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McIntyre v. Castro

United States District Court, W.D. Texas, Austin Division

April 25, 2017




         Before 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.[1] (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.


         Plaintiffs 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.

         In that 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).[2]

         Plaintiffs 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).

         On 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. ¶¶ 20-23).

         Plaintiffs 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).

         Plaintiffs 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. ¶¶ 40-45).

         The 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.

         Plaintiffs 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 distress.

         Defendants 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.


         When 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).

         The 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 ...

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