Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Aubrey v. D Magazine Partners, L.P.

United States District Court, N.D. Texas, Dallas Division

June 20, 2019

STEVEN B. AUBREY, et al., Plaintiffs,
D MAGAZINE PARTNERS, L.P., et al., Defendants.


         Before the Court is Judge Eric Vaughn Moyé's Motion to Dismiss. Doc. 63. For the reasons stated, the Court GRANTS the motion.




         This case against Judge Eric Vaughn Moyé (Judge Moyé) arises out of a statement Judge Moyé made on May 18, 2016, concerning his recusal as presiding judge over a defamation case involving Plaintiff Steven B. Aubrey (Aubrey) and now-deceased attorney Ira Tobolowsky (Tobolowsky). Doc. 54, Second Am. Compl. (SAC), ¶¶ 63-66. Aubrey filed a civil rights action under 42 U.S.C. § 1983 and a Texas state law claim of intentional infliction of emotional distress against Judge Moyé based on allegations that Judge Moyé accused Aubrey of murder when he recused himself in the case between Plaintiffs and the now-deceased Tobolowsky. Doc. 80, Pls.' Resp., 2. Aubrey asserts that Judge Moyé was acting outside his judicial capacity when he made the following statement in court regarding his recusal:

with the allegations which have been made related to Mr. Aubrey and his implication in the death of Mr. Tobolowsky and related issues, I don't think that it is unreasonable for a judge other than myself to hear this case.

Doc. 54, SAC, ¶ 206. Aubrey argues that Judge Moyé's in-court statement concerning his recusal allegedly denied Aubrey of his right to the presumption of innocence and violated the Fourth and Fourteenth Amendment, made actionable under § 1983. Id. at ¶ 333; Doc. 63, Mot., 3. Additionally, it is alleged that Judge Moyé intended to cause Aubrey emotional distress when he made his recusal statement with the media present in the courtroom. Doc. 54, SAC, ¶¶ 404-06. Aubrey seeks monetary damages, exemplary damages, and an injunction preventing all defendants-including Judge Moyé- from making any defamatory statements against Plaintiffs. Id. at 101.

         Judge Moyé moves to dismiss under Rule 12(b)(6) claiming that his statement is protected by judicial immunity because his authority to recuse himself is judicial in nature and was not made in the absence of all jurisdiction. Doc. 63, Mot., 20 (citing, inter alia, Pledger v. Russell, 702 Fed.Appx. 683, 684-85 (10th Cir. 2017)). Additionally, Judge Moyé argues that Aubrey's claim for injunctive relief should be dismissed because he is immune from claims for injunctive relief unless a declaratory decree is violated or unavailable. Id. at 24 (citing, inter alia, ODonnell v. Harris County, 251 F.Supp.3d 1052, 1155-56 (S.D. Tex. 2017), aff'd as modified, 882 F.3d 528 (5th Cir. 2018)).

         Aubrey and Brian E. Vodicka (Vodicka) filed their complaint (Doc. 3) on January 8, 2019, and amended their complaint for the second time on April 29, 2019 (Doc. 54). Judge Moyé then filed a motion to dismiss (Doc. 63) on May 9, 2019, raising several grounds for dismissal under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). See generally Doc. 63, Mot. Aubrey and Vodicka submitted a response to the motion to dismiss (Doc. 80) on May 29, 2019. On June 11, 2019, Judge Moyé submitted his reply. (Doc. 87). The Court now considers that Motion.



         A. The Rule 12(b)(6), Motion-to-Dismiss Standard

         Under Federal Rule of Civil Procedure Rule 8(a)(2), a complaint 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). Rule 12(b)(6) authorizes the Court to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Id. 12(b)(6). To survive a 12(b)(6) motion, “enough facts to state a claim to relief that is plausible on its face” must be pled. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. At this stage, a court “must accept all well-pleaded facts alleged in the complaint as true and must construe the allegations in the light that is most favorable to the plaintiff.” J&J Sports Prods., Inc. v. Live Oak Cnty. Post No. 6119 Veterans of Foreign Wars, 2009 WL 483157, at *3 (S.D. Tex. Feb. 24, 2009) (quoting Cent. Laborers' Pension Fund v. Integrated Elec. Servs., 497 F.3d 546, 550 (5th Cir. 2007)). The Fifth Circuit has held that dismissal is appropriate “if the complaint lacks an allegation regarding a required element necessary to obtain relief.” Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995) (internal citation omitted). Essentially, “the complaint must contain either direct allegations on every ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.