Memo in Support of Dismissal

UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF TENNESSEE
M.S. (a minor, by his parent and next friend,

)
Sharonda Covington), SHARONDA )
COVINGTON, and DEREK STEPP, on behalf
)
of themselves and all others similarly situated,
)
)
Plaintiffs, ) Case No.: 1:16-cv-00501
v. )
) Judge J. Ronnie Greer
HAMILTON COUNTY DEPARTMENT OF )
EDUCATION, DURHAM SCHOOL SERVICES, ) Magistrate Judge Susan K. Lee
L.P., and BENJAMIN COULTER, )
)
Defendants. )
Memorandum in Support of Durham School Services, L.P.s

Rule 12(b)(6) Motion to Dismiss
Defendant DURHAM SCHOOL SERVICES, L.P. (Durham) submits this
memorandum in support of its Rule 12(b)(6) motion to dismiss the amended complaint against it
(Doc. 3) in its entirety and with prejudice.
Introduction
This case arises out of the tragic November 21, 2016 school bus crash on Talley Road in
Chattanooga in which six children died and several others were injured. The amended complaint
alleges that plaintiff M.S. is one of the injured children. Plaintiffs Sharonda Covington and
Derek Stepp are M.S. parents. (Doc. 3 at 4)
Durham is a private company that provides school bus services to defendant Hamilton
County Department of Education (the District), which includes Woodmore Elementary School
in Chattanooga, attended by plaintiff M.S. (Doc. 3 at 6-7) Plaintiffs assert that the bus driver
involved in the subject accident Durhams employee, non-party Johnthony Walker had a
history of speeding and driving recklessly which was known to Durham and the District before
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Case 1:16-cv-00501-JRG-SKL Document 22 Filed 02/09/17 Page 1 of 19 PageID #: 120
November 21, 2016. (Doc. 3 at 71-72) On November 21, 2016, Walker was driving a school
bus with plaintiff M.S. and other students of Woodmore Elementary School aboard, taking the
children home after school. (Doc. 3 at 70) Plaintiffs allege that Walker was speeding and
swerving, and ultimately crashed the bus into a large tree on the side of Talley Road. (Doc. 3 at
73-81)
Plaintiffs assert five claims against Durham: two claims seeking relief under 42 U.S.C.
1983 and one claim seeking relief under 42 U.S.C. 1985, all premised upon Durhams alleged
improper conduct in hiring, training, and supervising Walker (Counts I, II, and III); one
Tennessee state law claim for negligence and gross negligence, asserting that Durham is liable
for Walkers conduct pursuant to the doctrine of respondeat superior and that Durham was
directly negligent in its hiring, training, and supervision of Walker (Count IV); and one
Tennessee state law claim for assault and battery asserting that Durham is liable for Walkers
intentionally tortious conduct pursuant to the doctrine of respondeat superior (Count V).
The accident should not have happened; this is beyond dispute. That said, however,
plaintiffs have a proper and adequate remedy in a state court tort action. Indeed, eight other
lawsuits against Durham arising from the accident are currently pending in state court, a fact of
which this Court may take judicial notice. See, e.g., Rodic v. Thistledown Racing Club, Inc., 615
F.2d 736, 738 (6th Cir. 1980) (Federal courts may take judicial notice of proceedings in other
courts of record.).1 Like those cases, this case against Durham is about its alleged negligence in
1
These cases, all filed in the Circuit Court of Hamilton County, Tennessee, are: Boling v.
Durham School Services, L.P. and Johnthony Walker (No. 16 C 1367); Hale v. Durham School
Services, L.P., Johnthony Walker, and National Express, LLC (No. 16 C 1397); McGee v.
Durham School Services, L.P., Johnthony Walker, and Thomas Built Buses, Inc. (No. 16 C
1406); Jones v. Durham School Services, L.P., National Express, LLC, Johnthony Walker, and
Thomas Built Buses, Inc. (No. 16 C 1449); Byrd v. Durham School Services, L.P., National
Express, LLC, and Johnthony Walker (No. 16 C 1395); Poole v. Durham School Services, L.P.
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hiring, training, and supervising Walker. For the reasons that follow, this case is not about a
deprivation of plaintiffs Constitutional rights or a conspiracy to do so, and therefore must be
dismissed.
Argument
I. Standard of review.
To survive a motion to dismiss brought pursuant to Rule 12(b)(6), a complaint must
present a plausible claim based on sufficient factual allegations. Fisher v. Dodson, 451 Fed.
Appx. 500, 501 (6th Cir. 2011); see also, Solo v. United Parcel Service Co., 819 F.3d 788, 793
(6th Cir. 2016) (citations omitted). Mere conclusory statements and legal conclusions are
insufficient. Fisher, 451 Fed. Appx. at 501.
In deciding the motion, this Court must accept all factual allegations in the complaint as
true and draw all reasonable inferences in the plaintiffs favor. Solo, 819 F.3d at 793. In so
doing, this Court considers the complaint in its entirety, as well as documents incorporated into
the complaint by reference, and matters of which a court may take judicial notice. Ohio Public
Employees Retirement System v. Federal Home Loan Mortgage Corp., 830 F.3d 376, 383 (6th
Cir. 2016). Documents incorporated into the complaint by reference include those that the
defendant attaches to the motion to dismiss if those documents are referred to in the complaint
and central to the claim. Id.
and Johnthony Walker (No. 16 C 1376); Stevenson v. Durham School Services, L.P., National
Express, LLC, and Johnthony Walker (No. 16 C 00501); and Williams v. Durham School
Services, L.P., Johnthony Walker, and National Express, LLC (No. 16 C 1396).
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II. Counts I and II fail to state a claim against Durham under 42 U.S.C. 1983 because
Durham is not a state actor.
A. Plaintiffs section 1983 claims and the controlling legal principles.
In Counts I and II, plaintiffs assert that Durham, through its alleged conduct vis a vis
Walker (Doc. 3 at 35-69), deprived M.S. of his Constitutional rights to be protected from state-
created danger and to bodily integrity.
It is well-established that the United States Constitution protects citizens from
infringement of their rights by the government, not by private parties. Flagg Bros., Inc. v.
Brooks, 436 U.S. 149, 156 (1978) (most rights secured by the Constitution are protected only
against infringement by governments). Therefore, one asserting a claim under section 1983
must plead and prove that the alleged deprivation of rights was caused by a person acting under
color of state law that is, a state actor. See, e.g., Wittsock v. Mark A. Van Sile, Inc., 330 F.3d
899, 902 (6th Cir. 2003); Alkire v. Irving, 330 F.3d 802, 813 (6th Cir. 2003); Brock v.
McWherter, 94 F.3d 242, 244 (6th Cir. 1998). Here, plaintiffs allege that Durham was a state
actor: The acts complained of herein were committed by Durham and the District under color
of state law and were state actions. Durham, at all times relevant to this Complaint, was a state
actor. (Doc. 3 at 29)
Durham is a private company and its employees, including Walker, are private actors as
well. (Doc. 3 at 7) Plaintiffs amended complaint is replete with allegations about the contract
between Durham and the District pursuant to which Durham provided school bus services to the
students of Woodmore Elementary School (Doc. 3 at 14-69), but a private entity is not a state
actor simply because it is a government contractor and was acting in furtherance of that contract
at the time of the conduct at issue. See, e.g., Rendell-Baker v. Kohn, 457 U.S. 830, 841 (1982)
(Acts ofprivate contractors do not become acts of the government by reason of their
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significant or even total engagement in performing public contracts.); Bishawi v. Northeast
Ohio Correctional Ctr., 628 Fed. Appx. 339, 342 (6th Cir. 2014) (same). Instead, a private entity
may be deemed a state actor under section 1983 only if its alleged rights-depriving conduct can
be classified as state action pursuant to one of three theories: (1) the public function test, (2) the
state compulsion test, and (3) the symbiotic relationship/entwinement test. See, e.g., Rendell-
Baker, 457 U.S. at 838; Marie v. American Red Cross, 771 F.3d 344, 363 (6th Cir. 2014). Here,
plaintiffs assert that all three tests apply to Durham, alleging as follows:
Public function test Durham carried out functions historically and traditionally
reserved exclusively to governmental entities. (Doc. 3 at 28)
State compulsion test Pursuant to the terms of the contract, Durham was subject to
the coercive power of the District and received such significant overt and covert
encouragement from the District that the decisions of Durham were those of the
District. (Doc. 3 at 30)
Symbiotic relationship/entwinement test In order to effectuate the contracts

requirements, the balance of its terms make clear that Durham and the District were
pervasively entwined in the state action complained of herein. (Doc. 3 at 27)
B. A private school bus company that transports school students pursuant to a

government contract is not a state actor for purposes of section 1983 under
any of the three tests.
The question presented is one of first impression in the Sixth Circuit: is a private school
bus company that transports public school students pursuant to a government contract a state
actor for purposes of section 1983? To date, two Circuits the First and the Third have both
addressed the question and both have answered no. In Santiago v. Puerto Rico, 655 F.3d 61
(1st Cir. 2011), the plaintiff, a special education public school student, was sexually molested by
his school bus driver, an employee of the defendant private bus company. In Black v. Indiana
Area School District, 985 F.2d 707 (3d Cir. 1993), involved a similar fact pattern: the plaintiffs
were public school students who were sexually molested by their bus driver, an employee of the
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defendant private bus company. Both courts held that the plaintiffs could not maintain section
1983 claims because the private bus company was not a state actor under any of the three state
actor tests and this Court should hold likewise.2
1. The public function test.
A private party may become a state actor if it assumes a traditional public function when
performing the challenged conduct; that is, if the challenged activity is one that is traditionally
exclusively provided by the state. Tahfs v. Proctor, 316 F.3d 584, 593 (6th Cir. 2003).
Exclusivity is an important qualifier, and its presence severely limits the range of eligible
activities. The narrowness of this range is no accident. The public function test has a specific
targeted purpose: it is meant to counteract a states efforts to evade responsibility by delegating
core functions to private parties. Santiago, 655 F.3d at 69 (citing Rendell-Baker, 457 U.S. at
842). Accordingly, the activities that have been held to fall within the states exclusive preserve
for purposes of the public function test are few and far between, and they do not include bus
transportation provided to public school children.3 Id. at 69.
In Santiago, the First Circuit held that the provision of school bus services to public
school children is not a public function because school transportation is not exclusively provided
2
Where the issue presented is one of first impression in the Sixth Circuit, the court should look
to other Circuits for guidance. See, e.g., U.S. v. Washington, 584 F.3d 693, 698 (6th Cir. 2009).
3
Activities conducted by private entities held to be exclusively provided by the state for purposes
of the public function test include: administering elections, Terry v. Adams, 345 U.S. 461 (1953);
operating a company town, Marsh v. Alabama, 326 U.S. 501 (1946); and administering private
property used for a public service, Evans v. Newtown, 382 U.S. 296 (1966). Significantly, a
private utility company, even under circumstances of enjoying a state-conferred monopoly, does
not perform a public function in furnishing electrical service to its customers. Jackson v. Metro.
Edison Co., 419 U.S. 345 (1974). Furnishing emergency medical services, including ambulance
transportation and even under an exclusive contract, is also not a public function. Eggleston v.
Prince Edward Volunteer Rescue Squad, Inc., 569 F. Supp. 1344 (E.D. Va. 1983), affd without
opinion, 742 F.2d 1448 (4th Cir. 1984).
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by the state. The First Circuit reached this conclusion in reliance upon on the Supreme Courts
holding in Rendell-Baker that a private institution paid by the state to educate maladjusted high
school students was not a state actor under the public function test because education is not a
service provided solely by the state: That a private entity performs a function which serves the
public does not make its acts state action. Rendell-Baker, 457 U.S. at 842; Santiago, 655 F.3d
at 69. The First Circuit reasoned that education in general is not an exclusive public function
because it has long been undertaken by private institutions. Id. at 69. Accordingly, the First
Circuit found that student transportation falls outside the exclusive purview of the state: [i]f the
education of children does not itself fall within the narrow range of exclusive state functions, it is
hard to imagine how a service ancillary to education, such as the transportation, would qualify.
Id. at 69; see also, id. at 70 ([Plaintiffs] mother had several options for transporting her son to
school.This freedom to choose alternatives removes school busing from the realm of services
that are traditionally exclusively reserved to the state.). In Black, the Third Circuit reached the
same conclusion for the same reasons and also in reliance upon Rendell-Baker. Black., 985 F.2d
at 708-711 (3d Cir. 1993); see also, Stillwell v. Mayflower Contract Services, 1995 U.S. Dist.
LEXIS 8455, *8-10 (N.D. Ill. 1995) (same, relying upon Rendell-Baker); Hamlin v. City of
Peekskill Bd. of Educ., 377 F. Supp. 2d 379, 384-385 (S.D.N.Y. 2005) (same, relying upon Black
and Stillwell).
Here, plaintiffs allege that Durham carried out functions historically and traditionally
reserved exclusively to governmental entities. (Doc. 3 at 28; see also 100) However, they
make no factual allegations going to how this is so. Although plaintiffs allege that Durham and
the District exercised exclusive, joint control over school bus transportation to and from
Woodmore Elementary School (Doc. 3 at 11), this does not mean that Durham and the District
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exercised exclusive control over all forms of student transportation to and from Woodmore
Elementary, and that is what the public function test requires. The issue here is very specific
whether providing school bus services to public school children is a function traditionally and
exclusively reserved to the state. As a matter of law, it is not. Durham therefore cannot be
deemed a state actor under the public function test.
2. The state compulsion test.
To establish state action under the state compulsion test, a plaintiff must demonstrate a
particularly close tie between the state and the private partys conduct, such that the conduct may
fairly be regarded as state action. Santiago, 655 F.3d at 71; see also, Wolotsky v. Huhn, 960
F.2d 1331, 1335 (6th Cir. 1992) (The state compulsion test requires that a state exercise such
coercive power or provide such significant encouragement, either overt or covert, that in law the
choice of the private actor is deemed to be that of the state.). This means that the private partys
alleged rights-depriving conduct must be compelled (or, at least, heavily influenced) by a state
regulation. Santiago, 655 F.3d at 71.
The First Circuit in Santiago rejected this theory of state actor liability on the ground that
the alleged rights-depriving conduct was the bus drivers alleged molestation coupled with the
bus companys failure properly to screen and train its employees, and [n]o state regulation
compelled (or even encouraged) these actions of either the driver or the bus company.
Santiago, 655 F.3d at 71. The First Circuit explained further that
[t]he state compulsion test requires more than the taking of action
against a backdrop of applicable state regulations. Because there is
no showing that the Commonwealth exercised coercive power over
or significantly encouraged either the abuse to which [plaintiff]
was allegedly subjected or the bus companys failure properly to
screen and train its employees, the state compulsion test is not
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satisfied. Id. at 71.
See also, Hill v. New York City Board of Educ., 808 F. Supp. 141, 153 (E.D.N.Y. 1992) (private
school bus company not a state actor under state compulsion test; no state regulation or
ordinance compelled it to terminate the plaintiff school bus drivers employment after school
district requested that plaintiff not be assigned to drive any of its bus routes).
Here, Durhams alleged rights-depriving conduct is its alleged failure to properly hire and
train driver Johnthony Walker and to properly act on complaints about Walkers alleged reckless
driving before the accident. (Doc. 3 at 35-69) Although plaintiffs also allege that [p]ursuant
to the terms of the contract, Durham was subjected to the coercive power of the District and
received such significant overt and covert encouragement from the District that the decisions of
Durham were those of the district] (Doc. 3 at 30), this is not the issue for purposes of the state
compulsion test. The issue is whether a state regulation compelled (or even encouraged) the
specific alleged rights-depriving conduct Walkers alleged reckless driving and Durhams
alleged improper hiring, training, and supervision of Walker. Santiago, 655 F.3d at 71.
Plaintiffs have made no allegations that this conduct was compelled or encouraged by the state,
nor can they. The terms of the contract between Durham and the District, attached to this motion
as Exhibit A, make this plain. Pursuant to the contract:
Durham shall be solely responsible for hiring all bus drivers; all Durham
employees, including bus drivers, shall be CONTRACTOR employees and, in no
event, shall be the employees of the DISTRICT. (Exh. A at p. 3, no. 14;
capitalization in original)
Durham shall be solely responsible for providing such personnel with appropriate
supervision, training, and direction in the performance of personnel job duties.
(Exh. A at p. 3, no. 14; capitalization in original)
It is Durhams sole responsibility to address any questions or concerns of the

District regarding the performance or any personnel it employs, as well as to screen
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all job applicants through drug-testing, criminal background checks, and any other
tests, or checks required by state or federal law for individuals. (Exh. A at p. 3, no.
14; capitalization in original)
Under these circumstances, the alleged conduct at issue of Walker and Durham could not have
been compelled by the state as a matter of law. See, e.g., Stillwell, supra, 1995 U.S. Dist. LEXIS
8455, *12 (private bus company not a state actor under state compulsion test where its contract
with the school district does not provide that the School District will exercise any authority over
the personnel decisions made by it).
3. The symbiotic relationship/entwinement test.
To establish state action under the symbiotic relationship/entwinement test, a plaintiff
must show that the private entitys actions are attributable to the state through a symbiotic
relationship between the two. The requisite nexus is premised on a showing of mutual
interdependence, and [t]he most salient factor in this determination is the extent to which the
private entity is (or is not) independent in the conduct of its day-to-day affairs. Santiago, 655
F.3d at 71. There is no symbiotic relationship where the cooperation between the private
entity and the state was only that appropriate to the execution of the subject matter of the
contract and the contractors fiscal relationship with the State is not different from that of many
contractors performing services for the government. Black, 985 F.2d at 711; see also, Rendell-
Baker, 457 U.S. at 843 (Here, the schools fiscal relationship with the State is not different from
that of many contractors performing services for the government. No symbiotic
relationshipexists here.); Marie, 771 F.3d at 364 (crucial inquiry under the entwinement test
is whether the nominally private character of the private entity is overborne by the pervasive
entwinement of public institutions and public officials in its composition and workings such that
there is no substantial reason to claim unfairness in applying constitutional standards to it).
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Here, plaintiffs allege that [i]n order to effectuate the contracts requirements, the
balance of its terms make clear that Durham and the District were pervasively entwined in the
state action complained of herein (Walkers alleged reckless driving and Durhams alleged
improper hiring, training, and supervision of him). (Doc. 3 at 27) However, a review of the
contract terms demonstrates that this is not so and that Durham maintained its status as a private
entity separate from the District at all times. For example:
Durham and its employees are solely responsible for securing and maintaining all
valid permits, licenses, and certifications required to operate school buses. (Exh. A at
p. 1, no. 4)
Durham is solely responsible for obtaining general liability and workers

compensation insurance coverage. Durham is to be the named insured under these
policies and the District is to be an additional insured. (Exh. A at p. 1, no. 5)
Durham is to procure and furnish to the District a performance bond. (Exh. A at p. 2,

no. 6)
Durham is to hold the District harmless and indemnify it from claims arising from the
act or omission of Durhams employees in connection with the performance of the
contract. (Exh. A at p. 2, no. 7)
Durham is to provide its employees with formal safety instruction on a regular

basis and provide evidence to the District that it is doing so. (Exh. A at p. 2, no.
8)
While carrying out the contract, Durham is an independent contractor, and not an
officer, agent, or employee of the District. Durhams officers, agents, and
employees are the officers, agents, and employees of Durham and not the District.
(Exh. A at p. 2, no. 9)
Durham is solely responsible for hiring the personnel required to carry out the
contract, including bus drivers. (Exh. A at p. 3, no. 14)
Durham is required to provide all buses and other equipment necessary to carry out
the contract. (Exh. A at pp. 5-6, no. 18)
Durham may use the Districts existing transportation facilities pursuant to a separate
lease agreement. (Exh. A at p. 6, no. 19 and Exh. 1)
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Durham will purchase all fuel used to carry out the contract and may not store the fuel
on the Districts premises. (Exh. A at p. 6, no. 20)
Durham is to report serious or persistent misconduct on the part of students to the

District and the District will then impose reasonable disciplinary measures. (Exh.
A at p. 7, no. 23)
Durham is to pay penalties to the District for contract violations, such as late buses.
(Exh. A at p. 7, no. 24)
Plaintiffs also make some incorrect allegations regarding the contract. At paragraph 20,
plaintiffs allege that Durham and the District are essentially one because the contract required
Durham to purchase and equip its school buses with digital cameras and radios that were any
person to alter or destroy the radios or digital recordings, the private property of Durham, that
person would be subject to prosecution. (Doc. 3 at 20; emphasis added) Plaintiffs allege
further that [u]pon information and belief, there is no Tennessee criminal statute which
prohibits alteration or tampering with the radio or digital video recording of a private person,
which means that Durhams private property was afforded the protection of governmental
property. (Doc. 3 at 20; emphasis added) This is not so. Paragraph 18 of the contract states in
pertinent part that [A]ny persons who destroy, alter, or vandalize the radio or digital recording
systems not simply recordings are subject to prosecution or suspension or both. (Exh. A
at p. 6, no. 18; emphasis added) Such destruction is plainly prohibited by Tennessee criminal
statute: T.C.A. 39-14-408, Vandalism.
And at paragraph 24, plaintiffs allege that [a]s an equal partner in this joint venture,
Durham worked closely with the District on a day-to-day basis. Durham had the power to veto
or approve any existing or proposed rule or regulation which involved the provision of school
bus services in Chattanooga, a power equal to that held by the District. Establishing, repealing
and altering regulations and rules governing the provision of governmental services is a power
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traditionally reserved exclusively to the state. (Doc. 3 at 24) This is incorrect. The contract
does not give Durham veto or approval power anywhere, and instead states that Durham will
assist the District bus routing; the District alone has approval power over bus routing; route
changes may be made by agreement between the District and Durham; and the DISTRICT will
cooperate with the CONTRACTOR by approving the routes or suggested needed changes in a
reasonable and timely way. (Exh. A at p. 3, no. 13)
C. There is no Monell claim here.
Although an employer cannot be held liable under section 1983 for any federal
constitutional torts committed by its employees pursuant to the doctrine of respondeat superior,
it can be held liable under section 1983 where the employees alleged rights-depriving conduct
arises from the execution of a governments policy or custom. Monell v. Dept. of Social
Services of City of New York, 436 U.S. 658, 694 (1978); see also, Gregory v. City of Louisville,
444 F.3d 725, 752 (6th Cir. 2006). Here, the amended complaint recites some elements of a
Monell claim. For example, plaintiffs allege that [d]efendants, by agreement, conspiracy, and
concerted action, tacitly approved [the] unconstitutional conduct by failing to act, amounting to
an official policy of inaction. (Doc. 3 at 117) As with all section 1983 claims, however, the
predicate to liability of a private company under Monell is that it be a state actor. See, e.g.,
Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012) (holding that Monell applies to
private entities acting under color of state law, citing William St. v. Corrections Corp. of Am.,
102 F.3d 810, 817 (6th Cir. 1996) (applying Monell to a claim against a private entity, alleged to
be acting under color of state law) (remaining citations omitted)). Because Durham is not a state
actor for all of the reasons discussed above, plaintiffs cannot maintain a Monell claim against it.
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III. Count III fails to state a claim against Durham under section 1985 because plaintiffs
are not persons protected by section 1985.
In Count III, plaintiffs assert that Durham and the District conspired to deprive them of
their constitutional rights to protection against a state-created danger and bodily integrity
pursuant to 42 U.S.C. 1985. Section 1985 provides a cause of action against private persons for
conspiracy to interfere with the civil rights of others. Although plaintiffs do not specify which
provision of section 1985 they rely upon here, the only potentially applicable provision is section
1985(3)4, a part of the Anti-Ku Klux Klan Act of 1871:
(3) Depriving persons of rights or privileges

If two or more persons in any State or Territory conspire or go in
disguise on the highway or on the premises of another, for the
purpose of depriving, either directly or indirectly, any person or
class of persons of the equal protection of the laws, or of equal
privileges and immunities under the laws; or for the purpose of
preventing or hindering the constituted authorities of any State or
Territory from giving or securing to all persons within such State
or Territory the equal protection of the laws; or if two or more
persons conspire to prevent by force, intimidation, or threat, any
citizen who is lawfully entitled to vote, from giving his support or
advocacy in a legal manner, toward or in favor of the election of
any lawfully qualified person as an elector for President or Vice
President, or as a Member of Congress of the United States; or to
injure any citizen in person or property on account of such support
or advocacy; in any case of conspiracy set forth in this section, if
one or more persons engaged therein do, or cause to be done, any
act in furtherance of the object of such conspiracy, whereby
another is injured in his person or property, or deprived of having
and exercising any right or privilege of a citizen of the United
States, the party so injured or deprived may have an action for the
recovery of damages occasioned by such injury or deprivation,
against any one or more of the conspirators.
There are four elements to a section 1985(3) claim: (1) defendants conspire[d] or [went] in
disguise on the highway or on the premises of another, (2) defendants did so for the purpose of
4
Section 1985(1) is titled Preventing Officer from Performing Duties. Section 1985(2) is
titled Obstructing Justice; Intimidating Party, Witness or Juror.
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depriving, either directly or indirectly, any person or class of persons of the equal protection of
the laws, or of equal privileges and immunities under the laws, (3) defendants did, or caused
to be done, any act in furtherance of the object of the conspiracy, and (4) the plaintiff was
injured in his person or property or deprived of having and exercising any right or privilege of
a citizen of the United States. Griffin v. Breckenridge, 403 U.S. 88, 102-103 (1971); see also,
Haverstick Enterprises, Inc. v. Financial Federal Credit, Inc., 32 F.3d 989, 993-994 (6th Cir.
1994).
The second element is pertinent here. The Sixth Circuit has established that [t]he
persons protected under the equal privileges and immunities language of the statute are those
individuals who join together as a class for the purpose of asserting certain fundamental rights.
Browder v. Tipton, 630 F.2d 1149, 1150 (6th Cir. 1980); see also, Webb v. United States, 789
F.3d 647, 671-672 (6th Cir. 2015); Haverstick Enterprises, Inc. v. Financial Federal Credit, Inc.,
32 F.3d 989, 993-994 (6th Cir. 1994). In other words, [t]he class of persons protected by
section 1985(3) are the discrete and insular minorities that receive heightened protection under
the Equal Protection Clause because of their inherently personal characteristics. The class-based
invidiously discriminatory animus required by section 1985(3) must be based on race, ethnic
origin, sex, religion, or political loyalty. Graham v. Sequatchie County Govt., 2011 WL
1305961, *13 (E.D. Tenn. April 4, 2011).
Here, although plaintiffs do not state it clearly, they appear to allege that the section
1985(3) class is comprised of those children who rode Woodmore Elementary School Bus 366.
(Doc. 3 at 107: The Plaintiffs faced special danger on Bus 366 because the sadistic acts were
specifically targeted at and visited upon the occupants of the school bus, not the general public at
large.) This is not a class protected by section 1985(3). In order to state a section 1985(3)
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claim, the tortfeasors animus [must be] sparked, and the class formed, by the unique and
peculiar fashion in which a class of victims exercises a fundamental right. Browder, 630 F.2d
at 1153-1154. The children who rode Bus 366 were not exercising a fundamental right in doing
so they were simply going to school and returning home from school nor were they a class
of persons who receive heightened protection under the Fourteenth Amendments Equal
Protection Clause. Graham, 2011 WL 1305961, *13. The amended complaint contains no
allegations to the contrary.
The amended complaint also contains no allegations that Durham was motivated in its
alleged actions at issue by an animus toward children. See, e.g., Webb, 789 F.3d at 672 (section
1985(3) claim must allege class-based discrimination and class-based animus); Haverstick
Enterprises, 32 F.3d at 994 (handicapped plaintiffs section 1985(3) claim dismissed where
record failed to show that the defendants actions were motivated to any degree by an animus
against the handicapped). Instead, plaintiffs assert that Durhams sole motivation was to
maximize profit. (Doc. 3 at p. 2) By failing to show that Durham was motivated by an animus
toward children, and [b]y failing to show the unique fashion in which they exercised a
fundamental right, plaintiffs fail to allege that they are members of a protected class. Browder,
630 F.2d at 1154. Their section 1985(3) claim must therefore be dismissed. See also, Evans v.
City of Etowah, 2008 WL 918515, *8 (E.D. Tenn. April 3, 2008) (section 1985(3) claim not
actionable where based upon non-specific claim that defendants conspired and agreed to
violate plaintiffs civil rights and plaintiff fails to even indicate of what protected class she is a
member).5
5
In Browder, the Sixth Circuit noted that it had recognized legitimate section 1985(3) classes
as follows: supporters of a sheriffs political opponent; anti-Nixon demonstrators; and members
of the Jewish faith. Browder, 630 F.2d at 1152. The court noted further that other Circuits had
- 16 -
2233892v.1
IV. This Court should decline jurisdiction over Counts IV and V.
The only claims challenged on this motion are the section 1983 and 1985 claims. It is
admitted that plaintiffs have also pled state tort causes of action that would survive a pre-answer
motion to dismiss. (Doc. 3 at Counts IV and V) However, if this Court dismisses the section
1983 and 1985(3) claims against Durham, it will have dismissed all claims over which it has
original jurisdiction. 28 U.S.C. 1367(c)(3). (Doc. 3 at 1-3) Plaintiffs remaining claims in
Counts IV and V are based on state law, and there is no diversity of citizenship alleged. (Doc. 3
at 1-3, 130-147) Counts IV and V should accordingly be dismissed. See, United Mine
Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (if the federal claims are dismissed ... the
state claims should be dismissed as well.).
recognized the following section 1985(3) classes: an environmentalist group; persons deceived
into voting for a sham candidate; worshippers at a particular church; and women. Id. at 1152, n.
7; see also, Volunteer Medical Clinic, Inc. v. Operation Rescue, 948 F.2d 218 (6th Cir. 1991)
(women seeking abortions but prevented from receiving them by abortion protestors constitute a
protected class under section 1985(3)).
- 17 -
2233892v.1
Conclusion
WHEREFORE, Defendant DURHAM SCHOOL SERVICES, L.P. respectfully requests
that this Honorable Court dismiss plaintiffs complaint against it in the entirety and with
prejudice. Defendant also requests any such other and further relief to which this Court finds it
entitled.
Respectfully submitted,
DURHAM SCHOOL SERVICES, L.P.
By: /s/_______James M. Burd ______________

One of its attorneys
James M. Burd
WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP
100 Mallard Creek Road Suite 250
Louisville, Kentucky 40207
Tel: (502) 238-8500
Email: james.burd@wilsonelser.com
Melissa A. Murphy-Petros (pro hac vice application pending)

WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP
55 W. Monroe Street Suite 3800
Chicago, Illinois 60603
Tel: (312) 704-0550
Email: melissa.murphy-petros@wilsonelser.com
Michael R. Campbell
Lauren M. Turner
CAMPBELL & CAMPBELL
735 Broad Street Suite 1200
Chattanooga, Tennessee 37402
Tel: (423) 266-1108
Email: mikecampbell@campbellattorneys.com
Email: lmt@campbellattorneys.com
- 18 -
2233892v.1
Certificate of Service
I hereby certify that on February 9th, 2017, a copy of the foregoing was filed
electronically. Notice of this filing will be sent by operation of the Courts electronic filing
system to all parties indicated on the electronic receipt. Parties may access this filing through the
Courts electronic filing system.
s/Lauren M. Turner
Lauren M. Turner
- 19 -
2233892v.1
0645.1.4053.20 IJ
IIA~III;roN COUNTY DEI'AIUMENT OF EDUCATION
TransportatiOll Agreement
AGREEMENT FOR THE TRANSPORTATION OF PUPILS
THIS AGREEMENT FOR THE 'T'RANSPORTATION OF PUPILS, hercinaftcr rel'crred to

as the "Agreement", is made and entered into this day of ....................___, 2013, by and
between HAMILTON COUNTY DEPARTMENT OF EDUCATION with a principal office
located at 3074 Hickory Val Icy Road, Chattanooga, TN 37421 hereinafter rel'crred to as
"DISTRICT", and DURI-IAM SCHOOL SERVICES, L.P" a Dclaware limited partnership, with its
principal of/icc located at 4300 Weaver Parkway, Warrenville, Illinois 60555, hcrcinafter rel'crred
to as "CONTRACTOR".
I, SCOPE OF AGREEMENT: CONTRACTOR shall opcrate and maintain one hundred and eighty-four
(184) or more daily route school buses for the transportation of' pupils using vehiclcs provided by
CONTRACTOR.
CONTRACTOR shall providc Ca) thc daily service je)!' thc DISTRICT, and (b) such other transpOitation
as may be spccified by the DISTRICT.
a. Thc tcrm "daily servicc", as used hcrcin, is defined as all home-to-school and school-to home
transpOitation of'any students of the DISTRICT that takes place at the beginning or end of'the
school day for such students.
b. The term "other transportation", as used herein, is dclined as any transpOitation of students and
DISTRICT personnel other than daily service, ineluding but not limited to transpOitation to and
I'rom cxtraculTicular events.
2. TERM: Thc term ofthis Agrecment shall be jell' a period of IClUr (4) years beginning July 1,2013 and
ending .I unc 30, 2017. The Parties shall have the option to cxtend th is agrecment for an additional Iike term
at thc option and mutual written consent of the parties, taking into consideration CONTRACTOR'S
perionnanee under thc Agrccment, cost, Heet, negotiations, and subject to applicable statutes and regulations.
3. DOCUMENT AGREEMENT: The complete Agreement consists ofthis Agrecment and the Proposal of
CON'T'RACTOR, which is hereby incorporated herein by reference Bid File Numbcr 13-15. In the evcnt of
any conflict between the terms of this Agrcemcnt and the Proposal, the terms of this Agreement shall govern.
4, PERMITS AND L1CI,NSES: CONTRACTOR, its cmployees, and its agents shall secure and maintain
valid permits, licenses, and ccrtifications as required by law for the opcration ol'this Agrecment.
5. INSURANCE: CONTRACTOR shall obtain insurance in the amount of limits sct forth below
during the Agrccmcnt period and shall furnish certilicates of insurance for each poliey for liability
coverage and for Workers' Compensation coverage. CONTRACTOR shalll~lrnish new Certilicatcs
of Insurance for cach policy jar liability coveragc and for Workers' Compensation coveragc within
thirty (30) days following the placement of ncw or renewed coverage. Ccrtilicates shall provide that
a thirty (30) day prior notice of cancellation will be givcnto the DISTRICT.
Gencral liability insurance shall be maintaincd to protect CONTRACTOR and, as an Additional

Insured, Hamilton County, Hamilton County Board of Education, Hamilton County Dcpartment of
Education, its Governing Board, Of/icers, Agents, and Employees ii'om any claims lI'om damagcs
lelr personal injury or death and ji'om damage to property, which may arise Ii'om operations of
Page 1 of 10
Case 1:16-cv-00501-JRG-SKL Document 22-1 Filed 02/09/17 Page 1 of 14 PageID #: 139

0645.1.4053.2013
IIAMII:roN COUNTY DEPARTMENT OF EDUCATION
TrnnsportatiOll Agreement
CONTRACTOR under this Agreement. Such insurance shall have a minimum combined single limit of
Five Million ($5,000,000) Dollars. Workers' Compensation insurance shall be maintained as required by
law and to protect CONTRACTOR /1'om claims, which may arise hom its operation under this
Agreement.
6. PERFORMANCE BOND: CONTRACTOR shall flirnish to DISTRICT a Performance Bond equal to one hundred
(100%) percent of the total value orthe Agreement.
7. HOLD HARMLESS AGREEMENT: CONTRACTOR shall hold harmless and fully indemnify Hamilton County
Board of Education, Hami Iton County Department of Education, and/or its Omcers, Agcnts, and Employees fi'clll1
every claim or demand which may be made by reason of any il~jU!y to person or damage to property sustained by any
person, 11l'1n or corporation, caused by, in whole or in pat1, or arising out of or related 10, any negligent act or
omission, willfulmisconduet, or defllllit orthe CONTRACTOR or of any person, firm, or corporation, directly or
indirectly employed by CONTRACTOR, in connection with its performance under the Agreement and
irrespect ive of any allegation of fault against Hamilton County Board of Education, Hami Iton County
Department of Education, and/or its Ollieers, Agents, and Employees.
CONTRACTOR at its own expense and risk shall defend any legal proceeding that may be brought against the
Hamilton County Board of Education, Hamilton County Department of Education, and/or its OHieers, Agents, and
Employees on any such claim or demand, and satisfy any judgment that may be rendered against the Hamilton
County Board of Education, Hamilton County Department ofEdueation, and/or its OHicers, Agents, and
Employees therein. In the event that any such proceeding is brought against the Hamilton County Board of
Education, Hamilton County Department of Education, and/or its Officers, Agents, and Employees on any such
claim or demand, CONTRACTOR shall have the right to select and employ counsel to delCnd such persons and
entities and shall have the right to settle any claims when CONTRACTOR, in its sole discretion, deems such a
settlement advisable. Hamilton County Board of Education, Hamilton County Department ofEducalion, and/or its
Oniccrs, Agents, and Employees shall cooperate in all reasonable manners in the defense OfSLlCh claims. Further.
CONTRACTOR shall endeavor to secure a dismissal of any such proceeding against Hamilton County Board of
[iducation, Hamilton County Department of Education, and/or its Ollieers, Agents, and Employees promptly upon
receipt of any such claim or demand and shall substitute CONTRACTOR as a party defendant.
8. SAFETY PROGRAM AND EDUCATION: CONTRACTOR shall provide formal safety instruction on a regular
basis for all operating personnel assigned to this Agreement. Attendance shal! be required fbr saiely meetings.
Upon DISTRICT'S request CONTRACTOR will provide documentation of CONTRACTOR'S formalizcd

recruitment in-service training and educational programs for al! employees, including stan: drivers and mechanics.
CONTRACTOR shall provide evidence of resources available for resemch and develoJlment nceded to stay currcnt
with the changing technologies in student transportation management.
CONTRACTOR will provide evidence of all aspects of their technical transportation management capabilities,
including human resource services, computer systems and capabilities, and training programs for management and
non-management personnel.
9. INDEPENDENT CONTRACTOR: While engaged in cHl'rying out and complying with the terms and conditions of
this Agreemcnt, CONTRACTOR is an independent CONTRACTOR, and not an Ollicer, Agent, or Employee of
the DISTRICT. Furthermore, CONTRACTOR'S officers, agents and employees shall be the officers, agents and
clllployees of the CONTRACTOR and not of the DISTRICT.
10. ASSIGNMENTS: Upon reasonable notice to the DISTRICT, and upon the DISTRICT'S approval, CONTRACTOR
may assign or transfer any orits rights, burdens, duties, or obligations under this Contract to its parent company,
Page 2 of 10

0645.104053.2013
HAMI LroN COUNTY DEPAIUMENT OF EDUCATION
TrallSpOliatioll Agreeillent
aniliates, subsidiaries, or related legal entities. The DISTRICT'S approval shall not be unreasonably withheld.
II. SUBCONTRACTING: CONTRACTOR will not subcontract any of its rights, burdens, duties, or obligations under
this Agreement without consent orthe DISTRICT, except on a shOlt term, interim basis in the event o1'<1n emergency.
12. FORCE MAJEURE: CONTRACTOR shall be excused Hum perlormance hereunder during the time and to the
extent that it is prevented fi'ol11 performing in the cLlstomary manner by an act of God, fire, flood, war, riot, civil
disturbance, terrorism, epidemic, quarantine, oil or fuel shortage or commandeering of equipment, materials,
products, plants, or lilCilities by the U.S. Clovernment when satisfactory evidence thereof is presented to the
DISTRICT; provided, however, CONTRACTOR shall use all reasonable el10rts to ensure that none of
DISTRICT'S routes shall suffer any route interruption.
In the event DISTRICT closes one or more schools prior to routes beginning on any day or days, DISTRICT shall
have no obligation to pay CONTRACTOR for any bus routes that arc not run.
13. ROUTING AND SCHEDULINCl: Prior to the start of any service under this Agreement, CONTRACTOR shall
cooperatively assist DISTRICT in establishing routes and schedules conl(lrIning to the needs ofthe DISTRICT. 11~
at any time during the term oi'lhe Agreement, it is determined by mutual consent that service may be improved by
revisions to routing, scheduling, or bus assignment, DISTRICT and CONTRACTOR shall plan and institute such
changes jointly. CONTRACTOR shall have sufficient notice to review such changes and evaluate the safety
considerations.
DISTRICT and CONTRACTOR agree that any program outlined in the Proposal is to be considered only as the
basis for determining comparative costs and docs not necessarily represent the rOllting, scheduling, or equipmcnt
requirements of tile DISTRICT.
The CONTRACTOR agrees to assist in routing or all regular, magnct and special education buses, and to
assist in analyzing ancl to identif)' routes for restructuring to create efficiencies. The routing will be
accomplished with the cooperation of the Transportation Staff and shall be ready for DISTRICT approval
and owner/operator review by June 10 of each school year. The DISTRICT will cooperate with the
CONTRACTOR by approving the routes or suggesting needed changes in a reasonable and timely manner.
Ilowever, the CONTRACTOR and DISTRICT may agree to alter, modify, or amend the bus routes and/or
stops along the way, to change or add bus routes, establish new bus routes Hnd change time schedules for
pick-Ups and deliveries in order to meet changing conditions. Rules and regulations for details incidental to
the operation of bus routes, bus stops and other attendant matters that may arise shall be mutually agreed
upon. The DISTRICT will place Special Education stucients on a route and CONTRACTOR will begin
service to these students within three (3) days of written notice ofthis placement by the DISTRICT'.
14 CONTI\\.CTOR'S PERSONNEL: CONTRACT'OR shall be solely responsible lor hiring suillcient personnel to
periilrm CONTRACTOR duties under this Agreement, provided however, in no event shall CONTRACTOR
employ lewer personnel than the CONTRACTOR purposed in its PROPOSAL. Sueh personnel shall be
CONTRACTOR employees and, in no event, shall be the employecs of the DISTRICT. CONTRACTOR shall be
solely responsible lor providing such personnel vvith appropriate supervision, training, and direction in the
performance or personnel job duties.
In the event the DISTRICT has any questions or concerns regarding the performance or any personnel
employed by the CONTRACTOR, the CONTRACTOR may take whatever action it deems necessary and
appropriate to address the DISTRICT concern.
Prior to employing any individual in any capacity for the purpose of providing service to the DISTRICT
Page 3 of 10

0645.1.4053.2013
IIAMILroN COUNTY DEI'ARIMENTOF EDUCATION
Transportation Agreement
uncleI' the terms of this Agreement, the CONTRACTOR will screen each applicant, this screening to include
pre-employment drug testing, criminal background checks, and any other tests, or checks required by state 0)'
1cderallaw fell' individuals. In addition to these pre-employment screens, CONTRACTOR will additionally
perform regular random drug tests required by state and federal laws and will additionally perform random
background checks on no less than jJve percent of its employees pCI' year. Thc CONTRACTOR shall make
available to the DISTRICT the results of all screenings, including drug tests and background checks.
CONTRACTOR shall designate one (I) person as its local representative to act as the supervisor for the operations
1e)rthc DISrRICT. This person shall be available during all regular working hours of school days 101' the purpose of
handling routing, assignments, and operational concerns. The supervisor shall have the authority to act in all matters
covered by established policies.
IS. RECORD KEEPING AND ACCIDENT REPORTS: CONTRACrOR will be required to keep and
maintain any and all operational records related to its performance under the terms of this Agreement and
will providc such records to the District for its inspection.
All accidents, injuries, and other like incidents involving the CONTRACTOR'S equipment,
CONTRACTOR'S personnel, or the DISTRICT students shall be reported to the DISTRICT on approved
forms pursuant to Board policy and the laws of the State of Tennessee.
16. PAYMENTS FOP, SERVICES:

a Daily Services: CONTRACTOR shall submit in 10 equal invoices beginning on or about
the last business day of September and monthly thereafter and invoice lor all daily services
performed under this Agreement.. The starting number of vehicles for this calculation is
184 buses and the starting number or operating days will be according to the Hamilton
County Department of Education approved calendar. In the event there is a change in the
number of buses or the number of operating days, thcre will be an adjustment on the 101h
payment. Any DISTRICT credits will be credited on the 10"1 payment as well.
Daily Service rates are charges not assessed on a set number of days but on and per bus
per day actually operated daily rate.
b. Otb.cJl1!!llli)0Iiation Services: On or about the last business day of each month beginning in
July, the CONTRACTOR shall submit invoices in the j()J'Jl1 and number required by the
DISTRICT for other transportation services perf()I'l11ed under this Agrecment. Payment fur
such services will be made witi1in a reasonable time thereafler, not to exceed thiliy (30) working
days. In the event such sums are not receivcd within ninety (90) days, sclvice may be discontinued
until such time as the CONTRACTOR has received all sums due.
17. ADJUSTMENT OF RATES:
'rhe ratcs established in all pricing schedules for this Agreement after the first ycar of the contract shall be
increased 1.8% annually.
I I' the average daily number of routes is reduced by five percent (5%) or more below the base
amount of 184 routes, then both parties agree to renegotiate in good faith the rates provided in
Schedule A if such renegotiation is requested by Contractor.
During the term of this Agreement, if the CONTRACTOR's implementation or the Patient
Protection and AfTordable Care Act inereascs the CONTRACTOR's insurance costs on personnel
retained specifically to provide services to the DISTRICT by more than two hundred thousand
Page 4 or I0

0645.1.4053.2013
IIAMILroN COUNTY J)EI'AIUMENTOF EJ)UCATION
'rransporl,llioll Agrcclllcnt
dollars ($200,OOO.()O) per year, then CONTRACTOR, upon written notice to DISTRICT, may
request a renegotiation of this Agreement which shall be conducted in good faith. Such
renegotiations may include, without limitation, changes in rates, term, payment schedules, levels of
servicc, and the types or number of vehicles to be used. Any modification to this Agreement
resulting from such renegotiations shall become effective on a mutually agreed upon date. If no
agreement is rcached, CONTRACTOR may terminate this Agreement at any time by providing at
least two hundred and seventy (270) days written notice to DISTRICT.
The numbcr of vehicles for this calculation is 184 buses. In the event the service requires fewer daily
buses than the established base of 184, then the CONTRACTOR shall credit its charges by thc applicable
daily per bus per day rate in a separate credit invoice for the appropriate number of days. If the service
requires morc daily buscs than the established base of 184, thcn thc CONTRACTOR shall increase its
charges by the applicable daily per bus per day rate in a separate invoice f(x the appropriate number of
days. The DISTRICT shall makc the final determination for adding or reducing the number of buses or
routes. The CONTRACTOR will assist in evaluating all routes as an on-going program to initiate
recommendations to the DISTRICT to affect cost savings.
18. EQUIPMENT REQUIREMENTS: All buses supplicd under this Agreement shall be approved school
buses, as defined by applicable statutory, administrative codes and DISTRICT requiremen1ispecs, with
thc approval of the DISTRICT.
CONTRACTOR agrees that no existing bus will be over the age of seven (7) years at the start of the
Agreement. The !leet to be contracted fix shall consist of 63 type A wheel chair, CE. White seats SS-CR 36,
and air conditioning equipped spccial needs buses. The regular route bus flect of 121 types [) of the 121 daily
regular route buses in the first year of the Agrcement will be 114 - 84 passenger and 13 - 78 passcngcr in size
with no single bus smaller than a 78 passenger in size. Starting in year two of thc Agreement all rcgular routc
buses will bc 84 passenger in size.
Thc CONTRACTOR shall hllnish buses to facilitatc the operation of thc Innovation Zone program.
This program will utilize approximately 6 type [) 84 passengcr buscs and 6 typc A 22 passenger
buses in the afternoon only. This program may have days outside of the 175 calendar. This program
may be expanded.
The CONTRACTOR shall provide fourteen (14) new 84 passenger buses each year of the Agreement
starting with the first year of the Agrecment.
The CONTRACTOR will provide a minimum of twelve (12%,) percent spare buses of each type serving
the DISTRICT, such buses to conf(wm to all specifications contained herc within. The CONTRACTOR
shall own and provide on their buses the SOO MHZ Smt1!tZone two-way radios with identifiers that are in
working condition and installed according to manufttcturer's specifications. Spare buses shall be of
appropriate size, and meet all the above requirements and shall be located by the CONTRACTOR at
points close enough to the DISTRICT so they may bc substituted for regularly assigned buses, if ncedcd,
without delay.
Thc CONTRACTOR will provide the Smart Bus technology and components on its buscs.
The CONTRACTOR will equip all buses with GPS tcehnology that enablcs support staff to monitor
the path and speed of a bus. District staff will be given acccss to this system. Regular preventive
maintenance shall be performed on all buses. In addition, buses shall be cleaned inside and out as
Page 5 of 10

0645.1.4053.2013
IIAMU;roN COUNTY DEJ>AIUMENT OF' EDUCATION
']'ransporlation Agreement
necessary, and repairs to visible body damage, inside or out, shall be made within thirty (30) days
li'om the date such damage occurs.
The CONTRACTOR shall only usc buses which shall meet state inspection standards and specs for
the DISTRICT. The CONTRACTOR shall be responsible for all repairs and maintenancc on all
buses during thc life of this Agreemcnt. The CONTRACTOR shall maintain all vehicles as to insure
that each vehicle under service to this contract is washed a minimum of twice per month and is in
clean and sanitary condition. The CONTRACT'OR shall at all times provide for maintenance of
owned fleet and procurement of replacement of buses.
The CONTRACTOR shall not fuel any vehicle while students are on board the vehicle. The
CONTRACTOR shall provide student and mileage information in order to assist the DISTRICT' in
complying with applicable regulations. In addition, the CONTRACTOR will provide reasonable
assistance to the DISTRICT to assist it in completing and nIing necessary reports to governmental
bodies.
During the course of thc contract, the CONTRACTOR shall install and maintain mounted and active
digital camera systems with ignition-activated dual in11-ared cameras in all of the CONTRACTOR buses to
be used in the service of this contract. The CONTRACT'OR shall, at minimum, randomly view route
digital recordings on a daily basis of an amount of 5% of total daily routes in service ibr this contract
with cach vehicle to be viewed at least once within each thirty (30) service days. Digital recordings shall
not be vicwed or distributed to NON-DISTRICT personnel without prior written approval by thc
Superintendent of Schools or his designee. All digital recordings shall be maintained i(ll' at least thirty days
I(lr DISTRICT viewing purposes. The CONTRACTOR shall maintain all radios and cameras so that they
are operational at all times; the CONTRACTOR is expected to establish a replacement cycle f(ll' this
equipment, which will be purchased by the CONTRACT'OR. Any persons who destroy, alter, or vandalize
the radio or digital recording systems are subject to prosecution/suspension or both.
19. USES AND MAINTENANCE OF FACILITY: CONTRACTOR may have access to and utilize the
District's existing transportation fileilitics pursuant to a separately exccutcd Lease Agreement referenced
as Exhibit I, the entirety of which is incorporated into this Agreement by reference.
20. FUEL: Fuel shall be paid f'lr and provided by CONTRACTOR. The CONTRACTOR shall be responsible
I(lr all taxes on illel used and itld storage. The CONTRACTOR shall pay f(lr all fllel used in regular,
charter, activity and athletic trips. Fuel storage will not be allowed on DISTRICT' property.
The Contractor shall be responsible for providing the fuel required during the perfbrmance of this
Agreement. The Contractor shall be responsiblc i()!' all taxes on fuel used. The Contractor shall pay
I(lr all Illel used in regular, charter, activity and athletic trips. The Contractors compensation for
services rendered hereunder shall be adjusted monthly to reilect incrcases or decreases in the
District's wholesale cost of fuel plus transportation Ices and state taxes. The contract "Base Fuel
Cost $3.063 per gallon" encompassing all Ille! costs shall be based on U.S. Department of Energy
Information spot prices ibr Ultra Low SUlilll' Diesel fbI' the Gulf Coast per gallon each month during
the contract period. Should the average cost per gallon dWer ii'om the "Base Fuel Cost" by more
than $.10 cents per gallon plus or minus, the contractor shall adjust to rdlect the actual cost of fuel
by providing a credit or invoicing ibr the change in cost. The amount to be either credited or
invoiced fbI' shall be based on an average of 6.5 miles per gallon and based on the loaded route miles
as established each year by the Ilamilton County Schools Transportation Department. The
contractor will be required to provide fuel storage. CONTRACT'OR shall have the right to wet hose
fue I.
Page 6 of 10

OM 5,1 A05J.20 IJ
IIAMILroN COUNTY DEI'AIUMENT OF EDUCATION
'j'ransporlalion Agreement
21. TERMINATION OF AGREEMENT:, If the CONTRACTOR rcllises or fails to perform services

necessary to providing the DISTRICT with efficient, safe and economical transportation services, as
specified in this Agreement, or any separable pmt thereoe including furnishing adequate equipment and
properly trained personnel, or if it should be adjudged as bankrupt, or if it should make general assignment
li)l' the benefit of creditors, or if a receiver should be appointed on account of its insolvency or should it
refllse or I'lil to provide equipment and personnel in quantities necessary lor transportation services as
herein specified, or the CONTRACTOR disregards laws, ordinances, or instructions ol'the DISTRICT, or is
otherwise guilty ora material violation of this Agreement, then the DISTRICT may, without prejudice to
any other right or remedy, serve written notification upon the CONTRACTOR of the violation, its intention
to terminate and, unless within forty-live (45) days aller service of such written notice of the condition, the
CONT'RACTOR shall cease and make satisfactory arrangements lor the correction thereof, this Agreement
shall. upon the expiration of the forty-five (45) days, cease and terminate,
22, NOTICES: Notices to either party to this Agreement shall be in writing and shall be considered duly served
and delivered if such not icc is dclivercd by hand, mailed via the United States mail, certified, return receipt
requested. or sent via overnight service. All such notices shall be addressed to:
DISTRICT: Hamilton County Department of Education.

3074 Hickory Valley Road
Chattanooga, TN 37421
Telephone: (423) 209-5680
CONTRACTOR: Durham School Services, L.P.

Alln: Contract
Administrator
4300 Weaver Parkway
Warrenville. IL 60555
'felephone: (630) 82 I -5400
23, DISCIPLINE: The CONTRACTOR will report serious or persistent misconduct on the part of students to
the designated DISTRICT employee. The DISTRICT shall then impose reasonable disciplinary measures
upon the students in accordance with its discipline management program.
24, CREDITS FOR NON-PERFORMANCE: The CONTRACTOR agrees to submit a written status report on
a daily basis by bus number, school, driver's name and dispatch location listing any or the following
deficiencies in its performance and thc causes thereof.. Aller the first 20 school days the DISTRICT shall
provide written notice to the CONTRACTOR or any of the f()lIowing deficiencies reported to the
DISTRICT. If CONTRACTOR f'lils to cure the items within three (3) school days of the wrillen notice,
or f'lils to appeal any assessed credit within ten school days the lollowing credits shall, per incident, be
applied against the monthly invoice:
(I) I ,ate bus a.m. and/or p.m.: $ I 50.00 per incident pCI' bus.
(2) Number of students riding bus exceeds safe capacity per manuhlcturer's specilications:
$ 150.00 per day per bus,
(3) Failure to pick up or deliver a student with disabilities will result in a $150.00 penalty pel'
incident.
(4) A bus which is late because of a need to reillel, or because it runs out of fuel en route:
$ 150.00 per incident.
Page 7 of 10

0645.1.4053.201.3
IIAMILroN COLINTY DEI'ARTMENT OF EDLICATION
Agreemcnt
rl'r<lllSPOli(ltioll
(5) Early departure of a bus jj'om a scheduled stop: $100.00 per incident.
(6) Driver misses a stop on a route or fails to pick up student: $100.00 per incident.
Credits will be assessed at the rate of$1 00.00 per incident f(lr each of the following
violations:
(7) Failurc ora driver to keep an up-to-date route sheet on board and on filc
with CONTRACTOR: $100.00 per day.
(8) Seat belts and other special equipmcnt not used or improperly being used.
(9) Bus without a two-way radio as required or a two-way radio not in proper working condition
fur any reason fur threc (3) working days.
(10) Failure by dispatcher to immediately notify the DISTRICT of an accident.
(II) Failure to clean a bus interior and exterior aftcr two days' notice.
(12)lmproper usage of cell phone in the operation of a school bus as defined by TCA
(Tennessee Code Annotated)
(I3)Failure to stop and use proper procedures at a railroad crossing as defincd by TCA
(Tennessee Code Annotated)
In addition to the above, credits will also be assessed as set forth for eaeh of the fullowing
violations of this contract with no prior notice to the CONTRACTOR:
(14) $150.00 shall be assessed fur each morning trip missed (trips starting in the a.m.)
(15) $150.00 shall be assessed for each afternoon trip missed (trips starting in the p.m.)
(16) School possesscs documcntation, which indicates confirmation of a field trip was received
but no bust es) arrived. Students were unable to attend the event. $150.00 per day per bus.
There shall be no credit assessments made to the CONTRACTOR until ailer the first twenty (20) school
days of each school year. Before DISTRICT applies any credit, DISTRICT shall provide written
notice to the CONTRACTOR, which will include the date the deficiency occurred, and the amount of
credit. DISTRICT must provide such notice to CONTRACTOR within thirty (30) days of any occurrence
giving rise to a claimed deficiency. DISTRICT waives its right to assess credits f(lr non-perfurmance for
any occurrence in which notiCe was not timely provided to CONTRACTOR. CONTRACTOR
reserves the right to appeal any assessed ereciit within ten (10) school days of written notification ll'om
DISTRICT to the Superintendent or his designee. Credit fur any assessed violations in dispute shall not
be applied until the Superintendent 01' his designee resolves the appeal.
25. DISPUTE RESOLUTION: The parties agree this Agreement shall be governcd by the laws ofthc State
ofTcnnessee and that the state courts of Hamilton County, Tenncssee will have sole and exclusive
subjectmattcrjurisdiction over any dispute arising between thc parties. 'l'he parties specifically waivc any
right to file any action in federal court or to remove any malleI' to federal court.
26. ATI'ORNEY'S FEES: If any legal action is brought by either of the parties hereto, it is expressly agreed
that thc party in whose filVor final judgment shall be entered shall be entitled to recover fi'om the other
party reasonable attorney's fees in addition to any other relicfthat may be awarded.
27. DAILY SERVICES: In Consicieration of the perfurmance on the part of the CONTRACTOR of the terms
of this Agreement, the DISTRICT agrees to pay the CONTRACTOR f(1I' daily services the following
sums f(lr pupil transportation services rendered.
Page 8 of JO

0645.1.'1053.2013
IIAMILI'ON COUNTY DEPARTMENT OF EDUCATION
Tral1sporlatioll Agl'CCll1CJlt
Rates 2013-2014 2014-2015 2015-2016 2016-2017
Number of Number of Cost Per Cost Per Cost Per

Cost Per
Vehicle Type Days Per Bus Per Bus Per Bus Per
Vehicles Bus Per Day
Year Day Day Day
Regular TransQortation
84 Passenger Type D 1 127 1 175 1 300.98 306.40 311. 92 1 317.53
SQecial Education TransQortation

63 175 300.98 306.40 311.92 317.53
22 Passenger (Wheelchair units)
Bus Aides 63 175 89.29 90.90 92.54 94.21

Misc. TransQortation Programs
Summer School 46 26 159.35 162.22 165.14 168.11
9 9 62.68 63.81 64.96 66.13
Saturday School
6 100 62.68 63.81 64.96 66.13
After School
4 175 62.68 63.81 64.96 66.13
Noon Day
13 180 173.21 176.33 179.50 182.73
I-Zone Transportation
Sports/Acti~ty Trips Cost Per Mile -
.
Cost per Hour 42.27
..
.
Minimum Per Trip 126.80
Grand Total (c!xdudillD trips) 11,674,462.33
Page 9 of JO

0645.1.4053.201 3
IIAMILTON COUNTY DEI'ARTMENTOFEDUCATION
'rrallspol1mioll Agreement
For Sports and activity trips the yearly increase after the first year of the Agreement is 1.8;'.
OPTIONAL SERVICES: In Consideration of the pelformance on the part of the CONTRACTOR of

the terms of this Agreement, the DISTRICT and CONTRACTOR agree that optional services will
be contracted on lUI 'as needed bllSis'. It is further agreed that optional services are not a part of the
daily services (home to school/school to home).
28. GUARANTEED CUSTOMER SATISFACTION:

CONTRACTOR will strive for consistent communication with I)ISTRICT throughout the
entire contract period. CONTRACTOR will annually survey the I)ISTRICT and the
cmployees and use the results to continually improve the service and hold anannualmceting
with the I)ISTRICT advisory p'lnel to hcar feedback. CONTRACTOR will institute a weekly
mecting between the DISTRICT Administrators and CONTRACTOR'S general manager fOI'
the first six months of the contract, with a monthly meeting after the first six months, to
evaluate service, safety, maintenance, .11ld overall satisfaction.
IN WITNESS WHEREOF, thc parties hercto have cxecutcd this Agrcement as of thc date written
abovc.
DURHAM SCHOOL SERVICES, L.P. I-IAMlLTON COUNTY DEPARTMENT OF

EDUCATION
By: Durham Holding II, L.L.C.,
its gcneral partuer
By:
----~~~~~~------
Name: ~~--~~~~-----------
Page 10 of 10
Case 1:16-cv-00501-JRG-SKL Document 22-1 Filed 02/09/17 Page 10 of 14 PageID #:

148
0645.1.4053.2013
HAMILTON COUNTY DEPARTMENT OF EDUCATION
Lease Agreement
Exhibit I
This lease agreement is made and executed on the 24th day of April, 2013, by
and between Durham School Services, LP., a limited partnership organized and
existing under the laws of Delaware, having its principal office at 4300 Weaver
Parkway, Warrenville, Illinois 60555, referred to as "Contractor", and the
Hamilton County Department of Education, having its principal office located at
3074 Hickory Valley Road, Chattanooga, Tennessee 37421, referred to as
"District" .
WHEREAS, the Contractor and the District have entered into an agreement
pursuant to which the Contractor will provide the District with certain
transportation services pursuant to the Agreement for the Transportation of
Pupils dated April 24th, 2013; and
WHEREAS, the District owns certain transportation facilities throughout

the county that would enable the Contractor to perform its duties for the District
more efficiently and effectively; and
WHEREAS, the Contractor and the District desire to establish

guidelines for the Contractor's use of this District owned property; so
therefore
PREMISES CONSIDERED in furtherance of the separately executed

agreement, into which this Lease Agreement is incorporated by reference, the
Contractor and the District hereby agree as follows:
1. Term: For the duration of the agreement between the Contractor and
the District, the Contractor shall be entitled to lease from the District the
property described herein in Sections 3.1, 3.2 and 3.3; provided, however, that
any event that shall operate to terminate the underlying agreement shall also
operate to terminate this lease and that any default of the Contractor's
obligations arising from the underlying agreement shall also constitute a default
of this separate lease.
2. Consideration: In consideration for the services the Contractor

renders to the District pursuant to the terms of the underlying Agreement, plus
an additional $1.00 in rent per school year, the Contractor shall be entitled to
lease the facilities described herein.
3. Facilities: The transportation facilities that are subject to the terms of

Page 1 01'4
149
0645.1.4053.2013
this lease are located in three (3) separate locations. At each location, the
Contractor shall have the right to use available bus yard space to park buses
and available office space for the use of the Contractor's supervisory personnel.
If, at any point during the term of the underlying Agreement, the Contractor finds
existing space at any facility to be inadequate, the Contractor shall request the
District to provide it with additional space. Upon such a request, the District shall
use its best efforts to accommodate the Contractor's request, provided,
however, that the Contractor shall, at its sole expense, provide fencing, paving,
and installation of any necessary portable buildings.
3.1 The Dodds Avenue Facility, located at 2501 Dodds Avenue

Chattanooga, TN 37407, houses centralized operations and
maintenance. It consists of a 13,000 square foot administrative office
and garage services building plus an additional portable building that
serves as a driver-trailer facility. The site also includes a 10,000 square
foot bus parking area.
3.2 The Hixson High School facility, located at 5705 Middle Valley
Road, Hixson, TN 37343, consists of 1,800 square foot dispatcher office
and a 5,111 square foot bus parking area.
3.3. The Hickory Valley Road facility, located at 3074 Hickory Valley
Road, Chattanooga, TN, consists of a 450 square foot dispatcher office and
a 6,556 square foot parking area. The facilities described in Sections 3.1,
3.2 and 3.3 shall be collectively referred to as "Facilities".
4. Maintenance and Repair: The Contractor will be responsible for

maintaining and repairing all facilities to the District's reasonable satisfaction,
including, but not limited to painting, cleaning and waste disposal. The
Contractor specifically assumes the responsibility of properly disposing of all
used oil, fuel, and other environmental waste whether hazardous or semi-
hazardous in nature. Contractor will also be responsible for the maintenance of
any and all shop and office equipment that District provides.
4.1 Contractor is responsible for all damage to the facilities,

including realty, buildings, and fixtures, and additionally responsible for
damage to any of the District's equipment, excluding normal wear and tear.
4.2 District retains the right to request Contractor to maintain

District owned and operated maintenance vehicles at a price that is to be
mutually agreed upon.
5. Use and Alteration of Facilities: Contractor has the right to use:

Page 2 or 4
150
0645.1.4053.2013
Transporlation Agreement
5.1 The designated Facilities in any manner consistent with its

obligation to provide transportation services to the District; provided,
however, that the District reserves the right to designate to Contractor
reasonable restrictions on the use of the property, which shall not interfere
with Contractor's operations or increase operating costs for Contractor;
and further provided that the Contractor shall first obtain prior written
approval from the Superintendent or his designee before altering or
modifying any of the facilities, including the realty, buildings, fixtures or
equipment.
5.2 Contractor understands and agrees any fixture that it may install
becomes the property of the District upon its installation and may not be
removed without the express, written consent of the Superintendent or his
designee.
6. Unlawful or Dangerous Activity: Contractor shall neither use nor

occupy the premises referenced in paragraphs 3.1, 3.2, or 3.3 for any unlawful,
disreputable, or ultra hazardous purpose or activity nor operate or conduct their
business in a manner constituting a nuisance of any kind. Contractor shall
immediately, on discovery of any unlawful, disreputable, or ultra hazardous use,
take action to halt such activity.
7. Utilities: Contractor will be responsible for any utilities arising out of

its use of the leased premises, including electricity, water, and sewage.
Additionally, Contractor will be responsible for installation, upkeep, maintenance,
and service fees related to long distance and computer data lines. The District will
continue to maintain existing local telephone service for use of the Contractor.
8. Expenses Incurred by the District: The Contractor agrees to bear the costs
for cleanup of the facilities, supplying utilities, and stocking the facilities with
supplies. Recognizing, however, that from time to time it may be more expedient for
the District to assume these obligations to ensure the efficient operation of the
transportation services, the Contractor agrees to request these services when
necessary and to credit the District or reimburse the District as may be
appropriate.
9. Use of Leased Property by District Personnel: Contractor agrees to allow

District to staff its transportation personnel on the leased premises and to occupy
such space as the District may designate. Furthermore, Contractor agrees that it will
not charge District for the use of the leased premises by the District's personnel and
that the Contractor shall not be entitled to a credit for any utility usage attributable to
the District's personnel.
Page 3 of 4
151
0645. 1.4053.2013
TranspOltation Agreement
10. Taxes: Contractor shall pay all applicable taxes arising from its use of the
facilities and equipment under this lease, including personal property taxes and real
property taxes. Contractor shall pay all of the mentioned taxes before any fine,
penalty, interest, or cost may be added for nonpayment, and shall furnish to the
District, on request, official receipts, or other satisfactory proof evidencing such
payment.
11. Insurance: Contractor agrees to insure the leased property against any
loss, including the realty, buildings, fixtures, and equipment, in an amount satisfactory
to the District's Risk Management Office and to name the District as additional insured
party under the terms of this insurance policy.
12. Fueling: Contractor is allowed to wet hose fuel the buses.
13. Environmental:
Notwithstanding any other term or condition of this lease to the contrary, it

is expressly understood and agreed by and between the parties that the
Contractor is not responsible for any environmental condition or hazard
extant on the leased property prior to the effective date of this lease.
14. Agreement to Protect, Defend and Indemnify: The Contractor agrees to

protect, defend, to hold harmless, and to fully indemnify the District from and against
any and all claims arising from or in any way related to the Contractor's use of the
leased property whether any such claims arise in whole or in part out of the
Contractor's use or occupancy of the leased premises.
My Commission Expires September 8. 20 15
Page 4 of 4
152

Memo in Support of Dismissal

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Memo in Support of Dismissal

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UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF TENNESSEE

M.S. (a minor, by his parent and next friend,

Memorandum in Support of Durham School Services, L.P.s

Defendant DURHAM SCHOOL SERVICES, L.P. (Durham) submits this

(Doc. 3) in its entirety and with prejudice.

Derek Stepp are M.S. parents. (Doc. 3 at 4)

deprivation of plaintiffs Constitutional rights or a conspiracy to do so, and therefore must be

To survive a motion to dismiss brought pursuant to Rule 12(b)(6), a complaint must

insufficient. Fisher, 451 Fed. Appx. at 501.

and central to the claim. Id.

A. Plaintiffs section 1983 claims and the controlling legal principles.

created danger and to bodily integrity.

It is well-established that the United States Constitution protects citizens from

actor. (Doc. 3 at 29)

Symbiotic relationship/entwinement test In order to effectuate the contracts

B. A private school bus company that transports school students pursuant to a

actor tests and this Court should hold likewise.2

1. The public function test.

targeted purpose: it is meant to counteract a states efforts to evade responsibility by delegating

transportation provided to public school children.3 Id. at 69.

deemed a state actor under the public function test.

2. The state compulsion test.

regulation. Santiago, 655 F.3d at 71.

as Exhibit A, make this plain. Pursuant to the contract:

It is Durhams sole responsibility to address any questions or concerns of the

the personnel decisions made by it).

3. The symbiotic relationship/entwinement test.

To establish state action under the symbiotic relationship/entwinement test, a plaintiff

that of many contractors performing services for the government. No symbiotic

there is no substantial reason to claim unfairness in applying constitutional standards to it).

entity separate from the District at all times. For example:

Durham is solely responsible for obtaining general liability and workers

Durham is to procure and furnish to the District a performance bond. (Exh. A at p. 2,

Durham is to provide its employees with formal safety instruction on a regular

Durham is to report serious or persistent misconduct on the part of students to the

statute: T.C.A. 39-14-408, Vandalism.

reasonable and timely way. (Exh. A at p. 3, no. 13)

C. There is no Monell claim here.

1985(3)4, a part of the Anti-Ku Klux Klan Act of 1871:

(3) Depriving persons of rights or privileges

1305961, *13 (E.D. Tenn. April 4, 2011).

allegations to the contrary.

original jurisdiction. 28 U.S.C. 1367(c)(3). (Doc. 3 at 1-3) Plaintiffs remaining claims in

state claims should be dismissed as well.).

WHEREFORE, Defendant DURHAM SCHOOL SERVICES, L.P. respectfully requests

DURHAM SCHOOL SERVICES, L.P.

By: /s/_______James M. Burd ______________

Melissa A. Murphy-Petros (pro hac vice application pending)

Courts electronic filing system.

AGREEMENT FOR THE TRANSPORTATION OF PUPILS

THIS AGREEMENT FOR THE 'T'RANSPORTATION OF PUPILS, hercinaftcr rel'crred to

Gencral liability insurance shall be maintaincd to protect CONTRACTOR and, as an Additional

Case 1:16-cv-00501-JRG-SKL Document 22-1 Filed 02/09/17 Page 1 of 14 PageID #: 139

Upon DISTRICT'S request CONTRACTOR will provide documentation of CONTRACTOR'S formalizcd

Case 1:16-cv-00501-JRG-SKL Document 22-1 Filed 02/09/17 Page 2 of 14 PageID #: 140

Case 1:16-cv-00501-JRG-SKL Document 22-1 Filed 02/09/17 Page 3 of 14 PageID #: 141

16. PAYMENTS FOP, SERVICES:

17. ADJUSTMENT OF RATES:

Case 1:16-cv-00501-JRG-SKL Document 22-1 Filed 02/09/17 Page 4 of 14 PageID #: 142

Case 1:16-cv-00501-JRG-SKL Document 22-1 Filed 02/09/17 Page 5 of 14 PageID #: 143

Case 1:16-cv-00501-JRG-SKL Document 22-1 Filed 02/09/17 Page 6 of 14 PageID #: 144

21. TERMINATION OF AGREEMENT:, If the CONTRACTOR rcllises or fails to perform services

DISTRICT: Hamilton County Department of Education.

By: /s/_James M. Burd ________