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United States District Court,

N.D. Texas,

Dallas Division.

Stacy K. MARTIN, et al., Plaintiffs,

v.

LOCAL 556, TRANSPORTATION

WORKERS UNION OF

AMERICA, AFL–CIO, Defendant.

Civil Action No. 3:14–CV–0500–D.

|

Signed Sept. 3, 2014.

Attorneys and Law Firms

Daniel B. Nelson, John F. Nelson, Nelson Pursley PLLC,

Houston, TX, for Plaintiffs.

Edward Cloutman, IV, Edward B Cloutman, III, Cloutman &

Cloutman, L.L.P., Dallas, TX, for Defendant.

MEMORANDUM OPINION AND ORDER

SIDNEY A. FITZWATER, Chief Judge.

*1 In this labor dispute arising from disciplinary actions

taken against officers of a union local, the court must decide

whether it has subject matter jurisdiction over one claim

and whether plaintiffs have stated a claim on which relief

can be granted. For the reasons that follow, the court grants

defendant's motion to dismiss under Fed.R.Civ.P. 12(b)(1),

grants in part and denies in part defendant's motion to dismiss

under Rule 12(b)(6), and grants plaintiffs leave to amend as

to all claims that are curable by amendment.

I

This is an action by plaintiffs Stacy K. Martin (“Martin”),

Chris Click (“Click”), and Jerry Lindemann (“Lindemann”)

against defendant Local 556, Transportation Workers Union

of America, AFL–CIO (“TWU Local”), seeking relief under

the Norris LaGuardia Act, 29 U.S.C. § § 101–15 (“NLA”),

the Labor Management Relations Act of 1947, 29 U.S.C. §

§ 141–97 (“LMRA”), and the Labor–Management Reporting

and Disclosure Act of 1959, 29 U.S.C. § § 401–531

(“LMRDA”). Plaintiffs are flight attendants employed by

Southwest Airlines. They are also members of TWU Local,

the local of the labor union that represents Southwest Airlines'

flight attendants.1 Each plaintiff ran for and was elected to

a union local office in 2012. Martin was elected President,

Click First Vice President, and Lindemann Treasurer.

Following the elections, the President of the international

union (“TWU International”) requested that the TWU

Local Executive Board grant leave to Thom McDaniel

(“McDaniel”), the Immediate Past President of the TWU

Local, so that he could accept a position with TWU

International. McDaniel allegedly opposed plaintiffs during

the 2012 elections. Plaintiffs contend that, as union President,

Martin opposed TWU International's request because TWU

International did not follow proper protocol in submitting it.

The Executive Board denied the request. TWU International's

President then allegedly threatened to charge Martin with

violations of union rules if he continued to oppose the request.

Ultimately, the dispute was submitted to arbitration, and the

arbitrator ruled in McDaniel's favor.

In the spring of 2013, a member of the TWU Local Executive

Board charged Click and Lindemann jointly with violations

of union rules, and another member2 separately charged Click

with other union rules violations. Click's individual trial was

scheduled for May 14, 2013, and Click and Lindemann's

joint trial was scheduled for May 15, 2013. On May 13 the

Executive Board attempted to delay the trial dates to May

22 and May 23, 2013, respectively, by insisting that Martin

reschedule the trials. Martin allegedly refused to assist the

Executive Board in its attempt to delay the trials on the basis

that doing so would constitute a violation of union rules.

Click and Lindemann attended their trials on May 14 and 15,

2013 and were acquitted of all charges. On May 16, 2013

Lindemann went on formally approved, extended medical

leave. On the same day, the Executive Board notified Click

and Lindemann that it was nullifying the results of the May

14 and 15 trials and scheduling their retrials for May 23 and

24, 2013, respectively. On May 23 a retrial committee found

Click guilty and removed him from office. On May 24 a retrial

committee found Click and Lindemann guilty, removed them

from office, and banned them from holding union office for

three years. Plaintiffs allege that neither Click nor Lindemann

was present for the retrials on May 23 and 24. On May 16,

2013 the Executive Board also charged Martin with violating

union rules. The Executive Board conducted Martin's trial on

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May 29 and 30, found him guilty, removed him from office,

and banned him from holding union office for three years.

*2 Plaintiffs then brought the instant lawsuit against TWU

Local, alleging that it had violated their rights under the

LMRDA. TWU Local filed a motion to dismiss and an

amended motion to dismiss. Plaintiffs then filed an amended

complaint, and TWU Local filed the instant motion to

dismiss the amended complaint. In its present motion, TWU

Local incorporates by reference the arguments and authorities

asserted in its first motion to dismiss.3 TWU Local moves to

dismiss count II of plaintiffs' amended complaint under Rule

12(b)(1) for failure to establish federal question jurisdiction,

and to dismiss count I under Rule 12(b)(6) for failure to plead

a plausible claim for relief under the LMRDA.

II

The court considers first TWU Local's Rule 12(b)(1) motion

to dismiss.4

A

“Federal courts are courts of limited jurisdiction, and absent

jurisdiction conferred by statute, lack the power to adjudicate

claims.” Stockman v. Fed. Election Comm'n, 138 F.3d 144,

151 (5th Cir.1998). “The burden of proof for a Rule 12(b)

(1) motion to dismiss is on the party asserting jurisdiction.

Accordingly, the plaintiff constantly bears the burden of proof

that jurisdiction does in fact exist.” Ramming v. United States,

281 F.3d 158, 161 (5th Cir.2001) (per curiam) (citations

omitted).

B

Plaintiffs predicate subject matter jurisdiction over count II

on the jurisdictional grant found in 29 U.S.C. § 185(a) of the

LMRA,5 which provides:

Suits for violation of contracts between an employer and

a labor organization representing employees in an industry

affecting commerce as defined in this chapter, or between

any such labor organizations, may be brought in any district

court of the United States having jurisdiction of the parties,

without respect to the amount in controversy or without

regard to the citizenship of the parties.

Section 185(a) imposes a jurisdictional requirement. See,

e.g., Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S.

630, 642–43, 101 S.Ct. 2061, 68 L.Ed.2d 500 (1981)

(“In this vein, this Court has read § 301(a) of the Labor

Management Relations Act, 29 U.S.C. § 185(a), ... as

granting jurisdiction over defined areas of labor law[.]”);

Hou. Ref., L.P. v. United Steel, Paper & Forestry, Rubber,

Mfg., Energy, Allied Indust. & Serv. Workers Int'l Union,

––– F.3d ––––, 2014 WL 4197057, at *3 (5th Cir. Aug.25,

2014) (“We have in the past read section 301(a) as a

jurisdictional requirement.”). “[A]n allegation of a labor

contract violation is both necessary and sufficient to

support subject-matter jurisdiction under section 301(a).

If the court later finds the allegedly violated contract to

be non-existent or invalid, it must dismiss for failure to

state a claim, not for lack of jurisdiction.” Hou. Ref. L.P.,

2014 WL 4197057, at *5 (footnote omitted); see also id.

at *6 (“[T]he alleged violation of a labor contract is both

necessary and sufficient to invoke federal subject-matter

jurisdiction under section 301(a) of the Labor Management

Relations Act, 29 U.S.C. § 185(a).”).

*3 The amended complaint does not allege that count II

pertains to a violation of a contract between an employer

and a labor organization or between labor organizations.

The only conceivable contract mentioned in count II is the

TWU International Constitution. See Am. Compl. ¶¶ 73–76.

But the amended complaint does not allege that the TWU

International Constitution is a contract between an employer

and a labor organization or between labor organizations.

Plaintiffs allege that the TWU International Constitution “is

a contract between [TWU] Local and its members.” Id. at ¶

76. They assert that the TWU Local Executive Board violated

its duties and responsibilities under the TWU International

Constitution. Id. at ¶¶ 77–80.

Accordingly, because an allegation of a labor contract

violation is necessary to support subject matter jurisdiction

under § 301(a), 29 U.S.C. § 185(a), and plaintiffs have not

alleged such a violation, the court grants TWU Local's motion

to dismiss count II of the amended complaint under Rule

12(b)(1) for lack of subject matter jurisdiction.

III

TWU Local moves under Rule 12(b)(6) to dismiss count I of

plaintiffs' amended complaint.

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A

In deciding defendant's Rule 12(b)(6) motion, the court

evaluates the sufficiency of plaintiffs' amended complaint

“by accepting all well-pleaded facts as true, viewing them

in the light most favorable to the plaintiff.” Bramlett v.

Med. Protective Co. of Fort Wayne, Ind., 855 F.Supp.2d 615,

618 (N.D.Tex.2012) (Fitzwater, C.J.) (quoting In re Katrina

Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.2007)

(internal quotation marks and alteration omitted)). To survive

defendant's motion to dismiss under Rule 12(b)(6), plaintiffs

must plead “enough facts to state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A

claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173

L.Ed.2d 868 (2009). “The plausibility standard is not akin

to a ‘probability requirement,’ but it asks for more than a

sheer possibility that a defendant has acted unlawfully.” Id.

(quoting Twombly, 550 U.S. at 556); see also Twombly, 550

U.S. at 555 (“Factual allegations must be enough to raise

a right to relief above the speculative level[.]”). “[W]here

the well-pleaded facts do not permit the court to infer more

than the mere possibility of misconduct, the complaint has

alleged-but it has not ‘shown'-‘that the pleader is entitled to

relief.’ “ Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2))

(alteration omitted). “Threadbare recitals of the elements of

a cause of action, supported by mere conclusory statements,

do not suffice.” Id. at 678. Furthermore, under Rule 8(a)

(2), a pleading must contain “a short and plain statement of

the claim showing that the pleader is entitled to relief[.]”

Although “the pleading standard Rule 8 announces does not

require ‘detailed factual allegations,’ “ it demands more than

“labels and conclusions.” Iqbal, 556 U.S. at 678 (quoting

Twombly, 550 U.S. at 555). “[A] formulaic recitation of the

elements of a cause of action will not do.” Id . (quoting

Twombly, 550 U.S. at 555).

B

*4 “The Labor–Management Reporting and Disclosure Act

of 1959 was the product of congressional concern with

widespread abuses of power by union leadership.” Finnegan

v. Leu, 456 U.S. 431, 435, 102 S.Ct. 1867, 72 L.Ed.2d 239

(1982). Although the LMRDA as originally enacted focused

on disclosure requirements and regulating union elections,

over time various amendments have shifted the focus toward

“protection for members of unions paralleling certain rights

guaranteed by the Federal Constitution[.]” Id. In count I of

the amended complaint, plaintiffs allege violations of the

LMRDA, citing sections that deal with a host of topics,

including reporting and disclosure requirements, the bill of

rights for members of labor organizations, and provisions

governing criminal violations of the Act. Plaintiffs request

relief under § 102 of the NLA and § § 401, 411, 412, 413,

431, 481, 482, 501, 529, and 530 of the LMRDA.

IV

A

Count I must be dismissed to the extent based on § 102 of

the NLA and § § 401, 413, and 530 of the LMRDA because

these provisions do not expressly authorize a private cause of

action. Section 102 is an introductory provision of the NLA

that merely sets out the public policy underlying the Act. 29

U.S.C. § 102 (“It is necessary that [the individual unorganized

worker] have full freedom of association, self-organization,

and designation of representatives of his own choosing, to

negotiate the terms and conditions of his employment”).

Similarly, § 401 of the LMRDA declares the public policy

that underlies the LMRDA. 29 U.S.C. § 401 (declaring that

LRMDA is intended to protect members of labor unions from

various “improper practices on the part of labor organizations,

employers, labor relations consultants, and their officers and

representatives which distort and defeat the policies” of the

LMRA and the Railway Labor Act).

Section 413 of the LMRDA provides that nothing in § § 411–

15 should be interpreted to limit the rights and remedies that

members of labor organizations have under other provisions

of state or federal law, or under the constitution and bylaws

of their respective labor organizations. See 29 U.S.C. § 413.

It does not create a private right of action.

Section 530 is a statute that imposes criminal penalties on

labor organizations that use “force or violence, or threat of the

use of force or violence, to restrain, coerce, or intimidate ...

any member of a labor organization for the purpose of

interfering with or preventing the exercise of any right to

which he is entitled” under the LMRDA. 29 U.S.C. § 530.

Section 530 does not create a private cause of action. The

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Supreme Court “rarely implie[s] a private right of action

under a criminal statute[,]” and where the Court has, “ ‘there

was at least a statutory basis for inferring that a civil cause

of action of some sort lay in favor of someone.’ ” Chrysler

Corp. v. Brown, 441 U.S. 281, 316, 99 S.Ct. 1705, 60 L.Ed.2d

208 (1979) (quoting Cort v. Ash, 422 U.S. 66, 79, 95 S.Ct.

2080, 45 L.Ed.2d 26 (1975)). Section 530 does not contain

any language suggesting that Congress intended to authorize

a private cause of action. Thus plaintiffs do not plausibly state

a claim for relief under § 530.

B

*5 Count I must be dismissed to the extent based on

§§ 431 and 501 of the LMRDA because, although these

sections do confer a private cause of action, plaintiffs have

not pleaded any factual allegations to state a claim for

relief under either section. Section 431 pertains to certain

disclosure and reporting requirements. See 29 U.S.C. § 431.

For example, it provides that every labor organization must

submit to the Secretary of Labor certain reports about the

organization and annual reports that detail the organization's

use of funds. See id. (a)-(b). Section 431 also requires that

labor organizations make the information in these reports

available to its members. See id. § 431(c). But plaintiffs

have neither pleaded any factual allegations that mention the

reports covered by § 431 nor alleged any failure by TWU

Local to fulfill its duties related to these reports.

Section 501 imposes fiduciary obligations primarily of

a pecuniary nature on the representatives of labor

organizations. See 29 U.S.C. § 501; see also Hoffman v.

Kramer, 362 F.3d 308, 316 n. 3 (5th Cir.2004) (“[T]he

fiduciary obligations imposed are primarily pecuniary in

nature-that is, having to do with the custody, control,

and use of a union's money and its financial interests

or property[.]”). Section 501(b) authorizes union members

to bring a derivative suit on the union's behalf for a

representative's violation of the duties prescribed by § 501.

See id. § 501(b). But plaintiffs fail to plead any factual

allegations relating to the fiduciary duties imposed in § 501,

and they have therefore failed to state a plausible claim for

relief on this basis.

C

Sections 481 and 482 of the LMRDA provide the exclusive

remedy for challenging a union election that has already been

conducted. See 29 U.S.C. § 483 (“The remedy provided by

this subchapter for challenging an election already conducted

shall be exclusive.”). Section 481 provides, in relevant part:

[i]f the Secretary [of Labor], upon application of any

member of a local labor organization, finds after [a]

hearing ... that the constitution and bylaws of such labor

organization do not provide an adequate procedure for the

removal of an elected officer guilty of serious misconduct,

such officer may be removed, for cause shown and after

notice and hearing, by the members in good standing voting

in a secret ballot.

Under § 482, except in two instances, only the Secretary of

Labor can bring an action for a violation of § 481. See 29

U.S.C. § 482(a)-(b); Calhoon v. Harvey, 379 U.S. 134, 140,

85 S.Ct. 292, 13 L.Ed.2d 190 (1964) (noting that Congress

“decided not to permit individuals to block or delay union

elections by filing federal-court suits for violations of [§ 481

]”). A union member can bring a civil action in the following

circumstances: (1) against the Secretary of Labor to review

the Secretary's decision not to file an action under § 482,

see Dunlop v. Bachowski, 421 U.S. 560, 574–75, 95 S.Ct.

1851, 44 L.Ed.2d 377 (1975), overruled on other grounds,

467 U.S. 526, 104 S.Ct. 2557, 81 L.Ed.2d 457 (1984); and

(2) to enforce “a candidate's right to distribution of campaign

literature and equal access to membership lists.” Local No. 82,

Furniture & Piano Moving v. Crowley, 467 U.S. 526, 540 n.

15, 104 S.Ct. 2557, 81 L.Ed.2d 457 (1984). Plaintiffs have not

pleaded any factual allegations that enable the court to draw

the reasonable inference that they are seeking relief under

either of these exceptions. Accordingly, plaintiffs have failed

to state a claim on which relief can be granted under § § 481

and 482.

V

*6 Plaintiffs also allege that TWU Local violated § § 411,

412, and 529 of the LMRDA.

A

Section 411 of the LMRDA sets out the core of the guarantees

afforded to members of labor organizations by the LMRDA.

It constitutes a “bill of rights,” and it is “designed to guarantee

every union member equal rights to vote and otherwise

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participate in union decisions, freedom from unreasonable

restrictions on speech and assembly, and protection from

improper discipline.” Local No. 82, 467 U.S. at 536–37. The

LMRDA provides two provisions that enable a union member

to enforce the member's rights under this “bill of rights:” §§

412 and 529.

Section 412 grants union members a private cause of action

for a union's infringement of the rights secured by §§ 411–

15. To state a claim under § 412, plaintiffs must show (1)

that they are members of a labor organization and (2) that the

organization infringed a right secured by § 411, 412, 413, 414,

or 415. See Martinez v. Am. Fed'n of Gov't Emps., 980 F.2d

1039, 1041–42 (5th Cir.1993). “Union leaders, per se, are not

themselves a protected class under [the LMRDA], except that

they, too, may not be deprived of the basic rights attending

on union membership.” Adams–Lundy v. Ass'n ofProf'l Flight

Attendants, 731 F.2d 1154, 1156 (5th Cir.1984) (“Adams–

Lundy I ”). Thus it is generally insufficient for a plaintiff

to plead a plausible claim under § 412 if the plaintiff only

alleges the infringement of a right that he or she only has in

the capacity of a union officer. See id.

There is an exception to this general rule. If plaintiffs can

show that their removal from office “was part of a scheme

to subvert the union's basic democratic structure or otherwise

directly implicated rights of members,” they can state a claim

for relief as officers under § 412. See Adams–Lundy I, 731

F.2d at 1159. To state a claim under this exception, plaintiffs

must show “that the defendants are attempting to dismantle

the union's electoral system, ... or that members opposing that

faction are ... suppressed or threatened with reprisals.” Id.

Allegations that merely suggest that an internal union struggle

is “antidemocratic” are insufficient to plausibly allege the

existence of a pattern of intimidation and stifled dissent. Id.

Section 529 provides members a private cause of action

when their union fines, suspends, expels, “or otherwise

discipline[s]” them for exercising any right to which they are

entitled under the LMRDA. “The primary difference between

§ [529] and § [412] is that § [529] protects against retaliation

for the exercise of any right secured under the LMRDA,

whereas § [412] only protects rights secured under [§ § 411–

15].” United Steel Workers Local 12–369 v. United Steel

Workers Int'l, 728 F.3d 1107, 1115 (9th Cir.2013) (citing

Finnegan, 456 U.S. at 439 n. 10). Depending on the right

the member seeks to protect, §§ 412 and 529 can be entirely

duplicative. See id. at 1115 n. 4 (citing Finnegan, 456 U.S.

at 439 n. 10). To state a claim under § 529, plaintiffs must

show that (1) they are members of a labor organization;

(2) the organization fined, suspended, expelled, or otherwise

disciplined them; and (3) the organization imposed the

punishment in retaliation for their exercise of a right protected

by the LMRDA. See 29 U.S.C. § 529. As under § 412, to

state a claim under § 529, plaintiffs must allege that any

punishment or restriction imposed by TWU Local was a

limitation or restriction on their membership rights. Removal

from elected union office does not qualify as a suspension,

expulsion, or other discipline under § 529. See Finnegan, 456

U.S. at 438 n. 9 (dictum) (explaining that discipline referred

to in §§ 411(a)(5) and 529 means limitations on membership

rights, not removal from union office); Adams–Lundy I, 731

F.2d at 1157 (dictum) (citing Finnegan for proposition that “ §

[411(a)(5) ] and § [529] protect only the rights of membership

per se, and that a union officer who is removed from office

but not deprived of membership in the union has suffered no

loss cognizable as ‘discipline’ proscribed by these sections of

the Act”).

B

*7 The court considers first plaintiffs' allegations under §

411. They assert that TWU Local violated the LMRDA by

infringing on their right to free speech.

Section 411(a) (2) of the LMRDA provides, in pertinent part:

Every member of any labor organization shall have the

right to meet and assemble freely with other members;

and to express any views, arguments, or opinions; and to

express at meetings of the labor organization his views,

upon candidates in an election of the labor organization

or upon any business properly before the meeting, subject

to the organization's established and reasonable rules

pertaining to the conduct of meetings[.]

“Where the injury allegedly suffered by union officers is

done to them in their status as officers, not as individual

members, there can be no cause of action under section[ ]

411[.]” Adams–Lundy v. Ass'n of Prof'l Flight Attendants,

792 F.2d 1368, 1372 (5th Cir.1986) (“Adams–Lundy II ”).

The court must therefore decide whether plaintiffs have

pleaded sufficient facts to permit the court to draw the

reasonable inference that TWU Local disciplined plaintiffs

for exercising their rights to free speech as members rather

than as officers, or that plaintiffs' dismissal was part of a

pattern of intimidation and stifled dissent.

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The amended complaint does not plead factual content that

would permit the court to draw the reasonable inference that

TWU Local disciplined plaintiffs for exercising their rights

to free speech as members rather than as officers. Plaintiffs

allege that the charges leveled against Click and Lindemann

were based on their “actions regarding information they

provided the Local 556 membership at membership meetings

in 2013[.]” Am. Compl. ¶ 19. Plaintiffs assert that the

charges leveled against Martin were based on “various

conduct including making presentations to the members

on issues surrounding Local 556, allegedly making false

representations to the membership, and for standing in

opposition to the Local 556 Executive Board.” Id. ¶ 37. The

only reasonable inference the court can draw from these

allegations is that plaintiffs engaged in this conduct in their

capacities as officers. With respect to the additional, internal

charges leveled against Click that are “related to a rally

that occurred [in March 2013] to protest the TSA's knives

on planes decision [,]” id. ¶ 20, plaintiffs have failed to

allege facts from which the court can reasonably infer that

the charges were based on Click's speech as opposed to his

conduct.

The amended complaint also fails to plead factual content

that permits the court to draw the reasonable inference that

plaintiffs' dismissal was part of a pattern of intimidation

and stifled dissent. Plaintiffs allege that their opponents

“infiltrated” the Executive Board and “usurped” their

offices. Am. Compl. ¶¶ 47 & 62. These allegations clearly

express plaintiffs' concern that the Executive Board's actions

were undemocratic, but that alone is insufficient. See

Adams–Lundy I, 731 F.2d at 1159 (holding that plaintiffs'

allegations that defendants' conduct was anti-democratic

were insufficient to show infringement of basic rights of

membership). Plaintiffs have not plausibly alleged that TWU

Local is “attempting to dismantle the union's electoral

system,” or “that members opposing [plaintiffs' opponents]

are in any fashion suppressed or threatened with reprisals.”

Id. Absent any further aggravating allegations, plaintiffs'

allegations are insufficient to state a claim for relief under §

411(a)(2).

C

*8 Plaintiffs also allege that TWU Local violated the

LMRDA by giving Click only a week to prepare for the

second trials against him. Section 411(a)(5)(B) provides

that “[n]o member of any labor organization may be fined,

suspended, expelled, or otherwise disciplined except for

nonpayment of dues by such organization or by any officer

thereof unless such member has been ... (B) given a

reasonable time to prepare his defense[.]” “[D]iscipline,” as

used in § 411(a)(5), refers to “punitive actions diminishing

membership rights.” Finnegan, 456 U.S. at 438. Plaintiffs

allege that TWU Local disciplined them both by removing

them from union office and banning them from holding any

union office for three years. Removal from an elected office

is not a form of “discipline” actionable under § 411(a)(5).

See Adams–Lundy I, 731 F.2d at 1156–57 (holding that an

elected union officer's removal from office does not constitute

“infringement” of the rights secured by § 411). Although the

Fifth Circuit has not specifically held that being banned from

holding union office is a form of discipline, it has stated

in dicta that the right to run for office is a membership

right. See id. at 1156. The court will therefore assume that a

ban against running for union office is a form of discipline

that is actionable under § 411(a)(5). It will consider whether

plaintiffs have plausibly alleged that TWU Local violated

Click's rights under § 411(a)(5)(B) by banning him from

running for union office without providing him a reasonable

time to prepare his defense.

Section 411(a) (5)(B) does not specify the amount of time that

is necessary to comply with the “adequate time” requirement.

Courts generally decide whether a requirement such as this

has been satisfied “with due regard to the practicalities and

peculiarities of the case.” See, e.g., Air Lines Stewards &

Stewardesses Ass'n, Local 550 v. Am. Airlines, Inc. 455 F.2d

101, 108 (7th Cir.1972) (citing Mullane v. Cent. Hanover

Bank & Trust Co., 339 U.S. 306, 313–14, 70 S.Ct. 652, 94

L.Ed. 865 (1950)). The LMRDA gives plaintiffs the right to

present evidence and to cross-examine witnesses, see, e.g.,

Holschen v. Int'l Union of Painters, 598 F.3d 454, 463–64 (8th

Cir.2010), but it does not guarantee “the specific protections

associated with judicial proceedings, including the right to be

represented by counsel and the technical rules of pleading,

procedure, and evidence.” Frye v. United Steelworkers, 767

F.2d 1216, 1224 (7th Cir.1985); see also Conway v. Int'l

Ass'n of Heat & Frost Insulators, 209 F.Supp.2d 731, 751

(N.D.Ohio 2002) (holding that LMRDA did not guarantee

discovery), aff'd, 93 Fed. Appx. 780 (6th Cir.2004).

The amended complaint does not plead sufficient facts to

enable the court to draw the reasonable inference that TWU

Local failed to give Click a reasonable time to prepare his

defense. Plaintiffs aver that Click was notified of at least

some of the charges against him in March 2013, that Click's

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trial dates were set in April 2013, and that his initial trials

were conducted on May 14 and 15, 2013. Plaintiffs maintain

that the Executive Board notified Click on May 16 that it

was nullifying the results of the initial trials and scheduling

retrial for May 24.6 Plaintiffs do not plead any factual

allegations suggesting that the May 14 and 15 trials differed

substantially from the May 23 and 24 retrials. Assuming

that Click did not learn about all of the charges against him

until the trial dates were set in April 2013, Click had 14

and 15 days, respectively, to prepare for his first trials, and

six and seven days more, respectively, to hone his defense

in light of what he learned about TWU Local's case at his

first trials. This is well within the range that courts have

considered reasonable under § 41 1(a)(5)(B). See Wellman v.

Int'l Union of Operating Eng'rs, 812 F.2d 1204, 1206 (9th

Cir.1987) (28 days); Falcone v. Dantinne, 288 F.Supp. 719,

727 (E.D.Pa.1968) (23 days), rev'd on other grounds, 420

F.2d 1157 (3d Cir.1969); Vars v. Int'l Bhd. of Boilermakers,

215 F.Supp. 943, 947 (D.Conn.1963) (14 days), aff'd, 320

F.2d 576 (2d Cir.1963). Thus plaintiffs have failed to state a

plausible claim for relief under § 411(a)(5)(B).

D

*9 Plaintiffs allege that TWU Local violated the LMRDA

by infringing their rights to a full and fair hearing. They assert

that TWU Local deprived them of a full and fair hearing

when (1) Click and Lindemann were tried twice for the

same offense; (2) Lindemann was retried in absentia while

on authorized medical leave; (3) Martin was tried before a

panel of his accusers; (4) Martin was denied the right to have

the assistance of counsel; and (5) Martin was convicted on

insufficient evidence.

1

Section 411(a) (5)(C) of the LMRDA protects members of

labor organizations from being disciplined without first being

afforded a full and fair hearing. See 29 U.S.C. § 411(a)

(5)(C). “The full and fair hearing clause does not require

unions to provide the ‘full panoply of procedural safeguards

found in criminal proceedings,’ but only to comply with

the ‘fundamental and traditional concepts of due process.’ “

Wildberger v. Am. Fed'n of Gov't Emps., 86 F.3d 1188, 1193

(D.C.Cir.1996) (quoting Ritz v. O'Donnell, 566 F.2d 731, 735

(D.C.Cir.1977)); see United States v. Int'l Bhd. of Teamsters,

247 F.3d 370, 385 (2d Cir.2001) (same) (“Teamsters ”);

Bell v. Int'l Bhd. of Teamsters, 108 F.3d 1376, 1997 WL

103320, at *5 (6th Cir.1997) (unpublished table decision)

(same). “Not all of the due process protections available in

the federal courts apply to union disciplinary proceedings.”

Teamsters, 247 F.3d at 385. “A violation of a procedural

provision of a union's constitution is actionable only if the

violation deprived the party of a full and fair hearing under

the LMRDA.” Id. at 387.

2

Plaintiffs have failed to state a plausible claim that TWU

Local violated the LMRDA by trying Click and Lindemann

twice for the same offense. As a general proposition, the

Supreme Court has declined to interpret the Due Process

Clause as extending double jeopardy protection beyond the

context of criminal prosecution. See Dowling v. United States,

493 U.S. 342, 354, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990).

Although courts have found a violation of § 411(a)(5)(C)

where a union member was retried by individuals who had

previously heard the charges and found the member guilty,

see, e.g., Rosario v. Amalgamated Ladies' Garment Cutters'

Union, Local 10, 605 F.2d 1228, 1243 (2d Cir.1979), this

is not what plaintiffs allege. Plaintiffs fail to plead any

factual allegations that explain why the Executive Board

nullified Click and Lindemann's May 14 and 15 trials and

ordered retrials, or that there were any other circumstances

of unfairness surrounding the retrials that would enable the

court to draw the reasonable inference that plaintiffs' rights

to a full and fair hearing were violated. Merely alleging that

a union ordered a new trial, without more, does not state a

plausible claim that the union failed to afford a member a

full and fair hearing. See Frye, 767 F.2d at 1224 (stating that

plaintiff's “contention that a trial de novo by the International's

Commission was improper as a matter of law is not supported

by reason or authority”).

3

*10 Plaintiffs have also failed to state a plausible claim that

TWU Local violated § 411(a)(5)(C) when it tried Lindemann

in absentia during his absence from work on approved

medical leave. “Fundamental due process ... gives a party the

right to be present during proceedings brought against him ...,

subject to limited exceptions.” Holschen, 598 F.3d at 464 n.

4. This right is infringed when the circumstances of the case

suggest that the accused did not have a “fair opportunity”

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to attend the relevant hearing. Moody v. Miller, 864 F.2d

1178, 1181 (5th Cir.1989) (per curiam). Plaintiffs allege

that TWU Local violated Lindemann's rights by conducting

the retrial when they knew that he was out on formally

approved extended medical leave. But merely alleging that

Lindemann was ill and unable to attend the hearing does not

enable the court to draw the reasonable inference that TWU

Local failed to afford Lindemann a full and fair hearing. If,

through no fault of TWU Local, a member “[was] unable

or refuse[d] to attend a disciplinary hearing, due process

requires no more than that the hearing be held in accordance

with all of the other requirements of due process that are

called for under the circumstances.” Id.; see also Rosario,

605 F.2d at 1244 (finding no due process violation where

parties were entitled to be present at second trial but chose to

boycott proceeding instead). This conclusion is strengthened

by plaintiffs' failure to allege that Lindemann notified TWU

Local that he was too ill to attend the May 24 retrial or to

request a continuance. See Parker v. Ellis, 258 F.2d 937, 940

(5th Cir.1958) (dismissing due process claim where defendant

failed to raise health issue or seek continuance during trial).

Thus plaintiffs' allegations regarding Lindemann's trial in

absentia do not state a plausible claim on which relief can be

granted.

4

Plaintiffs allege that TWU Local violated Martin's rights to

a full and fair hearing under the LMRDA when he was

tried by the Executive Board, which included the person or

people who filed the charges against him initially. Essentially,

plaintiffs' complain that the combination of investigative,

prosecutorial, and adjudicatory functions in the Executive

Board violated Martin's right to due process under § 411(a)

(5)(C).

“The basic requirement of constitutional due process is a

fair and impartial tribunal, whether at the hands of a court,

an administrative agency or a government hearing officer.”

Valley v. Rapides Parish Sch. Bd., 118 F.3d 1047, 1052

(5th Cir.1997) (citing Gibson v. Berryhill, 411 U.S. 564,

569, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973)). “In an effort

to prevent ‘even the probability of unfairness,’ courts have

identified situations in which the probability of actual bias

on the part of the judge or decisionmaker is too high to

be constitutionally tolerable.” Baran v. Port of Beaumont

Navigation Dist. of Jefferson Cnty., Tex., 57 F.3d 436, 444

(1995) (quoting In re Murchison, 349 U.S. 133, 136, 75

S.Ct. 623, 99 L.Ed. 942 (1955)). A union's “combination

of investigative, prosecutorial, and adjudicatory functions in

[a single body] does not, by itself, violate the LMRDA.”

Wildberger, 86 F.3d at 1195. But when this combination

occurs, courts “should be alert to the possibilities of bias

that may lurk in the way particular procedures actually work

in practice.” Withrow v. Larkin, 421 U.S. 35, 54, 95 S.Ct.

1456, 43 L.Ed.2d 712 (1975). It is therefore insufficient

for plaintiffs merely to allege that the tribunal that filed

charges against them also adjudicates the charges. See id.

at 58 (holding that “[t]he fact that the same agency makes

[the initial decision to charge and the ultimate adjudicative

decision] in tandem ... relat[ing] to the same issues does not

result in a procedural due process violation”). Plaintiffs “must

overcome a presumption of honesty and integrity in those

serving as adjudicators; and [they] must convince that, under

a realistic appraisal of psychological tendencies and human

weakness, conferring investigative and adjudicative powers

on the same individuals poses such a risk of actual bias or

prejudgment” to constitute a denial of the right to a full and

fair hearing. Id. at 47.

*11 The court holds that plaintiffs have plausibly pleaded

that Martin was denied a full and fair hearing when he

was tried by a panel that included his accusers. Plaintiffs'

allegations regarding the “running controversy” between

Martin and the faction associated with McDaniel enable the

court to draw the plausible inference that there was “the

possibility of bias.” Bakalis v. Golembeski, 35 F.3d 318, 326

(7th Cir.1994) (applying Withrow and holding that plaintiff

had adduced sufficient evidence at summary judgment stage

to overcome presumption of impartiality); see also Valley,

118 F.3d at 1053 & n. 4 (quoting Bakalis with approval

for proposition that “appellate jurisprudence has favored

recusing board members who display a bias or prejudice that

would result in an unconstitutional decision”). In support

of their claim that the Executive Board prejudged Martin's

guilt, plaintiffs allege that they all ran together on a slate of

candidates opposed by past-president McDaniel. They aver

that, when Martin refused to assist the Executive Board in

rescheduling Click and Lindemann's trials, the Executive

Board suspended Martin from the office of union president

in retaliation. Plaintiffs allege that the Executive Board did

not explain its decision to suspend Martin until May 16,

when it charged him with violating the union constitution.

Based on these allegations, and taking a realistic appraisal of

psychological tendencies and human weaknesses, the court

holds that plaintiffs' allegation that the Executive Board

acted in a prosecutorial and adjudicative role during the

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same hearing plausibly suggests a risk of actual bias or

prejudgment. Cf. Stein v. Mutuel Clerks' Guild of Mass.,

Inc., 560 F.2d 486, 491 (1st Cir.1977) (upholding trial court's

conclusion that plaintiff did not get full and fair hearing

where union president, who was also member of executive

committee, made comments to committee revealing he had

prejudged case).

5

Plaintiffs allege that TWU Local violated Martin's right to a

full and fair hearing when Martin was denied assistance of

counsel. Plaintiffs assert that this right is guaranteed by TWU

Local's constitution.

As noted above, the LMRDA's guarantee of a right to a full

and fair hearing does not include the right to be represented

by counsel. See Frye, 267 F.2d at 1224. Although the TWU

Local constitution may guarantee a union member the right

to assistance of counsel, “[a] union's violation of its own

constitution is not per se a violation of the LMRDA.” Adams–

Lundy II, 792 F.2d at 1373. Rights guaranteed solely by a

local union's constitution are contractual rights-not LMRDA

rights-and “a federal court has no jurisdiction to enforce union

constitutions and by-laws as such.” Id. (citing McGovern

v. New Orleans Clerks & Checkers, Local 1497 ILA, 343

F.Supp. 351, 352 (E.D.La.1972), aff'd per curiam, 463 F.2d

423 (5th Cir.1972)). Thus plaintiffs' bare allegations that

Martin was not afforded the right to counsel, in violation of

TWU Local's constitution, are insufficient of themselves to

state a plausible claim for relief.

6

*12 Plaintiffs assert that the Executive Board convicted

Martin on insufficient evidence presented to support the

charges against him. Section 411(a)(5)(C) “requires the

charging party to provide some evidence at the disciplinary

hearing to support the charges made.” Int'l Bhd. of

Boilermakers v. Hardeman, 401 U.S. 233, 246, 91 S.Ct.

609, 28 L.Ed.2d 10 (1971) (noting that the Supreme

Court has “repeatedly held that conviction on charges

unsupported by any evidence is a denial of due process,”

and that § 411(a)(5)(C) “import[s] a similar requirement

into union disciplinary proceedings”). This standard respects

“the apparent congressional intent to allow unions to govern

their own affairs.” Id. Nevertheless, although § 411(a) (5)(C)

requires “some evidence,” plaintiffs' conclusory allegation

that the evidence presented at Martin's trial was insufficient

does not enable the court to draw the reasonable inference that

TWU Local violated Martin's right to a full and fair hearing.

Cf. Rosario, 605 F.2d at 1243 (noting that “union disciplinary

proceedings ... except in extreme cases, are not reviewed in

the federal courts for the sufficiency of the evidence”).

E

The court finally considers whether plaintiffs have stated a

plausible claim for relief under § 529, which protects a union

member from retaliation for exercising his or her rights under

the LMRDA.

Plaintiffs allege that Martin's suspension from office occurred

in retaliation for his refusal to reschedule Click's and

Lindemann's trials. But removal from elected union office

does not qualify as a suspension, expulsion, or other discipline

under § 529. See Finnegan, 456 U.S. at 439 n. 9 (dictum).

Nowhere in the amended complaint do plaintiffs allege

that the Executive Board's decision to ban plaintiffs from

running for office was taken in retaliation for the exercise

of plaintiffs' rights. Accordingly, the court holds that the

amended complaint does not plausibly allege a right to relief

under § 529.

VI

Although the court is dismissing some of plaintiffs' claims,

it will permit them to replead. See In re Am. Airlines, Inc.,

Privacy Litig., 370 F.Supp.2d 552, 567–68 (N.D.Tex.2005)

(Fitzwater, J.) (“[D]istrict courts often afford plaintiffs at

least one opportunity to cure pleading deficiencies before

dismissing a case, unless it is clear that the defects are

incurable or the plaintiffs advise the court that they are

unwilling or unable to amend in a manner that will avoid

dismissal.” (citation and internal quotation marks omitted)).

The defects with respect to § 102 of the NLA and § § 401, 413,

and 530 of the LMRDA are incurable, and the court therefore

declines to permit plaintiffs to attempt to plead a claim under

any of these provisions. But because plaintiffs have not stated

that they cannot, or are unwilling to, cure the other defects that

the court has identified, it grants them 28 days from the date

this memorandum opinion and order is filed to file a second

amended complaint.

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* * *

*13 The court grants TWU Local's motion to dismiss count

II under Rule 12(b)(1), and it grants in part and denies in part

TWU Local's Rule 12(b)(6) motion as to plaintiffs' claims in

count I.

SO ORDERED.

All Citations

Not Reported in F.Supp.3d, 2014 WL 4358480, 201 L.R.R.M.

(BNA) 3036

Footnotes

1 In deciding TWU Local's Rule 12(b)(6) motion, the court construes the amended complaint in the light most favorable

to plaintiffs, accepts as true all well-pleaded factual allegations, and draws all reasonable inferences in their favor. See,

e.g., Lovick v. Ritemoney Ltd., 378 F.3d 433, 437 (5th Cir.2004). “The court's review [of a Rule 12(b)(6) motion] is limited

to the complaint, any documents attached to the complaint, and any documents attached to the motion to dismiss that

are central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d

383, 387 (5th Cir.2010).

A Rule 12(b)(1) motion can mount either a facial or factual challenge. See Hunter v. Branch Banking & Trust Co., 2013

WL 607151, at *2 (N.D.Tex. Feb.19, 2013) (Fitzwater, C.J.) (citing Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir.

May 1981)). When a party makes a Rule 12(b)(1) motion without including evidence, the challenge to subject matter

jurisdiction is facial. Id. The court assesses a facial challenge as it does a Rule 12(b)(6) motion in that it “looks only at

the sufficiency of the allegations in the pleading and assumes them to be true. If the allegations are sufficient to allege

jurisdiction, the court must deny the motion.” Id. (citation omitted) (citing Paterson, 644 F.2d at 523).

2 Plaintiffs' amended complaint does not specify whether this person was a member of the Executive Board or a member

of the union. See Am. Compl. ¶ 20.

3 TWU Local's first motion to dismiss predates plaintiffs' amended complaint. “The court may nevertheless treat defendant's

motion as directed to the amended complaint because the defects in plaintiff[s'] complaint reappear in the amended

complaint.” Moore v. Dall. Indep. Sch. Dist., 557 F.Supp.2d 755, 760 (N.D.Tex.2008) (Fitzwater, C.J.) (internal quotation

marks and brackets omitted), aff'd, 370 Fed. Appx. 455 (5th Cir.2010). Because TWU Local asserts that the amended

complaint is subject to dismissal on the same grounds as is the complaint, and the parties have fully briefed the sufficiency

of the amended complaint, the court will consider TWU Local's arguments in its first motion to dismiss in assessing

whether the amended complaint is subject to dismissal under Rules 12(b)(1) and 12(b)(6).

4 See Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001) (per curiam) (“When a Rule 12(b)(1) motion is filed in

conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing

any attack on the merits.”).

5 Plaintiffs cite identical provisions of the NLA and LMRDA in counts I and II as the basis for their claims. Compare Am.

Compl. ¶ 71, with ¶ 83 (citing 29 U.S.C. §§ 102, 401, 411, 412, 413, 431, 481, 482, 501, 529, and 530). The primary

difference between each count is that, in count I, plaintiffs seek relief for “violation of the LM[RD]A,” Am. Compl. at 10 (bold

font and upper case text omitted), while in count II, they seek relief for “breach of the TWU [International] Constitution &

violation of the LM[RD]A,” id. (bold font and some upper case text omitted).

6 Without explanation, plaintiffs later aver that the retrial committee conducted an individual hearing against Click on May

23. Plaintiffs do not contend that the Executive Board failed to notify Click of the May 23 retrial. Thus there is no basis for

the court to reasonably draw any inference other than that the Executive Board notified Click of the May 23 proceeding

at least several days before the hearing was conducted.

End of Document © 2024 Thomson Reuters. No claim to original U.S.

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Only the Westlaw citation is currently available.

NOT PRECEDENTIAL

United States Court of Appeals, Third Circuit.

Michael MCCARTHY; Robert Eddis; the Rank

and File Members of IAM District Lodge 19

v.

INTERNATIONAL ASSOCIATION

OF MACHINISTS AND AEROSPACE

WORKERS; Michael Perry, President

of IAM District Lodge 19 Michael

McCarthy; Robert Eddis, Appellants

No. 21-1673

|

Submitted Pursuant to Third Circuit

L.A.R. 34.1(a) December 6, 2021

|

Filed: December 6, 2021

Appeal from the United States District Court for the Eastern

District of Pennsylvania (D.C. No. 2-19-cv-05727), District

Judge: Hon. Berle M. Schiller

Attorneys and Law Firms

Alice W. Ballard, Esq., Philadelphia, PA, Willem Bloom,

Esq., Thomas H. Geoghegan, Esq., Despres Schwartz &

Geoghegan, Chicago, IL, Robert S. Goggin, III, Esq., Keller

& Goggin, Philadelphia, PA, for Michael McCarthy, Robert

Eddis.

Alice W. Ballard, Esq., Philadelphia, PA, Robert S. Goggin,

III, Esq., Keller & Goggin, Philadelphia, PA, for Rank and

File Members of IAM District Lodge 19.

Jeffrey A. Bartos, Esq., John J. Grunert, Jr., Esq., Guerrieri

Bartos & Roma, Washington, DC, for Appellants.

Before: SHWARTZ, PORTER, and FISHER, Circuit Judges.

OPINION*

SHWARTZ, Circuit Judge.

*1 Michael McCarthy, Robert Eddis, and other members of

District Lodge 19 initiated this action pursuant to the LaborManagement Reporting and Disclosure Act (“LMRDA”), 29

U.S.C. § 401 et seq., against the International Association

of Machinists and Aerospace Workers (“IAM”) and Michael

Perry, the President of District Lodge 19. McCarthy contends

that he was removed from his IAM position for improper

reasons, but Defendants counter that he was removed

for incompetent job performance. Because (1) Plaintiffs'

LMRDA voting rights were not violated by McCarthy's

removal; and (2) McCarthy failed to demonstrate that his

alleged protected speech caused the adverse action, we will

affirm.

I

A

IAM is an international labor organization. It includes

hundreds of local lodges and thirty-five intermediate-level

district lodges, including District Lodge 19. District Lodge

19 has nationwide responsibility for employees in the rail

industry, and it is governed by thirteen General Chairmen and

one President.

In 2012, McCarthy was appointed as a General Chairman of

District Lodge 19. In 2015, he was elected to a full, four-year

term as a General Chairman. In 2016, McCarthy declined to

sign a no-confidence letter seeking the removal of the thenDistrict Lodge 19 President from office but later changed his

mind and agreed to sign the petition.

Perry became the President of District Lodge 19 in 2019,

and McCarthy was reelected as a General Chairman.

As President, Perry received several complaints about

McCarthy's representation of District Lodge 19 members.

Perry investigated the allegations and thereafter informed

McCarthy that he could either resign or face formal

disciplinary charges. After McCarthy declined to resign,

Perry removed McCarthy from his assignments and, pursuant

to Article L of the IAM Constitution,1 initiated five

charges against McCarthy related to alleged instances of

incompetence, negligence, and insubordination.2 Thereafter,

IAM President Robert Martinez referred these charges

to a Special Trial Committee, which was composed of

three IAM representatives from other district and local

lodges. The Special Trial Committee conducted a preliminary

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investigation and determined there was sufficient substance

to the charges to warrant a formal trial. The Special Trial

Committee then conducted a trial at which Perry and

McCarthy testified, introduced evidence, and called and

cross-examined witnesses.

*2 The Special Trial Committee found McCarthy guilty

of four of the five charges and recommended that he be

removed from his office as a General Chairman and banned

from holding any IAM office for five years. Martinez agreed,

removed McCarthy as a General Chairman, and implemented

the five-year office-holding ban, thereby preventing him from

running in the 2023 union elections. The IAM Executive

Council affirmed Martinez's decision. McCarthy's appeal to

the Convention of the IAM Grand Lodge remains pending.

B

Meanwhile, Plaintiffs initiated this action. In their Amended

Complaint, Plaintiffs allege that Defendants violated

Plaintiffs' equal right to vote in union elections and

McCarthy's right to free speech as guaranteed by the

LMRDA, 29 U.S.C. § 411(a).

3

 The District Court granted

summary judgment for Defendants. McCarthy v. Int'l Ass'n

of Machinists & Aerospace Workers, No. 19-CV-5727, 2021

WL 859400, at *9 (E.D. Pa. Mar. 8, 2021). The Court

explained that Plaintiffs' claims failed because, among other

things, (1) Plaintiffs' right to vote was not violated since the

2019 election was issue-free and McCarthy was reasonably

removed from office; and (2) McCarthy's right to free speech

was not violated since he failed to demonstrate that the

charges against him in 2019 were caused by his initial refusal

to sign the no-confidence letter in 2016. Id. at *4-8.

Plaintiffs appeal. J.A. 1.

II4

The LMRDA's “primary objective” is to ensure “that unions

[are] democratically governed and responsive to the will of

their memberships.” Finnegan v. Leu, 456 U.S. 431, 436

(1982). Title I of the LMRDA includes a “bill of rights” that

“was designed to guarantee every union member equal voting

rights, rights of free speech and assembly, and a right to sue.”

United Steelworkers of Am., AFL-CIO-CLC v. Sadlowski,

457 U.S. 102, 109 (1982). The LMRDA provides “a cause of

action to any person whose” Title I rights have been violated.

Brenner v. Loc. 514, United Bhd. of Carpenters & Joiners of

Am., 927 F.2d 1283, 1298 (3d Cir. 1991); see also 29 U.S.C.

§ 412.

*3 Plaintiffs contend that Defendants' actions violated

Plaintiffs' LMRDA equal voting and free speech rights. We

disagree.

A

Under the LMRDA, every member of a labor organization

must have “equal rights ... to vote in elections.” 29 U.S.C. §

411(a)(1). To this end, § 411(a)(1) provides “a command that

members and classes of members shall not be discriminated

against in their right to nominate and vote.” Calhoon v.

Harvey, 379 U.S. 134, 139 (1964). Here, McCarthy does

not contend that the 2019 elections were somehow unfair or

fraudulent. Rather, he asserts that his removal from an elected

position violated the § 411(a)(1) rights of the District Lodge

19 members, such as Eddis, who voted for McCarthy. As

the Supreme Court has explained in the context of a free

speech claim, “when an elected official ... is removed from

his post, the union members are denied the representative of

their choice.” Sheet Metal Workers' Int'l Ass'n v. Lynn, 488

U.S. 347, 355 (1989).

A union member's right to vote, however, is “subject

to reasonable rules and regulations in such organization's

constitution and bylaws.” 29 U.S.C. § 411(a)(1). As relevant,

Article L of the IAM Constitution provides that an officer

may be removed from office or disqualified from holding

office for up to five years for “[i]ncompetence; negligence

or insubordination in the performance of official duties; or

failure or refusal to perform duties validly assigned.” J.A.

233. McCarthy does not dispute that Article L provides a

reasonable framework. In compliance with that framework,

the Special Trial Committee recommended that McCarthy

be removed from office and banned from holding office

due to incompetence and insubordination. Thus, McCarthy's

removal did not violate Plaintiffs' equal right to vote. Rather,

as contemplated by § 411(a)(1), McCarthy was subject to the

same IAM rules and regulations applicable to all IAM officers

and was removed for poor performance.

Moreover, Plaintiffs do not contend that the Special

Trial Committee trial lacked procedural safeguards. Rather,

Plaintiffs contend that the District Court used the wrong

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standard in evaluating the sufficiency of the evidence to

support the Special Trial Committee's verdict. The Court

applied the “some evidence” standard, McCarthy, 2021 WL

859400, at *6, which is typically applied to assess claims

brought under 29 U.S.C. § 411(a)(5). See Lewis v. Am. Fed'n

of State Cnty. & Mun. Emp., AFL-CIO, 407 F.2d 1185,

1195 (3d Cir. 1969) (explaining that implicit in § 411(a)(5)'s

guarantee of a “full and fair hearing” is the “requirement that

there be some evidence to support the charges made” (citation

omitted)). Section 411(a)(5) is not at issue here, however,

and there is some authority suggesting that this standard

applies only to due process-style claims under § 411(a)(5).

See Black v. Ryder/P.I.E. Nationwide, Inc., 970 F.2d 1461,

1468 (6th Cir. 1992) (“While the ‘some evidence’ standard

applies when reviewing a union's decision for procedural

sufficiency, this deferential standard cannot apply to cases

concerning the free speech guarantees of the LMRDA if those

protections are to mean anything.”); Bise v. Int'l Bhd. of Elec.

Workers, AFL-CIO Loc. 1969, 618 F.2d 1299, 1304 n.5 (9th

Cir. 1979) (explaining that the “some evidence” standard is

more properly used when assessing the procedure used by

the union but is less proper when the question is whether

“discipline is being imposed for an improper purpose”).

*4 Even if a higher standard applied, such as the substantial

evidence standard used to review administrative agency fact

finding, we would conclude the evidence supported the

Special Trial Committee's findings. “Substantial evidence is

such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion .... It is more than a mere

scintilla but may be somewhat less than a preponderance

of the evidence[.]” Rutherford v. Barnhart, 399 F.3d 546,

552 (3d Cir. 2005) (quotation marks and citations omitted).

The record meets this standard. For example, testimony was

offered to support each of the alleged acts of misconduct and

the fact finders credited that testimony. McCarthy's denials

or explanations for his actions do not negate that substantial

evidence supported the verdict against him.

In sum, because McCarthy was removed from his position

as General Chairman in compliance with Article L, and

substantial evidence supported the Special Trial Committee's

findings, his removal did not violate Plaintiffs' § 411(a)(1)

equal voting rights.

B

McCarthy's free speech claim also fails. The LMRDA

provides that every member of a labor organization has the

right “to express any views, arguments, or opinions[.]” 29

U.S.C. § 411(a)(2). Thus, the removal of an elected union

representative in retaliation for protected speech violates

the LMRDA. Lynn, 488 U.S. at 349. A plaintiff claiming

retaliation must establish three elements: (1) he engaged in

protected expression; (2) he was subjected to an adverse

action; and (3) the retaliation was a direct result of the

protected expression. Casumpang v. Int'l Longshoremen's &

Warehousemen's Union, Loc. 142, 269 F.3d 1042, 1058 (9th

Cir. 2001); see also Trail v. Loc. 2850 UAW United Def.

Workers of Am., 710 F.3d 541, 546 (4th Cir. 2013) (“To state a

retaliation claim [ ], a plaintiff must allege that the retaliation

was in response to her exercise of a right guaranteed by some

other provision of the LMRDA.”).

McCarthy contends that he engaged in protected speech in

2016 when he initially refused to sign the no-confidence

letter and that Defendants retaliated against him in 2019 by

bringing the charges that ultimately led to his removal from

office. However, McCarthy has failed to show that the alleged

retaliation was causally connected to his protected expression.

To show a causal connection, a plaintiff must generally

show either “(1) an unusually suggestive temporal proximity

between the protected activity and the allegedly retaliatory

action, or (2) a pattern of antagonism coupled with timing[.]”

Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267

(3d Cir. 2007). McCarthy has made neither showing. First,

McCarthy has failed to demonstrate a temporal connection

between his 2016 initial refusal to sign the no-confidence

letter and his 2019 removal. See Watson v. Rozum, 834

F.3d 417, 423 (3d Cir. 2016) (holding that a two-year delay

between the protected activity and the alleged retaliatory

conduct “is just too remote to suggest a retaliatory motive”).

Second, McCarthy has failed to demonstrate a pattern of

antagonism targeting him in the period between 2016 and

2019. To the contrary, McCarthy and Perry ran on the same

slate of nominees and were elected together in the 2019

elections.

McCarthy counters that when Perry demanded McCarthy's

resignation, Perry said “something to the effect of you were

never on my team and now it's official.” J.A. 212. Perry denies

making that statement, however, and, even if we assume that

Perry's 2019 statement was referring back to the 2016 noconfidence letter, McCarthy's self-serving testimony on this

front is insufficient, without more, to establish causation. See

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Gonzalez v. Sec'y of Dep't of Homeland Sec., 678 F.3d 254,

263 (3d Cir. 2012) (“As a general proposition, conclusory,

self-serving affidavits are insufficient to withstand a motion

for summary judgment.” (quotation marks and citation

omitted)); see also Johnson v. Washington Metro. Area

Transit Auth., 883 F.2d 125, 128 (D.C. Cir. 1989) (“The

removal of a factual question from the jury is most likely

when a plaintiff's claim is supported solely by the plaintiff's

own self-serving testimony, unsupported by corroborating

evidence[.]”).5

*5 In sum, McCarthy failed to demonstrate that the alleged

2019 adverse action was caused by his 2016 protected

expression. Thus, his retaliation claim under § 411(a)(2) fails.

III

For the foregoing reasons, we will affirm.

All Citations

Not Reported in Fed. Rptr., 2021 WL 5766569

Footnotes

* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent.

1 IAM's governing document is its Constitution. Article L of the IAM Constitution governs allegations of misconduct by IAM

officers, representatives, and members, and it includes certain “due process guarantees and safeguards[.]” J.A. 233. It

provides, in relevant part, that (1) officers may be removed from office; (2) allegations of misconduct must be made in

writing to the IAM President, who may refer the matter to a Special Trial Committee; (3) the Special Trial Committee

may recommend that the charges be dismissed or a trial be held; (4) if a trial is held, both sides have the right to

present evidence and arguments; (5) the Special Trial committee reports its verdict and recommended penalty to the

IAM President, who may affirm, modify, or reverse the verdict; (6) the IAM President's decision may be appealed to the

IAM Executive Council; and (7) the decision of the Executive Council may be appealed to the Grand Lodge Convention.

2 These charges alleged, among other things, that McCarthy: (1) acted incompetently when representing Amtrak members

of the Wilmington, Delaware Shops, by failing to appear and represent twenty-five members when they were pressured

to recant certain statements, failing to investigate the nature of the dispute with Amtrak, and visiting the Wilmington shop

after he was removed from the Wilmington assignment; (2) failed to properly process two grievances sent to him by a local

lodge; and (3) provided poor representation to the Kansas and Oklahoma Railroad, most notably by signing a collective

bargaining agreement that did not provide for premium pay for overtime.

3 Plaintiffs abandoned their claims under the Labor Management Relations Act, specifically 29 U.S.C. § 462, regarding

trusteeships, and under the IAM Constitution by omitting any reference to them in their opposition to Defendants' motion

for summary judgment. See Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (“[G]rounds

alleged in the complaint but not relied upon in summary judgment are deemed abandoned.”); Carroll v. Lancaster Cnty.,

301 F. Supp. 3d 486, 511-12 (E.D. Pa. 2018) (same).

4 The District Court had jurisdiction pursuant to 28 U.S.C. § 1331, and we have jurisdiction pursuant to 28 U.S.C. § 1291.

Our review of a district court's order granting summary judgment is plenary. Mylan Inc. v. SmithKline Beecham Corp., 723

F.3d 413, 418 (3d Cir. 2013). Summary judgment is appropriate where “there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant is entitled to judgment

as a matter of law when the non-movant fails to make “a sufficient showing on an essential element of her case with

respect to which she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When conducting this

analysis, we “view the facts in the light most favorable to the non-[movant] and must make all reasonable inferences in

that party's favor.” Hugh v. Butler Cnty. Fam. YMCA, 418 F.3d 265, 267 (3d Cir. 2005).

5 McCarthy also emphasizes that shortly after he refused to sign the no-confidence letter in 2016, Brian Orwan, the thenDistrict Lodge 19 Assistant to the President, told McCarthy that “[y]ou need to learn to do what you're told, not what you

want.” Appellants' Br. 3 (quoting J.A. 207). Orwan denied making this statement and explained that he met with McCarthy

in 2016 due to McCarthy's work performance issues. Regardless, Orwan resigned in 2017 and thus had no role in the

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2019 decision to charge and terminate McCarthy. See Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 545

(3d Cir. 1992) (“Stray remarks by non-decisionmakers or by decisionmakers unrelated to the decision process are rarely

given great weight, particularly if they were made temporally remote from the date of decision.”).

End of Document © 2024 Thomson Reuters. No claim to original U.S.

Government Works.

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2017 WL 11612500

Only the Westlaw citation is currently available.

United States District Court, S.D. Texas, Houston Division.

Sherry Lynn JOHNSTON, Plaintiff,

v.

David DEXEL, et al., Defendants.

Civil Action No. H-16-3215

|

Signed 08/18/2017

Attorneys and Law Firms

Susan Cecilia Norman, Attorney at Law, Houston, TX, for

Plaintiff.

George Billy Shepherd, III, Allison Standish Miller, Stephen

R. Bailey, Shepherd Prewett PLLC, Julie Ann Countiss, Jim

C. Ezer, Houston, TX, for Defendants.

MEMORANDUM AND OPINION

Lee H. Rosenthal, Chief United States District Judge

*1 Sherry Johnston's elderly mother, Willie Jo Mills, died in

a nursing home. Johnston alleges that Mills received improper

and negligent care that led to her death. Johnston asserts a

long list of legal claims against a long list of defendants, all

of whom she alleges played some role in Mills's death. The

defendants moved to dismiss, Johnston responded, and the

defendants replied. (Docket Entries No. 17, 18, 20, 21, 24, 25,

27, 28, 31).

Based on the complaint, the motions and responses, and the

applicable law, the motions to dismiss are denied in part

and granted in part. The following claims are dismissed

with prejudice: all currently pleaded claims against Judge

Christine Butts and Sherry Fox (though Johnston may amend

her complaint to allege a claim under Section 1201.003 of

the Texas Estate Code on Judge Butts's bond); and all claims

under 42 U.S.C. § 1983 against David Dexel, Ginger Lott,

GSL Care Management, LLC, and Clarinda Comstock.

The following claims are dismissed without prejudice and

with leave to amend: the claims under § 1983 against

Harris County; all claims for disability discrimination and

retaliation under the Americans with Disabilities Act and the

Rehabilitation Act; all of the Texas state-law claims against

Harris County and Clarinda Comstock; the claim for civil

conspiracy to breach fiduciary duties; the claim for intentional

infliction of emotional distress; the claim for wrongful death

against David Dexel; and any claims that Johnston intended

to assert for fraud, defamation, violation of statutory duties,

or commission of “ultra vires” illegal acts.

The claim for breach of fiduciary duty is adequately pleaded

as to Dexel and Lott, and may proceed. The claim for

wrongful death is adequately pleaded as to Lott, and may also

proceed. Any amended complaint must be filed by September

18, 2017.

The reasons for these rulings are explained in detail below.

I. Background

This factual recitation is drawn from Johnston's complaint.

The well-pleaded factual allegations are taken as true for the

purposes of the motions to dismiss. In 2008, Johnston and

her sister, Cindy Pierce, sued their brother for conversion of

Mills's property and financial assets. A June 2008 report by

a court investigator found that Johnston was Mills's preferred

guardian. A year later, the presiding probate judge appointed

Howard Reiner as Mills's attorney ad litem and David Dexel

as Mills's temporary guardian of the person and estate. The

parties to that litigation signed a settlement agreement. The

probate court appointed Dexel as Mills's guardian of the

person on a continuing basis. Reiner was discharged as

attorney ad litem.

Dexel hired Ginger Lott and GSL Care Management, LLC,1

to manage Mills's care. Between 2009 and 2012, Johnston

frequently visited Mills at Silverado, the nursing home where

Mills resided. In 2012, Silverado changed management.

Johnston perceived a decline in the quality of Mills's care

after the change. Beginning in 2012 and into 2013, Johnston

complained to Dexel about her mother's care. Mills was

hospitalized on several occasions with urinary tract infections

during that time. Johnston complained that the infections

resulted from poor medical care. Dexel refused to move Mills

to a different nursing home. As a result, Johnston and Dexel's

relationship deteriorated.

*2 In May 2013, Dexel moved Mills to a different section

of Silverado, for residents who required a higher level of

care. According to the complaint, this section's residents had

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behavioral issues and were aggressive toward Mills. During

the same month, Johnston's complaints about Silverado's

treatment of Mills led it to ban Johnston from the premises.

Johnston alleges that Dexel “worked with” Silverado to ban

Johnston. In June 2013, Mills fell out of her wheelchair,

breaking several bones in her right leg. Dexel discontinued

Mills's physical therapy during her recuperation. Johnston

alleges that this made Mills's muscle problems worse. That

same month, Dexel allegedly made a “secret, ex parte, oral

motion” (which he filed in writing with the court three

days later) to have Clarinda Comstock appointed as Mills's

guardian ad litem. Judge Butts, the presiding probate judge,

granted this motion and instructed Comstock to investigate

Mills's condition and treatment and report to the court. Dexel

allegedly failed to notify both Johnston and Pierce of his

intention to seek Comstock's appointment.

Mills's condition continued to deteriorate. By September

2013, she could no longer hold a cup or fork, had lost 30 to 40

pounds, and suffered from recurring urinary tract infections.

Johnston continued to demand that Dexel move Mills to a

different nursing home, and she threatened to ask the court

to replace Dexel. In response, Dexel filed an application to

resign and to have the court appoint a successor guardian

for Mills. On September 13, 2013, Dexel notified interested

parties—including Johnston—of a hearing set for September

24, 2013. On September 16, 2013, Comstock filed her report

about Mills's condition and treatment. Johnston alleges that

the following day—one week before the hearing date—

Dexel, Lott, Comstock, and Judge Butts had a “secret, ex

parte meeting/hearing” during which Judge Butts appointed

Lott as Mills's successor guardian, replacing Dexel.

In October 2013, Lott moved Mills from the Silverado nursing

home to the Hampton nursing home. In December 2013,

Johnston filed an emergency application for a temporary

restraining order with Sherrie Fox, Judge Butts's Court

Coordinator. She alleges that Mills was “dehydrated, not

eating, weak, and ... declin[ing] fast.” Ten days later, Judge

Butts held a status conference. Both Johnston and Pierce

testified. They were able to reach an agreement with Lott,

including bringing outside food into the Hampton nursing

home, scheduling a regular swallow test, placing a drop

camera and phone apparatus in Mills's room, and reinstating

Johnston's visitation rights.

Johnston alleges that, in March 2014, Mills's doctor advised

Lott that Mills needed to see a cardiologist and an

endocrinologist, but Lott failed to follow the doctor's orders.

Judge Butts reappointed Reiner as Mills's attorney ad litem.

The following month, April 2014, Johnston texted Lott

that Mills “was delirious and unresponsive with pus in

her catheter” and needed to go to the emergency room

immediately. Lott did not respond to Johnston's text, so she

called 911. Lott allegedly told Hampton's personnel to send

the paramedics away when they arrived, and called a separate

ambulance. Although Lott was the only person with legal

authority to sign Mills in to the hospital, Lott allegedly never

went to the hospital, leaving Mills to sign herself in. During

the next month, Johnston and Pierce filed applications for

guardianship, triggering Reiner's termination as attorney ad

litem.

Johnston continued to investigate the Hampton's alleged

mistreatment of Mills. Johnston alleges that Lott allowed

Mills's caretakers to put two diapers on her, even though she

had a history of urinary tract infections. She also alleges that

Lott used an out-of-hospital do-not-resuscitate order to have

the Hampton withhold nutrition and hydration from Mills,

even though the hospital had found no swallowing problems.

Unfortunately, on September 27, 2014, Mills passed away.

Johnston alleges that Mills died of starvation after Lott

ordered the nursing home staff to withhold food and give

Mills nothing but water.

*3 On December 19, 2016, Johnston filed this suit. She

asserted 11 causes of action, which are summarized as

follows:2

1. All defendants allegedly violated the Americans with

Disabilities Act (ADA), specifically, 42 U.S.C. § 12132,

29 C.F.R. § 35.130, and 29 U.S.C. § 790 et seq.,

through their “habit, pattern, and practice of disability

discrimination.”

2. All defendants allegedly violated 42 U.S.C. § 12203, the

ADA provision prohibiting retaliation.

3. Dexel, Lott, Comstock, Reiner, Judge Butts, and

Fox allegedly violated Johnston's and Mills's First

Amendment rights, specifically, freedom of speech and

freedom of association, and therefore violated 42 U.S.C.

§ 1983.

4. Harris County and its agents, Dexel, Lott, Comstock,

and Reiner, allegedly violated Mills's Fifth Amendment

right to due process through their deliberate ignorance

of necessary food, nutrition, and medical attention for

Mills, and therefore violated § 1983.

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5. Harris County and its agents, Dexel, Lott, Comstock,

and Reiner, allegedly violated Mills's Fourteenth

Amendment right to due process, and therefore violated

§ 1983.

6. Unspecified defendants conspired to violate unspecified

persons' civil rights, in violation of 42 U.S.C. § 1985.

3

7. Reiner, Dexel, Comstock, Lott, Judge Butts, and Fox

allegedly conspired to, and did, breach their fiduciary

duties to Mills.

8. All defendants allegedly intentionally inflicted severe

emotional distress on both Johnston and Mills by

retaliating against them and denying their right to

association.

9. All defendants allegedly caused Mills's “wrongful[,]

premature death” through their “wrongful [and]

deliberately indifferent care or lack of care.”

10. All defendants allegedly “fail[ed] to fulfill statutory

duties.”4

11. Dexel, Lott, Comstock, Fox, Judge Butts, and Reiner

allegedly engaged in a long list of “ultra vires illegal,

criminal, and wrongful acts.”

*4 The defendants moved to dismiss, Johnston responded,

and the defendants replied. After the motions and replies were

filed, Johnston stipulated to Reiner's dismissal with prejudice

and the court dismissed Reiner from the case. (Docket Entry

No. 29, 30). The claims as to each remaining defendant and

the grounds urged for dismissal are examined below.

II. The Legal Standard

Rule 12(b)(6) allows dismissal if a plaintiff fails “to

state a claim upon which relief can be granted.” In Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), the

Supreme Court confirmed that Rule 12(b)(6) must be read

in conjunction with Rule 8(a), which requires “a short and

plain statement of the claim showing that the pleader is

entitled to relief,” Fed. R. Civ. P. 8(a)(2). To withstand a

Rule 12(b)(6) motion, a complaint must contain “enough facts

to state a claim to relief that is plausible on its face.” Id.

at 570; see also Elsensohn v. St. Tammany Parish Sheriff's

Office, 530 F.3d 368, 372 (5th Cir. 2008). In Ashcroft v.

Iqbal, 556 U.S. 662 (2009), the Supreme Court elaborated

on the pleading standards discussed in Twombly. The Court

explained that “the pleading standard Rule 8 announces does

not require ‘detailed factual allegations,’ but it demands

more than an unadorned, the-defendant-unlawfully-harmedme accusation.” Id. at 678 (quoting Twombly, 550 U.S. at

555). Iqbal explained that “[a] claim has facial plausibility

when the plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at

556).

“[I]n deciding a motion to dismiss for failure to state a

claim, courts must limit their inquiry to the facts stated

in the complaint and the documents either attached to

or incorporated in the complaint.” Lovelace v. Software

Spectrum, Inc., 78 F.3d 1015, 1017 (5th Cir. 1996). A court

may “consider documents integral to and explicitly relied on

in the complaint, that the defendant appends to his motion

to dismiss, as well as the full text of documents that are

partially quoted or referred to in the complaint.” In re Sec.

Litig. BMC Software, Inc., 183 F. Supp. 2d 860, 882 (S.D.

Tex. 2001) (internal quotation marks omitted). Consideration

of documents attached to a defendant's motion to dismiss is

limited to “documents that are referred to in the plaintiff's

complaint and are central to the plaintiff's claim.” Scanlan v.

Tex. A & M. Univ., 343 F.3d 533, 536 (5th Cir. 2003) (citing

Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498–

99 (5th Cir. 2000). The court can also consider government

documents and similar matters of public record without

converting the motion into one seeking summary judgment.

See Funk v. Stryker Corp., 631 F.3d 777, 780 (5th Cir.2011);

Isquith v. Middle S. Utils., Inc., 847 F.2d 186, 193 n.3 (5th

Cir. 1988) (quoting 5 WRIGHT & MILLER, FEDERAL

PRACTICE AND PROCEDURE § 1366); Jathanna v. Spring

Branch Indep. Sch. Dist., No. CIV.A. H-12-1047, 2012 WL

6096675, at *3 (S.D. Tex. Dec. 7, 2012).

III. Analysis

A. The Claims Against Judge Butts and Sherry Fox

The claims against Judge Butts and Sherry Fox must be

dismissed. Judge Butts performed the actions that form the

basis of this suit in her judicial capacity. Twilligear v. Carrell,

148 S. W.3d 502, 505 (Tex. App.—Houston [14th Dist.]

2004) (probate judges' actions in conducting guardianship

proceedings “are both judicial acts and within the jurisdiction

of the probate judges by whom they are required....”). She is

presumptively entitled to absolute immunity for performing

those acts. Stump v. Sparkman, 435 U.S. 349, 355-56 (1978).

While there are exceptions to absolute immunity for actions

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taken outside of the judicial capacity or “in the complete

absence of all jurisdiction,” id., Johnston does not allege or

argue that either of these exceptions applies. Instead, she

makes two unpersuasive arguments for why Judge Butts is not

entitled to immunity.

*5 First, Johnston argues that judicial immunity does not

apply to Texas statutory probate judges. She does not cite

cases or any other authority to support this proposition,

and the court's research did not reveal any. The ordinary

test for judicial immunity is easily met here. “In the Fifth

Circuit, the test is whether: ‘(1) the precise act complained

of ... is a normal judicial function; (2) the events involved

occurred in the judge's chambers; (3) the controversy centered

around a case then pending before the judge; and (4) the

confrontation arose directly and immediately out of a visit to

the judge in his official capacity.’ ” Odonnell v. Harris Cty.,

227 F. Supp. 3d 706, 757 (S.D. Tex. 2016), reconsideration

denied, No. CV H-16-1414, 2017 WL 784899 (S.D. Tex.

Mar. 1, 2017) (quoting Harper v. Merckle, 638 F.2d 848, 858

(5th Cir. 1981)). Managing a guardianship is a core judicial

responsibility for a judge with jurisdiction over guardianship

matters. Twilligear, 148 S.W.3d at 505 (applying the federal

standard). Mills's case was before Judge Butts, the decisions

were made in her court, and the dispute arose from those

decisions. The fact that Judge Butts is a Texas statutory

probate judge rather than a constitutional county judge is of

no moment.

Johnston's other argument is closer to the mark but still

fails, at least on the current complaint. Johnston claims that

Texas waived immunity for probate judges in § 1201.003

of the Texas Estate Code. Section 1201.003 provides that

a “judge is liable on the judge's bond to those damaged if

damage or loss results to a guardianship or ward because of

the gross neglect of the judge to use reasonable diligence in

the performance of the judge's duty under this subchapter.”

The section creates a “a limited waiver of judicial immunity,

allowing recovery for losses directly tied to the judge's duties

under” the subchapter. James v. Underwood, 438 S.W.3d 704,

714 (Tex. App.—Houston [1st Dist.] 2014). The subchapter

imposes on probate judges a set of duties plausibly related

to this case, including the “use of reasonable diligence to

determine whether an appointed guardian is performing the

required duties,” annual inspection of the well-being of each

ward, ensuring that guardians have posted solvent bonds, and

the like. Id. The immunity waiver is limited. It applies only

to actions on the judge's bond for gross neglect of the duties

imposed in the subchapter, and only to the extent of the bond's

value. It does not, contrary to Johnston's arguments, open

judges to generalized liability for violations of other statutes

or common-law duties. And Johnston did not sue under this

section or assert that Judge Butts violated any of the specific

statutory duties that it contains.

The claims against Judge Butts in the current complaint

are dismissed with prejudice, and without leave to amend,

because Judge Butts is entitled to absolute judicial immunity

and amendment would be futile. However, Johnston has leave

to amend her pleading to state a single claim on Judge Butts's

bond under § 1201.003 for Judge Butts's alleged violations of

her duties under that subchapter of the Texas Estates Code.

The claim against Judge Butts must clearly and explicitly

plead specific facts about Judge Butts's actions; identify the

specific statutory duties that these actions violated; and clarify

that Johnston seeks only to recover against, and up to the

amount of, Judge Butts's bond.

Sherry Fox, Judge Butts's Court Coordinator, is entitled to

derivative absolute immunity, which protects court personnel

who are sued for their actions taken in the course of “assisting

the judge in carrying out” the judge's judicial functions.

Mitchell v. McBryde, 944 F.2d 229, 230–31 (5th Cir. 1991);

Norris v. Warder, No. 3:02-CV-412-P, 2002 WL 31415920,

at *2 (N.D. Tex. Oct. 21, 2002). Fox is not subject to the

narrow waiver of immunity in § 1201.003, which applies only

to judges and only to the extent of their bond. The claims

against Fox are dismissed with prejudice, and without leave

to amend, because amendment would be futile.

B. The Claims Under § 1983 and § 1985 Against the

Other Defendants

*6 “Section 1983 provides a remedy against ‘ any person’

who, under color of state law, deprives another of rights

protected by the Constitution.” Collins v. City of Harker

Heights, Tex., 503 U.S. 115, 120 (1992). Local governments

are not vicariously liable under § 1983 for their employees'

or agents' violations of federal constitutional rights. It is only

“when execution of a government's policy or custom, whether

made by its lawmakers or by those whose edicts or acts may

fairly be said to represent official policy, inflicts the injury that

the government entity is responsible under § 1983.” Monell

v. New York City Dept. of Soc. Servs., 436 U.S. 658, 691

(1978). To allege a plausible claim under § 1983 against a

municipality, “a plaintiff must show that (1) an official policy

(2) promulgated by the municipal policymaker (3) was the

moving force behind the violation of a constitutional right.”

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Peterson v. City of Fort Worth, 588 F.3d 838, 847 (5th Cir.

2009).

The § 1983 claims against the court-appointed guardians—

Dexel, Lott, and Comstock—are dismissed with prejudice,

and without leave to amend. Court-appointed guardians and

attorneys ad litem are not state actors for purposes of § 1983.

In Polk County v. Dodson, 454 U.S. 312 (1981), the Supreme

Court held that a public defender does not act under color of

state law in representing a defendant merely because he or

she is a public defender rather than in private practice. The

Court began by observing that “a person acts under color of

state law only when exercising power ‘possessed by virtue

of state law and made possible only because the wrongdoer

is clothed with the authority of state law.’ ” Id. at 317–18

(quoting United States v. Classic, 313 U.S. 299, 326 (1941)).

While the source of the attorney's paycheck was “certainly a

relevant factor,” the public defender did not act under color of

state law simply by virtue of his position. Public defenders,

unlike other state employees, have independent professional

obligations to their clients, taking them out of the “state actor”

category for § 1983 purposes. Id. at 321.

Following Dodson, courts have held that guardians and

attorneys ad litem are not state actors merely by virtue of their

appointment by courts. Kirtley v. Rainey, 326 F.3d 1088, 1095

(9th Cir.2003) (per curiam) (a child's appointed guardian ad

litem did not act under color of state law solely by virtue

of being court-appointed); Meeker v. Kercher, 782 F.2d 153,

155 (10th Cir.1986) (same); Parkell v. South Carolina, 687 F.

Supp. 2d 576, 587 (D.S.C. 2009) (“Guardians ad litem are not

state actors for purposes of § 1983, because they give their

‘undivided loyalty to the minor, not the state.’ ”); Nelson v.

Kujawa, No. 07–C–741, 2008 WL 2401260, at *2 (E.D. Wis.

June 11, 2008) (“[S]tate-appointed guardians ad litem are not

state actors subject to liability under 42 U.S.C. § 1983.”);

Schiavo ex rel. Schindler v. Schiavo, 358 F.Supp.2d 1161,

1164–65 (M.D. Fla.2005) (“Contrary to Plaintiffs' argument,

Michael Schiavo, as court appointed guardian for Theresa

Schiavo, was not acting under color of state law.”); Chrissy

F. ex rel. Medley v. Miss. Dep't of Public Welfare, 780 F.

Supp. 1104, 1116 (S.D. Miss.1991), rev'd on other grounds,

995 F.2d 595 (5th Cir. 1993). This court reached the same

conclusion in Hall v. Dixon, No. CIV A. H 09-2611, 2010 WL

3909515, at *40 (S.D. Tex. Sept. 30, 2010), aff'd sub nom.

Hall v. Smith, 497 F. App'x 366 (5th Cir. 2012).

Johnston does not respond to the guardian defendants'

argument on this point. Because the cases clearly reject the

analysis that would allow a conclusion that Dexel, Lott, or

Comstock acted under color of state law, the § 1983 claims

against them fail as a matter of law. These § 1983 claims are

dismissed with prejudice and without leave to amend, because

amendment would be futile.

*7 The claims against Harris County fail for a different

reason. “[U]nder § 1983, local governments are responsible

only for their own illegal acts. They are not vicariously

liable under § 1983 for their employees' actions.” Connick

v. Thompson, 563 U.S. 51, 60 (2011). Plaintiffs seeking to

impose liability on a local government under § 1983 must

allege that ‘ “action pursuant to official municipal policy’

caused their injury.” Id. The allegations must include specific

facts describing the policy or custom and tying it to the

constitutional violation alleged. George, 2012 WL 2744332,

at * 16. The plaintiff must identify, at minimum: (1) an official

policy or custom with force of policy; (2) promulgated by a

policymaker; (3) that caused the violation of a constitutional

right. Peterson, 588 F.3d at 847.

Johnston's complaint fails because she has not plausibly

alleged the existence of a policy or a custom with the force

of policy, promulgated by a Harris County policymaker. The

only allegation that comes close is the barebones statement

that “Harris County has a habit and practice of violating the

due process rights of wards in guardianship by not allowing

them access to justice in the form of attending hearings at

which their rights are compromised.” (Docket Entry No. 10

at 33). This allegation is conclusory and, under the applicable

law, clearly insufficient. “The description of a policy or

custom and its relationship to the underlying constitutional

violation ... cannot be conclusory; it must contain specific

facts.” Spiller v. City of Tex. City Police Dept., 130 F.3d

162, 167 (5th Cir. 1997). Nor may a plaintiff “infer a policy

‘merely because harm resulted from some interaction with a

government entity,’ and instead must identify the policy or

custom that caused the violation.” Batiste v. Theriot, 458 F.

App'x 351, 358 (5th Cir. 2012) Johnston's complaint does

not identify instances of similar conduct by Harris County

actors. A single course of conduct against the plaintiff in a

particular case is generally insufficient as a matter of law to

support an inference of a pattern or practice. George, 2012

WL 2744332, at *16. Johnston's allegation does not satisfy

the requirements of the applicable law. Absent allegations

of a policy or custom, a decisionmaker, and a clear causal

relationship between the policy or custom and the injury that

Mills suffered, Johnston's claim cannot survive a motion to

dismiss. The § 1983 claim against Harris County fails as a

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matter of law and must be dismissed. The dismissal is without

prejudice and with leave to amend.

The complaint mentions § 1985 in a heading, but does not

allege any facts or legal basis for a cause of action under that

statute. To the extent that the complaint alleges a claim under

§ 1985 at all, the claim fails. It is dismissed, without prejudice

and with leave to amend.

C. The Disability-Discrimination Claims

Johnston alleges that all of the defendants engaged in

illegal disability discrimination and retaliation, in violation

of the Americans with Disabilities Act and § 504 of

the Rehabilitation Act. Claims under these statutes are

evaluated using the same framework and legal standards.

Frame v. City of Arlington, 657 F.3d 215, 223 (5th Cir.

2011). To state a prima facie case of discrimination under

either statute, the plaintiff must allege that: (1) she has a

qualifying disability; (2) she was denied benefits or otherwise

discriminated against; and (3) the discrimination was because

of her disability. Hale v. King, 642 F.3d 492, 499 (5th Cir.

2011). To show discrimination on the basis of a disability,

a plaintiff may either show disparate treatment—that the

defendant treated her worse than a similarly situated but nondisabled person—or that the defendant failed to reasonably

accommodate her disability. Arce v. Louisiana, 226 F. Supp.

3d 643, 651 (E.D. La. 2016). Johnston alleges that Mills was

mistreated, not that the defendants failed to make reasonable

requested accommodations.

*8 Johnston does not plead facts that, if proven, would

show that the defendants' alleged mistreatment was because

of Mills's disability. Failing to provide medical care to a

disabled person is not enough, on its own, to allege disability

discrimination. The allegations must include facts showing

that the plaintiff was treated differently than other similarly

situated individuals who did not have a disability. Nottingham

v. Richardson, 499 F. App'x 368, 377 (5th Cir. 2012). Johnston

has not alleged any facts that support a plausible inference

that Mills was treated worse than a similarly situated nondisabled elderly person. The complaint alleges in general

terms that Mills was disabled, that Mills was mistreated, and

that both Johnston and Mills were mistreated in retaliation

for their advocacy against that mistreatment. The complaint

does not allege a plausible causal connection between Mills's

disabilities and the defendants' actions. Despite the fact that

the defendants raised this problem in their motions to dismiss

and briefed it in detail, Johnston's response does not even

mention the issue. The disability-discrimination claim fails as

a matter of law. The retaliation claim fails for the same reason:

Johnston has not made nonconclusory factual allegations that

would plausibly support the conclusion that she and her

mother were treated worse than otherwise similarly situated

individuals on account of their advocacy or other protected

conduct protesting actions against Mills.

The disability discrimination and retaliation claims are

dismissed, without prejudice and with leave to amend.

D. The Texas State-Law Claims

1. The Immunity Defenses

The state-law claims against Harris County must be

dismissed, because the Texas law on sovereign immunity

shields the County from liability. “Subject to certain

exceptions, sovereign immunity protects local government

entities such as Harris County from liability from state-law

tort claims.” Brown v. Harris Cty., TX, No. CIV.A. H-07-0644,

2010 WL 774138, at *13 (S.D. Tex. Mar. 2, 2010), aff'd sub

nom. Brown v. Harris Cty., Texas, 409 F. App'x 728 (5th Cir.

2010) (citing General Servs. Comm'n v. Little-Tex Insulation

Co., 39 S.W.3d 591, 594 (Tex. 2001)); see also Harris Cty.

v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). That sovereign

immunity protects the State from liability even for its agents'

intentional torts. Tex. Civ. Prac. & Rem. Code § 101.057;

Taylor v. Gregg, 36 F.3d 453, 457 (5th Cir. 1994) (per

curiam), overruled in part on other grounds by Castellano

v. Fragozo, 352 F.3d 939, 949 (5th Cir. 2003) (en banc).

Johnston's argument that Texas's sovereign immunity does

not protect Harris County because sovereign immunity only

protects states and not their political subdivisions is contrary

to well-established law. E.g., Brown, 2010 WL 774138, at

*13. Johnston does not plead or otherwise identify exceptions

to the immunity doctrine that would justify liability here, and

the court is not aware of any. However, out of an abundance

of caution, the court will allow Johnston an opportunity

to amend her complaint to allege an exception to Texas's

sovereign immunity, consistent with Rule 11 of the Federal

Rules of Civil Procedure. The claims against Harris County

are dismissed, without prejudice and with leave to amend.

Comstock, who served as Mills's guardian ad litem, is

similarly shielded from liability under Texas law. Section

1054.056 of the Texas Estate Code provides that guardians

ad litem are “not liable for civil damages arising from a

recommendation made or an opinion given in the capacity

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of guardian ad litem.” There are exceptions to this immunity

rule for recommendations or opinions that are “wilfully

wrongful”; those given “with conscious indifference to or

reckless disregard for the safety of another”; “with malice”

or “in bad faith”; or those that are “grossly negligent.” Id.

Johnston does not allege that Comstock acted outside her

role as a guardian ad litem. The complaint does not make

any nonconclusory factual allegation that Comstock made

recommendations or gave opinions that fall into any of the

immunity exceptions.

To be sure, Johnston liberally peppers the allegations with

the language of purposeful impropriety. Johnston alleges

that Comstock's work was “replete” with misrepresentations;

“deliberately mischaracterized” Johnston's understanding of

her mother's health problems with “gross exaggerations”;

and attempted to “malign” Johnston. (Docket Entry No. 10

at 21). But the complaint does not allege facts sufficiently

specific to make the conclusory language a basis to plead a

plausible claim. The allegations lack facts from which the

court could infer that Comstock acted willfully, maliciously,

or with the “conscious indifference” to Mills's welfare that

is required to find gross negligence. See Burk Royalty Co.

v. Walls, 616 S.W.2d 911, 920 (Tex. 1981) (gross negligence

is “that entire want of care which would raise the belief

that the act or omission complained of was the result of a

conscious indifference to the right or welfare of the person

or persons to be affected by it.”). The fact that a guardian ad

litem's report contains falsehoods is not sufficient. There must

be factual allegations showing that the guardian was either

affirmatively aware that the statements were false or made the

statements with reckless, conscious indifference to their truth.

That in turn requires factual allegations what information

the guardian knew and how that differed from what the

guardian's report represented. The closest the complaint

comes to pleading around immunity is the allegation that

Comstock “never called key witnesses, such as Willie Jo

Mills' primary caretaker, who would have confirmed the

neglect and dangerous conditions at Silverado ....” (Docket

Entry No. 10 at 20-21). This factual allegation may plausibly

support an inference of negligence. But Johnston does not

include factual allegations that would justify an inference that

Comstock was grossly negligent—that her failure to contact

a given witness was the product of an “entire want of care”

showing “conscious indifference” to Mills's well-being. Burk

Royalty Co., 616 S.W.2d at 920.

*9 The Texas-law claims against Comstock are dismissed,

without prejudice and with leave to amend. To survive a

subsequent motion to dismiss, Johnston must plead specific

facts—not labels, descriptions, or conclusions—from which

the court could infer that her characterizations of Comstock's

state of mind are plausible.

2. The Remaining Claims and Defendants

a. The Claims for Breach of Fiduciary Duty and Civil

Conspiracy

The claims against the remaining individual defendants

require more detailed evaluation. The first Texas-law cause of

action charges that the only remaining individual defendants

—Dexel and Lott—conspired to, and did, breach their

fiduciary duties to Mills. Under Texas law, “[t]he elements of

breach of fiduciary duty are (1) the existence of a fiduciary

relationship, and (2) a breach of duty by the fiduciary (3)

that causes damages to the client or improper benefit to

the fiduciary.” First State Bank of Mesquite v. Bellinger &

Dewolf, LLP, 342 S.W.3d 142, 150 (Tex. App.—El Paso

2011, no pet.). Each defendant's arguments for dismissal are

considered in turn.

Dexel argues that Johnston has not pleaded a plausible causal

link between his conduct and harm to Mills. Dexel argues

that the fact that he was discharged as Mills's guardian more

than a year before she died means that he is not liable for her

death. He insists that the fact that the court (rather than Dexel)

appointed Lott as a successor guardian breaks any causal link

between his acts and Mills's deterioration. These arguments

are unpersuasive. Johnston's complaint, construed as a whole

and taking all factual allegations as true, plausibly alleges

that before Dexel's discharge as guardian, he breached his

duties to Mills by repeatedly disregarding warnings about the

Silverado nursing home's alleged mistreatment of Mills and

about Mills's deteriorating physical condition and by ending

Mills's physical therapy. (Docket Entry No. 10 at 12-13).

Johnston alleges that, as a result of Dexel's actions, Mills

suffered broken bones and a rapid and preventable decline

in her physical condition that left her unable to feed herself,

which contributed to her malnutrition. (Id.). Dexel's causation

argument, which focuses on events after he was discharged

and on Mills's death, does not address these alleged breaches

and injuries.

Dexel also argues that Johnston's failure to link her factual

allegations to the elements of a claim for breach of fiduciary

duty means that the complaint fails. Dexel's complaint stems

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from the structure of Johnston's complaint, which includes an

extensive and sometimes muddled set of factual allegations

as to each defendant, and in a different section, gives a

conclusory recitation of the elements of the causes of action.

Dexel is correct that Johnston's complaint is not a model of

clear pleading. Johnston must clarify the relationship between

her factual allegations and the elements of the causes of action

she asserts in any future amended complaint. In each cause of

action, Johnston should state the specific factual allegations

she believes support a given element of her claim. Johnston's

current approach requires the defendants and the court to sift

through her lengthy complaint looking for factual allegations

to map onto the elements of a cause of action. This violates the

requirement that a complaint provide a short, plain, and clear

statement of the claim. Nonetheless, under applicable law,

the court must “view[ ] the complaint as a whole, rather than

any one statement in isolation.” Causey v. Sewell Cadillac–

Chevrolet, Inc., 394 F.3d 285, 289 (5th Cir. 2004). The court

has already explained why, viewed as a whole, the complaint

states a breach of fiduciary duty claim against Dexel.

*10 Finally, Dexel claims that self-dealing is a critical part of

a claim for breach of fiduciary duty. He argues that a plaintiff

must plausibly allege that the fiduciary personally benefitted

from the breaches of his or her duties. In support, he cites

Kimleco Petroleum, Inc. v. Morrison & Shelton, 91 S.W.3d

921, 923 (Tex. App.—Fort Worth 2003, pet. denied). That

case does state the proposition that an improper benefit is part

of a breach of fiduciary duty claim. But this does not appear

to be the general rule in Texas cases. Instead, the persuasive

weight of authority is that either an injury to the party to

whom the fiduciary duties are owed or an improper benefit

to the fiduciary is sufficient to state a claim. E.g., Anderton

v. Cawley, 378 S.W.3d 38, 51 (Tex. App.—Dallas 2012, no

pet.); PAS, Inc. v. Engel, 350 S.W.3d 602, 610 (Tex. App.

—Houston [14th Dist.] 2011, no pet.); Jones v. Blume, 196

S.W.3d 440, 447 (Tex. App.—Dallas 2006, pet. denied).

Kimleco's discussion focuses on claims against attorneys. The

court drew a line between legal malpractice claims and breach

of fiduciary duty claims against an attorney by pointing to

self-dealing as an important distinguishing feature. Other

cases that recite propositions similar to Kimleco similarly

focus on “the attorney-client context ....” E.g., Neese v. Lyon,

479 S.W.3d 368, 386 (Tex. App.—Dallas 2015, no pet.).

It is interesting to note that, even though Neese states that

“a fiduciary-duty claim focuses on whether the attorney's

conduct involved his or her integrity and fidelity, and whether

the attorney obtained an improper benefit from representing

the client,” the case's statement of the elements acknowledges

that “injury to the plaintiff” is sufficient to make out a claim.

Id. Texas law does not appear to require an improper benefit

to the fiduciary to state a claim that the fiduciary breached

his duties. Johnston has adequately pleaded an injury to Mills.

Dexel's arguments fail.

Lott advances several arguments. First, she argues that issue

preclusion bars Johnston's claim for breach of fiduciary duty.

Lott points to the order discharging her from service as Mills's

guardian. The probate court found that Lott had fulfilled her

duties in good faith and made decisions based on proper

medical advice, and stated that Lott should be discharged

from her duties with no further liability. (Docket Entry No.

24-1). Issue preclusion is an affirmative defense on which

Lott bears the burden. Issue preclusion, or collateral estoppel,

bars

... a party from litigating an issue already raised in an earlier

action between the same parties only if: (1) the issue at

stake is identical to the one involved in the earlier action;

(2) the issue was actually litigated in the prior action; and

(3) the determination of the issue in the prior action was a

necessary part of the judgment in that action.

Petro–Hunt, L.L.C. v. United States, 365 F.3d 385, 397

(5th Cir. 2004) (footnotes and citation omitted). “Collateral

estoppel does not preclude litigation of an issue unless both

the facts and the legal standard used to assess them are the

same in both proceedings.” Copeland v. Merrill Lynch & Co.,

Inc., 47 F.3d 1415, 1422 (5th Cir. 1995) (citation omitted).

Lott provides neither argument nor authority explaining why

the probate court's discharge order satisfies these conditions.

It is not clear whether Johnston was a party to the prior

proceeding in the relevant sense (“an earlier action between

the same parties”). Lott has not demonstrated that the issue

of whether she executed her duties in good faith involved

the same issues, facts, or legal standard as the present action.

Nor has she shown that the issue was actually litigated in the

probate court or that it was necessary to the order discharging

her as Mills's guardian. Lott is free to reurge this argument

at a later stage in the proceedings. And Dexel, to the extent

that he believes that his own discharge order has a preclusive

effect here, may also raise this defense at a later stage in the

proceedings. The present record, however, does not justify

dismissing the claims against either Lott or Dexel on the basis

of preclusion.

*11 Lott next argues that the complaint does not adequately

allege a causal link between her actions as guardian and the

harms Mills allegedly suffered during Lott's guardianship.

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This argument is unpersuasive. The complaint alleges that

Lott disregarded medical advice that she take steps to see that

Mills received certain care; obstructed Johnston's efforts to

get Mills emergency care during a medical crisis; disregarded

evidence that the Hamptons nursing home was neglecting

Mills's medical needs; and inappropriately relied on a do-notresuscitate order to withhold food from Mills, contributing to

her death. (Docket Entry No. 10 at 17-19). These allegations

state a claim for a breach of fiduciary duty. The breach of

fiduciary duty claim against Lott may proceed.

Johnston also alleges civil-conspiracy liability for these

breaches of fiduciary duty. “A civil conspiracy is a

combination of two or more persons to accomplish an

unlawful purpose or to accomplish a lawful purpose by

unlawful means.” Goldstein v. Mortenson, 113 S.W.3d 769,

778-79 (Tex.App.—Austin 2003, no pet.) (citing Massey v.

Armco Steel Co., 652 S.W.2d 932, 934 (Tex.1983)); see also

Schlumberger Well Surveying Corp. v. Nortex Oil & Gas

Corp., 435 S.W.2d 854, 856 (Tex. 1968). A civil conspiracy

claim involves two or more persons, who agreed on an object

to be accomplished or a course of action; the commission

of one or more unlawful, overt acts; and damages as the

proximate result. Juhl v. Airington, 936 S.W.2d 640, 644

(Tex. 1996) (quoting Massey, 652 S.W.2d at 934). “Once a

conspiracy is proven, each co-conspirator ‘is responsible for

all acts done by any of the conspirators in furtherance of the

unlawful combination.’ ” Carroll v. Timmers Chevrolet, 592

S.W.2d 922, 926 (Tex.1979) (quoting State v. Standard Oil

Co., 130 Tex. 313, 329, 107 S.W.2d 550, 559 (1937)). “[C]ivil

conspiracy requires specific intent. For a civil conspiracy to

arise, the parties must be aware of the harm or wrongful

conduct at the inception of the combination or agreement.”

Triplex Commc'ns, Inc. v. Riley, 900 S.W.2d 716, 719 (Tex.

1995). A common intent to accomplish a given goal, plus a

tort in furtherance of that goal, are not enough. The parties

must have agreed to accomplish an unlawful goal or to

accomplish a lawful goal by unlawful means. Juhl, 936

S.W.2d at 644.

The conspiracy allegations fail. Even assuming that the other

elements are met, Johnston has not adequately alleged the

required agreement, or meeting of the minds. Johnston's only

factual allegation on this point is that, on September 17, 2013,

Dexel, Lott, Comstock, and Judge Butts had a “secret, ex

parte meeting/hearing ... in which Judge Butts appointed Lott

as successor guardian to Dexel ....” (Docket Entry No. 10

at 14, 17). This is far from a factual allegation that those

present at that meeting reached an agreement to deny Mills

proper medical care and hasten her death. Nor is it a basis

from which the court could infer such an agreement. The

claim for conspiracy to breach fiduciary duties is dismissed,

without prejudice and with leave to amend. To survive a

subsequent motion to dismiss, Johnston must allege specific

facts that, if proven, would support a plausible inference that

the defendants entered into an agreement with the specific

intent to pursue an unlawful goal or to unlawfully pursue a

lawful goal relating to Mills's care.

b. The Claim For Intentional Infliction of Emotional

Distress

To recover damages for intentional infliction of emotional

distress, a plaintiff must plead factual allegations showing

that: (1) the defendant acted intentionally or recklessly; (2)

the defendant's conduct was extreme and outrageous; (3) the

defendants actions caused the plaintiff emotional distress; and

(4) the resulting emotional distress was severe. Extreme and

outrageous conduct is conduct “ ‘so outrageous in character,

and so extreme in degree, as to go beyond all possible bounds

of decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community.’ ” Twyman v. Twyman,

855 S.W.2d 619, 621 (Tex.1993). “Generally, liability for

intentional infliction of emotional distress has only been

found in those cases in which a recitation of the facts to

an average member of the community would lead him to

exclaim, ‘Outrageous! ’ ”Foye v. Montes, 9 S.W.3d 436,

440 (Tex. App.—Houston [14th Dist.] 1999). “The mere fact

that a defendant's conduct is tortious or otherwise wrongful

does not, standing alone, necessarily render it ‘extreme

and outrageous.’ ” Bradford v. Vento, 48 S.W.3d 749, 758

(Tex. 2001). Whether a defendant's conduct is “extreme and

outrageous” is a matter of law for the court to decide. Id.;

see also Brewerton v. Dalrymple, 997 S.W.2d 212, 216 (Tex.

1999).

*12 The defendants argue that the complaint allegations

do not describe behavior that any civilized person would

regard as “outrageous” or “beyond all possible bounds of

decency.” Therefore, they say, Johnston has not adequately

alleged a claim for intentional infliction of emotional distress.

Johnston did not respond to this argument. Her response to the

motions to dismiss does not address her intentional infliction

of emotional distress claim at all. Johnston appears to have

abandoned the claim. Black v. N. Panola Sch. Dist., 461 F.3d

584, 588 n.1 (5th Cir. 2006). Even assuming that Johnston

still intends to press the claim, the defendants' argument is

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persuasive. The allegations against the defendants, taken as

true, clearly allege tortious and blameworthy acts. But that

is not “extreme and outrageous.” The complaint does not

allege the level of depraved or heinous conduct necessary

to impose liability for intentional infliction of emotional

distress. The claim is dismissed, without prejudice and with

leave to amend.

c. The Wrongful Death Claim

“In a wrongful death action” under Texas law, “a plaintiff

must show (1) wrongful or negligent conduct of the

defendant, and (2) the proximate cause resulting in death.”

Schippers v. Mazak Properties, Inc., 350 S.W.3d 294, 298

(Tex. App.—San Antonio 2011). The defendants' arguments

focus on causation.

Dexel argues that the complaint does not allege proximate

cause for two reasons: because he was discharged over

a year prior to Mills's death, and because the complaint

affirmatively alleges that it was Lott who caused Mills's

death by improperly relying on a do-not-resuscitate order to

prevent medical personnel from feeding Mills, causing her

to starve to death. Johnston's brief response—unaccompanied

by additional argument or authority—is that she does not

allege “that Dexel, himself, starved Mills to death—he

simply recruited Lott to slide into his place and let her take

over.” (Docket Entry No. 25 at 24).

Texas law supports Dexel's argument. “Even where a

defendant's actions would be considered a substantial factor

and a but-for cause of harm, the defendant may be relieved of

liability where there is a ‘superseding cause’—a third party or

a force that is beyond the defendant's anticipation or control,

which intervenes and destroys the causative chain between

the defendant and the harm.” Walters v. Allways Auto Grp.,

Ltd., 484 S.W.3d 219, 22-26 (Tex. App.—Corpus Christi

2016). An intervening tort by a third party is typically such

a superseding cause. The critical inquiry is whether the third

party's actions were foreseeable. E.g., Davis-Lynch, Inc. v.

Asgard Techs., LLC, 472 S.W.3d 50, 64 (Tex. App.—Houston

[14th Dist.] 2015), reh'g overruled (Aug. 27, 2015); Dyess

v. Harris, 321 S.W.3d 9, 14 (Tex. App.—Houston [1st Dist.]

2009).

Johnston's argument that there is no superseding cause

because Lott simply continued Dexel's neglect is undermined

by her complaint allegations. Johnston repeatedly, explicitly,

and affirmatively alleges that Mills died because Lott denied

her food, causing her to starve to death. (Docket Entry No.

10 at 18-19; 38; 40; 46-47). There is no allegation, much less

a well-pleaded and plausible allegation, that Lott's alleged

action was a continuation of Dexel's alleged misconduct

that was foreseeable to Dexel. The wrongful death claim

against Dexel is dismissed, without prejudice and with leave

to amend. To survive a subsequent motion to dismiss, the

amended complaint must allege specific facts about what

Dexel knew about Lott or the circumstances that would make

Lott's decision, months later, to withhold food foreseeable to

Dexel.

Lott similarly argues that the complaint does not plausibly

allege that she proximately caused Mills's death. This

argument is unpersuasive given the complaint's repeated,

specific, and detailed allegations that Mills's death was a

direct result of Lott's decision to deny Mills food. (Docket

Entry No. 10 at 18-19; 38; 40; 46-47). That is a factual

allegation, not a legal conclusion. On a motion to dismiss, it

must be taken as true. Lott's causation argument fails.

*13 Lott also advances what appears to be a limitations

argument. She argues that, when “a decedent's own cause

of action was barred by governmental immunity, or statute,

or release, or res judicata, or any other affirmative defense,

there is no wrongful death action to accrue,” and urges that

the wrongful death claim against her must be dismissed.

(Docket Entry No. 24 at 18). If Lott is arguing that the

order discharging her as guardian is preclusive as to the

wrongful death claim, that argument fails for the reasons

Lott's similar preclusion argument addressed earlier failed.

If Lott is arguing that Mills could not have sued her, the

basis for that argument is unclear at best. Second, citing

the Texas medical malpractice statute, Lott argues that the

wrongful-death cause of action accrued at the time of the

alleged tortious conduct, not when Mills died. As a result,

Lott argues, the claim is untimely because it was filed more

than two years after Lott allegedly began denying Mills food.

This argument is also unpersuasive. Lott cites § 73.251 of

the Texas Civil Practice & Remedies Code, but this statute

applies only to tort claims against healthcare providers and

related professionals. The statute does not purport to apply to

tort claims against guardians. The wrongful-death claim that

Johnston asserts accrued on the date Mills died—September

27, 2014—and was filed in Texas state court exactly two

years later—September 27, 2016. The claim is timely under

Texas law. Union Carbide Corp. v. Synatzske, 438 S.W.3d 39,

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63 (Tex. 2014) (the statute of limitations for wrongful death

actions is two years).

The wrongful death claim against Lott is adequately pleaded

and can proceed.

d. “Ultra Vires” Acts

The final heading in Johnston's complaint is “Ultra Vires

Illegal, Criminal, and Wrongful Acts.” (Docket Entry No.

10 at 46). The heading is followed by two and a half pages

of vague allegations that the defendants' actions amounted

to: criminal injury to the elderly; unauthorized practice of

medicine and pharmacy; and criminal recklessness. The

complaint does not allege any specifics as to the statutes

or regulations that the defendants' conduct violated, identify

any private causes of action stemming from the asserted

violations, identify the elements of any causes of action, or

plead specific facts plausibly alleging a cause of action. To

the extent that Johnston intended to assert any specific cause

of action against a particular defendant in this section, the

claim is dismissed for failure to state a claim. The dismissal

is without prejudice and with leave to amend.

IV. Conclusion

For the reasons stated in this opinion, the defendants' motions

to dismiss are granted in part and denied in part. The following

claims are dismissed with prejudice:

• all claims against Judge Christine Butts and Sherry Fox

(save that Johnston may amend her complaint to allege a

claim under Section 1201.003 of the Texas Estate Code

on Judge Butts's bond);

• all claims under 42 U.S.C. § 1983 against David Dexel,

Ginger Lott, GSL Care Management, LLC, and Clarinda

Comstock.

The following claims are dismissed without prejudice and

with leave to amend:

• the claims under § 1983 against Harris County;

• the claims for disability discrimination and retaliation

under the Americans with Disabilities Act and the

Rehabilitation Act;

• all of the Texas-law claims against Harris County and

Clarinda Comstock;

• the claim for civil conspiracy to breach fiduciary duties;

• the claim for intentional infliction of emotional distress;

• the claim for wrongful death against David Dexel; and

• any claims that Johnston intended to assert for fraud,

defamation, violation of statutory duties, or commission

of “ultra vires” illegal acts.

The claim for breach of fiduciary duty is adequately pleaded

as to Dexel and Lott, and may proceed. The claim for

wrongful death is adequately pleaded as to Lott, and may also

proceed.

Any amended complaint must be filed by September 18,

2017.

All Citations

Not Reported in Fed. Supp., 2017 WL 11612500

Footnotes

1 All parties appear to treat Lott and GSL Care Management as interchangeable. Lott and GSL filed a joint motion to

dismiss, and the motion does not make any effort to distinguish the two entities (one natural, one legal) from each other

for liability purposes. This opinion refers to Lott and GSL collectively as “Lott.”

2 In addition to the list of claims that follows, the introduction to Johnston's complaint makes a passing reference to a cause

of action for fraud. However, that is the only reference to fraud; it is not identified or pleaded against any defendant at

any other point in the complaint. A brief mention in an introductory paragraph, unaccompanied by detailed pleading in

the body of the complaint, is not sufficient to state a claim for relief. To the extent that Johnston intended to plead a fraud

claim, it is dismissed without prejudice. The complaint contains similar passing references to defamation (in the form of

slander or libel), without formally asserting a cause of action for defamation or pleading facts supporting the elements of

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that cause of action. To the extent that Johnston intended to plead a cause of action for defamation, it too is dismissed

without prejudice.

3 This cause of action is a bare heading, reading in its entirety “Seventh Cause of Action - Conspiracies to Violate Civil

Rights - 42 U.S.C. § 1985.” It is titled the seventh cause of action rather than the sixth because earlier in the complaint, the

numbering jumped. Other than this heading, the complaint does not evince an intent to bring a claim under this statute.

To the extent that Johnston intended to press a claim under § 1985, it is dismissed, without prejudice and with leave to

amend, for failure to state a claim.

4 Once again, this cause of action is a bare heading without accompanying factual allegations as to the elements of a

claim. The complaint does not identify what statutory duties were breached or which defendants breached them. To the

extent Johnston intended to plead a claim for the breach of some unidentified statutory duty, the claim is dismissed,

without prejudice and with leave to amend.

End of Document © 2024 Thomson Reuters. No claim to original U.S.

Government Works.

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Only the Westlaw citation is currently available.

United States District Court, N.D. Texas, Dallas Division.

Leighandra WARE and

Patrick Estriplet, Plaintiffs,

v.

BANK OF AMERICA, NATIONAL

ASSOCIATION, et al., Defendants.

Civil Action No. 3:21-CV-2824-M-BH

|

Signed August 28, 2023

Attorneys and Law Firms

C. Daniel Herrin, Herrin Law PLLC, Dallas, TX, for

Plaintiffs.

Matthew David Durham, McGuireWoods LLP, Dallas, TX,

Taylor William Meek, Maynard Nexsen, PC, Dallas, TX, for

Defendant Bank of America National Association.

Branch M. Sheppard, Berenice Medellin Pruettiangkura,

Galloway Johnson Tompkins Burr & Smith, Houston, TX, for

Defendant Specialized Loan Servicing LLC.

Referred to U.S. Magistrate Judge1

FINDINGS, CONCLUSIONS, AND

RECOMMENDATION

IRMA CARRILLO RAMIREZ, UNITED STATES

MAGISTRATE JUDGE

*1 Based on the relevant filings, evidence, and applicable

law, Bank of America, N.A.'s Motion for Summary Judgment,

filed January 19, 2023 (doc. 24), should be GRANTED and

Bank of America, N.A.'s Objections to and Motion to Strike

Plaintiffs' Summary Judgment Evidence, filed February 23,

2023 (doc. 43) is DENIED as moot.

I. BACKGROUND

This dispute arises out of two mortgage loans obtained for

the purchase of real property located at 4939 Eyrie Court,

Grand Prairie, Texas 75052 (Property). (doc. 17 at 2.)2 On

March 22, 2007, Leighandra Ware (Borrower) executed an

Adjustable Rate Note (First Note) in favor of First Franklin

Financial Corp. (Lender) for a loan in the principal amount

of $221,150.00 (First Mortgage). (doc. 20-25.) Borrower and

Patrick Estriplet (collectively Plaintiffs) contemporaneously

executed a deed of trust (First Deed of Trust) that granted a

security interest in the Property to Lender to secure repayment

of the First Note. (Id. at 26-44.) On the same day, Borrower

also executed a Fixed Rate Note (Second Note) in the amount

of $55,300.00 (Second Mortgage) payable to Lender. (Id.

at 59-62.) Plaintiffs contemporaneously executed a Deed of

Trust-Secondary Lien (Second Deed of Trust) that granted a

security interest in the Property to Lender to secure repayment

under the Second Note. (Id. at 63-79.)

On or about October 1, 2010, Lender transferred servicing of

both mortgages to BAC Home Loans Servicing, LP, a Bank

of America, N.A. company (Defendant). (docs. 25 at 80; 35 at

104.) According to Plaintiffs, they had phone conversations

with Defendant about both mortgages in or around May 2011.

(doc. 35 at 4, 7.) Defendant's agent told them that they would

receive a loan modification on the First Mortgage, reducing

the principal amount by over $60,000, if they maintained

“good status” during a trial period, and that the Second

Mortgage did not need a loan modification because it “was

already forgiven.” (Id.) The agent explained that they were

receiving both debt forgiveness and debt reduction as part

of a settlement with the Federal Government. (Id.) After this

conversation, Plaintiffs stopped receiving monthly mortgage

statements associated with the Second Mortgage, and it was

deleted from Borrower's credit report. (Id.)

On May 25, 2011, Defendant sent Borrower a letter (First

Notice of Servicing Transfer) notifying her that the servicing

of the Second Mortgage would be transferred to Carrington

Mortgage Services, LLC (Carrington) effective June 1,

2011. (doc. 25 at 82-83.) On December 30, 2011, Plaintiffs

received a loan modification on the First Mortgage and

executed a Home Affordable Modification Agreement (Loan

Modification). (Id. at 45-58.) On or about September 17,

2015, a letter (Second Notice of Servicing Transfer) was sent

to Borrower stating that the servicing of the Second Mortgage

had been transferred from Carrington to Specialized Loan

Servicing LLC (SLS) effective September 11, 2015. (doc. 35

at 124-30.) Beginning in or around 2021, SLS sent notices to

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Plaintiffs attempting to collect on the Second Mortgage. (Id.

at 4, 7.)

*2 On October 6, 2021, Plaintiffs sued Defendant and SLS in

state court. (doc. 1-2 at 6-59.) After the lawsuit was removed

to federal court, Plaintiffs filed their first amended complaint

on June 30, 2022. (See doc. 17.) They assert claims against

Defendant for violations of the Fair Debt Collection Practices

Act (FDCPA) and the Fair Credit Reporting Act (FCRA) and

for fraud, breach of contract, and promissory estoppel. (Id. at

11-20.)

On January 19, 2023, Defendant moved for summary

judgment on all of Plaintiffs' claims against it. (doc. 24).

Plaintiffs responded on February 9, 2023, and Defendant

replied on February 22, 2023. (docs. 33-35, 40.) On February

23, 2023, Defendant moved to strike portions of Plaintiffs'

summary judgment evidence. (doc. 43.) Plaintiff responded

on March 16, 2023, and Defendant replied on March 30, 2023.

(docs. 45-47.)

II. EVIDENTIARY OBJECTIONS

Defendant objects to and moves to strike portions of Plaintiffs'

affidavits offered in support of their response to the motion

for summary judgment. (doc. 43.) Because the objected

statements, even if considered, do not affect the disposition

of the pending motion for summary judgment, Defendant's

objections are OVERRULED and its motion to strike is

DENIED as moot. See Continental Casualty Co. v. St. Paul

Fire & Marine Ins. Co., 2006 WL 984690, at *1 n. 6

(N.D. Tex. Apr. 14, 2006) (overruling as moot objections to

evidence that was not considered by the court in deciding

motion for summary judgment).

III. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when the pleadings and

evidence on file show that no genuine issue exists as to any

material fact and that the moving party is entitled to judgment

as a matter of law. Fed. R. Civ. P. 56(a). “[T]he substantive law

will identify which facts are material.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of

material fact exists “if the evidence is such that a reasonable

jury could return a verdict for the non-moving party.” Id.

The movant makes a showing that there is no genuine issue of

material fact by informing the court of the basis of its motion

and by identifying the portions of the record that reveal there

are no genuine material fact issues. Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986). If the movant bears the burden of

proof on an issue, it must “establish beyond peradventure all

of the essential elements of the claim or defense.” Guzman

v. Allstate Assurance Co., 18 F.4th 157, 160 (5th Cir. 2021)

(quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th

Cir. 1986)) (emphasis original). The moving party can also

meet its summary judgment burden by “pointing out to the

district court [ ] that there is an absence of evidence to

support the nonmoving party's case.” Celotex, 477 U.S. at

325 (internal quotation omitted). There is “no genuine issue

as to any material fact [where] a complete failure of proof

concerning an essential element of the nonmoving party's case

necessarily renders all other facts immaterial.” Id. at 323.

Once the movant meets its summary judgment burden, the

non-movant must then direct the court's attention to evidence

in the record sufficient to establish that there is a genuine

issue of material fact for trial. Id. at 324. It must go beyond

its pleadings and designate specific facts to show there is

a genuine issue for trial. Id.; Anderson, 477 U.S. at 249.

3

Rule 56 imposes no obligation “to sift through the record in

search of evidence to support a party's opposition to summary

judgment.” Adams v. Travelers Indem. Co., 465 F.3d 156, 164

(5th Cir. 2006) (quoting Ragas v. Tenn. Gas Pipeline Co.,

136 F.3d 455, 458 (5th Cir. 1998)). Parties must “identify

specific evidence in the record” supporting challenged claims

and “articulate the precise manner in which that evidence

supports [those] claim[s].” Ragas, 136 F.3d at 458 (citing

Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994)). While

all of the evidence must be viewed in a light most favorable

to the motion's opponent, Anderson, 477 U.S. at 255 (citing

Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)),

neither conclusory allegations nor unsubstantiated assertions

satisfy the non-movant's summary judgment burden. Little

v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en

banc); Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.

1992).

A. Common Law Fraud

*3 Defendant moves for summary judgment on Plaintiffs'

fraud claim on the ground that it does not comply with Rule

9(b)'s heightened pleading standard. (doc. 25 at 8.)

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In Texas,4 the elements of common law fraud are: (1) the

defendant made a representation to the plaintiff; (2) the

representation was material; (3) the representation was false;

(4) when the defendant made the representation, the defendant

knew it was false or made the representation recklessly and

without knowledge of its truth; (5) the defendant made the

representation with the intent that the plaintiff act on it;

(6) the plaintiff relied on the representation; and (7) the

representation caused the plaintiff injury. Shandong Yinguang

Chem. Indus. Joint Stock Co., Ltd. v. Potter, 607 F.3d 1029,

1032-33 (5th Cir. 2010).

Rule 9(b) contains a heightened pleading standard and

requires a plaintiff to plead the circumstances constituting

fraud with particularity. See Fed. R. Civ. P. 9(b); City of

Clinton, Ark. v. Pilgrim's Pride Corp., 632 F.3d 148, 153

(5th Cir. 2010). “[A]rticulating the elements of fraud with

particularity requires a plaintiff to specify the statements

contended to be fraudulent, identify the speaker, state when

and where the statements were made, and explain why the

statements were fraudulent.” Williams v. WMX Techs., 112

F.3d 175, 177 (5th Cir. 1997). “Put simply, Rule 9(b) requires

‘the who, what, when, where, and how’ to be laid out” with

respect to a fraud claim. Benchmark Electronics, Inc. v. J.M.

Huber Corp., 343 F.3d 719, 724 (5th Cir. 2003) (internal

quotations omitted). A dismissal for failure to plead fraud

with particularity in accordance with Rule 9(b) is treated the

same as a Rule 12(b)(6) dismissal for failure to state a claim.

McCall v. Genentech, Inc., No. 3:10-CV-1747-B, 2011 WL

2312280, at *3 (N.D. Tex. June 9, 2011) (citing Lovelace v.

Software Spectrum Inc., 78 F.3d 1015, 1017 (5th Cir. 1996)).

“[W]hile ‘failure to state a claim usually warrants dismissal

under Rule 12(b)(6),’ it may also serve as a basis for summary

judgment.” Martin v. Lennox Int'l Inc., 342 F. App'x 15, 17

(5th Cir. 2009) (quoting Whalen v. Carter, 954 F.2d 1087,

1098 (5th Cir. 1992)). When a “motion for summary judgment

only challenge[s] the sufficiency of the plaintiffs' pleadings,

the motion should [be] evaluated much the same as a 12(b)

(6) motion to dismiss.” Ashe v. Corley, 992 F.2d 540, 544 (5th

Cir. 1993) (citing Whalen, 954 F.2d at 1098); see also Pruitt

v. Bank of New York Mellon, No. 3:15-CV-2359-L, 2016 WL

11258228, at *10 (N.D. Tex. Nov. 30, 2016), adopted in part

and rejected in part by 2017 WL 33383 (N.D. Tex. Jan. 3,

2017) (“Courts routinely find that an attack on the pleadings

on a motion for summary judgment shall be ruled on as if

the plaintiff filed a motion to dismiss even where the parties

have presented evidence to support the claim.”) (citing cases).

“[B]oth standards reduce to the same question, specifically,

if, accepting all alleged facts as true, the plaintiffs' complaint

nonetheless failed to state a claim.” Taplin v. Wells Fargo

Bank, N.A., No. 3:17-CV-3404-M-BN, 2018 WL 6933153, at

*6 (N.D. Tex. Nov. 28, 2018), adopted by 2019 WL 112103

(N.D. Tex. Jan. 4, 2019) (citation and internal quotation

omitted).

*4 Here, Plaintiffs allege that Defendant made

representations to them that the Second Mortgage was

“charged off” and they no longer needed to make payments,

and it subsequently stopped sending mortgage statements on

the Second Mortgage and removed that mortgage from their

credit reports. (doc. 17 at 12.) They also allege that when the

First Mortgage was modified in 2011, Defendant told them

the Second Mortgage did not need to be modified because

it had been “charged off” and payments were no longer

required on it. (Id.) They allege that Defendant's “acts were

done maliciously, oppressively, deliberately, with the intent to

defraud, and in reckless disregard of [their] rights and wellbeing so that [it] could enrich itself.” (Id.)

While the first amended complaint nominally lays out the

necessary elements of a common law fraud claim in Texas,

it fails to include the specifics of “the who, what, when,

where, and how” required under Rule 9(b). See Benchmark

Electronics, 343 F.3d at 724. It also fails to allege any

facts to support the claim that Defendant had knowledge

or acted recklessly. See Dorsey v. Portfolio Equities, Inc.,

540 F.3d 333, 339 (5th Cir. 2008) (“[S]imple allegations that

defendants possess fraudulent intent will not satisfy Rule

9(b) ... [because] the plaintiffs must set forth specific facts

supporting an inference of fraud[,] ... such as identify[ing]

circumstances that indicate conscious behavior on the part

of the defendants.”) (citations omitted) (emphasis original).

Because Plaintiffs have failed to meet the heightened pleading

requirement of Rule 9(b), summary judgment should be

granted in Defendant's favor with respect to their fraud claim.

See Whalen, 954 F.2d at 1098 (upholding summary judgment

on fraud claim for failure to comply with Rule 9(b), noting

that the failure to state a claim is the functional equivalent

of failure to raise a genuine issue of material fact); see, e.g.,

Lopez v. Wells Fargo Bank, N.A., No. 5:18-CV-44, 2020 WL

224485, at *4 (S.D. Tex. Jan. 14, 2020) (granting summary

judgment motion on fraud claim that did not comply with

Rule 9(b)); Valenzuela v. Bank of New York Mellon, No. CV

B-18-36, 2019 WL 5400902, at *11-12 (S.D. Tex. June 28,

2019), adopted by 2019 WL 5401020 (S.D. Tex. Oct. 22,

2019), aff'd sub nom. by 811 F. App'x 902 (5th Cir. 2020)

(“Accordingly, summary judgment for Defendants is proper

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where Plaintiffs fail to meet the Rule 9(b) standard, in that

Plaintiffs' fail to clearly set out the fraudulent statements made

by BONY Mellon.”).5

B. Promissory Estoppel

Defendant moves for summary judgment on Plaintiffs'

promissory estoppel claim on the ground that it is barred by

the statute of frauds. (doc. 25 at 9.)

Although normally a defensive theory, promissory estoppel

is also available as a cause of action to a promisee who

has reasonably relied to his detriment on an otherwise

unenforceable promise. See Hurd v. BAC Home Loans

Servicing, LP, 880 F. Supp.2d 747, 761 (N.D. Tex. 2012);

Kelly v. Rio Grande Computerland Grp., 128 S.W.3d 759, 769

(Tex.App.—El Paso 2004, no pet.). A claim for promissory

estoppel must establish the following: (1) a promise; (2)

reliance thereon that was foreseeable to promissor; and

(3) substantial reliance by promisee to her detriment. See

McDonald v. Deutsche Bank Nat'l Trust Co., No. 3:11-

CV-2691-B, 2012 WL 2122168, at *5 (N.D. Tex. June 11,

2012). “Under Texas law, promissory estoppel requires that

‘the agreement that is the subject of the promise must comply

with the statute of frauds. That is, the agreement must be in

writing at the time of the oral promise to sign it.’ ” Sullivan v.

Leor Energy, LLC, 600 F.3d 542, 549 (5th Cir. 2010) (quoting

Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429, 438 (Tex.

App.—Dallas 2002, pet. denied)). An agreement involving a

loan exceeding $50,000 in value is subject to the statute of

frauds and must be in writing to be valid. See Martins v. BAC

Home Loans Servicing, L.P., 722 F.3d 249, 256 (5th Cir. 2013)

(citing Tex. Bus. & Com. Code § 26.02(b)) (“An agreement

regarding the transfer of the property or modification of a loan

must ... be in writing to be valid.”).

*5 Here, Defendant provides the Second Note, the Second

Deed of Trust, and the First Notice of Servicing Transfer letter

as summary judgment evidence. (See doc. 25 at 59-79, 82-83.)

Its evidence shows that the principal balance of the Second

Mortgage exceeded $50,000. Defendant has met its summary

judgment burden establishing that the statute of frauds applies

to any promise or agreement relating to the Second Mortgage.

See Martins, 722 F.3d at 256.

The burden now shifts to Plaintiffs to show a genuine

issue of material fact regarding whether a written agreement

promising to discharge the Second Mortgage had been entered

by the parties. They do not dispute that this mortgage

exceeded $50,000, and they do not provide evidence of a

written agreement promising a debt discharge. Rather, they

argue that their oral contract with Defendant falls within the

partial performance exception to the statute of frauds. (doc.

34 at 14.)

“Under the partial performance exception to the statute of

frauds, contracts that have been partly performed, but do

not meet the requirements of the statute of frauds, may be

enforced in equity if denial of enforcement would amount to a

virtual fraud.” Breezevale, 82 S.W.3d at 439. “ ‘Virtual fraud’

refers to a situation where the ‘party acting in reliance on the

contract has suffered a substantial detriment, for which he has

no adequate remedy,’ and application of the statute of frauds

would give the other party ‘an unearned benefit.’ ” Owens v.

Specialized Loan Servicing, L.L.C., 694 F. App'x 950, 955-56

(5th Cir. 2017) (quoting Carmack v. Beltway Dev. Co., 701

S.W.2d 37, 40-41 (Tex. App.—Dallas 1985, no writ)). “The

acts of part performance must be ‘unequivocally referable to

the agreement and corroborative of the fact that a contract

actually was made.’ ” Williams v. Wells Fargo Bank, N.A.,

560 F. App'x 233, 239 (5th Cir. 2014) (quoting Breezevale, 82

S.W.3d at 439). “Performance is only unequivocally referable

to the agreement when there is no other possible reason for

performance.” Owens, 694 F. App'x at 956. Notably, “no

Texas court has clearly stated that the partial-performance

exception applies to the loan-agreement statute of frauds.”

Montalvo v. Bank of Am. Corp., 864 F. Supp.2d 567, 592

(W.D. Tex. 2012).

Plaintiffs argue that “the execution and principle reduction to

the [First] Mortgage”, “the removal of the Second[ ] Mortgage

from [ ] [B]orrower's credit history”, and “the immediate stop

by [Defendant] to collect on the Second[ ] Mortgage and

discharge” are acts showing “partial performance” of the oral

agreement to “charge off” the Second Mortgage. (doc. 34

at 14.) These actions “do not unequivocally corroborate the

fact of any alleged oral loan modification contract.” Williams,

560 F. App'x at 239. While Plaintiffs contend that Defendant

had stopped sending mortgage statements and ceased all

collection attempts on the Second Mortgage after it orally

agreed to discharge the mortgage in May 2011, such acts are

consistent with undisputed evidence that the servicing of the

Second Mortgage was transferred from Defendant to another

mortgage servicer in June 2011. See Castillo v. Ocwen Loan

Servicing, L.L.C., 539 F. App'x 621, 624-25 (5th Cir. 2013)

(holding that district court properly concluded payments were

not unequivocally referable to terms of oral agreement as the

payments could have been made to satisfy original mortgage

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contract); Hern Family Ltd. P'ship v. Compass Bank, 863

F. Supp.2d 613, 625 (S.D. Tex. 2012) (rejecting partial

performance exception to statute of frauds where plaintiffs'

actions could have been intended to pay already existing debt

owed defendant); see also Alexander O & G, L.L.C. v. Nomad

Land & Energy Res., L.L.C., 313 F. Supp.3d 794, 803 (S.D.

Tex. 2018) (“To constitute partial performance, the actions

must unequivocally refer to the alleged agreement, such that

the actions could have been done with no other design than

to fulfill that agreement.”). Because Plaintiffs do not present

competent evidence of partial performance that “could have

been done with no other design than to fulfill the” alleged oral

agreement to discharge the Second Mortgage, they have failed

to satisfy the partial performance exception to the statute of

frauds. See Breezevale, 82 S.W.3d at 439.

*6 Plaintiffs have failed to meet their burden to show a

genuine issue of material fact as to their promissory estoppel

claim, and Defendant's motion for summary judgment as to

this claim should be granted.

C. FDCPA

Defendant moves for summary judgment on Plaintiffs'

FDCPA claim on the ground that it is not a “debt collector”

under the act. (doc. 25 at 10.)

The FDCPA “is designed ‘to eliminate abusive debt collection

practices by debt collectors.’ ” Watson v. Aurora Loan

Services LLC, No. 4:11-CV-301-BJ, 2012 WL 3594233,

at *7 (N.D. Tex. Aug. 21, 2012) (citing 15 U.S.C. §

1692(e)). It “prohibits a ‘debt collector’ from: 1) using ‘any

false, deceptive, or misleading representation or means in

connection with the collection of any debt’ as well as 2)

using ‘unfair or unconscionable means to collect or attempt

to collect any debt.’ ” Garcia v. Jenkins/Babb LLP, No. 3:11-

CV-3171-N-BH, 2012 WL 3847362, at *6 (N.D. Tex. July

31, 2012), adopted by 2012 WL 3846539 (N.D. Tex. Sept. 5,

2012) (citing 15 U.S.C. §§ 1692e and 1692f).

The FDCPA defines a debt collector as “any person ... in any

business the principal purpose of which is the collection of

any debts, or who regularly collects or attempts to collect,

directly or indirectly, debts owed or due or asserted to be

owed or due another.” 15 U.S.C. § 1692a(6). There are two

categories of debt collector—those who collect debts as the

“principal purpose” of their business and those who collect

debts “regularly.” Hester v. Graham, Bright & Smith, P.C.,

289 F. App'x 35, 41 (5th Cir. 2008). “A person may ‘regularly’

collect debts even if debt collection is not the principal

purpose of his business.” Id. “Whether a party ‘regularly’

attempts to collect debts is determined, of course, by the

volume or frequency of its debt collection activities.” Brown

v. Morris, 243 F. App'x 31, 35 (5th Cir. 2007). Notably, the

FDCPA exempts from this definition “any person collection

or attempting to collect any debt owed or due or asserted to

be owed or due another to the extent such activity ... concerns

a debt which was originated by such person.” 15 U.S.C.

§ 1692g(a)(6)(F) (emphasis added). Under this exception,

courts have concluded that “[t]he term ‘debt collector’ does

include lenders[,] ... ‘the consumer's creditors, a mortgage

servicing company, or an assignee of a debt, as long as the

debt was not in default at the time it was assigned.’ ” Gipson v.

JPMorgan Chase, No. 3:13-CV-2477-L, 2013 WL 3746003,

at *2 (N.D. Tex. July 17, 2013) (quoting Perry v. Stewart Title

Co., 756 F.2d 1197, 1208, modified on reh'g on other grounds,

761 F.2d 237 (5th Cir. 1985)).

Defendant argues that there is no evidence that it is a “debt

collector” within the meaning of the FDCPA. (doc. 25 at 10.)

Where, as here, the nonmovant bears the burden of proof,

the movant's burden may be discharged by pointing out a

complete lack of evidence to support the nonmovant's case.

See Celotex, 477 U.S. at 325. Defendant has therefore met

its summary judgment burden by showing a complete lack of

evidence establishing that it is subject to the FDCPA.

The burden now shifts to Plaintiffs to show that there is a

genuine material fact issue with respect to their FDCPA claim.

By failing to respond to Defendant's argument that it is not

a debt collector under the FDCPA, Plaintiffs have abandoned

this claim. See Arias v. Wells Fargo Bank, N.A., No. 3:18-

CV-00418-L, 2019 WL 2514998, at *7 (N.D. Tex. June 18,

2019) (“When a plaintiff fails to defend a claim in response to

a motion to dismiss or summary judgment motion, the claim is

deemed abandoned.”) (citing Black v. Panola Sch. Dist., 461

F.3d 584, 588 n.1 (5th Cir. 2006)). Plaintiffs have failed to

meet their burden to show a genuine issue of material fact as

to their FDCPA claim, and Defendant's motion for summary

judgment as to this claim should be granted.6

D. FCRA

*7 Defendant moves for summary judgment on Plaintiffs'

FCRA claim on the ground that there is no evidence that it

violated § 1681s-2(b). (doc. 25 at 12.)

“Congress enacted the FCRA in 1970 to ensure fair and

accurate credit reporting, promote efficiency in the banking

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system, and protect consumer privacy.” Safeco Ins. Co. of Am.

v. Burr, 551 U.S. 47, 52 (2007); see also Wilting v. Progressive

County Mut. Ins. Co., 227 F.3d 474, 475 (5th Cir. 2000)

(per curiam) (FCRA governs reporting of consumer credit

information and permissible uses of credit reports). Among

other things, the FCRA “require[s] that consumer reporting

agencies adopt reasonable procedures for meeting the needs

of commerce for consumer credit, personnel, insurance, and

other information in a manner which is fair and equitable

to the consumer, with regard to the confidentiality, accuracy,

relevancy, and proper utilization of such information.” 15

U.S.C. § 1681(b); see Morris v. Equifax Info. Servs., LLC, 457

F.3d 460, 465 (5th Cir. 2006). Although “the FCRA primarily

regulates consumer credit reporting agencies, the statute also

creates various obligations on ‘furnishers of information’ to

provide accurate information to consumer credit reporting

agencies.” Smith v. Nat'l City Mortgage, No. A-09-CV-881

LY, 2010 WL 3338537, at *15 (W.D. Tex. Aug. 23, 2010)

(citation omitted); 15 U.S.C. § 1681s–2. While the FCRA

does not define “furnisher of information,” courts in the

Fifth Circuit “have defined the term broadly to mean ‘an

entity [that] transmits information concerning a particular

debt owed by a consumer to a consumer reporting agency.’

” Alam v. Sky Recovery Servs., Ltd., No. Civ.A. H-08-2377,

2009 WL 693170 at *4 (S.D. Tex. Mar. 13, 2009) (quoting

Thomasson v. Bank One, 137 F. Supp.2d 721, 722 (E.D. La.

2001)).

“Under § 1681s–2(a), furnishers of information may not

knowingly provide inaccurate information to consumer

reporting agencies.” Smith, 2010 WL 3338537, at *14 (citing

15 U.S.C. § 1681s–2(a)). Once a furnisher is notified by a

consumer reporting agency that the consumer has disputed

the completeness or accuracy of information pursuant to §

1681i(a)(2), the furnisher must conduct its own investigation

with respect to the disputed item, correct any inaccuracy, and

notify the agency of the results of its investigation. 15 U.S.C.

§ 1681s–2(b). To recover against a furnisher for violations of

§ 1681s–2(b),

7

 a plaintiff must show that: (1) she disputed

the accuracy or completeness of information with a consumer

reporting agency; (2) the agency notified the furnisher of the

consumer's dispute; (3) and the furnisher failed to conduct an

investigation, correct any inaccuracies, or notify the agency

of the results of the investigation. Smith, 2010 WL 3338537,

at *15; see also 15 U.S.C. §§ 1681s–2(b), 1681i(a)(2).

*8 Defendant argues that there is no evidence that Plaintiffs

disputed the accuracy of information with a credit reporting

agency and, in turn, that a credit reporting agency provided it

notice of a dispute. (doc. 25 at 12-13.) Because Defendant has

shown a complete lack of evidence as to an essential element

of Plaintiffs' FCRA claim, it has met its summary judgment

burden. See Celotex, 477 U.S. at 325.

The burden now shifts to Plaintiffs to show evidence of

a genuine issue of fact as to whether a credit reporting

agency notified Defendant of any dispute about inaccurate

information. Because they have not responded to this

argument, they have failed to meet their summary judgment

burden on their FCRA claim. See Black, 461 F.3d at 588 n.1.

Plaintiffs therefore have not shown that there is a genuine

issue of material fact as to an essential element of a § 1681s–

2(b) claim. See Smith, 2010 WL 3338537, at *15. Defendant's

motion for summary judgment as to their FCRA claim should

be granted on this basis.

E. Breach of Contract

Defendant moves for summary judgment on Plaintiffs' breach

of contract claim on the ground that it is barred by the statute

of limitations. (doc. 25 at 15.)

“Under Texas law, a four-year statute of limitations applies

to breach of contract claims.” TIB--The Indep. BankersBank

v. Canyon Cmty. Bank, 13 F. Supp.3d 661, 668 (N.D. Tex.

2014); see also Tex. Civ. Prac. & Rem. Code § 16.051. A

cause of action for breach of contract generally accrues at the

time of the breach. Stine v. Stewart, 80 S.W.3d 586, 592 (Tex.

2002); see also Slusser v. Union Bankers Ins. Co., 72 S.W.3d

713, 717 (Tex. App.—Eastland 2002, no pet.) (“A cause of

action for breach of contract is generally regarded as accruing

when the contract is breached or when the claimant has notice

of facts sufficient to place him on notice of the breach.”).

“What constitutes a breach of contract is a question of law,

but whether the breaching conduct occurred is a question

of fact.” Matter of Dallas Roadster, Ltd., 846 F.3d 112, 127

(5th Cir. 2017). Texas law provides that the party asserting a

limitations defense “must not only establish the applicability

of the limitations statute, but must, as well, prove when the

opponent's cause of action accrued.” In re Hinsley, 201 F.3d

638, 645 (5th Cir. 2000) (quoting Intermedics, Inc. v. Grady,

683 S.W.2d 842, 845 (Tex.App.-Houston 1984, writ refused

n.r.e.)); see also KPMG Peat Marwick v. Harrison Cnty. Hous.

Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999) (“A defendant

moving for summary judgment on the affirmative defense

of limitations has the burden to conclusively establish that

defense.”).

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Here, the first amended complaint alleges that Defendant

breached the Second Deed of Trust when it “internally

accelerated” the Second Mortgage without giving Plaintiffs

notice in violation of paragraph 20, and when it failed to

provide notice of default of that mortgage in violation of

paragraph 13. (doc. 17 at 17.) Although the complaint does

not identify the time period of the alleged breaches, Defendant

argues that Plaintiffs' breach of contract claim accrued in

2011 based on the following allegation: “Last payment from

Plaintiffs was in 2007, and last conversation about the

Second Lien, or Second Loan, whereby Bank of America

represented that the debt would be charged off occurred in

2011.” (doc. 25 at 16 (quoting doc. 17 at 19).) Plaintiffs filed

suit approximately 10 years later in October 2021, which is

well after the expiration of the four-year limitations period.

See Stine, 80 S.W.3d at 592.

*9 Plaintiffs do not dispute that the alleged breaches

occurred in 2011, no otherwise respond to Defendant's

argument that the breach of contract claim is barred by

limitations. They instead allege for the first time that they

“have asserted breach of contract against the Defendants for

making false representations and partially complying with

the oral agreement which was to release Plaintiffs from any

obligation under the Secondary Mortgage.” (doc. 34 at 24.)

Because these allegations were not raised in the first amended

complaint, Plaintiffs cannot raise them for the first time in

their summary judgment response. See Cutrera v. Bd. of

Supervisors of La. State Univ., 429 F.3d 108, 113 (5th Cir.

2005) (“A claim which is not raised in the complaint but,

rather, is raised only in response to a motion for summary

judgment is not properly before the court.”); see also De

Franceschi v. BAC Home Loans Servicing, L.P., 477 F. App'x

200, 204 (5th Cir. 2012) (“[D]istrict courts do not abuse their

discretion when they disregard claims or theories of liability

not present in the complaint and raised first in a motion

opposing summary judgment.”). Defendant has carried its

burden to show that Plaintiffs' breach of contract claim

accrued outside the statute of limitations and is time-barred,

and is therefore entitled to summary judgment on this basis.8

IV. RECOMMENDATION

Defendant's motion for summary judgment should be

GRANTED, and all of Plaintiffs' claims against it should be

DISMISSED with prejudice.

SO RECOMMENDED on this 28th day of August 2023.

INSTRUCTIONS FOR SERVICE AND NOTICE OF

RIGHT TO APPEAL/OBJECT

A copy of these findings, conclusions and recommendation

shall be served on all parties in the manner provided by

law. Any party who objects to any part of these findings,

conclusions and recommendation must file specific written

objections within 14 days after being served with a copy See

28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In order to be

specific, an objection must identify the specific finding or

recommendation to which objection is made, state the basis

for the objection, and specify the place in the magistrate

judge's findings, conclusions and recommendation where the

disputed determination is found. An objection that merely

incorporates by reference or refers to the briefing before the

magistrate judge is not specific. Failure to file specific written

objections will bar the aggrieved party from appealing the

factual findings and legal conclusions of the magistrate judge

that are accepted or adopted by the district court, except

upon grounds of plain error. See Douglass v. United Servs.

Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).

All Citations

Slip Copy, 2023 WL 6071179

Footnotes

1 By Special Order No. 3-251, this foreclosure case was automatically referred for full case management.

2 Citations to the record refer to the CM/ECF system page number at the top of each page rather than the page numbers

at the bottom of each filing.

3 “The parties may satisfy their respective burdens by ‘citing to particular parts of materials in the record, including

depositions, documents, electronically stored information, affidavits or declarations, stipulations ... admissions,

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interrogatory answers, or other materials.’ ” Rooters v. State Farm Lloyds, 428 F. App'x 441, 445 (5th Cir. 2011) (citing

Fed. R. Civ. 56(c)(1)).

4 “It is a long-recognized principle that federal courts sitting in diversity cases ‘apply state substantive law and federal

procedural law.’ ” Shady Grove Orthodpedic Assoc., P.A., v. Allstate Ins. Co., 559 U.S. 393, 417 (2010) (quoting Hanna v.

Plumer, 380 U.S. 460, 465 (1965)). Here, the Property is in Texas and the Second Note provides that it will be governed

the law of the state where the Property is located. (doc. 25 at 61). The parties do not dispute that Texas law applies.

5 Because Defendant is entitled to summary judgment on the fraud claim on this basis, it is unnecessary to consider its

remaining arguments as to this claim.

6 Because Defendant is entitled to summary judgment on the FDCPA claim on this basis, it is unnecessary to consider

its remaining arguments as to this claim.

7 “The language in the FCRA plainly and unambiguously states that a consumer does not have any remedies available for a

claimed violation of § 1681s–2(a)” since it provides that such a violation “ ‘shall be enforced exclusively’ by certain federal

agencies, and federal and state officials.” Patterson v. Long Beach Mortgage Co., No. CIV.A.3:07-CV-1602-O-BH, 2009

WL 4884151, at *4 (N.D. Tex. Dec. 15, 2009) (citing 15 U.S.C. § 1681s–2(a), (d)). Because there is no such limitation

relating to § 1681s–2(b), “many federal courts in the Fifth Circuit have held that [in contrast to § 1681s–2(a),] § 1681s–

2(b) creates a private right of action.” Davis v. Sallie Mae, Inc., CIV.A. No. 3:09-CV-00821, 2009 WL 2525303, at *3 (N.D.

Tex. Aug. 18, 2009) (collecting cases). While expressly declining to rule on this issue, the Fifth Circuit has noted that

“[n]othing in [§ 1681s–2] precludes a private right of action for violation of the investigation and reporting requirements

of Section 1681s–2(b).” Young v. Equifax Credit Info. Servs., Inc., 294 F.3d 631, 639 (5th Cir. 2002).

8 Because Defendant is entitled to summary judgment on the breach of contract claim on this basis, it is unnecessary to

consider its remaining arguments as to this claim.

End of Document © 2024 Thomson Reuters. No claim to original U.S.

Government Works.

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2023 WL 6119376

Only the Westlaw citation is currently available.

United States District Court, N.D. Texas, Dallas Division.

Leighandra WARE and

Patrick Estriplet, Plaintiffs,

v.

BANK OF AMERICA, NATIONAL

ASSOCIATION, et al., Defendants.

Civil Action No. 3:21-CV-2824-M-BH

|

Signed September 18, 2023

Attorneys and Law Firms

C. Daniel Herrin, Herrin Law PLLC, Dallas, TX, for

Plaintiffs.

Matthew David Durham, McGuireWoods LLP, Dallas, TX,

Taylor William Meek, Maynard Nexsen, PC, Dallas, TX, for

Defendant Bank of America National Association.

Branch M. Sheppard, Berenice Medellin Pruettiangkura,

Galloway Johnson Tompkins Burr & Smith, Houston, TX, for

Defendant Specialized Loan Servicing LLC.

ORDER ACCEPTING FINDINGS AND

RECOMMENDATION OF THE UNITED STATES

MAGISTRATE JUDGE

BARBARA M. G. LYNN, SENIOR UNITED STATES

DISTRICT JUDGE

*1 After reviewing the Findings, Conclusions, and

Recommendation of the United States Magistrate Judge for

plain error, I am of the opinion that the Findings and

Conclusions of the Magistrate Judge are correct and they are

accepted as the Findings and Conclusions of the Court.

Bank of America, N.A.'s Motion for Summary Judgment, filed

January 19, 2023 (doc. 24), is GRANTED. By separate

judgment, all of the plaintiffs' claims against Bank of

America, National Association will be DISMISSED with

prejudice.

All Citations

Slip Copy, 2023 WL 6119376

End of Document © 2024 Thomson Reuters. No claim to original U.S.

Government Works.

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