United States District Court, N.D. Texas, Fort Worth Division
JOHN R. MACLEAN, INDIVIDUALLY ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiffs,
ARENTZ LAW GROUP, ATTORNEYS AT LAW, P.L.L.C., et al., Defendants.
MEMORANDUM OPINION AND ORDER
MCBRYDE UNITED STATES DISTRICT JUDGE.
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.
operative pleading is plaintiff's first amended class
action complaint filed November 9, 2016.
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).
of the Motion
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
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).
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.
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} .
standard for granting a motion for summary judgment is the
same as the standard for rendering judgment as a matter of
law.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