United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
REBECCA RUTHERFORD UNITED STATES MAGISTRATE JUDGE
the Court are separate motions to dismiss this pro se civil
action filed by Defendants Diane Reed and David Elmquist (ECF
No. 36), Richard G. Dafoe (ECF No. 37), Abel Leal (ECF No.
38), Robert I. Berry (ECF No. 39), Robert D. Allen (ECF No.
43 & 58), David Jarvis (ECF No. 55), and Peter Denton
(“Denton”) and Harvest Investors, L.P. (together
with Denton, the “Denton Defendants”) (ECF No.
60). For the following reasons, the Court should grant
Defendants' motions and dismiss all of Plaintiff's
Rudolf Suter (“Suter”), a Swiss citizen currently
residing in Switzerland, is no stranger to this Court. He
previously was found liable for more than $1 million in
damages in a civil action filed in this district, was held in
contempt of court for his recalcitrance in cooperating in
post-judgment discovery, and pleaded guilty to committing
perjury in connection with filings made in a bankruptcy
proceeding in this district. See generally Compl.
(ECF No. 3); see also Denton v. Suter, No.
3:11-cv-02559-N, (N.D. Tex.); In re Rudolf Suter,
No. 14-30364-sgj7 (N.D. Tex.); United States v.
Suter, No. 3:17-cr-00046-N (N.D. Tex.).Suter now brings
this action against several civil attorneys and their
clients, the U.S. bankruptcy trustee, and the federal
prosecutor who were adverse to Suter in those legal
Complaint, Suter alleges that he lived and worked in the
United States from May 2010 to December 2015 on an H1B visa
as CEO and President of Pro Fit Optix Inc. See
Compl. at 2, 14. In August 2012, the Denton Defendants,
represented by their attorney, Robert Allen, obtained
judgments for over $1 million against Suter in a civil action
filed in this district. Id. at 2, ¶ 1; see
also Denton v. Suter, No. 3:11-cv-02559-N, 2016 WL
6581288 (N.D. Tex. Mar. 10, 2016). The Denton Defendants
subsequently served Suter post-judgment discovery requests as
part of their attempt to collect on the judgments. Compl. at
2, ¶ 1. Suter did not fully respond to the Denton
Defendants' discovery requests, even after the Court
ordered him to do so. Id. at 4, ¶ 9. Instead,
Suter left the country. Id. at 3, ¶ 7. On March
10, 2016, the Court found Suter to be in civil contempt and
ordered that he be “coercively incarcerated”
until he fully and completely answered under oath the Denton
Defendants' post-judgment discovery requests.
Id. at 4, ¶ 9; see also Order,
Denton v. Suter, 2016 WL 6581288 (N.D. Tex. Mar. 10,
2016). Suter returned to the United States several months
later and was arrested based on the Court's contempt
order and corresponding warrant for his arrest.
Compl. at 7, ¶ 21.
also tried to stave off post-judgment discovery of his assets
by filing for Chapter 7 bankruptcy protection in the United
States Bankruptcy Court for the Northern District of Texas in
2014. Id. at 2, ¶ 2; see also In re Rudolf
Suter, No. 14-30364-sgj7 (N.D. Tex.). Richard Dafoe
represented the Denton Defendants in the bankruptcy
proceeding. Compl. at 3, ¶ 4. Diane Reed was appointed
Trustee for the bankruptcy estate, and she was represented in
the bankruptcy proceeding by attorney David Elmquist.
Id. at 4, ¶ 4. Suter committed perjury in the
context of the bankruptcy proceeding and pleaded guilty in
2017 to violating 18 U.S.C. § 1621(2). See Id.
at 9, ¶ 24; see also United States v. Suter,
No. 3:17-cr-46-N (N.D. Tex.). David Jarvis, a federal
prosecutor, represented the government in the perjury case.
Compl. at 9, ¶ 24.
August 8, 2018, Suter, proceeding pro se, filed this
civil action asserting claims against Defendants for
allegedly “conspiring and for perjuring to give
Plaintiff a criminal charge. Assassination of character,
defamation, slander, wrongful accusations, emotional distress
injuries and mental anguish injuries, that subject Plaintiff
to cruel and unusual punishment under State and Federal
Constitution of the Unites [sic] States 8th Amendment.”
Compl. at 15. Suter contends that Allen, on behalf of the
Denton Defendants, conspired with Jarvis to initiate the
criminal proceedings against him. Id. at 8-9, 10-12.
He further contends that Allen, again on behalf of the Denton
Defendants, slandered him and published false and defamatory
statements about him in the local Dallas paper and other
periodicals. Id. at 4-5, 13 As a result of these
false stories, Suter allegedly suffered harm to his
reputation and lost business opportunities. Id.
Suter claims that the Defendants' conduct caused him to
suffer mental anguish and emotional distress. Id. at
9, ¶ 24. By this action, he seeks “not less than
$50 million U.S. dollars and for the Defendants' assets
to be held and seized until this matter is resolved or an
agreement is reached.” Id. at 15.
response to Suter's complaint, Defendants filed separate
motions to dismiss, see ECF Nos. 36, 37, 38, 39, 43,
55 & 60, asserting numerous bases for dismissal including
that the Complaint must be dismissed under Rule 12(b)(6)
because Suter's allegations are insufficient to state a
claim for relief. All of the Defendants except Reed and
Elmquist also argue that the Court should dismiss Suter's
Complaint under Rule 12(b)(1) because Suter's allegations
are insufficient to establish subject matter jurisdiction.
Dafoe, Leal, Berry, Jarvis, and Allen further assert they are
entitled to immunity from Suter's claims. Jarvis and the
Denton Defendants argue that Suter's Complaint should be
dismissed under Rule 12(b)(5) for insufficient service of
process, and Allen and the Denton Defendants argue that
Suter's Complaint must be dismissed pursuant to the Texas
“Anti-SLAPP” Act. Finally, the Denton Defendants
assert they are entitled to judgment on the pleadings under
Rule 12(c) because it is facially apparent from Suter's
Complaint that his claim for defamation is barred by the
applicable one-year statute of limitations governing claims
for defamation. Suter opposes only the motions filed by Allen
and the Denton Defendants. He responded to the motions filed
by Reed and Elmquist, Dafoe, Leal, and Berry stating that he
does not intend to pursue any claims against those
Defendants. He failed to file a response to Jarvis's
motion. Accordingly, the motions to dismiss are ripe for
Standards and Analysis
preliminary matter, the Court addresses Suter's
oft-repeated request to construe his filings “to a less
straighten [sic] standard that pleadings drafted by
lawyers” based on his pro se status. See,
e.g., Compl. at 15 (citing Haines v. Kerner,
404 U.S. 519 (1972); Resp. Br. at 8 (ECF No. 50); Resp. Br.
at 5 (ECF No. 65). Courts generally hold pro se
complaints to less stringent standards than formal pleadings
drafted by lawyers. Taylor v. Books A Million, Inc.,
296 F.3d 376, 378 (5th Cir. 2002) (quoting Miller v.
Stanmore, 636 F.2d 986, 988 (5th Cir. 1981)). However,
“despite [the] general willingness to construe pro
se filings liberally, ” courts “still
require pro se parties to fundamentally abide by the
rules that govern the federal courts.” E.E.O.C. v.
Simbaki, Ltd., 767 F.3d 475, 484 (5th Cir. 2014), as
revised (Sept. 18, 2014) (cleaned up). Therefore, a
pro se plaintiff is not excused from the
requirements to “properly plead sufficient facts that,
when liberally construed, state a plausible claim to relief,
[and] serve defendants . . . .” Id. (citations
omitted). Additionally, “regardless of whether the
plaintiff is proceeding pro se or is represented by
counsel, ‘conclusory allegations or legal conclusions
masquerading as factual conclusions will not suffice to
prevent a motion to dismiss.'” Taylor, 296
F.3d at 378 (quoting S. Christian Leadership Conference
v. Supreme Court of the State of La., 252 F.3d 781, 786
(5th Cir. 2001)); see also Simmons v. Methodist Hosps. of
Dall., 106 F.Supp.3d 799, 803 (N.D. Tex. May 1, 2015)
(stating that although pro se parties are
“often given more leeway” to correct errors, they
“are expected to comply with the rules of pleading and
. . . . ‘must set forth facts giving rise to a claim on
which relief may be granted.'”) (quoting
Johnson v. Atkins, 999 F.2d 99, 100 (5th Cir. 1993)
(per curiam)) (citing Birl v. Estelle, 660 F.2d 592,
593 (5th Cir. 1981) (per curiam)).
these principles in mind, the Court turns to the pending
motions to dismiss. The Court notes that when, as here, a
party files a Rule 12(b)(1) motion in conjunction with other
Rule 12 motions, the Court should consider the jurisdictional
challenge before addressing any attack on the merits.
Ramming v. United States, 281 F.3d 158, 161 (5th
Cir. 2001) (citation omitted). This “prevents a court
without jurisdiction from prematurely dismissing a case with
prejudice.” Id. (citation omitted). When the
court dismisses for lack of subject matter jurisdiction, that
dismissal “is not a determination of the merits and
does not prevent the plaintiff from pursuing a claim in a
court that does have proper jurisdiction.” Id.
courts are courts of limited jurisdiction; without
jurisdiction conferred by the Constitution and by statute,
they lack the power to adjudicate claims. Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)
(citations omitted). Federal court jurisdiction generally
requires (1) a federal question arising under the
Constitution, a federal law, or a treaty, or (2) complete
diversity of citizenship between adverse parties, and the
matter in controversy exceeds $75, 000. 28 U.S.C.
motion to dismiss under Rule 12(b)(1) challenges a federal
court's subject matter jurisdiction. Fed.R.Civ.P.
12(b)(1). The Fifth Circuit distinguishes between a
“facial attack” and a “factual
attack” on subject matter jurisdiction. Rodriguez
v. Tex. Comm'n on the Arts, 992 F.Supp. 876, 878
(N.D. Tex. Jan. 29, 1998). “A facial attack requires
the court merely to decide if the plaintiff has correctly
alleged a basis for subject matter jurisdiction” by
examining the allegations in the complaint, which are
presumed to be true. Id. (citation omitted). If the
defendant supports the motion with evidence, however, then
the attack is “factual, ” and “no
presumptive truthfulness attaches to plaintiff's
allegations, and the existence of disputed material facts
will not preclude the trial court from evaluating for itself
the merits of jurisdictional claims.” Williamson v.
Tucker, 645 F.2d 404, 413 (5th Cir. 1981). Regardless of
the nature of the ...