This section 1983 litigation springs out a small protest in front of a hospital over a man’s alleged mistreatment at the hands of San Antonio Police Department officers. Slip op. at 2-3. The District Court concluded that the Texas Indigenous Council, whose structure and membership were shown to be ethereal, lacked associational standing and dismissed its claims by summary judgment. Id. at 2-9. Additionally, neither the association nor individual plaintiff could show the need for injunctive relief that afforded them standing to pursue such a remedy, so that claim was dismissed as well. Id. at 9-10. On the other hand, the District Court found a fact issue with respect to the officer’s summary judgment evidence on qualified immunity. Id. at 10-15. While acknowledging the latitude officers have in the area of probable cause, the District Court pointed to the small number of protestors—seven—and the location of their peaceful gathering—a wide sidewalk in front of a hospital—in concluding that there was an issue for trial on qualified immunity. Id. at 10-13.
Judge Rodriguez and the Sisyphean Burden of Foreclosure Litigation
Boyce v. CitiMortgage, No. SA:13-CV-832-XR, slip op. (W.D. Tex. Jan. 22, 2014)(Rodriguez, J.)
The wave of foreclosure cases shows no sign of letting up, suggesting that home mortgages will remain, at least for a time, the new asbestos. Judge Rodriguez, however, made some progress, remanding two in one day:
In Boyce v. CitiMortgage, the lender timely and legitimately removed the case on the basis of diversity jurisdiction; however, the District Court concluded, based on its review of the four Hengens factors—Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987)—that the property owner should be afforded leave to add the foreclosure trustee as a non-diverse defendant on the allegation that he was negligent in failing to conduct an impartial sale after all the notice and other foreclosure requirements were satisfied. Slip op. at 6-19. On that basis, the District Court granted the property owner’s motion to remand. Id. at 19.
In Kidwai v. Federal National Mortgage Assn., the property owners filed a state court suit against a non-diverse law firm in addition to the lender and others involved in the mortgage servicing and foreclosure process. Slip op. at 1-6. When the law firm was dismissed on summary judgment in state court, one of the defendants removed with the consent of the others. Id. More than a year had passed, however, meaning removal was barred unless the removing party could show bad faith within the meaning of 28 U.S.C. § 1446(b)(3). The District Court reviewed both sides’ charges against the other and concluded that the record did not adequately support a finding of bad faith; therefore, the District Court remanded the case. Id. at 4-9.
Judge Rodriguez Denies Summary Judgment in Sexual Harassment Case
The line between actionable sexual harassment and “simple teasing, offhand comments, and isolated incidents” is sometimes elusive. Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). But a summary judgment determination that a case falls into the latter category must be a long shot when the alleged harasser “admitted to showing the Plaintiff a video clip of a horse sodomizing a woman.” Slip op. at 8.
Not surprisingly, Judge Rodriguez made quick work of the defendant surgery center’s motion in this case, finding that the plaintiff nurse (a) adequately described her complaint and exhausted her Texas Workforce Commission (TWC) administrative remedies, (b) timely filed suit after filing her charges with the TWC and Equal Employment Commission, (c) produced sufficient evidence of actionable sexual harassment, and (d) demonstrated that the surgery center’s mild response to her complaint was insufficient to prove the Faragher two-prong affirmative defense. Slip op. at 4-12.