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Amex Electric Services, Inc. v. Blanchard Refining Co. LLC

United States District Court, S.D. Texas, Galveston Division

June 6, 2019




         Pending before the Court is Defendant Blanchard Refining Company LLC's Motion to Dismiss ("Motion to Dismiss"). See Dkt. 12. This motion was referred to this Court by United States District Judge George C. Hanks, Jr. See Dkt. 21. After careful consideration of the Motion to Dismiss, the response, the reply, and applicable law, the Court RECOMMENDS that the Motion to Dismiss be DENIED.


         Plaintiff Abel Alvarez ("Alvarez") is a Hispanic male and the president and majority shareholder of Plaintiff Amex Electric Services, Inc. ("Amex"). Amex is a corporation that provides "services for the installation, maintenance and repair of electrical equipment and facilities." Dkt. 1 at 2.

         Defendant Blanchard Refining Company LLC ("Blanchard") owns and operates a petroleum refinery. In April 2014, Blanchard entered into a five-year Major Service Contract ("MSC") with Amex.[2] The MSC designates Amex as a CONTRACTOR and provides that Blanchard may, from time to time, request Amex to perform various electrical work at the refinery. See Dkt. 12-1. Importantly, the MSC states:

This Contract does not obligate [Blanchard] to order services from CONTRACTOR nor does it obligate CONTRACTOR to provide services to [Blanchard], but shall control and govern all services ordered by [Blanchard] and accepted by CONTRACTOR hereunder, and shall define the rights and obligations of [Blanchard] and CONTRACTOR with regard to the matters covered hereby.

Id. at 4.

         In February 2015, less than one year after executing the MSC, steelworkers employed by Blanchard went on strike, interrupting Amex's ability to provide electrical services to Blanchard. As a result, Blanchard "advised Alvarez that Amex workers were not to return to their work at the refinery until the Steelworkers' strike ended." Dkt. 1 at 6.

         After the strike ended in June 2015, Blanchard stopped using Amex's services and began to send all its electrical job orders to other non-minority owned electrical service firms. Nonetheless, Amex continued to communicate to Blanchard its willingness to provide electrical services throughout the term of the MSC. In response, on or about August 8, 2016, Blanchard reassured Alvarez that the MSC remained in effect and that Amex should remain prepared to render services. However, Blanchard has not provided any job orders to Amex since the steelworker strike began in February 2015.

         On September 5, 2018, Alvarez and Amex filed suit against Blanchard. Amex brings a claim under 42 U.S.C. § 1981, alleging that Blanchard interfered with its right to make and enforce contracts. Alvarez does not assert a Section 1981 claim.[3] Instead, Alvarez alleges an unspecified cause of action against Blanchard for "damages to [his] reputation as provided under the common law and statutes of the State of Texas." Dkt. 1 at 2.

         Blanchard now moves to dismiss this lawsuit for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).

         RULE 12(b)(6) STANDARD

          Rule 12(b)(6) allows parties to seek dismissal of a lawsuit for failure to state a claim upon which relief may be granted. A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the complaint against the legal standard set forth in Rule 8, requiring "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face."' Ashcroft. v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Determining whether a complaint states a plausible claim for relief [is] ... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679 (citation omitted).

         When conducting its inquiry, the Court "accept[s] all well-pleaded facts as true and view[s] those facts in the light most favorable to the plaintiff." Bustos v. Martini Club, Inc.,599 F.3d 458, 461 (5th Cir. 2010) (internal quotation marks and citation omitted). "[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of [the alleged] facts is improbable, and that a recovery is very remote and unlikely." Twombly, 550 U.S at 556 (internal quotation marks and citation omitted). It is important to highlight that a motion to dismiss under Rule 12(b)(6) is "viewed with disfavor and is ...

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