United States District Court, W.D. Texas, Austin Division
W. AUSTIN UNITED STATES MAGISTRATE JUDGE.
the Court is RCI Dining Services (Round Rock), Inc.' s
Motion for Leave to Designate Responsible Third Parties (Dkt.
No. 236); Round Rock's Response (Dkt. No. 239);
Plaintiffs' Response (Dkt. No. 240); and RCI Dining's
Replies (Dkt. Nos. 241 & 242). Defendant RCI Dining
requests "that the [City of Round Rock] Officers be
designated as responsible third parties, so the jury in this
manner can consider their comparative responsibilities in
relation to RCI Dining, the City of Round Rock, and William
Slade Sullivan." Dkt. No. 236 at 3.
March 2014, William Slade Sullivan became intoxicated at
Rick's Cabaret, operated by RCI Dining. He asserts he had
been promised a ride home by Rick's employees, who had
encouraged him to visit the bar. He was a had given
management his car keys, as he was a frequent customer, and
Rick's staff would often provide him transportation if he
was unable to drive. On the evening in question, at closing
time management informed Sullivan they would not be able to
drive him home, and Sullivan told Rick's employees he was
going to his truck to charge his phone and call a friend to
pick him up, which he did. While Sullivan sat in his car with
the engine running, charging his phone, the bar's
security guard called the police and said Sullivan was
attempting to drive home drunk. When Round Rock Police
officers responded, they asked Sullivan to step out of the
car, but he failed to comply, effectively ignoring the
officers. The officers had parked their vehicles in front and
back of Sullivan's. Sullivan was 5'10" and
weighed 350 pounds, had a pre-existing, serious and disabling
bone condition and had a handicap parking pass hanging from
his rearview mirror. Nevertheless, after only two minutes of
attempting to persuade Sullivan to come out of the truck
voluntarily, the officers decided to pull Sullivan from the
elevated pickup. Sullivan's blood alcohol level was about
three times the legal limit for operating a motor vehicle in
Texas, and he was visibly intoxicated. When the officers
pulled him from his elevated pickup, they were holding both
of his arms, so he could not break his fall. Sullivan fell
from the truck several feet to the ground, suffering serious
injuries that rendered him paralyzed. As a result of those
injuries, he was immediately hospitalized. He died several
months later, having never left the hospital.
Plaintiffs, who are the decedent's mother and the
executor of his estate, sued the City of Round Rock and the
responding officers pursuant to 42 U.S.C. § 1983 and
§ 1988 and the Fourth and Fourteenth Amendments. The
Plaintiffs sued RCI Dining Services (Round Rock), Inc. and
its parent company RCI Hospitality Holdings, Inc., formerly
known as Rick's Cabaret International, for negligence,
and pursuant to § 2.02 of the Texas Alcoholic Beverages
Code (the Dram Shop Act). Plaintiffs also allege that Round
Rock and the officers were negligent and grossly negligent in
causing Mr. Sullivan's injuries and subsequent death.
Yeakel denied the City and officers' motion for summary
judgment, finding fact questions remained on qualified
immunity. The parties then consented to trial before a
magistrate judge and the case was transferred to the
undersigned. The Fifth Circuit eventually stayed the case
pending the officers' appeal, and then reversed the
denial of summary judgment. Relying on the dashboard and
police videos, the circuit held that the officers used
objectively reasonable force in pulling Sullivan from his
truck and thus were entitled to qualified immunity from the
suit. Brothers v. Zoss, 837 F.3d 513, 520 (5th Cir.
2016). The case was then remanded back to this court, and
proceedings were abated while the Plaintiffs' cert,
petition was pending. Upon the denial of cert, the say was
lifted and the case has proceeded. In the motion before the
Court, RCI Dining requests leave to designate the officers as
responsible third parties in order to allow the jury to
consider their contributions to the Plaintiffs' injury
and harm when assigning liability among the parties.
Standard of Review
33 of the Texas Civil Practice and Remedies Code, also known
as the Texas Proportionate Liability Act, allows a party to
be joined as a responsible third party "in order to
promote the equitable allocation of fault." North
Cypress Medical Center, 2013 WL 1736764, at *1. See
also Streber v. Hunter, 221 F.3d 701, 725 (5th Cir.
2000) (holding that jury was properly asked to allocate
responsibility under the Texas proportionate liability
scheme). A responsible third party is "any person who is
alleged to have caused or contributed to causing in any way
the harm for which recovery of damages is sought, whether by
negligent act or omission ... by other conduct or activity
that violates an applicable legal standard, or by any
combination of these." TEX. CIV. PRAC. & REM. CODE
§ 33.011(6). Under Chapter 33, the fact finder
determines the percentage of responsibility of each claimant,
defendant, settling person and responsible third party
"as to each cause of action asserted, " so a party
need not be responsible for all causes of action included in
the lawsuit. See Id. at § 33.003(a). Chapter 33
only applies to claims based in tort. Id. at §
33.002(a). Chapter 33 "applies to all torts governed by
Texas law, including those tried in federal courts."
Nunez v. City of Corpus Christi, 2013 WL 164045, at
*1 (S.D. Tex. Jan. 14, 2013). A district court has discretion
over whether to grant leave to designate a responsible third
party. The Cadle Co. v. Keyser, No. 5:15-CV-217-RP,
2015 WL 12866217, at *1 (W.D. Tex. May 13, 2015).
§ 33.004(a), "a defendant may seek to designate a
person as a responsible third party by filing a motion for
leave to designate. . . ." TEX. CIV. PRAC. & REM.
CODE § 33.004(d). The standard for designating a
potentially responsible third party is notice pleading under
the Texas Rules of Civil Procedure. See North Cypress
Medical Center Operating Co. v. Gallagher Benefit Services,
Inc., 2013 WL 1736764 (S.D. Tex. Apr. 22, 2013). Under
Rule 47 of the Texas Rules, a pleading must contain "a
short statement of the cause of action sufficient to give
fair notice of the claim involved." TEX. R. CIV. P.
47(a). Texas follows anotice pleading standard, "which
looks to whether the opposing party can ascertain from the
pleading the nature and basic issues of the controversy and
what testimony will be relevant at trial." Intl.
Energy Ventures Mgmt., L.L.C v. United Energy Group,
Ltd., 818 F.3d 193, 201 n.17 (5th Cir. 2016).
Texas Supreme Court stated, "A defendant may designate a
responsible third party even though that party possesses a
defense to liability, or cannot be formally joined as a
defendant, or both. Chapter 33 then is apparently unconcerned
with the substantive defenses of responsible third
parties." Galbraith Engineering Consultants, Inc. v.
Pochucha, 290 S.W.3d 863, 868-69 (Tex. 2009). In a
footnote, the Court quoted a commentator's description
that the "thrust of the 2003 statute is that the jury
should allocate responsibility among all persons who are
responsible for the claimant's injury, regardless of
whether they are subject to the court's jurisdiction or
whether there is some other impediment to the imposition of
liability on them, such as a statutory immunity."
Id. at 869 n.6 (emphasis added). The Fifth Circuit and
Texas district and appeals courts have said that parties with
immunity can still be designated as responsible third
parties. "Even parties 'who are not subject to the
court's jurisdiction or who are immune from liability to
the claimant' can be designated responsible third parties
under [Chapter 33]." Fisher v. Halliburton, 667
F.3d 602, 622 (5th Cir. 2012) (quoting In re Unitec
Elevator Services Co., 178 S.W.3d 53, 58 n.5 (Tex.
App.-Houston [1st Dist] 2005, no pet.)).
Plaintiffs oppose the third party designation because they
argue that the Federal Rules of Civil Procedure govern this
case, rather than Chapter 33, so the officers cannot be
designated as responsible third parties. Plaintiffs also
argue that the designation of unnamed, unrepresented and
non-participating third parties is unconstitutional and could
affect their ability to recover damages. Round Rock opposes
the third party designation on the grounds that ...