IN THE TENNESSEE CLAIMS COMMISSION MIDDLE DIVISION LUIS DEL MAZO, ) ) Claimant, ) ) No. 120151070 vs. ) ) STATE OF TENNESSEE, ) a Defendant. ) MOTION TO DISMISS COMPLAINT And Motion for Default The Defendant the State of Tennessee moves for dismissal of this Claim pursuant to Tenn. R. Ci P. 12.02(1) and 12.02(6) for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. This Motion should be granted for the following reasons: 1. The one-year statute of limitations bars this Complaint. 2. There is no subject matter jurisdiction in the Tennessce Claims Commission over claims alleging deprivation of constitutional rights, intentional torts, criminal violations, the Government Tort Liability Act, or for revoking claimant’s real estate license. 3. There is no subject matter jurisdiction in the Tennessee Claims Commission for claims based upon the actions of non-state employee or entities. The entity involved in Claimant's child support payment issues (through Ms. Davidson and Ms. Cowan) was Young Williams, a private company which contracts with the State of Tennesseeto collect child support payments. Tenn. Code Ann. § 71-3-124(a\2); Affidavit of Daphne Davidson. ! 4 The doctrine of judicial immunity bars all claims based upon the actions of Judge Robinson, 5. Claimant fails to state a claim for breach of contract or negligent breach of duty. 6. The doctrine of res judicata bars this claim. In support of this Motion, the State relies upon the contemporancously filed Memorandum in Support and affidavit of Daphne Davidson, Because this Claims should be dismissed for all the reasons listed above, Claimant’s Motion for Default should be dismissed as moot, Respectfully submitted, HERBERT H, SLATERY Il, BPR #009077 Attorney General and Reporter Mecaptey C72 HEATHER C. ROSS, BPR #015644 Attomey General's Office P.O. Box 20207 Nashville, TN 37202 (615) 532-2559 * On. Rule 12.02(1) motion to dismiss, the court may consider documents ouside the pleadings to determine it Jurisdiction exists without converting it into a Rule 56 Motion for Summary Judgment. Anderson v. Watchtower Bible and Tract Society, 2007 WL 161035 (Jan. 19, 2007) at n, 23 and cases cited therein. Ina similar vein, affidavits filed on behalf of a Rule 12.02(2) Motion do not convert a Motion to Dismiss into a Motion for Summary Judgment, See Gordon v. Breemview Hosp., 300 S,W.3d 635, 644 (Tenn. 2009), 2CERTIFICATE OF SERVICE T certify that a true and exact copy of the foregoing has been forwarded by first-class, U.S. ; Postage prepaid to: Luis A. Del Mazo, P.O. Box 160891 and Commissioner Robert N. ibbett, Tennessee Claims Commission, Cloverbotiom Developmental Center, Fir Building 27S Stewarts Ferry Pike, Nashville, Tennessee 37214 on this the” day of April, 2015 ethan 2 HEATHER C. ROSS Senior Counsel im:IN THE TENNESSEE CLAIMS COMMISSION MIDDLE DIVISION LUIS DEL MAZO, ) ) Claimant, ) ) No. T2015000172 vs. ) STATE OF TENNESSEE, ») y Defendant. ) AFFIDAVIT OF DAPHNE DAVIDSON ‘Comes now the affiant, Daphne Davidson, takes oath and testifies as follows: 1, At all times relevant to the “Notice of Verified Affidavit of Administrative Claim” filed by Luis Del Mazo, 1 was employed by Young Williams, a private contractor for Child Support Services of Tennessee. I was not a state employee. I was not paid by the State of ‘Tennessee. 2. My employer at the time, Young Williams, provides child support services for the State of Tennessee ~ it is not a state agency. It is a private company which contracts with the State of Tennessee to collect child support payments. My job was to establish paternity or to ¢stablish, modify or enforce child or spousal support pursuant to Title IV-D of the Social Security Act. 3. Lisa Cowan was and continues to be employed by Young Williams, a private contractor for Child Support Services of Tennessee. She is and was not a state employee. She is not paid by the State of Tennessee. Ms. Cowan’s job was to establish paternity or to establish, modify or enforce child or spousal support pursuant to Title IV-D of the Social Security Act.IN THE TENNESSEE CLAIMS COMMISSION MIDDLE DIVISION LUIS DEL MAZO, Claimant, No. 20151070 STATE OF TENNESSEE, ) ) ) ) vs. ) ) ) ) Defendant. ) FACTS AS ALLEGED This Complaint is an attempt to circumvent Judge Robinson’s decision in Circuit Court by alleging constitutional violations and intentional torts. Complaint, generally. Judge Phillip Robinson adjudicated numerous issues involving Claimants child support Payments. See Verified Affidavit of Administrative Claim with the Division of Claims Administration (“Complaint”) $f 6, pp. 9-12. Claimant appealed Judge Robinson's decision on August 8, 2013. Jd. 429. Claimant's attempt to stay the lower court proceedings was denied on October 18, 2013. Id. In addition to appealing Judge Robinson's decision, Claimant filed the instant Complaint on December 16, 2014, alleging violations of his constitutional rights and intentional actions by non-state employees. The entity involved in Claimant's child support payment issues (through Ms. Davidson and Ms. Cowan) was Young Williams, a private company which contracts with the State of Tennessee to collect child support payments. Tenn. Code Ann, § 71-3-124(a)(2); Affidavit of Daphne Davidson. Young Williams is a private company; it is not a state agency. Ona Rule 12.02(1) motion to dismiss, the court may consider documents outside the pleadings to determine if Jurisdiction exists without converting it into a Rule 56 Motion for Summary Judgment. Anderson v. Watchtower Bible and Tract Society, 2007 WL. 161035 (Jan. 19, 2007) at n, 23 and cases cited therein. In a similar vein, 11d, Atall relevant times, Ms. Davidson and Ms. Cower were employed by Young Williams. 1d. Neither Ms. Davidson nor Ms. Cowen were state employees. Id. Claimant seeks twenty million doll ‘8. Complaint p. 22. LAW AND ARGUMENT 1. The one-year statute of limitations bars this Complaint. A claim is barred unless it is filed in the Division of Claims Administration within the applicable statute of limitations that would apply in circuit court. Tenn. Code Ann. § 9-8-402(b). Actions such as the one now before this Commission are govemed by a one year statute of li tions. Tenn. Code Ann, § 28-3-104 Assuming arguendo that any claim may have arisen due to actions taken by a state official, such action was complete by August 8, 2013, when Claimant appealed the judgment on his custody payment issues. Complaint 29. This action was filed with the Division of Claims Administration on December 16, 2014, more than one year later, Because this claim was filed ‘more than one year after the alleged actions, it is barred by the one-year statute of limitations. 2. There is no subject matter jurisdiction in the Tennessee Claims Commission over claims alleging deprivation of constitutional rights, intentional torts, criminal violations, the Government Tort Liability Act, or for revocation of Claimant’s real estate license. The Constitution of the State of Tennessee provides that “[sJuits may be brought against the State in such manner and in such courts as the Legislature may direct.” Tenn. Const. Art I, § 17. This constitutional provision reflects sovereign immunity, the principle that a sovereign governmental entity cannot be sued in its own courts without its consent. Northland Ins. Co. v ‘State of Tennessee, 33 8.W.3d 727, 729 (Tenn. 2000). See also Memphis and CRR v. State ex affidavits filed on behalf of a Rule 12.022) Motion do not convert a Motion to Dismiss into a Motion for Summary Judgment. See Gordon v. Breemwiew Hosp., 300 8.W.3d 635, 644 (Tenn. 2009). 2)rel. Watson, 101 U.S. 337, 339 (1880). Sovereign immunity precludes any suit “maintained against the State absent express authorization from the Legislature,” Williams v. Nicely, 230 S.W.3d 385, 388 (Tenn. Ct. App. 2007) (citing Coffman v. City of Pulaski, 422 8.W.2d 429, 431 (Tenn. 1967)), ‘The Tennessee Legislature has granted jurisdiction to this Claims Commission to hear certain negligence claims against the State based upon the actions of state employees. Tenn. Code Ann. §9-8-307(a)(1)(A) through (V), generally. ‘These provisions “must be strictly construed and the jurisdiction cannot be enlarged by implication.” Daley v. State, 869 8.W.2d 338, 340 (Tenn. Ct. App. 1993); see also Bullock v. State, Tennessee Claims Commission No. 20141446 at pp. 15-17, attached. In addition, if a claim against the state “falls outside of the categories specified in section 9-8-307(a), then the state retains its immunity from suit, and a Claimant may not seek relief from the state.” Conley v. State, 141 $.W.3d 591, 597 (Tenn. 2004). (A) No jurisdiction over claims alleging deprivation of constitutional rights, The Claims Commission does not have subject matter jurisdiction for claims alleging the violations of the Constitution, The Claims Commission has not had jurisdiction over the deprivation of constitutional rights since 1989, when the Tennessee legislature expressly revoked the cause of action. 1989 Tenn. Pub. Acts No. 491, Section 1. See Shell v. State, 893 $.W. 2d 416 at 418-19 (Tenn. 1995), (B) No jurisdiction over claims alleging intentional torts. The Claims Commission does not have subject matter jurisdiction over claims of intentional torts or acts. Conley v. State, 141 S.W.3d at 597 and see, Shell vy, State, 893 S.W.2d 416, 421 (Tenn. 1995). Malicious prosecution, false imprisonment and the intentional infliction. of emotional distress are intentional torts. Peoples Protective Lift Insurance Company v. L.L 3Neuhoff, 407 S.W.2d 190, 199 (Tenn. Ct. App. 1966); Sullivan v. Young, 678 S.W.2d 906, 911 (Tenn. Ct. App. 1984); Brown v. Scoa Industries, Inc., 741 8.W.2d 916, 919 (Tenn, Ct. App. 1987); Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). (© No jurisdiction over claims alleging violations of criminal law. ‘Violations of criminal law are necessarily intentional. As stated above, the Tennessee Claims Commission does not have jurisdiction over claims involving intentional torts. Nor can Claimant successfully allege a claim for negligent deprivation of statutory rights based on alleged Violations of Tenn, Code Ann. § 39-16-402. In order to bring such a claim, Claimant must cite to specific statutory language conferring a cause of action for the Claimant against the State “for the state’s violation of the particular statute’s pro ions.” Tenn, Code Ann. § 9-8-307(a)(1)(N); See also Madkins v. State, 2002 WL. 1162338 Tenn.App. (May 29, 2002); Taylor v. State, 2001 WL 873470 (Tenn.App. July 31, 2001). ‘There is nothing in any of the statutes cited by Claimant to indicate that a private right of action was conferred on Claimant against the State. Therefore, this cause of action is due to be dismissed. (D) The Government Tort Liability Act does not apply to the State of Tennessee. To the extent that Claimant seeks to bring a Claim against the “municipality” based upon the Government Tort Liability Act (GTLA), it must fail because the GTLA does not apply to actions against the state, its agencies, or its officials. See Tennessee Dep't of Mental Health & Retardation v. Hughes, 331 8.W. 2d 299, 300 (Tenn. 1975).(E) There is no subject matter jurisdiction for a claim arising out of the alleged negligent revocation of a license. Claimant alleges an “unconstitutional taking” arising out of the suspension or revocation of his real estate license. However, Tenn, Code Ann, §9-8-307(a)(2) specifically excludes claims against the State resulting from the revocation of a license. It states in pertinent part: (2)_No item enumerated in this subsection shalll be interpreted to allow any claims against the state arising out of or resulting from: (A) The issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order or similar authorization, except as provided for in subdivision (a)(1)(V):? Therefore, there is no jurisdiction in the Tennessee Claims Commission for a claim arising out of the alleged negligent revocation of Claimant's license, For all the reasons addressed above, there is no subject matter jurisdiction for any of the alleged claims. Therefore, this entire complaint should be dismissed for lack of subject matter jurisdiction, 3. There is no subject matter jurisdiction in the Tennessee Claims Com mn for claims based upon the actions of non-state employee or entities. The Tennessee Claims Commission may only hear claims based upon the alleged (in)actions of state employees “as such term is defined in Tenn. Code Ann. § 8-42-101 (3).” Tenn. Code Ann. § 9-8-307(a). State employees are defined in part as follows: any person who is employed in the service of and whose compensation is payable by the state, ... but does not include any person employed on a contractual or percentage basis. 2 Tenn. Code Ann. § 9-8-307(a)(1)(V) refers to an unconstitutional taking of real property. See Tenn. Code Ann. § 12-1-202(1)(©). 5Tenn. Code Ann. § 8-42-101 (3) (emphasis added). In the instant case, the claimant’s injuries are alleged to have occurred as a result of the employees of Young Williams, a contractor with the State of Tennessee. Complaint, generally and Davidson affidavit. Young Williams is a private company that contracts with the State to collect child support payments. Tenn, Code Ann. § 7-1-3-124(a)(2), Davidson affidavit, Ms. Davidson and Ms. Cowan were, at all relevant times, employees of Young Williams, not the State of Tennessee. Davidson affidavit. Therefore, to the extent that this claim is based upon the actions of Ms. Davidson, Ms. Cowan, or Young Williams, this claim must be dismissed for lack of subject matter jurisdiction, 4. The doctrine of judicial immunity bars all claims based upon the actions of Judge Robinson, To the extent that this claim is based upon the alleged negligent actions of Judge Phillip Robinson, itis barred under the doctrine of judicial immunity, The state may assert all defenses, including common law defenses, which would have been available to the officer or employee in an action against such an individual based upon the same occurrence. Tenn. Code Ann. § 9-8- 307(@) A judge performing his judicial functions is absolutely immune from suit seeking monetary damages. Mireles v. Waco, 502 U.S. 9, 9-10, 112 8.Ct. 286, 286-87, 116 L-Ed.2d9 (1991). This common law doctrine of judicial immunity has long been recognized by the United States Supreme Court. See Wilkes v. Dinsman, 48 U.S. 89, 12 L.Ed. 618 (1859); Barnes v. Winchell, 105 F.3d 1111, 1115 (6th Cir. 1997). This immunity extends to actions brought under 42 U.S.C. §1983. Pierson v, Ray, 386 U.S. 547, 87 S. Ct. 1213, 18 L.Ed.2d 288 (1967). Absolute immunity is available to judges even if a judge acts erroneously, corruptly, or in excess of his or her jurisdiction. Pierson, 386 U.S. at 554, 87 S.Ct. at 1218; see also Mireles,502 U.S. at 11, 112 S.Ct. at 288. Judicial immunity “is not overcome by allegations of bad faith or malice, the existence of which ordinarily cannot be resolved without engaging in discovery and eventual trial.” Mireless, 502 U.S, at 11-12; 112 S.Ct. at 287-88; see also King v. Love, 766 F.2d 962 (6th Cir.), cert. denied 474 U.S. 971, 106 8. Ct. 351, 88 L.Ed.2d 320 (1985) The doctrine of judicial immunity is not defeated by allegations ofa conspiracy. Allegations of conspiracy do not create a cause of action against a defendant who has absolute immunity. Cf, Alioto v. City of Shively, Kentucky, 835 F.2d 1173, 1174 (6th Cir. 1987) absolute immunity, e.g. testimonial immunity, shields a defendant from liability for alleged conspiracy). Claimant does not allege any specific action taken by Judge Robinson other than rendering a decision. Deciding a case pending before his Court is clearly a judicial act. Therefore, a claim based upon that decision is barred by the doctrine of judicial immunity Under Tenn. Code Ann. § 9-8-307(d), the state is entitled to assert this common law immunity as a defense in this action. Therefore, assuming arguendo that subject matter jurisdiction existed, all claims based upon the actions of Judge Robinson should be dismissed for failure to state a claim upon which relief could be granted. 5. Claimant fails to state a claim for breach of contract or negligent breach of duty. ‘While plaintiff styles his “count six” as a claim for “breach of contract,” claimant has not alleged a breach of contract claim. The only contract claims authorized against the State require “a written contract between the claimant and the State which was executed by one (1) or more State officers... with authority to execute the contract.” Tenn. Code Ann. §9-8- 307(a)(1)(L)°(emphasis added); Jones v. State, 2005 WL 589816 (Tenn. Ct. App. 2005). Claimant has not allege any contract between himself and the State. He cannot. The entity * And group insurance contracts, which are not applicable to the instant case. 7involved in his child support payment issues is a private company, Young Williams, not the State of Tennessee, Complaint, generally, and Davidson affidavit. Claimant also avers a claim for “negligent breach of duty,” but he does not articulate what duty, or how that duty would translate into a claim within the purview of Tenn. Code Ann. §9-8:307(a). On the contrary, claimant cites to more intentional acts (terrorizing, intimidating,! distressing, harming, defrauding, extorting,* robbery), for which the Tennessee Claims Commis sion has no subject matter jurisdiction, Complaint p. 19. Moreover, as already addressed, the Tennessee Claims Commission can only hear claims based upon the acts of state employees — neither Ms. Davidson nor Ms. Cowan were state employees. Davidson affidavit. Also addressed above, no claim could be based upon the actions of Judge Robinson as he is immune from suit under the doctrine of judicial immunity. Therefore, any claim based on the actions of the individuals named in the Complaint do not state a cause of action for which relief can be granted from the State of Tennessee. Thus, this entire Complaint should be dismissed. 6. The doctrine of res judicata bars this claim, Assuming arguendo any valid claim has been made for which the Tennessee Claims Commission retained jurisdiction (as discussed thoroughly above, there are none), procedurally this case is barred under the doctrine of res judicata, Res judicata bars an identical claim: Res judicata is a claim preclusion doctrine that bars a second suit between the same parties or their privies on the same cause of action with respect to all the issues that were or could have been raised in the former suit. Richardson v, Tennessee Bd. of Dentistry, 913 S.W.2d 446, 459 (Tenn. 1995); Hampton v. Tennessee Truck Sales, Inc., 993 S.W.2d 643, 645 (Tenn.Ct.App. 1999). “There is no civil claim for intimidation. See Davis v. Tenn. Wildlife Resources Agency, 2006 WL 861352 at *7 (Tenn. Ct. App. April 5, 2006). {There is no statutory or common law authority to recovery civil damages for extortion, Perry v. Conley, 1999 WL 270430 at *4 (Tenn, Ct, App. May 5, 1999), 8Davis v. Campbell, 48 S.W.2d 741, 745 n. 6 (Tenn.Ct.App. 2001) Claimant avers that he raised the same issues from this Complaint in Circuit court before Judge Robinson. Complaint pp. 10-12, and generally. He did not like the ruling he obtained by Judge Robinson. He has appealed that decision. Id. 29. He cannot use this second lawsuit to adjudicate the appropriateness of the first decision, even ifhe has changed the style of remedy. ‘Therefore, this Complaint should be dismissed. CONCLUSION For all the reasons set forth above, this claim should be dismissed for lack of subject, matter jurisdiction and for failure to state a claim upon which relief may be granted, Because this entire Complaint should be dismissed, the Motion for Default should be denied as moot. Respectfully submitted, HERBERT H. SLATERY, BPR #009077 Attomey General and Reporter Ly "ATHER C. ROSS, BPR #015644 Attomey General's Office P.O. Box 20207 Nashville, TN 37202 (615) 532-2559 ® The Motion for Default can be denied substantively because (1) this Response is timely and (2) Claimant cannot obtain default judgments against the State of Tennessee merely because a response was untimely. See Tenn, R. Civ. P.55.04, 9CERTIFICATE OF SERVICE Teertify that a true and exact copy of the foregoing has been forwarded by first-class, U.S mail, postage prepaid to: Luis A. Del Mazo, P.O. Box 160891 and Commissioner Robert N. Hibbett, Tennessee Claims Commission, Cloverbottom Developmental Center, Fir Building 275 Stewarts Ferry Pike, Nashville, Tennessee 37214 on this the _/ day of April 2015. Washo Pa © HEATHER C. ROSS Senior Counsel