Ewing v. Moore et al

Filing 59

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 8/13/2018. (PSM)

FILED
2018 Aug-13 PM 03:17
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRCIT OF ALABAMA
WESTERN DIVISION
TAMMY EWING, et al.,
Plaintiffs,
vs.
SARAH MOORE, et al.,
Defendants.

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7:17-cv-00743-LSC

MEMORANDUM OF OPINION

Defendants for discrimination surrounding their terminations. Before the Court is
Defendants

Sarah Moore and Lloyd Moore
, Alabama Credit Union Administration

, and ACUA

Board Members, Steve Nix, Joey Hand, Linda Cencula, Charles Faulkner, Greg
McClellan, and Greta Webb-Williams
Membe

1

motion to dismiss

econd

amended complaint (doc. 37)
1

Board M
Page 1 of 24

six named members

of prosecution (doc. 58).2 Plaintiffs have filed no opposition to either motion. For
the reasons stated below, Defendants motions (docs. 37 & 58) are due to be
granted.
I.

BACKGROUND3
Plaintiffs, Ewing, Crawford and Patton, are all females who are former

employees of the Alabama One

Ewing began her

employment with the Credit Union in February 1995, Crawford in April 1990, and
Patton in January 1984. On August 27, 2015, by and through vote of the ACUA
Board

Members

Administrator [Defendant Sarah Moore], ex parte and without notice, to appoint
[the ACUA] as conservator and immediately take possession and control of the
(Doc. 34 at 5.) That same day, the
ACUA sent letters to Plaintiffs notifying them that
[E]ffective immediately upon the conservatorship of the Credit Union
and appointment of the Conservator, the Conservator exercised its
authority to terminate any and all employment agreements
between you and the Credit Union. Pursuant to Alabama law, any
provision in such contract or contracts which provides for damages or
2

For the purposes of this Opinion, the Court will refer to the second amended complaint

3

Depot, Inc., 679 F.3d 1267, 1275 (11th Cir. 2012) (citation omitted).
Page 2 of 24

Lanfear v. Home

cancellation fees upon termination shall not be binding on the
Conservator or the Credit Union, and neither the Conservator, nor
the Credit Union shall be liable to you for damages.
(Doc. 34-1 at 3-4; 34-2 at 5-6; 34-3 at 3-4) (emphasis added) (citing Ala. Code § 517-8.)
See e.g. doc. 34-1 at 5.) In all of
, they name as defendants the ACUA, which acted as a
conservator of the Credit Union for a period of time. They also assert claims
against Sarah Moore, who acted as the ACUA Administrator during the
conservatorship, and Lloyd Moore, who acted as the Assistant ACUA
Administrator during the conservatorship. Allegedly, the firing of Plaintiffs was
part of a process by
recommendations for immediate firing. According to Plaintiffs, the process
resulted in a pattern and practice of terminating female employees from the Credit

Plaintiffs name the ACUA Board Members as defendants only in Counts IV, V and
VI and aver that on August 27, 2015 by and through a vote of the ACUA Board
Members, all Defendants approved, authorized and directed Sarah Moore to
appoint the ACUA as conservator and immediately take possession and control of
the business and assets of the Credit Union. Plaintiffs allege this caused the ACUA
Page 3 of 24

to become

employer when it became the conservator of the Credit Union

by way of the Order of Conservatorship.4
Both Ewing and Crawford bring individual claims of retaliation under Title
VII and § 1983.

Ewing bases her retaliation claim upon her expulsion from

membership in the Credit Union which occurred after the conservatorship had
concluded, while Crawford contends she was terminated on account of an internal
complaint she had lodged to the Credit Union regarding sexual harassment which
occurred prior to the conservatorship.

Court granted Def
in its Memorandum of Opinion issued April 19, 2018 (doc. 52). The Court has
given Plaintiffs ample time in which to secure new counsel, and given them the
benefit of a hearing in which the Court explained their need to respond to the
motion to dismiss within thirty days of the hearing. At the hearing, the Court
provided Plaintiffs with copies of the motion and the brief in support. Plaintiffs
have neither secured counsel, nor provided any response to the motion to dismiss
(doc. 39). The Court presumes they now proceed pro se. Plaintiffs have not

4

As of February 15, 2017, the Credit Union has now been released from its
conservatorship. (See Doc. 38-1, Order of Release.)
Page 4 of 24

requests for admissions5 or fulfilled their obligations regarding initial disclosures.6
Additionally, Plaintiffs did not appear for depositions that were timely noticed and
served. (See Doc. 58-2, non-appearances of Ewing, Patton, and Crawford.) The
August 1, 2018 cutoff for discovery has passed.
II.

STANDARDS OF REVIEW
Pursuant to Federal Rule of Civil Procedure 41(b),

prosecute or to comply with these rules or a court order, a defendant may move to
dismiss the a

Fed. R. Civ. P. 41(b).

inherent power to manage its docket provides authority for the dismissal of a case
with prejudice. Link v. Wabash R. Co., 370 U.S. 626, 629-30
authority of a federal trial court to di

prejudice

because of [their] failure to prosecute cannot seriously be doubted. The power to
5

Defendants timely served Requests for Admission on Plaintiffs on June 25, 2018. (Doc.
58-1, Requests for Admission). Plaintiffs did not timely respond, and thus, they are deemed
admitted. See Fed. R. Civ. P. 36(a)(3)
served, the party to whom the request is directed serves on the requesting party a written answer
or o
6

On August 18, 2017, the Court reminded the parties of their disclosures obligation
pursuant to Rule 26(f). (Doc. 16; See also Doc. 12 whereupon Magistrate Judge England
the parties shall exchange the initial disclosures required under Rule
26(a)(1) at least seven (7) days before the meeting . . . .
meeting on September 13, 2017, (doc. 28), and agreed to exchange Initial Disclosure
(14) days after the
r on January 3, 2018,
whichever
.) To date, Plaintiffs have not served their Initial Disclosures.
Page 5 of 24

invoke this sanction is necessary to prevent undue delays in the disposition of
pending cases and to avoid congestion in the District Courts. ); Carnegie-Mellon
University v. Cohill

rts have historically possessed

an inherent power to dismiss suits for discretionary reasons such as failure to
citing Link). The Eleventh Circuit recognized this power in Eades v.
Alabama Dept. of Human Resources, 298 Fed. Appx. 862, 863 (11th Cir. 2008)
District courts possess the ability to dismiss a case with prejudice for want of
prosecution based on two possible sources of authority: Fed. R. Civ. P. 41(b) or
their inherent authority to manage their dockets. (citing Betty K Agencies, Ltd. v.
M/V Monada, 432 F.3d 1333, 1337 (11th Cir. 2005))).

P. 8(a)(2). However, the facts alleged in the complaint must be specific enough that
See Ashcroft v. Iqbal
survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim for relief that is plausible on its face

content . . . allows the court to draw the reasonable inference that the defendant is
Resnick v. AvMed, Inc., 693 F.3d 1317, 1325 (11th
Page 6 of 24

Cir. 2012) (quoting Iqbal, 556 U.S. at 678). Conclusory statements of law may

Iqbal, 556 U.S. at 679.

Dalrymple v. Reno, 334 F.3d
991, 996 (11th Cir. 2003) (quoting Marsh v. Butler Cty., 268 F.3d 1014, 1036 n. 16
(11th Cir. 20

-pleaded facts do not permit the court to

infer more than the mere possibility of misconduct, the complaint has alleged

but

Iqbal, 556 U.S. at 679
(quoting Fed. R. Civ. P. 8(a)(2)). Therefore, the U.S. Supreme Court suggested
-

and 2) where there are well-plea
then determine whether they plausibly give rise to an entitlemen

Am.

, 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal,
556 U.S. at 664). Unless a plaintiff
Id.

Iqbal

-pleaded
Page 7 of 24

complaint may proceed even if it strikes a savvy judge that actual proof of [the facts
Twombly, 550 U.S. at 556.
face of the complaint and attachments
plaintiff states a claim for relief. Starship Enters. of Atlanta, Inc. v. Coweta Cty., 708
F.3d 1243, 1252 n.13 (11th Cir. 2013). Generally, the complaint should include
ments of a cause of action to

Indus. Orgs v. City of Miami, 637 F.3d 1178, 1186 (11th Cir. 2011) (quoting Roe v.
Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683-84 (11th Cir. 2001)).
Documents which are incorporated as exhibits to the complaint may be
considered without converting a Fed. R. Civ. P. 12(b) motion to dismiss into a Fed.
R. Civ. P. 56 motion for summary judgment. Horsley v. Feldt, 304 F.3d 1125, 1134
(11th Cir. 2002); see also Day v. Taylor
copy of a written instrument that is an exhibit to a pleading is a part of the pleading
flict between
allegations in a pleading and exhibits thereto, it is well settled that the exhibits
Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1206 (11th Cir. 2007) (quoting
Simmons v. Peavy-Welsh Lumber Co., 113 F.2d 812, 813 (5th Cir. 1940)). Because
Plaintiffs have included as exhibits their Equal Employment Opportunity
Page 8 of 24

EEOC

charges and their Notices of Rights to Sue letters, the

Court considers them in this Opinion; where the attached documents conflict with
allegations in the complaint, the Court construes the exhibits as controlling. (See
Doc. 34 Exs. 1-6.)

may consider a document attached to a

motion to dismiss without converting the motion into one for summary judgment if

ent is not
Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005) (citing Horsley v.
Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002)). Because the Court has concluded that

claims and their authenticity cannot be reasonably challenged, the Court takes
them into consideration in this Opinion.
III.

DISCUSSION
In their motion to dismiss (doc. 37) Defendants seek to dismiss with

prejudice: (1) the Title VII claims in their entirety: Counts I, II and III; (2) the
ACUA and the ACUA Board Members from the Section 1983 claims: Counts IV,
V, and VI; and (3) Sarah Moore and Lloyd Moore from the § 1983 retaliation
claims: Counts V and VI. I

otion (doc. 37) based

upon the merits, the only remaining claim would be the § 1983 claim, Count IV,
Page 9 of 24

against Sarah Moore and Lloyd Moore. However, the remaining Count IV is due
their case and their
refusal to allow discovery to defendants. As such, all claims are due to be dismissed
with prejudice and the case closed.
A.

The Title VII claims: Counts I, II and III

Pl

that the legal effect of the conservatorship was that the

ACUA became their employer. This is a legal conclusion not entitled to an
assumption of truth. At the outset of their complaint, Plaintiffs aver that they are
former employees of Alabama One Credit Union. Pursuant to Alabama Code § 517-8, the ACUA is an independent Alabama state agency which supervises and
regulates state-licensed credit unions. The
those acting on its behalf) the authority to act in the name of the Credit Union. See
Ala. Code § 5-17-8(l). Sarah Moore, as Administrator, exercised power under the
conservatorship to

terminate any and all employment agreements between

[Plaintiffs] and the Credit Union. (Docs. 34-1 at 3, 34-2 at 5; 34-3 at 3.)
Title VII of the Civil Rights Act of 1964 makes it unlawful f

employer . .

. to discriminate against any [employee] with respect to
2000e
empl

The applicable standard surrounding the question of
Page 10 of 24

who, precisely, qualifies as an employer under Title VII is stated in the Eleventh
Circuit case of Peppers v. Cobb County, Georgia as follows:
Consistent with the remedial purposes of Title VII, the federal courts
Virgo v. Riviera Beach
Assocs., Ltd., 30 F.3d 1350, 1359 (11th Cir. 1994). Thus, in order to
decide whether an entity is a qualified employer, we have asked this
Lyes v. City of Riviera Beach, 166 F.3d 1332, 1345 (11th Cir. 1999) (en
banc). An examination of this question requires consideration of the
totality of the employment relationship. Welch v. Laney, 57 F.3d 1004,
1011 (11th Cir. 1995) (citing Wirtz v. Lone Star Steel Co., 405 F.2d 668,
669 70 (5th Cir. 1968)). Among the basic factors we consider are
these: (1) how much control the alleged employer exerted on the
employee, and (2) whether the alleged employer had the power to
employment. Welch, 57 F.3d at 1011; Llampallas, 163 F.3d at 1243.
835 F.3d 1289, 1297 (11th Cir. 2016).
the alternative, Sarah Moore and/or Lloyd Moore, made the final decisions
regarding the terminations of the employment of Plaintiffs and the continued
Though Defendants, as
the alleged employers of Plaintiffs, provided notice of their terminations, they did
so by virtue of the power given them by conservatorship, in the name of the Credit
Union and clearly delineated that it was the employment contracts between the
Plaintiffs and the Credit Union that were being terminated. Additionally, because
the notice of termination was given the same day that the Credit Union was
Page 11 of 24

s and
manner of work during their employment with the Credit Union. The facts as
alleged do not compel a finding that ACUA became Plaintiffs employer by virtue
of the Order of Cons
employers.
i.

Numerosity requirement under Title VII

Defendants argue in their motion to dismiss without waiving its argument
that the ACUA never employed Plaintiffs, that all three Title VII claims fail
because Plaintiffs do not and cannot allege the sufficient number of employees (15)
to meet the employee-numerosity requirement under the statute. Arbaugh v. Y
& H Corp., 546 U.S. 500, 515-16 (2006)

-employee
.
[s] employ[ed] less than the
(Docs.

34-4, 34-5, 34-6.)
Plaintiffs assert a number of theories in order to satisfy the numerosity
requirement as against the Defendants

none of which the Court finds convincing.

Plaintiffs allege that the ACUA employed more than fifteen employees either: (1)
alone; (2) together with the Credit Union because all Credit Union employees
Page 12 of 24

became employees of the ACUA when the Credit Union was conserved, or the
ACUA was an alter ego of the Credit Union; or (3) as a joint employer with the
National Credit Union

and/or accounting firms.

Pursuant to Alabama Code § 5-17-48,7 the ACUA is required to submit an
Annual Report of the Agency. As an attachment to their brief in support of their
motion to dismiss (doc. 37), Defendants provided excerpts of State Personnel
Annual Reports from 2014, 2015 and 2016. 8 All three reports evidence that at no
time during 2014-16 did the ACUA employ more than 15 people.9 This deficiency
is also evidenced by Plaintiffs EEOC dismissal and notice of rights letters. As
7

This code section
department during the year an annual report to the Governor on the activities of the Alabama
Credit Union Administration and such other information as the Governor may request and shall
keep on file as a public record in the administrator
Ala. Code § 5-17-48
(1975).
8

The Court is entitled to take judicial notice of facts within these documents pursuant to
Federal Rule of Evidence 201 as they are
reasonable dispute because it (1) is
generally known withi
jurisdiction; or (2) can be accurately and
readily determined by resort to sources whose accuracy cannot reasonably be questioned.
Public records of the state such as annual reports are documents that courts have determined fall
within the ambit of the judicial notice doctrine. E.g., Mobil Oil Corp. v. Tennessee Val. Auth., 387
F. Supp. 498, 516, n.41 (N.D. Ala. 1974) (district court took judicial notice of TVA annual
reports); Johnson v. Hall, 10 So. 3d 1031, 1034 35 (Ala. Civ. App. 2008) (judicial notice of
records of Secretary of State regarding the mailing address of corporation); Broadway v. Ala. Dry
Dock & Shipbuilding Co., 20 So. 2d 41, 51 (Ala. 1944) (opinion on rehearing) (judicial notice taken
of annual report of the Department of Industrial Relations).
9

The 2014 report lists the Credit Union Administration as having 9 employees and the
2015 report lists it as having 10. (See Doc. 38-2 at 3, 5.) The 2016 rep
ACUA employs
eleven [11] people
-2 at 7.)

Page 13 of 24

such, it cannot be said that the ACUA met the requisite number of employees to
maintain an action under Title VII on its own.
Next, Plaintiffs contend that the ACUA meets the requisite number of
employees by way of aggregation with the employees of the Credit Union, who they
. Pursuant to the applicable Alabama Code
sections, as Conservator, the ACUA operated the Credit Union in the name of the
Credit Union. Ala. Code § 5-17-8(l);10 see Ala. Code § 5-17-40.11 Plaintiffs admit
and affirmatively plead that the ACUA derives its authority from Alabama Code §
5-17-8(l).
Union employees into ACUA employees for the purpose of satisfying the
employee-numerosity requirement fails.
Plaintiffs allege a number of reasons by which they believe the NCUA could
either be their employer or a joint employer along with the ACUA. However,
Plaintiffs have not alleged that the NCUA issued any order of conservatorship
10

or so long as the Credit Union remain[ed] in conservatorship, the Conservator [had] all
powers of the members, the directors, the officers, and the committees of the credit union and be
authorized to operate the Credit Union in its own name or to conserve its assets in the manner
11

(a) There shall be an Alabama Credit Union Administration which shall administer the
laws of this state which regulate or otherwise relate to credit unions in the state. The authority of
the Alabama Credit Union Administration to perform such functions shall be exclusive and all
authority regarding credit unions which was previously vested in the State Banking Department
is hereby vested in the Alabama Credit Union Administration.

Page 14 of 24

which is the vehicle by which Plaintiffs allege the ACUA became their employer.
Plaintiffs have not provided, and Court has not found any case-law supporting the
aggregation of state agencies with federal ones under joint employer theory.12 The
Court remains unconvinced that ACUA and NCUA should be aggregated for
purposes of meeting the Title VII numerosity requirement.
should be
considered for an aggregation to meet the numerosity requirement fare no better.
The Title VII claims asserted against the Moore defendants fail for the

See Busby v. City of Orlando, 931 F.3d 764, 772 (11th Cir. 1991) (per curiam
relief granted under Title VII is against the employer not individuals whose actions

the employer, either by naming the supervisory employees as agents of the
12

The Eleventh Circuit has made clear that strong comity and federalism concerns . . .
require . . . substantial deference to a state
s determination of whether two or
more governmental entities are separate and distinct. Lyes, 166 F.3d at 1334-45
(citing McMillian v. Johnson, 88 F.3d 1573, 1581 (1tth Cir. 1996) ( [W]e heed the Supreme
s admonition that federal courts respect the way a state chooses to structure its
)).

Page 15 of 24

Id. Though it is alleged that the

the numerosity requirement under Title VII. As such, Sarah Moore and Lloyd
Moore are due to be dismissed from the Title VII claims.
In the alternative, Plaintiffs allege that Sarah Moore and Lloyd Moore

employment ther

.) However, Plaintiffs fail to plead or provide

sufficient legal or factual support for a claim of alter ego.13
Oxford Asset
Mgmt, Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002).
Plaintiffs take issue with the fact that they were not provided a reason for
their termination. However, it is

well settled in Alabama that an employment

13

In Alabama, to establish one party is the alter-ego of another party, or to pierce the
corporate veil, a plaintiff must show the following:
(1) The dominant party must have complete control and domination of the
subservient corporation's finances, policy and business practices so that at the time of
the attacked transaction the subservient corporation had no separate mind, will or
existence of its own;
(2) The control must have been misused by the dominant party. Although fraud or the
violation of a statutory or other positive legal duty is misuse of control, when it is
necessary to prevent injustice or inequitable circumstances, misuses of control will be
presumed; and
(3) The misuse of this control must proximately cause the harm or unjust loss
complained of.
First Health v.Blanton, 585 So.2d 1331, 1334-35 (Ala. 1991) (citations omitted).

Page 16 of 24

contract at will may be terminated by either with or without cause or justification
Hoffman-La Roche, Inc. v. Campbell, 512 So. 2d 725, 728 (Ala. 1987) (citation
a good reason, a wrong reason, or no reason at all. Id. For
ims are due to be dismissed.
B.

Counts II and V

Retaliation claims by Ewing

To state a claim for retaliation, the plaintiff must allege (1) statutorily
protected activity, (2) a materially adverse action, and (3) a causal connection
between the protected activity and the materially adverse action. Kidd v. Mando
Am. Corp., 731 F.3d 1196, 1211 (11th Cir. 2013). An employment action is
s
employment. Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1261 (11th Cir. 2001); see
Shotz v. City of Plantation, 344 F.3d 1161, 1181 83 (11th Cir. 2003) (requiring a
verse action). Ewing claims Defendants retaliated against her for
filing her EEOC charge by causing her to be personally removed from Credit Union
membership after her termination. This allegation does not suffice for a showing of
the requisite adverse action, despite the high significance Ewing may personally
attribute to it. See e.g.

n, No. 13 14050, 2014 WL

6678411 at *7 6 (11th Cir. Nov. 26, 2014) (no adverse action found when plaintiff

Page 17 of 24

was denied medical care and paid le

result

of reprimand). Count II is due to be dismissed for this additional reason.
Section 1983 was enacted to enforce the Fourteenth Amendment and
prohibits interference with federal rights under color of law. Though Ewing alleges
she was deprived of membership in the Credit Union, claims actionable under §
1983 require deprivation of rights guaranteed by other laws of the United States
and the Constitution. Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617
(1979) (§

Count V must fail as a

matter of law because Ewing has not alleged any deprivation of a constitutional or
other right by any of the Defendants. The right to be a member of a Credit Union,
which can be obtained without any cost, is not guaranteed by any law and no
showing has been made that a reasonable person would believe that a denial of such
membership would be violative of the Constitution or some other law. Therefore,
the loss of that membership is incapable of forming the basis for a claim under §
198314 and Count V must be dismissed.

14

See e.g. Abreu-Velez v. Bd. of Regents of the Univ. Sys. of Georgia, 2015 WL 1534535 *2
(N.D. Ga. Apr. 6, 2015), aff'd sub nom; Abreu-Velez v. Bd. of Regents of Univ. Sys. of Ga., 631 F.
cert. denied, 136 S. Ct. 1838 (2016) (dismissing Complaint where
alleged interference in obtaining a Green Card application after p
adverse action sufficient for a § 1983 retaliation claim).

Page 18 of 24

C.

Counts III and VI

Retaliation Claims by Crawford

Both Counts III and VI relate to

assertion that she was

terminated in retaliation for bringing a sexual harassment complaint against a
former Credit Union employee, Darin Davidson, to the Credit Union while she was
employed at the Credit Union prior to the conservatorship. Both the harassment
and the resulting termination of the harasser by the Credit Union pre-date the
conservatorship. (Doc. 34 at 22.) Crawford has failed to allege facts supporting the
requisite causal connection for a retaliation claim under either Title VII or § 1983.

(doc. 34 at 23-24)
Davidson, a sexual harasser, was a subservient confidant of Defendants
Sarah Moore and the ACUA, who/which wanted to help and protect Davidson to
the detr

Crawford never allege that Sarah Moore possessed specific knowledge of
rassment. See Farley v. Nationwide Mut. Ins. Co.,
197 F.3d 1322, 1339 (11th Cir. 1999) ( decision-maker [must have] [become] aware
of the protected conduct, and that there was a close temporal proximity between
See Brungart v. BellSouth
Page 19 of 24

Telecomms., Inc.
have been motivated to retaliate

the

complaint does not contain facts needed to support the requisite causal connection
by alleging any Defendant possessed specific knowledge of her sexual harassment
claim or that their knowledge of the protected conduct and the adverse action were
in close proximity, neither
D.

Title VII nor her § 1983 claim can survive.

§ 1983 claims against ACUA and ACUA Board Members: Counts IV, V,
and VI

It is unclear whether Plaintiffs named the ACUA in the § 1983 Counts IVVI. Plaintiffs allege the ACUA deprived them of equal protection and
discriminated against them in violation of § 1983, but judgment under these Counts
is only sought as

.

126.)

Out of an abundance of caution, the Court also addresses the § 1983 claims as they
would pertain to the ACUA.
i.

Immunity
a. Absolute Immunity as it pertains to the ACUA

A non-consenting state is immune from lawsuits brought in federal court by
the

the

United States Constitution. Hans v. Louisiana, 134 U.S. 1 (1890). It is possible for

Page 20 of 24

States to waive their Eleventh Amendment immunity. Coll. Sav. Bank v. Fla.
Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999). However,
Alabama has not done so. See id.; see also ALA. CONST. OF

While the State of Alabama is not named as a defendant in this action, immunity
under the Eleventh Amendment stretches to its agencies and certain individuals
acting on behalf of the state.
ACUA is a state agency formed under Alabama laws. See Ala. Code § 5-17bama Credit Union Administration which shall
administer the laws of this state which regulate or otherwise relate to credit unions

under § 1983 as well as state-law actions. Ex parte Hale Cty. Bd. of Educ., 14 So. 3d
LA.

CONST.

OF

1901, § 14, the State of Alabama

has absolute immunity from lawsuits. This absolute immunity extends to arms or
Ex parte Tuscaloosa Cty., 796 So. 2d 1100, 1103 (Ala.
2000))); see also Harden v. Adams, 760 F.2d 1158 (11th Cir. 1985) (Eleventh
Amendment bars suits for damages against agencies of the state). As such, any
claims made against the ACUA in Counts IV, V and VI are due to be dismissed.
b. ACUA Board Members are covered by statutory immunity
Page 21 of 24

The section 1983 claims against the ACUA Board Members fail because
s
which provides:
Neither the administrator, any member of the Credit Union Board nor
any special agent or employee of the Alabama Credit Union
Administration shall be personally liable for any acts done in good faith
while in the performance of his or her duties as provided by law.
ALA. CODE § 5-17-51. Plaintiffs fail to allege facts that the ACUA Board Members
acted in bad faith or in any manner outside their duties under the Enabling Act, or
that they are guilty of willful or wanton misconduct. Plaintiffs assert that the

decisions of the Moore defendants. However, as appointed government officials
who serve as volunteers,15 the ACUA Board Members are entitled to immunity
from the claims against them. The impetus for providing exemptions from liability
in the Volunteer Service Act is explained therein and states in pertinent part:
willingness of volunteers to offer their services has been increasingly
deterred by a perception that they put personal assets at risk in the
event of tort actions seeking damages arising from their activities as
volunteers . . . .
15

See Ala. Code § 5-17shall receive any compensation for his services except, that each appointed member of said
Credit Union Board shall receive $25.00 per day for each day said Credit Union Board is in
session, but in no event to exceed $100.00 for each member of said board during any one month,
plus travel expenses payable pursuant to Article 2 of Chapter 7 of Title 36.
Page 22 of 24

Ala. Code § 6-5-336(a)(1). Specifically, the Volunteer Services Act provides that
Any volunteer shall be immune from civil liability in any action on the
basis of any act or omission of a volunteer resulting in damage or
injury if:
(1) The volunteer was acting in good faith and within the scope
s official functions and duties for a nonprofit
organization, a nonprofit corporation, hospital, or a
governmental entity; and
(2) The damage or injury was not caused by willful or wanton
misconduct by such volunteer.
ALA. CODE § 6-5-336(d). Accordingly, all claims asserted against the ACUA Board
Members in Counts IV, V, and VI are due to be dismissed.
Plaintiffs never specify whether they are suing the Moore defendants in their
official capacities. However, the Court would like to note that they would both be
entitled to immunity for any official capacity claims against them. 16

16

In addition to state agencies, the Eleventh Amendment grants state officials sued in their

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 (1984)
(quoting Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464 (1945)). To determine
whether Eleventh Amendment Immunity applies to certain state officials, a court must apply the
laws of the state. Carr v. City of Florence, Ala., 916 F.2d 1521, 1525 (11th Cir. 1990). After
thorough research, the Court has been unable to locate any state decision that determines
whether the Administrator or Assistant Administrator of the ACUA is entitled to absolute
immunity when sued in her official capacity. Nonetheless, based on Alabama law and
interpretation of state-court precedent analyzing absolute immunity for analogous state-official
positions, it is clear the Moore defendants are both entitled to absolute immunity as
Administrator and Assistant Administrator of the ACUA. In order to determine whether
immunity, the Court must consider: whether a result favorable to the Plaintiffs would directly
affect a contract or property right of the State, whether the D
Page 23 of 24

IV.

CONCLUSION
For the reasons stated above, Defendants motion to dismiss (doc. 37) is due

to be granted

prosecute or otherwise maintain

their case, and as a sanction for their refusal to allow discovery to Defendants,
also due to be
granted. Any remainin
are due to be dismissed with prejudice for want of prosecution. Accordingly, all
claims asserted by all Plaintiffs against any Defendant are dismissed with prejudice
and the Clerk is directed to close this case. A separate order will be entered.
DONE and ORDERED on August 13, 2018.

_____________________________
L. Scott Coogler
United States District Judge
190685

through which Plaintiffs seeks recovery of damages from the State, and whether judgment against
the officer would directly affect the financial status of the State treasury. Ex parte Moulton, 116
So. 3d 1119, 1131 (Ala. 201
determining whether an action against a state officer is barred by § 14, the Court considers the
nature of the suit or the relief demanded, not the character of the office of the person against
Id. (quoting Ex parte Carter, 395 So.2d 65, 67 68 (Ala. 1980)). Here,
any suit against the Moore defendants acting in their official capacity as Administrator of ACUA
is likewise a suit against the State. Ultimately, Plaintiffs appear to challenge the Moore
of the ACUA in conserving Alabama One Credit
Union and exercising the rights they have as Administrators to make employment determinations
including termination. Thus, the nature of recovery against them in their official capacity would
ultimately be recovery against the ACUA and Alabama. Consequently, the Moore defendants are
entitled to absolute immunity for any claims against them in their official capacities.

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