IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

JOHN L. SCARBOROUGH §

§

v. § 1:20-cv-0366-RP

§

CHRISTOPHER KEENEY, et al. §

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

TO: THE HONORABLE ROBERT PITMAN

UNITED STATES DISTRICT JUDGE 

Before theCourt is Defendants Rick Keeney’s and Dana Keeney’s 12(b)(6) Motion (Dkt. No.

11), the Plaintiff’s Response (Dkt. No. 15), and the Keeneys’ Reply (Dkt. No. 16). The District

Court referred the motion to the undersigned Magistrate Judge for a report and recommendation

pursuant to 28 U.S.C. §636(b) and Rule 1(c) of Appendix C of the Local Court Rules.

I. GENERAL BACKGROUND 

In this suit John Scarborough sues Christopher Keeney and his parents, Rick and Dana

Keeney, for injuries Scarborough sustained when Christopher Keeney’s dog attacked Scarborough’s

dog while Scarborough was walking his dog near Christopher Keeney’s residence. Scarborough

alleges that Christopher Keeney was the owner of the dog, and that he and the dog resided at a home

owned by his Keeney’s parents, Rick and Dana Keeney. The motion before the Court requests that

the Court dismiss the claims against the parents, contending that “[t]here is no cognizable claim

under Texas law against parties who neither own, harbor, or protect an allegedly dangerous animal.” 

Dkt. No. 11 at 2. Scarborough makes two arguments in response to the motion: (1) the parents not

only owned the house the dog resided at, but also helped raise the dog, were aware of its dangerous

propensities, and allowed their son to let the dog to roam free; and (2) that before the Court dismisses

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the claims against the parents, he should be given an opportunity to amend his complaint. The

Defendants’ primary reply is to argue that the complaint fails to allege facts in sufficient detail to

show that the dog had vicious tendencies, that the elder Keeneys had any knowledge of the alleged

propensities, or that they had the ability to control the premises.

II. ANALYSIS

Rule 12(b)(6) allows a party to move to dismiss an action for failure to state a claim upon

which relief can be granted. FED. R. CIV. P. 12(b)(6). In deciding a Rule 12(b)(6) motion “[t]he

court accepts all well-pleaded facts as true, viewing them in the light most favorable to the

[nonmovant].” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (internal

quotation marks omitted), cert. denied, 552 U.S. 1182 (2008). While a complaint attacked by a Rule

12(b)(6) motion does not need detailed factual allegations in order to avoid dismissal, the plaintiff's

factual allegations “must be enough to raise a right to relief above the speculative level.” Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Supreme Court has explained that a court

need not accept as true conclusory allegations or allegations stating a legal conclusion. Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). A complaint must contain sufficient facts “to state a claim to relief

that is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility

when the [nonmovant] pleads factual content that allows the court to draw the reasonable inference

that the [movant] is liable for the misconduct alleged.” Id.

With regard to the Keeneys’ argument that the complaint fails to adequately allege that they

had the right to control the premises, and thus to require that their son properly restrain the dog,

Scarborough correctly notes that under Texas law “[i]f a landlord has actual knowledge of an

animal’s dangerous propensities and presence on the leased property, and has the ability to control

the premises, he owes a duty of ordinary care to third parties who are injured by this animal.” Batra

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v. Clark, 110 S.W.3d 126, 130 (Tex. App. – Houston [1st Dist.] 2003, no pet.); see also Bolton v.

Fisher, 528 S.W.3d 770, 775-76 (Tex. App. – Texarkana 2017, pet. denied) (collecting cases). The

complaint alleges that the Keeneys own the house, and that their son lives there. The allegation of

ownership is sufficient to raise above the speculative level the inference that the Keeneys had the

right to require their son to fence or otherwise restrain the dog. This argument fails.

The Keeneys’ remaining two arguments revolve around whether the allegations of the

complaint adequately allege the dog had vicious tendencies or whether the Keeneys were aware of

those tendencies. In his response, Scarborough elaborates on the facts contained in the complaint

with the following:

The pit bull at issue is believed to have been partially raised by these Defendants who

were aware of its vicious and dangerous propensities. The pit bull stayed for the most

part in and around a residence owned by these Defendants. These Defendants and

their son, who lived at that residence also, allowed the pit bull to roam outside the

residence without sufficient restraint of any kind. 

Dkt. No. 15 at 1-2.1 Though the Keeneys’ stated complaint with these allegations is that they are too

vague, that complaint segues into a factual argument: because the complaint does not allege anyprior

attacks by the dog, this must have been the first such occurrence, and thus the Keeneys could not

have been aware of any dangerous propensities of the dog. Dkt. No. 16 at 2. The unstated

1Though these additional factual allegations are not included in the complaint, the Court

considers them for several reasons. First, the Keeneys filed a reply, in which they specifically

address why they contend these facts are not enough to cure the claim, so will not be surprised by

the Court’s consideration of these facts. Second, as noted in the text, Scarborough has requested

leave to amend if necessary, and in most instances it is an abuse of discretion for a court to dismiss

under Rule 12(b)(6) without giving the plaintiff the opportunity to amend. See, e.g., Hart v. Bayer

Corp., 199 F.3d 239, 247 n. 6 (5th Cir. 2000). Clearly, if given the opportunity to amend,

Scarborough would allege these very same facts. Rather than first require Scarborough to do so, and

then make the Keeneys file a second motion to dismiss before addressing the issue, it is more

efficient to address the argument head-on at this point. Having said this, the recommendation

contained herein is contingent on Scarborough amending his complaint to add these allegations

within 14 days of the date this recommendation is filed.

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assumption of this argument is that a complaint that claims a dog has vicious tendencies must allege

a prior attack. While such an allegation would no doubt strengthen a complaint, the Keeneys fail to

cite any case holding that this sort of factual allegation is required to state a valid claim. The facts

alleged in the complaint, as supplemented by the additional allegations quoted above, are sufficient

to raise the claim that the Keeneys had prior knowledge of the dog’s behavior above the speculative

level. That is enough to satisfy Rule 12(b)(6). Whether Scarborough will be able to prove the truth

of the allegations is a different question, but that is a question that cannot be answered until the

summary judgment or trial stage of the case.

III. RECOMMENDATION 

The Court RECOMMENDS that the District Court DENY Rick Keeney’s and Dana

Keeney’s 12(b)(6) Motion, contingent on the Plaintiff having filing an amended complaint as set

forth in footnote 1 above. The Clerk is directed to remove this case from the undersigned’s docket

and return it to the docket of the Honorable Robert Pitman.

IV. WARNINGS

The parties may file objections to this Report and Recommendation. A party filing

objections must specifically identify those findings or recommendations to which objections are

being made. The District Court need not consider frivolous, conclusive, or general objections. See

Battle v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987). A party’s failure to file

written objections to the proposed findings and recommendations contained in this Report within

fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo

review by the District Court of the proposed findings and recommendations in the Report and, except

upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed

factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(c);

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Thomas v. Arn, 474 U.S. 140, 150-53, 106 S. Ct. 466, 472-74 (1985); Douglass v. United Servs.

Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

SIGNED this 1st

 day of March, 2021.

_____________________________________

ANDREW W. AUSTIN

UNITED STATES MAGISTRATE JUDGE

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