Grimes v. The Board of Regents of the University System of the State of Georgia et al
Filing
27
ORDER granting in part and denying in part the 13 MOTION TO DISMISS filed by Georgia Southern University, John R. Diebolt, Charles Patterson, Brooks A. Keel, Samuel Todd, The Board of Regents of the University System of the State of Georgia. Cou nts I, III, IV, V, VI, are dismissed without prejudice. Within Count II, any claim that Defendants violated Plaintiff's 42 U.S.C 1981 rights by denying her admission to GSU's graduate program is dismissed with prejudice. Plaintiff's remaining claims under 1981 may proceed. Signed by Judge B. Avant Edenfield on 3/27/14. (wwp)
U
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
LAKETIA GRIMES,
Plaintiff,
6:13-cv-75
V.
BOARD OF REGENTS OF THE
UNIVERSITY SYSTEM OF THE
STATE OF GEORGIA, et al,
Defendants.
I.
INTRODUCTION
The Board of Regents of the University
System of the State of Georgia, Georgia
Southern University, Dr. Brooks A. Keel,
Charles Patterson, John R. Diebolt, and
Samuel Todd bring this motion to dismiss
Laketia Grimes's claims, contending that
she brought her case outside the statute of
limitations. ECF No. 13. Some of Ms.
Grimes's claims are time-barred, but some
remain within their window of viability.
Therefore, the motion is GRANTED IN
PART and DENIED IN PART.
II.
BACKGROUND'
Plaintiff's claims arise from her time at
Georgia Southern University ("GSU") as an
undergraduate and from GSU's rejection of
her application to remain there as a graduate
student. She alleges that while at GSU, her
instructors demeaned her because of her
status as an African-American and a woman,
and that they gave advantages to white
students that she did not receive. ECF No.
17-2 at 8-10. She further alleges that GSU
denied her application to its graduate sports
management program because of her race,
and that GSU employees retaliated against
her by tarnishing her reputation in filings to
the Office of Civil Rights. Id. at 11-13.
She has raised claims under 42 U.S.C. §
1981, 1983, 1985, 1986, and 1988; 20
U.S.C. §§ 1681-88; 42 U.S.C. § 2000d to
2000d-7; and state tort law. Id at 13-26.
Plaintiff filed this case in the Northern
District of Georgia. She has since amended
her complaint several times. 2 ECF Nos. 17;
19. The Defendants moved to dismiss on a
variety of grounds. ECF No. 13. The
Plaintiff timely filed her response to the
motion to dismiss, and the parties
subsequently transferred the case to this
Court. ECF No. 23. Per the agreement of
the parties and the previously-granted
permission of the Northern District, Plaintiff
responded only to the threshold issue of the
statute of limitations. ECF No. 16. Both
parties have jointly requested that another
pending motion—the motion for leave to file
a third amended complaint—be held in
abeyance until after this Court rules on
Defendants' statute of limitations defense.
ECF No. 26 at 2.
III.
Defendants moved to dismiss all of
Plaintiff's claims as barred by the statute of
limitations. ECF No. 13. However,
Plaintiff's responsive motion focused
exclusively on her § 1981 claims, ECF No.
2
'Portions of the Background are quoted directly from
ECF No. 26 at 1-2.
ANALYSIS
The parties have agreed that Plaintiffs amendments
do not alter the substantive statute of limitations
analysis. ECF No. 26 at 2.
Though Plaintiff's brief is at times
difficult to follow, her primary rebuttal is
that a federal statute of limitations, 28
U.S.C. § 1658, controls her § 1981 claims.
ECF No. 16 at 1. She appears to concede
that her claim is not a valid renewal action
under Georgia law. Id. at 15 ("If the claims
remaining were diversity claims, and if we
were proceeding under a limitations period
based on a renewal of a prior, validly filed
and served complaint, then Georgia rules of
diligent service . . . would apply."). Her
argument, therefore, solely rests on whether
Georgia's statute of limitations or § 1658
governs her § 1981 claims.
16, and Defendants pointed out that her
briefing appeared to concede that her other
claims were time-barred, ECF No. 20. The
Court therefore briefly addresses the
relevant legal standard, followed by the
statute of limitations applicable to Plaintiff's
§ 1981 claims, and finally the limitations
periods for all other claims.
A. Motion to Dismiss Standard
A claim survives a motion to dismiss if it
alleges sufficient facts to render that claim
plausible. Bell All. Corp. v. Twombly, 550
U.S. 544, 556 (2007). "Factual allegations
must be enough to raise a right to relief
above the speculative level. . . ." Id at 555.
Well-pleaded facts, however, are taken as
true for deciding this motion. E.g. Watts v.
Fla. Intern. Univ., 495 F.3d 1289, 1295
(11th Cir. 2007). "Dismissal under Federal
Rule of Civil Procedure 12(b)(6) on statute
of limitations grounds is appropriate only if
it is apparent from the face of the complaint
that the claim is time-barred." Tello v. Dean
Witter Reynolds, Inc., 410 F.3d 1275, 1288
(11th Cir. 2005) (internal quotations
omitted).
1. § 1658 Application
Congress enacted 28 U.S.C. § 1658 to
alter the statute of limitation analysis that
the Supreme Court had previously
announced for several categories of claims,
including those arising under § 1981. Jones
v. R.R. Donnelley & Sons Co., 541 U.S. 369,
371 (2004). The plain language of § 1658
sets a four-year statute of limitations for
claims "arising under federal statutes
Id.
enacted after December 1, 1990."
Justice Stevens, writing for the Court,
interpreted that language and held that §
1658 governed a claim if the "claim against
the defendant was made possible by a post1990 enactment." Id. at 382.
B. Plaintiff's § 1981 Claims
Plaintiff's various complaints allege that
Defendants violated 42 U.S.C. § 1981 by
intentionally discriminating against her, or
in the alternative by failing to implement
measures preventing discrimination against
her. ECF No. 17-2 at 18-19. Defendants
argue that Georgia state statutes of limitation
control the § 1981 claims, and that those
statutes are either one or two years. ECF
No. 13-1 at 6-7. Defendants further contend
that this action may not travel as a renewal
action under Georgia law. Id. at 8-14.
The Jones Court further confronted the
specific statutory interplay this Court faces
today—when § 1658's time bar applies to
actions brought under 42 U.S.C. § 1981. In
so doing, it noted that its own prior rulings
had interpreted § 1981 as a narrow remedy,
applicable only to a racially-motivated
refusal to contract or to racially-motivated
2
Her amended
ECF No. 1 at 18-20.
complaint makes no further movements
towards specificity. ECF No. 17-2 at 18-20.
The Court must therefore comb the
complaint and attempt to discern the exact
nature of Plaintiff's § 1981 claim.
retaliation designed to prevent a party from
exercising her explicit contractual rights.
Jones, 541 U.S. at 372-73 (citing Patterson
v. McLean Credit Union, 491 U.S. 164
(1989)). The Jones Court noted that
Congress did not agree with the Patterson
Court's earlier, limited reading of § 1981.
In 1991, in response to Patterson, Congress
incorporated "termination of contracts, and
the enjoyment of all benefits, privileges,
terms, and conditions of the contractual
relationship" into the bundle of rights that §
1981 guarantees. Jones, 541 U.S. at 383
(citing 42 U.S.C. § 1981).
a. GSU's Racial Harassment
Plaintiff alleges that four individual
Defendants "alone or in concert with one or
more of the others intentionally
discriminated against Plaintiff on account of
her race" or "failed to implement measures
to prevent discrimination . . . ." Id. at 18.
She claims that individual Defendant Todd
gave white students advantages that he did
not afford Plaintiff, id. at 9, and that he
made disparaging comments about AfricanAmericans, id at 10.
The Jones Court therefore examined
when and how 28 U.S.C. § 1658's
limitations period applied to actions brought
under the post-amendment § 1981.
Applying the "made possible by a post-1990
enactment" test, the Jones Court held that if
a § 1981 claim arose under one of the new,
ancillary contract rights, § 1658's four-year
period was the governing one. Id at 382.
Contrarily, "[a]ctions which were available
prior to the amendments are still subject to a
'borrowed' statute of limitations, which in
Georgia is two years." Palmer v. Stewart
Cnty. Sch. Dist., 215 F. App'x 822, 824
(11th Cir. 2007).
Defendants urge that any racial
harassment was actionable under the preamendment rubric. ECF No. 13 at 6-7.
Plaintiff's brief focuses almost exclusively
on retaliation, but points the Court generally
towards Jones and its articulation of the
divide between pre- and post-amendment
claims. ECFN0. 16 at 3.
For these specific claims, Jones is the
starting point. There, the plaintiffs were
black manufacturing workers—already
under contract with the defendant—who
alleged that their work environment was
hostile and racially charged. 541 U.S. at
371-72. The Jones Court held that "hostile
work environment, wrongful termination,
and failure to transfer claims" were
violations only of the post-amendment
statute and thus fell under § 1658's
limitations period. Id at 383. The Eleventh
Circuit has implemented the Jones holding
2. Plaintiffs § 1981 Claims
As Jones shows, the Court must examine
Plaintiff's specific § 1981 claims and
determine whether they arise under the preamendment or post-amendment
interpretation of § 1981. The Court notes
that the inquiry would be easier were
Plaintiff's § 1981 count more than a shotgun
pleading that sprawlingly reincorporates the
Complaint's prior seventy-three paragraphs.
91
in largely predictable fashion. See, e.g.,
Baker v. Birmingham Bd. of Educ., 531 F.3d
1336, 1337-39 (11th Cir. 2008) (racial
discrimination against already-employed
teacher was post-amendment claim). And
for § 1981 purposes, analysis of a contract
for education is no different than analysis of
a contract for employment or any other
service. Gratz v. Bollinger, 539 U.S. 244,
275 n.23 (2003) ("[W]e have explained that
a contract for educational services is a
'contract' for purposes of § 1981.").
declare these claims time-barred without the
benefit of discovery.
b. GSU's Failure to Admit
Plaintiff further contends that GSU
denied her admission to its graduate
program because of her race, id. at 11-12.
She contends that she also had four years to
file this claim, ECF No. 16 at 13.
Defendants claim that the failure to admit
claim was available under pre-amendment
law and is therefore time-barred.
The core of the pre-amendment § 1981
was the right of racial minorities to create a
new contract unencumbered by their race.
Patterson, 491 U.S. at 176-78. And
Plaintiff's desired graduate admission was a
(potential) new contract. 3 If Defendants
really conspired to deny her that new
contract on the basis of her race, they denied
her the "formation of a contract. . . ." Id. at
176. This wrong had a remedy before the
1991 amendment, and therefore, the Court
applies the two-year Georgia limitations
period as opposed to the four-year period of
28 U.S.C. § 1658.
Given these starting points, it seems
relatively clear that 28 U.S.C. § 1658's
limitations period applies to Plaintiff's
claims that GSU racially harassed her during
the course of her 'contract' as a student. Her
claims do not arise from the formation of a
contract—rather, they allege that GSU
instructors behaved improperly once she
was already under that contract. It took the
1991 amendment, and Jones's interpretation
of it, to render post-contract employer
malfeasance cognizable under § 1981. Cf
Patterson, 491 U.S. at 176-77 (holding that
pre-amendment cause of action did not
address "conduct by the employer after the
contract relation has been established. . .
§ 1658's four-year time bar applies to these
claims.
The latest date for which Plaintiff
articulates an act underpinning this claim is
February 10, 2010. ECF No. 16 at 14. She
filed her complaint two years and ten
months later. Any claim arising from
GSU's failure to admit her into its graduate
program is time-barred.
Of course, the Court must still apply that
four-year time bar. Plaintiff filed her
complaint on December 7, 2012. ECF No.
1. Her studies under Defendant Todd
spanned the Fall 2008 semester. ECF No.
17-2 at 8. Because she alleges an ongoing
series of harassment, and because the Fall
2008 semester likely would have extended
past Dec. 7, 2008, the Court declines to
c. Retaliation
Plaintiff does not allege that her contract for
undergraduate coursework at GSU included
admission or presumptive admission into the Masters
of Science, Sports Management program, nor does
anything in her pleadings dispel the general
assumption that undergraduate and graduate study are
separate endeavors. See generally ECF No. 17-2.
.i
!
Plaintiff has also attempted to plead a
retaliation claim under § 1981. See ECF No.
17-2 at 13; see also ECF No. 20 at 4-5
(conceding Plaintiff attempted to plead such
a claim). The entire basis for the retaliation
claim seems to be the Complaint's 65th
paragraph, alleging that in "retaliation and in
further evidence of discrimination,
Defendants also misrepresented to the
[Office of Civil Rights] that Plaintiff was
'unruly." ECF No. 17-2 at 13.
ability to enforce through legal process his
or her established contract rights." Id at
177-78 (emphasis added). And Jones
establishes that racial discrimination against
a party after consummation of a contract
was not a viable pre-amendment claim under
§ 1981. 541 U.S. at 383. Given that
Plaintiff alleges that Defendants' negative
report to the Office of Civil Rights ("OCR")
was, at least partially, retaliation for her
raising claims about her racial harassment
while studying at GSU, the Court cannot say
that it falls squarely within Patterson's
ambit of cognizable pre-amendment claims.
Therefore, 28 U.S.C. § 1658's four-year
limitations period applies.
Defendants urge that the Court should
view this misrepresentation as an "attempt to
obstruct a nonjudicial method of
adjudicating [a] dispute" and maintains that
such a claim was available pre-amendment.
ECF No. 20 at 9. Plaintiff asserts that
Defendants' interpretation is far too broad,
ECF No. 16 at 1-12, though she admits that
Patterson preserved some retaliation claims.
Id. at 4.
Plaintiff sparred with the OCR
throughout 2009, and Defendants' adverse
report would presumably have come within
that time. ECF No. 16 at 13. Any date
within that year would fall within the
limitations period. Therefore, the statute of
limitations does not bar Plaintiff's retaliation
claim.
First, the Court rejects Plaintiff's
implication that it may only examine other
cases that dealt with retaliation in an
academic context. Id at 5. 42 U.S.C. §
1981 deals with contracts generally, of
which contracts for education are only a
small subset.
C. Plaintiff's Other Claims
Plaintiff's other claims represent a
diverse and exhaustive collection of both
federal and state causes of action. ECF No.
17-2 at 13-26. She alleges discrimination
under 42 U.S.C. §§ 1983, 1985, 1986, and
1988; Title IX sex discrimination, Title VI
race discrimination, and state law tort
claims. Id.
Defendants skillfully argue that under
Patterson, § 1981 "cover[ed] wholly private
efforts to impede access to the courts or
obstruct nonjudicial methods of adjudicating
disputes about the force of binding
obligations, as well as discrimination. . .
491 U.S. at 177 (emphasis in original). But
the Patterson Court subsequently noted that
the "right to enforce contracts does not,
however, extend beyond conduct by an
employer which impairs an employee's
But it is not necessary to decide whether
these claims were filed within their proper
statute of limitations. Plaintiff has failed to
brief or argue that any claim besides that
brought under § 1981 was timely filed. See
ECF No. 16 (briefly mentioning "refiled
5
that Defendants violated Plaintiff's 42
U.S.C. § 1981 rights by denying her
admission to GSU's graduate program is
DISMISSED WITH PREJUDICE.
Plaintiff's remaining claims under § 1981
may proceed.
federal claims" but mentioning none of the
foregoing theories by name). If Plaintiff has
not addressed those claims, they are deemed
abandoned. See, e.g., Coal. for the Abolition
of Marijuana Prohibition v. City of Atlanta,
219 F.3d 1301, 1326 (11th Cir. 2000)
(acknowledging that failure to brief and
argue claim in Eleventh Circuit renders it
abandoned).
ThiQay of March 2014.
Further, because Defendants timely
noted that failure to brief—and based their
responsive strategy on it—the Court will not
simply gloss over Plaintiff's lack of
argument. Cf Neville v. Classic Gardens,
141 F. Supp. 2d 1377, 1380 (S.D. Ga. 2001)
(noting Court's readiness to deem
abandoned argument which is not explicitly
incorporated into 12(b)(6) response but
addressing merits because neither party
raised issue).
1. AVANT EDENFIELD, JUDJ E
UNITED STATES DISTR1COURT
SOUTHERN DISTRICT OFJ(JEORGIA
The claims not based on § 1981 are
dismissed without prejudice.
IV.
CONCLUSION
The Court has taken up a narrow issue
today: whether state or federal statutes of
limitation bar Plaintiff's claims. Though the
Court has allowed some claims to proceed, it
hastens to add that it has only determined
whether these claims are within their
window of viability. No litigant—or any
third party, for that matter—should mistake
this order for an assertion that Plaintiff's
claims necessarily carry their general
pleading burden under Federal Rule of Civil
Procedure 8(a).
Nevertheless, the Court can only decide
the motion before it. Counts I, III, IV, V.
VI,
are
DISMISSED WITHOUT
PREJUDICE. Within Count II, any claim
In
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