Kassell v. Crafton, No. A-12-CV-669-LY, slip op. (W.D. Tex. Dec. 18, 2013)(Austin, M.J.)

Magistrate Judge Austin recommended that Judge Yeakel compel arbitration in this dispute pitting an ex-NFL player and his wife against their former investment advisor and the advisor’s employer.  Slip op. at 26.  The disputed provision required arbitration of that “any controversy between the Advisor and the Client arising out of Adviser business or this agreement . . ..”  Id. at 4. 

After noting the policy reasons favoring arbitration, Magistrate Judge Austin rejected the couple’s reading of the provision as permissive, as well as their assertion that only the “Advisor” (and not his employer) could invoke arbitration. Id. at 7-19.  He also was not persuaded by their suggestion that a separate arbitration provision was inoperative because it was in connection with a paid-off loan, and their contention that the employer waived arbitration by seeking a decision on the merits, including by filing a motion for summary judgment.  Id. at 23-26.

Karp v. Financial Recovery Srvcs, Inc., No. A-12-CV-985-LY, slip op. (W.D. Tex. Dec. 18, 2013)(Austin, M.J.)

In this debt collection case, the evidence demonstrated that (a) FRS phoned Karp at work six times, reaching her only with the first and last calls, (b) during the first, Karp remarked, “You can send me anything by letter—that would be great,” and (c) during the last, she said she could not receive calls at work.  Id. at 4-6.  The Fair Debt Collection Practices Act (FDCPA) prohibits debt collectors from (a) contacting consumers at work “if the debt collector knows or has reason to know” that the employer prohibits such calls, 15 U.S.C. § 1692c, and (b) engaging in conduct that would harass, oppress, or abuse the consumer, id., § 1692d.

Magistrate Judge Austin concluded that (a) Karp’s “anything by letter” remark was insufficient to trigger FDCPA liability for the subsequent calls, and (b) six calls fell far short of FDCPA harassment. Id. at 8-14.  The Texas Finance Code also prohibits frequent telephone calls with the intent to harass a person at the called number.  See Tex. Fin. Code § 302.302(4).  Karp agreed to “voluntarily dismiss” her claim without prejudice under the statute, but she balked at the entry of summary judgment.  Slip op. at 14.  Magistrate Judge Austin noted that courts are reluctant to grant such a request so late in the proceedings.  Therefore, he recommended summary judgment against Karp.  Id. at 16.

Henderson v. Killeen ISD, No. A-13-CV-471-LY, slip op. (W.D. Tex. Dec. 16, 2013)(Austin, M.J.)

This report and recommendation illustrates the challenging pleading hurdle a section 1983 plaintiff faces in suing a governmental employer based on an employee’s alleged misconduct.   In this case, a Killeen high school student claimed she had been roughed up twice by a school district police officer.  Slip op. at 1-2. Local governments are responsible for “‘their own illegal acts, and ‘are not vicariously liable under § 1983 for their employee’s actions.’”  Id. at 4 (quoting Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011).  Where the challenged conduct was not the result of a decision or act by the employer, the plaintiff must show that the “‘practice was so persistent and widespread as to practically have the force of law.’”  Id. (quoting Connick, 131 S.Ct. at 1359.  Magistrate Judge Austin concluded that “[t]wo isolated incidents clearly do not constitute a pattern of unconstitutional conduct sufficient to hold KISD liable under § 1983.”  Id. at 6-7.  For that reason, he recommended that Judge Yeakel grant the school district’s Rule 12(b)(6) motion.  Id. at 8.