Appendix — Murray v. Greyhound Lines, Inc.

7 Pupreme Court, U.S,

FILED

00465 sep 25.2000

In the orrice OF THE CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 2000

William R. Murray, Petitioner,

v.

Greyhound Lines Inc., Respondent.

APPENDICES

A. Complaint filed July 1, 1999 in CV-99-843

(Circuit Court for Tuscaloosa County, AL)

B. N.D. Ala. “MEMORANDUM OPINION GRAN-

TING MOTION TO DISMISS” and “ORDER

OF DISMISSAL,” both dated Sept. 17, 1999

C. N.D. Ala.’s October 4, 1999 “DENIAL” of

MURRAY’s Sept. 29, 1999 “MOTION TO

VACATE DISMISSAL”

D. 11" Circuit [Unpublished] May 16, 2000 Opinion

E. 11" Circuit July 3, 2000 “DENIAL” of Rehearing

F. 11" Circuit JUDGMENT dated May 16, 2000,

issued as a MANDATE on July 19, 2000

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APPENDIX A-1

IN THE CIRCUIT COURT FOR

TUSCALOOSA COUNTY, ALABAMA

)

William R. MURRAY, ) Civil Action Number

Plaintiff )

Vv. )

)

GREYHOUND LINES, INC., ) CV-99-843

(GLI), a Delaware Corpo- )

ration, ) Jury Trial

Defendant ) Demanded

)

COMPLAINT FOR FRAUD,

FOR BREACH OF CONTRACT,

AND FOR ASSAULT/ENDANGERMENT

Table of Contents

Part Description *Page

A Jurisdictional Statement .............csseeeeees 2

B Allegations Common to All Counts ....... 4

Cc Ce ea NIUE i siintnisccisanticteccnscntsradvecers 21

D Count #2: Breach of Contract.............. 26

E Count #3: Assault/ Endangerment...... 31

F Demand for Jury Trial ............ccsecceseeeeees 33

G Certificate of Service by Certified Mail. 34

* page numbers of original Complaint, deleted here

APPENDIX A-2

Part A

Jurisdictional Statement

A-1. Plaintiff William R. Murray (“MURRAY”) is

now, and at all times pertinent hereto has been, a

resident of the State of Alabama. He is also an

attorney licensed to practice law in the Court s of

the State of Alabama. In this case, he is proceeding

“Pro Se.”

A-2. Defendant GREYHOUND LINES, INC. (here-

after “GLI”) is a Delaware corporation with its

principal place of business in Dallas, Texas. GLI is

sued both in its own corporate status and in its

status as employer of EMPLOYEE DRIVERS “A,”

“B,” and “C,” as appears more fully below.

APPENDIX A-3

A-3. GLI does substantial business throughout the

United States, including the State of Alabama, with

its Registered Agent being:

The Corporation Company

2000 Interstate Park Drive

Montgomery, AL 36109;

A-4. The Contract underlying this litigation was

entered into in GLI’s Tuscaloosa, Alabama bus

station on May 4, 1999. Then and there, MURRAY

paid GLI in full, in advance, as required by GLI, for

round-trip transportation from Tuscaloosa, AL to

White Plains, NY and return.

A-5. The events underlying the allegations in this

lawsuit occurred, in chronological order, in the

States of VA, NC, SC, GA, and AL during May, 1999.

rer

APPENDIX A-4

Part B

Allegations Common to All Counts

B-1. On Tuesday, May 4, 1999, MURRAYpurchased

a round-trip ticket between Tuscaloosa, Alabama,

and White Plains, New York. The trip was com-

pleted as scheduled, and no untoward incidents

occurred during the first half of the itinerary, from

Alabama to New York.

B-2. The events underlying this Complaint began

on the return trip, from NY to AL, on Defendant

GLI’s scheduled run #1543 (hereafter “GLI 1543").

B-3. In New York City NY, the passengers, inclu-

ding MURRAY, were told that they were boarding a

“through” bus to Charlotte, NC.

APPENDIX A-5

B-4. However, when GLI 1543 arrived in Richmond

VA, MURRAY was told he would be required to

change buses for the next portion (Richmond VA -

to - Charlotte NC) of the trip. MURRAY asked why

the change was required, but was refused any

explanation. Bus #1524 was assigned for that next

portion of GLI 1543.

B-5. The driver on the Richmond VA - to - Charlotte

NC leg of Schedule GLI 1543 was a female, about

30 years of age, whose name badge was nok vis-

ible, if in fact she was wearing one. MURRAY

presently has no further identification, for reasons

Stated hereafter, and will hereafter designate her as

“EMPLOYEE DRIVER “A.” ”

: APPENDIX A-6

B-6. GLI 1543 was scheduled to leave Richmond

VA at 11:15 P.M., but did not leave the terminal until

11:56 P.M.

B-7. MURRAY asked EMPLOYEE DRIVER “A”

why the bus was so late, and she stated that she

didn’t know. She did not offer to find out. She

seemed irritated that MURRAY had asked.

B-8. At no time during the extra 41-minute Rich-

mond delay was there any announcement about

why the bus was not boarding or when the passen-

gers could expect to board it, nor even the hint of

an apology about the delay. Thus, about three (3)

dozen passengers stood in line in a reasonable ex-

section of boarding, and more passengers waited

in whatever seats were available, for about an hour

APPENDIX A-7

(i.e., from about 10:45 P.M. until 11:45 P.M.) just

waiting .

B-9. MURRAY was permitted to board bus GLI

1543 at about 11:45 P.M.

B-10. MURRAY saw that seats #1 and #2 were

occupied by what appeared to be “regular” paying,

non-disabled customers, and that seats #3 and #4 |

were “occupied” only by two pieces of small per-

sonal luggage.

Note: Seats are numbered from left to right,

front to rear, while facing in a forward direc- —-

tion: seat #1 is directly behind the driver,

and seat #4 is next to the right window, and

both seats are in the first row. :

B-11. MURRAY asked EMPLOYEE DRIVER “A” if

he could sit in either seat #3 or $4, and was told

that they were reserved for drivers who were or

going to other locations, or “deadheading.”

meee T

APPENDIX A-8

B-12. MURRAY argued that there were no laws,

regulations, or other publicly-published provisions :

posted anywhere in GLI terminals or on his ticket

or itinerary which announced that “reservations”

or seat preferences are given to such drivers,

especially for “prime” seats like #3 and #4, which

comprise the right-hand, front-row seats.

B-13. EMPLOYEE DRIVER “A” again stated that

MURRAY could not sit in either seat #3 or seat #4,

so MURRAY did not try to argue further, and took

the nearest unoccupied seat, #7 (second row, right

side, aisle seat).

B-14. Then a female, about 30 years of age, and

dressed in the garb of a GLI employee/driver, just

like EMPLOYEE DRIVER “A,” and also without any

name badge or other identification showing, whom

APPENDIX A-9

MURRAY hereafter designates as “EMPLOYEE

DRIVER “B,”” came onto the bus and sat down in

seat #4 after moving the personal baggage from it

onto the overhead rack above it.

B-15. MURRAY again asked EMPLOYEE DRIVER

“A” if he could sit in seat #3, which was still “occu-

pied” only by a small piece of personal luggage,

and she again told MURRAY that he could not sit

there.

B-16. When MURRAY asked EMPLOYEE DRIVER

“A” why he could not sit in seat #3, she would not

answer him.

B-17. When MURRAY asked EMPLOYEE DRIVER

“A” her name, she would not tell him and stated

that, if he wanted to learn her name, he would have

APPENDIX A-10

to go back into the terminal and ask for her name at

the “customer service” area.

B-18. MURRAY then asked “EMPLOYEE DRIVER

“B,” by what authority seat #3 was being occupied

only by the piece of personal baggage lying on the

seat next to her.

B-19. “EMPLOYEE DRIVER “B” stated that seat #3

was reserved for that piece of baggage.

B-20. MURRAY remained in seat #7 rather than be

left behind in Richmond VA, since he was aware

that schedule GLI 1543 was already more than a

half-hour late, and that it was getting ready to leave

the Richmond terminal.

_B-21. MURRAY argued that such a concept was

absolutely ridiculous, that neither she nor that

APPENDIX A-11

personal luggage had any right to occupy either

seat #3 or seat #4, and that, as a regular paying

customer, MURRAY had a superior right to either

seat #3 or seat #4.

B-22. MURRAY demanded that he be allowed to

occupy seat #3. “EMPLOYEE DRIVER “B” just |

sneered at him and refused to remove the small

bag from seat #3.

~

B-23. MURRAY then asked “EMPLOYEE DRIVER

“B” her identity, but she also would not provide any

information. When MURRAY told her that she was

required to disclose her identity or wear a visible

name badge, she just made a vulgar remark.

B-24. MURRAY was therefore required to ride in

seat #7 all the way from Richmond VA, to Charlotte

NC, looking over the back of seat #3, which

a

APPENDIX A-12

remained “occupied” by that small piece of per-

sonal luggage belonging to either “EMPLOYEE

DRIVER “A” or to “EMPLOYEE DRIVER “B.”

B-25. GLI 1543 started backing out of the Rich-

mond VA terminal at 11:56 P.M., went without any

stops, and arrived at the Charlotte NC terminal at

4:29 A.M., for a total time enroute time of four (4)

hours and thirty three (33) minutes rather than the

five (5) hours and fifteen (15) minutes called for in

schedule GLI 1543. Those times were registered

on the same watch.

B-26. MURRAY alleges that GLI’s own records

show that the Richmond-Charlotte terminal-to-

terminal distance is approximately three hundred

twenty (320) statute miles.

APPENDIX A-13

' B-27. MURRAY alleges that the maximum speed

limit anywhere along GLI’s Richmond- Charlotte

segment of GLI 1543 is 65 M.P.H., with lower limits

due to construction and lower speed limits in some

places.

B-28. MURRAY alleges that Schedule GLI 1543

had a “rest stop” scheduled in Butler NC which

was by-passed by EMPLOYEE DRIVER “A” without

warning or apology.

B-29. MURRAY alleges that any vehicle (i.e., a bus)

must travel well below 65 MPH during the course

of leaving one city (Richmond) and entering

another (Charlotte).

B-30. MURRAY alleges that, because GLI 1543

traveled 320 miles in exactly 273 minutes, it must,

as a matter of physics and arithmetic, have aver-

APPENDIX A-14 |

aged one point seven two one six (1.17216) miles

per minute, or seventy point three two nine seven

(70.32967) MPH.

B-31. MURRAY alleges that Schedule GLI 1543, by

traveling an average of more than 70 MPH for 320

continuous miles, including slow-downs for con-

struction, etc., placed MURRAY (and all the other

passengers) in great danger.

B-32. Upon reaching the Charlotte NC terminal, :

and only after the bus was fully stopped and the

door opened, MURRAY again spoke to “EM- > &

PLOYEE DRIVER “A” and “EMPLOYEE DRIVER “B”

and again asked for their names, and both again

refused to tell him.

B-33. MURRAY told both ladies that, if they would

not tell him their names, he needed their photo-

APPENDIX A-15

graphs so that he could identify them later, and

both ladies stated they would call the police if

MURRAY tried to take their pictures.

B-34. EMPLOYEE DRIVER “B” then stated that

MURRAY could put his camera “up you know

where.”

B-35. So, MURRAY took only a “downward and

upside-down” picture of seat #3 while standing in

front of seat #7 and a picture of the bus number

and left the bus.

B-36. As MURRAY exited the bus, EMPLOYEE

DRIVER “A” stated that she was going to call the

police or security, and headed inside the terminal.

MURRAY followed behindEMPLOYEE DRIVER “A,”

who then went into what is called the “customer

APPENDIX A-16

service” room in the terminal, where MURRAY met

a Mr. Ira Hatchett.

B-37. MURRAY spoke with Mr. Hatchett, who was

wearing a GLI identification badge, and who

apparently was the “Customer Service Supervisor”

at Charlotte, NC.

B-38. After explaining his complaints, MURRAY

asked Mr. Hatchett if he could find out the names

of EMPLOYEE DRIVER “A” and EMPLOYEE

DRIVER “B.”

B-39. Mr. Hatchett politely listened to MURRAY ’s .

story and tried to look the ladies’ names up on his

computer but the screen didn’t show their names.

Mir. Hatchett then explained that the information on

EMPLOYEE DRIVER “A” had probably not yet been

put into the database because she was driving a

APPENDIX A-17

“second unit” on Schedule GLI 1543, and that the

name of EMPLOYEE DRIVER “B” would probably

never appear in the database, since she was

deadheading.

B-40. MURRAY then re-boarded GLI 1543 for the

continuation of his trip. While waiting to board,

MURRAY watched “new” EMPLOYEE DRIVER “C”

make a walk-around inspection and make one or

more entries in what appeared to be the vehicle

logbook. He had probably noted that the following

lights were not working:

a. The right front “parking light;” and,

b. Both the left and right lower side

marker lights.

B-41. As MURRAY re-boarded bus #1524, he

noticed that:

APPENDIX A-18

a. Seats #1 and #2 each had one piece of

personal baggage in them;

b. Seat #3 had a “CD player” and other small

electronic items in it, apparently belonging

to the lady sitting in seat #4; and,

c. Seat #4 was occupied by a female who, as it

it turned out, had no physical disability.

B-42. MURRAY asked EMPLOYEE DRIVER “C” if

he could sit in seat #1, #2, or #3, none of which

were occupied.

B-43. EMPLOYEE DRIVER “C” stated that Seats

#1, #2, #3, and #4 were all reserved for disabled

persons, and that MURRAY could not sit in any of

them.

B-44. As EMPLOYEE DRIVER “C” got ready to

close the door in preparation for departure,

APPENDIX A-19

MURRAY again protested the driver’s seating

decision, arguing that:

a. Seats #1 and #2 contained only personal

luggage;

b. Seat #3 contained only a small personal CD

player;

c. There were no disabled persons on board;

d. MURRAY would relinquish his seat if a

disabled person did board the bus; and,

e. As a paying passenger, MURRAY had

| precedence over any lifeless non-paying

piece of luggage or CD player, regardless

of its ownership.

B-44. EMPLOYEE DRIVER “C” then rather curtly

removed the piece of personal luggage from seat

#2, onto the overhead rack, and MURRAY sat down

in seat #2.

APPENDIX A-20

B-45. Seat #1 continued to be occupied by a single

piece of EMPLOYEE DRIVER “C’s” personal lug-

gage, and Seat #3 remained occupied only by that

CD player, for the rest of GLI 1543's Charlotte -

Atlanta segment.

B-46. At the first rest stop after leaving Charlotte,

NC, the lady in seat #4 exited and re-entered the

bus without any apparent difficulty. If she had any

disability entitling her to preferential seating, it was

not apparent to MURRAY, who watched her care-

fully for some sign of disability.

B-47. MURRAY alleges that EMPLOYEE DRIVER

“C” never used his seatbelt. A photograph of that

loose-hanging seatbelt is available to support this

allegation.

APPENDIX A-21

B-48. MURRAY alleges that, at all times pertinent

hereto, EMPLOYEE-DRIVERS “A,” “B.” and “C”

were employees of Defendant GLI, and that all of

their acts and omissions occurred within the scope

of their employment with GLI.

B-49. MURRAY alleges that Defendant GLI has at

least constructively ratified the acts and omissions

of its EMPLOYEE - DRIVERS “A,” “B,” and “C” in

that GLI has not disciplined them nor has GLI

Satisfactorily responded to MURRAY’s May 14, 1999

letter requesting they be appropriately disciplined

and that proper entries be made in their respective

personnel files.

APPENDIX A-22

Part C :

Count #1: Fraud

C-1. All of the “Allegations Common to All Counts,”

caieiess above in “Part B,” are hereby incorpora-

ted into this Count as though fully set forth herein.

C-2. MURRAY alleges that Defendant GLI has

committed several types of “Fraud” upon him.

C-3. MURRAY alleges that GLI committed

“pepeilepoey fraud” upon him in that:

a. Atthe time GLI promised to transport

MURRAY according to the rules, regula-

tions, and tariffs then in existence, it had

no intention of so transporting MURRAY,

but knew that its busses were operated

by its employee-drivers in a fashion suited

to the convenience of said drivers, such

APPENDIX A-23

as the reservation of seats for driver lug-

gage and for dead-heading drivers, rather

than the convenience of passengers;

. At the time GLI promised to transport

MURRAY safely, according to posted speed

limits, it had no intention of so transporting

MURRAY, and knew it had not disciplined

employee - drivers who had driven as fast

as they dared, consistent with retaining

their driving privileges; and,

. Atthe time GLI promised to transport

MURRAY safely, according to Federal and

State law, it had no intention of so tran-

sporting MURRAY, and knew that it had

failed to discipline drivers who had failed

to use seat belts.

APPENDIX A-24

C-4. MURRAY alleges that GLI committed

“fraudulent misrepresentations” in that:

a. GLI’s signage and advertisements, pro-

mising to transport MURRAY according

to the rules, regulations, and tariffs then

in existence, were in fact misrepresen-

tations deliberately made by GLI to en-

tice MURRAY to travel on GLi buses;

b. GLI’s misrepresentations, by tariff and other

rules, that it had no reserved seating on

regular interstate routes, such as schedule

GLI 1543, were deliberate misrepresenta-

tions, in that GLI knew its drivers prevented

customers from sitting in seats wherein

drivors and their deadheading cohorts

placed themselves and their baggage; and,

c. GLI’s statements, through signage and

APPENDIX A-25

advertisements, that it would provide safe

transport were deliberate misrepresentations,

since GLI knew, or should have known, that

its employee-drivers often exceeded posted

speed limits, thereby putting GLI passengers

in substantial danger.

C-5. MURRAY alleges that GLI committed

“fraudulent failure to disclose” in that:

a. GLI failed to disclose that its drivers would

“reserve” front row seats for their own per-

sonal baggage, for deadheading colleagues,

or for non-existent “disabled” persons;

b. GLI failed to disclose that its drivers would

be driving its busses at an excessive rate

of speed;

c. GLI failed to disclose that its drivers had t

the authority to by-pass scheduled “rest

APPENDIX A-26

stops;”

d. GLI failed to disclose that it did not

discipline its drivers for infractions of

tariffs, rules and regulations, and Federal

and State law; and,

e. GLI did not disclose that its drivers could

refuse to wear any identification and refuse

to divulge their identities to passengers

who desired to file complaints.

_

C-6. MURRAY alleges that the various forms of

Fraud committed by Defendant GLI directly and

proximately caused him to be forced to undergo a

range of insults and indignities, and to be placed in

a position of physical danger.

C-7. MURRAY alleges that the frauds of Defendant

GLI destroyed the value of the portion of his return

APPENDIX A-27

trip from Richmond, VA to Tuscaloosa, AL.

C-7. For Defendant GLI’s fraud, MURRAY requests

both compensatory and punitive damages in

amounts to be determined by a struck Jury of his

peers.

Part D

Count #2: Breach of Contract

D-1. All of the “Allegations Common to All

Counts,” contained above in “Part B,” are hereby

incorporated into this Count as though fully set

forth herein.

D-2. MURRAY alleges that Defendant GLI holds

itself out as willing and able to provide safe,

courteous passage on its busses, in exchange for

APPENDIX A-28

the payment of a fee (“fare”’).

D-3. MURRAY alleges that he paid his fare in full,

in advance, and that, at the moment he made his

payment, a CONTRACT (hereafter “MURRAY- GLI

CONTRACT”) came into existence whereby, in ex-

change for said payment by MURRAY, GLI prom-

| ised to transport MURRAY in a safe and reasonably

expeditious manner from Tuscaloosa, AL to White

Plains, NY, and return, at stated times and by the

route stated on MURRAY’s itinerary.

D-4. MURRAY alleges that, as a matter of law, all

of the following considerations, among many

others, became a partof the MURRAY - GLI

CONTRACT:

a. All unposted and posted tariffs, rules and

regulations relating to travel on GLI busses,

APPENDIX A-29

including but not limited to:

(1) Reserved seating;

(2) Preferential seating for disabled per-

sons, deadheading drivers, and per-

sonal luggage;

b. All speed limits posted by any state or local

governmental entity ; and,

c. The wearing of seat belts by drivers at all

times.

D-5 MURRAY alleges that Defendant GLI failed to

carry out (breached) the MURRAY- GLI CONTRACT

in several respects, not the least of which are:

a. EMPLOYEE DRIVERS “A” and “B” deliberately

and unlawfully prevented MURRAY from sitting

in seat #3 during the Richmond - Charlotte

portion of schedule GLI 1543, when he had

APPENDIX A-30

every right to do so according to the MURRAY-

GLI CONTRACT;

b. EMPLOYEE DRIVERS “A” and “B,” by not

wearing any visible identification, and by

refusing to divulge their identity, deliberately

and unlawfully prewented MURRAY from

determining their identity;

c. EMPLOYEE DRIVER “A” deliberately operated

Bus #1534 at an illegally high rate of speed

almost continuously during 320-mile Rich-

mond - Charlotte portion of schedule GLI 1543,

in breach of GLI’s promise to transport

MURRAY lawfully; ss

d. EMPLOYEE DRIVER “C” deliberately and

unlawfully prevented MURRAY from sitting in

seat #1 and #3 during the Charlotte- Birming-

ham portion of schedule GLI 1543, when

MURRAY had every right to sit there under the

APPENDIX A-31

MURRAY- GLI CONTRACT; and,

e. EMPLOYEE DRIVER “C” operated Bus #1534

without wearing any seat belt, in violation of

GLI’s promise to transport MURRAY safely.

D-6. MURRAY re-alleges that Defendant EMPLOY-

EES - DRIVERS “A,” “B,” and 28 were, at all times

pertinent hereto, employees of Defendant GLI and

were acting within the scope of their employment

with GLI.

D-7. MURRAY alleges that Defendant GLI’s acts

and omissions, committed by itself directly and

through its employee drivers “A,” “B,” and “C,”

constitute breaches of the MURRAY-GLI CON-

TRACT.

D-8. MURRAY alleges that GLI’s breaches of

contract directly and proximately caused him to be

APPENDIX A-32

placed in substantial danger and also destroyed

any enjoyment for that portion of his itinerary from

Richmond, VA to Tuscaloosa, AL on his return trip,

for which he seeks compensatory damages in an

amount to be determined by a Jury.

Part E

Count #3: Assault/Endangerment

E-1. All of the “Allegations Common to All

Counts,” contained above in “Part B,” are hereby

incorporated into this Count as though fully set

forth herein.

E-2. MURRAY alleges that the acts and omissions

of GLI, acting through its EMPLOYEE DRIVERS “A”

and “C,” caused him to be placed in fear and

danger.

APPENDIX A-33

E-3. MURRAY concedes that Alabama generally

requires a “touching” for any assault, but alleges

that the following activities should be considered

such egregious conduct as to amount to a “touch-

ing ” for purposes of establishing the “reasonable

_

fear of, and apparent ability to inflict injury or

damage” generally required under Alabama law:

a. Operating a loaded bus at illegally excessive

speeds, in this case where EMPLOYEE

DRIVER “A” averaged more than 70 MPH for

320 miles, where the driver effectively has

“captive passengers;” and,

b. Operating a bus with the driver’s seatbelt

hanging uselessly at his side, as was done

by EMPLOYEE DRIVER “C.”

APPENDIX A-34

E-4. MURRAY alleges that the acts of GLI, acting

through its EMPLOYEE DRIVERS “A” and “C,” con-

stitute assaults.

E-5. MURRAY alleges that the assaults of GLI

directly and proximately caused his substantial fear

and that they placed him in substantial danger, in

addition to destroying any chance he might

otherwise have had to enjoy that portion of his

return trip from Richmond VA to Tuscaloosa, AL.

E-6. For Defendant GLI’s assaults, MURRAY

requests both compensatory and punitive damages

in amounts to be determined by a Jury of his peers.

APPENDIX A-35

Part F

Demand for Jury Trial

\

F-1. MURRAY hereby demands that a struck Jury

be empaneled to make all of the fact determinations

called for in this litigation, and to determine the

amounts of damages to be assessed.

Part G 5

Certificate of Service by Certified Mail

G-1. MURRAY hereby certifies that Service of the

- SUMMONS and COMPLAINT in this litigation has

been requested by way of Certified Mail # Z 377 553

049, all postage and fees prepaid, with the Return

Receipt addressed to the Clerk of This Court.

APPENDIX A-36

Submitted by: William R. Murray

Attorney at Law

(Signature) Murray Lane

Northport, AL 35475

William R. Murray (205) 339-7080

Plaintiff (Pro Se) Ala. Bar ID: MUR-012

Date: July 1, 1999

APPENDIX B-1

IN THE UNITED STATES DISTRICT COURT-

FOR THE NORTHERN DISTRICT OF ALABAMA

WESTERN DIVISION

WILLIAM R. MURRAY, )

)

Plaintiff, )

) CIVIL ACTION NUMBER

VS. )

) 99-C-1942-W

GREYHOUND LINES, )

INC., )

)

Defendant. )

MEMORANDUM OPINION

GRANTING MOTION TO DISMISS~

In this diversity case, the pro se Plaintiff William

R. Murray in his 34-page complaint that the Defen-

dant Greyhound Lines, Inc., (“Greyhound”) de-

frauded him, assaulted and/or recklessly endangered

him, and breached their contract. The case arises

APPENDIX B-2

out of the Plaintiff's round trip by Greyhound bus

from Tuscaloosa, Alabama to White Plains, New

York in May 1999. Convinced that the Plaintiff can

prove no set of facts which would entitle him to

relief, the Court will grant Greyhound’s motion to

dismiss.

I

According to the complaint, on May 4, 1999,

the Plaintiff purchased a Greyhound round trip

ticket to [sic: at] ye Alabama, for travel to

White Plains, New York. The trip to White plains

was apparently uneventful. The return trip was not.

First, though he had been assured in New York

City that the bus was a “through” bus to Charlotte,

| APPENDIX B-3

North Carolina, the Plaintiff was required to change

buses in Richmond, Virginia. The bus was 41 min-

utes late leaving the Richmond terminal. Then, the

Plaintiff was denied his request to sit in “prime”

seats #3 and #4, said seats having been reserved for

“deadhead”(1) Greyhound drivers and their

luggage.

\

~ On the Richmond-Charlotte leg of the trip, the

driver exceeded the posted speed limits, with an

average speed of 70.32968 miles per hour. The dri-

ver failed to stop at a scheduled “rest stop” without

warning or apology. Complaint, p. 13. The female

1. The term “deadhead” refers to bus drivers who occupy a

seat on a bus operated by another driver en route to another

location.

APPENDIX B-4

drivers failed to identify themselves when the Plain-

tiff requested them to do so:

...[ T]he Plaintiff told both ladies that, if they

would not tell him their names, he needed their

photographs so that he could identify them

later, and both ladies stated that they would

tail the police if [the Plaintiff] tried to take

their pictures..

... [One of the female drivers] then stated that

[the Plaintiff] could put his camera “up you

know where.”

Complaint, p. 14.

The bus’ right front parking light and both its

left and right lower side marker lights were inoper-

able. /d., p.17. The driver did not yuse his seatbelt.

Id., p. 20.

When the Plaintiff re-boarded the bus in Char-

lotte, the driver informed him that Seats 1-4 were

reserved for disabled persons. But there were no

APPENDIX B-5

disabled persons on the bus. Seats 1 and 2 contained

only personal luggage and a CD player occupied

Seat 3. Jd., 18. A female passenger occupied Seat 4,

but “[i]f she had any disability entitling her to pre-

ferential seating, it was not apparent to [the Plain-

tiff], who watched her carefully for some sign of

disability.” Jd., p. 19. When the Plaintiff protested,

: the driver “rather curtly removed the piece of per-

sonal luggage from seat #2,...and [the Plaintiff] sat

down in seat #2.” Jd., p. 19.

Presumably still in Seat #2 of Greyhound bus

#1542, the Plaintiff returned to Tuscaloosa.

This lawsuit followed. Filed initially in the Cir-

cuit Court of Tuscaloosa County, it was timely re-

moved to this Court by Greyhound.

APPENDIX B-6

Il

[Note by MURRAY: there is no section “II”

but there are two section “III”s]

A Court should not dismiss a complaint “for

failure to state a claim unless it appears beyond a

doubt that the Plaintiff can prove no set of facts”

that would entitle the Plaintiff to relief. Conley v.

Gibson, 355 U.S. 41, 45, 78 AS. Ct. 99, 101-02, 2

L.Ed.2d 80 (1957). See also Jones v. Bd. Of Comm’r

of the Alabama State Bar, 737 F.2d 996 (11" Cir.

1984). A trial court, in ruling on a motion to dis-

miss, is required to view the complaint in a light most

favorable to the Plaintiff. Schever v. Rhodes, 416

U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90

(1947). See also Sofarelli v. Pinellas County, 931

F.2d 718, 721 (11" Cir. 1991). Although the Court

must take the allegations in the complaint as true

ee a es

APPENDIX B-7

when reviewing the motion to dismiss, it is not per-

mitted to read into the complaint facts that are not

there. Papasan vy. Allain, 478 U.S. 265, 286, 106

S.Ct. 2932, 2944-46, 92 L.Ed.2d 209 (1986); Beck v.

Interstate Brands Corp., 953 F.2d 1275 (11* Cir.

1992). The threshold of sufficiency that a complaint

must meet to survive a motion to dismiss is exceed-

ingly low. Ancata v. Prison-Health Service, Inc., 769

F.2d 700, 703 (11" Cir. 1985)(citing Quality Foods de

Centro America, S.A. v. Latin American Agribusi-

ness Dev. Corp., 711 F.2d 989, 995 (11™ Cir. 1983).

However, when on the basis of a dispositive issue of

law, no construction of the factual allegation of a

complaint will support a cause of action, dismissal of

the complaint is appropriate. Executive 100, Inc. v.

Marin County, 922 F.2d 1536 (11" Cir. 1991), cert.

Fe

APPENDIX B-8

denied, 502 U.S. 810, 112 S.Ct. 55, 116 L.Ed 32

(1991); Powell v. United States, 945 F.2d 374 (11" 2

Cir. 1991).

Ill

[Note by MURRAY: there is no section “II”

but there are two section “III’’s]

As noted earlier, the Plaintiff makes three claims

in this case.

In order to prove fraud, i.e., a willful or reckless

misrepresentation under Alabama law, a plaintiff

must establish: (1) a false representation, (2) con-

cerning an existing material fact, (3) made either

with knowledge of the falsity of the representation or

|

APPENDIX B-9

recklessly, without sufficient information, (4) made

with intent to induce the Plaintiff to act, (5) reliance

by the Plaintiff, and (5) [sic: 6] damages sustained by

the Plaintiff. APJI 18.01, 18.02.

On his second claim, breach of contract, the

Plaintiff must show, inter alia, the breach of a sub-

stantial term or condition of the contract, and that

he suffered damages as a result.

On his third claim, the Plaintiff concedes in his

complaint (Complaint, p. 31 § E-3) that a “touching”

in rudeness or anger is an essential element of the

tort of assault. Again, the Plaintiff must prove that

he suffered damages as a result of the assault.

}

APPENDIX B-10

Given the allegations of the complaint, the Court

concludes beyond doubt that the Plaintiff can prove

no set of facts which would entitle him to relief. On

the two tort claims, under Alabama law there can be

no liability for Saniee insults , indignities, threats,

annoyances, petty oppressions, or other trivialities.”

American Road Service Co. v. Inmon, 394 So. 2d 361,

364-65 (Ala. 1980)(quoting RESTATEMENT

(SECOND) OF TORTS 4 46 cmt. (D) at 73(1965)).

Equally beyond question is that Greyhound per-

formed its basic obligation under the contract: it

transported the Plaintiff from his home in Tusca-

loosa to New York and back home again. It per-

formed this without accident, loss of luggage, citation

for speeding or missing lights. Moreover, the Plain-

APPENDIX B-11

tiff cannot show any legally cognizable damage as a

result of the alleged breach of contract.

For these reasons, Greyhound’s motion to dis-

miss will be granted.

DONE this _[17"] Day of September, 1999.

(Signature)

UNITED STATES DISTRICT JUDGE

U. W..CLEMON

APPENDIX B-12

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

WESTERN DIVISION

WILLIAM R. MURRAY, )

)

Plaintiff, )

) CIVIL ACTION NUMBER

vs. )

) 99-C-1942-W

GREYHOUND LINES, )

i, om )

)

Defendant. )

ORDER OF DISMISSAL

Based on the accompanying Memorandum

Opinion, the Defendant’s Motion to Dismiss is

hereby GRANTED. .

JUDGMENT is hereby ENTERED in favor of

the Defendant GREYHOUND LINES, INC., and

against the Plaintiff WILLIAM R. MURRAY.

The costs of this action are taxed against the

Plaintiff.

DONE this 17" ___ Day of September, 1999.

APPENDIX B-13

(Signature)

UNITED STATES DISTRICT JUDGE

U. W. CLEMON

APPENDIX C-1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

(WESTERN DIVISION - TUSCALOOSA)

)

William R. MURRAY, ) Civil Action No.

Plaintiff )

V. ) CV-99-C-1942-W

)

GREYHOUND LINES, ) Jury Trial Demanded

INC. (“GLI”), )

Defendant )

PLAINTIFF’S MOTION TO VACATE

DISMISSAL WITH PREJUDICE

(FAILURE TO STATE A CLAIM)

Part Description

A. MURRAY’s COMPLAINT validly alleges “Fraud” ....

B

MURRAY’s COMPLAINT validly alleges

RIE wisictintstsiidtnnibienisistiiieliad abit il a ae ates

C. MURRAY’s COMPLAINT validly alleges

PF UUMNDUINIIOE "5:2. -scavcisdminhnanlmideliasouibesiatnhdribhobeceeterone

D. Summary: Dismissal should be Vacated .............

e. RE AS IUD icccttincsentaniitinicacnintbiienintatitiatineions

DENIED

(Signed)

JUDGE

Page 1 of 20

APPENDIX D-1

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 99-14247

i Non-Argument Calendar

D.C. Docket No. 99-01942-CV-C-W

WILLIAM R. MURRAY,

Plaintiff-Appellant,

versus

GREYHOUND LINES, INC., (GLD,

a Delaware Corporation, m

Defendant-Appellee.

Appeal from the United States District Court for the

_ Northern District of Alabama

(May 16, 2000)

Before TJOFLAT, BIRCH, and BARKETT, Circuit Judges.

APPENDIX D-2

PER CURIAM:

Ww illiam R. Murray appeals form the district court’s

dismissal of his pro se complaint for failure to state a

claim under Fed.R.Civ.P. 12(b)(6). On appeal, Murray

argues that the district court erred by dismissing his com-

plaint because he, in fact, set forth the requisite require-

ments to state a claim for fraud, breach of contract, and

assault/endangerment, and because the complaint wee

based upon more than mere insults and indignities. We

AFFIRM.

1. BACKGROUND

Murray, an Alabama attorney, filed this pro se action :

against Greyhound Lines, Inc., in the Circuit Court for

Tuscaloosa, Alabama, asserting claims of fraud, breach

of contract, and assault arising form a trip he took from

White Plains, New York, to Tuscaloosa, Alabama, on

Greyhound’s bus line. R1-1, Exh. A. According to the

F

;

/

APPENDIX D-3

allegations in Murray’s complaint, on the return trip,

passengers were advised in New York City that they were

boarding a “through” bus to Charlotte, North Carolina.

When the bus arrived in Richmond, Murray was told

that he would have to change buses for the next portion of

the trip. Sidhe alleged that the bus from Richmond to

Charlotte was 40 minutes late and the driver did not

know why the bus was late and offered no explanation to

the passengers. Upon boarding the bus and noting that

seats number one and two were occupied, and that there

was luggage placed in seats three and four, Murray asked

the driver, referred to as wa thie! A, if he could sit in either

seat number three or four but was advised that they

were reserved for drivers who were “deadheading.” An

argument ensued, wherein Murray complained that there

were no laws, regulations, or other publicly-published

provisions that announced that reservations or seat

APPENDIX D-4

preferences would be given to drivers, “especially for

‘prime’ seats like number #3 and 4.” Id at 7-8.

Murray proceeded to take another seat. Another bus

driver, referred to as Driver B, then boarded the bus and

sat in sia ponies four. Id. Murray again asked the

Driver A if he naldel in seat number three. He was told

that he could not, and was provided no explanation why.

Murray then asked Driver B by what authority seat

number three was being occupied only by a piece of

luggage, and she stated that seat number three was

reserved for that luggage. Murray began to argue with

her, stating that , as a regular paying customer, he had a

right to either seat number sees or four superior to that

of the “deadheading” driver and the luggage and

demanded that he be allowed to occupy seat number

c

three. Driver B refused to remove the luggage. Murray

asked her for her name but she refused to provide it.

'

APPENDIX D-5

Upon arriving at the Charlotte station, Murray again

asked the drivers for their names and they both refused.

He then told them that if they would not provide their

names, he needed to take their pictures so that he could

identify them later. Both drivers stated that they would

call the police if Murray tried to take their pictures.

Driver B also stated that Murray could put his camera

“up you know where.” Id. at 14. As Murray exited the

’ bus, Driver A stated that she was going to call the police.

As she headed inside the terminal into the customer

service room, Murray followed her and met Mr. Ira

Hatchett, the defendant’s Customer Service Supervisor.

Murray then explained his complaints to Hatchett and

asked if he soil find out the employees’ names.

Hatchett listened to Murray’s account and tried to

ascertain the drivers’ names from his computer, but was

unable to do so. Id. At 16.

APPENDIX D-6

When Murray re-boarded the bus for the continuation

of his trip, he noticed that seats number one and two saath

had one piece of luggage in them,, seat number three had

a CD player and other small electronic items, and seat

number four was occupied by a female who had no

disability. Murray asked the driver, evel to as

Driver C, if he could sit in seats number one, two, or

three, but was advised that the seats were reserved for

disabled passengers. Murray began to argue with the

driver, stating that there were no disabled passengers in

the seats and that, if he were allowed to sit there, he

would relinquish his seat if a disabled passenger later

boarded the bus. Murray also stated that, as a paying

customer, he had precedence over pieces of luggage.

Driver C removed the luggage from seat number two and

allowed Murray to sit there Murray also argued in his

complaint that he was placed in great danger because

ee ee

APPENDIX D-7

—

Driver A drove at approximately 70.32967 m.p.h. when

the maximum speed for the route was 65 m.p.h., and that

Driver C did not wear a seat belt. Id. at 13, 20. He also

asserted that Driver A failed to stop at a scheduled “rest

stop” without warning or apology, and the bus’ right

front parking light and both its left and right lower side

marker lights were inoperable. Id. at 13, 17.

Upon Greyhound’s motion, the case was removed to the

United States District Court for the Northern District of

Alabama. R1-1. Greyhound subsequently filed a motion

to dismiss Murray’s complaint for failure to state a claim

under Fed.R.Civ.P. Rule 12(b)(6). R1-3. Specifically,

_ Greyhound argued that Murray could not recover

damages for “mere insults, indignities, threats,

annoyances, petty oppressions, or other trivialities,” and

that Murray’s breach of contract and assault/endanger-

ment claims did not rise to the level of an injury that

APPENDIX D-8

would support a claim for damages. Id. at 2,3, 4. Murray

responded, arguing that, as a matter of law, his damages

for the action must exceed $75,000 based on Greyhound’s

removal of the case to the current jurisdiction, and that

Greyhound cannot now seek dismissal of his complaint on

grounds that his damages are less than $75,000. R1-4.

The district court granted Greyhound’s motion to

dismiss the candied, finding that Murray failed to

satisfy the requisite showing for a fraud claim, to show

the breach of a substantial term or condition of the

contract, or to establish the essential elements of the tort

of assault. With respect to the two tort claims, the court

found that there can be no liability under Alabama law

for “mere insults, indignities, threats, annoyances, petty

oppressions, and other trivialities.” *R1-6 at 5 (citing

American Road Service Co. v. Inmon, 394 So.2d 361 (Ala.

cr

1980).). The district court also found that Murray failed

APPENDIX D-9

to show that he suffered any damages from the alleged

injury. R1-6,at5. With respect to the contract claim,

the district court specifically found that “Greyhound

performed its basic obligation under the contract: it

transported the Plaintiff from his home in Tuscaloosa to

New York and back home again. It performed this

without accident, loss of luggage, citation for speeding or

missing lights.” Id. Even assuming that Murray could

show a breach of contract, the court found that he could

not demonstrate any legally cognizable damages resulting

therefrom. Id. The district court subsequently entered

an order of dismissal. R1-7.

II. DISCUSSION

We review de novo a district court’s decision to dismiss

a case under Fed.R.Civ.P. 12(b)(6) for failure to state a

claim upon which relief can be granted. McKusick v.

APPENDIX D-10

City of Melbourne, 96 F.3d 478, 482 (11" Cir. 1996). We

review a district court’s decision to deny leave to amend

the complaint for abuse of discretion. See Forbus v.

Sears, Roebuck & Co., 30 F.3d 1402, 1404 (11" Cir. 1994).

Our review of the evidentiary record and the district

court’s findings and consideration of the brief reveals no

reversible error. The district court correctly concluded

that Murray failed to make the requisite showing for a

claim of fraud. To prove fraud, Murray must establish:

(1) a false representation; (2) concerning a material fact;

(3) made either with knowledge of the falsity of the

representation or recklessly, without sufficient informa-

tion; (4) made with the intent to induce him to act; (5)

reliance by him; and (6) damages sustained. See Kave v.

Pawnee Construction Company, Inc., 680 F.2d 1360, 1366-

(11 Cir. 1982); Ala. Code § 6-5-101 (1999). Under

Alabama law, damages for mental suffering are only

APPENDIX D-11

recoverable where there has been some physical injury or

“extreme and outrageous conduct ... so severe that no

reasonable person could be expected to endure it.”

Inmon, 394 So.2d at 363-65. Mere insults, threats, and

annoyances are insufficient, standing alone, to recover

damages. Id.

Here, Murray asserts that Greyhound’s fraudulent

sila - 1.e., misrepresenting in its advertising that it

provided legal and safe interstate transportation to entice

him to travel on its buses; misrepresenting that it had no

reserved seating on regular interstate routes; failing to

disclose that it permitted its drivers to exceed the speed

limit; allowing its employees to be rude, refuse to identify

themselves, and threaten passengers with arrest;

operating its buses with illegal exterior lighting; and

failing to discipline its employees for infractions of the

rules - damaged him by “destroy[ing] the value of the

APPENDIX D-12

portion of his return trip from Richmond, VA, to Tusca-

loosa, AL.” RI-1, Exh. A at 21, 22, 25; see also Appel-

lant’s Brief, at 40-47. Nowhere in Murray’s complaint or

present argument does he establish that he did not arrive

at his destination. Also, at no point does Murray indicate

that he has been physically harmed by any conduct on the

part of Greyhound. The gist of Murray’s argument is

that his return trip was not as pleasant as he would hove

liked because he was unable to sit in the seat of his choice.

Although this may have angered him, it does not consti-

sons a cognizable injury for which relief can be granted.

See Inmon, 394 So.2d at 364-65. Therefore, the district

court did not err in dismissing Murray’s fraud claim.

Turning te Murray’s breach of contract claim, he

argues that Greyhound breached its contract by allowing

its drivers to reserve seats for driver luggage and dead-

heading drivers, permitting its drivers to drive too fast,

APPENDIX D-13

allowing its drivers to drive without seat belts, not re-

‘quiring its employees to wear identification badges and

allowing them to refuse to identify themselves, and that

he suffered damages as a result of the breach by being

placed in substantial danger and because the breach

wunreyed any enjoyment for the return portion of his

i See RI-1, Exh. A at 29-30. In dismissing this claim,

the district court specifically aa that “Greyhound

performed its basic obligation under the contract” by

transporting Murray where he wanted to go “without

accident, loss of luggage, citation for speeding or missing

lights.” R1-6, at 5. The district court also found that

Murray cannot show any legally one damages as a

result of the alleged breach of contract. Id.

To prove a claim for breach of contract, the plaintiff

must show a breach of the terms and conditions of the

contract and that he suffered damages as a result of the

APPENDIX D-14

breach. See Southern Medical Health Svstems, Inc v.

Vaughn, 669 So2d 978, 99 (Ala. 1995). In the present

’ case, Murray failed to show that a condition or term of

the contract has been breached or that he suffered cog-

nizable damages. Therefore, the district court did not

—

err by dismissing his breach of contract claim.

The district court also properly dismissed Murray’s

“assault/endangerment” claim because he did not state a ~

valid claim for assault under Alabama law. As noted by

the district court, reas concedes in his complaint that

a “touching” in rudeness or in anger is an essential

element of the tort of assault under Alabama law, and ~

that no such “touching” occurred ain his case. See R1-1,

Exh. A at 9 E-3. Murray, however, attempts to assert

that, as a matter of logic, there ust be a civil cause of

hatlsinice casein

action for “assault/endangerment” under Alabama law

when a plaintiff has been deliberately placed in fear for

APPENDIX D-15

his life, even though he has not been physically touched,

when a driver does not wear a Seat belt and exceeds the

speed limit “where the driver effectively has captive

passengers.” See Appellant’s brief at 54-56. Nevertheless,

no such causé of action is recognized under Alabama law

and, therefore, the district court did not err by dismissing

the assault/endangerment claim.

Lastly, we review a district court’s decision to grant or

deny leave to amend the complaint for abuse of discre-

tion. See Forbus v. Sears, Roebuck & Co., 30 F.3d 1401,

1404 (11" Cir. 1994). Under Fed.R.Civ.P. Rule 15(a), a

party may amend its pleading once as a matter of course

at any time before a responsive pleading is served; other-

Wise, a party may amend its piiilttig only by leave of

court or by written consent of the adverse party. In

Long v. Satz, 181 F.3d 1275 (11" Cir. 1999), we held that

“[flailure to properly request leave to amend, when he

APPENDIX D-16

had adequate opportunity and time to do so, precludes

the plaintiff's argument on appeal that the district court

abused its discretion by denying [his] leave to amend.”

Long, 181 F.3d at 1279-80; see also Burger King Corp. v.

Weaver, 169 F.3d 1310, 1318 (11" Cir.), cert. dismissed,

120 S.Ct. 370 (1999) [sic]. To the extent that Murray’s

brief can be interpreted as challenging the district court’s

failure to offer him an opportunity to amend, Murray

cannot show an abuse of discretion, as he never filed a

motion for leave to amend, nor asserted any additional

facts or claims that would correct any defects in his

complaint, despite ample opportunity to do so. Because

Murray failed to properly seek leave to amend his

complaint from the court below he is precluded from

raising an abuse of discretion argument on appeal.

AFFIRMED.

* Should read: 135 S. Ct. (1989)

eee ee ae ae eS ee ae ee ee Oe a es

APPENDIX E-1

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 99-14247-DD

WILLIAM R. MURRAY,

Plaintiff-Appellant,

versus

GREYHOUND LINES, INC. (GLI),

A Delaware Corporation,

Defendant-Appellee.

On Appeal from the United States

District Court for the Northern

District of Alabama

BEFORE: TJOFLAT, BIRCH and BARKETT,

Circuit Judges

APPENDIX E-2

PER CURIAM:

The Petition(s) for rehearing filed by

Appellant, William R. Murray, is DENIED.

ENTERED FOR THE COURT:

(Signature of Circuit Judge Tjoflat(?) )

UNITED STATES CIRCUIT JUDGE

eile ey

APPENDIX F-1

United States Court of Appeals

For the Eleventh Circuit

No. 99-14247

Non-Argument Calendar

District Court Docket No. 99-01942-CV

WILLIAM R. MURRAY,

Plaintiff-Appellant,

versus

GREYHOUND LINES, INC, (GLD,

a Delaware Corporation,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Alabama

APPENDIX F-2

Before TJOFLAT, BIRCH and BARKETT, Circuit

Judges.

JUDGMENT

This cause came to be heard on the transcript

of the record from the United states District

Court for the Northern District of Alabama, and

was taken under submission by the Court upon

the record and briefs on file, pursuant to

Eleventh Circuit Rule 34-3;

UPON CONSIDERATION WHEREOPF, it is

now hereby ordered and adjudged by this Court

that the judgment of the said District Court in

this cause be and the same is hereby

AFFIRMED.

ela RT acd 1 eh eh aa ALR Yala hae

| ise Sah edith Sk ine ivy BIRR ig Se

cee ry.

Lac ail i aby lk Sekt Oi PRN eT 20

APPENDIX F-3

IT IS FURTHER ORDERED THAT plaintiff-

appellant pay to defendant-appellee, the costs on

appeal to be taxed in accordance with Fed.R.

App.P. 39.

Entered: May 16, 2000

For the Court: Thomas K. Kahn, Clerk

By: (Signature)

Deputy Clerk

ISSUED AS MANDATE: JUL 19 2000 (stamped)