Ortega v. Brock

• Decision Date: 07 August 2007
• Docket Number: Civil Action No. 2:07cv368-MHT.
• Citation: 501 F.Supp.2d 1337
• Court: U.S. District Court — Middle District of Alabama
• Parties: Carlos A. ORTEGA, Jr., Plaintiff, v. Stephen BROCK, Big Time "Wings" Sports Grill, Inc., and Charles W. Goggins, Defendants.

501 F.Supp.2d 1337

Carlos A. ORTEGA, Jr., Plaintiff, v. Stephen BROCK, Big Time "Wings" Sports Grill, Inc., and Charles W. Goggins, Defendants.

Civil Action No. 2:07cv368-MHT.

United States District Court, M.D. Alabama, Northern Division.

August 7, 2007.

Brian Paul Strength, Jock Michael Smith, Cochran, Cherry, Givens & Smith, Tuskegee, AL, for Plaintiff.

Charles Nichols Parnell, III, Parnell & Crum, PA, Algert Swanson Agricola, Jr., Michael Andrew Donaldson, Slaten & O'Connor, PC, Emily C. Marks, Ball Matthews & Novak PA, Montgomery, AL, Amy Hayes Naylor, Naylor & Collins PC, Clanton, AL, for Defendants.

OPINION AND ORDER

MYRON II. THOMPSON, District Judge.

Plaintiff Carlos A. Ortega, Jr. brings this lawsuit against defendants Stephen Brock, Big Time "Wings" Sports Grill, Inc., and Charles W. Goggins. Seeking to invoke federal-question jurisdiction under 28 U.S.C. § 1331 and supplemental jurisdiction under 28 U.S.C. § 1367(a), Ortega asserts Fourth Amendment claims (as enforced through 42 U.S.C. § 1983) against Brock, a Chilton County sheriffs deputy, and supplemental state-law claims for assault and battery against all three defendants. Now before the court are motions to dismiss filed by Big Time and Goggins, who argue that Ortega has failed to state a claim against them upon which relief can be granted, Fed.R.Civ.P. 12(b)(6), and that this court lacks subject-matter jurisdiction over the claims against them, Fed.R.Civ.P. 12(b)(1). For the reasons that follow, those motions will be denied.

I. MOTION-TO-DISMISS STANDARD

In considering a defendant's motion to dismiss, the court accepts the plaintiffs allegations as true, Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984), and construes the complaint in the plaintiffs favor, Duke v. Cleland, 5 F.3d 1399, 1402 (11th Cir.1993). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1914). To survive a motion to dismiss, a complaint need not contain "detailed factual allegations," Bell Atl. Corp. v. Twombly, 550 U.S. ___, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007), "only enough facts to state a claim to relief that is plausible on its face," id. at 1974.

A motion to dismiss may be granted as to only part of a complaint and denied as to the remainder. See, e.g., Chepstow Ltd. v. Hunt, 381 F.3d 1077 (11th Cir.2004) (reversing district court's dismissal of some of plaintiffs claims, while affirming dismissal of other claims); Decker v. Massey-Ferguson, Ltd., 681 F.2d 111, 115 (2d Cir.1982) ("a Rule 12(b)(6) motion to dismiss need not be granted nor denied in toto but may be granted as to part of a complaint and denied as to the remainder"); see also 5C Wright & Miller, Federal Practice and Procedure § 1358 (3d ed.2004).

II. FACTUAL BACKGROUND

The relevant facts as alleged by Ortega in his amended complaint¹ are as follows: On May 1, 2002, at approximately 1:00 a.m., Ortega was a patron at Big Time, a sports bar and grill in Chilton County, Alabama. Also present were its owner, Goggins; Brock, who was in his police uniform; and an unnamed patron who was wearing what is described in the amended complaint as a "police t-shirt." Am. Compl. (doc. no. 19) at 2.

Goggins and Brock both told the unnamed patron to remove the police t-shirt. Brock added that the patron was committing the crime of impersonating a police officer and threatened to arrest him if he did not remove his t-shirt. Ortega, apparently trying to defuse the situation, offered to take the t-shirt outside. "Suddenly and without warning, Brock began to assault [Ortega] by choking him and dragging him outside the bar. [Ortega] was then thrown on the concrete." Id.

Ortega brings four counts against Brock: excessive force in violation of the Fourth Amendment as enforced through 42 U.S.C. § 1983; unreasonable seizure in violation of the Fourth Amendment as enforced through § 1983; assault under state law; and battery under state law.

Additionally, Ortega asserts that Big Time and Goggins are vicariously liable, under the theory of respondeat superior as recognized by state law, for the assault and battery committed by Brock. See Plaisance v. Yelder, 408 So.2d 136 (Ala. Civ.App.1981) (employers liable for assault and battery by employees). According to Ortega, "Goggins allowed Brock to act as a bouncer for the bar." Id. at 2. Big Time and Goggins have filed the pending motions to dismiss.

III. DISCUSSION

Big Time and Goggins present two arguments as to why the claims against them should be dismissed. The first argument, which relies on Alabama state tort law, is that Ortega has failed to state a claim against them upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). The second argument, which relies on federal law, is that this court lacks subject-matter jurisdiction over the state-law claims against them. Fed.R.Civ.P. 12(b)(1).

A. Failure to State a Claim

The court begins with the argument that Ortega's amended complaint fails to state a claim against Big Time and Goggins upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). Ortega seeks to hold Big Time and Goggins vicariously liable, under a theory of respondeat superior, for Brock's alleged state-law torts against him.

The general rule of respondeat superior, or master-servant liability, is that the master is vicariously liable for torts, including assault and battery, committed by the servant in the line and scope of the latter's employment. Plaisance v. Yelder, 408 So.2d 136 (Ala.Civ.App.1981). Alabama law narrowly defines the line and scope of such employment as it pertains to off-duty police officers moonlighting as private security guards. In Whitely v. Food Giant, Inc., 721 So.2d 207 (Ala.Civ.App. 1998), the court affirmed summary judgment in favor of an off-duty police officer's private employer sued for assault, and battery under the theory of respondeat superior. According to that court, "when an off-duty police officer witnesses an offense for which the perpetrator is arrested, the officer's status changes, and he is then acting in his capacity as a police officer and not his capacity as a security guard." 721 So.2d at 209 (citing Dinmark v. Farrier, 510 So.2d 819 (Ala.1987)).²

In this case, even if Brock were acting as a "bouncer" for the bar as Ortega alleges, Whitely limits the circumstances under which his employers would be vicariously liable. If Brock's status changed to police officer before he assaulted Ortega, then under Whitely he was no longer acting in the line and scope of his employment as an agent for Big Time and Goggins. If that is so, then Big Time and Goggins are ha vicariously liable for Brock's conduct and Ortega has failed to state a claim against them upon which relief can be granted. Fed.R.Civ.P. 12(b)(6).

The court now examines Ortega's amended complaint to determine whether his state-law claims against Big Time and Goggins are due to be dismissed under. Whitely. In doing so, the court notes that the Whitely court did not reject the respondeat superior claims until the summary-judgment stage, having previously reversed the trial court's dismissal of those claims at the motion-to-dismiss stage. Whitely v. Food Giant, Inc., 693 So.2d 502 (Ala.Civ.App.1997). At the motion-to-dismiss stage, the Alabama appellate court held that the security guard's status did not change unless there was probable cause to make a lawful police arrest. Id. at 505. Construing the complaint in the plaintiffs favor, the court could not say that the security guard witnessed a crime and was thereby transformed into an on-duty officer of the law. Id.

This court must also construe Ortega's amended complaint in his favor, and in doing so this court is also unable to conclude that Brock had any lawful reason to marshal his police powers to subdue Ortega. According to the amended complaint, when Ortega offered to take another patron's t-shirt outside, Brock suddenly choked him, dragged him out of the bar, and threw him on the concrete. Given these facts, it is highly plausible that Brock's status never changed from bouncer to police officer, making his private employers liable for his tortious conduct under a theory of respondeat superior. Accordingly, Ortega's claims against Big Time and Goggins are not due to be dismissed under Rule 12(b)(6).

B. Lack of Subject-Matter Jurisdiction

Big Time and Goggins's argument for dismissal does not end there. The court now turns to their second argument for dismissing the claims against them: lack of subject-matter jurisdiction. Fed. R.Civ.P. 12(b)(1). Pursuant to 28 U.S.C. § 1367(a), Ortega seeks to invoke this court's supplemental jurisdiction over Big Time and Goggins. Section § 1367(a) provides:

"Except as [otherwise] provided ..., in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties."

In their motions to dismiss, Big Time and Goggins essentially argue that this court lacks subject-matter jurisdiction over the state-law claims against them because Ortega's amended complaint lacks the federal-question "hook" the court requires in order to exercise supplemental jurisdiction over state-law claims.

1. Pendent-Party Jurisdiction

Prior to the enactment of 28 U.S.C. § 1367 in 1990, federal courts debated the propriety of "pendent party jurisdiction — in which a plaintiff with a federal claim against one defendant appends a state-law claim, arising from a common nucleus of facts, against another defendant, who...