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MaClean v. Arentz Law Group, Attorneys at Law, P.L.L.C.

United States District Court, N.D. Texas, Fort Worth Division

July 27, 2017

JOHN R. MACLEAN, INDIVIDUALLY ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiffs,
v.
ARENTZ LAW GROUP, ATTORNEYS AT LAW, P.L.L.C., et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          JOHN MCBRYDE UNITED STATES DISTRICT JUDGE.

         Came on for consideration the motion of defendants Arentz Law Group, Attorneys at Law, PLLC, Arentz Law Group, PC, and the Johnston Law Group (collectively "movants") for summary judgment. The court, having considered the motion, the response of plaintiff, John R. MacLean, the reply, the record, the summary judgment evidence, and applicable authorities, finds that the motion should be granted in part.

         I.

         Plaintiff's Claims

         The operative pleading is plaintiff's first amended class action[1] complaint filed November 9, 2016. Doc.[2] 21. Plaintiff's claims are based on an automated telephone call he received at his home that he says was designed to illegally solicit his participation in mass tort litigation involving inferior vena cava filters. Plaintiff asserts two causes of action: first, for violation of Tex. Gov't Code § 82.0651(a), and second, for violation of Tex. Gov't Code §82.0651(c).

         II.

         Grounds of the Motion

         Movants urge two grounds in support of their motion. First, they are entitled to judgment as to the first cause of action because plaintiff was never their client; hence, section 82.0651(a) does not afford him any relief. Second, movants did not solicit or knowingly cause or finance any third party to solicit plaintiff.

         III.

         Applicable Legal Principles

         Rule 56(a) of the Federal Rules of Civil Procedure provides that the court shall grant summary judgment on a claim or defense if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ, P. 5 6(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The movant bears the initial burden of pointing out to the court that there is no genuine dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986).

         The movant can discharge this burden by pointing out the absence of evidence supporting one or more essential elements of the nonmoving party's claim, "since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323.

         Once the movant has carried its burden under Rule 56(a), the nonmoving party must identify evidence in the record that creates a genuine dispute as to each of the challenged elements of its case. Id. at 324; see also Fed.R.Civ.P. 56(c) ("A party asserting that a fact ... is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record ...."). If the evidence identified could not lead a rational trier of fact to find in favor of the nonmoving party as to each essential element of the nonmoving party's case, there is no genuine dispute for trial and summary judgment is appropriate. Matsushita Eiec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 597 (1986) . In Mississippi Prot., & Advocacy Sys., Inc. v. Cotten, the Fifth Circuit explained:

Where the record, including affidavits, interrogatories, admissions, and depositions could not, as a whole, lead a rational trier of fact to find for the nonmoving party, there is no issue for trial.

929 F.2d 1054, 1058 (5th Cir. 1991} .

         The standard for granting a motion for summary judgment is the same as the standard for rendering judgment as a matter of law.[3]Celotex Corp., 477 U.S. at 323. If the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial. ...


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