United States District Court, W.D. Texas, Austin Division
REPORT AND RECOMMENDATION OF THE UNITED STATES
HIGHTOWER, UNITED STATES MAGISTRATE JUDGE
HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE
this Court are Defendants' Motion to Dismiss for Lack of
Subject Matter Jurisdiction filed on May 7, 2019 (Dkt. No.
19) and Defendants' Motion for Summary Judgment filed on
May 8, 2019 (Dkt. No. 20). The Plaintiff has not responded to
either motion. On July 18, 2019, the District Court referred
the above motions to the undersigned Magistrate Judge for
Report and Recommendation pursuant to 28 U.S.C. §
636(b)(1)(B), Federal Rule of Civil Procedure 72 and Rule
1(d) of Appendix C of the Local Rules of the United States
District Court for the Western District of Texas
Pamela Bullard (“Plaintiff”) was the president
and owner of Georgetown Screenprint & Embroidery, Inc.
(“Georgetown Screenprint”), a Texas corporation
which specialized in screen printing and
embroidery. Defendant Cintas Corporation No. 2, Inc.
(“Cintas”) is a foreign corporation which
supplies uniforms and other products to a wide variety of
industries. Cintas uses vendors to decorate its garments with
corporate logos. In 2008, Georgetown Screenprint became a
vendor for Cintas and began taking orders to decorate
garments for Cintas. In February 2015, Dayna Marker, the
Director of Inside Sales and Catalog Operations for Cintas,
informed Plaintiff that Cintas was suspending Georgetown
Screenprint as a vendor for 60 days, in order for Georgetown
Screenprint to improve the accuracy of its invoicing and the
quality of its work. Cintas stopped doing business with
Georgetown Screenprint in March 2015. Plaintiff alleges that
Marker tortiously interfered with her business relation with
Cintas, in part by sending “a letter to various Cintas
locations threatening dire consequences to said locations if
they continued to provide business to Plaintiff's
company.” Dkt. No. 1-1 at p. 5. Plaintiff alleges that
as a direct result of Marker's actions, her company went
out of business and she lost all leases, equipment and
three years later, on January 4, 2018, Plaintiff filed this
tortious interference with business relations lawsuit in the
368th Judicial District Court of Williamson
County, Texas against Cintas and Marker (collectively,
“Defendants”). Although Plaintiff names both
Marker and Cintas in the lawsuit, Plaintiff alleges only that
Marker tortiously interfered with her business relation
between Cintas and Georgetown Screenprint in violation of
Texas law. See Bullard v. Marker, et al., No.
18-0020-C368 (368th Dist. Ct., Williamson County,
Tex. April 9, 2019). Plaintiff seeks to recover $3 million in
compensatory damages, $300, 000 in liquated damages, and
attorneys' fees and costs.
8, 2018, Defendants removed this case to federal court on the
basis of diversity jurisdiction. Defendants filed the instant
Motion to Dismiss, arguing that Plaintiff's lawsuit
should be dismissed under Federal Rule of Civil Procedure
12(b)(1) for lack of jurisdiction because Plaintiff does not
have standing to bring claims on behalf of Georgetown
Screenprint. Defendants also filed an alternative Motion for
Summary Judgment arguing that they are entitled to summary
judgment because Plaintiff's sole claim of tortious
interference with business relations is barred by the statute
of limitations. Plaintiff has not responded to either motion.
STANDARDS OF REVIEW
courts have no jurisdiction unless a case or controversy is
presented by a party with standing to litigate.” De
Leon v. Perry, 975 F.Supp.2d 632, 645 (W.D. Tex. 2014),
aff'd sub nom. De Leon v. Abbott, 791 F.3d 619
(5th Cir. 2015). A court properly dismisses a case where it
lacks the statutory or constitutional power to decide it.
See Home Builders Ass'n of Miss., Inc. v. City of
Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). Dismissal
for lack of subject matter jurisdiction is warranted when
“it appears certain that the plaintiff cannot prove any
set of facts in support of his claim that would entitle
plaintiff to relief.” Gilbert v. Donahoe, 751
F.3d 303, 307 (5th Cir. 2014) (quoting Ramming v. United
States, 281 F.3d 158, 161 (5th Cir. 2001)). “Lack
of subject matter jurisdiction may be found in any one of
three instances: (1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the record; or
(3) the complaint supplemented by undisputed facts plus the
court's resolution of disputed facts.”
Ramming, 281 F.3d at 161.
is a component of subject matter jurisdiction, and it is
properly raised by a motion to dismiss under Rule 12(b)(1).
See Mollis v. Lynch, 121 F.Supp.3d 617, 626 (N.D.
Tex. 2015) (noting that “whether a party has proper
standing is a question of subject matter jurisdiction”
(citing Cobb v. Cent. States, 461 F.3d 632, 635 (5th
Cir. 2006)). The requirement of standing has three elements:
(1) injury in fact, (2) causation, and (3) redressability.
See Bennett v. Spear, 520 U.S. 154, 167 (1997). The
injury cannot be merely “conjectural or
hypothetical.” Summers v. Earth Island
Inst., 555 U.S. 488, 493 (2009). Causation requires that
the injury “fairly can be traced to the challenged
action of the defendant” rather than to “the
independent action of some third party not before the
court.” Simon v. E. Ky. Welfare Rights Org.,
426 U.S. 26, 41-42 (1976). Redressability requires that it is
likely, “as opposed to merely ‘speculative,'
that the injury will be ‘redressed by a favorable
decision.'” Lujan v. Defs. of Wildlife,
504 U.S. 555, 561 (1992) (quoting Simon, 426 U.S. at
38, 43). The party invoking federal subject matter
jurisdiction bears the burden of establishing each element.
Ramming, 281 F.3d at 161.
judgment shall be rendered when the pleadings, the discovery
and disclosure materials, and any affidavits on file show
that there is no genuine dispute as to any material fact and
that the moving party is entitled to judgment as a matter of
law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett,
477 U.S. 317, 323-25 (1986); Washburn v. Harvey, 504
F.3d 505, 508 (5th Cir. 2007). A dispute regarding a material
fact is “genuine” if the evidence is such that a
reasonable jury could return a verdict in favor of the
nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). When ruling on a motion for summary
judgment, the court is required to view all inferences drawn
from the factual record in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith
Radio, 475 U.S. 574, 587 (1986); Washburn, 504
F.3d at 508. A court “may not make credibility
determinations or weigh the evidence” in ruling on a
motion for summary judgment. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000); see also
Anderson, 477 U.S. at 254-55.
the moving party has made an initial showing that there is no
evidence to support the nonmoving party's case, the party
opposing the motion must come forward with competent summary
judgment evidence of the existence of a genuine fact issue.
Matsushita, 475 U.S. at 586. Mere conclusory
allegations are not competent summary judgment evidence, and
thus are insufficient to defeat a motion for summary
judgment. Turner v. Baylor Richardson Med. Ctr., 476
F.3d 337, 343 (5th Cir. 2007). Unsubstantiated assertions,
improbable inferences, and unsupported speculation are not
competent summary judgment evidence. Id. The party
opposing summary judgment is required to identify specific
evidence in the record and to articulate the precise manner
in which that evidence supports its claim. See Adams v.
Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th
Cir. 2006). If the ...