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DOCUMENT 72

ELECTRONICALLY FILED
6/1/2016 3:03 PM
03-CV-2016-900538.00
CIRCUIT COURT OF
MONTGOMERY COUNTY, ALABAMA
TIFFANY B. MCCORD, CLERK

IN THE CIRCUIT COURT OF


MONTGOMERY COUNTY, ALABAMA
SPENCER COLLIER,

)
)
Plaintiff,
)
)
vs.
) CIVIL ACTION NO. 2016-900538
)
ROBERT BENTLEY; STAN STABLER;
)
REBEKAH MASON; ALABAMA
) ORAL ARGUMENT REQUESTED
COUNCIL FOR EXCELLENT
)
GOVERNMENT; RCM COMMUNICATIONS )
INC.; BENTLEY FOR GOVERNOR, INC.,
)
)
Defendants.
)
DEFENDANT REBEKAH MASONS MOTION TO DISMISS, OR,
IN THE ALTERNATIVE, MOTION TO STAY
COMES NOW, Defendant Rebekah Mason (hereinafter Mrs. Mason) and moves to
dismiss Plaintiffs Complaint with respect to Counts II, IV, VI, and VIII, the only counts of
Plaintiffs Complaint in which Plaintiff seeks recovery from Mrs. Mason; or, in the alternative,
Mrs. Mason moves this Court to stay the above-styled civil action in its entirety. In support
thereof, Mrs. Mason says the following:
A.

Colliers Invasion of Privacy and Defamation Claims Should be Dismissed


Based on Colliers Own Admissions.

Count II (Invasion of Privacy) and Count IV (Defamation) of Colliers Complaint are due
to be dismissed under Rule 12(b)(6) of the Alabama Rules of Civil Procedure as both Counts fail
to state a claim upon which relief may be granted. To state a claim for false-light invasion of
privacy, Collier must allege that this Defendant gave publicity to a matter concerning Collier that
placed Collier in a false light before the public and (a) the false light in which [Collier] was
placed would be highly offensive to a reasonable person, and (b) [this Defendant] had knowledge
of or acted in reckless disregard as to the falsity of the publicized matter and the false light in
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which [Collier] would be placed. Regions Bank v. Plott, 897 So.2d 239, 244 (Ala. 2004)
quoting, Butler v. Town of Argo, 871 So.2d 1, 12 (Ala. 2003). Likewise, falsity is the sine qua
non of a false light claim and unlike defamation, truth is not an affirmative defense to a falselight claim; rather, falsity is an element of the plaintiff's claim, on which the plaintiff bears the
burden of proof. Id. (emphasis in original).
The elements of a cause of action for defamation are: 1) a false and defamatory
statement concerning the plaintiff; 2) an unprivileged communication of that statement to a third
party; 3) fault amounting at least to negligence on the part of the defendant; and 4) either
actionability of the statement irrespective of special harm or the existence of special harm caused
by the publication of the statement. Wal-Mart Stores, Inc. v. Smitherman, 872 So.2d 833, 840
(Ala. 2003) quoting, McCraig v. Talladega Publg Co., 544 So.2d 875, 877 (Ala. 1989).
Alabama law is clear, therefore, that to be actionable both a false-light invasion of privacy claim
and a defamation claim require a false statement.
In this case, no false statement is alleged. Collier alleges in Count II (Invasion of
Privacy) that Defendants put him in a false light and position in the eyes of the public by stating
that Collier had refused to follow Bentleys order not to submit a sworn affidavit to the Attorney
General in the Mike Hubbard case. Complaint, 50. Colliers Complaint also alleges, however,
that this same statement is true and that he chose to follow the law and his responsibilities as a
law enforcement officer and disobeyed Bentleys unlawful orders. Complaint, 34 (emphasis
added). Therefore, Colliers false-light invasion of privacy claim fails on that basis.
It also fails because [a]n action for invasion of privacy based on false light . . . cannot
relate to any matter which is inherently public or of legitimate interest to the public. 2 Ala. Pers.
Inj. & Torts 12:28 (2014 ed.), citing 62 Am. Jur. 2d, Privacy, 2. Likewise, Frequently the

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public has an interest in an individual which transcends his right to be let alone, and since the
whole is greater than its component parts, private rights must often yield to public interest.
Smith v. Doss, 37 So.2d 118, 120 (Ala. 1948) quoting, Michigan Law Review, Vol. 39, p. 526.
In other words the right of privacy does not prohibit the broadcast of matter which is of
legitimate public or general interest. Id. at 120. In this case, the statement alleged to have
invaded Colliers privacy concerns both a public figure, the Secretary of ALEA, and a matter of
legitimate public interest, the prosecution of the Speaker of Alabamas House of Representatives.
With respect to Colliers defamation claim, his Complaint avers that the allegedly
defamatory statement published to the media and to the public [is] that Collier had disobeyed a
direct order by the Governor . . . . Complaint, 62. Yet, as with his invasion of privacy claims
Colliers Complaint also alleges that this statement is true and that he chose to follow the law
and his responsibilities as a law enforcement officer and disobeyed Bentleys unlawful orders.
Complaint, 34 (emphasis added). Because [t]ruth is an absolute defense to defamation . . . .,
e.g., Foley v. State Farm Fire & Cas. Ins. Co., 491 So.2d 934, 937 (Ala. 1986), and Collier has
failed to allege a false statement, his defamation claim also should be dismissed.
B.

Colliers Intentional Interference Claim Should be Dismissed because Mrs.


Mason is not a Stranger to the Business Relationship.

Count VI of Colliers Complaint is also due to be dismissed under Rule 12(b)(6) of the
Alabama Rules of Civil Procedure because it fails to state a claim upon which relief may be
granted. Count VI alleges that Mrs. Mason intentionally interfered with Colliers employment
relationship with Governor Bentley. Specifically, Collier contends that Mrs. Mason interfered
by falsifying information and charges, among other things, and [] otherwise enourage[d]
Bentley to terminate Collier. Complaint, 75.

Likewise, Collier alleges that Bentleys

decision to terminate Collier was based, in part, on Masons interference. Complaint, 76.
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For a claim of intentional interference with business or contractual relations to be


actionable, requires: (1) The existence of a contract of business relation; (2) Defendants
knowledge of the contract or business relation; (3) Intentional interference by the defendant with
the contract or business relation; (4) Absence of justification for the defendants interference;
and (5) Damage to the plaintiff as a result of defendants interference. Creel v. Davis, 544 So.2d
145, 146 (Ala. 1989). In addition, the Alabama Supreme Court has explained that, a party to a
contract cannot, as a matter of law, be liable for tortious interference with the contract, and that a
principals agent or employee, who acts for or on behalf of the principal, is a party to that
principals contractual and business relations and not a stranger thereto. Id. at 146 (internal
citations omitted).
In this case, Colliers claim for intentional interference cannot prevail because Collier
cannot establish that Mrs. Mason was a stranger to his business relationship with Governor
Bentley. In fact, Colliers Complaint alleges that Mrs. Mason at all material times, [] served as
an agent or servant of Defendant Bentley . . . . Complaint, 4. In other words, Colliers own
Complaint contends that Mrs. Mason was not a stranger to his business relationship with
Governor Bentley. As a result, Mrs. Mason cannot, as a matter of law, be liable for tortious
interference with the business relationship. Further, Collier cannot establish, nor does he even
allege, a sufficient causal connection between any alleged actions by Mrs. Mason and Governor
Bentleys decision to terminate Collier. To the contrary, Colliers Complaint contends that
Bentleys decision to terminate Collier was based, in part, on Masons interference.
Complaint, 77 (emphasis added). Therefore, Collier has not alleged and cannot prove that he
was damaged as a result of any action taken by Mrs. Mason. For these reasons, Count VI of
Colliers Complaint is due to be dismissed with prejudice pursuant to Rule 12(b)(6).

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C.

Colliers Wrongful Termination Claim Should be Dismissed because it Fails


to State a Cognizable Claim under Alabama Law.

Collier alleges in Count VIII of his Complaint that he was wrongfully terminated from
his position as Secretary of the Alabama Law Enforcement Agency (ALEA). Section 41-272(b)(1) of the Code of Alabama provides that [t]he secretary [of the Alabama State Law
Enforcement Agency] shall be appointed by and hold office at the pleasure of the Governor . . .
. Colliers Complaint establishes that Governor Bentley appointed Collier to the office of
Secretary of the newly created Alabama Law Enforcement Agency. Complaint, 21. As the
Secretary of the Alabama Law Enforcement Agency, Collier was an at-will employee, who,
under Alabama law, can be terminated by [his] employer, at any time, with or without cause or
justification. Howard v. Wolff Broadcasting Corp., 611 So.2d 307, 309 (Ala. 1992) quoting,
Allied Supply Co. v. Brown, 558 So.2d 33, 35 (Ala. 1991). In fact, under Alabama law [i]f the
employment is terminable at will, the employer may even act maliciously in terminating the
employee. Id. at 310.
Further, although the Alabama Legislature has created certain statutory exceptions to the
employment-at-will doctrine, the facts alleged in Colliers Complaint do not satisfy any of these
exceptions. Even if the facts as alleged in Colliers Complaint are true (they are not), he
nonetheless fails to state a cause of action upon which relief can be granted. As the Alabama
Supreme Court has recognized, when a plaintiff alleges that he was terminated because he failed
to commit an allegedly illegal act, no cause of action for wrongful termination exists. See Wright
v. Dothan Chrysler Plymouth Dodge, Inc., 658 So.2d 428 (Ala. 1995) (holding that plaintiffs
claim that he was wrongfully terminated because he failed to commit the alleged illegal act

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was properly dismissed by the trial court pursuant to Rule 12(b)(6) since the Alabama
Legislature has created no such cause of action for a situation like Wrights.).
Finally, Count VIII of Colliers Complaint is also due to be dismissed because Collier has
not alleged that Defendant Mason had authority to terminate Colliers employment. For these
reasons, Count VIII of Colliers Complaint should be dismissed with prejudice pursuant to Rule
12(b)(6).
WHEREFORE, for the reasons set forth herein, Defendant Mason respectfully requests
that the Court enter an Order dismissing Counts II, IV, VI, and VIII, the only counts of
Plaintiffs Complaint in which Plaintiff seeks recovery from Mrs. Mason, and for such other,
further and different relief as to which Mrs. Mason may be entitled.
MOTION TO STAY
In the event that this Court does not dismiss this matter as requested herein, Defendant,
Rebekah Mason, moves this Honorable Court to stay 1 the above-styled civil action in its entirety.
In support thereof, Mrs. Mason says the following:
1.

Mrs. Mason is a defendant in the above-styled matter.

2.

Upon information and belief, Mrs. Mason is, or may be, the subject of ongoing criminal

investigations relating to, among other things, her prior employment as a Senior Political
Advisor to Defendant Governor Robert Bentley.
3.

The allegations and issues presented in Plaintiff Spencer Colliers Complaint and the

believed areas of criminal investigation overlap and focus on the same alleged conduct.

Mrs. Mason files this Motion to Stay only out of an abundance of caution in the event that the
Court declines to dismiss this matter. Mrs. Mason believes the claims against her are due to be
dismissed on the grounds as set forth herein, and her request for a stay, in the event her motion is
not granted, or is not granted before time to answer Plaintiffs discovery has lapsed, in no way
waives her motion to dismiss.
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4.

Any testimony that Mrs. Mason might give or documents she might produce in this

matter could potentially be used against her in connection with the ongoing criminal
investigations. 2
5.

Therefore, Mrs. Mason reasonably apprehends a risk of self-incrimination if she

participates in the present civil action.


6.

Mrs. Mason asserts her rights under the First, Fourth, Fifth, Sixth, and Ninth

Amendments to the United States Constitution and the Alabama Constitution.


7.

A stay is necessary to preserve Mrs. Masons constitutional rights as guaranteed by the

United States Constitution and the Alabama Constitution. Mrs. Mason likewise reserves the right
to submit additional matters and assert additional claims in connection herewith.
8.

As a result of the unquestionable importance placed on the constitutional privileges and

the consistency with which the Alabama Courts have upheld the privilege in civil cases factually
similar to this one, this Court should stay the present action.
WHEREFORE, Defendant Rebekah Mason respectfully requests that this Court enter an
Order staying all proceedings in this case, and for such other, further and different relief as to
which Mrs. Mason may be entitled.

Respectfully submitted this the 1st day of June, 2016.

To be clear, Mrs. Mason denies each and every allegation of the Complaint, and contends that
she has done nothing wrong either civilly or criminally.
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/s/ William P. Gray, Jr.


WILLIAM P. GRAY, JR. (ASB-5268-R78W)

/s/ Douglas N. Robertson


DOUGLAS N. ROBERTSON (ASB-1128-O76R)
Attorneys for Defendant Rebekah Mason

OF COUNSEL:
GRAY & ASSOCIATES, L.L.C.
3800 Colonnade Parkway, Suite 350
Birmingham, Alabama 35243
Telephone:
(205) 968-0900
Facsimile:
(205) 968-6534

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CERTIFICATE OF SERVICE
I hereby certify that on this 1st day of June, 2016, I filed the foregoing with the Clerk of
the Court using the Alafile System which will serve the following counsel of record
electronically:

Kenny J. Mendelsohn
Jemison & Mendelsohn
1772 Platt Place
Montgomery, Alabama 36117
kenny@jmfirm.com

Thomas E. James
Law Offices of Tommy James
2700 Corporate Drive, Suite 200
Birmingham, Alabama 35242
Tjameslaw1@gmail.com

John C. Neiman, Jr.


Stephanie Houston Mays
Mark D. Foley, Jr.
Maynard Cooper & Gale
1901 6th Avenue N., Suite 2400
Birmingham, Alabama 35203-2602
jneiman@maynardcooper.com

Joseph C. Espy, III


Benjamin J. Espy
William M. Espy
MELTON, ESPY & WILLIAMS, P.C.
P.O. Drawer 5130
Montgomery, Alabama 36103
Telephone: 334-263-6621
jespy@mewlegal.com
bespy@mewlegal.com
wespy@mewlegal.com

Robert D. Segall
Ashley N. Penhale
Copeland, Franco, Screws & Gill, P.A.
Post Office Box 347
Montgomery, Alabama 36101-0347
Phone: (334) 834-1180
Fax: (334) 834-3172
Email: segall@copelandfranco.com
Email: penhale@copelandfranco.com

/s/ Douglas N. Robertson


Of Counsel