Searching over 5,500,000 cases.


searching
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.

Bullard v. Marker

United States District Court, W.D. Texas, Austin Division

July 31, 2019

PAMELA BULLARD, Plaintiff
v.
DAYNA MARKER and CINTAS CORPORATION NO. 2, INC., Defendants

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          SUSAN HIGHTOWER, UNITED STATES MAGISTRATE JUDGE

         TO: THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE

         Before 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 (“Local Rules”).

         I. BACKGROUND

         Plaintiff 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.[1] 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 materials.

         Almost 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.

         On May 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.

         II. STANDARDS OF REVIEW

         A. Rule 12(b)(1)

         “Federal 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.

         Standing 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.

         B. Rule 56(a)

         Summary 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.

         Once 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 ...


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.