United States District Court, E.D. North Carolina, Southern Division
Decided April 6, 2015.
For Hana Noor Al-Deen, Plaintiff: Katherine Lewis Parker, Tin Fulton Walker & Owen, PLLC, Wilmington, NC.
For Dennis P. Burgard, Wilma W. Daniels, Michael R. Drummond, H. Carlton Fisher, Gidget Kidd, Henry L. Kitchin, Jr., C. Phillip Marion, Jr., Ronald B. McNeill, Wendy F. Murphy, Britt A. Preyer, Michael B. Shivar, Maurice R. Smith, William A. Sederburg, Denise A. Battles, Stephen L. McFarland, Richard K. Olsen, Defendants: Catherine Faith Jordan, Laura McHenry, LEAD ATTORNEYS, N. C. Dept. of Justice, Raleigh, NC.
TERRENCE W. BOYLE, UNITED STATES DISTRICT JUDGE.
This cause comes before the Court on defendants' motion to dismiss plaintiff's amended complaint in its entirety. Plaintiff has responded, defendants' have replied, and the matter is ripe for ruling. For the reasons discussed below, defendants' motion to dismiss is granted in part and denied in part.
Plaintiff filed this action on September 3, 2014, alleging claims for violation of her due process and equal protection rights under the Fourteenth Amendment to the United States Constitution and defamation and civil conspiracy under North Carolina law. [DE 1], On November 26, 2014, plaintiff amended her complaint as of right, adding a religion and national origin discrimination claim under Title VII of the Civil Rights Act of 1964, an Age Discrimination in Employment Act claim, and a civil fraud claim. [DE 26].
Plaintiff is a full tenured professor in the Department of Communication Studies at the University of North Carolina Wilmington (UNCW). Plaintiff has two Master's degrees and a Ph.D. in communications, and has expertise in the fields of digital multimedia, 3D animation, advertising, and social media. Plaintiff has taught at UNCW since 1985 and has passed twenty-eight annual reviews and three post-tenure reviews, in addition to several Southern Association of Colleges and School Commission on Colleges (SACSCC) reviews.
Plaintiff alleges that in the fall of 2012, her department chair, defendant Olsen, began a systematic character assassination of plaintiff in an attempt to force her out of the University. Plaintiff alleges that Olsen knowingly and maliciously provided false and defamatory information about her professional credentials to SACSCC during its ten-year review of UNCW. Specifically in regard to her claims relating to the SACSCC review, plaintiff relies on the following statements by Olsen to SACSCC: " that while documentation was not able to be produced, falsifying a CV would be a very significant breach and I don't think any [sic] suspects that is a concern here . . " [i]n recognition of the concerns expressed by the off-site and on-site committees, Dr. Noor Al-Deen will not teach COM 286, 288 295 . .., and 438 in the 2013-14 academic year," ; and that certain of plaintiff's courses " will not be offered again until UNCW is able to recruit a faculty member with the proper credentials." Amd. Cmp. Ex. C; E. Plaintiff alleges that the University and defendants failed to stand by her once notified of Olsen's actions, and that Olsen and defendant McFarland continued to provide false information about plaintiff to SACSCC. As a consequence of Olsen and McFarland's actions and the SACSCC review, plaintiff alleges that she is the only tenured faculty member to have been stripped of her academic credentials in her two main areas of specialization; the University has declared plaintiff unqualified to teach these subjects and cancelled plaintiffs teaching schedules for fall 2013 and spring 2014 in light of its determination.
Defendants seek to dismiss plaintiff's complaint for lack of subject matter jurisdiction, lack of personal jurisdiction, and failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(1); (2); (6). Defendants further seek dismissal on the basis of sovereign immunity, qualified immunity, and Eleventh Amendment immunity.
I. Legal Standards
Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal of a claim for lack of subject matter jurisdiction. When subject matter jurisdiction is challenged, the plaintiff has the burden of proving jurisdiction to survive the motion. Evans v. B.F. Perkins Co., 166 F.3d 642, 647-50 (4th Cir. 1999). " In determining whether jurisdiction exists, the district court is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Richmond, Fredericksburg & Potomac R.R Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). To this end, " the nonmoving party must set forth specific facts beyond the pleadings to show that a genuine issue of material fact exists." Id. (citing Trentacosta v. Frontier Pacific Aircraft Indus., 813 F.2d 1553, 1558-59 (9th Cir. 1987)). The movant's motion to dismiss should be granted if the material jurisdictional facts are not in dispute and the movant is entitled to prevail as a matter of law. Id.
Rule 12(b)(2) of the Federal Rules of Civil Procedure authorizes dismissal for lack of personal jurisdiction. When personal jurisdiction has been challenged on the papers alone, the plaintiff must make a prima facie case showing that personal jurisdiction exists, and a court construes all facts and inference in favor of finding jurisdiction. Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989).
A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. Papasan v. Allain, 478 U.S. 265, 283, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). When acting on a motion to dismiss under Rule 12(b)(6), " the court should accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). A complaint must allege enough facts to state a claim for relief that is facially plausible. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Facial plausibility means that the facts pled " allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged" ; mere recitals of the elements of a cause of action supported by conclusory statements do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 ...