaches to the “line and scope of employment” concept involved in
both.
35

1. Brasher’s motion is GRANTED in full with respect to Count Three
(Racketeering); Count Four (Violation of Civil Rights); Count Five (Conspiracy to
Deprive Plaintiffs of Civil Rights); Count Seven (Fraud and Deceit); and Count
Eight (Violation of Article 1, Section 1 of the Constitution of Alabama), and the
claims in these counts are DISMISSED as to Brasher.
2. Brasher’s motion is GRANTED as to plaintiff Jones’s claim in Count Six
for Unjust Enrichment, but DENIED as to plaintiff Jackson’s claim in Count Six.
3. Brasher’s motion also is DENIED as to plaintiffs’ claims in Count One
for violation of 42 U.S.C. § 1981, prohibiting racial discrimination in contract.
It is FURTHER ORDERED that the motion to dismiss on behalf of
defendant Mike McMillan, individually (doc. 30), is GRANTED in full, and all
claims against defendant Mike McMillan individually are DISMISSED.
It is ORDERED that the motion to dismiss on behalf of defendant McMillan
Trucking (doc. 30) is DENIED as to the plaintiffs’ Count One for violation of
42 U.S.C. § 1981, prohibiting racial discrimination in contract, but GRANTED as
to all other counts of the Amended Complaint. Counts Two through Eight are
DISMISSED as to McMillan Trucking.
Accordingly, the claims remaining against defendant Brasher in this action
are (1) plaintiffs’ claims that Brasher violated § 1981 and plaintiff Jackson’s claim
under Alabama state law for unjust enrichment. The only claims remaining against
36

defendant McMillan Trucking are the plaintiffs’ § 1981 claims for racial
discrimination in the right to contract. No claims remain against defendant Mike
McMillan, individually. All claims against defendants Brett Davis and Scott Davis
Chip Mill remain pending, as those claims are not addressed in this Order.
To the extent they can do so consistent with Rule 11, the plaintiffs are given
leave to amend the Amended Complaint within fifteen (15) days to supply any
additional factual or missing allegations necessary to state claims in this action.
DONE this 21st day of January, 2016.

_______________________________
T. MICHAEL PUTNAM
UNITED STATES MAGISTRATE JUDGE

37