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Banik v. Tamez

United States District Court, S.D. Texas, McAllen Division

July 7, 2017

BIMAL K. BANIK, Plaintiff,
ANGEL TAMEZ, Defendants.

          OPINION & ORDER

          Micaela Alvarez United States District Judge.

         The Court now considers Bimal Banik's (“Plaintiff”) second motion for leave to amend, [1]as well as University Defendants' (“Defendants”)[2] and Amanda Ybarra's (“Ybarra”) responses.[3]After duly considering the record and relevant authorities, the Court GRANTS Plaintiff leave to amend his First Amendment claim, as well as his invasion of privacy, Article 18.20, and Chapter 123 claims against Defendant Tamez (“Tamez”), but DENIES the motion in all other respects.

         I. Background

         Plaintiff was a tenured professor at the University of Texas-Pan American (“UTPA”), and was terminated in part based upon a complaint submitted to UTPA by Ybarra, one of Plaintiff's students.[4] In November 2013, Plaintiff first brought suit asserting claims arising from some of the actions surrounding his termination. In time, Plaintiff sued UTPA, Ybarra, and other Defendants in that state court action, and the case was removed in July 2016, on Plaintiff's tenth amended petition.[5] The Court denied Plaintiff's remand motion, [6] granted Ybarra's motion to dismiss, [7] and later granted in part Defendants' motion to dismiss, [8] with only a few claims remaining. Embedded within Plaintiff's response to Defendants' dismissal motion was a motion for leave to amend, [9] which the Court addressed in its opinion. Plaintiff also filed a second motion for leave to amend, this time attaching a proposed eleventh amended complaint.[10] Defendants and Ybarra responded, [11] rendering the present motion ripe for review. The Court now turns to its analysis.

         II. Legal Standard

         Under Federal Rule of Civil Procedure (“Rule”) 15(a), a party may amend his pleadings once as a matter of course within twenty-one days after serving it or after a dismissal motion, and thereafter with written consent of the opposing party or by leave of the Court. Here, amendment as a matter of course is not available, and Defendants have not provided written consent to amend, so Plaintiff requires leave of Court to amend. Rule 15(a) provides that leave to amend a party's pleading shall be freely given “when justice so requires.”[12] Indeed, the Fifth Circuit has stated that “a district court must possess a ‘substantial reason' to deny a request for leave to amend.”[13]

         In determining whether to allow leave to amend a pleading, courts examine whether there was 1) undue delay; 2) bad faith or dilatory motive; 3) repeated failure to cure deficiencies by previous amendments; 4) undue prejudice to the opposing party; and 5) futility of the amendment.[14] In the absence of any of these factors, the Court should freely grant the requested leave.[15] Nevertheless, the decision whether to grant leave to amend lies within the Court's sound discretion.[16]

         III. Analysis

         Introductory Matters

         Before beginning its specific analysis as to the particular amendments sought, the Court addresses the motion for leave in more general terms. Here, Plaintiff contends that leave should be granted because “this case was not pleaded with the expectation that a federal court would ever review [Plaintiff's] pleading.”[17] Plaintiff adds that he wishes “to conform to federal pleading standards and include additional facts to support his . . . claims.”[18] Ironically, Plaintiff's motion for leave fails to conform to federal pleading standards as it is not presented in numbered paragraphs, as required by Rules 7(b) and 10(b). Additionally, Plaintiff includes new causes of action in the proposed complaint yet fails to address this in the motion for leave. As to the proposed complaint itself, it too fails to comply with the federal pleading standards. Instead of setting out a short and plaint statement of the claims showing that Plaintiff is entitled to relief as required by Rule 8(a), Plaintiff presents eighty some pages of extraneous detail not supportive of his claims.[19]

         Additionally, Plaintiff does nothing to explain why leave to amend was sought only after Defendants filed a motion to dismiss.[20] Plaintiff's contention that he did not expect his complaint to be reviewed by a federal court overlooks the fact that the case was removed in August 2016, yet Plaintiff did not seek leave to amend until late April 2017, in response to Defendants' motion to dismiss. Plaintiff also fails to address why, after having amended ten times already, he has been unable to cure the many deficiencies this Court noted in its Opinion of June 9, 2017. These failures certainly support a finding of undue delay, dilatory motive, if not bad faith, and repeated failure to cure deficiencies. Finally, Plaintiff wholly fails to address the issue of undue prejudice.

         The Court observes that it dismissed the vast majority of Plaintiff's claims in its previous order. Consequently, only a few remaining claims even exist to amend. However, in an abundance of caution, the Court has carefully reviewed Plaintiff's entire proposed eleventh amended complaint in an effort to determine whether any of Plaintiff's claims can be remedied, including those which have now been dismissed. Despite this effort, the Court has determined that none of Plaintiff's amendments ultimately cure his now-dismissed claims.

         Careful review of Plaintiff's proposed eleventh amended complaint also reveals that Plaintiff wishes to add new claims or requests for relief, or otherwise to alter remaining claims against remaining Defendants. Consequently, the Court proceeds to analyze Plaintiff's second motion for leave to amend in a two-step fashion. First, the Court examines the newly-proposed claims, and determines that these additions are unwarranted. Then, the Court examines Plaintiff's proposed alterations to remaining claims, and likewise determines that, with some exceptions, such alterations are unwarranted.

         A. Newly-proposed claims & injunctive requests

         Plaintiff's proposed eleventh amended complaint would add (i) state and federal wiretapping claims against UTPA, (ii) a tortious interference claim against Tamez, (iii) a defamation claim against Ybarra, and (iv) new or otherwise revised injunction requests against UTPA, UT System, Crown, Faver, and Mora. Each of these proposed amendments is unwarranted as detailed below.

         i. Newly-proposed wiretapping claims against UTPA

         Plaintiff's proposed eleventh amended complaint adds state and federal wiretapping claims against UTPA, [21] when previously, those claims had only been alleged against university employees and a UTPA student-Tamez.[22] However, the only actions that are potentially imputable to UTPA are those actions of its relevant employees, all of whom have now been dismissed for purposes of Plaintiff's state and federal wiretapping claims.[23] Plaintiff's proposed eleventh amended complaint does not name any new university employees whose actions might be imputable to UTPA. Plaintiff's motion for leave wholly fails to address Plaintiff's attempt to bring these claims against UTPA; i.e. Plaintiff does not explain why, after over three years of litigation, he now seeks to joint UTPA. On these facts, the Court finds undue delay, dilatory motive, and perhaps more importantly, such amendment would be futile as such claims against UTPA would be barred by the Eleventh Amendment. Thus, leave will not be granted on this basis.

         ii. Newly-proposed tortious interference claim against Tamez

         In his motion, Plaintiff does not request leave to add a tortious interference claim against Tamez, yet it is added in the amended complaint.[24] The Court does note that a claim was made against Tamez in the section of the tenth amended petition entitled “Tortious Interference . . . .” However, the claim actually asserted is clearly a defamation claim, not a tortious interference claim. Previously, this claim had only been alleged against Nelsen.[25] Leave to amend to add a tortious interference claim is not warranted here because Plaintiff has presented this claim with undue delay and dilatory motive.

         Plaintiff's original petition in state court-filed approximately three and one-half years ago-made claims against Tamez, setting forth some of the same substantive facts now alleged to support the proposed tortious interference claim against Tamez.[26] Moreover, Plaintiff certainly knew the relevant facts supporting his proposed tortious interference claim against Tamez by August 2015, when Plaintiff filed his third amended petition.[27] Nevertheless, Plaintiff-for no apparent reason-waited another year and eight months to bring a tortious interference claim against Tamez. There is no excuse for this delay, and Plaintiff had seven other opportunities to make this claim. Leave will not be granted to accommodate it.

         iii. Proposed reintroduction of Ybarra as a Defendant

         The live pleading in this case alleged a defamation claim against Defendant Ybarra.[28]Upon motion, the Court dismissed this claim, thus dismissing Ybarra as a Defendant from this case.[29] Plaintiff then filed a motion to reconsider the dismissal, [30] which the Court denied.[31]Without explanation, Plaintiff attempts to hail Ybarra back into this case by adding the same defamation claim against her that the Court has already dismissed.[32] Ybarra has opposed Plaintiff's second motion for leave for this reason.[33] The proposed defamation claim against Ybarra would be futile if added for reasons already stated in the Court's previous orders.[34] Thus, leave will not be granted to needlessly relitigate the defamation claim against Ybarra for a third time.

         iv. Newly-proposed or otherwise altered injunctive relief

         The Court had previously denied Plaintiff's requests for injunctive relief.[35] Plaintiff now proposes two new injunctions and also requests to modify an injunction request which has now been denied. These propositions are unavailing. First, Plaintiff proposes “an injunction requiring [Plaintiff's] transition to UTRGV.”[36] However, having dismissed all substantive claims which might support this request, most notably Plaintiff's Due Process claims, there is no reason to grant such an injunction, and it would therefore be futile to add this request.

         Second, Plaintiff proposes an injunction “prohibiting UTPA and/or UT System from engaging and paying for Tamez's attorneys.”[37] This request is grounded upon Plaintiff's longstanding contention that state funding of Tamez's representation violates specific provisions of the Texas Constitution.[38] However, amendment to include this request would be futile. It is not clear whether Plaintiff seeks a preliminary or permanent injunction, but the distinction does not matter, because Plaintiff would be unable to establish the elements of even a minimally-demanding preliminary injunction. In order to be entitled to a preliminary injunction, a claimant must prove each of the following elements:

(1) a substantial likelihood that he will succeed on the merits, (2) a substantial threat that he will be irreparably injured if the injunction does not issue, (3) that the threatened injury outweighs any harm resulting from the grant of the injunction, and (4) that the injunction will not disserve the public interest.[39]
Here, Plaintiff cannot establish the first element because, as noted in the Court's

dismissal order, [40] UTPA and UT System are entitled to sovereign immunity from liability against any unauthorized-funding claim based upon the Texas Constitution. Moreover, Plaintiff cannot establish the second element because Plaintiff's proposed eleventh amended complaint does not explain how continued state funding of Tamez's representation would result in irreparable harm absent an injunction. The mere fact that Plaintiff pays taxes and tuition does not establish irreparable harm. Plaintiff must pay taxes, and if applicable, tuition regardless of whether UTPA and UT System continue to pay Tamez' legal fees. Furthermore, even if eventually such payment were determined to be unconstitutional, whatever harm Plaintiff may have suffered is certainly reparable.

         Third, Plaintiff's proposed eleventh amended complaint seeks an injunction against, among others, Crown, Faver, Mora, and UTPA prohibiting “a further interception, attempted interception, or divulgence or use of information obtained by an interception.”[41] The same injunctive request was previously only levied against Rodriguez, Tamez, Thompson, Guerra, Cantu, and Sethi.[42] However, with the exception of Tamez, it does not matter against which Defendant this injunctive relief is aimed. Every wiretapping claim against every Defendant except Tamez has now been dismissed, and thus, there is no likelihood that Plaintiff will succeed on the merits of any wiretapping claim against Crown, Faver, Mora, and UTPA which might support the injunctive request. Thus, it would be futile to amend this injunctive request aimed at Crown, Faver, Mora, and UTPA, and amendment on this basis will not be granted.

         In sum, all of Plaintiffs new claims and injunctive requests proposed in his eleventh amended complaint are unwarranted, and thus, leave will not be granted to add them. The Court now turns to Plaintiffs proposed alterations (or lack thereof) concerning pre-existing claims that still remain in the wake of the Court's recent dismissal order.

         B. Alteration of pre-existing claims that remain after the Court's dismissal order

         The only remaining claims in this case after the recent dismissal order are as follows:

• Tamez: state wiretapping claims under Article (“Art.”) 18.20 and Chapter 123, a federal wiretapping claim under 18 U.S.C. §§ 2515 and 2520, invasion ...

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