United States District Court, W.D. Texas, Austin Division
PITMAN UNITED STATES DISTRICT JUDGE
the Court are Defendants' Motion to Dismiss Pursuant to
Rule 12(b)(1), 12(b)(6) and Chapter 27 of Texas Civil
Practice & Remedies Code, (Dkt. 5), Rule 11(c) Motion for
Sanctions, (Dkt. 21), Opposed Motion to Dismiss State Law
Claims, (Dkt. 25), Opposed Rule 42(a) Motion to Consolidate
(Dkt. 28), and Unopposed Motion to Set Hearing. (Dkt. 33). Also
before the Court are Plaintiffs' Amended Opposed Motion
for Leave to Serve Supplemental Pleading, (Dkt. 23), Amended
Motion for Leave to File Addendum to Plaintiffs' Response
to Defendants' Motion to Dismiss, (Dkt. 24), Opposed
Motion to Order Mediation. (Dkt. 38). Having reviewed the
pleadings, the parties' submissions, and the applicable
law, the Court issues the following order.
David McIntyre (“McIntyre”) and Madeleine Connor
(“Connor”) originally filed this action in Texas
state court. Defendants first removed the action to this
Court, under cause number 1:15-cv-1100, based on
Plaintiffs' assertion of a federal cause of action.
Plaintiffs thereafter filed their Sixth Amended Complaint.
complaint, Plaintiffs named as defendants Eric Castro, Nancy
Naeve, Gary Sertich, Leah Stewart and Chuck McCormick, each
of whom are or were Directors of the Lost Creek Municipal
Utility District (the “MUD”). Plaintiffs alleged
in 2012 the MUD began a plan to install sidewalks in the Lost
Creek neighborhood. They, and other neighborhood homeowners,
opposed the plan. According to Plaintiffs, in September 2013
the plan was rejected in a neighborhood referendum. (6th Am.
Compl. ¶ 16).
alleged that, despite the referendum, “[b]y mid-2015,
not only had the MUD secretly installed several stretches of
sidewalks throughout the District in opposition to its
constituents' vote, it began a campaign to install a
four-block length of sidewalks along Lost Creek Blvd.”
(Id. ¶ 17). Plaintiffs alleged that the MUD
directors improperly lobbied Travis County officials and
falsely indicated the neighborhood had changed its mind on
the sidewalk installation plan. Further, they state that in
an August 2015 MUD meeting, the defendants issued false data
indicating lack of opposition to the plan and “gaveled
down” unidentified homeowners who attempted to object
to the data. (Id. ¶¶ 18-19).
October 26, 2015, McIntyre applied for a temporary
restraining order to prevent defendants from voting on the
sidewalk plan. The application was denied. The following day,
at a MUD meeting, Defendants voted not to go forward with the
plan. Because Plaintiffs continued to be concerned that
Defendants will at some point vote to go forward with the
sidewalk plan, McIntyre applied for a temporary restraining
order two additional times and also applied for mandamus
relief. The applications have all been denied. (Id.
alleged they have publicly criticized Defendants about the
sidewalk plan prior to and during the pendency of this suit.
According to Plaintiffs, Defendants have commented in a
pejorative way about Plaintiffs and this suit, have
orchestrated a campaign of personal destruction, participated
in an action to recall Connor from her position as Lost Creek
Neighborhood Association president, and “were present
and facilitated an aggressive mob on December 13, 2015,
wherein approximately 125 residents jeered, shouted down,
booed, cat called, and laughed at Plaintiff Connor for more
than two hours during a neighborhood association meeting,
causing Connor severe emotional distress.”
(Id. ¶¶ 24-26).
asserted seven counts in their Sixth Amended Complaint. In
the first six they sought declaratory relief, declaring
Defendants acted outside the scope of their authority under
the Texas Constitution and Texas statutes, as well as
contrary to the will of their constituents, in using taxpayer
and utility district funds to construct sidewalks.
(Id. ¶¶ 27-39). In their seventh count
Plaintiffs sought monetary damage under 42 U.S.C. § 1983
for retaliation by Defendants in response to Plaintiffs'
exercise of their rights under the First Amendment to the
United States Constitution. (Id. ¶¶
Court dismissed the Plaintiff's federal cause of action,
finding that Plaintiff had pleaded insufficient facts to
plausibly allege Defendants' involvement in all but two
of the purportedly retaliatory acts. The two acts for which
Plaintiff sufficiently alleged Defendants' involvement
were the signing of a petition to recall Connor as president
of the neighborhood association and Defendants'
transmission to the community of an electronic update on
Plaintiffs' litigation that Plaintiffs found pejorative.
The Court found as to the first act that Plaintiff had not
alleged facts suggesting Defendants acted under color of
state law. As to the second act, the Court found that the
update itself, which was incorporated in the complaint by
reference, was simply not pejorative. Following the dismissal
of the federal claim, the Court remanded the state law claims
to state court.
appealed the dismissal of Connor's federal claim. While
the case was on appeal, Plaintiffs filed a Seventh Amended
Petition in state court. The new complaint contains largely
the same general facts as the prior one, though some
allegations have been removed, such as references to
Plaintiffs' successive unsuccessful applications for
temporary restraining orders. Plaintiffs' first five
counts under state law also remain unchanged. In the sixth
count, Plaintiffs removed a request for a declaration that
the use of tax funds to construct sidewalks violates the
Texas Constitution. Count Six, as amended, now seeks a
declaration that Defendants exceeded their authority by using
tax funds to draft a bar ethics complaint against Connor.
Count Seven remains a federal claim under § 1983 for the
violation of Connor's First Amendment rights. Plaintiffs
restyled the previously dismissed “retaliation”
claim as an “abridgment” claim and shifted the
bulk of their same retaliation allegations to a new eighth
count, which alleges First Amendment retaliation under the
Texas Constitution. Connor added two additional counts for
defamation per se and intentional infliction of emotional
again removed the action to this Court on April 19, 2016
under the above cause number and filed the instant motion to
dismiss on May 5, 2016. The Court stayed the action on May
20, 2016, until the Fifth Circuit ruled on Plaintiffs'
appeal of the Court's prior order dismissing Connor's
First Amendment claim. The Fifth Circuit issued its judgment
affirming this Court's order on December 19, 2016. The
Court lifted the stay on March 21, 2017.
evaluating a motion to dismiss for failure to state a claim
under Rule 12(b)(6) the complaint must be liberally construed
in favor of the plaintiff and all facts pleaded therein must
be taken as true. Leatherman v. Tarrant Cty. Narcotics
Intelligence & Coordination Unit, 507 U.S. 163, 164
(1993); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.
1996). Although Federal Rule of Civil Procedure 8 mandates
only that a pleading contain a “short and plain
statement of the claim showing that the pleader is entitled
to relief, ” this standard demands more than unadorned
accusations, “labels and conclusions, ” “a
formulaic recitation of the elements of a cause of action,
” or “naked assertion[s]” devoid of
“further factual enhancement.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, a
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face. Id. at 570. “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
court must initially identify pleadings that are no more than
legal conclusions not entitled to the assumption of truth,
then assume the veracity of well-pleaded factual allegations
and determine whether those allegations plausibly give rise
to an entitlement to relief. If not, the complaint has
alleged-but it has not show[n]-that the pleader is entitled
to relief. Iqbal, 556 U.S. at 679 (quoting
Fed.R.Civ.P. 8(a)(2)). Throughout this process, the court
“must consider the complaint in its entirety, as well
as other sources courts ordinarily examine when ruling on
Rule 12(b)(6) motions to dismiss, in particular, documents