DOCUMENT 50

ELECTRONICALLY FILED
5/25/2016 5:02 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 RCM COMMUNICATIONS, INC.S
MOTION TO DISMISS
COMES NOW, Defendant RCM Communications, Inc., (hereinafter RCM) and moves
to dismiss Plaintiffs Complaint, and with respect to Counts II, IV, and VIII, the only counts of
Plaintiffs Complaint in which Plaintiff seeks recovery from RCM, RCM says as follows:
A.

Colliers Complaint Fails to State a Claim against This Defendant

Pursuant to Rule 12 of the Alabama Rules of Civil Procedure, Plaintiff Spencer Colliers
(hereinafter Collier) Complaint fails to state a claim upon which relief can be granted against
this Defendant. Colliers Complaint identifies RCM as a party to this action, and in Count II
(Invasion of Privacy), Count IV (Defamation), and Count VIII (Wrongful Termination) seeks
judgment against Defendant RCM. However, Collier fails to state a claim in any of these Counts
and/or anywhere in the Complaint against RCM. As such, Colliers action fails to state a claim
and must be dismissed. The only basis of the claims against this Defendant appears to be that
Defendant Mason is allegedly an agent or servant of this Defendant. Such abstract allegations are
insufficient and do not satisfy the requirements of the Alabama Rules of Civil Procedure. In

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addition, with respect to this Defendant, Counts II, IV, and VIII of Colliers Complaint fail to
comply with Ala. R. Civ. P. Rule 9. As a result, Counts II, IV and VIII of Colliers Complaint are
due to be dismissed.
B.

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 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 false-light 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

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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
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

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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.
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
4

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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 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 as to RCM because
Collier has not alleged that either RCM or 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).

Respectfully submitted this the 25th day of May 2016.

s/ Robert D. Segall
Robert D. Segall (SEG003)
Ashley N. Penhale (PEN029)
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
Attorneys for RCM Communications, Inc.

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CERTIFICATE OF SERVICE
I hereby certify that on this 25th day of May, 2016, I filed the foregoing with the Clerk of
the Court using the Alafile System which will serve the following counsel of record
electronically:

/s/ Robert D. Segall

Of Counsel

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