United States District Court, W.D. Texas, Austin Division
HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION OF THE UNITED STATES
W. AUSTIN UNITED STATES MAGISTRATE JUDGE.
the Court are Defendant's Motion to Dismiss
Plaintiff's First Amended Complaint (Dkt. No. 9);
Plaintiff's Response (Dkt. No. 11); and Defendants'
Reply (Dkt. No. 13). The undersigned submits this Report and
Recommendation to the United States District Court pursuant
to 28 U.S.C. § 636(b) and Rule 1(h) of Appendix C of the
Local Court Rules.
Lee Wilson d/b/a Bail America operates a bail bond business
in Comal County, Texas. Defendant Nina Russell Stanfield is a
member of the Comal County Bail Bond Board
(“Board”). The Board is a county entity created
by state statute and is responsible for supervising and
regulating the bail bond business and enforcing bond rules
and statutes. Pruett v. Harris Cty. Bail Bond Bd.,
499 F.3d 403, 407 n.1 (5th Cir. 2007), cert. denied,
552 U.S. 1181 (2008). Wilson alleges that Stanfield, who is
also an operator of a bail bond business in Comal County,
abused her position as a member of the Board in attempt to
suspend or revoke Wilson's bail bond license in Comal
County in order to “remove her largest competitor from
the market.” Dkt. No. 8 at 2. He alleges that Stanfield
filed seven baseless complaints against him accusing him of
violating the solicitation and advertising regulations
contained in Tex. Occ. Code § 1704.109. Wilson also
alleges that Stanfield manipulated the Board to circumvent
due process requirements and repeatedly put Wilson's
license on the Board's Agenda, in an unsuccessful attempt
to cause him to lose his license. In this suit, Wilson
alleges that Stanfield's attempts to revoke his license
violated his due process rights under the Fourth and
Fourteenth Amendments. In addition to seeking a permanent
injunction to “prevent Defendant Stanfield from
engaging in activities in violation of the law or Board
rules, ” Wilson seeks compensatory and punitive damages
and attorneys fees.
moves to dismiss the suit, contending Wilson lacks standing,
his claims are barred by sovereign immunity, and he has
failed to state a claim upon which relief may be granted.
STANDARD OF REVIEW
is a matter of subject matter jurisdiction-when a plaintiff
lacks standing to bring his case, the court lacks subject
matter jurisdiction over the dispute. Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560 (1992). A motion to
dismiss pursuant to Rule 12(b)(1) for lack of subject matter
jurisdiction tests the court's statutory or
constitutional power to adjudicate the case. Home
Builders Ass'n of Miss., Inc. v. City of Madison,
Miss., 143 F.3d 1006, 1010 (5th Cir. 1998). “The
burden of proof for a Rule 12(b)(1) motion to dismiss is on
the party asserting jurisdiction.” Ramming v.
United States, 281 F.3d 158, 161 (5th Cir. 2001). In
ruling on a Rule 12(b)(1) motion to dismiss, the court may
rely on (1) the complaint alone, presuming the allegations to
be true, (2) the complaint supplemented by undisputed facts,
or (3) the complaint supplemented by undisputed facts and by
the court's resolution of disputed facts. Den Norske
Stats Oljeselskap As v. HeereMac Yof, 241 F.3d 420, 424
(5th Cir. 2001).
Rule 12(b)(1) motion is filed with other Rule 12 motions, the
court should address the jurisdictional attack before
addressing any attack on the merits. See Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 578 (1999)
(“Customarily, a federal court first resolves doubts
about its jurisdiction over the subject matter. . .”).
Accordingly, the Court will first address the issue of
whether the Plaintiff has standing to bring this lawsuit.
See Calderon v. Ashmus, 523 U.S. 740, 745 (1998)
(“[We] have decided that we must first address whether
this action for a declaratory judgment is the sort of
‘Article III' ‘case or controversy' to
which federal courts are limited.”).
Article III of the Constitution, the federal courts have
jurisdiction over a claim between a plaintiff and a defendant
only if it presents a “case or controversy.” This
is a “bedrock requirement.” Raines v.
Byrd, 521 U.S. 811, 818 (1997). The power granted to
federal courts under Article III “is not an
unconditioned authority to determine the constitutionality of
legislative or executive acts.” Valley Forge
Christian College v. Americans United For Separation of
Church and State, Inc., 454 U.S. 464, 471 (1982). In
order to establish a case or controversy sufficient to give a
federal court jurisdiction over their claims, a plaintiff
must satisfy three criteria. See Lujan, 504 U.S. at
560-61. First, the plaintiff must show that he has suffered,
or is about to suffer, an “injury in fact.”
Id. Second, “there must be a causal connection
between the injury and the conduct complained of.”
Id. Third, “it must be likely, as opposed to
merely speculative, that the injury will be redressed by a
favorable decision.” Id. at 561(citation
omitted). The party invoking federal jurisdiction bears the
burden of establishing these elements. Id. If any
one of these three elements-injury, causation, and
redressability-is absent, the plaintiff lacks standing under
Article III to assert his or her claim. Here, Stanfield bases
her standing argument on the allegation that Wilson has
failed to meet the injury in fact and redressability
first element of standing requires the plaintiff to show that
he has suffered an “injury in fact-an invasion of a
legally protected interest which is (a) concrete and
particularized, and (b) actual or imminent, not conjectural
or hypothetical.” Id. at 560. Wilson alleges
that Stanfield's attempt to revoke his license violated
his due process rights under the Fourteenth
Amendment. The Fourteenth Amendment's Due Process
Clause provides that certain substantive rights-life,
liberty, and property-cannot be deprived except pursuant to
“constitutionally adequate procedures.”
Cleveland Board of Education v. Loudermill, 470 U.S.
532, 541 (1985). Those “constitutionally adequate
procedures” require notice and an opportunity to be
heard. Mullane v. Central Hanover Bank & Trust
Co., 339 U.S. 306, 313 (1950). To show that he suffered
an injury in fact, Wilson would have to demonstrate that his
due process rights were violated in this case. “To
bring a procedural due process claim under § 1983, a
plaintiff must first identify a protected life, liberty or
property interest and then prove that governmental action
resulted in a deprivation of that interest.”
Baldwin v. Daniels, 250 F.3d 943, 946 (5th Cir.
2001). If the plaintiff establishes a deprivation of a
property right, then courts look to determine what process
was due in the case. Logan v. Zimmerman Brush Co.,
455 U.S. 422, 428 (1982).
Court will assume that Wilson has a property interest in his
state-issued bondsman license. See Richards v. City of
Columbus, 1993 WL 413911at *2 (5th Cir. 1993) (“We
assume arguendo, as did the district court, that
Richards had a property interest in his state-issued bondsman
license and that property interest merited due process
protection.”). But Wilson has failed to allege a due
process violation because his pleadings demonstrate
that-despite the alleged efforts of Stanfield to the
contrary-his license was never revoked. Thus, Wilson cannot
allege he was deprived of any property right he has in his
license. As Wilson acknowledges in his pleadings, he had a
full hearing before the Board on August 31, 2018, and
“the complaint was dismissed by the Board.” Dkt.
No. 8 at ¶ 14. Wilson's bail bond license has not
been revoked and he has not been punished by the Board.
Accordingly, Wilson has failed to allege a deprivation of a
property right, and thus a violation of due process. See
Guiles v. Tarrant Cty. Bail Bond Bd., 2011 WL 13183115
at * 6 (N.D. Tex. Mar. 5, 2011) aff'd, 456
Fed.Appx. 485 (5th Cir. 2012); Castaneda v. Flores,
2007 WL 2329857 at *4 (S.D. Tex. Aug. 13, 2007). See also
LaCroix v. Marshall Cnty., Mississippi, 409 Fed.Appx.
794, 804 (5th Cir. 2011) (because county did not deny
plaintiffs license tags there was no deprivation of a
protected property interest).
addition to alleging that Stanfield violated his due process
rights in the past by filing complaints against him, Wilson
also seeks a permanent injunction to “prevent Defendant
Stanfield from engaging in activities in violation of the law
or Board rules” in the future. “In order to
demonstrate that a case or controversy exists to meet the
Article III standing requirement when a plaintiff is seeking
injunctive or declaratory relief, a plaintiff must allege
facts from which it appears there is a substantial likelihood
that he will suffer injury in the future.” Bauer v.
Texas, 341 F.3d 352, 358 (5th Cir. 2003). The plaintiff
must allege facts from which the continuation of the dispute
may be reasonably inferred. Id. Additionally, the
continuing controversy may not be conjectural, hypothetical,
or contingent; it must be real and immediate, and create a
definite, rather than speculative threat of future injury.
Id. Wilson's allegations, though troubling, are
not enough to create standing for him to seek an injunction
for future actions. As the district court in Guiles
stated: “This Court does not have the power to enjoin
the Board from barring [plaintiff's] license in the
future because Texas law gives them the authority to suspend
[plaintiff's] license should he fail to comply with the
bail-bond licensing requirements.” Guiles,
2011 WL 13183115 at * 4. See also, CAMP Legal ...