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Grillot v. State ex rel. University of Oklahoma Board of Regents

United States District Court, W.D. Oklahoma

August 5, 2019

SUZETTE GRILLOT, Plaintiff,
v.
STATE OF OKLAHOMA, ex rel. UNIVERSITY OF OKLAHOMA BOARD OF REGENTS, et al., Defendants.

          ORDER

          STEPHEN P. FRIOT UNITED STATES DISTRICT JUDGE.

         Defendants 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, [1] and is alleged against the moving defendants only. Doc. no. 10. Plaintiff Suzette Grillot responded to the motion, objecting to dismissal. Doc. no. 11.[2]Gallogly and Harper (“defendants, ” hereafter) filed a reply brief. Doc. no. 12.

         For the reasons set out in this order, the motion to dismiss will be granted.

         Discussion

         The 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.

         The 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.

         Thus, 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)[3] - interfered with plaintiff's business opportunities and contracts with OU when they removed plaintiff from the roles and positions described above.

         The 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.

         1.Standards

         A Rule 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.[4] Accordingly, the court will set out the standards applicable to both types of Rule 12(b)(1) motions.

         “[A] 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).

         Applying either of these standards to the Rule 12(b)(1) portion of the motion, the results ...


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