Judge Ezra Denies Motion to Dismiss for Failure to Serve Process Because Delay Was Not Prejudicial

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Cullum v. Siemens, et al., No. SA-12-CV-49-DAE (W.D. Tex. February 10, 2014)(Ezra, D.)

In an action against the police officers involved in the shooting death of plaintiffs’ son, the Court denied defendants’ Motion to Dismiss for failure to serve process within the 120-day time period required by Federal Rule of Civil Procedure 4(m). Order at p. 1.

Plaintiffs claimed that good cause existed for their failure to timely serve process on two police officers because they had mistakenly sent the waivers for process to the wrong police department. Id. at 7. But the Court held that plaintiffs failed to satisfy Rule 4(m)’s good cause exception because they had been informed of the police officer’s correct place of employment 17 months before service was finally effectuated. Id. at 8.

Relying on Thrasher v. City of Amarillo, 709 F.3d 509, 511 (5th Cir. 2013), the Court applied a “heightened standard” to determine whether to exercise its discretion to dismiss the action for failure to serve process. Id. at 9. Under this standard, the Court was required to determine if there was “a clear record of delay” or “contumacious conduct” by the plaintiff, and if so, whether any aggravating factors supported dismiss. Id. The Court found that there was a “clear record of delay” by plaintiffs’ counsel, but that the lack of any aggravating factors warranted imposing a lesser sanction than dismissal. Id. at 8-11. The Court also noted that defendants’ counsel admitted that there had been no actual prejudice to the defendants as a result of plaintiffs’ delay. Id. at 16.

Judge Ezra Dismisses Retaliatory Claim After Finding that Admission in Deposition Was a Binding Judicial Admission

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Garcia v. EHealthScreenings, L.L.C., et al., No. SA:12-CV-1213-DAE (W.D. Tex. February 7, 2014)(Ezra, D.)

Plaintiff brought suit alleging that defendants engaged in retaliatory behavior in violation of the Fair Labor Standards Act after plaintiff inquired about her legal right to overtime pay. Order at pp. 1-3. Defendants moved for partial summary judgment, arguing that plaintiff admitted in her deposition that she “never thought that Mr. Morgese was retaliating against [her]” and this admission precludes plaintiff from pursuing any claims for retaliation against Defendant Morgese. Id. at 8. In response, plaintiff argued that her admission only demonstrates that she did not think Defendant Morgese retaliated against her after she was terminated, supporting this contention with an affidavit. Id.

In determining whether the plaintiff’s admission in her sworn deposition was a judicial admission (which is binding) or an evidentiary admission (which she may later attempt to contradict or explain), the Court relied on Martinez v. Bally’s La., Inc., 244 F.3d 474, 476–77 (5th Cir. 2001) and Johnson v. Idexx Labs., Inc., No. 3:06-CV-381-M, 2007 WL 1650416, at *1 (N.D. Tex. June 4, 2007). The Court found that the plaintiff’s testimony constituted a binding judicial admission because it was “clear, unambiguous, and intentional” and plaintiff did not provide any independent purpose explaining why she made this statement. Id. at 11-12. Therefore, the Court granted summary judgment in favor of Defendant Morgese.

A Friendly Reminder from Magistrate Judge Austin to Follow the Local Rules Regarding Motions for Attorney’s Fees

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Aqua Water Supply Corp. v. City of Elgin, et al., No. A-11-CV-885-LY (W.D. Tex. February 7, 2014)(Austin, A.)

Aqua Water Supply Corporation (Aqua) possesses a Certificate of Convenience and Necessity (CCN), which allows it to be the exclusive water service provider over a specified geographic area. Order at p. 1. After the Texas Commission on Environmental Quality (TCEQ) granted Austin Community College’s petition to have its property removed from Aqua’s CCN area, Aqua filed suit against TCEQ, seeking to overturn TCEQ’s decision on preemption grounds. Id. at 2. The Court granted TCEQ’s motion to dismiss, and TCEQ filed a motion for attorney’s fees, seeking $250,000 for defense of the federal suit and the simultaneous state court appeal of the TCEQ’s order approving ACC’s petition. Id. at 3.

Magistrate Austin first found that TCEQ’s request for attorney’s fees should be denied because TCEQ failed to comply with the court’s local rules regarding motions for attorney’s fees. Id. at 4.

TCEQ also requested attorney’s fees under 42 U.S.C. § 1988. Id. at 5. Noting that a court may grant fees under § 1988 “only where the plaintiff’s complaint was frivolous, unreasonable, or groundless, or if the plaintiff continued to litigate after the complaint was found so,” see Myers v. City of West Monroe, 211 F.3d 289, 292 (5th Cir. 2000), the magistrate recommended denial of TCEQ’s request for attorney’s fees. First, the Court found that TCEQ’s contention that Aqua’s preemption claim was frivolous lacked merit. Id. at 7. Furthermore, because the settlement between Aqua and ACC did not moot the Federal Court litigation, it was not groundless or frivolous for Aqua to continue to litigate the preemption issue in Federal Court. Id. at 8. Likewise, the Court found that Aqua’s failure to concede the merits of TCEQ’s Motion to Abstain did not render further litigation frivolous. Id. at 9. Thus, TCEQ was not entitled to attorney’s fees under § 1988.