United States District Court, W.D. Oklahoma
STEPHEN P. FRIOT UNITED STATES DISTRICT JUDGE.
James L. Gallogly and Jon Kyle Harper move to dismiss the
tortious interference with business relations claim (tortious
interference claim). Doc. no. 10. The tortious interference
claim is the third of three claims alleged in this action,
is alleged against the moving defendants only. Doc. no. 10.
Plaintiff Suzette Grillot responded to the motion, objecting
to dismissal. Doc. no. 11.Gallogly and Harper (“defendants,
” hereafter) filed a reply brief. Doc. no. 12.
reasons set out in this order, the motion to dismiss will be
tortious interference claim alleges:
The acts of Defendants Gallogly and Harper against Plaintiff
tortiously interfered with [plaintiff's] business
opportunities and contracts by retaliating against her and
punishing her for her constitutionally protected conduct, as
well as her gender.
Doc. no. 1, ¶ 71.
phrase “business opportunities and contracts, ”
as used within this claim, is construed to refer to the roles
and positions which plaintiff allegedly held at OU and from
which she was allegedly removed. Specifically, the complaint
alleges that plaintiff was: 1) dismissed from the position of
Dean of the David L. Boren College of International Studies;
2) dismissed from the position of Vice Provost of
International Programs at the University of Oklahoma; 3)
removed from her role and responsibilities as leader of the
President's Community Scholars Program (study abroad
programs); and 4) removed from her title, role and
responsibilities associated with the William J. Crowe, Jr.,
Chair in Geopolitics in the Department of International and
Area Studies. Doc. no. 1, ¶¶ 13, 26.
the tortious interference claim alleges that Gallogly and
Harper - as the (now former) president of OU (Gallogly), and
the senior vice president and provost of OU (Harper) -
interfered with plaintiff's business opportunities and
contracts with OU when they removed plaintiff from the roles
and positions described above.
motion asks the court to dismiss Gallogly and Harper from
this claim on two grounds: defendants' immunity as state
employees, an argument which is considered under Rule
12(b)(1), Fed. R. Civ. P., because immunity implicates
jurisdiction; and failure to state a claim, an argument which
is considered under Rule 12(b)(6), Fed. R. Civ. P.
12(b)(1) motion to dismiss for lack of subject matter
jurisdiction may take two forms: a facial attack challenging
the complaint's allegations or a factual attack
challenging the facts upon which subject matter jurisdiction
depends. Holt v. United States, 46 F.3d 1000, 1002
(10th Cir.1995). Defendants do not state whether their motion
is intended as a facial or factual attack on jurisdiction,
and it is not completely clear how the motion should be
characterized. Accordingly, the court will set out the
standards applicable to both types of Rule 12(b)(1) motions.
facial attack on the complaint's allegations as to
subject matter jurisdiction questions the sufficiency of the
complaint. In reviewing a facial attack on the complaint, a
district court must accept the allegations in the complaint
as true.” Id. In contrast, “[w]hen
reviewing a factual attack on subject matter jurisdiction, a
district court may not presume the truthfulness of the
complaint's factual allegations. A court has wide
discretion to allow affidavits, other documents, and a
limited evidentiary hearing to resolve disputed
jurisdictional facts under Rule 12(b)(1). In such instances,
a court's reference to evidence outside the pleadings
does not convert the motion to a Rule 56 motion.”
Id. at 1003 (internal citations omitted).
either of these standards to the Rule 12(b)(1) portion of the
motion, the results ...