Case 5:21-cv-00148-MTT Document 70 Filed 04/15/22 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

eCBI WARNER, LLC, et al., )

)
Plaintiffs, )
) CIVIL ACTION
v. )
) FILE NO. 5:21-CV-148-MTT
THOMAS RANDALL TOMS, et al., )
)
Defendants. )
)

DEFENDANT TOMS’ REPLY TO PLAINTIFFS’ RESPONSE TO SHOW CAUSE ORDER

AND HIS SUPPLEMENTAL MOTION TO DISMISS [DOC. 67]

COMES NOW, Defendant Thomas Randall Toms (“Toms”), in his individual capacity, files

this brief in response to Plaintiffs’ Response to the Court’s Show Cause Order and Defendant Tom’s

Supplemental Motion to Dismiss. For the reasons set forth herein, Toms respectfully requests the

Court grant his motion to dismiss this action.

I. Reply to Plaintiffs’ Response to the Show Cause Order.

On January 26, 2022, Toms filed his supplemental motion to dismiss Plaintiffs’ Recast

Complaint. Plaintiffs failed to respond to the motion by February 16, 2022. On March 2, 2022, Toms

filed a brief with the Court alerting the Court of the fact Plaintiffs failed to respond to the motion and

he was entitled to dismissal. Again, the Plaintiffs failed to respond or take any action to rectify their

alleged oversight. On March 29, 2022, the Court issued a show cause order directing the Plaintiffs to

show why their complaint should not be dismissed with prejudice. Plaintiffs filed their response on

April 1, 2022.

The Plaintiffs response to the Court directing them to show cause for why Toms is not entitled

to the dismissal of this action should be found unpersuasive considering the procedural history. In

short, Plaintiffs request the Court excuse their failure to respond on three grounds: (1) an error on the
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part of Ms. Vicky D. Dracos, a paralegal with plaintiffs’ counsel’s firm, to calendar the deadline, (2)

they have acted in good faith, and (3) and they are taking steps within their own office to avoid similar

mistakes in the future.

Respectfully, Plaintiffs’ excuse that Ms. Dracos failed to calendar Defendants

Councilmembers’ and Tom’s Supplemental Motion to Dismiss should be deemed unpersuasive based

on the procedural history of this case. First and foremost, Plaintiffs have not one, not two, but four

attorneys from three different law firms listed in the signature block of all pleadings in this action.

Based on the e-file notification, a notice of filing was sent to 11 different individuals involved in the

representation of the Plaintiffs. Essentially, the Plaintiffs are requesting the Court find that not one

of those 11 individuals recognized that Toms and the Councilmembers filed a Supplemental Motion

to Dismiss despite the Court expressly alerting them to there being three motions filed and the history

of these defendants all filing separate pleadings (City and Defendant Mulkey, Toms, and the

Councilmembers). Specifically, the Court’s order [Doc. 62] identified the three briefs [Docs. 59, 60

and 61] as needing a response by the Plaintiffs. The Court should presume the Plaintiffs had full

knowledge of the three briefs and simply choose to disregard responding to Toms’ defenses.

More importantly, Plaintiffs filed their response to the City and Mulkey’s Supplemental

Motion to Dismiss on February 16, 2022. This means 41 days elapsed from the deadline until the

Court’s order to show cause. Twenty-seven of those days elapsed after Toms filed his pleading

notifying the Court that the Plaintiffs failed to respond to his motion. Thus, with full knowledge of

their failure to respond to the motion as of March 2, 2022, Plaintiffs took no steps to rectify their error.

The Plaintiffs did not file a response until April 1, 2022, as directed by the Court. Arguably, Plaintiffs

would not have taken any steps but for the Court ordering them to show cause. This indicates a clear

delay and failure to prosecute. The Court should not be required to force Plaintiffs to litigate their

own case.

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Second, the record establishes a clear record of delay by Plaintiffs. While the Plaintiffs seek

to use their newly found enlightenment of dismissing the official capacity claims as evidence of good

faith, they had ample opportunity to have dismiss the official capacity claims at the outset. Since June

2021, the Plaintiffs had complete knowledge of the claims and binding precedent that the official

capacity claims against the governmental officials should never have been brought or should have

been summarily dismissed upon the service of governmental entity, the City of Warner Robins. In

fact, the argument was raised in the Defendants’ briefs and the Plaintiffs failed to respond. Instead,

they pressed forward by arguing a lack of qualified immunity-which is entirely irrelevant. As

addressed in the briefs, the case law on this issue is firmly established—an official capacity suit is a

suit against the governmental entity the official represents and, if the governmental entity is named

and can defend itself, the official should not be made a party to suit. Thus, doing what should have

never been done in the first place is a far cry from acting in good faith and is clear evidence of delay.

There is just one reason for taking this course of action-the Plaintiffs want their pound of flesh by

trying to keep as many individuals as possible a party to this case when it clearly is a contractual

dispute between the City and the corporate Plaintiffs. Or in other words, they are simply trying to

embarrass, harass, and prejudice Toms in expending time and resources when the true party at issue

is the City of Warner Robins.

Lastly, Plaintiffs claim they have taken internal steps to avoid a similar situation in the future.

Again, if notice to 11 different individuals failed to prevent this oversight and a pleading filed with

the Court informing the Plaintiffs of their failure to respond did not result in the Plaintiffs taking

immediate action to correct the error, it is hard to believe the corrective steps have been taken. Instead,

they have asked the Court to take their word for it. Admittedly, Toms has no insight into the operation

of Plaintiffs’ counsel’s firm; however, it is clear the statement is a self-serving, unverifiable assertion

which should not be found to be persuasive.

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For these reasons, Toms respectfully request the Court find that the Plaintiffs have not shown

cause for why Toms’ motion should not be granted as being unopposed and conclude the law cited by

Toms in support of his motion warrants the dismissal of this action.

II. Reply to Plaintiff’s Response to Defendant Toms’ Supplemental Motion to

Dismiss.

Toms is entitled to dismissal of this action in his individual capacity as a matter of law.

Plaintiffs’ response brief fails to set forth viable claims against Toms because the individual Plaintiffs

lack standing, Toms was not a party to the contract, and Toms is entitled to qualified immunity.

A. Plaintiff’s lack standing to bring claims against Toms.

The individual Plaintiffs have failed to establish that they have standing to challenge an alleged

breach of contract made by the City and two corporate entities eCBI and A2D. It is undisputed Toms

did not contract with any of the individual plaintiffs in his personal capacity nor did Toms serve as

any sort of guarantor. Thus, like the individual Plaintiffs, Toms is not a party to the contract.

As discussed before, Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470 (2006) forecloses this

claim. It is undisputed that all of the Plaintiffs’ rights originate from the agreements entered into by

the City, the Development Authority, eCBI and A2D. In McDonald, the United States Supreme Court

held a plaintiff cannot state a § 1983 claim unless he has, or would have, rights under existing, or

proposed, contract that he wishes “to make and enforce” and the plaintiff must identify injuries from

a racially motivated breach of their own contractual relationship, not someone else’s. The individual

Plaintiffs are officers of A2D and eCBI and their argument makes the same mistake as the owner in

McDonald which is that he has an interest in the performance of the contract. Instead, Supreme Court

stated, “it is a fundamental corporation and agency law—indeed, it can be said to be the whole purpose

of corporation and agency law—that a shareholder and contracting officer of a corporation has no

rights and is exposed to no liability under the corporation’s contracts.” Id. at 1250. Lastly, the

Supreme Court stated:

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The most important response, however, is that nothing in the text of § 1981 suggests
that it was meant to provide an omnibus remedy for all racial injustice. If so, it would
not have been limited to situations involving contracts. Trying to make it a cure-all not
only goes beyond any expression of congressional intent but would produce satellite §
1981 litigation of immense scope. McDonald's theory would permit class actions by
all the minority employees of the nonbreaching party to a broken contract (or, for that
matter, minority employees of any company failing to receive a contract award),
alleging that the reason for the breach (or for the refusal to contract) was racial animus
against them.

Id. The individual Plaintiffs are attempting to do the same. However, binding precedent does not

support such an expansion of the litigation under § 1981.

B. Toms is not personally liable for the City’s alleged breach of contract.

Plaintiffs mischaracterize an introductory paragraph setting forth various arguments as to why

Toms is not personally liable. Particularly, Toms has established that under Georgia law, O.C.G.A.

§ 10-6-88, which has not been challenged by the Plaintiffs, he cannot be held personally liable for any

breach of contract by the City. This is important, because all of Plaintiffs’ arguments hinge on the

notion Defendant Toms was a party to the contract or had a duty to ensure the contracts were

completed. No such duty has ever been imposed on a third person not in privity of contract. Plaintiffs

attempt to set forth a claim for supervisory liability fails as a matter of law.

For the Plaintiffs to argue it is not a breach of contract matter is disingenuous. Plaintiffs

alleged that Toms “completely reneged on the contraction agreements with Plaintiffs and he assumed

all power and control over the inground-fibers and conduit.” Doc. 67, p. 14. This position is clearly

unsupported by the facts. To renege on a contract, one must first be a party to the contract. Without

privity, Toms owed no duty to the Plaintiffs to ensure a contract is completed. Moreover, Toms could

not exercise control over the conduit or fibers because it was in the City’s property. The Plaintiffs

were required to seek the City’s permission which it could have done by speaking to the City Council.

Respectfully, the Plaintiffs want the Court to review the various agreements because they

believe it establishes their property interest. But they cannot point to any written provision stating
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what they could install in the right of way apart from conduit and fibers the City and Authority

authorized and paid for. What may have been missed is any provisions in the agreements which state

the Plaintiffs were granted permission to install their own fibers or conduit that were not a part of

what the City and Authority were purchasing. If the agreements contained such a provision, the

Plaintiffs would have pointed it out and, arguably, the Recast Complaint would not be 71 pages long

with 181 paragraphs. Thus, to the extent the Plaintiffs are claiming ownership, the question comes

down to what authority were they allowed to install additional lines on City owned property.

The Plaintiffs contend this is not a straightforward breach of contract case; however, they are

seeking to hold Toms liable for executing the contracts. Toms has never in his individual capacity

claimed ownership of the lines as his own. He has always maintained the City’s position that the City

owned the fibers and conduit installed pursuant to the agreements entered in to by the City. Plaintiffs

are simply trying to hold an agent liable for stating the principle’s position as to ownership. By being

an agent for a disclosed principle, Plaintiffs having full knowledge that they were not contracting with

Toms himself but with the City, and the City affirming Toms’ statement that the City owned the lines

is its stated position, there is no means to establish Toms claimed an ownership interest in the property.

If the Court allows this case to move forward and were to hold Toms personally liable, the Court

would be rewriting fundamental principles of agency law.

Moreover, to hold Toms liable for allegedly instructing Mulkey to withhold the permits, they

must establish supervisor liability, which they have failed to do. This is because Toms was not a final

decision maker for supervisor liability to attach. In assessing whether a governmental decision maker

is “final policy maker” for § 1983 purposes, Courts looks to whether there is actual opportunity for

meaningful review. See Holloman ex rel. v. Holloman v. Harland, 370 F.3d 1252, 1293 (11th Cir.

2004). Toms was not a final policy maker because his determination could be reviewed by the City

Council, a fact which is pointed out by the Plaintiffs in their own argument in their Response to the

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City’s Supplemental Motion to Dismiss. See Pls.’ Resp. [Doc. 63], p. 6. Even City agrees with this

position. See Doc. 64, pp. 3. Thus, there can be no dispute on this issue that Toms was not final

policy maker that denied the issuance of the requested ROW permits.

Lastly, Plaintiffs cannot establish a proper comparator for which a claim of discrimination

must rest upon. The issue is Hargray is not similarly situated to the Plaintiffs. For example, Plaintiffs

have not established an ongoing dispute between Hargray and the City or Hargray making a claim of

fibers and conduit paid for by the City. As addressed in Douglas Asphalt Co. v. Qore, Inc., 541 F.3d

1269 (11th Cir. 2008), there is no similar comparator when there is prior history between the parties

which the comparator who is believed to have been treated more favorably lacks. Here, the record

before the Court clearly establishes legitimate business reasons for why an agency would look for a

new supplier. These factual allegations were not responded to by the Plaintiffs whatsoever in their

response. See Doc. 60, pp. 6-7. In fact, Plaintiffs fail to address Douglas Asphalt at all.

Because the Plaintiffs have failed to set forth a prima facie cause of action, Toms is entitled to

the dismissal of this action.

C. Toms is entitled to qualified immunity.

Toms is entitled to qualified immunity for two reasons. First, Plaintiffs cannot establish a

constitutional violation. Under these circumstances, any alleged deprivation of property is based

entirely on contract and does not equate to a violation of the Plaintiffs’ rights. See Medical Laundry

Services, a Div. of OPLCO, Inc. v. Board of Trustees of University of Alabama, 906 F.2d 571, 573

(11th Cir. 1990)(holding “a simple breach of contract does not rise to the level of a constitutional

deprivation”); WESI, LLC v. Compass Environmental, Inc., 509 F. Supp. 2d 1353, 1362 (N.D. Ga.

2007)(“Georgia law unequivocally holds that a claimant may not assert a claim for conversion based

solely upon a breach of contract.”). It is important to point out that while the Plaintiffs’ have

withdrawn their breach of contract claim in this forum, they have recently amended their complaint

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in the State Court action to breach of contract action. Since the ownership of the fiberoptic lines is

based entirely on the interpretation of the agreements, this matter is simply one of breach of contract.

Second, Toms is entitled to qualified immunity if he did not violate clearly established law.

Plaintiffs contend they have “the constitutional right to equal protection and property rights.” Doc.

67, P. 11. However, they have provided no analysis or precedent that would have placed Toms on

notice his conduct clearly violated the constitution. Based on the facts alleged in their own pleadings,

Plaintiffs cannot establish that every reasonable public official would have understood that he was

violating the law when he asserted the City’s position that it owned materials it paid, and which were

installed in property own by the City.

Because there is no dispute Toms was acting within the scope of his discretionary authority,

the Plaintiffs have the burden of establishing a clearly established right. Gates v. Khokhar, 884 F.3d

1290 (11th Cir. 2018). A clearly established right, for qualified immunity purposes, is established in

one of three ways: (1) case law with indistinguishable facts clearly establishes the constitutional right,

(2) a broad statement of principle within the Constitution, statute, or case law that clearly establishes

a constitutional right, or (3) conduct so egregious that a constitutional right was clearly violated, even

in the total absence of case law.” Hill v. Cundiff, 797 F.3d 948, 979 (11th Cir. 2015).

Plaintiffs have presented no case law on all fours which has held similar conduct as being

unconstitutional. In fact, they have presented no analogous cases whatsoever to establish a

constitutional violation under like circumstances. Thus, the Plaintiffs cannot meet the first approach.

Plaintiffs cannot meet the second approach because not every objectively reasonable

government official facing the circumstances would know that the officials conduct violated federal

law when the official acted. See Id. As discussed in his brief, there is no clear evidence of racial

animus towards the Plaintiffs. Apart from the dispute, Plaintiffs were paid for the services not in

dispute. Moreover, Plaintiffs have no constitutional right to invade another person’s land without

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permission. Plaintiffs have presented no clear contractual provision authorizing them to install their

own fibers and conduit on the City’s property in addition to those paid for by the City or Authority.

Thus, based on the various issues of this case such as a Plaintiffs’ breach of contract, prior poor

workmanship, and other issues, it should not hold that a generalized claim of a constitutional right is

sufficient to establish a constitutional violation under these circumstances because it the right is not

universally held as being firmly establish, such as an arrest without probable cause.

The third means of establishing a clearly established right is not met because the conduct was

not so egregious that a constitutional right was clearly violated. Plaintiffs’ pleadings highlight at

worse mixed motives. More importantly, a government official scrutinizing a contract or looking for

a better provider of services is not an act so egregious that would clearly violate the constitution.

Contrary to Plaintiffs’ contention that “to determine whether qualified immunity should

protect Toms, the Court must examine his knowledge and understanding of the law,” Toms’

understanding is irrelevant because the terms of the contract control. See Doc. 67, p. 10. Plaintiff

have not provided any contractual language which they contend is ambiguous. Parol evidence, such

as Toms’ knowledge, is inadmissible to add to, take from, or vary a written contract. See Ungerleider

v. Gordan, 214 f.3d 1279, 1284 (11th Cir. 2000); O.C.G.A. § 13-2-2.

The alleged racial discrimination is not the cause of this dispute. Plaintiffs’ reliance on the

various affidavits is misplaced. The witness affidavits are conflicting, offer mixed motives for the

alleged breach of contract not based on race, discuss entirely distinguishable situations which fail to

create a common comparator, and are purely speculative and conclusory. Plaintiffs contends the

affidavits support their position, but a fair reading of them highlight their infirmity. As pointed out in

the supplemental motion, the affidavits discuss irrelevant matters relating to employment issues, offer

only speculative, subjective beliefs which are unsupported by any meaningful facts, and mixed

motives on the part of Defendant Toms.

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Moreover, Plaintiffs do not address the argument regarding legislative immunity which

expressly forbids the examination of a legislator’s motives for acting. Doc. 60, p. 7-8. Toms’

rationale for taking any legislative action such suggesting the rebidding of a contract or stating the

City’s position on a subject should be held protected by legislative immunity.

The Plaintiffs are attempting to use this proceeding to exert undue pressure on current and

former city officials to give Plaintiffs gains they are not entitled to. The entire purpose of bringing a

racial discrimination component to a breach of contract action is to embarrass, harass, and besmirch

Toms’ reputation. Respectfully, the Court should not give them license to do so when no reasonable

jury could find based on the allegations contained in the record Toms acted with racial animus or

when there was no clearly established law that placed Toms on notice that (1) as a mayor taking a

position the City owned certain property installed in its right of way and paid for by the City in

accordance with the terms of a contract violated a person’s constitutional rights; or (2) that he violated

a person’s constitutional rights because he allegedly instructed the withholding of a permit to access

the City’s right of way by a contractor that was in an active legal dispute regarding ownership of the

property he sought to access.

CONCLUSION

For the reasons set forth above, and all matters of record, these Defendants respectfully request

the Court grant Defendant Toms’ motion to dismiss this action for failure to state a claim.

This 15th day of April, 2022.

BENNETT LAW OFFICE, LLC

/s/ Matthew H. Bennett

1012 Memorial Drive, Suite 13 MATTHEW H. BENNETT
Griffin, Georgia 30223 Georgia Bar No. 123408
Phone: (678) 688-3554 Attorney for Defendants Charlie Bibb, Larry
Facsimile: (678) 688-3555 Curtis, Clifford Holmes, Keith Lauritsen, and
Email: [email protected] Kevin Lashley

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CERTIFICATE OF SERVICE

I certify that I have this day filed a copy of the foregoing DEFENDANT TOMS’

REPLY TO PLAINTIFFS’ RESPONSE TO SHOW CAUSE AND RESPONSE TO HIS

SUPPLEMENTAL MOTION TO DISMISS with the Clerk of Court using the CM/ECF

system, which will automatically send notification of such filing to counsel of record, and I

further certify that I have served a copy of this document, including any attachments, by United

States Postal Service to any non-CM/ECF participants as indicated below:

Robert D. Cheeley I. Stewart Duggan

[email protected] [email protected]
Gabrielle M. Holland John M. Hawkins
[email protected] [email protected]
Michael J. Bowers Sarah C. Martin
[email protected] [email protected]
Preston L. Haliburton Counsel for Defendants City of Warner Robins
[email protected] and Bill Mulkey
Counsel for Plaintiffs

This 15th day of April, 2022.

/s/Matthew H. Bennett
Matthew H. Bennett
Georgia Bar No. 123408

BENNETT LAW OFFICE, LLC Attorney for Defendants Thomas Randall

1012 Memorial Drive, Suite 13 Toms, Charlie Bibb, Larry Curtis, Clifford
Griffin, Georgia 30224 Holmes, Keith Lauritsen, and Kevin Lashley
T: (678) 688-3554 F: (678) 688-3555
Email: [email protected]