United States District Court, S.D. Texas, Galveston Division
AMEX ELECTRIC SERVICES, INC.; and ABEL ALVAREZ Plaintiffs.
BLANCHARD REFINING CO., LLC, d/b/a GALVESTON BAY REFINERY Defendant.
MEMORANDUM AND RECOMMENDATION
M. EDISON UNITED STATES MAGISTRATE JUDGE
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.
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
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. 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
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
Id. at 4.
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.
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.
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. 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.
now moves to dismiss this lawsuit for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6).
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).
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 ...