Everett et al v. Cobb County, Georgia et al
Filing
37
OPINION AND ORDER granting Lani Meshella Miller's 29 Motion to Dismiss for Failure to State a Claim. The Clerk is directed to DISMISS Tjelvar Everett as a party in this case. Signed by Judge Thomas W. Thrash, Jr. on 5/15/2018. (jkl)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
AMY EVERETT, et al.,
Plaintiffs,
v.
CIVIL ACTION FILE
NO. 1:17-CV-3392-TWT
COBB COUNTY, GEORGIA, et al.,
Defendants.
OPINION AND ORDER
Though with their high wrongs I am struck to th’ quick,
Yet with my nobler reason ’gainst my fury
Do I take part. The rarer action is
In virtue than in vengeance.1
This is a tort case. It is before the Court on the Defendant Lani Meshella
Miller’s Motion to Dismiss [Doc. 29]. For the reasons stated below, the
Defendant’s Motion to Dismiss is GRANTED.
I. Background
The Plaintiffs Amy and Tjelvar Everett are a married couple currently
residing in Alabama.2 The Defendant Miller is a former coworker of the
1
WILLIAM SHAKESPEARE, THE TEMPEST Act 5, Scene 1.
2
Compl. ¶¶ 1-2 [Doc. 1].
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Plaintiffs and a resident of Georgia.3 The Plaintiffs allege that on January 1,
2015, Tjelvar Everett revealed to his wife that he had engaged in an
extramarital affair with Miller between 2006 and 2008 when the Everetts and
Miller were teachers at a high school in Georgia.4 Upon learning of the affair,
Amy Everett attempted to contact Miller and her husband through Facebook,
but did not receive a response.5 Amy Everett then contacted Miller at her
current place of employment via telephone.6 After their conversation, Amy
Everett then sent emails and other electronic communications to Miller’s
extended family and coworkers exposing the affair in an effort to “warn” them.7
Miller contacted the Cobb County Police Department to report that she
had been receiving harassing emails from Amy Everett.8 Detective Hopkins,
another Defendant in this case, was assigned to investigate the issue.9 Hopkins
interviewed Miller, at which time she “was adamant that she had [had] no such
affair.”10 Miller also apparently failed to disclose the phone conversation she had
3
Id. at ¶ 5.
4
Id. at ¶¶ 9-10.
5
Id. at ¶ 16.
6
Id. at ¶ 17.
7
Id. at ¶¶ 21-22, 24.
8
Compl., Ex. D at 1.
9
Id.
10
Id.
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had with Amy Everett.11 Hopkins then sent a cease and desist letter to the
Plaintiffs.12 After Miller received another email from the Plaintiffs, Hopkins
applied for and obtained an arrest warrant for the charge of Harassing
Communications.13 Amy Everett was eventually arrested at her home in
Alabama.14
The case against Amy Everett was eventually resolved in her favor, but
not before she alleges she suffered numerous injuries as a result of her arrest.15
The Plaintiffs then filed suit in this Court against the Defendants alleging three
different violations of the Plaintiffs’ constitutional rights pursuant to 42 U.S.C.
§ 1983 (Counts I-III) and three different state law tort claims, including false
imprisonment, false arrest, and malicious prosecution (Counts IV-VI).16 The
Court dismissed the Plaintiffs’ federal claims against Miller and directed the
Plaintiffs to file an amended complaint showing how the Court had jurisdiction
11
Compl. ¶ 77.
12
Id. at ¶¶ 26-28.
13
Id. at ¶ 39.
14
Id. at ¶ 44.
15
Id. at ¶¶ 59-73.
16
Id. at ¶¶ 126-187.
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over the remaining state law claims.17 They did so,18 and now Miller moves to
dismiss the remaining state law claims against her.
II. Legal Standard
A complaint should be dismissed under Rule 12(b)(6) only where it
appears that the facts alleged fail to state a “plausible” claim for relief.19 A
complaint may survive a motion to dismiss for failure to state a claim, however,
even if it is “improbable” that a plaintiff would be able to prove those facts; even
if the possibility of recovery is extremely “remote and unlikely.”20 In ruling on
a motion to dismiss, the court must accept the facts pleaded in the complaint as
true and construe them in the light most favorable to the plaintiff.21 Generally,
notice pleading is all that is required for a valid complaint.22 Under notice
17
Order Granting Motion to Dismiss [Doc. 20].
18
See Am. Compl. [Doc. 27].
19
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); Fed. R. Civ. P.
12(b)(6).
20
Bell Atlantic v. Twombly, 550 U.S. 544, 556 (2007).
See Quality Foods de Centro America, S.A. v. Latin American
Agribusiness Dev. Corp., S.A., 711 F.2d 989, 994-95 (11th Cir. 1983); see also
Sanjuan v. American Bd. of Psychiatry & Neurology, Inc., 40 F.3d 247, 251 (7th
21
Cir. 1994) (noting that at the pleading stage, the plaintiff “receives the benefit
of imagination”).
22
See Lombard’s, Inc. v. Prince Mfg., Inc., 753 F.2d 974, 975 (11th
Cir. 1985), cert. denied, 474 U.S. 1082 (1986).
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pleading, the plaintiff need only give the defendant fair notice of the plaintiff’s
claim and the grounds upon which it rests.23
III. Discussion
The Plaintiffs allege three state law claims.24 Count IV alleges a claim for
false imprisonment.25 Count V alleges a claim for False Arrest.26 And Count VI
alleges a claim for Malicious Prosecution.27 As discussed in the Court’s previous
Order, it is not entirely clear which of these claims are being asserted against
Miller.28 Counts IV and V seem to apply only to the Defendants Hopkins and
Cobb County, as there is no mention of Miller. Only Count VI, malicious
prosecution, specifically accuses Miller. Given that the Court pointed this out
before, and the Plaintiffs were given the opportunity to amend their Complaint,
23
U.S. at 555).
See Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Twombly, 550
24
The Plaintiffs also attempt to argue in their response brief that
their Complaint supports a common law claim for malicious abuse of process
despite the fact that no such claim appears in their Complaint. While it is
“unnecessary to set out a legal theory for the plaintiff’s claim for relief,” Johnson
v. City of Shelby, Miss., 135 S. Ct. 346, 347 (2014), that does not mean that a
plaintiff can surreptitiously attempt to add a wholly new claim in a response
briefing. The Court will not address these arguments.
25
Compl. ¶¶ 169-72. See O.C.G.A. § 16-5-41.
26
Id. at ¶¶ 173-76. See O.C.G.A. § 51-7-1.
27
Id. at ¶¶ 177-87. See O.C.G.A. § 51-7-40.
28
Order Granting Motion to Dismiss, at 4-5 [Doc. 20].
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the Court can only assume that the only claim against Miller is one for malicious
prosecution.
In order to prevail on a claim for malicious prosecution, “a plaintiff must
show: (1) prosecution for a criminal offense instigated by defendant; (2) issuance
of a valid warrant, accusation, indictment, or summons; (3) termination of the
prosecution in favor of plaintiff; (4) malice; (5) want of probable cause; and (6)
damage to plaintiff.”29 The only issue in dispute at this stage is whether Miller
“instigated” the criminal prosecution of Mrs. Everett.
In Georgia,
[t]he law draws a fine line of demarcation between cases where a
party directly or indirectly urges a law enforcement official to begin
criminal proceedings and cases where a party merely relays facts
to an official who then makes an independent decision to arrest or
prosecute. In the former case there is potential liability for ...
malicious prosecution; in the latter case there is not.30
The Court already stated in its previous Order dismissing the Plaintiffs’ federal
claims against Miller that the Complaint shows that Hopkins used his own
independent judgment to decide whether to prosecute Miller.31 However, even
in those types of situations, “[a] person may [still] be held liable for unduly
29
Kaiser v. Tara Ford, Inc., 248 Ga. App. 481, 486 (2001).
30
Willis v. Brassell, 220 Ga. App. 348, 350 (1996) (citations and
quotations omitted).
31
Order Granting Motion to Dismiss, at 6-7 [Doc. 20].
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influencing the decision to prosecute by providing information that is known to
be false, misleading or materially incomplete.”32
In this case, the Plaintiffs claim that Miller unduly influenced Hopkins’
judgment regarding two facts: (1) when she denied the existence of the affair
between Miller and Mr. Everett, and (2) when she failed to tell Hopkins about
the phone call between her and Mrs. Everett.33 To unduly mislead someone,
however, such facts must be material, meaning that they would have had a
significant effect on the official’s judgment.34 The Court fails to see how either
of those two facts would have been in any way material to Hopkins’ decision to
pursue the warrant. In fact, Hopkins explicitly stated that the existence of the
affair was immaterial to him.35 And assuming for a moment that the phone
conversation between Mrs. Everett and Miller was “consensual,” Georgia’s
harassing communications statute states that it is illegal to “contact[] another
32
Kaiser, 248 Ga. App. at 487 (citations and quotations omitted). See
also Willis, 220 Ga. App. at 351 (“A person may be liable where ‘he gave
information [to the investigating officer] which he knew to be false and so
unduly influenced the authorities.”) (quotations omitted).
33
Pls.’ Resp. to Mot. to Dismiss, at 8-9 [Doc. 36].
34
Kaiser, 248 Ga. App. at 487. See also Gibbs v. Loomis, Fargo & Co.,
259 Ga. App. 170, 175 (2003) (“Evidence that a malicious prosecution defendant
misrepresented material information to the police raises a factual issue as to
whether the defendant had a reasonable and honest belief regarding probable
cause.”) (emphasis added).
35
Compl., Ex. B at 1 (“Whether there was any infidelity or not has no
bearing on this investigation and does not in any way condone harassing a
person through any means of communication.”).
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person repeatedly,” for the purpose of “harassing, molesting, threatening or
intimidating such person or the family of such person.”36 There were a number
of other communications Mrs. Everett made that formed the basis of Hopkins’
belief that Mrs. Everett was violating this statute.
For example, contrary to the Plaintiffs’ brief, the phone conversation
between Mrs. Everett and Miller was not Mrs. Everett’s only communication to
Miller. The Complaint states that Mrs. Everett attempted to contact Miller via
Facebook Messenger, and Hopkins’ report shows that Miller had received
numerous vulgar emails from Mrs. Everett.37 Additionally, Mrs. Everett sent a
litany of harassing communications to Miller’s coworkers and family;
communications which were often made to look as though they were coming
from Miller herself.38 In the face of such facts, it strains credulity to think that
Hopkins would have changed his decision to issue a cease and desist letter had
he known about a thirty minute conversation between Miller and Mrs. Everett.
The Court acknowledges that Mrs. Everett suffered serious hardship as
the result of mistakenly being arrested on a fugitive warrant, and no doubt some
heartache at the actions of her husband and Miller. But when she decided to
take out her righteous anger on Miller by harassing her, her coworkers, and her
36
O.C.G.A. § 16-11-39.1.
37
Compl. ¶¶ 16, 76.
38
Compl. ¶¶ 16-22; Compl., Ex. D [Doc. 1-4].
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family, Miller had every right to report such actions to the police. Miller did not
insist on a particular outcome, nor did she attempt to influence Hopkins’
judgment. In other words, she did not “instigate” a flawed prosecution against
Mrs. Everett. She merely reported what had happened to her. This is not the
type of behavior contemplated by the tort of malicious prosecution.39 Mrs.
Everett’s remaining state claims against Mrs. Miller are dismissed.
Alternatively, Miller has also moved to dismiss Tjelvar Everett from this
action. As the Complaint utterly fails to allege any cause of action Mr. Everett
may have, Mr. Everett is dismissed from all remaining claims against all
parties.
IV. Conclusion
The Defendant Miller’s Motion to Dismiss [Doc. 29] is GRANTED. The
Plaintiffs’ state claims against the Defendant Miller are DISMISSED.
Additionally, the Clerk is directed to DISMISS Tjelvar Everett as a party in this
case.
39
Contrast this case with the number of cases the Plaintiffs cite in
their response brief. See Shepard v. Byrd, 581 F. Supp. 1374 (N.D. Ga. 1984);
Melton v. LaCalamito, 158 Ga. App. 820 (1981); and Adams v. Carlisle, 278 Ga.
App. 777 (2006). In those cases, the Defendants had all taken an active role in
the officials’ decision to prosecute, either by participating in the investigation,
Shepard, 581 F. Supp. at 1391, insisting on a particular outcome, Melton, 158
Ga. App. at 822-23, or directly challenging an official’s inclination to believe the
other party, Adams, 278 Ga. App. at 786.
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SO ORDERED, this 15 day of May, 2018.
/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge
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