IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

SOUTHEASTERN BOLL WEEVIL 

ERADICATION FOUNDATION, INC., 

Plaintiff, 

v. 

BOLL WEEVIL ERADICATION 

FOUNDATION OF GEORGIA, INC., 

and TOMMY IRVIN in his capacity as 

TRUSTEE of the BOLL WEEVIL 

ERADICATION FOUNDATION OF 

GEORGIA, INC., 

Defendants. 

_________________________________ 

) 

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) 

) Civil Action No. 

) 2:06-cv-00756-MHT-VPM 

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) 

BRIEF IN SUPPORT OF DEFENDANT TOMMY IRVIN, 

COMMISSIONER, GEORGIA DEPARTMENT OF AGRICULTURE’S 

PRE-ANSWER MOTION TO DISMISS

COMES NOW, Defendant Tommy Irvin, Commissioner of the Georgia 

Department of Agriculture by and through counsel, the Attorney General for the 

State of Georgia, and files this brief in support of his motion to dismiss. 

I. STATEMENT OF THE FACTS 

Although never mentioned once in plaintiff’s Complaint, Tommy Irvin is the 

Commissioner of the Georgia Department of Agriculture and it is in that capacity 

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alone that he has any connection to this matter. Plaintiff’s claims in this case arise 

from plaintiff’s allegations that Defendant Boll Weevil Eradication Foundation of 

Georgia, Inc., (hereinafter “the Georgia BWEF”) has breached its contractual 

agreement with the Southeastern Boll Weevil Eradication Foundation 

(“SEBWEF”) by “failing or refusing to pay money owed to the SEBWEF.” 

(Complaint ¶ 14). Not limiting its dispute to the Georgia BWEF, however, 

plaintiff names Commissioner Irvin as an additional defendant. (Complaint ¶ 4.) 

Throughout its Complaint, plaintiff alleges that Commissioner Irvin is 

“trustee of the funds of [the] Georgia BWEF.” (Complaint ¶¶ 4, 23, 25, and 32.) 

Plaintiff seeks a money judgment from Commissioner Irvin as well as prospective 

injunctive relief (Complaint’s “Wherefore” paragraphs.) 

 For the reasons set forth below, Commissioner Irvin respectfully requests 

that he be dismissed from this action based upon the lack of plaintiff’s standing to 

sue him, lack of personal jurisdiction, Eleventh Amendment immunity, and 

plaintiff’s failure to state a claim upon which relief can be granted against the 

Commissioner. 

II. ARGUMENT AND CITATION OF AUTHORITY 

Notwithstanding the low threshold plaintiff is given to withstand a motion to 

dismiss, plaintiff’s attempt to sue Commissioner Irvin is contrary to several 

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fundamental principles of jurisprudence and should be dismissed. Plaintiff has 

failed to allege a concrete and particularized injury-in-fact that it has or will suffer 

as a result of an action by Commissioner Irvin and therefore has no standing to 

maintain this action as to the Commissioner. Plaintiff has failed to allege sufficient 

facts to establish that Commissioner Irvin has purposefully availed himself of the 

privilege of conducting activities within the forum so as to give rise to the assertion 

that this court has personal jurisdiction over the Commissioner. Plaintiff seeks 

monetary and injunctive relief from Commissioner Irvin prohibited by the 

Eleventh Amendment to the U.S. Constitution. And, finally, plaintiff has failed to 

allege facts sufficient to state a valid, cognizable legal claim against Commissioner 

Irvin. 

A. Statutory background

The creation and continued existence of the Georgia BWEF is authorized 

and specifically limited by Georgia law. O.C.G.A. § 2-7-155 (c) (1). The only 

role that the Commissioner of the Georgia Department of Agriculture has with 

regard to the Georgia BWEF is to certify that the organization meets the 

requirements of Georgia law (O.C.G.A. § 2-7-155 (a) and (b)), to inspect and audit 

the books and records of the Georgia BWEF (O.C.G.A. § 2-7-155 (a) (5)), to levy 

assessments on cotton growers in Georgia upon the recommendation of the 

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Georgia BWEF (O.C.G.A. § 2-7-156 (1)), and to “receive, collect, hold in trust, 

and disburse all assessments ... only upon the written authorization of the [Georgia 

BWEF] (O.C.G.A. § 2-7-156 (4)). Nowhere in Georgia law is the Commissioner 

given any authority to govern the business decisions, or act on behalf of the 

Georgia BWEF. See O.C.G.A. § 2-7-150, et. seq. 

The business decisions of the Georgia BWEF are governed by a board of 

directors composed of six cotton growers elected by Georgia cotton growers and 

one employee of the Georgia Department of Agriculture, not the Georgia 

Agriculture Commissioner. O.C.G.A. § 2-7-155 (a) (4) and (c) (1) (B). The 

members of the Georgia BWEF consist of cotton growers in the State of Georgia. 

O.C.G.A. § 2-7-155 (a) (2). The Georgia BWEF is not a state agency and funds 

collected on its behalf are not state funds. O.C.G.A. § 2-7-155 (c). 

B. Plaintiff lacks standing to sue Commissioner Irvin

 Based on the “case” or “controversy” requirement of Article III of the U.S. 

Constitution, it is fundamental that, in order for any person or entity to seek 

adjudication of a matter in federal court, that person must have “standing” to do so. 

Frothingham v. Mellon, 262 U.S. 447 (1923). An evaluation of a plaintiff’s 

standing to sue is a “threshold question in every federal case.” Warth v. Seldin, 

422 U.S. 490, 498 (1975). This constitutional limitation is considered to be an 

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“irreducible minimum” requirement of law. Bennett, et al. v. Spear, et al., 520 

U.S. 154, 162 (1997). A party must further be able to demonstrate that it has 

standing in relation to each issue raised and defendant named. See Lewis v. Casey, 

518 U.S. 343, 358, fn.6 (1996) (“standing is not dispensed in gross.”). 

For an individual to have standing it must be shown that that individual 

“suffered an ‘injury in fact’--an invasion of a legally protected interest which is (a) 

concrete and particularized, [citations omitted] and (b) ‘actual or imminent, not 

“conjectural” or “hypothetical,” [citations omitted].’ In addition, there must be a 

causal connection between the injury and the conduct complained of -- the injury 

has to be ‘fairly . . . trace[able] to the challenged action of the defendant ... . 

[Cite.]’” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). 

Nowhere in plaintiff’s complaint is there any allegation that any action of 

the Commissioner has caused or will cause the SEBWEF any “actual or imminent” 

injury-in-fact. Plaintiff’s simply states erroneously that the Commissioner “is 

responsible for the payment of membership dues, costs and fees, buffer zone costs, 

and other obligations on Georgia BWEF’s behalf.” (Complaint ¶ 23.) Plaintiff 

further states erroneously that the Commissioner “was responsible for using funds 

to wind up the relationship between Georgia BWEF and SEBWEF and pay 

Georgia BWEF’s obligations.” (Complaint ¶¶ 27 and 32.) Conspicuously absent 

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from plaintiff’s complaint is any allegation that the Georgia BWEF provided the 

Commissioner with written authorization to pay such expenses which is the only 

circumstance under which the Commissioner is authorized by statute to disburse 

such funds. O.C.G.A. § 2-7-156 (4). Consequently, plaintiff has failed to 

demonstrate that any action or inaction of the Commissioner has caused it any 

cognizable injury sufficient to establish its standing to sue the Commissioner – 

who is a constitutional officer of the State of Georgia. Ga. Const., Art. V, Sec. III, 

Para. I. 

Plaintiff also makes the entirely unsupported allegation that it believes that 

there is “a significant risk that trust funds may be withdrawn, hidden, or spent, 

rather than pay Georgia BWEF’s obligations to SEBWEF ... .” (Complaint ¶ 33.) 

This serious allegation that the Commissioner would either engage in, or be a party 

to, illegal activity is unsupported (and unsupportable) by any allegation in 

plaintiff’s Complaint and, therefore, is insufficient to confer standing on plaintiff. 

“[T]o have standing to obtain forward-looking relief, a plaintiff must show a 

sufficient likelihood that he will be affected by the allegedly unlawful conduct in 

the future. [See City of Los Angeles v. Lyons, 461 U.S. 95 (1983); Church v. City 

of Huntsville, 30 F.3d 1332 (11th Cir. 1994)].” Johnson v. Bd. of Regents, 263 

F.3d 1234, 1265 (11th Cir. 2001). "[B]ecause injunctions regulate future conduct, 

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a party has standing to seek injunctive relief only if the party alleges . . . a real and 

immediate - as opposed to a merely conjectural or hypothetical - threat of future 

injury." Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001) (quoting Wooden v. 

Bd. of Regents of Univ. Sys. of Ga., 247 F.3d 1262, 1284 (11th Cir. 2001)). 

Plaintiff’s allegation is nothing more than mere (and unsubstantiated) conjecture 

and fails to meet the “sufficient likelihood” standard to establish standing to seek 

the relief requested. Therefore, plaintiff has failed to demonstrate that it has 

standing to sue the Commissioner in this matter, and its complaint against the 

Commissioner should be dismissed. 

C. The Court Lacks Personal Jurisdiction Over the Defendants

 On a motion to dismiss for lack of personal jurisdiction, it is the plaintiff 

who bears the burden of establishing the Court’s jurisdiction over the Defendant. 

McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Time 

Share Vacation Club v. Atlantic Resorts, 735 F.2d 61 (3rd Cir. 1992). There are 

two factors for establishing personal jurisdiction over an out-of-state resident: the 

forum state’s long-arm statute must extend jurisdiction, and the extension of that 

jurisdiction must not violate principles of due process. Paolino v. Channel Home 

Centers, 668 F.2d 721 (3rd Cir. 1981); Aviles v. Kunkle, 978 F.2d 201 (5th Cir. 

1992); Welsh v. Gibbs, 631 F. 2d 436 (6th Cir. 1980). 

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 Alabama’s long-arm statute provides as follows: 

 (b) Basis for out-of-state service. An appropriate basis exists for service of 

process outside of this state upon a person or entity in any action in this state 

when the person or entity has such contacts with this state that the 

prosecution of the action against the person or entity in this state is not 

inconsistent with the constitution of this state or the Constitution of the 

United States . . . 

Ala. R. Civ P. Rule 4.2 (b). 

Formerly, Alabama’s long arm statute contained a laundry list of the types of 

conduct that would subject an out-of-state defendant to personal jurisdiction in 

Alabama. While the former Rule is no longer in effect, it is still instructive as to 

the types of conduct which establish jurisdiction in Alabama. For example, 

transacting business, contracting to supply services or goods, or causing tortious 

injury, could result in the requisite contacts to convey jurisdiction. 

In the instant case, it is clear from the face of this statute that allegations 

made against the Commissioner do not amount to anything falling within the scope 

of the Alabama long-arm statute. Therefore, plaintiff does not allege a valid basis 

for the Court’s exercise of personal jurisdiction over the Commissioner. Plaintiff 

admits that, “upon information and belief,” the Commissioner is a resident of 

Georgia. (Complaint ¶ 4.) However, plaintiff then contends without support that 

the Commissioner has established sufficient contacts in the State of Alabama by 

“sending representatives to Alabama on numerous occasions for the purpose of 

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conducting business, attending meetings, auditing accounting records” and having 

satisfied the Georgia BWEF’s commitments to the SEBWEF in the past. 

(Complaint ¶ 5.) 

As noted above, however, the Commissioner is not involved in the Georgia 

BWEF. Rather, by statute, an employee of the Georgia Department of Agriculture, 

not the Commissioner, sits on the Georgia BWEF’s board of directors. The 

Georgia BWEF enters into its own obligations and commitments with other entities 

without any control over those decisions exercised by the Commissioner. In 

addition, the Commissioner’s statutory authority to disburse funds in payment of 

the financial obligations of the Georgia BWEF is strictly limited. He may only do 

so upon written request from that organization. Therefore, the Commissioner is 

not, solely as a result of that limited role, automatically subject to the exercise of 

personal jurisdiction in every forum in which the Georgia BWEF chooses to 

transact business. 

 Due process requires that a non-resident defendant have minimum contacts 

with the forum state such that the exercise of personal jurisdiction does not offend 

traditional notions of fair play and substantial justice. International Shoe Co. v. 

Washington, 326 U.S. 310, 316 (1945). A defendant establishes minimum contact 

with a forum state by committing some act by which he purposefully avails himself 

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of the privilege of conducting activities within the forum state, thus involving the 

benefits and protection of its laws. Hanson v. Denckla, 357 U.S. 235, 253, 78 

S.Ct. 1228, 1240 (1958). These contacts must be of the nature such that the 

individual non-resident defendant “should reasonably anticipate being hauled into 

court there.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 2184 

(1985) (citing World Wide Volkswagen, 444 U.S. at 295, 100 S.Ct. at 566). 

Personal jurisdiction may be established "if the defendant has purposefully directed 

his activities at residents of the forum and the litigation results from alleged 

injuries that arise out of or related to those activities." Burger King Corp. v. 

Rudzewicz, 471 U.S. 462, 472 (1985). 

While the Georgia BWEF may have so acted, the Commissioner of the 

Georgia Department of Agriculture has not. Plaintiff has not demonstrated any 

valid contact by the Commissioner in the State of Alabama. The Commissioner 

has not purposefully availed himself of the “privilege of conducting activities” 

within the State of Alabama. Accordingly, as there is insufficient contact by the 

Commissioner of the Georgia Department of Agriculture within the State of 

Alabama relative to the subject matter of this action, it would be inconsistent with 

due process for the Court to exercise jurisdiction in this case. Therefore, the 

Commissioner should be dismissed from this case. 

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D. Eleventh Amendment Immunity

The Eleventh Amendment to the United States Constitution provides that 

“the Judicial power of the United States shall not be construed to extend to any suit 

in law or equity, commenced or prosecuted against one of the United States by 

Citizens of another State, or by Citizens or Subjects of any Foreign State.” “In the 

view of the U.S. Supreme Court, the principle of sovereign immunity embodied in 

the Eleventh Amendment is a broad, fundamental one, which is ‘among the most 

stable in our constitutional jurisprudence.’ Welch v. State Department of 

Highways, 483 U.S. 468, 486 (1987). The doctrine plays a vital role in our federal 

system by preventing the sensitive problems which would result from compelling 

one sovereign to appear in the courts of the other against its will. Id. at 486-87, 

107 S. Ct. at 2952.” DeKalb County School Sys. v. Schrenko, 109 F.3d 680 (11th 

Cir. 1997). 

The Eleventh Amendment applies not only to suits against a State, “but also 

certain actions against state agents and state instrumentalities.” Shands Teaching 

Hosp. & Clinics, Inc. v. Beech Street Corp., 208 F.3d 1308, 1311 (11th Cir. 2003), 

citing Regents of the Univ. of Cal. v. Doe, 519 U.S. 425 (1997). Moreover, the 

Eleventh Amendment does not exist merely to prevent federal court judgments that 

must be paid out of a State’s treasury, but also “to avoid the indignity of subjecting 

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a State to the coercive process of judicial tribunals at the insistence of private 

parties.” Seminole Tribe of Florida v. Florida, 517 U.S. 44, 58 (1996). 

The Eleventh Amendment protects a State from being sued in federal court 

without the State's consent. As a result, parties with claims against a nonconsenting State must resort to the State's own courts. The Eleventh Amendment is 

“a recognition that states, though part of a union, retain attributes of sovereignty, 

including immunity from being compelled to appear in the courts of another 

sovereign against their will.” Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir. 

2003) (citation omitted). Eleventh Amendment immunity bars suits brought in 

federal court when the State itself is sued and when an 'arm of the State' is sued. 

Id. (citations omitted). 

In Ex parte Young, 209 U.S. 123 (1908), the Supreme Court held that 

official capacity suits for prospective relief to enjoin state officials from enforcing 

unconstitutional acts are not deemed to be suits against the state and thus are not 

barred by the Eleventh Amendment. 209 U.S. at 167-68 ; Scott v. Taylor, 405 F.3d 

1251 (11th Cir. 2005) (discussing Ex parte Young). Thus, generally, suing a state 

official for injunctive relief is a way to skirt a State's Eleventh Amendment 

immunity because it is not an action against a State. Kentucky v. Graham, 473 

U.S. 159, 167 n.14 (1985) ("[I]mplementation of state policy or custom may be 

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reached in federal court only because official-capacity actions for prospective relief 

are not treated as actions against the State."). 

In Ex parte Young, the Supreme Court carved out a "prospectivecompliance" exception to the jurisdictional bar of the Eleventh Amendment, 

holding that a federal court could enjoin state officials "who threaten and are about 

to commence proceedings ... to enforce ... an unconstitutional act...." 209 U.S. at 

156 (emphasis added). The exception permits federal courts to enjoin state 

officials to conform their conduct to the requirements of federal law, even if there 

is an ancillary impact on the state treasury. See, e.g., Milliken v. Bradley, 433 U.S. 

267, 289 (1977). When, however, "the action is in essence one for the recovery of 

money from the state, the state is the real, substantial party in interest and is 

entitled to invoke its [Eleventh Amendment] immunity from suit even though 

individual officials are nominal defendants." Ford Motor Co. v. Department of 

Treasury of Indiana, 323 U.S. 459, 464 (1945); Pennhurst, 465 U.S. at 101. A suit 

that is essentially one against the state is "barred regardless of whether it seeks 

damages or injunctive relief." Pennhurst, 465 U.S. at 101-02; see Cory v. White, 

457 U.S. 85 (1982). 

Plaintiff’s complaint seeks both monetary and injunctive relief from the 

Commissioner. The Commissioner is a constitutional officer of the State of 

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Georgia, an arm of the State, and acts in that capacity with respect to the Georgia 

BWEF. O.C.G.A. §§ 2-7-155 and 2-7-156 Therefore, plaintiff’s demand for 

monetary judgment against the Commissioner is a demand against an arm of the 

State of Georgia and is barred by Eleventh Amendment immunity which Georgia 

has not waived. Similarly, plaintiff’s complaint makes no allegation (substantiated 

or otherwise) that the Commissioner is about to commit an unconstitutional act or 

act in violation of federal law so as to justify the extraordinary measure of issuing 

an injunction against him. 

"In determining whether the Ex parte Young doctrine avoids an Eleventh 

Amendment bar to suit, a court need only conduct a 'straightforward inquiry' into 

whether the complaint alleges an ongoing violation of federal law and seeks relief 

properly characterized as prospective." Verizon Maryland, Inc. v. Public Service 

Com'n of Maryland, 535 U.S. 635, 636 (2002). Not only does plaintiff’s complaint 

not allege “an ongoing violation of federal law,” the complaint it isn't even based 

on federal question jurisdiction. Therefore, plaintiff’s request for injunctive relief 

is also barred by Eleventh Amendment immunity, does not qualify for the Ex parte 

Young exception, and should be dismissed. 

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E. Plaintiff has failed to state a valid claim against Commissioner Irvin

"[A] complaint should not be dismissed for failure to state a claim unless it 

appears beyond doubt that the plaintiff can prove no set of facts in support of his 

claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45- 46 

(1957). However, "while notice pleading may not require that the pleader allege a 

'specific fact' to cover every element or allege 'with precision' each element of a 

claim, it is still necessary that a complaint 'contain either direct or inferential 

allegations respecting all the material elements necessary to sustain a recovery 

under some viable legal theory.'" Roe v. Aware Woman Ctr. for Choice, Inc., 253 

F.3d 678, 683 (11th Cir. 2001) (quoting In re Plywood Antitrust Litig., 655 F.2d 

627, 641 (5th Cir. 1981)) . 

Although a plaintiff is not held to a high standard in defending against a 

motion to dismiss for failure to state a claim, the federal rules do require "a short 

and plain statement" of the claim that will give the defendant fair notice of what 

the plaintiff's claim is and the grounds upon which it rests. See Fed.R.Civ.P. 8(a) ; 

Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001) . 

"Pleadings must be something more than an ingenious academic exercise in the 

conceivable." Marsh v. Butler County, Ala., 268 F.3d 1014, 1037 (11th Cir. 2001) 

(en bane) (citation omitted). In addition, unsupported conclusions of law or of 

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mixed law and fact are not sufficient to withstand a dismissal under Rule 12(b)(6) . 

Id. at 1036 n.16 . 

Plaintiff’s complaint is solely grounded in its allegations of breach of 

contract. (Complaint ¶¶ 9-15.) All of plaintiff’s other counts stem from those 

allegations. The only named defendant in plaintiff’s suit that has contractual 

privity with the plaintiff is the Georgia BWEF. There is no privity whatsoever 

between the Commissioner and the plaintiff, and no allegation that the 

Commissioner has any contractual obligations to the plaintiff. Because plaintiff 

has not alleged, and cannot allege, a basis for any claim upon which relief can be 

granted against the Commissioner in favor of the plaintiff, the Complaint against 

the Commissioner should be dismissed. 

III. CONCLUSION 

Wherefore, based upon the above and foregoing, the Commissioner of the 

Georgia Department of Agriculture respectfully moves this court to dismiss all 

claims against him in the above styled action. 

 Respectfully submitted this 4th day of December, 2006. 

 

 THURBERT E. BAKER 033887 

 Attorney General 

(Signatures continued on the next page) 

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 ISAAC BYRD 101150 

 Deputy Attorney General 

 . /s/ John E. Hennelly .

 JOHN E. HENNELLY 347075 

 Senior Assistant Attorney General 

Please Address All 

Communications To: 

JOHN E. HENNELLY 

Senior Assistant Attorney General 

Georgia Department of Law 

40 Capitol Square, S.W. 

Atlanta, Georgia 30334-1300 

Telephone: (404) 656-7540 

Facsimile: (404) 651-6341 

E-mail: jhennelly@law.ga.gov 

Case 2:06-cv-00756-MHT-WC Document 24 Filed 12/04/2006 Page 17 of 19
IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

SOUTHEASTERN BOLL WEEVIL 

ERADICATION FOUNDATION, INC., 

Plaintiff, 

v. 

BOLL WEEVIL ERADICATION 

FOUNDATION OF GEORGIA, INC., 

and TOMMY IRVIN in his capacity as 

TRUSTEE of the BOLL WEEVIL 

ERADICATION FOUNDATION OF 

GEORGIA, INC., 

Defendants. 

_________________________________ 

) 

) 

) 

) 

) 

) Civil Action No. 

) 2:06-cv-00756-MHT-VPM 

) 

) 

) 

) 

) 

) 

) 

) 

) 

CERTIFICATE OF SERVICE

 I do hereby certify that I have this day served the within and foregoing 

BRIEF IN SUPPORT OF DEFENDANT TOMMY IRVIN, 

COMMISSIONER, GEORGIA DEPARTMENT OF AGRICULTURE’S 

PRE-ANSWER MOTION TO DISMISS, prior to filing the same using the 

CM/ECF system, by depositing a copy thereof, postage prepaid, in the United 

States Mail, properly addressed upon: 

Case 2:06-cv-00756-MHT-WC Document 24 Filed 12/04/2006 Page 18 of 19
2

Duke R. Groover, Esq. 

William H. Noland, Esq. 

Groover & Childs 

Post Office Box 898 

Macon, Georgia 31202 

D. Mitchell Henry, Esq. 

T. Randall Lyons, Esq. 

Webster, Henry, Lyons & White PC 

Post Office Box 239 

Montgomery, Alabama 36101-0239 

Jerry A. Buchanan, Esq. 

Benjamin A. Land, Esq. 

Buchanan & Land, LLP 

P. O. Box 2848 

Columbus, Georgia 31902 

Simeon F. Penton, Esq. 

Kaufman & Rothfeder, P.C. 

P. O. Drawer 4540 

Montgomery, Alabama 36102 

 This 4th day of December, 2006. 

 . /s/ John E. Hennelly .

 JOHN E. HENNELLY 

 Senior Assistant Attorney General 

Case 2:06-cv-00756-MHT-WC Document 24 Filed 12/04/2006 Page 19 of 19