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.

Kramer v. Lakehills South, LP, No. A:13-CV-00591-LY, slip op. (W.D. Tex. Jan. 7, 2014)(Austin, M.J.)

Wheelchair-bound with multiple sclerosis, Kramer lives in Ohio, but travels to Austin to visit her son. Slip op. at 1-2. In early 2013, she was in Austin and shopped at the Lake Hills Plaza, where she encountered a number of architectural barriers. Id. at 2. She filed suit under Title III of the Americans with Disabilities Act and the shopping center owner moved to dismiss under Rules 12(b)(1) and 12(b)(6). Magistrate Judge Austin recommended that the Rule 12(b)(1) motion be denied because it relied on the largely rejected “intent to return” standard, rather than the “deterrent effect” test for standing that the Fifth Circuit seemingly adopted in Frame v. City of Arlington, 657 F.3d 215, 236 (5th Cir. 2011), cert. denied, 132 S.Ct. 1561 (2012). Slip op. at 3-8. Magistrate Judge Austin recommended that the shopping center owner’s Rule 12(b)(6) motion be denied, citing the 16 property obstacles alleged in Kramer’s complaint. Id. at 9-12.

C.L. v. Leander ISD, No. A-12-CV-589-SS, slip op. (W.D. Tex. Dec. 20, 2013)(Austin, M.J.)

In this educational disabilities case, the issue was whether any of the claims over Leander ISD’s handling of bullying and hazing directed at a blind and autistic student warranted trial.  Slip op. at 16.  Previously, Judge Yeakel dismissed all but two causes of action.  Id. at 3.  The remaining claims—under section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act—required a showing of intentional discrimination through “‘facts creating an inference of professional bad faith or gross mismanagement.’”  Id. (quoting D.A. ex rel. Latasha A. v. Hous. Indep. Sch. Dist., 629 F.3d 450, 454 (5th Cir. 2010)).  Magistrate Judge Austin detailed each incident, each parental communication with the school district, and the district’s response.  Id. at 6-16.   Concluding that the sum total of this evidence did not suggest bad faith, gross misjudgment, or deliberate indifference, he recommended that case be dismissed on summary judgment.  Id. at 16.