Brantley et al v. Muscogee County School District et al
Filing
67
ORDER granting in part and denying in part 56 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 59 Motion to Dismiss for Failure to State a Claim. Ordered by Judge Clay D. Land on 8/24/11. (jbo)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
CARLTON BRANTLEY, LARRY
DOWDELL, MELVIN GRIFFIN,
PONDIEL MABRY, CONNIE MCCOY,
HAYWARD PARHAM, REGINAL
RICHARDSON, JERRY STARKS, LARRY
THOMPSON, WILLIAM MARSHALL,
GODFREY BIGGERS, PATRICK
STROUD, CALVIN WILLIAMS, HENRY
CRAWFORD1 and JOHN DOE,2
Plaintiffs,
*
*
*
CASE NO. 4:10–CV-77 (CDL)
*
*
*
vs.
*
MUSCOGEE COUNTY SCHOOL
DISTRICT, DON A. COOPER, JR.,
KINARD LATHAM, CAROL FRENCH,
MARIE STRINGFELLOW, THOMAS M.
SHELLNUTT SR., JERRY DUCK and
JOHN DOE,3
*
*
*
*
Defendants.
O R D E R
1
Henry Crawford was not initially included as a plaintiff in this
action, and no formal motion to add him has been filed.
The Court,
however, implicitly allowed him to be added as a party when it
permitted Plaintiffs to file their Second Amended Complaint. He shall
be treated as a named plaintiff.
2
Plaintiffs have included “John Doe” plaintiffs and defendants with no
justification.
The “John Doe” plaintiffs and defendants are hereby
dismissed. See Fed. R. Civ. P. 10(a) (“Every pleading must . . . name
all the parties[.]”); see also Plaintiff B v. Francis, 631 F.3d 1310,
1315 (2011) (stating that Rule 10(a) “protects the public’s legitimate
interest in knowing all of the facts involved, including the
identities of the parties” and “creates a strong presumption in favor
of parties’ proceeding in their own names”) (internal quotation marks
omitted).
3
See supra note 2.
In a sweeping complaint, many of the Muscogee County School
District’s (“School District”) lowest paid current and former
employees accuse the School District of engaging in a pattern of
racial discrimination that relegated certain black employees to
a modest retirement system while manipulating the rules to make
a more generous retirement plan available to similarly-situated
white
employees.
Complaint,
the
According
School
to
District
available to its employees.
Plaintiffs’
has
Amended
retirement
two
Second
systems
One system, which provides more
generous benefits, is only available to teachers and supervisory
employees.
all
The other system provides more modest benefits to
non-supervisory
employees.
Plaintiffs
are
current
and
former School District employees who were placed in the more
modest, non-supervisor retirement system.
They allege that they
were placed in this system, rather than the more generous one,
because they are black, and that the School District and some of
its
employees
appropriate
retirement
fraudulently
steps
plan.
to
prevented
become
Plaintiffs
eligible
filed
them
for
this
from
the
taking
more
action
the
generous
against
the
School District and several of its employees asserting claims
for
fraud,
contract,
Racketeer
tortious
negligence
interference
per
Influenced
18 U.S.C. § 1961 et
seq.
se,
and
and
with
violations
Corrupt
(“RICO”),
2
contract,
of
breach
the
Organizations
the
Georgia
of
federal
Act,
Racketeer
Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et
seq.
(“Georgia
RICO”),
42
U.S.C.
§
1981
(“§ 1981”),
42 U.S.C. § 1983 (“§ 1983”), and Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”).
Defendants
seek
dismissal
of
most
of
Plaintiffs’
claims
contending that they are barred by the applicable statute of
limitations or that they fail to state a claim upon which relief
may be granted.
See Defs. Muscogee County School District, Don
A.
Carol
Cooper,
Duck’s
Jr.,
(collectively,
French,
“School
Marie
Stringfellow,
District
Defendants”)
and
Jerry
Mot.
to
Dismiss, ECF No. 56 [hereinafter School District Defs.’ Mot. to
Dismiss]; Defs. Kinard Latham and Thomas Shellnutt’s Mot. to
Dismiss, ECF No. 59 [hereinafter Defs. Latham & Shellnutt’s Mot.
to Dismiss].
As explained in the following discussion, the
Court finds that Plaintiffs’ claims, as alleged in their Second
Amended Complaint, are not barred by the statute of limitations.
The Court does find, however, that the following claims must be
dismissed because they fail to state a claim upon which relief
may be granted: (1) Plaintiffs’ negligence per se claims; (2)
Plaintiffs’ federal RICO claims; (3) Plaintiff’s Georgia RICO
claims; and (4) Plaintiff Brantley’s Title VII claims against
the individual Defendants.
(1)
Plaintiffs’
interference
with
fraud
contract
The following claims remain pending:
claims;
claims;
3
(2)
(3)
Plaintiffs’
Plaintiffs’
tortious
breach
of
contract claims against the School District; (4) Plaintiffs’ §
1981 claims; (5) Plaintiffs’ § 1983 claims; and (6) Plaintiff
Brantley’s Title VII claim against the School District.
MOTION TO DISMISS STANDARD
When considering a 12(b)(6) motion to dismiss, the Court
must
accept
complaint
as
and
true
all
facts
limit
its
consideration
exhibits attached thereto.
set
forth
to
in
the
the
plaintiff=s
pleadings
and
Bell Atl. Corp. v. Twombly, 550 U.S.
544, 556 (2007); Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949,
959
(11th
Cir.
2009).
“To
survive
a
motion
to
dismiss,
a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its
face.’”
Ashcroft
v.
Iqbal,
129
(quoting Twombly, 550 U.S. at 570).
S.
Ct.
1937,
1949
(2009)
The complaint must include
sufficient factual allegations “to raise a right to relief above
the
speculative
level.”
Twombly,
550
U.S.
at
555.
“[A]
formulaic recitation of the elements of a cause of action will
not do[.]”
Id.
Although the complaint must contain factual
allegations that “raise a reasonable expectation that discovery
will reveal evidence of” the plaintiff=s claims, id. at 556,
“Rule
12(b)(6)
does
not
permit
dismissal
of
a
well-pleaded
complaint simply because ‘it strikes a savvy judge that actual
proof of those facts is improbable,’” Watts v. Fla. Int’l Univ.,
4
495 F.3d 1289, 1295 (11th Cir. 2007) (quoting Twombly, 550 U.S.
at 556).
BACKGROUND
Plaintiffs’
pleading
original
disfavored
by
Complaint
the
was
courts.4
4
a
classic
Rather
than
“shotgun”
dismiss
“Shotgun pleading” refers to an unfocused, scattered approach which
makes it difficult (often impossible) for the court and the opposing
parties to discern the nature of the claims being asserted.
See
Pelletier v. Zweifel, 921 F.2d 1465, 1518 (11th Cir. 1991) (describing
“quintessential
‘shotgun’
pleadings”
complete
with
“rambling
recitation[s]” and “factual allegations that could not possibly be
material” that force the “district court [to] sift through the facts
presented and decide for [itself] which were material to the
particular cause of action asserted”); Thompson v. RelationServe
Media, Inc., 610 F.3d 628, 650 n.22 (11th Cir. 2010) (“The complaint
was a typical ‘shotgun’ pleading, in that each count incorporated by
reference all preceding paragraphs and counts of the complaint
notwithstanding that many of the facts alleged were not material to
the claim, or cause of action, appearing in a count’s heading.”).
Such pleadings have been universally condemned by the courts.
Thompson, 610 F.3d at 650 n.22; see also Pelletier, 921 F.2d at 1518
(“Anyone schooled in the law who read these [shotgun pleading]
complaints . . . would know that many of the facts alleged could not
possibly be material to all of the counts.
Consequently, [the
opposing party] and the district court [have] to sift through the
facts presented and decide for themselves which [are] material to the
particular cause of action asserted, a difficult and laborious task
indeed.”); PVC Windoors, Inc. v. Babbitbay Beach Constr., N.V., 598
F.3d 802, 806 n.4 (11th Cir. 2010) (“Shotgun pleadings impede the
administration of the district courts’ civil dockets in countless
ways . . . resulting in a massive waste of judicial and private
resources”) (citations and internal quotation marks omitted); Davis v.
Coca-Cola Bottling Co., 516 F.3d 955, 979 n.54 (11th Cir. 2008)
(“[S]ince 1985 we have explicitly condemned shotgun pleadings upward
of fifty times.”); Beckwith v. City of Daytona Beach Shores, Fla., 58
F.3d 1554, 1567 (11th Cir. 1995) (“The resulting difficulty in sorting
through allegations [of a ‘shotgun pleading’] almost drowns a
meritorious claim in a sea of marginal ones. The bar would be better
served by heeding this advice: ‘In law it is a good policy never to
plead what you need not, lest you oblige yourself to prove what you
cannot.’”) (quoting Abraham Lincoln, Letter to Usher F. Linder, Feb.
20, 1848, in The Quotable Lawyer 241 (D. Shrager & E. Frost eds.,
1986)).
5
Plaintiffs’ action initially, the Court held a hearing at which
time it pointed out many of the deficiencies to Plaintiffs’
counsel.
The Court subsequently permitted Plaintiffs to file a
second amended complaint.
Order Granting Pls.’ Mot. to Amend
Compl., ECF No. 51; see also U.S. ex rel. Atkins v. McInteer,
470 F.3d 1350, 1354 n.6 (11th Cir. 2006) (“When faced with a
shotgun pleading, the trial court, whether or not requested to
do so by the party’s adversary, ought to require the party to
file a repleader.” (citing Byrne v. Nezhat, 261 F.3d 1075, 1133
(11th Cir. 2001)).
dismiss
are
Accepting
Defendants’ presently pending motions to
directed
the
to
that
allegations
in
Second
Amended
Plaintiffs’
Complaint.
Second
Amended
Complaint as true and construing all reasonable inferences in
Plaintiffs’ favor as required at this stage of the proceedings,
the
Court
finds
that
Plaintiffs
have
alleged
the
following
facts.
Plaintiffs are current or former physical plant employees
of the School District.
During their employment with the School
District and dating back to 1978, the School District offered
two retirement systems for eligible physical plant employees:
(1) The Teachers Retirement System of Georgia (“TRS”), which
offers generous retirement benefits; and (2) the Public School
Employees Retirement System (“PSERS”), which offers more modest
retirement
benefits.
In
general,
6
physical
plant
supervisors
were
eligible
for
the
more
generous
TRS
while
other
non-
supervisor physical plant employees were restricted to the far
more modest PSERS.
This two-tiered retirement system invited manipulation by
physical plant employees who sought to participate in the more
generous TRS.
According to Plaintiffs, white physical plant
employees were permitted to manipulate their job duties and job
labels
to
be
designated
eligible for TRS.
as
“supervisors”
and
thus
become
At the same time, similarly-situated black
employees, including Plaintiffs, were not permitted to do the
same
thing,
and
opportunities.
in
fact,
were
never
informed
of
these
same
Plaintiffs allege that they were assigned the
duties and responsibilities of a supervisor, but were not given
a supervisor’s job title, grade level, or compensation.
Compl. 13 ¶ 3, ECF No. 53.
2d Am.
Plaintiffs also contend that they
were not considered for promotions to supervisory positions at
higher grade and rank levels.
Id. at 13 ¶ 4.
Accordingly, they
were prevented from participating in TRS based on their race.
Plaintiffs specifically allege that the School District and
School District employees Kinard Latham, Carol French, and Don
A. Cooper, Jr. conspired to defraud them of compensation and
retirement benefits because of their race.
Plaintiffs allege
that they were told that “they did not qualify for participation
in
TRS
because
their
job
titles
7
did
not
include
the
words
‘Supervisor’ and ‘Manager’ and because Plaintiffs did not have
hiring, firing, promotion, and reprimanding authority.”
14 ¶ 6.
Id. at
Plaintiffs subsequently discovered, on April 14, 2009,
that white employees were allowed to participate in TRS if they
supervised at least one person or machine.
Plaintiffs
also
allege
that
Defendants
Id. at 15 ¶ 7.
fraudulently
inflated
white employees’ job titles and identified them as supervisors
so that they could participate in TRS.
See, e.g., id. at 18-19
¶ 15, 19 ¶ 17, 23-24 ¶ 23, 198-99 ¶ 592.
In support of their RICO claims, Plaintiffs allege that
Defendants Latham, French, and thirteen named white employees
conspired
to
falsely
state
on
TRS
applications
that
respective white employee was a supervisor or manager.
Compl. 31-37 ¶¶ 46A-46M.
each
2d Am.
Plaintiffs further allege that the
“TRS application was sent to TRS through the mail and employer
contributions were and are made through wire transfers.”
Id.
DISCUSSION
The Court divides its discussion into two parts.
The Court
first analyzes Defendants’ statute of limitations defense and
determines that Plaintiffs’ claims are timely.
The Court then
evaluates Defendants’ motion to dismiss several of Plaintiffs’
claims because they fail to state a claim upon which relief may
be granted and concludes that Plaintiffs’ claims for negligence
8
per se, RICO, Georgia RICO, and Title VII liability against the
individual Defendants must be dismissed.
I.
Defendants’ Statute of Limitations Defense
Defendants maintain that the following claims are barred by
the
statute
of
limitations:
(1)
fraud
claims
asserted
by
Plaintiffs Biggers, Marshall, and Richardson; (2) fraud claims
against
Defendant
Latham;
(3)
tortious
interference
with
contract claims asserted by Plaintiffs Biggers, Marshall, and
Richardson;
against
(4)
tortious
Defendant
Latham;
interference
(5)
§
with
1981
contract
claims
claims
asserted
by
Plaintiffs Biggers, Marshall, and Richardson; (6) § 1981 claims
against
Defendants
Latham
and
Shellnutt;
(7)
§
1983
claims
asserted by Plaintiffs Biggers, Marshall, and Richardson; and
(8) § 1983 claims against Defendants Latham and Shellnutt.
When
statute
of
limitations
questions
arise
in
federal
court, the court analyzes state law to determine what statute of
limitations is applicable.
See, e.g., Dukes v. Smitherman, 32
F.3d 535, 537 (11th Cir. 1994) (per curiam) (“Federal courts
must look to state law to determine, first, what statute of
limitations is applicable, and second, whether that limitations
period
is
tolled.”).
Dismissal
of
a
claim
“on
statute
of
limitations grounds is appropriate only if it is apparent from
the face of the complaint that the claim is time-barred.”
9
Tello
v. Dean Witter Reynolds, Inc., 410 F.3d 1275, 1288 (11th Cir.
2005) (internal quotation marks omitted).
Plaintiffs filed their original Complaint in this action on
July 13, 2010.
Therefore,
that
is
the
applicable
date
for
evaluating Defendants’ statute of limitations defense.
A.
Fraud Claims
Fraud claims have a four-year statute of limitations in
Georgia.
Anthony v. Am. Gen. Fin. Servs., Inc., 287 Ga. 448,
461, 697 S.E.2d 166, 176 (2010) (citing O.C.G.A. § 9-3-31).
A
fraud claim accrues when an alleged misrepresentation results in
actual damages, unless the plaintiff can show that the statute
should be tolled.
Hamburger v. PFM Capital Mgmt., Inc., 286 Ga.
App. 382, 387-88 & n.21, 649 S.E.2d 779, 784 & n.21 (2007).
Here, Plaintiffs allege that Biggers and Marshall were employed
by
the
School
District
until
2006,
and
employed by the School District until 2004.
193, 90 ¶ 227, 167 ¶ 476.
that
was
2d Am. Compl. 80 ¶
Plaintiffs also allege that Latham
was employed by the School District until 1997.5
1.
Richardson
Id. at 11-12 ¶
Therefore, Defendants contend that the fraud claims asserted
5
Defendants contend that Shellnutt retired from the School District in
November 2007.
Defs. Latham & Shellnutt’s Mot. to Dismiss 3; Defs.
Kinard Latham & Thomas Shellnutt’s Reply to Pls.’ Resp. to Defs.’ Mot.
to Dismiss 4, ECF No. 66.
But Plaintiffs did not allege when
Shellnutt retired in their Second Amended Complaint. Therefore, it is
not “apparent from the face of the complaint” that any claims against
Shellnutt are barred by the statutes of limitations. Tello, 410 F.3d
at 1288 (emphasis added) (internal quotation marks omitted).
10
by
Biggers,
Marshall,
and
Richardson,
and
the
fraud
claims
asserted against Latham are barred by the four-year statute of
limitations.
School District Defs.’ Mot. to Dismiss 5; Defs.
Latham & Shellnutt’s Mot. to Dismiss 5.
Georgia
law
also
provides,
however,
that
“[i]f
the
defendant . . . [is] guilty of a fraud by which the plaintiff
has
been
period
debarred
of
or
limitation
deterred
shall
run
from
only
plaintiff’s discovery of the fraud.”
bringing
from
an
action,
the
time
of
O.C.G.A. § 9-3-96.
the
the
“In
cases where the gravamen of the underlying cause of action is
actual fraud, ‘the statute of limitations is tolled until the
fraud is discovered or by reasonable diligence should have been
discovered.’”
Hamburger, 286 Ga. App. at 388, 649 S.E.2d at 784
(quoting Shipman v. Horizon Corp., 245 Ga. 808, 808, 267 S.E.2d
244, 246 (1980)).
Here, Plaintiffs allege that they did not
discover Defendants’ fraud until April 14, 2009.
2d Am. Compl.
15 ¶ 7. (“On April 14, 2009, Defendant Latham revealed while
under
oath
that
Caucasian
employees . . . were
[and
are]
permitted to participate in the TRS because there [sic] duties
and responsibilities included the supervision of at least (1)
one person or the supervision of a machine.
Said MCSD Employees
are similarly situation [sic] or less qualified than Plaintiffs
for participation in the TRS.”).
Therefore, it is not apparent
from the face of the Second Amended Complaint that the fraud
11
claims asserted by Biggers, Marshall, and Richardson, or the
fraud claims asserted against Latham are barred by the statute
of limitations.
677,
365
See Shapiro v. S. Can Co., 185 Ga. App. 677,
S.E.2d
518,
520
(1988)
(holding
that
period
of
limitations on plaintiff’s claim that defendants fraudulently
induced him to enter special pension plan “runs from the time of
the plaintiff’s discovery of the alleged fraud.”).
Accordingly,
Defendants’ motions to dismiss those claims are denied.
B.
Tortious Interference with Contract Claims
Tortious interference with contract claims have a four-year
statute of limitations in Georgia.
Long v. A.L. Williams &
Assocs., Inc., 172 Ga. App. 564, 566, 323 S.E.2d 868, 870 (1984)
(citing O.C.G.A. § 9-3-31).
Again Defendants contend that the
tortious interference with contract claims asserted by Biggers,
Marshall,
and
Richardson,
and
the
tortious
interference
with
contract claims asserted against Latham are barred by the fouryear statute of limitations.
circumstances
authorize
the
The question arises as to what
tolling
of
the
statute
of
limitations for tort claims other than fraud until the plaintiff
becomes aware of the claim.
gravamen
of
the
underlying
Under Georgia law, “‘where the
action
is
not
a
claim
of
fraud, . . . the statute of limitations is tolled only upon a
showing of a separate independent actual fraud involving moral
turpitude
which
deters
a
plaintiff
12
from
filing
suit.’”
Hamburger,
286
Ga.
App.
at
388,
649
S.E.2d
at
785
(quoting
Hunter, Maclean, Exley & Dunn, P.C. v. Frame, 269 Ga. 844, 847,
507
S.E.2d
411,
413
(1998)).
Here,
Plaintiffs
allege
that
Defendants fraudulently told them that “they did not qualify for
participation in TRS because their job titles did not include
the words ‘Supervisor’ and ‘Manager,’ and because Plaintiffs did
not have hiring, firing, promotion, and reprimanding authority.”
2d Am. Compl. 14 ¶ 6.
not
discover
that
Plaintiffs further allege that they did
Defendants’
until April 14, 2009.
misrepresentations
Id. at 15 ¶ 7.
were
false
Therefore, it is not
apparent from the face of the Second Amended Complaint that
either the tortious interference with contract claims asserted
by
Biggers,
Marshall,
and
Richardson,
or
the
tortious
interference with contract claims asserted against Latham are
barred by the statute of limitations.
Accordingly, Defendants’
motions to dismiss those claims are denied.
C.
§ 1981 Claims
The
four-year
federal
catch-all
statute
of
limitations,
28 U.S.C. § 1658, applies to actions arising under § 1981 as
amended by the Civil Rights Act of 1991, Pub. L. No. 102-166,
105 Stat. 1071 (“1991 Act”).
Jones v. R.R. Donnelley & Sons
Co., 541 U.S. 369, 382-83 (2004).
A two-year “borrowed” statute
of limitations applies to claims that could have been brought
under § 1981 as it existed prior to the 1991 Act.
13
Id.; see also
Hill v. Metro. Atlanta Rapid Transit Auth., 841 F.2d 1533, 154546 (11th Cir. 1988) (borrowing Georgia’s two-year statute of
limitations for personal injury actions).
Here, however, the
Court need not determine whether Plaintiffs’ claims could have
been brought under § 1981 as it existed prior to the 1991 Act
because, in either case, the statute of limitations commences
only “when the plaintiff knows or reasonably should know that
the
discriminatory
Cnty.
Bd.
of
act
Educ.,
has
688
occurred.”
F.2d
1383,
Stafford
1390
(11th
v.
Muscogee
Cir.
1982)
(internal quotation marks omitted); see also Hamilton v. Gen.
Motors Corp., 606 F.2d 576, 579 (5th Cir. 1979) (“Equitable
considerations may very well require that the filing periods not
begin to run until facts supportive of a Title VII charge or
civil rights action are or should be apparent to a reasonably
prudent person similarly situated.”).6
Here, Plaintiffs have
alleged that they were not aware that Defendants defrauded them
of compensation and retirement benefits because of their race
until April 14, 2009.
2d Am. Compl. 15 ¶ 7.
Therefore, it is
not apparent from the face of the Second Amended Complaint that
either the § 1981 claims asserted by Biggers, Marshall, and
Richardson, or the § 1981 claims asserted against Latham are
6
In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir.
1981) (en banc), the Eleventh Circuit adopted as binding precedent all
decisions of the former Fifth Circuit handed down prior to the close
of business on September 30, 1981.
14
barred by the statute of limitations.
Accordingly, Defendants’
motions to dismiss those claims are denied.
D.
§ 1983 Claims
“Federal
limitations
courts
for
apply
personal
their
injury
pursuant to 42 U.S.C. § 1983[.]”
1002
(11th
Cir.
1998).
But
forum
actions
state’s
to
statute
actions
of
brought
Uboh v. Reno, 141 F.3d 1000,
“[t]he
question
of
when
the
limitations period begins to run . . . is one of federal law.”
Id.
Therefore, Georgia’s “two-year personal injury limitations
period applies to § 1983 actions in a Georgia district court.”
Kelly v. Serna, 87 F.3d 1235, 1238 (11th Cir. 1996); see also
O.C.G.A. § 9-3-33.
But § 1983 actions “do not accrue until the
plaintiff knows or has reason to know that he has been injured.”
Mullinax v. McElhenney, 817 F.2d 711, 716 (11th Cir. 1987).
“Plaintiffs must know or have reason to know that they were
injured, and must be aware or should be aware of who inflicted
the injury.”
Rozar v. Mullis, 85 F.3d 556, 562 (11th Cir.
1996); see also Eubank v. Leslie, 210 F. App’x 837, 841 (11th
Cir. 2006) (per curiam) (“A cause of action accrues for purposes
of determining when the statute of limitations period began to
run when the plaintiff knew or should have known of his injury
and its cause.”).
Here, Plaintiffs have alleged that they were not aware that
Defendants
defrauded
them
of
15
compensation
and
retirement
benefits
until
Therefore,
Amended
it
April 14, 2009.
is
Complaint
not
2d
apparent
that
either
from
the
Am.
the
Compl.
face
§ 1983
15
of
the
claims
¶
7.
Second
asserted
by
Biggers, Marshall, and Richardson, or the § 1983 claims asserted
against
Latham
Accordingly,
are
barred
Defendants’
by
the
motions
to
statute
dismiss
of
limitations.
those
claims
are
denied.
In summary, Defendants’ motions to dismiss based on the
statutes of limitations are denied.
The Court hastens to add,
however, that its ruling does not mean that Defendants may not
eventually
prevail
on
their
statute
of
limitations
defenses.
The standard at the summary judgment stage, after discovery has
been completed, will be different than the motion to dismiss
standard that the Court must apply today.
II.
Failure to State a Claim
In
addition
to
their
statute
of
limitations
defense,
Defendants seek to dismiss the following claims because they
fail to state a claim upon which relief may be granted: (1)
Plaintiffs’
RICO
claim;
Plaintiff
negligence
per
se
(3)
Plaintiffs’
Brantley’s
Title
claim;
(2)
Plaintiffs’
Georgia
RICO
claim;
claim
against
the
VII
Defendants.
16
Federal
and
(4)
individual
A.
Negligence Per Se Claim
Plaintiffs’ negligence per se claims fail to state a claim
upon which relief can be granted.
“Generally, negligence per se
arises when a statute or ordinance is violated.
The violation
of certain mandatory regulations may also amount to negligence
per
se
if
the
regulations
impose
a
legal
duty.”
R
&
R
Insulation Servs., Inc. v. Royal Indem. Co., 307 Ga. App. 419,
424, 705 S.E.2d 223, 231 (2010).
Plaintiffs have pointed to no
statute or ordinance on which a claim for negligence per se
could be based.
Moreover, they have provided no legal authority
for the proposition that their negligence per se claim can be
based
on
an
alleged
violation
of
the
Georgia
Constitution.
Although the Georgia Constitution may provide Plaintiffs with
various rights and protections, the Court finds that it does not
support Plaintiffs’ claim for negligence per se.
Accordingly,
that claim is dismissed.
B.
Federal RICO Claims
Plaintiffs’ claims under the federal RICO act also fail to
state a claim upon which relief can be granted.
conclusory
Cooper
allegations
engaged
in
that
illegal
Defendants
racketeering
Plaintiffs make
Latham,
French,
activity
through
and
an
ongoing pattern of mail and wire fraud and also through the
violation
of
18 U.S.C. § 666,
which
prohibits
theft
from
a
government organization receiving federal financial assistance.
17
2d Am. Compl. 197 ¶¶ 588-90.
reasons.
such
First, as to the alleged violation of 18 U.S.C. § 666,
activity
“racketeering
18 U.S.C.
Plaintiffs’ claims fail for two
§
even
if
activity”
committed
under
1961(1).
the
does
not
federal
Furthermore,
constitute
RICO
Plaintiffs’
statute.
conclusory
allegations that Defendants engaged in mail and wire fraud are
not supported by Plaintiffs’ “factual” allegations.
Plaintiffs’ mail and wire fraud claims are based on Latham,
French,
and
Cooper’s
alleged
false
statements
on
TRS
applications that white employees were supervisors or managers.
See 2d Am. Compl. 31-37 ¶¶ 46A-46M; see also id. at 198-99 ¶ 192
(“[R]acketeering
manipulation
assignments,
activity
of
primarily
government
salary,
wages,
concentrated
documents,
employee
retirement
the
titles,
job
on
job
contribution,
MCSD matching retirement contributions and payments concerning
[named white employees] to obtain creditable service plus MCSD
matching retirement contributions in the Teacher’s Retirement
System
of
Georgia;
a
retirement
eligible to participate in.”).
plan
each
employee
was
not
Plaintiffs, however, have not
alleged sufficient facts to show that the injury for which they
seek
redress—lost
compensation
and
retirement
benefits—was
proximately caused by Defendants’ mail and wire fraud, which was
directed
at
TRS.
Plaintiffs
only
allege
that
Defendants’
misrepresentations to TRS—that white employees were managers or
18
supervisors—were made via the mails.
Plaintiffs do not allege
that Defendants’ misrepresentations to them—that “they did not
qualify for participation in TRS”—involved the mails or wires.
2d Am. Compl. 14 ¶ 6.
that
any
fraud
Quite simply, Plaintiffs fail to allege
against
them
was
via
the
mail
or
wires.
Therefore, the Court finds that Plaintiffs have failed to allege
that they were injured “by reason of” the alleged pattern of
racketeering activity.
18 U.S.C. § 1964(c); see also Holmes v.
Sec. Investor Prot. Corp., 503 U.S. 258, 268 (1992) (explaining
that,
to
state
a
claim
under
civil
RICO,
the
plaintiff
is
required to show that a RICO predicate offense “not only was a
‘but for’ cause of his injury, but was the proximate cause as
well”); Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 461
(2006)
(“When
causation,
a
the
court
central
evaluates
a
RICO
claim
question
it
must
ask
for
is
proximate
whether
the
alleged violation led directly to the plaintiff's injuries.”);
Hemi Grp., LLC v. City of New York, 130 S. Ct. 983, 994 (2010)
(RICO
“is
limited
by
the
requirement
of
a
direct
causal
connection between the predicate wrong and the harm.”) (internal
quotation
marks
omitted);
accord
Williams
v.
Mohawk
Indus.,
Inc., 465 F.3d 1277, 1287 (11th Cir. 2006) (per curiam) (“Anza
makes clear that courts should scrutinize proximate causation at
the pleading stage and carefully evaluate whether the injury
19
pled was proximately caused by the claimed RICO violations.”).
Accordingly, Plaintiffs’ federal RICO claims are dismissed.
Since Plaintiffs’ Second Amended Complaint fails to state a
substantive RICO claim, Plaintiffs’ RICO conspiracy claims also
fail.
See 18 U.S.C. § 1962(d); Jackson v. BellSouth Telecomms.,
372 F.3d 1259, 1269 (11th Cir. 2004) (allegation that defendant
conspired to commit conduct which does not constitute a RICO
violation is not sufficient to state a RICO conspiracy claim).
C.
Georgia RICO Claims
Plaintiffs’ claims under the Georgia RICO Act also fail to
state a claim upon which relief can be granted.
RICO
is
modeled
after
federal
RICO,
Georgia
Because Georgia
courts
consider
federal authority to be persuasive in interpreting Georgia RICO.
Williams Gen. Corp. v. Stone, 279 Ga. 428, 430, 614 S.E.2d 758,
760 (2005).
Georgia courts employ the Anza “proximate cause”
standard to determine whether a plaintiff’s injury is “by reason
of” a RICO predicate act.
Parham,
291
Ga.
App.
33,
Am. Ass’n of Cab Cos., Inc. v.
39,
661
S.E.2d
161,
166-67
(2008)
(citing Anza, 547 U.S. at 456-57).
Plaintiffs’
Georgia
RICO
claims
are
based
on
their
allegation that Defendants Latham, French, and Cooper engaged in
an ongoing pattern of mail fraud, wire fraud, theft by taking in
violation of O.C.G.A. § 16-8-2, falsification of public records
in violation of O.C.G.A. § 45-11-1, and violations of Georgia’s
20
false statement provision, O.C.G.A. § 16-10-20.
195-96
583-87.7
¶¶
Preliminarily,
the
2d Am. Compl.
Court
notes
that
falsification of public records is not a “racketeering activity”
under
the
Georgia
RICO
statute.
O.C.G.A.
§
16-14-3(9).
Therefore, the Court only considers Plaintiffs’ allegations that
Defendants
pattern
Latham,
of
mail
French,
fraud,
and
engaged
fraud,
wire
Cooper
theft
in
by
an
ongoing
taking,
and
violations of Georgia’s false statement provision in evaluating
their Georgia RICO claims.
As explained above, the Court finds that Plaintiffs have
not sufficiently alleged that their injuries were “by reason of”
any
alleged
mail
or
wire
fraud.
Accordingly,
Plaintiffs’
Georgia RICO claims based on mail and wire fraud are dismissed.
Plaintiffs
have
also
failed
to
sufficiently
allege
that
their injuries were “by reason of” Defendants’ alleged theft by
taking.
Under Georgia law, “[a] person commits the offense of
theft by taking when he unlawfully takes . . . any property of
another with the intention of depriving him of the property,
regardless
of
appropriated.”
the
manner
in
which
O.C.G.A. § 16-8-2.
7
the
property
is
taken
or
Here, Plaintiffs have not
As explained above, a violation of 18 U.S.C. § 666 is not a
“racketeering
activity”
under
the
federal
RICO
statute.
18 U.S.C. § 1961(1). Therefore, it is likewise an improper basis for
a Georgia RICO claim.
See O.C.G.A. § 16-14-3(9)(A)(xxix) (defining
“Racketeering activity” under the Georgia RICO statute to include any
conduct defined as racketeering activity under the federal RICO
statute).
21
alleged that Defendants took their property.
Plaintiffs have
only alleged that Defendants defrauded them by misrepresenting
their
eligibility
for
TRS,
thereby
preventing
them
from
obtaining more generous compensation and retirement benefits.
To the extent Plaintiffs’ theft by taking claims are based on
Defendants’ alleged misrepresentations to TRS regarding white
employees, Plaintiffs have failed to sufficiently allege that
their
injuries were “by reason of” those statements
to TRS.
Therefore, Plaintiffs’ Georgia RICO claims based on theft by
taking are dismissed.
Finally, Plaintiffs have failed to sufficiently allege that
their injuries were “by reason of” Defendants’ violations of
Georgia’s false statement provision.
That statute prohibits the
making
any
of
false
statements
in
manner
“within
the
jurisdiction of any department or agency of state government or
of
the
government
subdivision
of
Plaintiffs’
of
this
only
any
county,
state.”
city,
O.C.G.A.
allegations
that
or
§
other
political
16-10-20.
Defendants
Here,
made
false
statements “within the jurisdiction of any department or agency
of state government” were that Defendants made false statements
that
white
employees
applications.
As
were
supervisors
explained
above,
or
managers
Plaintiffs
on
TRS
have
not
sufficiently alleged that their injuries were “by reason of”
those
allegedly
false
statements.
22
Therefore,
Plaintiffs’
Georgia RICO claims based on Georgia’s false statement provision
are dismissed.
D.
Plaintiff
Brantley’s
Individual Defendants
Title
VII
Claims
Against
The only Title VII claims asserted in the Second Amended
Complaint are by Carlton Brantley.
71.
2d Am. Compl. 190-91 ¶¶ 569-
To the extent that Brantley asserts his Title VII claims
against any individual Defendant, Defendants seek dismissal of
those claims.
under
Title
It is well settled that “‘[t]he relief granted
VII
is
against
the
employer,
not
[against]
individual employees whose actions would constitute a violation
of the Act.’”
Dearth v. Collins, 441 F.3d 931, 933 (11th Cir.
2006) (alterations in original) (quoting Hinson v. Clinch Cnty.
Bd. of Educ., 231 F.3d 821, 827 (11th Cir. 2000)).
“Individual
capacity suits under Title VII are . . . inappropriate.”
Busby
v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991) (per
curiam).
against
Title
Therefore,
the
VII
dismissed.
Brantley
individual
claims
Defendants.
against
Brantley’s
cannot
Title
the
VII
bring
Title
Accordingly,
individual
claims
VII
claims
Brantley’s
Defendants
against
the
are
School
District remain pending.
CONCLUSION
The School District Defendants’ Motion to Dismiss (ECF No.
56) and Defendants Kinard Latham and Thomas Shellnutt’s Motion
23
to Dismiss (ECF No. 59) are granted in part and denied in part.
The following claims are dismissed: (1) Plaintiffs’ negligence
per
se
claims;
(2)
Plaintiffs’
federal
RICO
claims;
(3)
Plaintiffs’ Georgia RICO claims; and (4) Brantley’s Title VII
claims
against
individual
Defendants.
The
following
claims
remain pending: (1) Plaintiffs’ fraud claims; (2) Plaintiffs’
tortious
breach
of
interference
contract
with
claims
contract
against
claims;
the
(3)
School
Plaintiffs’
District;
(4)
Plaintiffs’ § 1981 claims; (5) Plaintiffs’ § 1983 claims; and
(6)
Plaintiff
Brantley’s
Title
VII
claim
against
the
School
District.
IT IS SO ORDERED, this 24th day of August, 2011.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
24
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