United States District Court, N.D. Texas, Dallas Division
ESTATE OF BRANDON ALEX, through personal representative Detreasure Coker, and DETREASURE COKER, individually and as surviving mother of Brandon Alex, deceased, Plaintiffs,
T-MOBILE US, INC., f/k/a MetroPCS Communications, Inc.; T-MOBILE USA, INC.; T-SYSTEMS NORTH AMERICA, INC.; and DEUTSCHE TELEKOM NORTH AMERICA, INC., Defendants.
MEMORANDUM OPINION AND ORDER
BARBARA M. G. LYNN CHIEF JUDGE
the Court is Defendants' Motion to Dismiss, (ECF No. 13),
and Motion for Leave to File Second Amended Complaint, (ECF
No. 30). For the reasons stated below, the Motion to Dismiss
is GRANTED IN PART and DENIED IN PART, and the Motion for
Leave is GRANTED.
Factual and Procedural Background
March 11, 2017, Brandon Alex was injured when he “fell
from a daybed.” (Am. Compl. ¶ 12, ECF No. 10). His
babysitter found him “breathing too faintly.”
(Id.) The babysitter repeatedly dialed 9-1-1 from
her cellphone, but was placed on hold each time.
(Id. ¶ 13). Collectively, the babysitter was
placed on hold for more than forty minutes. (Id.)
Unable to connect to the 9-1-1 dispatcher, the babysitter
contacted Brandon Alex's grandmother, Bridget Alex, who
later drove him to an emergency room. (Id.
¶¶ 13-14). Unfortunately, Brandon Alex was
pronounced dead soon after arriving at the hospital.
(Id. ¶ 14).
instituted this action in the 95th Judicial District Court of
Dallas County, Texas, for claims arising from Brandon
Alex's death. Their claims include negligence, gross
negligence, products liability, violation of the Texas Civil
Wiretap Act, (“CWA”), and violation of the Texas
Deceptive Trade Practices Act (“DTPA”).
(Id. ¶¶ 38-45, 51-64). Detreasure Coker,
alleged to be Brandon Alex's biological mother, also
alleges wrongful death and survival claims. (Id.
¶¶ 66-72). Defendants removed the case to this
Court, but the case has been stayed pending the Court's
resolution of Defendants' Motion to Dismiss. (ECF No.
Motion to Dismiss
pleading must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). The pleading standard
Rule 8 announces does not require “detailed factual
allegations, ” but it does demand more than an
unadorned accusation devoid of factual support. Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To
survive a motion to dismiss, a complaint must contain
sufficient factual matter to state a claim for relief that is
plausible on its face. Twombly, 550 U.S. at 570. The
court must accept all of the plaintiff's factual
allegations as true, but it is not bound to accept as true
“a legal conclusion couched as a factual
allegation.” Id. at 555. Where the factual
allegations do not permit the court to infer more than the
mere possibility of misconduct, the complaint has stopped
short of showing that the pleader is plausibly entitled to
relief. Iqbal, 556 U.S. at 678.
Texas law, wireless service providers and manufacturers have
some statutory immunity from claims arising out of their
provision of 9-1-1 services under Section 771.053(a) of the
Texas Health and Safety Code,  which states:
A service provider of communications service involved in
providing 9-1-1 service, a manufacturer of equipment used in
providing 9-1-1 service, [or] a developer of software used in
providing 9-1-1 service . . . is not liable for any claim,
damage, or loss arising from the provision of 9-1-1 service
unless the act or omission proximately causing the claim,
damage, or loss constitutes gross negligence, recklessness,
or intentional misconduct.
to qualify for statutory immunity, a defendant must be one of
the covered entities involved in providing 9-1-1 services,
and the claims against it must arise from the provision of
meet both conditions. Plaintiffs allege that Defendants
operate 9-1-1 communications services, (id.
¶¶ 17-18), create software used in providing 9-1-1
services, (id. ¶¶ 57-58), or provide 9-1-1
capable cellphones, (id. ¶ 12-13), and that
their claims arise from the provision of 9-1-1 services.
(See Id. ¶ 59 (“The harm to Plaintiffs
resulted directly from the software modifications that
prevented Brandon's babysitter from reaching 9-1-1 in
time to save his life.”); id. ¶¶
the statutory immunity provided by Section 771.053(a) is not
absolute. To overcome Defendants' claim of immunity,
Plaintiffs must plausibly allege that Defendants proximately
caused Brandon Alex's death and that Defendants' acts
or omissions constituted gross negligence, recklessness, or
intentional misconduct. Cook, 683 Fed.Appx. at 319
(citing Tex. Health & Safety Code § 771.053(a)).
Because Plaintiffs have plausibly alleged proximate cause and
gross negligence, for the reasons discussed below, the Court
declines to dismiss their claims on immunity grounds.
components of proximate cause are cause-in-fact and
foreseeability. See Ryder Integrated Logistics, Inc. v.
Fayette Cty., 453 S.W.3d 922, 929 (Tex. 2015) (citation
omitted). A tortious act or omission is a cause-in-fact if it
serves as “a substantial factor in causing the injury
and without which the injury would not have occurred.”
Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762,
774 (Tex. 2010). An injury is foreseeable “if, in light
of all the circumstances, a reasonably prudent man would have
anticipated that the injury would be a consequence of the act
or omission in question.” Hall v. Atchison, T.
& S. F. Ry. Co., 504 F.2d 380, 385 (5th Cir. 1974).
Proximate cause cannot be established by “mere
conjecture, guess, or speculation.” HMC Hotel
Props. II Ltd. P'ship v. Keystone-Texas Prop. Holding
Corp., 439 S.W.3d 910, 913 (Tex. 2014).
case of City of Dallas v. Sanchez is instructive on
what constitutes proximate cause in a circumstance similar to
the one presented here. 494 S.W.3d 722 (Tex. 2016). In
Sanchez, 9-1-1 dispatchers received two calls within
ten minutes of each other. Id. at 725. Both
calls-from two different callers-originated from the same
apartment complex, and both requested assistance with a drug
overdose victim. Id. After the dispatcher informed
the person calling on behalf of Matthew Sanchez that
emergency responders were on route, the call was
disconnected. Id. Once responders arrived at the
apartment complex, “they erroneously concluded that the
two 9-1-1 calls were redundant and that a single individual
was the subject of both calls.” Id. Responders
ultimately never went to the apartment of Sanchez, who died
six hours later. Id. Sanchez's parents sued the
City of Dallas, alleging that the 9-1-1 call was disconnected
as a result of a defect in the City's phone system.
Id. They alleged that their son would have received
life-saving medical care but for this defect, which prevented
responders from having sufficient information to correctly
differentiate the two calls. Id.
issue before the Texas Supreme Court was whether the
plaintiffs had sufficiently alleged, to survive a motion to
dismiss, that a defective 9-1-1 system proximately caused
Sanchez's death.Sanchez, 494 S.W.3d at 726. The
court held that due to intervening factors, Plaintiffs could
not establish proximate cause. See Id. at 728 (The
death was caused by “drugs, the passage of time, and
misinterpretation of information [by the emergency
responders], ” and the alleged malfunction was merely
one of a “series of factors that contributed to Sanchez
not receiving timely medical assistance.”);
id. at 727-28 (“Between the alleged
malfunction and Sanchez's death, emergency responders
erroneously concluded separate 9-1-1 ...