Pipkins v. City of Hoover, Alabama

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

APRIL PIPKINS, }

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Plaintiff, }

}

v. } Case No.: 2:19-CV-1907-RDP

}

CITY OF HOOVER, ALABAMA, }

}

Defendant. }

MEMORANDUM OPINION AND ORDER

This case is before the court on the Motion to Dismiss filed by Defendants Brookfield

Properties Retail, Inc. and Hoover Mall Limited, L.L.C. (the “Mall Defendants”). (Doc. # 52). The

Motion has been fully briefed (Docs. # 56, 57) and is ripe for decision. For the reasons discussed

below, the Motion is due to be granted in part and denied in part.

I. Background

On Thanksgiving Day in 2018, Erron Brown shot 18-year old Brian Wilson at the Galleria

Mall. (Doc. # 46, ¶¶ 20-21). Emantic Fitzgerald Bradford (“EJ”), whose father is a former

Birmingham Police Department employee, and who had recently enlisted in the United States

Army and completed basic training, was also present in the mall. (Doc. # 46, ¶¶ 23-25). He was in

legal possession of a firearm. (Id.). When EJ heard the gunshots, he drew his gun and ran toward

them. (Doc. # 46, ¶ 25).

Hoover Police officer David Alexander and another officer were nearby in the mall and

responded to the incident. (Doc. # 46, ¶ 26). Upon observing EJ armed and in the area where the

shots had been fired, Alexander fired four shots at him. (Doc. # 46, ¶ 32). EJ died as a result of the

gunshots fired by Alexander. (Doc. # 46, ¶¶ 32, 40-44).

The Galleria is owned by Hoover Mall Limited, L.L.C. and managed on a day-to-day basis

by Brookfield Properties Retail, Inc. (Doc. # 46, ¶ 73). According to the Second Amended

Complaint, Alexander and the second police officer present during the shooting were dually

employed by both the City, as police officers, and the Mall Defendants providing mall security.

(Doc. # 46, ¶ 27). Plaintiffs allege that, in connection with shooting EJ, Alexander violated

standard police procedure and training. (Doc. # 46, ¶¶ 31-35, 45-61).

II. Standard of Review

The Federal Rules of Civil Procedure require that a complaint provide “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

However, the complaint must include enough facts “to raise a right to relief above the speculative

level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Pleadings that contain nothing more

than “a formulaic recitation of the elements of a cause of action” do not meet Rule 8 standards,

nor do pleadings suffice that are based merely upon “labels and conclusions” or “naked

assertion[s]” without supporting factual allegations. Id. at 555, 557. In deciding a Rule 12(b)(6)

motion to dismiss, courts view the allegations in the complaint in the light most favorable to the

non-moving party. Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007).

To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible

on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although “[t]he

plausibility standard is not akin to a ‘probability requirement,’” the complaint must demonstrate

“more than a sheer possibility that a defendant has acted unlawfully.” Id. A plausible claim for

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relief requires “enough fact[s] to raise a reasonable expectation that discovery will reveal

evidence” to support the claim. Twombly, 550 U.S. at 556.

In considering a motion to dismiss, a court should “1) eliminate any allegations in the

complaint that are merely legal conclusions; and 2) where there are well-pleaded factual

allegations, ‘assume their veracity and then determine whether they plausibly give rise to an

entitlement to relief.’” Kivisto v. Miller, Canfield, Paddock & Stone, PLC, 413 F. App’x 136, 138

(11th Cir. 2011) (quoting Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)).

That task is context specific and, to survive the motion, the allegations must permit the court based

on its “judicial experience and common sense . . . to infer more than the mere possibility of

misconduct.” Iqbal, 556 U.S. at 679. If the court determines that all of the well-pleaded facts,

accepted as true, do not state a claim that is plausible, the claims are due to be dismissed. Twombly,

550 U.S. at 570.

When a court rules on a 12(b)(6) motion to dismiss, it generally is “limited to reviewing

what is within the four corners of the [plaintiff’s] complaint.” Brickley v. Caremark RX, Inc., 461

F.3d 1325, 1329 n.7 (11th Cir. 2006). If a court looks beyond the plaintiff’s complaint, usually it

“must convert the motion to dismiss into one for summary judgment.” Property Mgmt. & Invs.,

Inc. v. Lewis, 752 F.2d 599, 604 (11th Cir. 1985). “This court recognizes an exception, however,

in cases in which a plaintiff refers to a document in its complaint, the document is central to its

claim, its contents are not in dispute, and the defendant attaches the document to its motion to

dismiss.” Fin. Sec. Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276, 1284-85 (11th Cir. 2007)

(citing Harris v. Ivax Corp., 182 F.3d 799, 802 n. 2 (11th Cir.1999); Brooks v. Blue Cross & Blue

Shield of Fla., Inc., 116 F.3d 1364, 1368-69 (11th Cir. 1997)).

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III. Analysis

Plaintiffs name the Mall Defendants in three counts of their Second Amended Complaint:

Count Three, which asserts a Municipal Liability claim pursuant to 42 U.S.C. § 1983; Count Five,

which asserts a Wrongful Death Negligence and Wantonness Claim pursuant to Alabama state

law; and Count Six, which asserts a Negligent and Wanton Hiring, Training, Supervision and

Entrustment claim pursuant to Alabama state law. (Doc. # 46 at 24-34). The Mall Defendants move

to dismiss all three of these claims. (Doc. # 52-1).

A. Consideration of Defendant’s Exhibits to the Motion

Before analyzing the substance of the Motion, the court notes the following. The Mall

Defendants’ Motion does not specify the federal rule pursuant to which it was filed. (Docs. # 52,

52-1, 57). This is significant because, along with their Motion, Defendants filed a declaration and

exhibits, not all of which are referenced in the Second Amended Complaint. (Doc. # 52-2). As a

general rule, the court must “limit[ ] its consideration to the pleadings and exhibits attached

thereto” in deciding a Rule 12(b)(6) motion to dismiss. Grossman v. Nationsbank, N.S., 225 F.3d

1228, 1231 (11th Cir. 2000) (citation and quotation marks omitted).

Plaintiffs’ Second Amended Complaint alleges that the Mall Defendants “entered into a

security contract with CITY [the City of Hoover]” and that the Mall Defendants “paid CITY

directly and/or indirectly for the use of on duty police officers (“security/police officers”), in full

uniform, in the GALLERIA.” (Doc. # 46 at 13). Plaintiffs further allege that, when the shooting

occurred, Alexander was “dually employed” by the City and the Mall Defendants. (Doc. # 46 at

6).

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In support of their Motion, Defendants filed what purports to be the contract between the

City and the Mall Defendants. (Doc. # 52-2 at 3). The agreement attached to the Mall Defendants’

Motion appears to relate to the Galleria, but it is between Jim Wilson & Associates and the Hoover

Police Department. (Id.). It does not mention either of the Mall Defendants, although the

declaration says that the agreement is kept in the ordinary course of business of the Mall

Defendants. (Doc. # 52-2 at 1). Therefore, it is not entirely clear that the agreement attached to the

Motion to Dismiss is indeed the agreement referred to in the Second Amended Complaint. And,

the other exhibits filed in support of the Motion are not referred to in the Second Amended

Complaint. (Doc. # 52-2 at 4-6).

The exhibits filed by the Mall Defendants go beyond the pleadings, and the parties appear

to dispute their contents and meaning. Because the contents are in dispute, the exception that may

allow the court to consider the documents at this stage does not apply. See Fin. Sec. Assurance,

Inc., 500 F.3d at 1284-85. Considering the attached documents would require the court to convert

the motion to dismiss into a motion for summary judgment. See Fed. R. Civ. P. 12(b)(6); Finn v.

Gunter, 722 F.2d 711, 713 (11th Cir. 1984). The court declines to consider this evidence, and will

review the Motion strictly under Rule 12(b)(6). See, e.g., Mitchell v. Alabama Dep’t of Labor,

2017 WL 3300578, at *2, n.2 (M.D. Ala. 2017), report and recommendation adopted, No. 2:16-

CV-666-WKW, 2017 WL 3300547 (M.D. Ala. Aug. 2, 2017) (citing Austin v. Modern Woodman

of America, 275 F.App’x. 925, 926 (11th Cir. 2008) (unpublished opinion) (holding that because

the district court did not consider matters outside the pleadings, it did not err when it failed to treat

the motion to dismiss as a motion for summary judgment)).

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B. The Mall Defendants’ Rule 12(b)(6) Motion

In assessing a Rule 12(b)(6) motion, the court must credit the plaintiff’s well-pled

allegations, irrespective of what evidence may support them, either upon the filing of the action or

as might be revealed in discovery. Glass v. City of Glencoe, 2017 WL 1407477, at *5 (N.D. Ala.

Apr. 20, 2017). The court addresses the three claims at issue on the motion, in turn.

1. Count Three: Municipal Liability under 42 U.S.C. § 1983

Although the Mall Defendants acknowledge that there are “circumstances under which a

private party can be viewed as a state actor” for purposes of liability under § 1983, they argue that

they are not state actors. (Doc. # 52-1 at 5). Plaintiffs respond that Defendants’ argument goes to

the merits of the claim, rather than whether they have stated a claim. Therefore, they argue,

consideration of the argument is premature at this time. (Doc. # 56 at 6-8).

“‘Only in rare circumstances can a private party be viewed as a ‘state actor’ for section

1983 purposes.’” Gustino v. Stoneybrook W. Master Ass’n, Inc., 2021 WL 21758, at *5 (11th Cir.

Jan. 4, 2021) (quoting Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992)). “A private party

can be held liable as a state actor only if: (1) the state ‘coerced or at least significantly encouraged

the action alleged to violate the Constitution’; (2) the private party ‘performed a public function

that was traditionally the exclusive prerogative of the State’; or (3) the state ‘had so far insinuated

itself into a position of interdependence with’ the private party ‘that it was a joint participant in

the enterprise[.]’” Gustino, 2021 WL 21758, at *5 (quoting Rayburn ex rel. Rayburn v. Hogue,

241 F.3d 1341, 1347 (11th Cir. 2001) (quotation omitted)).

The Mall Defendants argue that Plaintiffs cannot satisfy the joint action test and rely upon

the agreement between the City and the Galleria to support that argument. (Doc. # 52-1 at 7). But,

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that argument relies on matters far outside – and contrary to – the allegations of the Second

Amended Complaint. (Id. at 7-8). Defendants assert that “Alexander [] wasn’t working for the

Galleria on the night of Thanksgiving 2018 as alleged.” And, they argue that “the City didn’t

station [Alexander] at the Galleria pursuant to its contract at any point in the month of November

2018.” (Id. at 8). None of these asserted “facts” are properly before the court. What is before the

court is Plaintiffs’ allegation that, on the night EJ was shot and killed, “Alexander was dually

employed by both the City of Hoover [], as a police officer, and the Hoover Mall, Galleria, and/or

Brookfield, providing mall security.” (Doc. 46 at ¶ 27).

When considering a Rule 12(b)(6) motion to dismiss, “‘it is proper for a judge to consider

facts outside of the pleadings and to resolve factual disputes so long as the factual disputes do not

decide the merits and the parties have sufficient opportunity to develop a record.’” Tillery v. U.S.

Dep’t of Homeland Sec., 402 F. App’x 421, 424 (11th Cir. 2010) (unpublished) (emphasis added)

(quoting Bryant v. Rich, 530 F.3d 1368, 1376 (11th Cir. 2008)). Defendants’ arguments that

Plaintiffs cannot satisfy the joint action test for purposes of their § 1983 claim clearly go to the

merits of Plaintiffs’ claim, and Plaintiffs have not yet had the opportunity to develop a factual

record. Plaintiffs have plausibly alleged that the Mall Defendants were state actors, and they may

proceed on their § 1983 claim against them. Therefore, the Mall Defendants’ Motion to Dismiss

Count Three is due to be denied at this stage of the proceedings. Defendants may reassert these

arguments when there exists a Rule 56 record.

2. Count Five: Negligence and Wantonness

The Mall Defendants argue that Plaintiffs’ negligence and wantonness claims should be

dismissed because they owed no duty to protect Plaintiffs’ decedent, EJ. (Doc. # 52-1 at 8-9).

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Plaintiffs respond that the Mall Defendants did have such a duty, or at least they should be allowed

to do discovery to determine whether such a duty existed. (Doc. # 56 at 9-13).

“Negligence is generally defined as the failure to discharge or perform a legal duty owed

to another party.... [N]egligence means the failure to exercise reasonable or ordinary care.” Hicks

v. Vulcan Eng’g Co., 749 So.2d 417, 424 (Ala. 1999) (internal quotation marks omitted). Under

Alabama law, the elements of negligence in a premises liability case “are the same as those in any

tort litigation: duty, breach of duty, cause in fact, proximate or legal cause, and damages.” Sessions

v. Nonnenmann, 842 So.2d 649, 651 (Ala. 2002) (citations and quotations omitted). “[T]he

existence of a duty is a question of law to be determined by the trial judge.” New Addition Club,

Inc. v. Vaughn, 903 So.2d 68, 73 (Ala. 2004).

In Alabama, “[i]t is the general rule ... that absent special relationships or circumstances, a

person has no duty to protect another from criminal acts of a third person.” New Addition Club,

903 So.2d at 73 (quoting Moye v. A.G. Gaston Motels, Inc., 499 So.2d 1368, 1370 (Ala. 1986)).

“Alabama law requires a plaintiff to show three elements to establish a duty that would be the basis

for a cause of action such as the one presented in this case.... First, the particular criminal conduct

must have been foreseeable. Second, the defendant must have possessed “specialized knowledge”

of the criminal activity. Third, the criminal conduct must have been a probability.” Id. (quoting

Carroll v. Shoney’s, Inc., 775 So.2d 753, 756 (Ala. 2000)).

Plaintiff argues that as a business invitee, the Mall Defendants owed a duty to its patrons.

(Doc. # 56 at 9). However, “Alabama courts have recognized a special relationship for purposes

of premises liability only when there is a ‘dependence or mutual dependence among the parties.’”

Martinez v. Espey, 2018 WL 1210932, at *4 (N.D. Ala. Mar. 8, 2018) (quoting Young v. Huntsville

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Hosp., 595 So.2d 1386, 1389 (Ala. 1992) (internal quotation marks and citation omitted)); see also

Emery v. Talladega College, 668 Fed. Appx. 727, 735 (11th Cir. 2017) (stating that the Alabama

Supreme Court “has only applied [the special relationship] exception in the rare case where the

plaintiff is wholly at the mercy of the defendant to keep him safe from harm”); Saccuzzo v. Krystal

Co., 646 So.2d 595, 597 (Ala. 1994) (“We held that a ‘special relationship’ existed in Young

because an anesthetized patient is completely dependent upon the hospital for protection.”); Finley

v. Patterson, 705 So.2d 826, 828 (Ala. 1997) (explaining that a plaintiff must be “completely

dependent upon the defendants for protection” for the special relationship exception to apply).

Plaintiffs have not alleged that EJ was completely dependent upon the Mall Defendants for

protection. In fact, Plaintiffs have alleged that EJ carried his own gun. Moreover, his “status as an

invitee at the [Galleria], by itself, is not sufficient to invoke the special relationship exception.”

Martinez, 2018 WL 1210932, at *4 (citing Broadus v. Chevron USA, Inc., 677 So.2d 199, 204

(Ala. 1996) (“Broadus also argues that he was a business invitee of Chevron and Larry Ayres d/b/a

Regency Chevron and argues that a ‘special relationship’ existed between him and the defendants.

As above noted, no special relationship was established by the facts of this case.”); Johnston v.

Mr. Mini Mart No. 50, 744 So.2d 922, 926 (Ala. Civ. App. 1999) (“A special relationship is not

created by the fact that Mrs. Johnston and Sample were invitees at the Mini Mart store.”)).

Therefore, Plaintiffs have not plausibly alleged the duty element of a premises liability negligence

claim against the Mall Defendants. Therefore, the Mall Defendants’ Motion to Dismiss Count Five

is due to be granted.

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3. Count VI: Negligent/Wanton Hiring, Training, and Supervision

Plaintiffs have also asserted claims based on Defendants’ alleged negligent/wanton hiring,

training, and supervision. “The torts at issue have common elements. Namely, to prove a claim

under Alabama law for either negligent/wanton entrustment, negligent hiring, negligent

supervision[,] or negligent retention, a plaintiff must demonstrate that the employer knew, or in

the exercise of ordinary care should have known, that its employee was incompetent.” Britt v. USA

Truck, Inc., 2007 WL 4554027, *4 (M.D. Ala. 2007), citing Armstrong Bus. Servs. v. AmSouth

Bank, 817 So.2d 665, 682 (Ala. 2001) (negligent supervision); Bruck v. Jim Walter Corp., 470

So.2d 1141, 1144 (Ala. 1985) (negligent/ wanton entrustment); Brown v. Vanity Fair Mills, Inc.,

277 So.2d 893, 895 (Ala. 1973) (negligent retention); Sanders v. Shoe Show, Inc., 778 So.2d 820,

824 (Ala. Civ. App. 2000) (negligent hiring).1 Therefore, unless the context requires otherwise,

and for ease of reference, the court will refer to all of Plaintiffs= negligence claims advanced in

Count Six under the collective term “negligent supervision.”

To succeed on a negligent supervision claim, a plaintiff must establish two things: (1) that

the underlying conduct of one or more employees was wrongful or tortious; and (2) that

Defendants had actual or constructive knowledge of that alleged incompetence. See Hester v.

Brown, 512 F.Supp.2d 1228, 1238 (M.D. Ala. 2007). “The ‘incompetency’ of the offending

employee in a negligent training and supervision claim, ... , must be based on an injury resulting

from a tort which is recognized under Alabama common law.” Sears v. PHP of Alabama, Inc.,

1 The court considers these claims together because, like other courts, it “observes that there is no discernible

distinction between claims of negligent supervision and claims of negligent training, ... .” Sears v. PHP of Alabama,

Inc., 2006 WL 932044, *19, n.13 (M.D. Ala. 2006) (citing Zielke v. AmSouth Bank, N.A., 703 So.2d 354, 358 n. 1

(Ala. Civ. App. 1996)).

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2006 WL 932044, *19, n.13 (M.D. Ala. 2006), citing Stevenson v. Precision, 762 So.2d 820, 824

(Ala. 1999) (affirming summary judgment on negligent supervision/training claim for lack of

underlying tort claim). That is, not just any “incompetency” suffices to give rise to a cause of

action for negligent supervision. Rather, Plaintiffs must prove that an allegedly incompetent

employee committed a state law tort. See Stevenson v. Precision Standard, Inc., 762 So.2d 820,

824 (Ala. 1999).

Here, Plaintiffs have not alleged any prior incompetence by Alexander, much less that the

Mall Defendants were aware of Alexander’s alleged incompetence. (Doc. # 46). Plaintiffs assert

that, without the benefit of discovery, “it is unclear exactly what the relationship was between

Alexander and the Mall Defendants.” (Doc. # 56). However, it is their burden to plausibly allege

their negligent supervision claim. Plaintiffs’ Second Amended Complaint contains no allegations

tending to show that the Mall Defendants knew or should have known that Alexander was

incompetent. Yet, without that type of allegation, their pleading fails to state a plausible claim for

negligent hiring, training, supervision, or entrustment. See Bush v. J.P. Morgan Chase Bank, N.A.,

2016 WL 324993, at *9 (N.D. Ala. Jan. 27, 2016) (holding plaintiff failed to state claim

for negligent training and supervision, where amended complaint was devoid of facts regarding

what notice employer had of employees’ alleged incompetency).

To permit Plaintiffs to conduct discovery under these circumstances would contravene

Twombly and Iqbal, which instruct that neither legal conclusions nor a formulaic recitation of the

elements of a claim are sufficient to survive a Rule 12(b)(6) motion to dismiss but, rather, a

complaint must contain allegations of fact. See Twombly, 550 U.S. at 555, 557, 570; Iqbal, 556

U.S. at 678. In Iqbal, the Supreme Court made clear the Federal Rules of Civil Procedure “do[ ]

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not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions” and

that where a “complaint is deficient under Rule 8, [a plaintiff] is not entitled to discovery, cabined

or otherwise.” 556 U.S. at 678-79, 686. Likewise, the Eleventh Circuit has held “discovery follows

the filing of a well-pleaded complaint. It is not a device to enable the plaintiff to make a case when

his complaint has failed to state a claim.” Carter v. DeKalb County, Georgia, 521 F.App’x 725,

728 (11th Cir. 2013) (internal quotation marks omitted); see also Brannan for Estate of Goodman

v. West, 2018 WL 1440835, at *4 n.4 (S.D. Ala. Mar. 22, 2018) (collecting cases rejecting requests

that discovery be permitted before claims are evaluated under established pleading standards).

Therefore, the Mall Defendants’ Motion to Dismiss Count Six is due to be granted.

The court notes that, in Counts Five and Six, Plaintiffs assert both negligence and

wantonness claims. Therefore, these claims are due to be dismissed because they constitute

shotgun pleading, which has been “repeatedly condemned” by the Eleventh Circuit. See PVC

Windoors, Inc. v. Babbitbay Beach Constr., N.V., 598 F.3d 802, 806 n. 4 (11th Cir. 2010); see also

Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996) (stating

that multiple claims should be presented separately in adherence to Federal Rule of Civil Procedure

10(b)). Also, however, to establish a wantonness claim requires more than a mere showing of a

higher degree of culpability than negligence. Wantonness is characterized as a conscious act and

requires a different and more stringent set of proof. See, e.g., Ex parte Essary, 992 So.2d 5, 9-10

(Ala. 2007). Plaintiffs’ failure to establish even their negligence claims necessarily precludes their

assertion of any wantonness claim related to the same subject matter.

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IV. Conclusion

For all of the foregoing reasons, the Mall Defendants’ Motion to Dismiss (Doc. # 52) is

GRANTED IN PART AND DENIED IN PART. The Motion is GRANTED to the extent that

it seeks to dismiss Counts Five and Six of the Second Amended Complaint. Counts Five and Six

of the Second Amended Complaint are DISMISSED WITHOUT PREJUDICE. The Motion is

DENIED to the extent that it seeks to dismiss Count Three. Plaintiffs may proceed on their § 1983

claim against the Mall Defendants and the Mall Defendants may reassert their arguments if a Rule

56 record indicates that they are not state actors under § 1983.

DONE and ORDERED this February 24, 2021.

UNITED STATES DISTRICT JUDGE

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