Dr. Robert H. Wainberg v. James Mellichamp, et al

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11680
Non-Argument Calendar
____________________
DR. ROBERT H. WAINBERG,
Plaintiff-Appellant,
versus
JAMES MELLICHAMP,
THOMAS A. ARRENDALE,
THOMAS M. HENSLEY, JR.,
STEWART SWANSON,
DOCK C. SISK, et al.,
Defendants-Appellees.
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2 Opinion of the Court 23-11680
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 2:22-cv-00155-MHC
____________________
Before R OSENBAUM , NEWSOM , and ANDERSON, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Dr. Robert H. Wainberg sued several of-
ficers and trustees of Piedmont University. He alleged that they (1)
conspired (a) to retaliate against him for filing a prior lawsuit and
(b) to deter witnesses from participating in that lawsuit and (2) neg-
ligently refused to prevent that conspiracy. The district court dis-
missed Wainberg’s claims as time-barred. It did so based on its con-
clusion that the statute of limitations ran from the first overt act
Wainberg alleged as part of the conspiracy. But under our prece-
dent, each overt act triggers its own statute of limitations, so Wain-
berg’s claims arising out of some overt acts were timely. So we
vacate the district court’s dismissal and remand for further pro-
ceedings.
I. BACKGROUND
Plaintiff-Appellant Dr. Robert H. Wainberg was a tenured
biology professor at Piedmont University. Wainberg previously
filed a separate lawsuit against Piedmont (the “First Lawsuit”). In
the First Lawsuit, Wainberg alleged breach of contract and
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23-11680 Opinion of the Court 3
violation of the implied duty of good faith and fair dealing. Wain-
berg v. Piedmont Univ., No. 2:19-cv-00251. That case remains pend-
ing.1 In that lawsuit, Wainberg alleged that Dr. James Mellichamp,
Piedmont’s President, engaged in sexual harassment and discrimi-
nation and retaliated against Wainberg for opposing that conduct
by terminating Wainberg’s employment contract.
Dr. Richard M. Austin, Jr., a former Piedmont biology pro-
fessor, testified on Wainberg’s behalf by deposition and affidavit.
Austin testified that Mellichamp (1) purchased alcohol for minors
and took them to a gay bar on a college-sanctioned trip, (2) made
unwanted sexual overtures and sexual innuendos towards Austin,
(3) sexually assaulted Austin by grabbing his buttocks, and (4) cov-
ered up a female employee’s complaint of sexual harassment
against a University Vice President. Austin also testified that he
complained to Piedmont’s then-President about Mellichamp’s sex-
ual harassment. But according to Austin, Piedmont did nothing.
Then, Austin recounted, Mellichamp retaliated by targeting Aus-
tin’s son (a student) and family with excess scrutiny and discipline.
Other witnesses made similar allegations. Those witnesses,
current and former Piedmont professors and students, testified
that, among other things, Mellichamp (1) failed to act against a fac-
ulty member who was sexually harassing and stalking a student, (2)
retaliated against another student for complaining of sexual harass-
ment by a coach, and (3) terminated a faculty member who
1 Specifically, the parties have completed discovery and filed cross-motions for
summary judgment.
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4 Opinion of the Court 23-11680
reported an administrator who was engaging in inappropriate con-
duct with a student.
In response to Austin’s testimony, Wainberg asserts that
Piedmont’s officers and directors—including the Defendant-Appel-
lees in this case—retaliated against Austin to deter him and other
witnesses from testifying in the future. Specifically, Wainberg al-
leges the following acts of retaliation, among others:
1. On March 14, 2019, the day after Austin’s deposition,
Dean Steven Nimmo sent an email to the chair of Austin’s
department asking if the chair had taken care of “the biology
problem,” a reference to Austin.
2. On May 1, 2019, Mellichamp submitted an affidavit ac-
cusing Austin of lying in his sworn testimony and attaching
Austin’s son’s confidential Piedmont disciplinary records.
3. On June 13, 2019, Fred Bucher (Piedmont’s Title IX Di-
rector at the time) emailed the City of Demorest, Georgia,
(of which Austin was the Mayor) that Austin had a “personal
issue” and was “trying to stick it to the college for some per-
ceived wrong” and that Austin needed to “grow up.”
4. On August 7, 2020, Piedmont’s General Counsel Patrick
McKee sent a letter to Austin, the City Council, and City of
Demorest employees threatening litigation based on the
City’s 2018 decision to raise water and sewer rates. Wain-
berg alleges that the lawsuit was actually motivated by Aus-
tin’s testimony. McKee’s letter insisted that any resolution
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23-11680 Opinion of the Court 5
would require termination of Austin’s employment with
Piedmont.
5. On November 23, 2020, Piedmont University filed a law-
suit against Austin seeking Austin’s termination from Pied-
mont and his removal from his position as Mayor. Pied-
mont claimed that Austin’s testimony in the First Lawsuit
was false and in bad faith.
Following his testimony, Austin sent an email to Piedmont’s
Title IX Office claiming that “through the actions of President
James Mellichamp . . . Piedmont has repeatedly engaged in retalia-
tion, harassment, and intimidation.”
On August 7, 2022, Wainberg sued. He alleged that Defend-
ants had (1) conspired (a) to retaliate against him for filing the First
Lawsuit and (b) to deter witnesses from participating in that law-
suit, in violation of 42 U.S.C. § 1985(2), and (2) they had negligently
refused to prevent the conspiracy, in violation of 42 U.S.C. § 1986.
Defendants moved to dismiss Wainberg’s complaint for fail-
ure to state a claim. They argued, among other things, that the
statute of limitations barred Wainberg’s claims. The district court
granted that motion. Wainberg timely appealed.
II. DISCUSSION
To survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a complaint must contain “enough facts to
state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007); see also Fed. R. Civ. P. 8(a)(2). In
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6 Opinion of the Court 23-11680
other words, a plaintiff must “plead[] factual content that allows the
court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). In the context of section 1985 conspiracy claims, “conclu-
sory, vague, and general allegations of conspiracy may justify dis-
missal of a complaint.” Kearson v. S. Bell Tel. & Tel. Co., 763 F.2d
405, 407 (11th Cir. 1985).
We review de novo the granting of a motion to dismiss for
failure to state a claim. Newbauer v. Carnival Corp., 26 F.4th 931, 934
(11th Cir. 2022). For purposes of our review, we accept the com-
plaint’s allegations as true and construe them in the light most fa-
vorable to the plaintiff. Id. But we need not accept legal conclu-
sions, even when they are “couched as . . . factual allegation[s].”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
“A statute of limitations bar is an affirmative defense,” and a
plaintiff is “not required to negate an affirmative defense in [its]
complaint.” La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th
Cir. 2004) (citation and internal quotation marks omitted), abro-
gated on other grounds by Twombly, 550 U.S. 544. So dismissal on stat-
ute-of-limitations grounds is proper only where it is “apparent
from the face of the complaint that the claim is time-barred.” Id.
(citation and internal quotation marks omitted); see also Isaiah v.
JPMorgan Chase Bank, 960 F.3d 1296, 1304 (11th Cir. 2020) (“A com-
plaint need not anticipate and negate affirmative defenses and
should not ordinarily be dismissed based on an affirmative defense
unless the defense is apparent on the face of the complaint.”).
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23-11680 Opinion of the Court 7
Here, the district court erred in determining that the statute
of limitations barred Wainberg’s conspiracy claims.
A. The statute of limitations ran separately for each overt act in further-
ance of the § 1985 conspiracy.
Section 1985 “prohibits conspiracies to intimidate parties or
witnesses to federal lawsuits.” Farese v. Scherer, 342 F.3d 1223, 1229
(11th Cir. 2003). A civil conspiracy, in turn, 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 in-
jury to the plaintiff.” McAndrew v. Lockheed Martin Corp., 206 F.3d
1031, 1036 (11th Cir. 2000) (en banc) (quoting Bivens Gardens Office
Bldg., Inc. v. Barnett Banks Inc., 140 F.3d 898, 912 (11th Cir. 1998)).
Conspiracy claims under section 1985 share the forum
state’s statute of limitations for tort claims. Rozar v. Mullis, 85 F.3d
556, 560–61 (11th Cir. 1996). In Georgia’s case, that’s two years. See
id. (citing G A . C ODE ANN. § 9-3-33). But federal law determines
when the cause of action for federal civil-rights claims accrues—in
other words, when the statute of limitations begins to run. Id. at
561. As a general matter, that occurs when “facts which would sup-
port a cause of action are apparent or should be apparent to a per-
son with a reasonably prudent regard for his rights.” Id. at 561–62
(quoting Mullinax v. McElhenney, 817 F.2d 711, 716 (11th Cir. 1987)).
Here, the parties do not dispute the applicable statute of lim-
itations but rather when the limitations period began to run. Wain-
berg contends that the statute of limitations ran separately for each
overt act taken in furtherance of the conspiracy. Defendants
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8 Opinion of the Court 23-11680
disagree. They assert instead that the statute of limitations began
to run on May 1, 2019 (the date of Mellichamp’s affidavit), when
Wainberg should have been aware of the alleged conspiracy, so
Wainberg’s suit is untimely.2
Wainberg is correct. In Mizell v. North Broward Hospital Dis-
trict, 427 F.2d 468, 475 (5th Cir. 1970), the former Fifth Circuit re-
jected the argument that the statute of limitations for a section
1985 conspiracy begins to run at the time of the first overt act, and
no other overt acts during the limitations period can form the basis
for a claim.3 The former Fifth Circuit then remanded the case to
the district court “to reinstate the case for further proceedings in
light of our decision that the conspiracy charge is still viable as to”
2 Defendants also argue that Wainberg has forfeited his claim that the statute
of limitations runs separately for each overt act. To be sure, Wainberg did not
explicitly articulate his argument or cite his principal case, Mizell v. N. Broward
Hosp. Dist., 427 F.2d 468 (5th Cir. 1970), in the district court. But he argued
that his claims “continued to accrue, evolve, and culminate” with the 2020
overt acts, so his suit is not time-barred. This does not amount to forfeiture.
See, e.g., Yee v. City of Escondido, Cal., 503 U.S. 519, 534 (1992) (“Once a . . . claim
is properly presented, a party can make any argument in support of that claim;
parties are not limited to the precise arguments they made below.”); Sec’y, U.S.
Dep’t of Lab. v. Preston, 873 F.3d 877, 883 n.5 (11th Cir. 2017) (“Parties can most
assuredly waive positions and issues on appeal, but not individual argu-
ments—let alone authorities. . . Offering a new argument or case citation in
support of a position advanced in the district court is permissible—and often
advisable.”).
3 All Fifth Circuit decisions issued before October 1, 1981, are binding prece-
dent in this Court. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.
1981) (en banc).
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23-11680 Opinion of the Court 9
the overt acts during the limitations period. Id.; see also DeLaughter
v. Borden Co., 364 F.2d 624, 628 (5th Cir. 1966) (citing with approval
a case that “viewed each act of the defendant as a separate cause of
action” for statute of limitations purposes).
Though we apparently have not since revisited this issue,
Mizell remains binding prior panel precedent.4 See United States v.
Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). Our later decision in
Rozar v. Mullis, 85 F.3d 556 (11th Cir. 1996), did not retreat from
Mizell. Nor is it in conflict with Mizell. In Rozar, the plaintiffs al-
leged a section 1985 conspiracy (among other claims) by both
county and state defendants. Id. at 558. Specifically, the plaintiffs
claimed that the siting (by the county defendants) and permitting
(by the state defendants) of a landfill in their neighborhood was
racially discriminatory in violation of the Fourteenth Amendment.
Id. We dismissed the plaintiffs’ section 1985 claim against the
county defendants as time-barred. Id. at 563. In doing so, we iden-
tified the “operative decision amounting to the alleged constitu-
tional injury”—in other words, the conspiratorial act underlying
the section 1985 claim—as the County Board of Commissioners
4 Defendants argue that Mizell is no longer binding. For support, they rely on
Judge Tuttle’s statement in a partial dissent that “Mizell is overruled sub silen-
tio by failing to consider its application to the facts of the case.” Blair v. Page
Aircraft Maint., Inc., 467 F.2d 815, 821 (5th Cir. 1972) (Tuttle, J., concurring in
part and dissenting in part). But a dissenting opinion cannot overrule prior
panel precedent. And even if it could, Blair concerned a distinct aspect of Miz-
ell: whether state or federal law governs the tolling of a statute of limitations.
Id.
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10 Opinion of the Court 23-11680
vote selecting the landfill site. Id. So, we reasoned, the statute of
limitations ran from the date of that vote. Id. And any later action
that the county defendants undertook, like exercising the option to
purchase the landfill property, was merely a continuation of that
“operative decision” rather than a discrete conspiratorial act sup-
porting liability. See id; cf. Delaware State Coll. v. Ricks, 449 U.S. 250,
258 (1980) (“[t]he proper focus” of the statute-of-limitations inquiry
“is upon the time of the discriminatory acts, not upon the time at
which the consequences of the acts became most painful” (alteration
in original) (citation and internal quotation marks omitted)).
Those actions, therefore, did not trigger a distinct limitations pe-
riod. See id.
By contrast, we found that the plaintiffs’ section 1985 claims
against the state defendants were not time-barred. Id. at 564. Ra-
ther, the state defendants had not participated in the site-selection
vote, so their liability could not attach until either the date they
made a site-suitability determination or the date they issued the fi-
nal permit. Id. The plaintiffs sued within the two-year limitations
period following either of those actions, so their claims were
timely. Id.
But even if we were to view Rozar as suggesting that the stat-
ute of limitations ran for only one of those allegedly conspiratorial
acts rather than independently for each act, it is inconsistent with
Mizell, and as our earlier precedent, Mizell controls. See MacPhee v.
MiMedx Grp., Inc., 73 F.4th 1220, 1250 (11th Cir. 2023) (under the
“earliest case” rule, when prior panel precedents conflict, the
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23-11680 Opinion of the Court 11
earlier case controls). But we read Rozar’s result as entirely con-
sistent with Mizell, so Rozar does not alter Mizell’s clear application
to this case.
Though we have apparently not cited Mizell since its issu-
ance, we continue to believe it is legally sound. For instance, Miz-
ell’s approach is consistent with several of our sister circuits.5 See
Nieves v. McSweeney, 241 F.3d 46, 51 (1st Cir. 2001); Singleton v. City
of New York, 632 F.2d 185, 192 (2d Cir. 1980); Dique v. N.J. State Police,
603 F.3d 181, 189 (3d Cir. 2010); Scherer v. Balkema, 840 F.2d 437, 439–
40 (7th Cir. 1988); Gibson v. United States, 781 F.2d 1334, 1340 (9th
Cir. 1986); Lawrence v. Acree, 665 F.2d 1319, 1324 (D.C. Cir. 1981).6
And, though in a different context, the Supreme Court has
also held that “[e]ach discrete discriminatory act starts a new clock
for filing charges alleging that act.” Nat’l R.R. Passenger Corp. v. Mor-
gan, 536 U.S. 101, 113 (2002). Morgan concerned the statutory pe-
riod for filing Title VII discrimination and retaliation claims with
the Equal Employment Opportunity Commission, id. at 105, but it
is instructive here. In that case, the Supreme Court declined to al-
low a plaintiff to overcome the statutory time bar for claims that
5 Some of these cases concern the statute of limitations for claims under sec-
tion 1983 rather than section 1985. But because both statutes apply to civil
conspiracies, and both borrow statutes of limitations from state law, Rozar, 85
F.3d at 561, their reasoning applies in both contexts.
6 Indeed, Lawrence cites Mizell to support the proposition that “the statute of
limitations in a civil damages action for conspiracy runs separately from each
overt act that is alleged to cause damage to the plaintiff.” 665 F.2d at 1324 &
n.7.
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12 Opinion of the Court 23-11680
were “sufficiently related” to timely claims. Id. But as relevant
here, it treated each “independently discriminatory” act as starting
a separate clock. See id. at 113. And as Justice O’Connor explained
in her partial concurrence, this treatment is consistent with the
Court’s approach in other contexts. See id. at 127 (O’Connor, J.,
concurring in part and dissenting in part); Klehr v. A.O. Smith Corp.,
521 U.S. 179, 189 (1997) (for ongoing antitrust violations, “each
overt act that is part of the violation and that injures the plaintiff .
. . starts the statutory [limitations] period running again” (citation
and internal quotation marks omitted)).
Given Mizell, as well as persuasive authority from the Su-
preme Court and our sister circuits, Wainberg’s section 1985 claims
based on overt acts that occurred on or after August 7, 2020 (two
years before he filed his lawsuit), were timely.
That said, any claims based on acts before August 7, 2020,
are time-barred. But while these time-barred acts may not them-
selves form the basis of Wainberg’s claims, Wainberg may still use
“the prior acts as background evidence in support of ” his timely
conspiracy claims. See Morgan, 536 U.S. at 113.
B. The continuing-violation doctrine does not apply to the untimely
overt acts.
We briefly address the district court’s application of the con-
tinuing-violation doctrine to Wainberg’s claims. We agree that the
doctrine does not save the untimely overt acts.
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23-11680 Opinion of the Court 13
Under the continuing-violation doctrine, a plaintiff may “sue
on an otherwise time-barred claim when additional violations of
the law occur within the statutory period.” Doe ex rel. Doe v.
Swearingen, 51 F.4th 1295, 1305 (11th Cir. 2022) (quoting Ctr. for Bi-
ological Diversity v. Hamilton, 453 F.3d 1331, 1334 (11th Cir. 2006)).
For instance, “[i]f a defendant’s actions violate a plaintiff’s rights on
a repeated or ongoing basis, then a cause of action may be timely
even if the first violation took place outside the statute of limita-
tions.” Id.
But we apply that doctrine only in limited circumstances.
We “distinguish[] between the present consequence of a one time
violation, which does not extend the limitations period, and the
continuation of the violation into the present, which does.” Id. (al-
teration in original) (quoting Calloway v. Partners Nat’l Health Plans,
986 F.2d 446, 448 (11th Cir. 1993)). The continuing-violation doc-
trine applies in only the second scenario. And the continuing-vio-
lation doctrine similarly does not apply when a plaintiff alleges “a
series of repeated violations that result in repeated harms.” Id. at
1306 (citing Morgan, 536 U.S. at 113). In those cases, “each new vi-
olation” starts the clock on its own limitations period. Id.
As we’ve explained, this case falls into the category of cases
involving alleged repeated violations, each of which triggers its
own statute of limitations. See id.; Helton v. Clements, 832 F.2d 332,
335 (5th Cir. 1987) (“the actionable civil injury to a plaintiff results
from the overt acts of the defendants, not from the mere continu-
ation of a [section 1985] conspiracy”). So the district court
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14 Opinion of the Court 23-11680
correctly concluded that the continuing-violation doctrine does not
apply. But because the district court did not consider the discrete
statutes of limitations for each overt act, we remand so that it may
do so.
III. CONCLUSION
For the foregoing reasons, we vacate the district court’s or-
der granting Defendants’ motion to dismiss and remand for further
proceedings consistent with this opinion.
VACATED AND REMANDED.
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