Tim Powell v. Alabama Credit Union Administration

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 16, 2020
• Docket: 18-11176
• Status: Unpublished

Opinion

Case: 18-11176 Date Filed: 01/16/2020 Page: 1 of 38

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No: 18-11176 ________________________

D.C. Docket No. 7:17-cv-00470-LSC

TIM POWELL, DENISE CRAWFORD, EDWIN HARRELL, CHARLIE WEST, LARRY SEXTON, RICHARD POWELL, MARTIE PATTON,

Plaintiffs-Appellants,

JOHN DEE CARRUTH,

Plaintiff,

versus

UNITED STATES OF AMERICA,

Petitioner,

THE ALABAMA CREDIT UNION ADMINISTRATION, SARAH MOORE, in her official capacity as the Administrator of the Alabama Credit Union Administration,

Defendants-Appellees, Case: 18-11176 Date Filed: 01/16/2020 Page: 2 of 38

MARK CANTOR,

Defendant.

________________________

No: 18-11192 ________________________

D.C. Docket No. 7:16-cv-01935-LSC

JOHN DEE CARRUTH, Plaintiff-Appellant,

TIM POWELL, Plaintiff,

SARAH MOORE, in her official Capacity as the Administrator of the Alabama Credit Union Administration, THE ALABAMA CREDIT UNION ADMINISTRATION, MARK CANTOR, UNITED STATES OF AMERICA,

Defendants-Appellees,

HAROLD G. MCCLELLAN, Respondent.

No: 18-13272 ________________________

D.C. Docket No.7:15-cv-01089-LSC

ALABAMA ONE CREDIT UNION, a not-for-profit financial institution, et al., Plaintiffs, JOHN DEE CARRUTH,

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an individual, Plaintiff-Appellant,

DAVID BYRNE, an individual, et al., Defendants, JUSTICE D SMYTH, III, “Jay”, an individual, LEWIS SMYTH WINTER FORD LLC, a domestic limited liability company, ALBERT G. LEWIS, III, an individual, Defendants-Appellees. ________________________

Appeals from the United States District Court for the Northern District of Alabama ________________________

(January 16, 2020)

Before ROSENBAUM, BRANCH, and HIGGINBOTHAM,* Circuit Judges.

PER CURIAM:

These three appeals all arise from the same set of alleged facts: a supposed

conspiracy by Alabama officials and regulators, federal regulators, and private

lawyers to take over the Alabama One Credit Union (“Alabama One”), fire its senior

leadership, and settle lawsuits with those private lawyers’ clients on terms the

lawyers found favorable. The plaintiffs appeal the district court’s grant of

* Honorable Patrick E. Higginbotham, Senior United States Circuit Judge for the Fifth Circuit, sitting by designation.

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defendants’ motions for summary judgment and, with respect to certain defendants,

the grant of motions to dismiss. After the benefit of oral arguments and careful

consideration, we affirm the district court in full.

I.

Defendant Alabama One is a state-chartered and federally insured credit

union. The plaintiff in two of the cases, John Carruth, was formerly the CEO of

Alabama One, from approximately 1998 until 2015. The plaintiffs in the third case

are Tim Powell, Denise Crawford, Edwin Harrell, Charlie West, Larry Sexton,

Richard Powell, and Martie Patton, who were all officers or board members of

Alabama One.

Like other credit unions, Alabama One was regulated by the Alabama Credit

Union Administration (“ACUA”), an independent state agency which is statutorily

authorized to regulate Alabama’s state-chartered credit unions.1 Larry Morgan

served as ACUA’s administrator from February 2011 to March 2014.

1 Alabama Code § 5-17-8 authorizes ACUA to conserve a state-chartered credit union in certain circumstances. Specifically, Ala. Code § 5-17-8(f) (2017) provides: (f) The Administrator of the Alabama Credit Union Administration, with the approval of a majority of the Credit Union Board of the Alabama Credit Union Administration, ex parte without notice, may appoint the Alabama Credit Union Administration as conservator and immediately take possession and control of the business and assets of any state-chartered credit union in any case in which any one of the following occurs: (1) The Alabama Credit Union Administration determines that the action is necessary to conserve the assets of any state-chartered credit union or the interests of the members of the credit union. (2) A credit union, by resolution of its board of directors, consents to the action by the Alabama Credit Union Administration.

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Alabama One found itself in regulatory trouble after it made member business

loans to Danny Butler, one of its members, in excess of the percentage of loans a

credit union is allowed to make to one member or associated group of members

under the relevant regulations. See generally 12 C.F.R. pt. 723 (defining and

regulating member business loans). In 2011, ACUA and the National Credit Union

Administration (“NCUA”) determined some action was in order, and issued a “letter

of understanding and agreement”2 to Alabama One regarding the Butler loans. The

letter of understanding and agreement required Alabama One to hire an outside law

firm to investigate the actions of Carruth and other senior management and hire an

outside accounting firm to perform a fraud audit and loan accounts verification. The

investigations did not reveal any evidence of wrongdoing, and the letter of

understanding and agreement was lifted in April 2013.

In July 2013, four lawsuits were filed against Alabama One in Alabama state

court, alleging various unlawful actions, including fraud, by borrower Butler and

(3) There is a willful violation of a cease-and-desist order which has become final. (4) There is concealment of books, papers, records, or assets of the credit union or refusal to submit books, papers, records, or affairs of the credit union for inspection to any examiner or to any lawful agent of the Alabama Credit Union Administration.

2 See 12 U.S.C. § 1786(s)(1)(A) (“The Board shall publish and make available to the public on a monthly basis . . . any written agreement or other written statement for which a violation may be enforced by the Board, unless the Board, in its discretion, determines that publication would be contrary to the public interest.”).

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Alabama One. Defendants Jay Smyth (“Smyth”) and Albert Lewis (“Lewis”), then

of the firm Lewis, Smyth, Winter, & Ford, LLC, eventually represented the plaintiffs

in all four cases. 3 A fifth lawsuit was filed in March 2015.

As that litigation was ongoing, Smyth started communicating with various

government officials, including David Byrne, Jr., the chief legal advisor to

then-Governor Robert Bentley, and individuals with ACUA and NCUA. In

particular, emails from late 2013 and early 2014 from Smyth and Lewis to Byrne,

state Senator Gerald Allen, and occasionally to Governor Bentley, show that Smyth

and Lewis communicated their desire for the replacement of Alabama One’s

leadership and, eventually, their desire to place Alabama One into conservatorship.

During the same time period, Smyth and Lewis also attended meetings at the State

Capitol; these meetings often included ACUA examiners.

On February 24, 2014, Smyth emailed Byrne, Senator Allen, and others (but

not ACUA) asking that ACUA take action that would “stay” proceedings in one of

the lawsuits his client had brought against Alabama One. A few days later, on

February 27, 2014, at a deposition for one of those lawsuits, Smyth told an attorney

working for Alabama One that if Alabama One did not settle, regulators would do

“bad things” to Alabama One. The next day, ACUA (under Morgan’s leadership)

3 These actions are not legally related to the appeals before us.

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suspended Carruth and three other employees.4 That evening, Smyth sent an email

with the subject line “Alabama One” to Byrne, commending him on his service to

the governor.

On March 3, 2014, Carruth and the other suspended Alabama One employees

filed an action in Alabama state court challenging their suspensions. On March 21,

4 Independent of its authority to conserve a credit union, ACUA also has the authority to suspend credit union officials for certain misconduct under Ala. Code § 5-17-8(d), which provides:

The Administrator of the Alabama Credit Union Administration may suspend from office and prohibit further participation in any manner in the conduct of the affairs of a credit union, any director, officer, committee member, or employee who has done any one of the following:

(1) Committed any violation of a law, rule, or regulation.

(2) Engaged or participated in any unsafe or unsound practice in connection with the credit union business.

(3) Engaged in any act, omission, or practice which constitutes a breach of fiduciary duty to the credit union.

(4) Committed any fraudulent or questionable practice in the conduct of the credit union's business which endangers the credit union's reputation or threatens insolvency.

(5) Violated any condition imposed in writing by the administrator or any written agreement made with the administrator.

(6) Concealed, destroyed, removed, falsified, or perjured any book, record, paper, report, statement, or account related to the business and affairs of the credit union.

(7) Unless the administrator directs otherwise, the prohibition against participation in the conduct of the affairs of a credit union shall remain effective until it is rescinded by a vote of the Credit Union Board of the Alabama Credit Union Administration.

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2014, ACUA allowed the suspended employees to return to work, after they signed

an agreement releasing their claims against ACUA. The very next day Morgan

resigned as administrator of ACUA.

On April 15, 2014, Governor Bentley appointed Sarah Moore as administrator

of ACUA, who had worked with Byrne in the past. As Administrator, she was the

chief executive officer of ACUA. She officially took office on July 1, 2014. A few

days after taking office, Moore informed Carruth that she was going to order another

examination of Alabama One by a third-party firm.

In late 2014 Smyth sent texts and emails to Moore requesting meetings

regarding Alabama One. Her responses indicated a willingness to meet, but only

with additional ACUA employees present. In March 2015, Smyth emailed Byrne,

complaining that Moore had not taken more aggressive action against Alabama One.

On April 2, 2015, ACUA issued a cease-and-desist order to Alabama One, a more

severe sanction that required Alabama One to undergo more extensive outside

review of its lending activities.

On June 29, 2015, Alabama One and Carruth filed a federal lawsuit against

the Smyth Group, Byrne, Moore, and others, alleging violations of § 1983, various

constitutional provisions, and Alabama state law. And on June 30, 2015, the

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examiners from ACUA and NCUA issued their annual Examination Report, 5 which

detailed the conclusions of both the federal and state examiners about the state of

affairs at Alabama One. Defendant Mark Cantor, an examiner at NCUA, was

assigned to supervise NCUA’s investigations of credit unions in the region that

included Alabama One at the time. On August 27, 2015, ACUA’s board, including

Moore, voted to place Alabama One in conservatorship. ACUA then terminated

Carruth, Powell, and the other plaintiffs. Moore testified that her motivation for

these actions was based, at least in part, on the Examination Report.

A. Procedural History

The plaintiffs filed multiple actions which are the subjects of these three

appeals. According to the plaintiffs, the conservatorship of Alabama One and the

termination of Carruth and other board members and officers of Alabama One were

the culmination of a conspiracy originating from Smyth’s and Lewis’s desire to gain

favorable settlements in their clients’ cases against Alabama One. The plaintiffs

alleged that Smyth and Lewis reached out to Byrne, the governor’s counsel, and

requested that the state impose regulatory sanctions on Alabama One and Carruth,

in the hopes that such regulatory pressure would persuade Alabama One to reach a

5 While the contents of the Examination Report are considered confidential, ACUA confirmed at oral argument that the existence of the Examination Report is public. Some of the district court’s various opinions are sealed to protect the Examination Report’s contents. Because our analysis does not turn on the details of those contents, we do not need to reference the portions of the district court’s discussion that include the details in the Examination Report.

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settlement that was favorable to them in the pending lawsuits. According to the

plaintiffs, the alleged conspiracy resulted in the appointment of Byrne’s friend

Moore as administrator of ACUA, and Moore’s subsequent actions to place Alabama

One into conservatorship and terminate Carruth, Powell, and the other plaintiffs. We

recount the procedural histories of the three cases before turning to the merits.

1. Appeal Nos. 18-11176 & 18-11192

We consolidated two of these appeals, 18-11176 and 18-11192, because they

present virtually identical issues and argument; the 16-part statement of issues in the

appellants’ briefs are virtually identical. The two cases have the same defendants:

ACUA, Moore, Cantor, and the United States. But each case has different plaintiffs-

appellants. In 18-11176, the plaintiffs are Powell and other board members and

officers of Alabama One. In 18-11192, the plaintiff is Carruth.

Powell and Carruth filed their nearly identical suits on September 8, 2015, in

the Circuit Court of Tuscaloosa County, Alabama, asserting state law and

constitutional claims against Moore and ACUA. Specifically, they alleged that

Moore and ACUA conspired with various private individuals (including Smyth and

Lewis, who are the defendants in the third appeal here, Carruth v. Smyth, No. 18-

11372) and government officials to conserve Alabama One and extract settlements

out of it for the ongoing litigation by Smyth and Lewis.

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On October 3, 2016, Powell and Carruth amended their complaints to join as

a co-defendant Cantor, alleging that he conspired with Moore and state officials to

take over Alabama One by way of the conservatorship. They allege that Cantor

recommended to Moore and ACUA that Alabama One should be placed into

conservatorship, stating at a meeting with ACUA that Alabama One was “the worst

managed credit union he had ever seen in 27 years,” and that he undertook to “join

into the conspiracy between state officials and private individuals to take over

Alabama One through a state-level conservatorship. The United States removed the

cases to federal court and filed a motion to substitute itself as a defendant in place

of Cantor with respect to the plaintiffs’ tort claims. The United States and Cantor

then immediately filed a motion to dismiss and a motion for summary judgment.

On February 15, 2018, the district court granted the motion for substitution

and the motions to dismiss as to the United States and Cantor.6 Because it dispensed

with the constitutional law claims for failure to state a claim, the district court did

not decide whether Cantor would be protected by qualified immunity. The district

court then converted the tort claims into Federal Tort Claims Act (“FTCA”) claims

against the United States because Cantor was acting within the scope of his authority

as a federal employee. The court then dismissed the FTCA claims against the United

6 Because the motions and legal issues in the cases are basically identical, the district court used the same analysis, even attaching and incorporating its opinion in the Carruth case into its dispositive memorandum and order in the Powell case.

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States because Carruth had failed to exhaust his administrative remedies under the

FTCA. The district court denied the plaintiffs’ subsequent motion to amend their

complaint.

Meanwhile, ACUA and Moore filed motions for summary judgment on

August 29, 2017 in one case and September 15, 2017 in the other. On February 23,

2018, the district court granted summary judgment in favor of ACUA and Moore on

all the constitutional, tort, and state law claims, with the exception of a state statutory

claim—a petition to show cause under Ala. Code § 5-17-8—which the district court

remanded to state court. In particular, the district court found that (1) Moore was

entitled to absolute immunity on claims against her in her official capacity,

(2) Moore was entitled to qualified immunity on the constitutional claims, (3) the

claims that Ala. Code. § 5-17-8 is unconstitutional were due to be dismissed, (4)

several state-law claims were precluded by Ala. Code § 5-17-8(m) or otherwise

failed, (5) the plaintiffs were not entitled to amend their second amended complaint,

and (6) the plaintiffs were not entitled to conduct additional discovery under Rule

56(d).

2. Appeal No. 18-13272

In 18-13272, Carruth brought an action against the private lawyers Smyth

and Lewis, as well as Lewis, Smyth, Winter, & Ford, LLC, for their part in the

alleged conspiracy to use the oversight of ACUA to pressure Alabama One and its

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CEO and board to settle lawsuits with Smyth’s and Lewis’s clients on favorable

terms. 7 Although 18-13272 was not consolidated with the other two cases, we

address it in the same opinion because it arises from the same facts.

Carruth filed this action in the district court on June 29, 2015, the day before

ACUA issued the Examination Report detailing its conclusions about Alabama One.

It alleged constitutional violations under 42 U.S.C. § 1983 including illegal searches

and seizures; retaliation; and denials of equal protection, substantive due process,

and the right of petition. It also alleged state torts including tortious interference,

intentional infliction of emotional distress, defamation, trespass, breach of fiduciary

duty, abuse of process, invasion of privacy, civil conspiracy, and violations of Ala.

Code § 5-5-370.

Smyth passed away on February 10, 2017, and on February 9, 2018, the

district court granted a motion to dismiss the claims against Smyth.

On July 9, 2018, the district court granted the defendants’ motion for summary

judgment and denied as moot Carruth’s motion for leave to file a supplement to his

7 The same facts were at issue in yet another appeal before this Court, Carruth v. Byrne, 942 F.3d 1047 (11th Cir. 2019) (“Carruth I”). In that case, Carruth sued then-Governor Bentley and David Byrne, his chief counsel, raising an array of constitutional civil rights claims under § 1983, as well as supplemental state law claims. Notably, Governor Bentley and Byrne were originally defendants in No. 18-13272 but were dismissed from the case without prejudice, so Carruth pursued a separate action against them. The district court ultimately dismissed all of the civil rights claims against Governor Bentley and Byrne on qualified immunity grounds, and we affirmed on appeal. Id. at 1063.

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response to the motion for summary judgment. His motion to supplement sought to

add his expert’s report, which addressed the Examination Report. 8 While the district

court did find that, viewed in the light most favorable to Carruth, there was a genuine

dispute of material fact “as to whether Defendants’ actions were primarily directed

toward obtaining a favorable settlement in their lawsuits through undue regulatory

pressure, rather than a legitimate government action” and as to whether the

defendants defamed Carruth, the court ultimately concluded that Carruth had not

shown sufficient evidence to establish a connection between the defendants’ actions

and Carruth’s termination such that he could establish injury. Carruth appealed both

orders.

II.

In 18-11192 and 18-11176, the plaintiffs appeal the district court’s February

15, 2018, parallel orders granting the motions to dismiss the claims against Cantor

and the United States. In 18-13272, Carruth appeals the district court’s dismissal of

all claims against Smyth and its grant of the defendants’ motion to dismiss. This

Court reviews a grant of a motion to dismiss de novo. McKusick v. City of

Melbourne, 96 F.3d 478, 482 (11th Cir. 1996).

8 Carruth renewed this motion to supplement the record on appeal with his expert’s report and this Court granted that motion on October 26, 2018.

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In 18-11192 and 18-11176, the plaintiffs also appeal the district court’s

February 23, 2018 orders granting summary judgment in favor of ACUA and Moore,

and the July 9, 2018 grant of summary judgment in favor of the remaining defendants

in 18-13272. This Court reviews a grant of summary judgment de novo and will

“construe the evidence and draw all reasonable inferences in the light most favorable

to the nonmoving party.” Ziegler v. Martin Cty. Sch. Dist., 831 F.3d 1309, 1318

(11th Cir. 2016). In doing so, the Court will “apply the same legal standards that

bound the district court.” Shuford v. Fid. Nat’l Prop. & Cas. Ins. Co., 508 F.3d 1337,

1341 (11th Cir. 2007). A motion for summary judgment is granted when “the movant

shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

In 18-11192 and 18-11176, the plaintiffs also appeal the district court’s denial

of their request to amend their complaint. This Court reviews such denials for abuse

of discretion. Stansell v. Revolutionary Armed Forces of Colom., 771 F.3d 713, 746

(11th Cir. 2014).

In 18-11192 and 18-11176, the plaintiffs also appeal the district court’s denial

of their request for relief under Rule 56(d). This court reviews a “district court’s

denial of a Rule [56(d)] motion under the abuse of discretion standard.” Fla. Power

& Light Co. v. Allis Chalmers Corp., 893 F.2d 1313, 1315 (11th Cir. 1990)

(originally referring to Fed. R. Civ. P. 56(f), the predecessor of present 56(d)).

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III.

We proceed to the merits, and address cases 18-11176 and 18-11192

together, followed by 18-13272. With the discussion of each case, we address the

various orders appealed by the plaintiffs in turn.

A. Appeal Nos. 18-11176 & 18-11192

The plaintiffs raise 16 identical issues on appeal in each of these cases. We

address all the issues, but consolidate some of them because they turn on similar

issues of fact or law. Because the arguments in the briefs are virtually identical, our

analysis does not distinguish between the cases, except where necessary.

1. Grant of Motion for Summary Judgment a. First Amendment - § 1983 Conspiracy Claim

The plaintiffs argue that the district court erroneously disregarded evidence of

a conspiracy among Moore, the other defendants, and Smyth and Lewis, to suspend

and then fire the plaintiffs, and to place Alabama One into conservatorship. “A

plaintiff may state a § 1983 claim for conspiracy to violate constitutional rights by

showing a conspiracy existed that resulted in the actual denial of some underlying

constitutional right,” and “must show that the parties ‘reached an understanding’ to

deny the plaintiff his or her rights.” Grider v. City of Auburn, 618 F.3d 1240, 1260

(11th Cir. 2010) (quoting Bendiburg v. Dempsey, 909 F.2d 463, 468 (11th Cir.

1990)). “For a conspiracy claim to survive a motion for summary judgment ‘[a] mere

“scintilla” of evidence . . . will not suffice; there must be enough of a showing that

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the jury could reasonably find for that party.’” Rowe v. City of Fort Lauderdale, 279

F.3d 1271, 1284 (11th Cir. 2002) (quoting Walker v. Darby, 911 F.2d 1573, 1577

(11th Cir. 1990)). Simply put, the plaintiffs “must show some evidence of agreement

between the defendants.” Id. See also Bailey v. Bd. of Cty. Comm’rs of Alachua Cty.,

956 F.2d 1112, 1122 (11th Cir. 1992) (“[T]he linchpin for conspiracy is

agreement.”).

Here, the plaintiffs have failed to offer even a “scintilla” of evidence of a

conspiracy. The plaintiffs simply point to Smyth’s and Lewis’s motivations to

influence Moore and ACUA in the oversight of Alabama One—and to be sure, there

is evidence that Smyth and Lewis wanted certain outcomes, including the

conservatorship of Alabama One. But when asked at oral argument what evidence

supported a conspiracy, the plaintiffs pointed to Smyth’s and Lewis’s messages to

and lobbying of various government officials, and the circumstances of Moore’s

appointment as administrator—implying that Moore was improperly influenced by

the Office of the Governor. What plaintiffs did not present, either at the argument,

in the briefing, or in the district court, was any evidence of an agreement with,

meeting of the minds with, or other feedback from Moore or other government

officials indicating that the actions against Alabama One or the plaintiffs were in any

way the result of a conspiracy with Smyth and Lewis. See Grider, 618 F.3d at 1260.

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What the evidence demonstrates instead is that Moore’s appointment was part

of the normal political appointment process. Moreover, Moore’s actions were in

response to the 2015 Examination Report, which was prepared by ACUA and

NCUA examiners. And despite plaintiffs’ expert’s disagreement with the contents

of the Examination Report, the plaintiffs have shown no evidence whatsoever that

the Examination Report was the product of outside influences. At the summary

judgment stage, when discovery has been completed and plaintiffs have had the

opportunity to present evidence of a conspiracy, the district court did not err in

finding that they had not met their burden of showing that the parties reached an

agreement to deny them their rights.

This same alleged conspiracy is the foundation of most of the claims in the

three cases before us. Because the plaintiffs have failed to show a conspiracy

between the defendants, any of their claims that rely on that conspiracy were

correctly disposed of by the district court for that reason.

b. Moore’s Qualified Immunity

Plaintiffs next challenge the court’s decision that Moore is entitled to qualified

immunity. To be entitled to qualified immunity, a government official must show

that he was acting within the scope of his discretionary authority—and if he was, the

plaintiff can prevail only if the plaintiff shows the defendant violated (1)

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constitutional rights that (2) were clearly established. Melton v. Abston, 841 F.3d

1207, 1221 (11th Cir. 2016).

The plaintiffs first argue that Moore was acting outside the scope of her

discretionary authority. Their arguments rest on the assertion that even if Moore was

engaging in the types of conduct authorized for an ACUA administrator to do

(overseeing a conservatorship and terminating employees), she still must do so “in

an authorized manner.” See Holloman ex rel. Holloman v. Harland, 370 F.3d 1252,

1266 (11th Cir. 2004). By being “corrupted by improper outside influence to

accomplish non-governmental objectives,” plaintiffs assert, Moore’s conduct fails

this test. However, as we recently explained in the case involving Carruth and similar

allegations against Byrne and former-Governor Bentley, “[t]his argument has been

rejected by our precedent: at this stage in the [qualified immunity] analysis, we

‘temporarily put [] aside the fact that [the official’s actions] may have been

committed for an unconstitutional purpose, in an unconstitutional manner, to an

unconstitutional extent, or under constitutionally inappropriate circumstances.’”

Carruth I, 942 F.3d at 1055 (second and third alteration in original) (quoting

Holloman, 370 F.3d at 1266)). To be clear, “[i]n this setting, we do not ask whether

the defendant[] acted illegally, because ‘[f]ramed that way, the inquiry is no more

than an “untenable” tautology’” and would allow a plaintiff to “plead around

qualified immunity simply by saying that the official was animated by an unlawful

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purpose.” Id. (quoting Harbert Int’l Inc. v. James, 157 F.3d 1271, 1282 (1998)).

Rather, “[f]or present purposes, the question is whether the official’s actions are of

the sort that fall within the ‘“ arsenal” of powers’ the official is given to ‘to

accomplish her goals.’” Id. (quoting Holloman, 370 F.3d at 1267)). Moore’s actions

in overseeing a conservatorship and terminating employees was clearly within the

scope of her discretionary authority. Thus the burden falls to Carruth to show that

Moore and ACUA violated (1) constitutional rights that (2) were clearly established.

Melton, 841 F.3d at 1221. We turn now to consider each of the rights that the

plaintiffs allege that Moore violated.

i. Equal protection

First, the plaintiffs advance an equal protection claim, relying on Village of

Willowbrook v. Olech, 528 U.S. 562, 564 (2000), which noted that Supreme Court

cases “have recognized successful equal protection claims brought by a ‘class of

one,’ where the plaintiff alleges that she has been intentionally treated differently

from others similarly situated and that there is no rational basis for the difference in

treatment.” But here instead of comparing his treatment to others similarly situated,

Carruth argues that Moore treated the 2015 version of Carruth differently than the

2012 version of Carruth, and thus violated the Equal Protection Clause. We rejected

this same theory in Carruth I, concluding “that the class of one equal protection

theory has no application to the decision to place Alabama One in conservatorship

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or to terminate Carruth as its CEO.” 942 F.3d at 1058. Moreover, as we observed

in Carruth I, “and equally fatal to this claim, Carruth’s attempt to use a prior version

of himself . . . as a comparator finds no support in our case law.” Id. And, to the

extent this is an issue of first impression, Moore is “almost certainly entitled to

qualified immunity, since there is rarely a clearly established violation of law in the

absence of supporting case law.” Id. Accordingly, the district court properly

determined that Moore was entitled to qualified immunity on this claim.

ii. Due Process

Next, the plaintiffs assert a due process claim. It is unclear of what exactly

their due process claim consists, but it appears that their argument to the district

court essentially boils down to a procedural due process violation based on their

frustration at ACUA and Moore firing them without first granting them notice or a

hearing, which was done pursuant to Ala. Code §§ 5-17-8(m), 9(n). 10 To support a

claim for deprivation of procedural due process under §1983, a plaintiff must show

9 Ala. Code § 5-17-8(m) provides:

After taking possession of the property and business of a credit union through conservatorship, the conservator may terminate or adopt any executory contract to which the credit union may be a party. The termination of any contracts shall be made within six months after the conservator has obtained knowledge of the existence of the contract or lease. Any provision in the contract or lease which provides for damages or cancellation fees upon termination shall not be binding on the conservator or credit union. The directors, the conservator, and the credit union are not liable for damages arising from or relating to such executory contracts. 10 “The administrator may appoint a temporary board of directors to any credit union subject to conservatorship.” Ala. Code § 5-17-8(n).

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“(1) a deprivation of a constitutionally-protected liberty or property interest; (2) state

action; and (3) constitutionally . . . inadequate process.” J.R. v. Hansen, 803 F.3d

1315, 1320 (11th Cir. 2015) (quoting Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th

Cir. 2003)).

Even if we assume (without deciding) that the plaintiffs possessed some

property interest in their employment at Alabama One, that interest was limited by

being subject to termination after conservation by ACUA or NCUA. See Ala. Code

§ 5-17-8(m),(n); 12 U.S.C. § 1786(g).11 Further, regarding the third prong of the

procedural due process analysis, Plaintiffs have failed to explain why the procedural

safeguard of Ala. Code § 5-17-8(g), which affords judicial review of a

conservatorship for a terminated official of a conserved credit union,12 is

11 The plaintiffs argue that the enactment of Ala. Code § 5-17-8(m) after they had begun their employment is an ex post facto deprivation of their property interests in that employment. This argument is also unavailing, as their employment was always subject to termination under conservation of the credit union, at least by 12 U.S.C. § 1786(g), which predated their employment. 12 Ala. Code § 5-17-8(g) provides:

Not later than 10 calendar days after the date on which the Alabama Credit Union Administration takes possession and control of the business and assets of a credit union pursuant to subsection (f), officials of the credit union who were terminated by the conservator may apply to the circuit court for the judicial circuit in which the principal office of the credit union is located for an order requiring the administration to show cause why it should not be enjoined from continuing possession and control. Except as provided in this subsection, no court may take any action, except at the request of the Credit Union Board by regulation or order, to restrain or affect the exercise of powers or functions of the board as conservator.

22 Case: 18-11176 Date Filed: 01/16/2020 Page: 23 of 38

constitutionally inadequate. Thus, the plaintiffs have failed to show that Moore

violated their constitutional rights.

Plaintiffs have also failed to show that the claimed rights are “clearly

established.” “A right is clearly established if a reasonable official would understand

that his conduct violates that right.” Melton, 841 F.3d at 1221. In light of the statutory

authority to place Alabama One into conservatorship, a reasonable ACUA

administrator would understand that she was authorized to place Alabama One into

conservatorship and to terminate officials.

iii. First Amendment

As a final constitutional claim, the plaintiffs look to the First Amendment.

They challenge the district court’s conclusion that they did not show Moore violated

their First Amendment rights by retaliating against them for their exercise of those

rights.

To establish a First Amendment retaliation claim, a plaintiff must allege “first,

that his speech or act was constitutionally protected; second, that the defendant’s

retaliatory conduct adversely affected the protected speech; and third, that there is a

causal connection between the retaliatory actions and the adverse effect on speech.”

Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005). The second prong is an

objective standard, meaning “[a] plaintiff suffers adverse action if the defendant’s

23 Case: 18-11176 Date Filed: 01/16/2020 Page: 24 of 38

alleged retaliatory conduct would likely deter a person of ordinary firmness from the

exercise of First Amendment rights.” Id. at 1254.

Regarding the first prong, it is not clear exactly what the plaintiffs define as

their protected speech. Their briefs imply that their First Amendment activity was

defending themselves “and Alabama One in the Smyth Lawsuits, challenging the

improper suspensions imposed by ACUA, initiating litigation to defend against the

improper actions of Moore and others, and initiating litigation against Moore and

others for damages suffered from the wrongful conduct of Moore and others.”

Nevertheless, the parties do not dispute, for present purposes, whether the plaintiffs

engaged in protected conduct or whether the purported retaliatory action had an

adverse effect that would deter “a person of ordinary firmness” from exercising their

First Amendment rights.

Rather, the parties, like the district court, focus on the third prong of the First

Amendment retaliation analysis: causation. The district court applied Foy v.

Holston, 94 F.3d 1528, 1535 (11th Cir. 1996), where we established that “[w]here

the facts assumed for summary judgment purposes in a case involving qualified

immunity show mixed motives (lawful and unlawful motivations) and pre-existing

law does not dictate that the merits of the case must be decided in plaintiff’s favor,

the defendant is entitled to immunity.” In applying Foy, the district court determined

24 Case: 18-11176 Date Filed: 01/16/2020 Page: 25 of 38

that Moore had an objectively reasonable—i.e., lawful—basis for her action, and

thus summary judgment was appropriate.

The plaintiffs take issue with the district court’s application of Foy arguing

that Moore’s actions were undisputedly unreasonable based on “unlawful

motivations” because “no objectively reasonable Administrator of an independent

state agency would follow the dictates of individuals outside of her agency.” As we

have already addressed, however, the plaintiffs have failed to provide sufficient

support for the alleged conspiracy, and allegedly “unlawful motivations” are

irrelevant at this stage to the qualified immunity analysis. Carruth I, 942 F.3d at

1055. Thus, summary judgment on this issue is appropriate.

c. Whether Ala. Code § 5-17-8 Violates the Equal Protection Clause or the Due Process Clause Plaintiffs argue that Alabama Code § 5-17-8 violates the Equal Protection

Clause and Due Process Clause by citing to their arguments that Moore’s conduct

violated those Clauses. For the same reasons we found those arguments unavailing

when applied to Moore’s conduct those arguments fail here.13

13 For their Due Process Clause argument, the plaintiffs also argue that they are asserting a facial challenge and that the Supreme Court precedent supports that assertion. They cite no cases in support of their argument, and offer no additional reasoning why the statute deprives them of a property interest without due process. Their brief to the district court discusses Gilbert v. Homar, 520 U.S. 924, 934–35, (1997), which enumerated three factors to “determine what process is constitutionally due,” specifically (1) “the private interest that will be affected by the official action; (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards”; and (3) “the Government’s interest.” Id. The plaintiffs offer no analysis of these factors, and we are therefore

25 Case: 18-11176 Date Filed: 01/16/2020 Page: 26 of 38

d. AAPA

In 18-11176, the plaintiffs challenge the conservatorship under the Alabama

Administrative Procedure Act (the “AAPA”) Ala. Code §§ 41-22-1–41-22-27. In

particular, they challenge the district court’s holding that because ACUA is not an

“agency” as defined by the AAPA, plaintiffs were not entitled to relief under the

AAPA (i.e., notice and hearing). To the contrary, plaintiffs assert ACUA is an

agency and thus the protections in the AAPA apply.

We do not have to reach the question of whether ACUA is an agency. The

AAPA provides certain rights to a party only in a “contested” case, which it defines

as proceedings “in which the legal rights, duties, or privileges of a party are required

by law to be determined by an agency after an opportunity for hearing.” Ala. Code

§ 41-22-3(3). 14 Because § 5-17-8(f) does not otherwise require a hearing before the

ACUA can place Alabama One into conservatorship, it is not a “contested case”

unpersuaded that the procedural safeguard of Ala. Code § 5-17-8(g) is constitutionally inadequate. 14 The definition in full: Contested case. A proceeding, including but not restricted to ratemaking, price fixing, and licensing, in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing. The term shall not include intra-agency personnel actions; shall not include those hearings or proceedings in which the Alabama Board of Pardons and Paroles considers the granting or denial of pardons, paroles or restoration of civil and political rights or remission of fines and forfeitures; and which are exempt from Sections 41-22-12 through 41-22-21, relating to contested cases.

Ala. Code § 41-22-3(3).

26 Case: 18-11176 Date Filed: 01/16/2020 Page: 27 of 38

under the AAPA. For that reason, we affirm the district court’s decision on this

issue.

2. Denial of Motion for Leave to Amend

Plaintiffs challenge the district court’s denials of their requests for leave to

amend their complaint and file a third amended complaint. In its denial, the court

wrote that “[a]llowing Plaintiffs to amend their current complaint will cause undue

delay in an action that has already been plagued by repeated delays,” and that

amendment would prejudice the defendants.

A party may amend its complaint only once as a matter of course. Fed. R. Civ.

P. 15(a)(1). After that, “[t]he court should freely give leave [to amend the complaint]

when justice so requires.” Fed. R. Civ. P. 15(a)(2). Reasons that justify denial

include “undue delay, bad faith or dilatory motive on the part of the movant, repeated

failure to cure deficiencies by amendments previously allowed, undue prejudice to

the opposing party by virtue of allowance of the amendment, futility of amendment,

etc.” Foman v. Davis, 371 U.S. 178, 182 (1962).

The significant undue delay and prejudice that the district court cited in its

opinion are more than enough to justify its denial of the motion for leave to amend.

The district court also pointed out that the plaintiffs had not shown “why they were

unable to insert the information, claims, or defendants they [sought] to add in their

third Amended Complaint to prior complaints.” Plaintiffs argue that the failure to

27 Case: 18-11176 Date Filed: 01/16/2020 Page: 28 of 38

add such detail to their previous amendments was a “tactical” decision they are

entitled to make. Indeed, it is a tactical decision they are entitled to make—and the

district court did not abuse its discretion when it declined to accommodate that

tactical decision. We affirm on this issue as well.

3. Denial of Rule 56(d)15 Request for Relief Carruth argues that the district court erred in denying his Rule 56(d) Motion.16

He argues that a discovery order in No. 18-13272 should have allowed him to prevail

on his Rule 56(d) motion.

Rule 56(d) “allows a party who has no specific material contradicting his

adversary’s presentation to survive a summary judgment motion if he presents valid

reasons justifying his failure of proof.” Fla. Power & Light, 893 F.2d at 1316

(quotations omitted). “The district court is not required to await the completion of

discovery before ruling on a motion for summary judgment,” but it “must ensure

15 Federal Rule of Civil Procedure 56(d) provides:

When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:

(1) defer considering the motion or deny it;

(2) allow time to obtain affidavits or declarations or to take discovery; or

(3) issue any other appropriate order. 16 Carruth filed a 56(d) motion (which the court denied) in his case, but Powell did not. Yet Powell argues that the court should have granted his 56(d) motion. The inclusion of this argument in his brief appears to be an error.

28 Case: 18-11176 Date Filed: 01/16/2020 Page: 29 of 38

that the parties have an adequate opportunity for discovery.” Id. A nonmovant “may

not simply rely on vague assertions that additional discovery will produce needed,

but unspecified, facts, but rather he must specifically demonstrate how

postponement of a ruling on the motion will enable him, by discovery or other

means, to rebut the movant’s showing of the absence of a genuine issue of fact.”

Wallace v. Brownell Pontiac-GMC Co., 703 F.2d 525, 527 (11th Cir. 1983)

(quotations omitted).

Discovery orders in 18-13272, which was not consolidated with these cases

in the district court, have no bearing on Carruth’s ability to pursue certain discovery

here. The district court listed numerous reasons why Carruth had adequate

opportunity for discovery, including the long period of time available and the

numerous earlier opportunities to file his Rule 56(d) motion. For those reasons, the

district court did not abuse its discretion in denying the Rule 56(d) motion.

4. United States’ Motion to Dismiss The plaintiffs also challenge the district court’s grant of the United States’

motion to dismiss and do so on several grounds. They reiterate their arguments for

leave to amend (though the district court did not address any motion to amend in its

grant of the motion to dismiss), assert that the United States was improperly

substituted as a party, and suggest—without plausible facts to support the

assertion—that “Cantor was a rogue federal agent who was acting outside of any

29 Case: 18-11176 Date Filed: 01/16/2020 Page: 30 of 38

‘formal actions by the NCUA,’” rendering the United States’ notice of substitution

ineffectual. They also allege the same constitutional violations against Cantor that

they alleged against Moore.

For all the reasons we articulated above regarding the lack of evidence to

support the alleged conspiracy, the district court did not err in granting the United

States’ motion to dismiss. As to Cantor, the plaintiffs’ second amended complaint

did not meet the burden of providing “allegations plausibly suggesting (not merely

consistent with) agreement.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007).

A statement of parallel conduct, even conduct consciously undertaken, needs some setting suggesting the agreement necessary to make out a . . . claim; without that further circumstance pointing toward a meeting of the minds, an account of a defendant’s . . . efforts stays in neutral territory. An allegation of parallel conduct is thus much like a naked assertion of conspiracy in a . . . complaint: it gets the complaint close to stating a claim, but without some further factual enhancement it stops short of the line between possibility and plausibility of entitlement to relief. Id. (quotations omitted). The complaint offered no evidence of an agreement or

conspiracy—no “factual enhancement”—that would create liability for Cantor. Thus

the district court’s dismissal of the claims against Cantor and the United States was

proper.

Moreover, the United States was properly substituted in this case, and Carruth

has shown no facts to support its allegations that Cantor acted outside the scope of

his employment. The United States “must remain the federal defendant in the action

30 Case: 18-11176 Date Filed: 01/16/2020 Page: 31 of 38

unless and until the District Court determines that the employee, in fact, and not

simply as alleged by the plaintiff, engaged in conduct beyond the scope of his

employment.” Osborn v. Haley, 549 U.S. 225, 231 (2007).

B. Appeal No. 18-13272

1. Summary Judgment In 18-13272, brought by Carruth against the private attorneys, Smyth and

Lewis, and their law firm, Carruth challenges the district court’s grant of summary

judgment in favor of the defendants on myriad grounds. We first enumerate the

arguments, finding that they all hinge on the existence of the same alleged

conspiracy. We then find that Carruth has failed to show a genuine issue of material

fact with regard to the existence of that alleged conspiracy, so we affirm the district

court on these issues.

First, Carruth brought several constitutional claims related to his 2014

suspension and 2015 termination, alleging that Smyth and Lewis were involved in a

conspiracy with government officials to deprive him of his constitutional rights. In

granting summary judgment, the district court found that despite Smyth’s dismissal

from the case (and the fact that most of the communications with government

officials were from Smyth), it would assume in its analysis that Carruth had shown

a genuine issue of material fact as to “whether all Defendants participated in the

31 Case: 18-11176 Date Filed: 01/16/2020 Page: 32 of 38

agreement to suspend Carruth.” Even so, the district court found that Carruth had

not shown any constitutional injury from his suspension.

Second, with regard to his suspension in 2014, Carruth argues that the district

court erred by finding that the suspension did not arise to a deprivation of his liberty

interest. Carruth’s theory is that the conspiracy among Smyth, Lewis, and

government officials to suspend him resulted in the reputational harm. “In order to

establish that a deprivation of a public employee’s liberty interest has occurred

without due process of law, the employee must prove that: (1) a false statement (2) of

a stigmatizing nature (3) attending a governmental employee's discharge (4) was

made public (5) by the governmental employer (6) without a meaningful opportunity

for employee name clearing. Cannon v. City of W. Palm Beach, 250 F.3d 1299,

1301 (11th Cir. 2001). The district court applied the “stigma-plus” test created by

Paul v. Davis, 424 U.S. 693 (1976). Under that test, “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 1299, 1302 (11th Cir. 2001).

Third, with respect to Carruth’s termination, he argues that the defendants are

guilty of conspiring to commit constitutional violations. Although his initial brief is

unclear as to what constitutional violations, the defendants’ response and Carruth’s

32 Case: 18-11176 Date Filed: 01/16/2020 Page: 33 of 38

reply brief mention equal protection, due process, and takings claims. As in

18-11192, Carruth also insists that he had a property interest in his employment, and

so his firing without a hearing violated his constitutional rights.

Fourth, Carruth alleges that somehow the private individual defendants, in

conjunction with the Office of the Governor and others, were able to get the

provision that is now § 5-17-8(m) of the Alabama Code (granting authorization to a

conservator to terminate contracts to which the credit union is a party) included in

new legislation in order to enable Moore to fire Carruth, and that this conduct

somehow constituted tortious interference with a business relationship. “Under

Alabama law, the tort of wrongful interference with a business relationship has five

elements: (1) the existence of a protected business relationship; (2) of which the

defendant knew; (3) to which the defendant was a stranger; (4) with which the

defendant intentionally interfered; and (5) damage.” Edwards v. Prime, Inc., 602

F.3d 1276, 1302 (11th Cir. 2010). In order to bring this claim against the defendants,

this argument too assumes a conspiracy among, Smyth, Lewis, and the government

officials.

Lastly, Carruth also asserts that the district court erred by granting summary

judgment for the defendants on his claim that Smyth’s and Lewis’s statements to

regulators constituted defamation. Under Alabama law, “[t]o establish a prima facie

case of defamation, the plaintiff must show (1) that the defendant was at least

33 Case: 18-11176 Date Filed: 01/16/2020 Page: 34 of 38

negligent, (2) in publishing (3) a false and defamatory statement to another

(4) concerning the plaintiff, (5) 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). The district court determined that Smyth and

Lewis’s statements were “actionable per quod”; thus, Carruth must show damages

for the statements to be actionable. Carruth argues that the court erred in two ways:

(1) holding that there was insufficient evidence to tie the defendants’ conduct to his

termination (as discussed above); and (2) that the court disregarded a category of

special damages for attorney’s fees and expenses “as a result of the improper

regulatory activity prompted by the defamation.” Consequently, this claim also

requires Carruth to provide evidence of the alleged conspiracy.

All these arguments fail for the same reason. The numerous and disparate

legal theories which Carruth raises hinge on the same factual assumption: Smyth and

Lewis were engaged in a conspiracy with state officials and regulators to place

Alabama One into conservatorship and suspend—and later fire—Carruth. The

district court concluded that Carruth had offered “the barest of evidence of any

contact between Moore and the Defendants,” much less evidence of a conspiracy,

and we agree. As the district court accurately described, Moore’s replies to Smyth’s

communications were “noncommittal and objective,” and the nature of the

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communications shows Moore was “not part of the conspiracy, and because she was

the ultimate decision-maker and cause of Carruth’s termination, Defendants cannot

be liable for acts Moore committed.”17 Similarly, Carruth points to no evidence that

the defendants had any discussions with government officials specifically about the

new legislative provision that became Alabama Code § 5-17-8(m). In short, the

district court did not err in granting summary judgment on these issues.

Citing no case law to support the proposition, Carruth argues that his burden

in his case against Smyth and Lewis is not as heavy as his case against Moore,

because even if Moore was not in on the conspiracy, she was an “instrumentality of

the conspiracy between the defendants,” Governor Bentley, and Byrne. It is not

clear how Moore could be simultaneously an “instrumentality of the conspiracy” and

not part of the conspiracy herself. Regardless, this argument does not change the

dispositive fact noted by the district court: Moore “was the ultimate decision-maker

and cause of Carruth’s termination.” The district court correctly found no dispute of

17 Carruth’s suspension occurred when ACUA was under Morgan’s leadership, not Moore’s. There, too, Carruth has failed to show the existence of an unlawful conspiracy. The district court, taking the facts in a light most favorable to Carruth, saw “a dispute of material fact as to whether there was an agreement to suspend Carruth” among Smyth, Byrne, and Governor Bentley.” But the district court was quick to note that this finding did not mean such an agreement was unlawful, and it made no such determination because it found no constitutional injury. We also note that this finding was solely as to Smyth, who has been dismissed from the case, and not Lewis.

35 Case: 18-11176 Date Filed: 01/16/2020 Page: 36 of 38

material fact regarding the defendants’ role (or lack thereof) in Carruth’s firing, and

summary judgment was appropriate.

2. Motion for Leave to Supplement Response

Carruth also seeks reversal of the district court’s denial of his motion for leave

to supplement the evidentiary record with his expert’s report on the financial health

of Alabama One. He made the same motion on appeal, and this Court granted

Carruth’s motion to supplement the record on appeal on October 26, 2018. We

review the district court’s grant of summary judgment de novo, and have the benefit

of access to the supplemental material, so this issue is now moot.

3. Motion to Dismiss Smyth from the Case Smyth passed away on February 10, 2017. Counsel for the defendants served

Carruth with a “Suggestion of Death” on February 16, 2019. Carruth nevertheless

argues that the district court erred by dismissing Smyth from the case under Federal

Rule of Civil Procedure 25.18 Rule 25(a)(2) states that “[i]f the motion [for

18 Rule 25(a) of the Federal Rules of Civil Procedure provides in full:

(a) Death.

(1) Substitution if the Claim Is Not Extinguished. If a party dies and the claim is not extinguished, the court may order substitution of the proper party. A motion for substitution may be made by any party or by the decedent’s successor or representative. If the motion is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed.

(2) Continuation Among the Remaining Parties. After a party’s death, if the right sought to be enforced survives only to or against the remaining parties, the action

36 Case: 18-11176 Date Filed: 01/16/2020 Page: 37 of 38

substitution] is not made within 90 days after service of a statement noting the death,

the action by or against the decedent must be dismissed.” Carruth argues that the

statement noting the death was not “served” in accordance with Rule 5, as dictated

by Rule 25(a)(3), and thus there was no 90-day deadline for him to file a notice of

substitution of a successor or representative.

The question turns on whether the “Suggestion of Death” was sufficient to

start the 90-day deadline. Carruth relies primarily on Atkins v. City of Chicago, 547

F.3d 869, 873 (7th Cir. 2008), which stated that “nonparties with a significant

financial interest in the case, namely the decedent’s successors (if his estate has been

distributed) or personal representative (it has not been), should certainly be served.”

Thus, because Smyth’s representative or successors were not served with the notice

of death, Carruth argues that nonparties were not served as provided in Rule 4, as

required by Rule 25(a)(3), and he claims that the 90-day clock never started. The

defendants, on the other hand, argue that because Smyth had “no estate and no

successor,” there was no unserved non-party.

does not abate, but proceeds in favor of or against the remaining parties. The death should be noted on the record.

(3) Service. A motion to substitute, together with a notice of hearing, must be served on the parties as provided in Rule 5 and on nonparties as provided in Rule 4. A statement noting death must be served in the same manner. Service may be made in any judicial district.

37 Case: 18-11176 Date Filed: 01/16/2020 Page: 38 of 38

Carruth was properly served under Rule 25, and that fact is not in dispute.

And by every indication Smyth had no representatives of his estate or successors.

As the district court noted, “[t]o insist that Defendants serve a nonexistent, non-party

makes no sense and would create an infinite loop whereby no valid Suggestion of

Death is ever filed because there is no personal representative of Defendant Smyth.

The result being a never-ending case.” We affirm. 19

IV.

In conclusion, the decisions of the district court are

AFFIRMED.

19 We note that even if Smyth was still properly a party in this case, Carruth failed to show a genuine issue of material fact regarding the alleged conspiracy and the district court correctly granted summary judgment for the remaining defendants. That same reasoning would apply to Smyth.