United States District Court, S.D. Texas, Houston Division
ORDER AND OPINION
MELINDA HARMON UNITED STATES DISTRICT JUDGE
in the above-referenced cause is Defendant Jay Jenkins's
Motion to Dismiss for Failure to State a Claim (Document No.
6), Jenkins's Motion to Compel Joinder or, alternatively,
to Dismiss pursuant to Rule 12(b)(7) (Document No. 7),
Plaintiff Darryl Austin's Response in Opposition to
Jenkins's Motion to Dismiss (Document No. 8),
Austin's Response in Opposition to Jenkins's Motion
for Joinder (Document No. 9), and Jenkins's Reply to
Austin's Response (Document No. 11). On October 25, 2017,
the Magistrate Judge issued her Memorandum and Recommendation
(M&R) recommending that Jenkins's Motions to Dismiss
be denied and that Jenkins's Motion to Compel Joinder be
granted. Document No. 15. Jenkins filed no objections to the
denial of his motions to dismiss, but Austin filed an
objection to the Magistrate's M&R concerning the
recommendations on joinder. Document No. 16. As there are no
objections to the M&R concerning the recommendations on
the Motions to Dismiss, the Court adopts the M&R as to
those issues. Upon further review of Magistrate Judge
Stacy's recommendations concerning joinder, the
pleadings, Austin's objections (Document No. 16),
Jenkins's response (Document No. 17), and the law, the
Court concludes that Jenkins's Motion to Compel Joinder
(Document No. 7) should be granted.
filed this action against Defendants Jay Jenkins, YJ
Productions and Concerts (YJ Productions), and Samuel
Mumphrey (collectively “Defendants) for the alleged
breach of a performance contract. In his complaint, Austin
alleges that on or about October 6, 2015, he and YJ
Productions agreed that Jay Jenkins would give a sixty-minute
performance on December 9, 2016, at Multi-Events Arena, Ltd.
d/b/a Arena Theatre and Arena Concerts GP, Inc. (Arena
Theatre) located at 7326 Southwest Freeway, Houston, TX
77004. Document No. 1 at 3. After the contract was signed,
Austin began promoting and advertising the performance,
including selling tickets for the event. Document No. 1 at 3.
Austin also paid a $30, 000 deposit to Defendants to
guarantee the performance. Document No. 1 at 3. But, before
the performance, Austin received word that Jenkins would not
perform. Document No. 1 at 4. Austin then sent out word that
the performance was cancelled and promised a refund at 100%
of the ticket price for all those who had purchased tickets.
Document No. 1 at 4.
Austin filed suit against Defendants asserting the following
claims: (1) breach of contract, (2) false representations and
detrimental reliance, (3) fraud and conversion, (4) tortious
interference with agreement, and (5) accounting. Document No.
1 at 5-9. In his answer, Jenkins argues that he was unaware
that YJ Productions and Mumphrey had negotiated the contract
on his behalf and denies that they were authorized to do so.
Document No. 5 at 2-3. Jenkins also asserted counterclaims
against Austin for defamation, wrongful disclosure of private
facts, violations of the Texas Debt Collection Practices Act,
and interference with prospective contractual or business
relations. Document No. 5 at 8. Jenkins further asserted
cross claims against YJ Productions and Mumphrey for invasion
of privacy, wrongful disclosure of private facts, and
interference with prospective contractual and business
relations by false representation. Document No. 5 at 8.
Jenkins seeks indemnity from Mumphrey and YJ Productions for
any liability that may be attributed to Jenkins, or in the
alternative, contribution from Mumphrey and YJ Productions
for his share of the responsibility for injuries to Austin.
Document No. 5 at 9.
then filed a Rule 12(b)(6) Motion to Dismiss for Failure to
State a Claim (Document No. 6) and a Rule 19 Motion to Compel
Joinder or, alternatively, a Rule 12(b)(7) Motion to Dismiss
for Failure to Join a Party under Rule 19 (Document No. 7).
In his first motion to dismiss, Jenkins argues that Austin
has failed to state a claim because Jenkins had no knowledge
of the underlying contract. Document No. 6. In his Motion to
Compel Joinder, Jenkins argues that Arena Theatre has
potential claims against the Defendants to the same extent
and of the same type as Austin because of its
employer/employee relationship with Austin. Further, Jenkins
argues that Austin's relationship with Arena Theatre
includes joint ventures that they engage in for mutual
benefit, such as the once that is at issue in this case.
Document No. 7. Finally, in his Rule 12(b)(7) Motion to
Dismiss, Jenkins argues that Arena Theatre is an
indispensable party to this action under Rule 19(b), and if
joinder is not feasible for any reason, the Court must
dismiss Austin's action. Document No. 7.
party files objections to the magistrate judge's M&R,
“the court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). Here, Austin objects to the Magistrate
Judge's recommendation that Arena Theatre should be
joined as a party under Federal Rule of Civil Procedure
19(a)(2) as a counterclaim defendant. Document No. 16 at 1.
Austin argues that Arena Theatre should not be made a
counterclaim defendant in this case because Jenkins did not
ask the Court to make Arena Theatre a counterclaim defendant
and because it would be Jenkins responsibility to join Arena
Theatre as a counterclaim defendant since he is the
counterclaim plaintiff. Document No. 16 at 1-2. Austin
further argues that Jenkins has not met his burden of
establishing that Arena Theatre is a necessary party.
Document No. 16 at 2.
Rule 19(a)(1), the Court must join a party who is subject to
process and whose joinder would not destroy the Court's
subject-matter jurisdiction if:
(A) in that person's absence, the court cannot accord
complete relief among existing parties; or
(B) that person claims an interest relating to the subject of
the action and is so situated that disposing of the action in
the person's absence may:
(i) as a practical matter impair or impede the person's
ability to protect the interest; or
(ii) leave an existing party subject to a substantial risk of
incurring double, multiple, or otherwise inconsistent
obligations because of the interest.
Fed. R. Civ. P. 19(a)(1). “[T]he party advocating
joinder has the initial burden of demonstrating that a
missing party is necessary . . . .” Hood ex rel.
Mississippi v. City of Memphis, 570 F.3d 625, 628 (5th
Cir. 2009). But, “when an initial appraisal of the
facts indicates that a possibly necessary party is absent,
the burden of disputing this initial appraisal falls on the
party who opposes joinder.” Pulitzer-Polster v.
Pulitzer, 7 ...