Case 2:23-cv-00146-KFP Document 17 Filed 05/17/23 Page 1 of 16

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISISON

ERNEST N. FINLEY, JR., )

)
Plaintiff, )
)
v. ) CIVIL ACTION NO.: 2:23-CV-00146-KFP
)
CITY OF MONTGOMERY and )
MAYOR STEVEN L. REED, )
)
Defendants. )

MOTION TO DISMISS PURSUANT TO RULE 12(b)(6),

FEDERAL RULES OF CIVIL PROCEDURE

COMES NOW, the City of Montgomery and Mayor Steven L. Reed, by and through their

attorneys of record, R. Randolph Neeley and Karen S. Rodgers, and respectfully request the Counts

I – VI of the complaint filed in the above-styled cause be dismissed pursuant to Rule 12(b)(6),

FED. R. CIV. P., and as grounds state as follows:

I. THE COMPLAINT

The complaint alleges eight (8) separate causes of action against the City of Montgomery

(“the City”) and or Mayor Steven L. Reed (“Mayor Reed”): Count I charges the City and Mayor

Reed acted with a prohibited racial animus and retaliatory intent in violation of Title VII 1 and 42

U.S.C. § 1981 when Plaintiff resigned his position as Chief of Police; Count II alleges the City

and Mayor Reed subjected Plaintiff to a hostile work environment and retaliated against him when

he allegedly objected to intentional race discrimination proposed and or condoned by the City and

Mayor Reed, in violation of Title VII 2 and 42 U.S.C. § 1981; Count III charges the City and Mayor

1
Specifically, Title 42 U.S.C. §§ 2000e-2(a)(1) and 2000e-3(a)
2
Specifically, Title 42 U.S.C. § 2000e-3(a)
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Reed retaliated against Plaintiff for his exercise of his First Amendment freedom of speech rights,

in violation of 42 U.S.C. § 1983; Count IV submits the City violated Plaintiff’s Fourteenth

Amendment substantive due process rights when Plaintiff resigned his position as Chief of Police

in June 2021 3, in violation of 42 U.S.C. § 1983; and Count V alleges the City and Mayor Reed

willfully conspired to deprive Plaintiff of his First Amendment rights of free speech, in violation

of 42 U.S.C. § 1985.

Counts VI, VII and VIII allege various state law claims. More particularly, Count VI

submits the City and Mayor Reed, in their individual capacities, engaged in a civil conspiracy to

deprive Plaintiff of an alleged property interest in his employment and to retaliate against him for

the exercise of his “federally protected right to speak out on matters of public concern.” (Doc. 1,

¶ 92). Count VII claims the City and Mayor Reed committed intentional slander and libel when

they published statements regarding the findings of the Alabama Ethics Commission that Plaintiff

had committed a minor violation of the Alabama Ethics Act. Finally, Count VIII submits,

alternatively, that the same statements were negligently published.

In support of his claims Plaintiff sets forth 35 “factual averments” which he in turn, adopts

and realleges as factual support as to each of the 8 counts of the complaint. (Doc. 1, ¶¶ 12 – 37).

In essence he asserts in these 35 factual averments that he is a black male over the age of 40 who

was hired as the City’s Police Chief in 2015 and served in that role until June 2021. (Doc. 1, ¶¶

12, 14).

II. THE APPLICABLE STANDARDS

A) Rules 8(a)(2) and 12(b)(6), FED. R. CIV. P.

Federal Rule of Civil Procedure 8(a)(2) requires a complaint to contain “a short and plain

3
See, Complaint (Doc. 1, ¶14).
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statement of the claim showing that the pleader is entitled to relief.” “[T]he pleading standard Rule

8 announces does not require ‘detailed factual allegations,’ but it demands more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal (2009), quoting,

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A pleading that offers ‘labels and

conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Id.

(quoting Twombly, 550 U.S. at 555). "Nor does a complaint suffice if it tenders ‘naked assertion[s]’

devoid of ‘further factual enhancement.’” Id. Quoting, Twombly, 550 U.S. at 557).

“A Rule 12(b)(6) motion tests the legal sufficiency of the complaint.” Smiley v. Ala. DOT,

778 F. Supp. 2d 1283, 1292 (M.D. Ala 2011). When the Court considers a motion to dismiss, it

accepts the well-pleaded facts in the complaint as true. Id. at 1260. However, the Court is “not

bound to accept as true a legal conclusion couched as a factual allegation[.]” Iqbal, 556 U.S. at

678, 129 S. Ct. at 1950. Moreover, “unwarranted deductions of fact in a complaint are not admitted

as true for the purpose of testing the sufficiency of [plaintiff's] allegations.” Sinaltraina v. Coca-

Cola Co., 578 F.3d at 1268 (citing Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242,

1248 (11th Cir. 2005)). That is, “[t]he rule ‘does not impose a probability requirement at the

pleading stage,’ but instead ‘'simply calls for enough fact to raise a reasonable expectation that

discovery will reveal evidence of the necessary element.” Watts v. Fla. Int'l Univ., 495 F.3d 1289,

1295-96 (11th Cir. 2007) (quoting Twombly, 550 U.S. at 545).

“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.’” Id. (quoting Twombly, 550

U.S. at 570). For a claim to have facial plausibility, the plaintiff must plead factual content that

“allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1261 (11th Cir. 2009) (quotations omitted),

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abrogated on other grounds by Mohamad v. Palestinian Auth., 566 U.S. 449 (2012). Plausibility

does not require probability, “but it asks for more than a sheer possibility that a defendant has

acted unlawfully.” Iqbal, 556 U.S. at 678. “Where a complaint pleads facts that are ‘merely

consistent with’ a defendant's liability, it 'stops short of the line between possibility and plausibility

of “entitlement to relief.” Id., quoting Twombly, 550 U.S. at 557). Additionally, a complaint is

sufficient only if it gives “fair notice of what the . . . claim is and the grounds upon which it rests.”

Sinaltrainal, 578 F.3d at 1268 (quotation omitted).

III. ARGUMENTS AND CITATIONS OF AUTHORITY

A) Counts I and II, to the degree they assert claims under Title VII, are due to be
dismissed for Plaintiff’s failure to satisfy all conditions precedent to the filing of
his EEOC charge of discrimination and failure to timely exhaust his
administrative remedies.

1. Counts I, and II, to the degree they assert claims under Title VII, are
due to be dismissed where Plaintiff has failed to verify his EEOC
Charge, as required by 42.U.S.C. § 2000e-5(b), prior to the issuance of
the Notice of the Right to Sue letter rendering the filing of a suit
procedurally defective for the purposes of Title VII.

On January 31, 2022, Plaintiff Finley filed a Charge of Discrimination with the Equal

Opportunity Commission (“EEOC”) to complain of race and age discrimination, as well as,

retaliation. (Doc. 1-4). As it relates to the prohibitions enforced by Title VII, Plaintiff stated

Defendants did not approve of Plaintiff’s efforts to equitably enforce the Civil Rights Laws of the

United States, as it related to hiring, promoting and discipling employees. (Id., p. 4). Further,

Plaintiff stated that he believed he had been subjected to retaliation based on his objection to

intentional race discrimination by the Mayor and the City of Montgomery. (Id).

Plaintiff filed his Charge with the EEOC and signed on January 31, 2022, stating that he

would cooperate fully with the EEOC in processing his Charge. Plaintiff, however, failed to swear

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and affirm under oath to his charge. (Doc. 1-4, p. 2). Additionally, Plaintiff’s statement in support

of his complaint was not sworn to in the presence of a notary. (Doc. 1-4, pp. 4-5).

Defendants, therefore, assert that all of the conditions precedent to suit under Title VII have

not been met because Plaintiff did not verify his EEOC charge as required by 42 U.S.C. § 2000e-

5(b) ("Charges shall be in writing under oath or affirmation and shall contain such information and

be in such form as the Commission requires"). It is the Plaintiff’s burden to produce evidence that

all conditions precedent to suit are satisfied. Jackson v. Seaboard Coast Line R.R. Co., 678 F.2d

992, 1010 (11th Cir. 1982) (In a Title VII case, the plaintiff bears the burden of proof that all

procedural requirements are satisfied). Vason v. City of Montgomery, 86 F. Supp. 2d 1130, 2000

U.S. Dist. LEXIS 3052, 84 Fair Empl. Prac. Cas. (BNA) 1565, (2000).

In Vason, the District Court cited several cases from other circuits on point. See Balazs v.

Liebenthal, 32 F.3d 151 (4th Cir. 1994); Hodges v. Northwest Airlines, Inc., 990 F.2d 1030 (8th Cir.

1993); Choate v. Caterpillar Tractor Co., 402 F.2d 357 (7th Cir. 1968); Kuper v. Colonial Penn

Insur. Co., 1999 U.S. Dist. LEXIS 7179, No. CV. 99-172, 1999 WL 317077 (E.D. Pa. May 18,

(1999) (dicta); Danley v. Book-of-the-Month Club, Inc., 921 F. Supp. 1352 (M.D. Pa.

1996), aff'd, 107 F.3d 861 (3rd Cir, 1997) (table); Bacon v. Allstate Insurance Co., 1995 U.S. Dist.

LEXIS 8168, No. 93-1701, 1995 WL 360736 (N.D. Ill. June 14, 1995); EEOC v. Calumet

Photographic, Inc., 687 F. Supp. 1249 (N.D. Ill. 1988), (dicta). Id. These cases held that a plaintiff

may not maintain a Title VII claim where his or her EEOC charge was not verified prior to the

EEOC's issuance of a right to sue letter. Id. Section 2000e-5(b) plainly requires that EEOC charges

be verified. Plaintiff’s failure to comply with this clear requirement amounts to a failure to meet

a condition precedent to suit under Title VII, thus his claims under Title VII are due to be and

should be dismissed.

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2. Counts I, and II, to the degree they assert claims under Title VII, are
due to be dismissed for Plaintiff’s failure to timely exhaust his
administrative remedies.

Before a court may hear a Title VII lawsuit, an aggrieved employee, such as Plaintiff, must

(1) file a charge of discrimination with the EEOC within 180 days of the alleged act(s) of

discrimination and then must (2) timely institute a lawsuit within ninety days after receiving a

right-to-sue letter. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798 (1973); see

also Kerr v. McDonald's Corp., 427 F.3d 947 (11th Cir. 2005). Defendant City alleges that

Plaintiff’ Charge of Discrimination was untimely filed.

On January 31, 2022, Plaintiff filed a Charge of Discrimination with the United States

Equal Employment Opportunity Commission, alleging discrimination and retaliation. (Doc. 1-

4,). Then, on December 16, 2022, the EEOC issued a Notice of Right to Sue. (Doc. 1-5 and DX

1, Notice of Right to Sue Letter 4). Plaintiff filed his federal Complaint in the United States District

Court (Middle District) on March 23, 2023.

First, it is important to note that an EEOC Charge of Discrimination must be filed within

180 days of the alleged violation. Plaintiff resigned his position with the City of Montgomery on

June 8, 2021, effective July 8, 2021. (Doc. 1-4. Pg.4, Doc. 1, Pg.4), see also; DX 2, Resignation

Letter & Form 10. 5 There were 207 days from July 8, 2021, the effective resignation date, to

January 31, 2022, the filing of the EEOC Charge of Discrimination. Thus, Plaintiff’s EEOC

Charge of Discrimination was not filed in a timely manner.

4
Defendant’s Exhibit 1 provides a clear version of the Notice of Right to Sue, issued on
December 16, 2022 by the United States Equal Opportunity Commission as opposed to the copy
presented by Plaintiff in Doc. 1-5, pg.2.
5
Defendant’s Exhibit 2 provides a clear version of the dates reflecting the Resignation
letter and effective dates of said resignation as opposed to the month and year.
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An employee must exhaust administrative remedies before filing a complaint of

discrimination under Title VII of the Civil Rights Act, 42 U.S.C.S. § 2000e et seq. The first step

down the path to exhaustion is filing a timely charge of discrimination with the EEOC. If the

Commission determines after an investigation that there is not reasonable cause to believe that the

charge is true, it shall dismiss the charge and promptly notify the employee. 42 U.S.C.S. § e-5(b).

In our case, the Notice of the Right to Sue letter issued by the EEOC clearly stated, “More than

180 days have passed since the filing of this charge. The EEOC is terminating its processing of

this charge.” (Doc. 1-5 and DX 1). An employee must exhaust administrative remedies before

filing a complaint of discrimination under Title VII of the Civil Rights Act and Title I of the

Americans with Disabilities Act. Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir.

2001) (Title VII), see also, Stamper v. Duval Cnty. Sch. Bd., 863 F.3d 1336, 2017 U.S. App. LEXIS

12894, 130 Fair Empl. Prac. Cas. (BNA) 484, 101 Empl. Prac. Dec. (CCH) P45,846, 33 Am.

Disabilities Cas. (BNA) 953, 27 Fla. L. Weekly Fed. C 21, 2017 WL 3033148 (2017). Thus,

Plaintiff’s EEOC Charge of Discrimination was not filed in a timely manner.

B) Counts I and II, to the degree they assert claims under 42 U.S.C. § 1981,
are due to be dismissed as 42 U.S.C. § 1983 provides the exclusive
federal damages remedy for the violation of the rights guaranteed by 42
U.S.C. § 1981 when the claim is pressed against a state actor.

Title 42, United States Code Section 1981 provides that "[a]ll persons . . . shall have the

same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white

citizens." However, 42 U.S.C.§ 1981 does not provide an independent cause of action against state

actors. Butts v. Cnty. of Volusia, 222 F.3d 891 (11th Cir. 2000). In Jett v. Dallas Independent

School District, 491 U.S. 701, the Supreme Court held that "[Section] 1983 constitutes the

exclusive remedy against state actors for violations of the rights contained in [Section] 1981."

Butts, 222 F.3d at 892-93. The Eleventh Circuit further held that "[n]othing in the 1991

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amendment to [Section] 1981 evinces Congress' desire to alter the Supreme Court's conclusion in

Jett." Id. at 894. As stated by this Court:

Where a plaintiff seeks vindication of rights secured by § 1981 against a state

actor, § 1983 provides the exclusive remedy for obtaining relief. Butts v. Cnty. of
Volusia, 222 F.3d 891, 893 (11th Cir. 2000) (citing Jett v. Dallas Indep. Sch. Dist.,
491 U.S. 701, 731-32, 109 S. Ct. 2702, 105 L. Ed. 2d 598 (1989)); see also Moore
v. Ala. Dep't of Corr., 137 F. App'x 235, 237 (11th Cir. 2005) (citing Butts for the
proposition that “in a case involving state actors, there is no liability under § 1981,
and such claims merge into the § 1983 claims”). [Plaintiff] “could have sued
under § 1983 for the violation of § 1981,” but as the plaintiff in Butts, "he chose
not to do so.” 222 F.3d at 892.

Williams v. Ala. Dep't of Corr., No. 2:13-CV-606-WKW [WO], 2014 U.S. Dist. LEXIS 90048,

at *11 (M.D. Ala. July 2, 2014).

Here, Plaintiff has alleged that that he is asserting causes of action pursuant to 42 U.S.C.

§1981. Under Alabama law, Mayor Reed is a state actor. As such, Plaintiff’s claims against the

City and Mayor Reed pursuant to 42 U.S.C. § 1981 are due to be and should be dismissed as a

matter of law.

C) Plaintiff’s First Amendment Retaliation Claim is due to be dismissed as it lacks

factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.

A First Amendment claim for retaliation is “governed by a four-stage analysis.” Moss v.

City of Pembroke Pines, 782 F.3d 613, 617 (11th Cir. 2015). To satisfy the first requirement, a

public employee must speak both as a private citizen and on a matter of public concern. Garcetti

v. Ceballos, 547 U.S. 410, 419-20 (1983); Connick v. Myers, 461 U.S. 138, 154 19(83). If this

requirement is not satisfied, there is no First Amendment protection. Id. at 418. But if “the

employee spoke as a citizen and on a matter of public concern, the possibility of a First Amendment

claim arises,’ and the inquiry becomes one of balance” under the Pickering test. Alves v. Bd. of

Regents of Univ. Sys. of Ga., 804 F.3d 1149, 1160 (11th Cir. 2015) (quotation omitted).

Under Pickering, a court weighs a plaintiff's First Amendment interests against the employer's

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interest in regulating employee speech. See id.; Lane v. Franks, 573 U.S. 228, 242 (2014). The

third stage requires a plaintiff to show that his speech played a substantial role in his termination.

See Moss, 782 F.3d at 618. If the plaintiff makes this showing, the burden shifts to the employer

to supply an alternative reason for the termination. Id. Because these final two issues, “are

questions of fact, a jury resolves them unless the evidence is undisputed.” Id.

"[W]hen public employees make statements pursuant to their official duties, the employees

are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate

their communications from employer discipline.” Garcetti, 547 U.S. at 421. The “central inquiry”

is “whether the speech at issue ‘owes its existence’ to the employee's professional

responsibilities.” Moss, 782 F.3d at 618, quoting Garcetti, 547 U.S. at 421). Potentially relevant,

non-dispositive factors include: "the employee's job description, whether the speech occurred at

the workplace, and whether the speech concerned the subject matter of the employee's job.” Alves,

804 F.3d at 1161. Stated otherwise, “Garcetti's ‘threshold layer’ looks at both the ‘role the speaker

occupied’ and ‘the content of the speech’ to determine whether the government retaliation at issue

warrants the Pickering analysis.” Alves, 804 F.3d at 1160, quoting, Davis v. McKinney, 518 F.3d

304, 312 (5th Cir. 2008)).

With these guiding principles in mind, it is readily apparent that Plaintiff’s complaint falls

far short of putting Defendants on notice of the allegations against which they are entitled to

defend. The entirety of his arguable factual allegations in support of these claims are, “Plaintiffs

constitutionally-protected speech regarded matters of public concern, specifically, abuses in the

Police and Mayor's Departments, as set out in articles participated in or generated by Plaintiff and

numerous statements or presentations before the City, its officers, and community reports.” (Doc.

1, ¶ 66).The complaint does not allege any specific instances of speech that he made, or was not

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allowed to make, that form the basis of his claim. Similarly, the complaint contains no factual

averments from which it can be inferred “whether [or not] the speech at issue ‘owes its existence’

to the employee's professional responsibilities.” Moss, 782 F.3d at 618, quoting Garcetti, 547 U.S.

at 421). Similarly, the complaint fails to allege any facts in support of his bald assertion that,

“[s]aid speech played a substantial part in Defendants’ decision to discharge Plaintiff as Chief of

Police.” (Doc. 1, ¶ 67).

For a claim to have facial plausibility, the plaintiff must plead factual content that “allows

the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Sinaltrainal v. Coca-Cola Co., 578 F.3d at1261. “[A] complaint [does not] suffice if it tenders

‘naked assertion[s]’ devoid of ‘further factual enhancement.” Twombly, 550 U.S. at 557). Given

the dearth of factual support of the claim, Count III of the complaint is due to be and should be

dismissed.

D) Count IV is due to be dismissed as Plaintiff has suffered no deprivation of his

Fourteenth Amendment Substantive Due Process Rights.

Count IV is due to be dismissed because, “areas in which substantive rights are created

only by state law (as is the case with tort law and employment law) are not subject to substantive

due process protection under the Due Process Clause ‘substantive due process rights are created

only by the Constitution.’” McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir. 1994) (en banc),

quoting, Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 229, 106 S. Ct. 507, 515, 88 L. Ed. 2d

523 (1985).

Therefore, even if a public employee possesses a constitutionally protected interest

in his employment, such arises solely from State-created rights rather than from the
Constitution, so his discharge might implicate only "procedural" due process
protections, not those of "substantive" due process. McKinney, 20 F.3d at 1559-
61; see also Silva v. Bieluch, 351 F.3d 1045, 1047 (11th Cir. 2003); Bussinger v.
City of New Smyrna Beach, Fla., 50 F.3d 922, 925 (11th Cir. 1995); Narey v. Dean,
32 F.3d 1521, 1526-28 (11th Cir. 1994); Engquist v. Oregon Dep't of Agr., 553 U.S.
591, 599, 128 S. Ct. 2146, 170 L. Ed. 2d 975 (2008) ("[T]he Due Process

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Clause does not protect a public employee from discharge, even when such
discharge was mistaken or unreasonable." (citing Bishop v. Wood, 426 U.S. 341,
350, 96 S. Ct. 2074, 48 L. Ed. 2d 684 (1976)). As such, Plaintiff's § 1983 claim
alleging a violation of substantive due process plainly fails under McKinney and its
progeny.

Bonner v. Kilgore, 2017 U.S. Dist. LEXIS 40241, at *25-26 (N.D. Ala. Mar. 21, 2017).

Plaintiff alleges in Count IV of his complaint that, “Mayor Reed and the City made the

decision to terminate Plaintiff without review of any of the evidence and based their decision on

arbitrary and capricious factors . . . Mayor Reed and the City terminated Plaintiff in violation of

clearly established law regarding municipal employees.” (Doc. 1, ¶ 78). He also submits,

“Defendant has a habit and/or practice of allowing and condoning discrimination based on race,

age and retaliation.” (Doc. 1, ¶ 80). Plaintiff does not identify “any of the evidence,” or any

“arbitrary and capricious factors” or any “clearly established law regarding municipal employees.”

As with other counts he fails to plead factual content that "allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged,” Sinaltrainal, 578 F.3d at 1261,

rather he, “tenders 'naked assertion[s]' devoid of 'further factual enhancement.’” Iqbal, 556 U.S at

678, quoting, Twombly, 550 U.S. at 557. For this reason, as well, Count IV is due to be and should

be dismissed.

E) Count V, an alleged Conspiracy to Violate Plaintiff’s Civil Rights (42 U.S.C. §

1985) is due to be dismissed as it fails to state a claim and is barred by the
intracorporate conspiracy doctrine.

The Plaintiff asserts that Defendants conspired to violate his civil rights, more particularly,

his “constitutionally-protected speech” regarding matters of public concern of alleged “abuses in

the Police and Mayor’s Department.” (Doc. 1, ¶ 84). Without any citation to any specific, “articles

participated in or generated by plaintiff and numerous statements or presentations before the City,

its officers, and community reports,” he submits, “[s]pech played a substantial part in Defendants’

decision to discharge Plaintiff as Chief of Police.” (Doc. 1, ¶¶ 84 & 85). Finally, without

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identifying in any way, allegedly who did what, where, when, or how, he conclusively states,

“[e]ach Defendant committed acts to further the conspiracy.” (Doc. 1, ¶ 87).

To state a claim under 42 U.S.C. § 1985(3), a plaintiff must allege: (1) defendants engaged

in a conspiracy; (2) the conspiracy's purpose was to directly or indirectly deprive a protected person

or class the equal protection of the laws, or equal privileges and immunities under the laws; (3) a

conspirator committed an act to further the conspiracy; and (4) as a result, the plaintiff suffered

injury to either his person or his property, or was deprived of a right or privilege of a citizen of the

United States. Jimenez v. Wellstar Health Sys., 596 F.3d 1304, 1312 (11th Cir. 2010). In order to

survive a motion to dismiss, the plaintiff must plead factual content that "allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged." Sinaltrainal, 578

F.3d at 1261. Conspicuously absent from Count V of the complaint is any factual content upon

which the necessary reasonable inferences can be drawn to support each and or any of the elements

of the charge.

Additionally, Plaintiff’s claims of conspiracy in violation 42 U.S.C. § 1985 are barred by

the intracorporate conspiracy doctrine. The intracorporate conspiracy doctrine stands for the

proposition that acts of corporate agents made within the scope of their employment are acts of the

corporation itself and, therefore, cannot form the basis for a conspiracy between the corporate

agent and the corporation. McAndrew v. Lockheed Martin Corp., 206 F.3d 1031, 1036 (11th Cir.

2000) (en banc). "Simply put, under the doctrine, a corporation cannot conspire with its employees,

and its employees, when acting in the scope of their employment, cannot conspire among

themselves." Denney v. City of Albany, 247 F.3d 1172, 1190 (11th Cir. 2001) (quoting McAndrew,

206 F.3d at 1036). The Eleventh Circuit has applied the doctrine to public entities such as a city

and its employees. Denney, 247 F.3d at 1190 (citations omitted); Grider v. City of Auburn, 618

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F.3d 1240, 1262 (11th Cir. 2010) (holding the intracorporate conspiracy doctrine barred § 1983

claims against two city police officers). The Plaintiff identifies no one as alleged coconspirators,

directly or inferentially, other than the Defendants in a scheme “to deprive him of his

constitutionally-protected speech under the First Amendment” regarding matters of public

concern. Accordingly, the intracorporate conspiracy doctrine bars Plaintiff’s § 1985 claim.

F) Plaintiff’s state law claim alleging a civil conspiracy is due to be dismissed as

the complaint lacks factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged and its barred
by the intracorporate conspiracy doctrine..

Under Alabama law, “’liability for civil conspiracy rests upon the existence of an

underlying wrong and [that] if the underlying wrong provides no cause of action, then neither does

the conspiracy.'" Mooneyham v. State Bd. of Chiropractic Exam'rs, 802 So. 2d 200, 206 (Ala.

2001), quoting, Ex parte Alabama Dep't of Transp., 764 So. 2d 1263, 1271 (Ala. 2000),

quoting, Jones v. BP Oil Co., 632 So. 2d 435, 439 (Ala. 1993)). Plaintiff asserts a conspiracy

operated to deprive him of a property interest in his position as Chief of Police “by engaging in

the violation of his rights under the First Amendment to the U.S. Constitution . . . to illegally

retaliate against Finley for engaging in federally-protected speech and exercising his federally-

protected right to speak out on matters of public concern.” (Doc. 1, ¶ 91, 92). As noted in § II.

E., the plaintiff must plead factual content that "allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged." Sinaltrainal, 578 F.3d at 1261.

Conspicuously absent from Count VI of the complaint is any factual content upon which the

necessary reasonable inferences can be drawn to support each and or any of the elements of the

charge. Failing to demonstrate, “the existence of an underlying wrong,” Plaintiff’s state law claim

of civil conspiracy is due to be and should be dismissed.

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All additional allegations of civil conspiracy in Count VI, as well as the aforementioned

claims of civil conspiracy under Alabama law are barred by the intracorporate conspiracy doctrine.

The doctrine has been recognized in Alabama and held to be a bar to the prosecution of a civil

conspiracy. “That doctrine provides a sufficient ground for the summary judgment on this

counterclaim, and the trial court did not err in this regard.” M & F Bank v. First Am. Title Ins. Co.,

144 So. 3d 222, 234 (Ala. 2013).

G) A public figure, Plaintiff’s claims of defamation set forth in Counts VII and
VIII are due to be dismissed as they were true at the time made and the
complaint lacks factual content that allows the court to draw the reasonable
inference that Defendants are liable for the misconduct alleged.

"In a [defamation] action brought by a public figure, summary judgment for the defendant

is appropriate unless the plaintiff produces the clear and convincing evidence that a reasonable

jury would need in order to find that the defendant published the defamatory material with actual

malice." Smith v. Huntsville Times Co., 888 So. 2d 492, 499 (Ala. 2004), quoting, McFarlane v.

Sheridan Square Press, Inc., 320 U.S. App. D.C. 40, 91 F.3d 1501, 1508 (D.D.C. 1996). At this

stage of the proceedings, Plaintiff must, present sufficient factual matter, accepted as true, to “state

a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. For a claim to have facial

plausibility, the plaintiff must plead factual content that “allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Sinaltrainal, 578 F.3d at 1261.

Plausibility does not require probability, “but it asks for

Herein, the complaint fails to allege facts to meet this standard. First, plaintiff cannot

overcome the fact that the statements attributed to the Defendants were, in fact, true, at the time

of publication. Moreover, the complaint fails to allege sufficient facts upon which it can be

inferred that that at the time of publication, Defendants were acting, “with knowledge that it was

false or with reckless disregard of whether it was false or not.” Smith, 888 So. 2d 492, 499,

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 Case 2:23-cv-00146-KFP Document 17 Filed 05/17/23 Page 15 of 16

(citations omitted). A reckless disregard is demonstrated if, at the time of publication, “the

defendant ‘entertained serious doubts as to the truth of [its] publication or acted with a high degree

of awareness of … [its] probable falsity.” Id. On this point, the complaint is lacking any factual

averments beyond “naked assertion[s]’ devoid of ‘further factual enhancement.”

Regarding Count VIII:

When, as here, the plaintiff is a public figure, he cannot recover unless he proves
by clear and convincing evidence that the defendant published the defamatory
statement with actual malice, i.e., with 'knowledge that it was false or with reckless
disregard of whether it was false or not.' New York Times v. Sullivan, 376 U.S. 254,
279-280, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964). Mere negligence does not suffice.
Rather, the plaintiff must demonstrate that the author 'in fact entertained serious
doubt as to the truth of his publication,' St. Amant v. Thompson, 390 U.S. 727, 731,
20 L. Ed. 2d 262, 88 S. Ct. 1323 (1968), or acted with a 'high degree of awareness
of … probable falsity.' Garrison v. Louisiana, 379 U.S. 64, 74, 13 L. Ed. 2d 125,
85 S. Ct. 209 (1964).

Sanders v. Smitherman, 776 So. 2d 68, 71 (Ala. 2000). It cannot be disputed that Plaintiff is a

public figure and that the alleged defamatory statement related to his status and duties as such.

Accordingly, Count VIII, a claim of negligent defamation, is due to be and should be dismissed.

WHEREFORE, premises considered, each and every count of the the Complaint is due to

be and should be dismissed.

Respectfully submitted this 17th day of May, 2023.

FOR THE DEFENDANTS

/s/ R. Randolph Neeley

R. RANDOLPH NEELEY (NEE002)
Attorney for Defendant
ASB #: 9083E56R

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 Case 2:23-cv-00146-KFP Document 17 Filed 05/17/23 Page 16 of 16

OF COUNSEL:
CITY OF MONTGOMERY
Legal Department
Post Office Box
1111
Montgomery, AL 36101-1111
Telephone: (334) 625-2050
Facsimile: (334) 625-2310
[email protected]

CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk of the Court

using the CM/ECF system which will send notification of such filing to the following parties

or counsel:

Heather Leonard, PC
2105 Devereux Circle; Suite 111
Birmingham, AL 35242
205-977-5421
Fax: 205-278-1400
Email: [email protected]

Alicia Kay Haynes Haynes &

Haynes, PC 1600 Woodmere
Drive
Birmingham, AL 35226
205-879-0377
Fax: 205-879-3572
Email: [email protected]

Done this 17th day of May, 2023.

/s/ R. Randolph Neeley

OF COUNSEL

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