The defendants in this redistricting challenge had unsuccessfully sought a protective order shielding legislators and their staff from deposition. Slip op. at 1. The three-judge panel ordered that the depositions go forward, but specified that the deponents could assert the privilege in response to specific questions and then answer the question under seal for the three-judge panel’s in camera review. Id. at 1-2. In this opinion, the panel clarified the procedure by pointing out that the privilege is personal to the individual legislators or staff members, rather than a right the Governor or others can invoke. Id. The panel then cited the five- factor test in Rodriguez v. Pataki, 280 F. Supp. 2d 89, 93-94 (S.D.N.Y. 2003) as controlling on the scope of the privilege. Slip op. at 3-4.
Judge Rodriguez Disposes of Another Foreclosure Case by Rule 12(b)(6) Dismissal
In this foreclosure litigation, the former property owners claimed that the bank assured them until the last moment that their application for loan modification was under review and their home would not be sold at foreclosure. Slip op. at 1-2. Three days prior to foreclosure, the bank changed tack and proceeded with the sale. Id. at 2. The bank submitted the deed of trust with its Rule 12(b)(6) motion and the District Court concluded it could consider the document inasmuch as it was central to the property owners’ claims and referenced in the complaint, and could be judicially noticed since it was a public record. Id. at 3-4. Based on the deed of trust, the District Court concluded that the statute of frauds barred the property owners’ promissory estoppel claim. Id. at 4-6. And dismissal of that claim compelled the dismissal of the wrongful foreclosure and declaratory judgment claims, which were derivative of the promissory estoppel claim. Id. at 6-8.
Magistrate Judge Austin Recommends Denial of Rule 12(b)(6) Dismissal of ADA Case
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.