KRISTI K. DuBOSE, District Judge.
After due and proper consideration of the issues raised, and there having been no objections filed, the Recommendation of the Magistrate Judge made under 28 U.S.C. § 636(b)(1)(B) and dated September 11, 2013, is
Accordingly, it is
REPORT AND RECOMMENDATION
BERT W. MILLING, JR., United States Magistrate Judge.
The Partial Motion to Dismiss filed by Defendants (Doc. 30) has been referred for report and recommendation, under 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2. Jurisdiction has been invoked in this Court under 42 U.S.C. § 1983, pursuant to 28 U.S.C. §§ 1331 and 1367 (Doc. 28, ¶ 3).
The facts are, briefly, as follows. Plaintiff SouthBARK, Inc. is a non-profit charitable corporation "formed solely to rescue... animals from shelters that regularly euthanize them because of space limitations" (Doc. 28, ¶ 6). Plaintiffs Dusty Feller (hereinafter Dusty) and Emily Thompson are SouthBARK's Vice President and President, respectively (id. at ¶¶ 8, 11). Defendant Mobile County Commission (hereinafter Commission) is the governing body for Mobile County, Alabama and is made up of three commissioners, including Defendants Merceria L. Ludgood and Connie Hudson, the current and immediate past Commission Presidents (Doc. 28, ¶¶ 17-20). Defendant John Pafenbach is the Commission Administrator, "responsible for managing the daily operations" for the County (id. at ¶ 21). Defendant Nancy Johnson serves as the County's Public Affairs/Community Service Director (id. at ¶ 22). The Mobile County Animal Shelter (hereinafter MCAS or Shelter) is a facility, governed by the Commission, that handles abandoned animals in Mobile County (id. at p. 8 n. 2).
SouthBARK's "goal is to save abandoned, abused, neglected and homeless animals" (id. at ¶ 6). In the past, SouthBARK has acquired dogs from MCAS's kennels and found foster homes for them, preventing their being euthanized (id. at ¶¶ 24-25). For a period of six months, MCAS denied SouthBARK access to the Shelter, allegedly because of statements made by SouthBARK volunteers concerning the number of animals being regularly euthanized and because one volunteer
On April 12, 2013, SouthBARK and Dusty brought this action (Doc. 1). On June 24, 2013, Plaintiffs filed an Amended Complaint, adding Thompson as a Party; fourteen claims, both State and Federal, were raised in the Amended Complaint (Doc. 28; see also Doc. 27). On July 8, the Defendants filed a Partial Motion to Dismiss (Doc. 30) which seeks to have Dusty dismissed as a Party and seven of Plaintiffs' fourteen claims dismissed (Doc. 30). Plaintiffs have responded to the Motion (Doc. 34) to which the Defendants have replied (Doc. 36).
The Court notes, initially, that "[w]hen considering a motion to dismiss, all facts set forth in the plaintiff's complaint `are to be accepted as true and the court limits its consideration to the pleadings and exhibits attached thereto.'" Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000) (quoting GSW, Inc. v. Long County, 999 F.2d 1508, 1510 (11th Cir.1993)). In order to state a claim for relief, the Federal Rules of Civil Procedure state that a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The U.S. Supreme Court explained that the purpose of the rule was to "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
In their Partial Motion to Dismiss (Doc. 30), Defendants first assert that Dusty does not have standing to maintain this action (Doc. 30, pp. 7-10). Their argument is two-fold: (1) Dusty does not have individual standing; and (2) Dusty does not have standing to assert claims on behalf of the animals at the MCAS (id.).
The Court notes that "a plaintiff must have standing to invoke the jurisdiction of the federal courts." KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1266 (11th Cir.2006). "To demonstrate standing, a plaintiff must show that `(1) he has suffered, or imminently will suffer, an injury-in-fact; (2) the injury is fairly traceable to [the actions of the Defendants]; and (3) a favorable judgment is likely to redress the injury.'" Florida ex rel. Atty. Gen. v. U.S. Dept. of Health and Human Services, 648 F.3d 1235, 1242-43 (11th Cir. 2011) (quoting Harrell v. The Florida Bar, 608 F.3d 1241, 1253 (11th Cir.2010)), reversed, in part, sub nom. National Federation of Independent Business v. Sebelius, ___ U.S. ___, 132 S.Ct. 2566, 183 L.Ed.2d 450 (2012). "`The plaintiff bears the burden of establishing each of these elements.'" Florida ex rel. Atty. Gen., 648 F.3d at 1243 (quoting Elend v. Basham, 471 F.3d 1199, 1206 (11th Cir.2006)). "At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we "`presum[e] that general allegations embrace those specific facts that are necessary to support the claim.'"" Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 889, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)). "[S]tanding is a threshold jurisdictional question which must be addressed prior to and independent of the merits of a party's claims.'" Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974 (11th Cir.), cert, denied, 546 U.S. 872, 126 S.Ct. 377, 163 L.Ed.2d 164 (2005) (citations omitted). This Court is "obliged to consider questions of standing regardless of whether the parties have raised them." Bochese, 405 F.3d at 975. However, "so long as at least one plaintiff has standing to raise each claim  we need not address whether the remaining plaintiffs have standing." Florida ex rel. Atty. Gen., 648 F.3d at 1244.
The Court has carefully reviewed the Amended Complaint and notes that Plaintiff Dusty is referenced within that pleading only as follows:
The Court finds that Dusty has failed to allege that she "has suffered, or imminently will suffer, an injury-in-fact" in the Amended Complaint as required in Florida ex rel. Atty. Gen. Plaintiff comes closest to satisfying this requirement in ¶ 99 in which she, along with Emily and SouthBARK,
As noted by District Judge DuBose, though, in her June 20, 2013 Order, 2013 WL 3168761, denying their request for injunctive relief, Plaintiffs "have continued to adopt animals from the MCAS through other animal rescue groups" (Doc. 26, p. 6). This finding is confirmed in the Amended Complaint which asserts that "[t]he Defendants have relented slightly by permitting certain volunteers, except Emily, to pull animals from its shelter, but only if they are doing so on behalf of another rescue partner" (Doc. 28, ¶ 56). This specific language suggests that Dusty is a volunteer who participates in rescuing animals; in any event, the language does not indicate that she is being denied the opportunity. This belies any assertion of injury. As held in Sierra Club v. Morton, 405 U.S. 727, 734-35, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), "the `injury in fact' test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured." Plaintiff Dusty has not met this requirement.
Plaintiffs have argued that because Defendants do not challenge the standing of either SouthBARK or Thompson, and thereby concede their standing, it is unnecessary for the Court to consider Dusty's standing under Florida ex rel. Atty. Gen., (Doc. 34, p. 10). Nevertheless, Dusty's standing has been considered and has been found wanting. However, there is still another issue to consider.
As noted previously, the Amended Complaint states that Dusty is filing "this action on behalf of ... the animals housed currently in defendants' animal shelter, and will be housed in the future in the Mobile County Animal Shelter" (Doc. 28, ¶ 10). However, Defendants have asserted that the "animals do not have standing and Plaintiffs have no standing to assert the rights of those animals on their (the animals) behalf" (Doc. 36, p. 2 n. 1; see also Doc. 30, p. 10).
Plaintiffs have not provided any authority that would support a holding that the animals that are currently at the MCAS — or that will be there in the future — have standing in this action. Furthermore, there has been no showing of authority granting Plaintiffs the ability to stand in their place. The Court has not independently found any such holding. In fact, what authority has been found rules otherwise. See Cetacean Community v. Bush, 386 F.3d 1169, 1179 (9th Cir.2004) (quoting Citizens to End Animal Suffering and Exploitation, Inc. v. New England Aquarium, 836 F.Supp. 45, 49 (D.Mass.1993)) ("`[i]f Congress and the President intended to take the extraordinary step of authorizing animals as well as people and legal entities to sue, they could, and should, have said so plainly.' In the absence of any such statement in the [Endangered Species Act], the [Marine Mammal Protection Act], or [National Environmental Policy Act], or the [Administrative Procedure Act], we conclude that the Cetaceans do not have statutory standing to sue"). This Court notes, however, that the law provides that the Plaintiffs here, once having established standing in their own right, can argue the public interest of protecting the animals housed at the Shelter. See Sierra Club, 405 U.S. at 737, 92 S.Ct. 1361. Nevertheless, Plaintiff Dusty will not be making that argument.
The Court finds that Dusty has failed to allege an injury sufficient to satisfy the requirements for standing to continue as a Plaintiff in this action. As such, it is recommended that Defendants' Motion to Dismiss (Doc. 30) be granted to the extent
Defendants also seek to have this Court dismiss a number of claims brought by the Plaintiffs. More specifically, Defendants seek to have claims six, seven, thirteen, and fourteen dismissed for Plaintiffs' failure to state claims under Fed.R.Civ.P. Rule 12(b)(6) (Doc. 30, pp. 11-19). Defendants further seek to have claims one, two, and ten dismissed because they "assert nothing more than mere labels and legal conclusions" (Doc. 30, p. 20). The Court will begin with the 12(b)(6) claims.
In count six of the Amended Complaint, SouthBARK claims § 1983 defamation under the "stigma plus" test. The U.S. Supreme Court has stated that, in examining a § 1983 action, one must look to see that the two essential elements are present: "(1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges or immunities secured by the Constitution or laws of the United States." Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330-331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986).
The first question to be asked, in examining a § 1983 claim, is "whether the conduct complained of was committed by a person acting under color of state law." Id. Under Alabama statutory law, Mobile is a county and, as such, is a body corporate with power to sue or be sued. Ala. Code §§ 11-1-1 and -2. Furthermore, Alabama law states that "[i]t shall be the duty of each and every county in the state to provide a suitable county pound and impounding officer for the impoundment of dogs and cats found running at large." Ala.Code § 3-7A-7. The Court finds state action for purposes of continued examination of these claims, noting that while Defendants have cast doubt on Plaintiff's ability to prove this claim, they have not challenged the assertion that the action was State action (see Docs. 30, 36).
The second element to be considered in a § 1983 action is "whether this conduct deprived [Plaintiff] of rights, privileges or immunities secured by the Constitution or laws of the United States." Parratt, 451 U.S. at 535, 101 S.Ct. 1908. In the Complaint, SouthBARK asserts that it "was deprived of both the liberty interest in protecting at-risk animals, and a property interest in the animals themselves" (Doc. 28, ¶ 94).
The Court notes that "defamation by the government, standing alone and apart from any other governmental action, does not constitute a deprivation of liberty or property under the Fourteenth Amendment." Cannon v. City of West Palm Beach, 250 F.3d 1299, 1302 (11th Cir.2001) (citing Paul v. Davis, 424 U.S. 693, 694, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976)). In what came to be known as the "stigma-plus" test, the Paul Court held that "a plaintiff claiming a deprivation based on defamation by the government must establish the fact of the defamation `plus' the violation of some more tangible interest before the plaintiff is entitled to invoke the procedural protections of the Due Process Clause." Cannon, 250 F.3d at 1302 (citing Paul, 424 U.S. at 702-02, 96 S.Ct. 1155). "`To establish a liberty interest sufficient to implicate the fourteenth amendment safeguards, the individual must be not only stigmatized but also stigmatized in connection with a denial of a right or status previously recognized under state law.'" Smith ex rel. Smith v. Siegelman, 322 F.3d 1290, 1296 (11th Cir. 2003) (quoting Cannon, 250 F.3d at 1302) (quoting Moore v. Otero, 557 F.2d 435, 437 (5th Cir.1977)).
Plaintiffs have responded to Defendants' Motion to Dismiss, arguing that a claim for defamation has been made under Alabama law (Doc. 34, pp. 14-21). However, no argument has been put forth as to why the § 1983 defamation claim should not be dismissed. The Court finds that SouthBARK has not shown that it has been deprived of a constitutional right necessary to sustain its ¶ 1983 claim for defamation as Plaintiff has failed to demonstrate that it has been denied a right previously recognized by State law. Therefore, it is recommended that count six of the Amended Complaint be dismissed pursuant to Defendants' Motion to Dismiss (Doc. 30).
In count seven of the Amended Complaint, Plaintiffs make another claim for defamation (Doc. 28, ¶¶ 95-98). The title indicates that the claim is brought under § 1983, though the arguments consist entirely of Alabama law. The concluding line of the argument, however, states as follows: "SouthBARK, having lost a tangible property interest and having suffered public stigma due to the published comments of these defendants, have stated a cause under the fourteenth amendment due process clause of the Constitution; the violation of which 42 U.S.C. § 1983 provides a remedy" (Doc. 28, ¶ 98).
The Court notes that Plaintiffs raise another claim of defamation, count thirteen, which again argues the elements under Alabama law (Doc. 28, ¶ 106). In count thirteen, however, there is no mention of federal law or § 1983.
The Court finds that Plaintiffs apparently intend to bring count seven of the Amended Complaint as a § 1983 claim. As SouthBARK has not shown that it has been deprived of a constitutional right, previously recognized by State law, necessary to sustain its ¶ 1983 claim for defamation, as discussed previously herein, the Court recommends that count seven of the Amended Complaint be dismissed pursuant to Defendants' Motion to Dismiss (Doc. 30).
In count thirteen of the Amended Complaint, SouthBARK asserts that is has been defamed by Defendants under Alabama law (Doc. 28, ¶ 106). "The general definition [of defamation] may be said to include whatever tends to injure the character of an individual, blacken his reputation, or imputes fraud, dishonesty, or another moral turpitude, or reflects shame, or tends to put him without the pale of social intercourse." Bowling v. Pow, 293 Ala. 178, 301 So.2d 55, 59 (1974). A prima facie case of defamation, under Alabama law, requires that a plaintiff show "that the defendant was at least negligent  in publishing a false and defamatory statement to another concerning the plaintiff  which is either actionable without having to prove special harm (actionable per se) or actionable upon allegations and proof of special harm (actionable per quod)." Nelson v. Lapeyrouse Grain Corp., 534 So.2d 1085, 1091 (Ala.1988) (citations omitted). Publication requires communication of the defaming statement to only a single third
The Court notes that the negligence standard is applicable for private figures. Nelson, 534 So.2d at 1092, n. 2. Defendants argue, however, that SouthBARK is not a private figure — but is a public figure — and that the proper burden for Plaintiff is to demonstrate "actual malice" to prove its claim (Doc. 30, pp. 14-15).
The United States Supreme Court has explained that there are two different types of public figures:
Gertz v. Robert Welch, Inc., 418 U.S. 323, 351, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). Defendants point to a number of statements in the Amended Complaint as support for their argument that SouthBARK falls within the second category of public figures (Doc. 30, pp. 14-15). Those statements follow.
On January 26, 2011, Plaintiff Thompson sent an e-mail to Defendant Johnson that "SouthBARK `doesn't intend to slow down (its) efforts at MCAS, or stop letting the public know when we have had an animal fall through the cracks on our watch'" (Doc. 28, ¶ 30). In that same e-mail, Thompson acknowledges that local media had approached her about concerns SouthBARK had about the treatment of animals at the Shelter (id.). The Amended Complaint states that "SouthBARK has publicly, and frequently, complained about Mobile County's `kill rate,' and has tirelessly attempted to get the Shelter to develop a `no kill' policy" (Doc. 28, ¶ 26). "SouthBARK is not just a rescue organization; it also has, as its mission, to speak out forcibly about instances of animal abuse, neglect and needless euthanization. It was this propensity for speaking out publically, on animal abuse ..." (Doc. 28, ¶ 29). SouthBARK conducts a public forum, monitored on a regular basis, in which it "urgently solicit[s] members of the public [to] get  involved in SouthBARK's rescue efforts to save dogs slated to be put to death by the Shelter;" there are approximately 7,000 subscribers to this forum (Doc. 28, ¶ 25; see generally ¶¶ 36-38). In the Amended Complaint, Plaintiffs state that the "needless destruction of companion animals" is a matter of public concern (Doc. 28, ¶ 40).
The Court finds that these statements in the Amended Complaint confirm Defendants' assertion that SouthBARK is a public figure under Gertz's second definition. That is, SouthBARK is a group that has voluntarily injected itself into a public controversy, becoming a public figure for a limited range of issues. Those issues are the subject matter of this action. So, it will be necessary for Plaintiff to demonstrate "actual malice" to prove its claim. The United States Supreme Court has stated that when someone speaks with "actual malice," it means that the person is speaking "with knowledge that it was false or with reckless disregard of whether it was false or not." New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).
In the Amended Complaint, count thirteen set outs the elements of the Alabama law of defamation and concludes with the following sentence: "[t]he above referenced defendants by their acts described in detail in paragraphs 103 thru 106 have
Based on this failure to demonstrate the defamation it claims in §§ 103-06, the Court's inclination is to recommend that Defendants' Motion to Dismiss be granted as to claim thirteen for defamation under Alabama law. However, recognizing that most of the factual assertions were made early in the Amended Complaint and were not linked to specific claims, the Court will review that document in its entirety, looking specifically for factual assertions of defamation that have been scattered throughout. The following is what the Court found and will form the basis for the rest of this discussion:
The Court notes that the communications in ¶¶ 41-42 are between a Plaintiff and one of the Defendants and are not made to a third party. This fails to satisfy the requirement that the statement be made to another person under Brackin.
In ¶¶ 43 and 45, Defendants Pafenbach and Hudson made statements at public meetings that members of SouthBARK were bullies who harassed MCAS employees. Assuming the truth of Plaintiff's assertions, the Court finds that these circumstances satisfy the minimal requirements for a showing of defamation under Nelson. Furthermore, the Court finds that Defendants' statements about SouthBARK's volunteers being harassing bullies could be considered to have been made with actual malice, as contemplated in Sullivan, if the statements are not true.
In ¶¶ 46-48, media sources are reporting the events, essentially, of ¶¶ 43 and 45. The news stories, however, contained statements by Defendants that could be considered to be defamation for purposes of this Motion.
The Court finds no defamation in ¶ 51 as no statement is actually made about SouthBARK.
In summary, statements made by Defendants in ¶¶ 43, 45, 46, 47, and 48 could be construed as defamatory. The statements made against SouthBARK could also be understood to have been made with actual malice. Having determined that these statements could be considered defamatory, "`it is then for the jury to say whether [the statements were] in fact so understood.'" Camp v. Yeager, 601 So.2d 924 (Ala.1992) (quoting W. Page Keeton, et al., Prosser and Keeton on Torts § 111, at 781 (5th ed. 1984)), cert, denied, 506 U.S. 1049, 113 S.Ct. 967, 122 L.Ed.2d 122 (1993). Therefore, it is recommended that Defendants' Motion to Dismiss (Doc. 30)
Defendants also seek to dismiss Plaintiffs' claim of negligence (count fourteen) (Doc. 30, pp. 19-20). The entire claim states as follows:
With regard to its removal from the animal rescue program, the Court has already shown that, under Ala.Code § 3-7A-8, the County Impounding Officer can release the animals to the purchaser of his or her choice; it is at the Officer's discretion. As such, the Court finds that MCAS had no duty to release any animals to SouthBARK; this means that there was no duty to keep Plaintiff on a list of potential rescuers.
As for the balance of the claim, SouthBARK claims negligence for public comments made against it. As noted herein, SouthBARK is a public figure for defamation purposes for the issues raised herein and, as such, Plaintiff must demonstrate actual malice to successfully prove its claim. Though Plaintiff did not specifically allege actual malice in its State claim of defamation (count thirteen), the Court did not recommend that it be dismissed, finding that the things said about SouthBARK could be understood as defamatory and to have been made with actual malice. The Court finds this claim for negligence falls short of what must be proven and is duplicative as well. Therefore, it is recommended that Defendants' Motion to Dismiss (Doc. 30) be granted as to Plaintiff's claim for negligence (count fourteen).
In the Motion to Dismiss, Defendants also argue that "[c]ounts One, Two, and Ten are due to be dismissed on their face, as those counts fail to assert a recognizable cause of action and put forth nothing more than labels and legal conclusions in the area of First Amendment law and the County's immunity defense" (Doc. 30, p. 7). Then, without so much as a discussion of any of these claims, Defendants, in their conclusion, "respectfully request an Order dismissing counts One, Two, and Ten on the basis that those `counts' assert nothing more than mere labels and legal conclusion[s]" (Doc. 30, p. 20). Defendants provide no arguments in their reply brief either (see Doc. 36).
The Court is not inclined to make Defendants' arguments for them. While the assertion may be correct that these claims amount to nothing more than "labels and legal conclusions," the Court, without some guidance on the part of the Defendants, is not going to expend the time to investigate
In summary, it is recommended that Defendants' Motion to Dismiss (Doc. 30) be granted as to the following: Plaintiff Dusty Feller's asserted claim of standing; count six (§ 1983 defamation); count seven (§ 1983 defamation); and count fourteen (negligence). It is further recommended that Defendants' Motion to Dismiss (Doc. 30) be denied as to the following: count one (municipal liability under 42 U.S.C. § 1983); count two (free speech); count ten (free speech provision of State constitution); and count thirteen (State common law defamation). Accordingly, it is recommended that Plaintiff Dusty Feller be dismissed as a party to this action and that counts six, seven, and fourteen be dismissed as they fail to state a claim upon which this Court can grant relief.
NOTICE OF RIGHT TO FILE OBJECTIONS
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(B); S.D. Ala. L.R.72.4. In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific.
DONE this 11th day of September, 2013.