Baugh et al v. Austal USA, LLC et al

1
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
PAUL DAVID BAUGH, JR., et al., 	)
Plaintiffs, 	)
)
v. 	) 	CIVIL ACTION: 1:22-00329-KD-C
)
AUSTAL USA, LLC, 	)
Defendant. 	)
ORDER
This matter is before the Court on the Plaintiffs' motion for leave of Court to amend the complaint
(with proposed first amended complaint) (Doc. 25, Doc. 25-1),1 the Defendant's consolidated Opposition (Doc.
27), the Plaintiffs' consolidated Reply (Doc. 29) and revised proposed first amended complaint (Doc. 29-1),
and the Defendant's consolidated Sur-Reply (Doc. 30).2
I. 	Background
On July 14, 2022, five (5) Plaintiffs Paul David Baugh, Jr. (Baugh), David Dudley (Dudley), Carl
Skipper (Skipper), James Vela (Vela), and James Anthony Woods (Woods) (Plaintiffs)3 initiated this action
against Defendant Austal USA, LLC (Austal USA) in the Southern District of Mississippi (SDMS) (1:22cv180
1 Plaintiffs incorrectly styled the motion as a Second Motion to Amend the Complaint (Doc. 25). Plaintiffs
filed similar Motions to Amend in the two (2) other actions with which this case was consolidated for discovery
purposes only (Abbott, et al., v. Austal USA, LLC (1:22-00267-KD-C) and Allen, et al., v. Austal USA, LLC
(1:22-00328-KD-B)). However, despite the parties belief, in this case there was no first amended complaint, and no
Order issued regarding a prior amended complaint.
2 The parties have confused matters and hampered this Court's review of the motion by submitting
"consolidated" filings, for which they also did not seek leave of Court. In so doing, the parties reference the
complaints and allegations in each case as if they are the same in this case, but they are not. The plaintiffs are also
not the same. The result is that the briefing often does not speak directly to the complaint at issue in each of the
different cases, leaving the Court to scour through the documents to discern the relevant arguments. Thus,
"consolidated" filings will not be permitted in these cases. Each party is expected to file a separate filing in each
case related to each pending motion (as needed) at issue in that particular case. The cases are not identical and
consolidated filings exacerbate confusion and delay resolution of motions.
3 There are only five (5) plaintiffs in this case. This is not a class action.
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 1 of 42 PageID#
<pageID>

2
TBM-RPM). (Doc. 1). 	On August 22, 2022, this matter was transferred to this Court. (Docs. 8, 9). 	On
September 6, 2022, Austal USA answered the complaint. (Doc. 19). On November 1, 2022, Plaintiffs filed
the present motion for leave of Court to amend the complaint (Docs. 25, 25-1), which was amended with an
alternative proposed first amended complaint (Doc. 29-1); briefing was complete in December 2022 (Docs.
27, 29, 30).
II. 	Rule 15 Amendments & The Proposed First Amended Complaint
Rule 15(a) of the Federal Rules of Civil Procedure governs amendments as follows:
a) Amendments Before Trial.
(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of
course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive
pleading is required, 21 days after service of a responsive pleading or 21 days after service of
a motion under Rule 12(b), (e), or (f), whichever is earlier.
(2) Other Amendments. In all other cases, a party may amend its pleading only with the
opposing party's written consent or the court's leave. The court should freely give leave when
justice so requires.
The timeframe for amendment as a matter of course has passed: Plaintiffs' Complaint was filed on July 14,
2022 but the motion to amend was filed on November 1, 2022 (more than 21 days after service of the
Complaint); and Austal filed its Answer on September 6, 2022 but Plaintiffs did not move to amend within 21
days after service of same (instead waiting until November 1, 2022 to so move). Thus, Rule 15(a)(2) provides
the only avenue for amendment. And absent Austal's consent -- which is not given -- leave of Court is required.
Leave should be freely given “when justice so requires” except in the presence of countervailing factors
such as undue prejudice to the opposing party and futility of the amendment. See, e.g., Foman v. Davis, 371
U.S. 178, 182 (1962); Bartronics, Inc. v. Power-One, Inc., 245 F.R.D. 532, 534 (S.D. Ala. 2007). “[U]nless a
substantial reason exists to deny leave to amend, the discretion of the district court is not broad enough to
permit denial[.]” City of Miami v. Bank of Am. Corp., 800 F.3d 1262, 1286 (11th Cir. 2015) (citation omitted).
Courts “may consider several factors ... including ‘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
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 2 of 42 PageID#
<pageID>

3
opposing party by virtue of allowance of the amendment, [and] futility of amendment.” Perez v. Wells Fargo
N.A., 774 F.3d 1329, 1340–1341 (11th Cir. 2014).
Notably, leave to amend may be denied “when such amendment would be futile.” Hall v. United Ins.
Co. of Am., 367 F.3d 1255, 1263 (11th Cir. 2004). Per Garrett Inv., LLC v. SE Prop. Hldgs., LLC, 2013 WL
1191237, *2 (S.D. Ala. Mar. 22, 2013):
..... a “district court may deny leave to amend a complaint if it concludes that the proposed
amendment would be futile, meaning that the amended complaint would not survive a motion
to dismiss.”... “must be dismissed if it fails to state a claim upon which relief could be
granted.”... the reviewing court must ‘accept[ ] the factual allegations in the complaint as true
and construe [ ] them in the light most favorable to the plaintiff” Id. (citation omitted). Thus,
the ... [claim] ... must “ ‘state a claim for relief that is plausible on its face.’” Id. quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570... (2007). “‘A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.’” Id. quoting Ashcroft v. Iqbal, 556 U.S.
662, 678... (2009). However, the ... [claim] “need not include detailed factual allegations, but
it must set forth ‘more than labels and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.’” Id. quoting Twombly, 550 U.S. at 555...
See also e.g., New York Life Ins. Co. v. Grant, 57 F.Supp.3d 1401, 1409-1410 (M.D. Ga. 2014). As stated in
Federal Home Loan Corp. v. Brooks, 2014 WL 5410236, *1 (N.D. Ala. Oct. 23, 2014):
...the Federal Rules...require only that a complaint ... provide “a short and plain statement of
the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a) ... The complaint
must include enough facts “to raise a right to relief above the speculative level.” Twombly, 550
U.S. at 555 ... Ultimately, the well-pleaded complaint must present a reasonable inference from
the facts it alleges that show a defendant is liable. Reese v. Ellis, Painter, Ratterree & Adams,
LLP, 678 F.3d 1211, 1215 (11th Cir. 2012). To survive...the allegations ... must permit the
court based on its “judicial experience and common sense ... to infer more than the mere
possibility of misconduct.” Iqbal, 129 S.Ct. at 1949...
And per Gulf Coast Mineral, LLC v. Tryall Omega, Inc., 2016 WL 344960, *1 (M.D. Ala. Jan. 27, 2016):
“Determining whether a complaint states a plausible claim for relief [is] ... a context-specific
task that requires the reviewing court to draw on its judicial experience and common sense.”
Id. at 679.... (citation omitted). If there are “enough fact[s] to raise a reasonable expectation
that discovery will reveal evidence” to support the claim, there are “plausible” grounds for
recovery, and a motion to dismiss should be denied. Twombly, 550 U.S. at 556 .... The claim
can proceed “even if it strikes a savvy judge that actual proof of those facts is improbable, and
that a recovery is very remote and unlikely.” Id. (citation and internal quotation marks omitted).
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 3 of 42 PageID#
<pageID>

4
The operative Complaint is the Complaint filed in the SDMS. (Doc. 1). The Complaint alleges two (2)
claims against Austal: 1) Title VII religious discrimination and failure to provide religious accommodation
(Count I); and 2) negligence and/or gross negligence as to plaintiffs' religious beliefs and constitutional rights
(Count II). 	(Id.) 	Plaintiffs then sought leave of Court to amend the Complaint and file a First Amended
Complaint to add five (5) new defendants including Austal Limited, Inc. (Austal Ltd.) and Rusty Murdaugh
(Murdaugh), John Rothwell (Rothwell), Patrick Gregg (Gregg), and Mike Bell (Bell), because:
-"Austal [Ltd.]'s actions involve direct guidance on how Austal USA was to engage in handling its
unvaccinated workforce[]"
-Austal Ltd.'s "executive leadership ... Rothwell and ... Gregg, played a direct role in determining the
non-validity of these accommodations, the lack thereof of any allocation of resources, financial or
tangible items, to employees during the pandemic, and also pertaining to the believed-to-be
coordinated effort between Austal Limited and Austal USA to universally terminate its employees,
regardless of disability status or religious beliefs, in an effort to maintain COVID-19 relief, grants, and
government awarded prime contracts[]"
-"Murdaugh ... Rothwell ... Gregg ... and ... Bell ...engaged in a coordinated effort to terminate all of
its unvaccinated employees as early as July/August 2021, before the public announcement of EO
14042, in an effort to remain eligible for COVID-19 funding and for governmental grants, such as the
$3.3 billion steel ship contract ... these individuals condoned, approved, and supported the universal
termination of 100% of its unvaccinated persons ... in October/November 2021 as well as the conduct
undertaken by managers/supervisors overseeing Plaintiffs in these facilities. These individuals were
the decision makers who unilaterally lifted the “Austal Vaccine Policy” only 4 months later in March
2022 after universally terminating 600 of its employees within that same timeframe[]"
-"... Murdaugh ... Rothwell... Gregg, and .. .Bell .... were directly responsible for providing a healthy
and safe workplace ... [but] ... exclusively targeting unvaccinated workers as a direct threat to the health
and safety of the facility ... 	were not acting in the best interest of their company and to protect its
employee’s health and safety but instead were possibly engaging in self-interested transactions and
had coordinated a step-by step plan of action that was predicated on the removal of 100% of its
unvaccinated workforce[]"
-"it is believed through direct communications with Austal employees that these individuals may have
been creating and submitting 'fake' and/or 'falsified' COVID-19 vaccination passport cards serving as
evidence to Austal USA’s Human Resources department as fulfilling its obligation despite
misrepresenting the actual truth of their vaccination status."
- "these individuals are believed to have engaged in conduct requiring Austal USA’s Human Resources
members to accept these vaccination requests without inquiring into the veracity of such cards and/or
facilitated a process by which Austal employees could bypass these requirements[]" and "were the
individuals making the decisions that were implemented among Austal Limited and Austal USA
that lead to the universal termination of hundreds of employees."
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 4 of 42 PageID#
<pageID>

5
(Doc. 25 at 10-12).
Additionally, Plaintiffs sought leave of Court to amend to add 16 new claims based on: "newly
discovered facts that serve as the basis of this lawsuit in their pursuit of justice under the law and to seek
redress under available remedies[;]" and the "discovery of the new factual contentions and information had
occurred after Plaintiffs filing of its ..... Complaint[]" based on "facts ... discovered through research into
Defendant's business dealings, Defendant's own documentation provided to its employees during Fall 2021,
interviewing the total 61 Plaintiffs individually among the 3 lawsuits, and also interviewing former
employees[.]" (Doc. 25 at 4, 10). Plaintiffs assert there are newly discovered facts regarding health and safety
at Austal; disability and religious discrimination, failure to accommodate, harassment, disparate treatment, and
hostile work environment; "facts supporting Alabama law claims[;]" and "general facts that support [these]
claims." (Doc. 25). The following new claims were alleged against Austal USA, Austal Ltd., Murdaugh,
Gregg, Rothwell, and Bell:
-Title VII – Religious Discrimination/Disparate Treatment (Count III);
-Title VII – Hostile Work Environment (Count IV);
-Title VII – Harassment on Religious Grounds (Count V);
- Ala. Code § 22-11B-5 (Alabama's Vaccine Passport Law) (Count VI)
- Alabama invasion of privacy Count VII)
- Ala. Code § 6-5-101 (fraud/misrepresentation of material facts) (Count VIII);
- Ala. Code § 6-5-102 (fraudulent suppression of material facts (Count IX);
- Ala. Code § 6-5-103 (deceit of material facts) (Count X);
- Ala. Code § 6-5-104 (fraudulent deceit of material facts) (Count XI);
- Alabama civil conspiracy (Count XII);
- Alabama wantonness (Count XIII);4
- Alabama breach of contract - implied covenant of good faith (Count XIV);5
- Alabama duty of loyalty (Count XV);6
- Alabama unjust enrichment (Count XVI);7
4 Based on order of appearance, incorrectly numbered by Plaintiffs as Count XVII.
5 Based on order of appearance, incorrectly numbered by Plaintiffs as Count XIII.
6 Based on order of appearance, incorrectly numbered by Plaintiffs as Count XIV.
7 Based on order of appearance, incorrectly numbered by Plaintiffs as Count XV.
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 5 of 42 PageID#
<pageID>

6
- Alabama disgorgement (Count XVII);8 and
- Alabama officer and director liability (Count XVIII).9
(Doc. 25-1 at 2-3, 22-35). In response, Austal USA opposed Plaintiffs' motion based largely on futility and
frivolity of the proposed claims and proposed defendants.
In reply, Plaintiffs offer an alternative -- filing "an alternative proposed amended complaint" to
"remedy any issues" related to pleading standards. (Doc. 29-1). 	Thus, Plaintiffs have submitted a revised
proposed first amended complaint (Doc. 29-1) in lieu of the initial proposed first amended complaint (Doc.
25-1) explaining that it "best clarifies the position of Plaintiffs and articulate the harm in a manner that is
logical, organized and satisfies the [pleading] requirements of .... [Fed.R.Civ.P.] 8(a) and 10(b)." (Doc. 29 at
24). Plaintiffs' proposed new claims in this case, as set forth in Doc. 29-1, are Counts III - XVIII (Title VII and
Alabama state law claims). Notably, in Doc. 29-1 Plaintiffs still seek the addition of defendants Austal Ltd.,
Murdaugh, Rothwell, Gregg, and Bell. However, Doc. 29-1 alleges the following 18 claims (including the
previously requested 16 new claims), in revised fashion, as follows:
-Title VII - Failure to Accommodate - Religious Discrimination against Austal USA (Count I)
-Alabama negligence and/or gross negligence against Austal USA and Austal Ltd. (Count II)
-Title VII – Religious Discrimination/Disparate Treatment against Austal USA (Count III);
-Title VII – Hostile Work Environment against Austal USA (Count IV);
-Title VII – Harassment on Religious Grounds against Austal USA (Count V);
-Ala. Code § 22-11B-5 (Alabama's Vaccine Passport Law) against Austal USA and Austal Ltd. (Count
VI)
- Alabama invasion of privacy against Austal USA, Austal Ltd., Murdaugh, Rothwell, Gregg, and Bell
(Count VII)
-Ala. Code § 6-5-101 (fraud/misrepresentation of material facts) against Austal USA, Austal Ltd.,
Murdaugh, Rothwell, Gregg, and Bell (Count VIII);
-Ala. Code § 6-5-102 (fraudulent suppression of material facts) against Austal USA, Austal Ltd.,
Murdaugh, Rothwell, Gregg, and Bell (Count IX);
-Ala. Code § 6-5-103 (deceit of material facts) against Austal USA, Austal Ltd.., Murdaugh, Rothwell,
Gregg, and Bell (Count X);
-Ala. Code § 6-5-104 (fraudulent deceit of material facts) against Austal USA, Austal Ltd., Murdaugh,
Rothwell, Gregg, and Bell (Count XI);
8 Based on order of appearance, incorrectly numbered by Plaintiffs as Count XVI.
9 Based on order of appearance, incorrectly numbered by Plaintiffs as Count XVII.
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 6 of 42 PageID#
<pageID>

7
- Alabama civil conspiracy against Austal USA, Austal Ltd., Murdaugh, Rothwell, Gregg, and Bell
(Count XII);
-Alabama wantonness against Austal USA, Austal Ltd., Murdaugh, Rothwell, Gregg, and Bell (Count
XIII);10
- Alabama breach of contract - implied covenant of good faith against Austal USA and Austal Ltd.
(Count XIV);11
-Alabama duty of loyalty against Austal USA, Austal Ltd., Murdaugh, Rothwell, Gregg, and Bell
(Count XV);12
-Alabama unjust enrichment against Austal USA, Austal Ltd., Murdaugh, Rothwell, Gregg, and Bell
(Count XVI);13
-Alabama disgorgement against Austal USA, Austal Ltd., Murdaugh, Rothwell, Gregg, and Bell
(Count XVII);14 and
- Alabama officer and director liability) against Austal USA, Austal Ltd., Murdaugh, Rothwell, Gregg,
and Bell (Count XVIII).15
(Doc. 29-1 (alternative proposed first amended complaint)). Plaintiffs move the Court to grant their motion for
leave to file a first amended complaint arguing that denial will unfairly prejudice them as they "will not be
afforded a fair and reasonable opportunity to develop an adequate factual record into the viability of new claims
and defendants." (Doc. 29 at 10). To be clear, the Court's review in this regard is limited to Doc. 29-1 as
the proposed First Amended Complaint.
10 Based on order of appearance, incorrectly numbered by Plaintiffs as Count XVII.
11 Based on order of appearance, incorrectly numbered by Plaintiffs as Count XIII.
12 Based on order of appearance, incorrectly numbered by Plaintiffs as Count XIV.
13 Based on order of appearance, incorrectly numbered by Plaintiffs as Count XV.
14 Based on order of appearance, incorrectly numbered by Plaintiffs as Count XVI.
15 Based on order of appearance, incorrectly numbered by Plaintiffs as Count XVII.
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 7 of 42 PageID#
<pageID>

8
III. 	The Proposed New Defendants
A. 	Austal Limited, Inc. (Austal, Ltd.)
In the revised proposed first amended complaint (Doc. 29-1), Plaintiffs assert only state law claims
against Austal, Ltd. as a proposed party defendant in Count II (negligence/gross negligence) and Counts VI-
XVIII.16 Per Plaintiffs, these claims are premised on:
... their direct influence over the policy decisions regarding Plaintiffs termination as it is the
direct parent entity of Austal USA and exercises substantial control over Austal USA’s
decision making and employment decisions.
.... direct financial contributions regarding COVID-19 relief, monetary funding, and general
allocation of resources to Austal USA in making decisions that impacted thousands of
individuals who were forced to resign, reprimanded, and/or terminated/separated from the
business in a span of only a few months.
... direct guidance on how Austal USA was to engage in handling its unvaccinated workforce
and to manage the COVID-19 pandemic ... the believed-to-be coordinated effort between
Austal Limited and Austal USA to universally terminate its employees, regardless of disability
status or religious beliefs, in an effort to maintain COVID-19 relief, grants, and government
awarded prime contracts.
(Doc. 25 at 10). Per Plaintiffs, Austal, Ltd. as "the parent company ... exercises total and complete control"
over Austal USA, and is "liable for the acts of its subsidiary under a theory of direct or vicarious liability[.]"
(Doc. 29 at 3, 43).
In response, Austal USA argues that Austal Ltd. is separate and distinct legally from its subsidiary as
the parent company of Austal USA, which it also asserts in its briefing filed pursuant to Fed.R.Civ. P. 11(b).17
(Doc. 27 at 15). Plaintiffs' case alleges various claims rooted in the COVID-19 vaccine mandate implemented
at their place of employment by their employer Austal USA while they were employees of Austal USA. There
is no allegation that the policy was instituted by Austal Ltd. And Austal Ltd. was not the Plaintiffs' employer.
16 As reflected in Doc. 29-1, Plaintiffs do not seek to amend the complaint to allege federal discrimination
claims against Austal, Ltd. (Doc. 29 at 36 at note 26).
17 Austal USA's Disclosure Statement states only that Austal Holdings, Inc. is the sole member of Austal
USA and that Austal Ltd. is the parent company of Austal Holdings -- not that Austal Ltd. is the parent company of
Austal USA. (Doc. 22 at 1). That assertion is only set forth in the current briefing.
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 8 of 42 PageID#
<pageID>

9
Plaintiffs' allegations against Austal, Ltd. (e.g., "total control") then, are speculation and conjecture based
simply on the existence of this parent-subsidiary relationship.
Contrary to Plaintiffs' position, Austal Ltd. is not liable for the acts of its subsidiary as a matter of law
-- under a direct or vicarious liability theory or otherwise -- merely by virtue of this relationship. Plaintiffs'
proposed inclusion of Austal, Ltd. as a party defendant for the above-referenced claims -- solely because it is
the parent company of Austal USA -- thus lacks merit. "A parent corporation possesses a separate existence
and is treated separately from a subsidiary unless there are circumstances justifying disregard of the corporate
entity." Matter of Chrome Plate, Inc., 614 F.2d 990, 996 (5th Cir. 1980).18 See also e.g. Baker v. Raymond
Intl., Inc., 656 F.2d 173 (5th Cir. Sept. 14, 1981) ("[a]s a general rule, a parent company will be considered a
separate corporate entity from its wholly owned subsidiary[]"); Perry v. Household Retail Servs. Inc., 953 F.
Supp. 1378, 1381 (M.D. Ala. 1996) ("[t]he concept that a corporation is a legal entity existing separate and
apart from its shareholders is well-settled law ... The mere fact that one corporation owns all the stock of
another corporation does not destroy the separate corporate identities[]" ) (internal citation omitted)). "As a
general rule, a parent company ... is not liable for the conduct of its wholly owned subsidiaries .... except when
'1) it is appropriate to pierce the corporate veil; 2) there is apparent or ostensible agency; or 3) there is a joint
venture.'" In re Lett, 2021 WL 4256375, *5 (Bank. N.D. Ga. Sept. 8, 2021). Additionally, to the extent the
inclusion of Austal, Ltd. could be construed as Plaintiffs' attempt to assert a veil piercing or alter ego claim,
the allegations are insufficiently plead. See, e.g., Stewart v. Bureaus Invest. Group, LLC, 2015 WL 7572312
(M.D. Ala. Nov. 24, 2015) (granting a motion to dismiss as the "pleading fails to include facts sufficient to
support the control element of her alter ego claim[]"); Northstar Marine, Inc. v. Huffman, 2014 WL 4853843,
*9 (S.D. Ala. Sept. 29, 2014) ("Abundant authority crisscrossing a broad swath of jurisdictions holds that a
plaintiff wishing to pierce the corporate veil to hold a particular defendant liable must set forth that intention
18 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit
adopted as binding precedent all decisions of the former Fifth Circuit prior to October 1, 1981.
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 9 of 42 PageID#
<pageID>

10
in the complaint, and must do so in a manner that, at a minimum, satisfies the notice pleading requirements of
Rule 8(a)[]" but "nothing in [the] ... Complaint would reasonably have placed .. [defendant] on notice that the
claims against him were rooted in a theory of piercing the corporate veil, much less identified any supporting
factual allegations. A reasonable plaintiff reviewing the Complaint would have no reason to believe that veil-
piercing was at issue in this case[]"); Forester & Jerue, Inc. v. Daniels, 409 So.2d 830, 832 (Ala. 1982)
(reversing summary judgment against individual defendants where, inter alia, “[t]he complaint in the present
action did not allege that [they] were the alter ego of the corporation or any other cognizable action for personal
liability”). Moreover, jurisdictional issues may exist which would undermine Plaintiffs' endeavor to add
Austal, Ltd. based on the allegations before the Court.19 Thus, that portion of Plaintiffs' motion for leave to
amend, to add Austal Limited, Inc. as a defendant, is DENIED.
B. 	Individual Defendants
As to the state law claims asserted in Counts VII-XVIII, Plaintiffs seek to add as defendants
individuals Rusty Murdaugh, John Rothwell, Patrick Gregg, and Mike Bell because:
.... these individuals engaged in a coordinated effort to terminate all of its unvaccinated
employees as early as July/August 2021, before the public announcement of EO 14042, in an
effort to remain eligible for COVID-19 funding and for governmental grants, such as the $3.3
billion steel ship contract ... these persons are the individuals who controlled, implemented,
and enforced the policies, practices, and procedures that took place in a seemingly coordinated
manner from Summer to Fall 2021 ... these individuals condoned, approved, and supported the
universal termination of 100% of its unvaccinated persons among Austal USA ..... in
October/November 2021 as well as the conduct undertaken by managers/supervisors
overseeing Plaintiffs in these facilities. These individuals were the decision makers who
19 As summarized in Herederos De Roberto Gomez Cabrera, LLC v. Teck Resources Ltd., 43 F.4th 1303,
1312 (11th Cir. 2022):
a subsidiary's contacts can be attributed to its parent company for personal-jurisdiction purposes when “the
subsidiary is merely an agent through which the parent company conducts business in a particular
jurisdiction or its separate corporate status is formal only and without any semblance of individual identity.”
United States ex rel. v. Mortgage Invs. Corp., 987 F.3d 1340, 1355 (11th Cir. 2021) (quotation marks and
citation omitted) (emphasis added). In other words, a subsidiary's contacts can justify jurisdiction over the
parent when the subsidiary is a mere “alter ego” of the parent company. See Daimler, 571 U.S. at 134, 134
S.Ct. 746; MIC, 987 F.3d at 1354; see also Meier v. Sun Int'l Hotels, Ltd., 288 F.3d 1264, 1272 (11th Cir.
2002).
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 10 of 42 PageID#
<pageID>

11
unilaterally lifted the “Austal Vaccine Policy” only 4 months later in March 2022 after
universally terminating 600 of its employees within that same timeframe.
... these individuals were directly responsible for providing a healthy and safe workplace;
however, as aforementioned facts regarding health and safety are outlined, there were
numerous instances in which these individuals could have addressed as opposed to exclusively
targeting unvaccinated workers as a direct threat to the health and safety of the facility. The
outlined facts suggest that Rusty Murdaugh, John Rothwell, Patrick Gregg, and Mike Bell were
not acting in the best interest of their company and to protect its employee’s health and safety
but instead were possibly engaging in self-interested transactions and had coordinated a step-
by step plan of action that was predicated on the removal of 100% of its unvaccinated
workforce.
... through direct communications with Austal employees that these individuals may have been
creating and submitting “fake” and/or “falsified” COVID-19 vaccination passport cards
serving as evidence to Austal USA’s Human Resources department as fulfilling its obligation
despite misrepresenting the actual truth of their vaccination status. Additionally, these
individuals are believed to have engaged in conduct requiring Austal USA’s Human Resources
members to accept these vaccination requests without inquiring into the veracity of such cards
and/or facilitated a process by which Austal employees could bypass these requirements.
... [they] ... were the individuals making the decisions that were implemented among .... Austal
USA that lead to the universal termination of hundreds of employees.
(Doc. 25 at 10-12). In response, Austal argues futility as follows:
... the state law claims attempt to address the same underlying conduct forming the basis of the
Title VII and ADAAA claims. Title VII and the ADAAA make clear that individual
employees’ actions form a cause of action against the employer, not the individual. See Busby,
931 F.2d at 772; Mason, supra. Even assuming ... there was a basis for the claims themselves,
or for individual liability, Plaintiffs’ proposed ... Amended Complaint fails to identify any
specific actions of the newly named individual defendants and instead makes vague assertions
.... The specific counts of the proposed ... Amended Complaint do not identify particular
conduct committed by particular individual defendants and, as such, fail to meet the basic
notice pleading requirements set out by this Court in its September 22, 2022 Order. (Doc. 25,
PageID.412) ... Plaintiffs’ attempts to add these individual defendants is futile ....
(Doc. 27 at 13-14). The Court addresses the proposed inclusion of these individual defendants, as to each
related count, in detail below.
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 11 of 42 PageID#
<pageID>

12
IV. 	The Proposed New Claims
A. 	New Proposed Title VII Claims (Counts III, IV, V) against Austal USA
Plaintiffs' proposed new Title VII claims against Austal USA are: Religious Discrimination/Disparate
Treatment (Count III); Hostile Work Environment (Count IV); and Harassment on Religious Grounds (Count
V). In support, Plaintiffs assert that they "timely filed charges of discrimination" with the EEOC in relation to
the alleged discrimination experienced based on "sincerely held religious beliefs." As grounds to amend the
complaint to allege these new Title VII claims, Plaintiffs reference the following:
-Disparaging comments, jokes, and vulgar language targeted exclusively at unvaccinated
employees on the basis of their religion and/or disability ... statements such as discrediting their
beliefs and/or disabilities because of having “tattoos”, stating “if you don’t like the way you’re
treated, there is the fucking door,” and also statements from Rusty Murdaugh like “Oh wow,
so everyone is religious now?”
-Ostracizing unvaccinated workers in the workplace, precluding Plaintiffs from joining these
meetings, and/or Austal employees holding meetings without Plaintiffs knowledge in secret.
-Holding meetings with just unvaccinated persons where Austal executives eliciting jokes at
disparaging comments at these individuals on the basis of their religious and medical beliefs.
-Placement of vaccine propaganda around the workplace.
-Spraying Lysol on Plaintiffs as they walked around the facility and/or spraying their desks
every time Plaintiffs got up from their desk or specific work area.
-Intentionally stealing and/or hiding Plaintiffs toolboxes/materials and refusal to review the
footage to identify the culprit and refusal to compensate employees for their loss of materials
-Vaccine Policy that was announced almost 1 month after EO 14042 was announced that only
gave Plaintiffs 3 weeks to get vaccinated against their religious beliefs and/or medical
capabilities.
-Withholding of Plaintiffs earned annual bonuses, which were to be given exactly 2 days after
Austal’s termination of unvaccinated employees. As well as Austal managers/supervisors using
this fact as a reason to coerce unvaccinated workers to receive the vaccine.
-Changing Plaintiffs status from W-2 employees to 1099 employees so that they do not receive
unemployment benefits.
-Austal receives federal funding in the form of contracts and has received COVID-19 relief
funds and is bound to the requirements of such.
-Refusal to meet and/or engage in any discussions with Plaintiffs or any unvaccinated person
regarding their exemption requests.
-Universally denying all unvaccinated employees accommodation requests, even those
employees that were working from home and have been able to work from home successfully
without incident, reprimand, or any other issue for almost 2 years.
(Doc. 25 at 6-7).
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 12 of 42 PageID#
<pageID>

13
However, in so doing, there is no discussion of the foregoing in relation to any of the five (5) Plaintiffs
in this case -- i.e., that the foregoing is what they experienced. And in the proposed first amended complaint,
Plaintiffs' Title VII allegations in Counts I, II, and III, are likewise generally alleged. Plaintiffs fail to allege
the details of their particular Title VII violations (e.g., that employer A discriminated against one or all of the
five (5) Plaintiffs by doing X on this date).
In an effort to have their motion to amend granted, Plaintiffs explain: "[w]hile Plaintiffs did not
specifically articulate each discrete act of alleged discrimination against them while they were being not being
accommodated in their respective Charges of Discrimination, these alleged discrete acts were occurring
simultaneously at the time of Defendant’s universal decision to deny every employee’s religious and/or
medical exemption, refusal to accommodate these individuals, and subsequent decision to universally
terminate these individuals. As such, these additional claims are reasonably related to one another." (Doc. 29
at 37) (emphasis omitted). Plaintiffs assert that their claims arise from the "same facts, transaction, and
occurrences" relating to allegedly discriminatory acts by Austal USA regarding its vaccine policy. In support,
Plaintiffs cite a case in which a plaintiff, unrepresented by counsel, "may not know to specifically list each and
every discrete act" and so courts look to whether the claims alleged in the case "reasonabl[y] relate to the facts
in an EEOC Charge. (Doc. 29 at 37 at note 27 (citing Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925, 929
(11th Cir. 1983)). This citation is inapposite as the five (5) Plaintiffs in this case have been represented by
counsel since this action was initiated. Additionally, Plaintiffs argue that this Court's "task [when assessing
futility in discrimination claims and the manner in which such are plead in a complaint] requires the ...
[undersigned] to first review the Charge of Discrimination that the plaintiff filed with the EEOC[.]" (Doc. 29
at 38). However, none of the five (5) Plaintiffs' EEOC Charges have been filed in this case for the undersigned
to review and discern what claims can reasonably be expected to grow out of same.
Moreover, in its Sur-Reply Austal (similarly) argues that the Plaintiffs' EEOC Charges show that the
new Title VII claims in Doc. 44-1 are not "reasonably expected to grow" from same, citing Doc. 42-1 at Exhibit
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 13 of 42 PageID#
<pageID>

14
A (as the EEOC Charges) and Doc. 44. (Doc. 30 at 6-7). However, as this is a consolidated Sur-Reply, those
Document numbers are not documents filed in this case, and are not EEOC Charges for the five (5) plaintiffs
in this case. And Austal did not file the EEOC Charges for the Plaintiffs in this case with its Sur-Reply, though
it suggests that it did (Doc. 30 at 7 (referencing "Exhibit A")). In this case, Doc. 42 is a Notice related to Rule
30 and Rule 34 (and has no Doc. 42-1), Doc. 44 is a Notice of serving a second set of discovery and
supplementation, and there is no Doc. 44-1. Likewise, Austal USA argues that allowing Plaintiffs to amend
their complaint to allege these new Title VII claims would be improper because such were not alleged in their
EEOC charges, do not grow out of the scope of the EEOC investigation, and so they have not exhausted their
administrative remedies for same. (Doc. 30 at 7-8). Austal USA makes no assertions specific to this case's
Plaintiffs. As such, Austal USA has not asserted how these new Title VII claims should be disallowed as to
these plaintiffs in this case. And the Court cannot determine whether the proposed Title VII claims grow out
of the EEOC Charges filed by any of the five (5) Plaintiffs because they have not been filed in this case. At
best, the Court only has Plaintiffs' allegation -- submitted by counsel under Fed.R.Civ.P. 11(b) -- that they filed
Charges of Discrimination with the EEOC "with regard to their religious beliefs under Title VII[.]" (Doc. 29
at 36). The foregoing underscores the problems inherent in filing "consolidated" responses to the Court in
different cases with different claims.
As such, the Court turns to the Rule 15(a)(2) considerations for the new Title VII claims. There is no
evidence that the amendment is the product of undue delay and Austal has not sufficiently alleged undue
prejudice. While permitting the amendment will likely alter the scope of discovery among the parties and alter
deadlines, such does not necessarily equate with undue prejudice. Additionally, there is no evidence of bad
faith or dilatory motive on Plaintiffs' part or repeated failures to cure deficiencies by amendments previously
allowed in this case. So, the Court considers whether the amendment is futile. Austal argues that the claims
asserted are not warranted by existing law yet fails to specify how the proposed new Title VII claims are futile
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 14 of 42 PageID#
<pageID>

15
(apart from referencing irrelevant and unrelated EEOC Charges for plaintiffs in a different cases). There is no
support for a futility finding at this juncture.
Upon consideration, Plaintiffs' motion for leave to amend is GRANTED as to the Title VII claims
against Austal USA (Religious Discrimination/Disparate Treatment (Count III), Hostile Work Environment
(Count IV), and Harassment on Religious Grounds (Count V)) on the condition that the Plaintiffs file a copy
of their EEOC Charges with a new amended complaint (as set forth below).
B. 	New Proposed Count VI - Ala. Code § 22-11B-5 (Alabama's Vaccine Passport Law)
against Austal USA20
As alleged, Plaintiffs were terminated on October 27, 2021 after refusing to receive one of the three
experimental Covid-19 vaccines. (Doc. 1 at 10). Plaintiffs move to amend the complaint to add a Section 22-
11B-5 Ala. Code claim against Austal USA for violating Alabama's vaccine passport law because "Austal has
been engaging in a policy and practice of refusing to allow admission of customers and/or related persons from
entering the named Defendants facilities and/or locations up until March 30, 2022, when the named Defendants
announced a revocation of all COVID-19 requirements, including 'customers.' Once terminated on the
premises, the named Plaintiffs became potential customers and/or visitors." (Doc. 29-1 at 31).
Section 22-11B-5 provides:
(d) An entity or individual doing business in this state may not refuse to provide any goods or
services, or refuse to allow admission, to a customer based on the customer's immunization
status or lack of documentation that the customer has received an immunization.
Ala. Code. § 22-11B-5(d) (emphasis added). In response, Austal USA argues that Ala. Code § 22-11B-5 does
not apply to the rights of individual employees (referencing the Alabama Attorney General's July 26, 2021
Public Notice). (Doc. 30 at 8).
Plaintiffs clearly allege that they were employees of Austal USA. The Attorney General's Public Notice
regarding Section 22-11B-5(d) states that the subsection "does not address employer-employee relationships
20 Plaintiffs sought to allege this count also against Austal, Ltd., but as noted supra, it is not a proper
defendant.
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 15 of 42 PageID#
<pageID>

16
... it cannot be read to prohibit private employers from requiring employees to vaccinate against COVID-19."
Nevertheless, Plaintiffs argue their claims are not futile "because once Plaintiffs were terminated and separated
from Austal USA, these individuals became 'customers' and/or 'visitors' of the facility as they were no longer
employed by Austal and as they were removed from the facility... some Plaintiffs were allowed to return to
collect the remainder of their belongings after separation....these individuals were now classified as 'customers'
and/or 'visitors' on Austal's premises." 	(Doc. 29 at 43-44). 	Plaintiffs add that because (following
termination/separation) some plaintiffs had to return on site to Austal USA to interview for re-employment,
they became "customers." (Id.) However, the statute addresses "customers" -- not visitors or former employees
-- and Plaintiffs have provided no support for their assertion (statutory history, case law, etc.). This appears to
be Plaintiffs' unilateral characterization of the statute, unsupported by any reference to statute, case law, etc.
And notably, Plaintiffs do not even link these allegations to the five (5) Plaintiffs in this case, who do not even
assert that they returned onsite after termination and/or that they sought re-employment. In sum, this claim
lacks facial plausibility. Thus, Plaintiffs' motion for leave to amend the complaint, to allege a violation of
Alabama's vaccine passport law against Austal USA, is DENIED as futile.
C. 	New Proposed Count VII (Invasion of Privacy)21 against Austal USA/individuals
Plaintiffs move to amend the complaint to add an invasion of privacy claim against Austal USA,
Murdaugh, Rothwell, Gregg, and Bell, alleging as follows:
Plaintiffs' .... confidential medical information, such as their vaccination status, medical
complications, and general medical information, were repeatedly disclosed publicly through a
multitude of mediums that was permitted, endorsed, and/or permitted by Mr. Murdaugh, Mr.
Rothwell, Mr. Gregg, and Mr. Bell.
The named Defendants’ actions infringed upon the intrusion upon seclusion theory based
upon their wrongful intrusion into Plaintiffs’ private activities in such a manner that it caused
severe outrage, mental suffering, shame, and/or humiliation to Plaintiffs and would otherwise
cause such effects to be felt by a person of ordinary sensibilities.
21 Plaintiffs sought to allege this count also against Austal, Ltd., but as noted supra, it is not a proper
defendant.
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 16 of 42 PageID#
<pageID>

17
Plaintiffs’ confidential medical information was shared publicly by the named Defendants, its
managers, its supervisors, and/or executives in an effort to coerce and otherwise compel
Plaintiffs to comply with its vaccination requirement. The named Defendants conduct of public
display of Plaintiffs’ medical information regarding their medical capabilities, medical
preferences, and medical status violates the ordinary decencies recognized in our society.
The named Defendants conduct placed Plaintiffs in such a negative light in its facilities and the
community by disclosing such sensitive information and weaponizing the information to
ostracize Plaintiffs from other employees in Austal’s facilities. These Plaintiffs were placed
in false light so that these persons may feel left out of the group and cave-in to peer pressure
by getting a medical procedure against their will. Disclosure of such private facts was used
for its own commercial benefit in this respect.
Defendants Mr. Murdaugh, Mr. Rothwell, Mr. Gregg, and Mr. Bell played a role in allowing
and encouraging this public disclosure of the private facts of their employees and required
Austal Limited and Austal USA’s HR Department and public relations department to undertake
such actions to further embarrass, harass, and/or coerce Plaintiffs to receive the vaccine.
(Doc. 29-1 at 31-32 (emphasis added)).
In response, Austal USA argues the basis for this claim -- the alleged improper disclosure of private
medical information (Plaintiffs' vaccination status) -- is duplicative and that this claim must be a federal claim
(ADAAA), not a claim under state law, because 42 U.S.C. § 12112(d) addresses an employer's unlawful
disclosure of medical information. In so doing, Austal cites unhelpful docket entries and EEOC Charges that
were not filed in this case. (Doc. 30 at 9). However Plaintiffs contend the invasion of privacy claim is separate
from the federal claims, is not bound by the limits of their EEOC Charges, and "such claim is certainly not
preempted" or "assumed by Title VII and the ADA." (Doc. 29 at 46). Additionally, Plaintiffs appear in their
briefing (but not the proposed complaint) to limit this claim to intrusion on physical solitude or seclusion.
(Doc. 29 at 45-46).
Historically, there are four (4) categories of invasion of privacy in Alabama: 1) the intrusion upon the
plaintiff's physical solitude or seclusion; 2) publicity which violates the ordinary decencies; 3) putting the
plaintiff in a false, but not necessarily defamatory, position in the public eye; and 4) the appropriation of some
element of the plaintiff's personality for a commercial use. Bosarge v. Mobile Area Water & Sewer Serv., 2020
WL 2820201, *30 (S.D. Ala. May 29, 2020); Butler v. Town of Argo, 871 So.2d 1, 12 (Ala. 2003); Ex parte
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 17 of 42 PageID#
<pageID>

18
Birmingham News, Inc., 778 So. 2d 814, 818 (Ala. 2000); Johnston v. Fuller, 706 So. 2d 700, 701 (Ala. 1997).
However, recently in Rivers v. Noom, Inc., 2023 WL 359501, *4-5 (N.D. Ala. Jan. 23, 2023) (finding the
ARPA "abrogates the common law tort of commercial appropriation[]" and concluding that there are now three
(3) categories of common law and one (2) statutory basis for invasion of privacy):
In Alabama, common law governs the tort of invasion of privacy. It “consists of four distinct
wrongs: 1) the intrusion upon the plaintiff's physical solitude or seclusion; 2) publicity which
violates the ordinary decencies; 3) putting the plaintiff in a false, but not necessarily
defamatory, position in the public eye; and 4) the appropriation of some element of the
plaintiff's personality for a commercial use.” Hogin v. Cottingham, 533 So. 2d 525, 528 (Ala.
1988).
In 2015, however, the Alabama Legislature passed the Alabama Right of Publicity Act
(“ARPA”) “to define the right, the elements and scope of liability ... define the remedies
available, and set forth defenses” for the commercial appropriation of a person's identity—i.e.,
the fourth of the four distinct common law variants of invasion of privacy. Ala. Act 2015-188.
The ARPA said nothing about the three other variants.
***
... As explained, the Alabama Legislature passed the ARPA in 2015 to statutorily define
commercial misappropriation. That means the common law tort of commercial appropriation—
i.e., the fourth of the four common law variants of invasion of privacy—“continue[d] in force”
until 2015, when it was “altered or repealed by the Legislature.” Id. The remaining three
common law variants—i.e., wrongful intrusion upon solitude, publicity given to private life,
and false light—however, remain viable because “[a] statute which is an innovation on the
common law will not be extended further than is required by the letter of the statute.” Alabama
v. Grant, ––– So. 3d ––––, 2022 WL 4115310, at * 4 (Ala. Sept. 9, 2022).
That Alabama now recognizes one statutory and three (not four) common law variants of
invasion of privacy is perhaps best shown by the Alabama Pattern Jury Instruction Committee
altering the pattern instructions for invasion of privacy in 2016 to replace the fourth common
law variant with the new statutory claim. See Alabama Pattern Jury Instructions §§ 35.00
(listing the four available theories); 35.11—35.16 (instructions on the ARPA claim).
The ARPA, Section 6-5-772(a) (Liability for use or indicia of identity without consent) provides:
Except as otherwise provided in this article, any person or entity who uses or causes the use of
the indicia of identity of a person, on or in products, goods, merchandise, or services entered
into commerce in this state, or for purposes of advertising or selling, or soliciting purchases of,
products, goods, merchandise, or services, or for purposes of fund-raising or solicitation of
donations, or for false endorsement, without consent shall be liable under this article to that
person, or to a holder of that person's rights.
Ala. Code § 6-5-772(a) (highlight added). Regardless, Plaintiffs' proposed claim is not limited to the unlawful
disclosure of medical information as Austal USA suggests.
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 18 of 42 PageID#
<pageID>

19
First, intrusion into the Plaintiffs' solitude or seclusion. As summarized in Majdalani v. Auburn
Univ., 2022 WL 4596349, *14 (M.D. Ala. Sept. 7, 2022):
To prove this type of invasion of privacy, Plaintiff must show that Defendants “intentionally
intrude[d], physically or otherwise, upon [his] solitude or seclusion ... or his private affairs or
concerns” in a manner that “would be highly offensive to a reasonable person.” Johnston, 706
So. 2d at 702 (quoting Restatement (Second) of Torts § 652B (Am. L. Inst. 1977)). The
Supreme Court of Alabama has acknowledged examples of intrusion upon seclusion including
“wiretapping or eavesdropping” and “opening private mail or examining a private bank
account.” Id. (quoting Restatement (Second) of Torts § 652B cmt. b (Am. L. Inst. 1977)). The
Restatement, which the Alabama Supreme Court has relied upon, notes further examples,
including “searching [a man's] safe or his wallet ... or compelling him by a forged court order
to permit an inspection of his personal documents.” Restatement (Second) of Torts § 652B
cmt. b (Am. L. Inst. 1977). The Alabama Supreme Court has added, “[I]f the means of
gathering the information are excessively objectionable and improper, a wrongful intrusion
may occur.” Id. (citing Hogin v. Cottingham, 533 So. 2d 525 (Ala. 1988)).
See also e.g., March v. Best Buy Stores, LP, 111 F.Supp.3d 1236 (N.D. Ala. 2015) (same); Phillips v. Smalley
Maint. Servs., 435 So.2d 705 (Ala.1983) (officially adopting the SECOND RESTATEMENT'S definition) (quoting
THE RESTATEMENT (SECOND) OF TORTS, § 652B (1977)).
Plaintiffs allege that "confidential medical information, such as their vaccination status, medical
complications, and general medical information, were repeatedly disclosed publicly through a multitude of
mediums that was permitted, endorsed, and/or permitted by Mr. Murdaugh, Mr. Rothwell, Mr. Gregg, and Mr.
Bell[]" and seek "redress for actions .... that infringed upon the intrusion upon seclusion theory based upon
their wrongful intrusion into Plaintiffs’ private activities in such a manner that it caused severe outrage, mental
suffering, shame, and/or humiliation to Plaintiffs and would otherwise cause such effects to be felt by a person
of ordinary sensibilities." (Doc. 29 at 45; Doc. 29-1 at 31). However, there are no specific allegations as to
these defendants' unlawful disclosure of any of the five (5) Plaintiffs' "vaccination status, medical
complications, and general medical information" and/or "publicly [sic] display of Plaintiffs’ medical
information regarding their medical capabilities, medical preferences, and medical status." 	Plaintiffs'
allegations are general, not specific to the Plaintiffs in this case, and so precisely what the defendants did as to
these Plaintiffs is unknown. See, e.g., Shuler v. Garrison, 2017 WL 191267, *22 (N.D. Ala. Jan. 13, 2017)
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 19 of 42 PageID#
<pageID>

20
("even when taken as true, the allegations .... are not sufficient .... because they do not allege any action by the
named defendants themselves that invaded Plaintiffs' privacy[]"and "the tort of invasion of privacy requires a
plaintiff plead that a defendant actually intruded into a private place[]") (emphasis added).
Given the individualized and fact-dependent nature of this category of invasion of privacy, the
conclusory allegations are insufficient. But this lack of specificity does not support futility. Instead, it supports
amendment which should be "freely given" in the absence of countervailing factors. Due to the absence of
countervailing factors, Plaintiffs' motion for leave to amend to file a First Amended Complaint is GRANTED
as to this claim on the condition that Plaintiffs shall file, on or before April 24, 2023, a new first amended
complaint which includes sufficient factual allegations specific to the Plaintiffs and each of the defendants'
purported invasion of privacy acts and/or conduct.
Second, giving publicity to private information about the plaintiff that violates ordinary decency.
As summarized in Majdalani, 2022 WL 4596349 at *15:
To succeed on a claim against a defendant for making private information public, a plaintiff
must show that another publicized “a matter concerning the private life of” the plaintiff, and
“the matter publicized is of a kind that (a) would be highly offensive to a reasonable person,
and (b) is not of legitimate concern to the public.” Johnston, 706 So. 2d at 703 (quotation marks
omitted) (quoting Restatement (Second) of Torts § 652D). The Alabama Supreme Court
adopted the Restatement's definition of publicity, which states, “[p]ublicity ... means that the
matter is made public, by communicating it to the public at large, or to so many persons that
the matter must be regarded as substantially certain to become one of public knowledge.” Id.
(quotation marks omitted) (quoting Restatement (Second) of Torts § 652D cmt. a (Am. L. Inst.
1977)).
See also e.g., Facebook, Inc. v. K.G.S, 294 So.3d 122, 144-145 (Ala. 2019) (same).
Plaintiffs allege that their confidential medical information was "shared publicly by the named
Defendants, its managers, its supervisors, and/or executives in an effort to coerce and otherwise compel
Plaintiffs to comply with its vaccination requirement[]" and the defendants' "conduct of public display of
Plaintiffs’ medical information regarding their medical capabilities, medical preferences, and medical status
violates the ordinary decencies recognized in our society[.]" (Doc. 29-1 at 32). Just as with the first category,
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 20 of 42 PageID#
<pageID>

21
there are no allegations by the Plaintiffs as to what the defendants did specifically to them (the five (5) Plaintiffs
in this case). Regardless, the lack of "publicity" (per Alabama law) renders this claim futile.
In Alabama to be "publicized" means more than the Plaintiffs allege:
... For tortious invasion of privacy, the Alabama Supreme Court has adopted the language of
the Second Restatement of Torts, which provides in relevant part that, “one who gives publicity
to a matter concerning the private life of another is subject to liability to the other for invasion
of his privacy ...” Ex parte Birmingham News, Inc., 778 So. 2d 814, 818 (Ala. 2000). To
achieve publicity, the statement must “reach the public.” Id. It is not enough to expose
information to a single person or a small group of persons. It must be “sufficient to give
publicity within the meaning of the term.” Id. (giving examples including publication in a
newspaper, magazine, or handbill, or broadcast over a radio).
The communication at issue was primarily to Plaintiffs' coworkers. The Supreme Court of
Alabama has held repeatedly that informing several coworkers is not sufficient. See Rosen v.
Montgomery Surgical Ctr., 825 So. 2d 735, 736 (Ala. 2001) (informing a coworker who then
informed two others was insufficient for publication.); Butler v. Town of Argo, 871 So. 2d 1,
14 (Ala. 2003) (discussion of issue with five or six people in the office of the city clerk was
insufficient to constitute publication.) Indeed, informing the entire office is insufficient for
publication. See Pouncy v. Vulcan Materials Co., 920 F. Supp. 1566, 1573 (N.D. Ala. 1996)
(holding “there is no evidence that the comments allegedly made by Ms. Alford and Mr. Nelson
were made outside the confines of Vulcan, therefore, Pouncy could not have been subjected to
publicity ...”). Alabama law even immunizes communications among employees from being
considered publication when they occur “in the course of transacting the company's business
and in the proper scope of the employee's duties.” Schrimsher v. Liberty Nat. Life Ins. Co., 655
So. 2d 986, 988 (Ala. 1995)....
McCreight v. AuburnBank, 2020 WL 1061675, *3 (M.D. Ala. Mar. 4, 2020).
Plaintiffs allege that the Defendants' actions occurred "at its [Austal USA] facilities and [in] the
community by disclosing such sensitive information and weaponizing the information to ostracize Plaintiffs
from other employees in Austal’s facilities." (Doc. 29-1 at 32). 	In otherwords, Plaintiffs allege that the
Defendants' communication was primarily amongst themselves, to co-workers, to the Austal USA community,
and at the Austal USA facilities. 	Such does not constitute publication under Alabama law to support this
invasion of privacy claim, as a matter of law. Thus, Plaintiffs' motion for leave to amend, to allege a "giving
publicity to private information about the plaintiff that violates ordinary decency invasion of privacy claim"
against Austal USA and the individual defendants, is DENIED as futile.
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 21 of 42 PageID#
<pageID>

22
Third, "putting the plaintiff in a false, but not necessarily defamatory, position in the public
eye." As noted in Bosarge v. Mobile Area Water & Sewer Serv., 2020 WL 2820201, *30 (S.D. Ala. May 29,
2020):
Applying Restatement (Second) of Torts § 652E (1977) and the following comments, [the Alabama
Supreme Court] has adopted the following definition for “false light” invasion of privacy:
“ One who gives publicity to a matter concerning another that places the other before the public
in a false light is subject to liability to the other for invasion of his privacy, if
“‘(a) the false light in which the other was placed would be highly offensive to a
reasonable person, and
“‘(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the
publicized matter and the false light in which the other would be placed.’”
Schifano v. Green Cty. Greyhound Park, Inc., 624 So. 2d 178, 180 (Ala. 1993) (emphasis omitted)
(quoting Restatement (Second) of Torts § 652E (1977)). A false-light claim does not require that the
information made public be private; instead, the information made public must be false. See
Restatement (Second) of Torts § 652E cmt. A. (1977).
Additionally, it is integral to a false-light claim that the untrue information be publicly communicated.
Comment a. to § 652E states, “The rule stated here is, however, limited to the situation in which the
plaintiff is given publicity. On what constitutes publicity and the publicity of application to a simple
disclosure, see § 652D, Comment a., which is applicable to the rule stated here.”
Comment a. to § 652D states:
“ ‘Publicity,’ as it is used in this Section, differs from ‘publication,’ as that term is used in §
577 in connection with liability for defamation. ‘Publication,’ in that sense, is a word of art,
which includes any communication by the defendant to a third person. ‘Publicity,’ on the other
hand, means that the matter is made public, by communicating it to the public at large, or to so
many persons that the matter must be regarded as substantially certain to become one of public
knowledge. The difference is not one of the means of communication, which may be oral,
written or by any other means. It is one of a communication that reaches, or is sure to reach,
the public.
“Thus it is not an invasion of the right of privacy, within the rule stated in this Section,
to communicate a fact concerning the plaintiff's private life to a single person or even
to a small group of persons. On the other hand, any publication in a newspaper or a
magazine, even of small circulation, or in a handbill distributed to a large number of
persons, or any broadcast over the radio, or statement made in an address to a large
audience, is sufficient to give publicity within the meaning of the term as it is used in
this Section. The distinction, in other words, is one between private and public
communication.”
See Rosen v. Montgomery Surgical Ctr., 825 So. 2d [735,] 739 [ (Ala. 2001) ]; Johnston [], 706 So. 2d
at 703; Ex parte Birmingham News, Inc., 778 So. 2d [at] 818 [ ].
Butler v. Town of Argo, 871 So. 2d 1, 12-13 (Ala. 2003).
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 22 of 42 PageID#
<pageID>

23
Thus, "[i]n order to prove a false light invasion of privacy claim, Plaintiff must show that Defendants (1)
publicized (2) false information about another that (3) would be highly offensive to the reasonable person and
(4) either knew or acted in reckless disregard as to the falsity of the information. See Regions Bank v. Plott,
897 So.2d 239, 244 (Ala. 2004)." McCreight v. AuburnBank, 2020 WL 1061675, *3 (M.D. Ala. Mar. 4, 2020).
At the outset, the information about Plaintiffs' COVID-19 non-vaccination status was apparently not
false. And Plaintiffs allege no false information was publicized by the Defendants, but rather that the
Defendants publicized true information -- that they were not vaccinated and would not agree to be vaccinated
in keeping with Austal USA's policy. A false light claim "does require that 'the information .. .be false.' 871
So.2d at 12. See Restatement (Second) of Torts § 652E, cmt. a. (1977). Thus, falsity is the sine qua non of a
false-light claim[] ... 'falsity' is an element of the plaintiff's claim, on which the plaintiff bears the burden of
proof. Ray, Let There be False Light, 84 Minn. L.Rev. at 736 ('false light plaintiffs therefore bear [a] heavier
burden [than defamation plaintiffs] because they must make an affirmative showing of falsity rather than
leaving it to defendants to justify the offensive statement')[.]" Regions Bank v. Plott, 897 So.2d 239, 244 (Ala.
2004) (emphasis in original).
Even assuming arguendo that there was false information (which would seemingly be contrary to the
premise underlying Plaintiffs' entire case), as noted supra to be "publicized" means that such information must
"reach the public" and not be limited to informing coworkers or communications among employees.
McCreight, 2020 WL 1061675 at *3. "'Publicity' is defined by communicating the false statements 'to so many
persons that the matter must be regarded as substantially certain to become one of public knowledge.' Ex parte
Birmingham News, Inc., 778 So. 2d 814, 818 (Ala. 2000). That is, communication to a 'single person or even
to a small group of persons' is insufficient for publicity. Id." Gray v. Koch Foods, Inc., 580 F.Supp.3d 1087,
1136 (M.D. Ala. Jan. 14, 2022). See also e.g., Tidmore v. Bank of Am., N.A., 2017 WL 467473, *9 (N.D. Ala.
Feb. 3, 2017) (same). Because Plaintiffs allege only that the Defendants' actions occurred "at its [Austal USA]
facilities and [in] the [Austal] community[,]" the alleged communication was primarily amongst themselves,
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 23 of 42 PageID#
<pageID>

24
to co-workers, to the Austal USA community, and at the Austal USA facilities. Such does not constitute
publication under Alabama law to support a false light invasion of privacy claim. Thus, Plaintiffs' motion for
leave to file an amended complaint, as to false light invasion of privacy against Austal USA and the individual
defendants, is DENIED as futile.
Fourth, "appropriating some element of the plaintiff's personality for a commercial use." As set
forth supra in Rivers, 2023 WL 359501 at *5, that Court found that Section 6-5-772(a) abrogated the fourth
category of Alabama's common law invasion of privacy and provides:
.... any person or entity who uses or causes the use of the indicia of identity of a person, on or
in products, goods, merchandise, or services entered into commerce in this state, or for
purposes of advertising or selling, or soliciting purchases of, products, goods, merchandise, or
services, or for purposes of fund-raising or solicitation of donations, or for false endorsement,
without consent shall be liable under this article to that person, or to a holder of that person's
rights.
Ala. Code § 6-5-772(a) (highlight added). This common law fourth category of "unauthorized use of plaintiff's
name for commercial purposes" was established in Norris v. Moskin Stores, Inc., 132 So.2d 321, 322-323 (Ala.
1961) and rooted in PROSSER, LAW OF TORTS 637–39 (2nd ed. 1955) and Birmingham Broadcasting Co.
v. Bell's 68 So.2d 314 (Ala. 1953) (held "broadcasting company used professional name and reputation of
announcer without permission of announcer and was unjustly enriched). "The privacy of a public personage
may not be lawfully invaded by the use of his name or picture for commercial purposes without his consent,
not incidental to an occurrence of legitimate news value ... 'It has become a custom in the press to publish the
pictures of prominent public men; but it is a very different thing for a manufacturer to use without authority
such a man's picture to advertise his goods[.]'" Bell's, supra. The Court focused on the "alleged unauthorized
use of his professional name and reputation" and the lower court charged the jury on "the essentials .... (1)
plaintiff's property in his name and reputation, and (2) by the unauthorized use of that name for defendant's
own purposes, defendant was enriched, and (3) in equity and good conscience plaintiff should be awarded a
verdict to compensate him for such unauthorized use of his property, which is his name and reputation: that
the damages are compensatory only." Id. at 320. "[T]he right of privacy ... [includes] ... “the right of a person
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 24 of 42 PageID#
<pageID>

25
to be free from .... ‘the unwarranted appropriation or exploitation of one's personality...." Id. at 323.22 See also
RESTATEMENT (SECOND) OF TORTS § 652C (1977) ("In order that there may be liability under the rule ... the
defendant must have appropriated to his own use or benefit the reputation, prestige, social or commercial
standing, public interest or other values of the plaintiff's name or likeness .... Until the value of the name has
in some way been appropriated, there is no tort[]").
And ARPA, Section 6-5-772(a) provides that "any person or entity who uses or causes the use of the
indicia of identity of a person, on or in products, goods, merchandise, or services entered into commerce in
this state, or for purposes of advertising or selling, or soliciting purchases of, products, goods, merchandise, or
services, or for purposes of fund-raising or solicitation of donations, or for false endorsement, without consent
shall be liable under this article to that person, or to a holder of that person's rights." Ala. Code § 6-5-772(a)
(highlight added).
Whether statutory or common law, there are no allegations supporting a granting of Plaintiffs' motion
to assert this claim. Plaintiffs allege the Defendants disclosed their "private facts" which were then "used for
its own commercial benefit in this respect" as those facts were "used to coerce Plaintiffs and other dissenting
employees of the Austal Vaccine Policy so that Austal may report higher percentages of COVID-19
vaccination records among its employees so that it may remain eligible for hundreds of millions in COVID-19
funding from the government and billions in federal awarded prime contracts." (Doc. 29 at 45-46; Doc. 29-1
at 31-32). Plaintiffs do not reference the statute. Additionally, Plaintiffs do not allege any use or causing the
use of their "indicia of identity" by the Defendants. Moreover, there are insufficient allegations as to how some
element of the Plaintiffs' "personality" was purportedly appropriated by the Defendants for commercial use.
Further, Plaintiffs make no allegations in keeping with the exemplar criteria supra (e.g., Plaintiffs' names or
22 "It is the duty and business of the courts .... to find some point .... where the wonders of modern
civilization which speed information and intelligence may be utilized and yet where the ordinary sensibilities of the
individual may be protected from vulgar attention and the advance of selfish commercial interests." Smith v. Doss,
37 So.2d 118, 120 (Ala. 1948).
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 25 of 42 PageID#
<pageID>

26
pictures were used to advertise Austal's goods, Plaintiffs' names and reputations were used unauthorized by
Austal, Austal appropriated to its own use or benefit the reputation, prestige, social or commercial standing,
public interest or other values of the Plaintiffs' names or likenesses, etc.). Rather, Plaintiffs allege "Austal USA
disclosed their non-vaccination status "so that these persons may feel left out of the group and cave-in to peer
pressure by getting a medical procedure against their will. Disclosure of such private facts was used for its
own commercial benefit in this respect." (Doc. 29-1 at 32). Essentially, Plaintiffs unilaterally allege that their
non-vaccinated status, as reported to Austal USA, equates to appropriation for commercial use as a matter of
law. The Court cannot agree based on the allegations and case law. There is no discernible facial plausibility
for this claim, as alleged. Thus, Plaintiffs' motion for leave to amend, as to commercial appropriation invasion
of privacy against Austal USA and the individual defendants, is DENIED as futile.
D. 	New Proposed Count VIII (Ala. Code § 6-5-101 fraudulent misrepresentation); Count IX (Ala.
Code § 6-5-102 fraudulent suppression); Count X (Ala. Code § 6-5-103 deceit); Count XI (Ala.
Code § 6-5-104 fraudulent deceit)23 against Austal USA/individuals
Plaintiffs' proposed statutory fraud allegations against Austal USA, Murdaugh, Rothwell, Gregg, and
Bell consist of the following:
Defendants made misrepresentations willfully and/or recklessly to their employees regarding
COVID-19 	relief 	funding, 	willingness 	to 	engage 	in 	the 	interactive 	process 	for
accommodations, statistics or data reported weekly from the facilities, veracity that everyone
in the company was abiding by the Vaccination Policy honestly, and/or as to the specific
reasons for rejection of exemption requests and proffered explanations justifying discharge.
Such misrepresentations and omissions of material facts were reasonably and detrimentally
relied upon by ..... Plaintiffs.
***
As a result of the actions of the named Defendants, Plaintiffs have been and continue to be
injured, suffering distress, humiliation, loss of prestige, mental anguish, emotional pain and
suffering, and monetary and economic losses.
(Doc. 29-1 at 32-34). In their briefing, Plaintiffs describe the Defendants' fraudulent conduct as:
... Austal USA ... [was] ... misrepresenting and suppressing information regarding COVID-19
grant amounts to its employees and the amount of sick individuals in the workplace.
23 Plaintiffs sought to allege this count also against Austal, Ltd., but as noted supra, it is not a proper
defendant.
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 26 of 42 PageID#
<pageID>

27
.... Mr. Murdaugh, Mr. Rothwell, Mr. Gregg, and Mr. Bell misrepresented their vaccination
status by falsifying their COVID-19 vaccine passport documentation and suppression of such
from the workforce, intentionally setting the vaccination deadline date days before employee
bonuses were to be paid and alleging that this was due to executive decision-making and
beyond the control of the Human Resources team, misrepresenting and suppressing the reasons
for universally terminating 100% of Austal USA’s and Austal Limited’s unvaccinated
workforce, and misrepresenting to Plaintiffs regarding the purpose of the creation and
implementation of a vaccine mandate for customers and visitors.
These 	misrepresentations 	were 	made 	through 	documentation, 	correspondences, 	oral
statements, and through public announcements to Plaintiffs. Plaintiffs and other Austal
employees reasonably relied on these misrepresentations and omissions of important facts to
their detriment.
(Doc. 29 at 47). In response, Austal argues that because the Plaintiffs are litigating the termination of their at-
will employment, there can be no fraud claims per Burrell v. Carraway Meth. Hosp of Ala., Inc., 607 So.2d
193, 196 (Ala. 1992) -- though citing a document (Doc. 44) not filed in this case. (Doc. 30 at 9-10).
A Section 6-5-101 fraudulent misrepresentation claim "requires (1) a false representation (2) of a
material fact (3) relied upon by the plaintiff (4) who was damaged as a proximate result of the misrepresentation
... Standard Furniture Mfg. Co. v. Reed, 572 So. 2d 389, 391 (Ala. 1990)." Avendano v. Shaw, 2022 WL
3572663 (Ala. Aug. 19, 2022). A claim for deceit "is extremely similar to [a misrepresentation claim], except
that 'a[n] action for deceit, under ... § 6-5-103 and § 6-5-104, results from either a willful or reckless
misrepresentation or a suppression of material facts with an intent to mislead,' Whitlow v. Bruno's Inc., 567
So. 2d 1235, 1241 (Ala. 1990), while an action for misrepresentation of material fact can be based on an
unintentional misrepresentation. [§ 6-5-101]." Garber v. Nationwide Mut. Ins. Co., 2021 WL 5811733 (N.D.
Ala. Dec. 7, 2021 (citing Montgomery Rubber & Gasket Co. v. Belmont Machinery Co., 308 F. Supp. 2d 1293,
1299 (M.D. Ala. 2004)). "[T]o sufficiently plead fraudulent deceit, Plaintiff must allege facts to show that he
was injured by a willful or reckless misrepresentation of material fact by Defendant .... and that, in making the
misrepresentation of a material fact, Defendant ... intended to deceive Plaintiff." Stewart v. Argos Ready Mix,
LLC, 2016 WL7238915, *10 (M.D. Ala. Nov. 1, 2016). And a Section 6-5-102 fraudulent suppression claim
provides: “Suppression of a material fact which the party is under an obligation to communicate constitutes
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 27 of 42 PageID#
<pageID>

28
fraud. The obligation to communicate may arise from the confidential relations of the parties or from the
particular circumstances of the case.” To state a viable claim for fraudulent suppression, a plaintiff must allege
that: (1) the defendant(s) possessed a duty to disclose an existing material fact; (2) the defendant(s) concealed
or suppressed that material fact; (3) the defendant(s) suppression induced plaintiff to act or refrain from acting;
and (4) plaintiff suffered actual damage as a proximate result. Garber, 2021 WL 5811733 at *16.
Collectively, for the proposed fraud claims, the existence of a duty and/or proximate damage or harm
is required. At the outset, as alleged, Plaintiffs' fraud claims are not limited to termination of their at will
employment. Plaintiffs' fraud claims concern the actions, conduct, and/or (mis)representations by the named
defendants (Austal USA and certain employees of Austal USA) regarding COVID-19 grant amounts, the
number of sick individuals at work, vaccine passport information (allegedly falsified), vaccination deadlines
tied to bonuses, and misrepresentation of the purpose of the creation/implementation of the vaccine mandate.
However, Plaintiffs' alleged damage appears to be limited to termination of their employment. That is,
Plaintiffs allege that they relied on the fraud/misrepresentations to their detriment and that, in being terminated,
were "injured, suffering distress, humiliation, loss of prestige, mental anguish, emotional pain and suffering,
and monetary and economic losses." This suggests futility. Burrell, 607 So.2d at 196 (“the showing of a loss
of employment is legally inadequate to show the element of damage in a fraud claim by an at-will employee
against his or her employer[]"). And Plaintiffs have not alleged how they detrimentally relied on
representations by these defendants or how such reliance resulted in their termination.
Moreover, as to suppression, Plaintiffs assume the existence of a duty to disclose merely because they
were employees of Austal USA. However, such a duty does not exist merely via at will employment -- and
Plaintiffs have failed to allege any relationship, factors, or other circumstances which would create a duty to
disclose. Miller v. SCI Systems, Inc., 479 So.2d 718, 720 (Ala. 1985) (per curiam). See, e.g., Pace v. Alfa
Mut. Ins. Co., 178 F.Supp.3d 1201, 1218-1219 (M.D. Ala. 2016) ("[f]actors relevant to determining 'whether
the alleged circumstances create a duty of disclosure include, (1) the relationship of the parties; (2) the relative
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 28 of 42 PageID#
<pageID>

29
knowledge of the parties; (3) the value of the particular fact; (4) the plaintiff's opportunity to ascertain the fact;
(5) the customs of the trade; and (6) other relevant circumstances.' Cochran v. Five Points Temporaries, LLC,
907 F.Supp.2d 1260, 1278 (N.D.Ala.2012) (citations and internal quotations omitted)[]"). Further, an
"employer is not the fiduciary of ... [an] employee[]" so the duty to disclose does not exist in that regard.
Miller, 479 So.2d at 720. Due to the insufficient allegations and failure to allege the necessary elements for
fraud, facial plausibility is lacking. Thus, Plaintiffs' motion for leave to amend, to assert these fraud claims
against Austal USA and the individual defendants, is DENIED.
E. 	New Proposed Count XII (Alabama civil conspiracy)24 against Austal/individuals
In the proposed amended complaint, Plaintiffs allege civil conspiracy claims against Austal USA,
Murdaugh, Rothwell, Gregg, and Bell:
Austal USA, .... Mr. Murdaugh, Mr. Rothwell, Mr. Gregg, Mr. Bell and possibly others,
mutually agreed to engage in the creation, implementation, and action of a financially
motivated scheme, which was perpetrated by the Vaccine Policy, to better position Defendant
in the competitive market, financially benefit themselves even greater at the expense of their
employees, and to terminate any dissenting employee, regardless of their fundamental rights.
... Defendants receipt of COVID-19 funds on respective dates, followed by significant
employment actions and/or vaccine mandate announcements, Defendants’ reasons for actively
discriminating against Plaintiffs, and other conduct indicates a coordinated plan that is only
possible through meticulous planning due to the nature of the events.
The actions of the named Defendants, as set out herein, violate Alabama state law.
As a result of the actions of the named Defendants, Plaintiffs have been and continue to be
injured, suffering distress, humiliation, loss of prestige, mental anguish, emotional pain and
suffering, and monetary and economic losses.
(Doc. 29-1 at 35). Plaintiffs allege that the Defendants were financially motivated to, on behalf of Austal USA,
better the company's market position and so to accomplish this, calculated and conspired in a scheme to
discriminate against non-vaccinated employees via Austal USA's COVID-19 vaccine policy, to effect their
24 Plaintiffs sought to allege this count also against Austal, Ltd., but as noted supra, it is not a proper
defendant.
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 29 of 42 PageID#
<pageID>

30
termination. Essentially, that the Defendants (Austal USA and some of its employees) conspired to
discriminate and terminate the Plaintiffs because they were unvaccinated. (Id.)
In Alabama, the elements of civil conspiracy are 1) a concerted action by two or more persons 2) to
achieve an unlawful purpose or a lawful purpose by unlawful means. Ex parte Maintenance Group, Inc., 261
So.3d 337, 347 (Ala. 2017). See also Majdalani, 2022 WL 4596349 at *4 (same). However, as noted by the
Eleventh Circuit in McAndrew v. Lockheed Martin Corp., 206 F.3d 1031, 1036 (11th Cir. 2000) (en banc):
The intracorporate conspiracy doctrine holds that acts of corporate agents are attributed to the
corporation itself, thereby negating the multiplicity of actors necessary for the formation of a
conspiracy. Simply put, under the doctrine, a corporation cannot conspire with its employees,
and its employees, when acting in the scope of their employment, cannot conspire among
themselves. The doctrine is based on the nature of a conspiracy and the legal conception of a
corporation. It is by now axiomatic that a conspiracy requires a meeting of the minds between
two or more persons to accomplish a common and unlawful plan. See Bivens Gardens Office
Bldg., Inc. v. Barnett Banks Inc., 140 F.3d 898, 912 (11th Cir.1998) (explaining that a civil
conspiracy ordinarily requires “an agreement between two or more people to achieve an illegal
objective, an overt act in furtherance of that illegal objective, and a resulting injury to the
plaintiff”). However, under basic agency principles, the acts of a corporation's agents are
considered to be those of a single legal actor. Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594,
603 (5th Cir.1981); see also United States v. Hartley, 678 F.2d 961, 970 (11th Cir.1982).
Therefore, just as it is not legally possible for an individual person to conspire with himself, it
is not possible for a single legal entity consisting of the corporation and its agents to conspire
with itself. See Dussouy, 660 F.2d at 603 (noting that “the multiplicity of actors necessary to
conspiracy” is negated when the agents' acts are attributed to the corporation and the
corporation and its agents are viewed as a single legal actor); Nelson Radio & Supply Co. v.
Motorola, Inc., 200 F.2d 911, 914 (5th Cir.1952) (explaining that “[i]t is basic in the law of
conspiracy that you must have two persons or entities to have a conspiracy. A corporation
cannot conspire with itself any more than a private individual can, and it is the general rule that
the acts of the agent are the acts of the corporation”).
See also Grider v. City of Auburn, Ala., 618 F.3d 1240, 1261 (11th Cir. 2010) (recognizing the doctrine when
analyzing a Section 1983 civil conspiracy claim and stating "[w]e recognize that one might reasonably believe
that violating someone's constitutional rights is never a job-related function or within the scope of a police
officer's employment. However, the question of whether a defendant acted within the scope of his employment
is distinct from whether the defendant acted unconstitutionally. The scope-of-employment inquiry is whether
the employee police officer was performing a function that, but for the alleged constitutional infirmity, was
within the ambit of the officer's scope of authority (i.e., job-related duties) and in furtherance of the employer's
----------
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 30 of 42 PageID#
<pageID>

31
business[]"); Stern v. Leath, 2021 WL 2874113, *3 and *8 (M.D. Ala. Jul. 8, 2021) ("the intracorporate
conspiracy doctrine applies ... to Count 3 [civil conspiracy claim] brought under Alabama law[]" while noting
that exceptions noted in other circuits did not apply including the "series of discriminatory acts" exception
because "the Eleventh Circuit has neither accepted nor rejected" it and "[t]here is, thus, no binding authority
for the exception in this circuit[]" and "[t]he same holds true under Alabama law as the parties have cited no
Alabama Supreme Court decision that has adopted or discussed this exception[]"); Doe v. Univ. of S. Alabama,
2020 WL 759895, *16 (S.D. Ala. Feb. 14, 2020) ("[T]he Court finds that the ‘series of discretionary acts’
exception [to the doctrine] does not apply in this circuit[]" and concluded that the plaintiff's civil conspiracy
claim was barred by the doctrine); Southern v. Pfizer, Inc., 471 F.Supp.2d 1207, 1220-1221 (N.D. Ala. Jun.
23, 2006) ("[i]t is 'not legally possible' for ... [corporate employees], acting as agents of [a corporation] ... and
within the scope of their employment, to conspire with one other or with ... [the corporation][]"); M&F Bank
v. First Am. Title Ins. Co., 144 So.3d 222, 234 (Ala. 2013) ("[t]he trial court entered a summary judgment in
favor of M&F on this [corporate civil conspiracy] claim because .....the intracorporate-conspiracy doctrine
holds that a corporation may not be held liable for any alleged conspiracy with its own employees or agents ...
the .... doctrine provides a sufficient ground for the summary judgment on this counterclaim, and the trial court
did not err in this regard[]") (internal citations omitted). See also Seals v. Leath, 2019 WL 6997398, at *7
(M.D. Ala. Dec. 18, 2019) (“[T]here is little doubt that the Alabama Supreme Court would apply the
intracorporate conspiracy doctrine in the same way the Eleventh Circuit has.”); White v. City of Athens, 169 F.
Supp. 3d 1254, 1269 (N.D. Ala. 2016) (“[T]he Court has little difficulty concluding that, if presented directly
with the issue, the Alabama Supreme Court would hold that the intracorporate conspiracy doctrine applies to
public entities.”).
Thus, Plaintiffs' motion for leave to amend, to assert civil conspiracy in the manner alleged against
Austal USA and the individual defendants, is DENIED as futile. Grider, 618 F.3d at 1261 (“[A]cts of
corporate agents are attributed to the corporation itself ...”).
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 31 of 42 PageID#
<pageID>

32
F. 	New Proposed Count XIII (Alabama wantonness) against Austal USA/individuals25
Plaintiffs' allegations are rooted in purported discriminatory actions taken by the Defendants regarding
the implementation of a mandatory COVID-19 vaccine policy, which resulted in their termination for refusing
to be vaccinated. In the proposed first amended complaint, Plaintiffs allege wantonness against Austal USA,
Murdaugh, Rothwell, Gregg, and Bell (Count XIII) due to: their "actions ... carried out with such a reckless or
conscious disregard of employee’s fundamental rights, employees’ health and safety, and without regard for
the law[;]" "Defendants knew or should have known that there would be mental, physical, and emotional harm
conferred upon its employees for its actions[';]" and "[a]s a result of the actions ... the named Plaintiffs have
been and continue to be injured, suffering distress, humiliation, loss of prestige, mental anguish, emotional
pain and suffering, and monetary and economic losses." (Doc. 29-1 at 36). Essentially then, Plaintiffs allege
wanton discrimination. Plaintiffs explain in briefing that these defendants:
engaged in alleged conduct that was undertaken with such blatant disregard for the law, lives,
careers, fundamental rights, and health and safety of hundreds of its employees’. Hundreds of
individuals were terminated while Mr. Murdaugh, Mr. Rothwell, Mr. Gregg, and Mr. Bell were
able to remain employed, received bonuses, and increased salaries ... Austal USA ... received
millions in COVID-19 relief and was awarded billions in prime awarded contracts as a result
of this termination by remaining eligible for remaining in “perceived compliance” with EO
14042.
Austal USA ... Mr. Murdaugh, Mr. Rothwell, Mr. Gregg, and Mr. Bell knew or were willfully
ignorant that undertaking such actions would impose mental, physical, economic, and
emotional harm upon hundreds of employees ... these individuals acted with such disregard of
these considerations ...
(Doc. 29 at 47-48). In response, Austal USA argues that federal law (Title VII and the ADA) provides for an
employer's duty to accommodate and there is no independent duty under Alabama law to accommodate
Plaintiffs, and so the wantonness claim is futile. (Doc. 27-1 at 12).
"Alabama law provides no common-law tort claim for .... disability discrimination in employment[.]"
Hand v. University of Ala. Bd. of Trustees, 304 F.Supp.3d 1173, 1183 (N.D. Ala. 2018). And "[t]he tort
25 Plaintiffs sought to allege this count also against Austal, Ltd., but as noted supra, it is not a proper
defendant.
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 32 of 42 PageID#
<pageID>

33
underlying a claim of wantonness cannot be based on discrimination[.]" Williams v. Daiichi Sankyo, Inc.,
2012 WL 3627765, *4 (N.D. Ala. Aug. 21, 2012). 	As summarized in Pruitt v. Charter Comm., 2019 WL
1199837, *9 (N.D. Ala. Mar. 14, 2019):
For his disability discrimination claim, plaintiff alleges that the Charter defendants failed to
engage in an interactive process and denied him reasonable accommodations of his disability
... For his harassment claim, plaintiff does not state any facts, but merely references his
previous allegations ... To the extent plaintiff intended to bring any of these claims pursuant to
federal statutes, they have already been addressed. To the extent plaintiff intended to assert
state law claims for disability discrimination and harassment, those claims are not available
under Alabama law. See Hand v. University of Alabama Board of Trustees, 304 F. Supp. 3d
1173, 1183 (N.D. Ala. 2018) (“Alabama law provides no common-law tort claim for sex or
disability discrimination in employment....”); Edwards v. Prime, Inc. .... 2008 WL 9393800, at
*11 (N.D. Ala. Dec. 11, 2008) (“Neither discrimination nor harassment constitutes a common
law tort.”).
See also Thrasher v. Ivan Leonard Chevrolet, Inc., 195 F. Supp. 2d 1314, 1320 (N.D. Ala. 2002) (finding that
because Alabama does not recognize a gender discrimination tort claim, plaintiff cannot maintain an action for
negligent supervision, training, and/or retention based upon conduct that is employment discrimination). Thus,
Plaintiffs' motion for leave to amend the complaint, to add a common law claim for wantonness (wanton
discrimination) against Austal USA and the individual defendants, is DENIED as futile.
G. 	New Proposed Count XIV (Alabama breach of contract - implied covenant of good faith)
against Austal USA)26
In the proposed amended complaint, Plaintiffs allege that Austal USA breached an employment
contract (implied covenant of good faith) as follows:
Plaintiffs had an employment contract to perform tasks, responsibilities, and/or duties to ...
Austal USA. Additionally, ... Austal USA possessed duties as an employer to its employees,
like each and every Plaintiff named in this suit.
... Each Plaintiff was in good-standing with .... Austal USA until the implementation of its
Vaccine Policy. From that time on, ... Austal USA engaged in scapegoating unvaccinated
employees on the basis of their religious beliefs without any regard for the health and safety of
those who inhabit .... Austal USA’s facilities.
26 Plaintiffs sought to allege this count also against Austal, Ltd., but as noted supra, it is not a proper
defendant.
-- 	-- 	----------------------
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 33 of 42 PageID#
<pageID>

34
... Austal USA facilitated, encouraged, and condoned the implementation of a toxic work
environment that specifically targeted Plaintiffs.
(Doc. 29-1 at 37).
This count is rooted in Plaintiffs' mistaken belief that "Plaintiffs had employment contracts with Austal
USA[]" "to perform tasks, responsibilities, and/or duties" and that "Alabama law recognizes there is an implied
covenant that neither party shall do anything, which shall have the effect of harming the rights of the other
party receiving benefits of the contract ... Plaintiffs' fundamental, health and safety, and employment were
disproportionally and unfairly affected by the alleged actions" of Austal USA. (Doc. 29 at 48-49). Plaintiffs
then argue and allege that the individuals defendants "possessed duties to not engage in unlawful conduct,
engage in discriminatory practices, engage in self-interested transactions, and to force out otherwise qualified
employees and/or terminate employees on the basis of their protected characteristics[]" and that defendants
"all received significant financial compensation and/or engaged in self-interested transactions that only
benefitted themselves at the expense of its employees careers. These entities and/or individuals receive benefits
in the form of remaining employee, incentives, receiving further COVID-19 relief, awarded lucrative
government contracts, bonuses, and/or salary increases after termination. Plaintiffs and other Austal employees
experienced harm as a result[.]" (Id. at 49). (Doc. 29-1 at 38-39).
Generally, "[u]nder Alabama law[] an employment relationship is terminable at will by the employer
or the employee unless 'there is an express and specific contract for lifetime employment or employment for a
specific duration' Howard v. Wolff Broadcasting Corp., 611 So.2d 307, 310 (Ala.1992); Clark v. America's
First Credit Union, 585 So.2d 1367, 1369 (Ala.1991)." 	Williamson v. Wal-Mart Assoc., Inc., 2013 WL
1909197, *7 (N.D. Ala. Apr. 16, 2013) ), Report & Recommendation adopted, 2013 WL 1909422 (N.D. Ala.
May 6, 2013). See also Davis v. City of Montevallo, 2023 WL 180252 (Ala. 2023) ("[T]he rule is well settled
in Alabama that an employee contract at will may be terminated by either party with or without cause or
justification.” Hoffman-La Roche, Inc. v. Campbell, 512 So.2d 725, 728 (Ala. 1987)[]"); Miller v. SCI Systems,
Inc., 479 So.2d 718, 720 (Ala. 1985) (per curiam) ("FN1 The plaintiff does not allege breach of contract,
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 34 of 42 PageID#
<pageID>

35
apparently because she was an employee at will. See e.g., Kitsos v. Mobile Gas Service Corp., 431 So.2d 1150
(Ala.1983)[]”); Brewer v. FeightCar Ala., LLC, 2021 WL 1383285, *5 (N.D. Ala. Apr. 13, 2021) "Alabama
law does not recognize a claim for breach of an at-will employment contract[]").
The record before the Court indicates that Plaintiffs were at-will employees at Austal USA. No
employment contracts have been specifically referenced. And Austal USA asserts that none exist. And no
employee handbooks with terms suggesting otherwise have been referenced. On the information before the
Court, there can be no breach of contract claim against these defendants for an implied covenant of good faith.
This is because there is no Alabama law which recognizes a claim of implied covenant of good faith arising
out of an alleged wrongful discharge in the at-will employment context; thus, this claim is futile. See, e.g.,
Williamson. 2013 WL 1909197, *7 ("the evidence clearly reflects that plaintiff and Wal–Mart were not
involved in any type of contractual relationship other than one of at-will employment[]"). "The same is true
with regard to the plaintiff's claim of a breach of the covenant of good faith .... Before there can be a breach of
a covenant of good faith ...., there must be an employment contract upon which to base this covenant. See, e.g
., Hoffman–La Roche, Inc. v. Campbell, 512 So.2d 725 (Ala.1987) (at-will employment relationship altered by
language in employee handbook creating unilateral contract which required covenant of good faith and fair
dealing). Because plaintiff was an at-will employee, she did not have an employment contract from which one
can infer a covenant of good faith ..... this claim is without merit." Williamson, 2013 WL 1909197 at *8. See
also Wyant v. Burlington Northern Santa Fe R.R., 210 F.Supp.2d 1263, 1294-1295 (N.D. Ala. 2002) (internal
citations omitted) ("plaintiff next argues ... breach[] an implied covenant of good faith and fair dealing ... This
claim is due to be denied for two reasons. First, ... Alabama does not recognize this type of claim outside
insurance claims ... Second, there was no contract in this case. ... because no contract of employment existed
... breach of [g]ood faith and fair dealing must fail[]"). "Without a contract, no implied covenant of good
faith ... exists." Woodward v. BBT Sec., LLC, 2018 WL 3622925, *5 (N.D. Ala. Jul. 30, 2018). Thus,
Plaintiffs' motion to amend the complaint, to assert this claim against Austal USA, is DENIED as futile.
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 35 of 42 PageID#
<pageID>

36
H. 	New Proposed Count XV (Alabama duty of loyalty) against Austal USA/individuals) 27
In the proposed amended complaint, Plaintiffs allege as follows regarding the duty of loyalty:
Plaintiffs had an employment contract to perform tasks, responsibilities, and/or duties to
Defendants’ business. Additionally, Austal Limited and Austal USA possessed duties to
Plaintiffs as they were Plaintiffs employer.
... Mr. Murdaugh, Mr. Rothwell, Mr. Gregg, and Mr. Bell possessed duties to not engage in
unlawful conduct, engage in discriminatory practices, and to force out otherwise qualified
employees and/or terminate employees on the basis of their protected characteristics.
... The named Defendants received significant financial compensation and/or engaged in self-
interested transactions benefitted themselves and harm its employees in the form of incentives,
bonuses, and salary increases after termination.
... Plaintiffs and others experienced harm as a result of the named Defendants’ actions.
***
... As a result of the actions of the named Defendants, Plaintiffs have been and continue to be
injured, suffering distress, humiliation, loss of prestige, mental anguish, emotional pain and
suffering, and monetary and economic losses.
(Doc. 29-1 at 37-38). In sum Plaintiffs allege that Austal USA and the individuals breached their duty of loyalty
because they had an employment contract and discriminated against them in violation of that duty.
Incorrect assumptions underlie Plaintiffs' duty of loyalty claim. In Alabama, the duty of loyalty is a
breach of fiduciary duty claim. See, e.g., Pruitt, 2019 WL 1199837 at *11 (to plead a viable claim for breach
of a duty of loyalty/fiduciary duty, a plaintiff must allege the existence of a fiduciary duty, breach of that duty,
and damages proximately caused by the breach). Typically, this claim concerns intracorporate matters/disputes
and/or arises via a principal-agent relationship whereby a fiduciary status imposes said duty (e.g., shareholder
disputes, disputes among corporate officers, etc.). See, e.g., Gardner v. Cumis Ins. Soc., Inc., 582 So.2d 1094,
1096 (Ala. 1991) ("[t]he principal-agent relationship is fiduciary by nature and imposes a duty of loyalty, good
faith, and fair dealing on the part of the agent[]"); Jones v. Ellis, 551 So.2d 396, 401 (Ala. 1989) ("[i]n addition
to owing the corporation and its shareholders a duty of care, a director also occupies a position of special trust
27 Plaintiffs sought to allege this count also against Austal, Ltd., but as noted supra, it is not a proper
defendant.
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 36 of 42 PageID#
<pageID>

37
in regard to the corporation and its shareholders, which imposes upon him a duty of loyalty[]"). "The corporate
fiduciary duty is divided into two parts: (1) a duty of care; and (2) a duty of loyalty ... The duty of loyalty ...
prohibits faithlessness and self-dealing by corporate officers. See Massey, 601 So. 2d at 456. See also, e.g.,
Alagold Corporation v. Freeman, 20 F. Supp. 2d 1305, 1310 (M.D. Ala. 1998) (duty of loyalty 'encompasses
a duty to disclose information to those who have a right to know the facts'); Belcher v. Birmingham Trust
National Bank, 348 F. Supp. 61, 82 (N.D. Ala. 1968) (the duty of loyalty of 'officers and directors are analogous
to those of trustees. They are required to act with fidelity and in good faith, subordinating their personal
interests to the interests of the corporation[]')." QORE Prop. Sciences, Inc. v. Civil Solutions, Inc., 2006 WL
8437067, *22 (N.D. Ala. Mar. 2, 2006). However, “a principal or employer is not the fiduciary of the agent or
employee.” Miller, 479 So. 2d at 720. Put simply, there is no cause of action in Alabama for an employer's
breach of a duty to loyalty to an at will employee -- no such duty exists. See, e.g., Catherine Fisk & Adam
Barry, Contingent Loyalty and Restricted Exit: Commentary on the Restatement of Employment Law, 16 EMP.
RTS. & EMP. POL'Y J. 413, 419 (2012) (“The employer owes no duty of loyalty to the employee and is free to
pursue its self-interest by firing him[]").
As alleged, Plaintiffs' duty of loyalty claim is rooted in the mistaken belief that they had employment
contracts with Austal USA and that simply because Austal USA was their employer, a duty of loyalty towards
them existed. However, based on the information before the Court, Plaintiffs were at-will employees of Austal
USA and there are no such contracts -- which as noted supra suggests futility. Additionally, the duty of loyalty
is rooted in the need for individuals to act in the interests of the entity. For instance, "[a] managerial employee,
before leaving his employment, may not secretly solicit his employer's customers on behalf of a competing
venture. See Allied, 585 So. 2d at 37 ('Implicit in this duty [of loyalty] is an obligation not to subvert the
principal's business by luring away customers[]')." QORE Prop. Sciences, 2006 WL 8437067 at *26. That is
not what is alleged here. Moreover, an employer is not the fiduciary of its employee (i.e., no such duty exists).
Miller, 479 So.2d at 720. Further, Plaintiffs' duty of loyalty claim focuses on alleged discrimination. Plaintiffs'
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 37 of 42 PageID#
<pageID>

38
discrimination claims are already set forth in the federal claims and there is nothing before the Court indicating
that discrimination allegations support an Alabama common law duty of loyalty claim and/or in an at-will
employment situation. Based on the foregoing, the claim lacks facial plausibility. See, e.g., Pruitt, 2019 WL
1199837 at *11 (dismissing a breach of fiduciary duty claim alleged by an employee against an employer,
rooted in a duty of loyalty assertion, because an employer is not the fiduciary of an employee). As such,
Plaintiffs' motion to amend the complaint, to assert a duty of loyalty claim against Austal USA and the
individual defendants, is DENIED as futile.
I. 	New Proposed Counts XVI-XVII (Alabama unjust enrichment/disgorgement) against Austal
USA/individuals)28
In the proposed amended complaint Plaintiffs allege the defendants have been unjustly enriched and
should forfeit profits accrued due to their purported unlawful conduct (disgorgement) as follows:
... [these defendants] ... obtained significant benefits in the form of financial compensation,
continued job opportunities, and lucrative Government funding opportunities that were
obtained through business activities at the detriment of Plaintiffs and others situated.
... this retention of an immense financial benefit goes against the fundamental principles of
justice, equity, and good conscience.
...The named Defendants’ retention of these benefits is unjust because Plaintiffs and others
were acting in reliance on the named Defendants’ assertions against Plaintiffs fundamental
rights and received the benefit of such conduct at the detriment of Plaintiffs.
... The named Defendants were the recipient of such benefits at the expense of others.
... The actions of the named Defendants, as set out herein, violate Alabama law.
***
Austal USA ... Mr. Murdaugh, John Rothwell, Mr. Gregg, and Mr. Bell were wrongfully
benefitted from intentional or reckless acts undertaken to individually profit from the
termination of 100% of its unvaccinated workforce among employees at Austal.
... Plaintiffs request that all named Defendants forfeit any profits incurred as a result of
Defendants’ unlawful conduct.
28 Plaintiffs sought to allege this count also against Austal, Ltd., but as noted supra, it is not a proper
defendant.
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 38 of 42 PageID#
<pageID>

39
... It is inequitable as a matter of law to allow the named Defendants to not be held accountable
for their disregard for the law from which they immensely profited from at the expense of
hundreds of employees, including the named Plaintiffs.
(Doc. 29-1 at 38-39).
At the outset, unjust enrichment and disgorgement are equitable remedies available only when there is
no adequate remedy at law (such as a contract). Concerning unjust enrichment, it is "quasi-contractual....White
[v. Microsoft Corp.], 454 F.Supp.2d [1118] at 1133 n. 24 [ (S.D.Ala.2006) ] (unjust enrichment is a legal fiction
used to create an implied contract)[ ]....' Shedd v. Wells Fargo Home Mortg., Inc., 2014 WL 6451245, *6 and
note 4 (S.D. Ala. Nov. 17, 2014)." Univalor Trust, SA v. Columbia Petroleum, LLC, 315 F.R.D. 374, 381
(S.D. Ala. Jun. 21, 2016); Mantiply v. Mantiply, 951 So.2d 638, 654 (Ala. 2006). Specifically “[t]he doctrine
of unjust enrichment...permit[s] the court in equity and good conscience to disallow one to be unjustly enriched
at the expense of another.” Flying J Fish Farm v. Peoples Bank of Greensboro, 12 So.3d 1185, 1193 (Ala.2008)
(citations omitted).
Upon review of Plaintiffs' unjust enrichment allegations, they are insufficient as plead. There are no
identifiable criteria from which Plaintiffs can assert that the defendants have been unjustly enriched at their
expense. The allegations do not support a finding that Plaintiffs conferred a benefit on the Defendants that
would be unjust for them to retain. 	And, as alleged, this claim appears to instead simply be a restating of
Plaintiffs' federal discrimination claims insofar as they allege that the Defendants terminated them due to their
non-vaccination status (Plaintiffs' "expense" = termination). At most, Plaintiffs allege "financial compensation,
continued job opportunities, and lucrative Government funding opportunities" (Doc. 29-1 at 38) the
Defendants received, but without alleging how such, in equity and good conscience, belongs to the Plaintiffs
instead -- or that such was improperly paid to the Defendants because of mistake or fraud. Flying J Fish Farm,
12 So.3d at 1193 (“To succeed on a claim of unjust enrichment, the plaintiff must show that ... the defendant
holds money which, in equity and good conscience, belongs to the plaintiff or holds money which was
improperly paid to defendant because of mistake or fraud[]”). And “[i]n the absence of mistake or misreliance
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 39 of 42 PageID#
<pageID>

40
by the donor or wrongful conduct by the recipient, the recipient may have been enriched, but he is not to have
been unjustly enriched.” Mantiply, 951 So.2d at 655 (internal citations and emphasis omitted).
As for disgorgement, this is "an equitable remedy intended to prevent unjust enrichment.” S.E.C. v.
Monterosso, 756 F.3d 1326, 1337 (11th Cir. 2014). See also e.g., Northern Assurance Co. of Am. v. Bayside
Marine Const., Inc., 2009 WL 151023, *4 (S.D. Ala. Jan 21, 2009); S.E.C. v. Huffman, 996 F.2d 800, 802 (5th
Cir.1993) (providing that “[d]isgorgement wrests ill-gotten gains from the hands of a wrongdoer []”). The
remedy may not be used punitively, and thus a causal connection must exist between the breach and the benefit
sought to be disgorged. S.E.C. v. Blatt, 583 F.2d 1325, 1335 (5th Cir.1978) (“[d]isgorgement is remedial and
not punitive. The court's power to order disgorgement extends only to the amount [] by which the defendant
profited from his wrongdoing[]”). The concept underlying disgorgement is that another received monies that
should have been paid to Plaintiffs. Plaintiffs' allegations do not sufficiently identify discernible "monies" (or
wrested ill-gotten gains) that should have been paid to Plaintiffs but were retained by the defendants. Only that
Plaintiffs allege wrongful discrimination which resulted in termination. And to the extent these claims are for
lost wages and benefits: "[a] close look at the restitution concept ... demonstrates that it does not apply to this
suit for lost wages and benefits. The substantive basis of restitution is unjust enrichment, a benefit conferred
on a party which it is unjust for that party to retain ... The 'benefit' conferred on defendant by its discharge of
plaintiff, if any, lies in any savings it realizes from hiring another person in plaintiff's place. This 'benefit' is
not measured by the cost of plaintiff's lost wages and benefits. Thus the damages sought by plaintiff are not
the disgorgement of improper profits or some other form of unjust enrichment; plaintiff's cause of action is
properly viewed as a claim for compensatory damages measured by the amount of his lost wages and
benefits...[]"). Mitchell v. Consolidated Freightways Corp. of Del., 747 F.Supp. 1446, 1451 note 4 (M.D. Fla.
1990) (internal citations omitted).
As such, Plaintiffs' motion for leave to amend the complaint, as to unjust enrichment and disgorgement
against Austal USA and the individual defendants, is DENIED as futile.
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 40 of 42 PageID#
<pageID>

41
J. 	New Proposed Count XVIII (Alabama officer/director liability) 29
In the proposed amended complaint Plaintiffs allege: "Austal USA ... Mr. Murdaugh, Mr. Rothwell,
Mr. Gregg, and Mr. Bell encouraged, condoned, and authorized the conduct undertaken by Austal and its
employees. Given the amount of funds obtained due to the alleged unlawful conduct and the severity of the
alleged harm that affected only Plaintiffs on the basis of their protected characteristics, Austal’s officers and/or
directors should be found personally liable in the interests of justice." (Doc. 29 at 50; Doc. 29-1 at 39-40). In
briefing, Plaintiffs argue that this "verbatim delineat[es] that the magnitude of COVID-19 funds that were
allegedly received and through Defendant(s) conduct to achieve these funds, suppress the knowledge of these
funds and vaccine percentages, alleged unlawful conduct discriminating against the fundamental rights of its
employees, and more." (Doc. 29 at 50). "This would include but is certainly not limited to Austal USA ... Mr.
Murdaugh, Mr. Rothwell, Mr. Gregg, and Mr. Bell encouraging, condoning, and authorizing jokes, harassing
statements, threats, misrepresentations, at the expense of Plaintiffs and other unvaccinated employees ... in
regard with Mr. Murdaugh, Mr. Rothwell, Mr. Gregg, and Mr. Bell allegedly engaging in actions to
misrepresent their vaccination status to Plaintiffs, Austal, to other employees, and the state and federal
governments. All of whom relied on these individuals statements regarding their vaccine status along with
representations of what the accommodation process was to entail and how the procedures would be handled."
(Id.) In response, Austal USA argues that, as alleged, this is a repleading of Plaintiffs' Title VII and/or ADAA
discrimination claims based on their unvaccinated status.
Upon consideration, the proposed count is a repleading of, or addition to, Plaintiffs' federal
discrimination claims against Austal USA. As such, these allegations are already encompassed within
Plaintiffs' federal claims. And as to the individuals, Plaintiffs' claim fails as a matter of law because:
[i]ndividual defendants are not amenable to private suit and personal liability for employment
discrimination under the Americans With Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101
et seq.; Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; ....
29 Plaintiffs sought to allege this count also against Austal, Ltd., but as noted supra, it is not a proper
defendant.
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 41 of 42 PageID#
<pageID>

42
See Albra v. Advan, Inc., 490 F.3d 826, 829–30 (11th Cir. 2007); see also Dearth v. Collins,
441 F.3d 931, 933 (11th Cir. 2006) (relief under Title VII is available against only the employer
and not against individual employees regardless of whether the employer is a public entity or
a private company); Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1172 (11th Cir. 2003)
(individual 	liability 	precluded 	for 	violation 	of 	ADA 	anti-discrimination 	provision 	in
employment); Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir. 1996) (ADA does not provide
for individual liability, only for employer liability); Smith v. Lomax, 45 F.3d 402, 403 n. 4 (11th
Cir. 1995) (individual defendants could not be held liable in their individual capacities under
the ADEA or Title VII); Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991)
(individual capacity suits under Title VII are inappropriate; relief is to be found from the
employer). Plaintiff's claims .... seek to impose individual liability and such relief is not
available under these statutes. Relief, if any, is against the employer, not an individual. The
claims .... individually are properly dismissed, as a matter of law.
Baptiste-Alkebul-Lan v. Smith, 2022 WL 175551745, *7 (M.D. Fla. Dec. 9, 2022). Thus, Plaintiffs' motion
to amend, to allege an officer/director liability claim, is DENIED as futile.
V. 	Conclusion
It is ORDERED that the motion for leave to file a First Amended Complaint is GRANTED in part
and DENIED in part, as set forth supra and on the condition that Plaintiffs file a new First Amended
Complaint by April 24, 2023 strictly in keeping with this Order; and to avoid any confusion Plaintiffs'
proposed and alternative proposed first amended complaints (Docs. 25-1 and Doc. 29-1) are STRICKEN.
DONE and ORDERED this the 10th day of April 2023.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE
Case 1:22-cv-00329-KD-C Doc# 48 Filed 04/10/23 Page 42 of 42 PageID#
<pageID>