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Myart v. City of San Antonio

United States District Court, W.D. Texas, San Antonio Division

October 7, 2019

JAMES W. MYART JR., Plaintiff,



         To the Honorable Chief United States District Judge Orlando L. Garcia:

         This Report and Recommendation concerns Defendants' Motion to Dismiss Pursuant to Fed. R. Civ. Proc. 12(b)(6) [#8]. All pretrial matters in this case have been referred to the undersigned for disposition pursuant to Western District of Texas Local Rule CV-72 and Appendix C [#5]. The undersigned has authority to enter this recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). The motion should be granted, and Plaintiff's claims against Defendants City of San Antonio, Ron Nirenberg, Eric Walsh, and Leticia Vacek should be dismissed. The undersigned will also order Plaintiff to show cause to the District Court why his claims against Councilwoman Jada Andrews-Sullivan should not be dismissed for failure to state a claim. The District Court should consider Plaintiff's response or lack thereof in issuing its Order on this report. In light of these recommendations, the undersigned will dismiss as moot Plaintiff's Motion for Permission for Electronic Filing [#17].

         I. Background

         Plaintiff filed his Sworn/Verified Original Petition in state court on July 29, 2019 against the City of San Antonio, the Mayor of San Antonio (Ron Nirenberg), the City Manager of San Antonio (Eric Walsh), the San Antonio City Clerk (Leticia Vacek), and San Antonio City Council Member Jada Andrews-Sullivan, alleging that Defendants conspired to seat Councilwoman Andrews-Sullivan on City Council, despite the fact that she does not live in the district she was elected to represent. (Orig. Pet. [#1-2].) According to Plaintiff, Councilwoman Andrew-Sullivan used her mother's address, not her own, in order to be eligible for election. Plaintiff asserts that the acts of Defendants violate his civil rights. Defendant the City of San Antonio removed the Petition to federal court on July 29, 2019. (Notice of Removal [#1].)

         Following removal, Plaintiff filed a motion requesting an emergency hearing to establish Ms. Andrew-Sullivan's residency as well as motion for a TRO “and injunctive relief.” The undersigned denied Plaintiff's request for an emergency hearing and issued a report and recommendation recommending that Plaintiff's motion for a TRO be denied [#6]. Plaintiff appealed the undersigned's order and filed objections to the report. The District Court affirmed the undersigned's ruling and adopted the report and recommendation on September 9, 2019 [#15]. The undersigned's report and recommendation also ordered the parties to file briefs supporting their position that the Court had subject-matter jurisdiction over this case at the time of removal. Defendant the City of San Antonio, the removing party, filed its brief as ordered, arguing that Plaintiff alleges that his case arising under the Voting Rights Act of 1965, 52 U.S.C. § 10101, et seq., and therefore this Court has federal-question jurisdiction over Plaintiff's Original Petition [#14]. Plaintiff filed a Notice of Appeal on September 24, 2019, which indicates he is appealing the District Court's September 9, 2019 Order [#16]. The appeal remains pending before the Fifth Circuit Court of Appeals.[1]

         II. Legal Standard

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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. “Although a complaint “does not need detailed factual allegations, ” the “allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. The allegations pleaded must show “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678.

         In reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court “accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” Martin K. Eby Const. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004) (internal quotation omitted). However, a Court need not credit conclusory allegations or allegations that merely restate the legal elements of a claim. Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 469 (5th Cir. 2016) (citing Iqbal, 556 U.S. at 678). In short, a claim should not be dismissed unless the court determines that it is beyond doubt that the plaintiff cannot prove a plausible set of facts that support the claim and would justify relief. See Twombly, 550 U.S. at 570.

         This Court is mindful that in evaluating the merits of Defendants' motion to dismiss, a court views Plaintiff's pro se pleadings under a less stringent standard than those drafted by an attorney. Alexander v. Ware, 714 F.2d 416, 419 (5th Cir. 1983). As a result, Plaintiff's filings are entitled to a liberal construction that includes all reasonable inferences that can be drawn from these pleadings. See Id. The undersigned does remind the District Court, however, that although Plaintiff is proceeding pro se in this case, he did attend law school and previously was a member of the bar, so he has more legal training and experience than a typical pro se litigant.

         Defendants' motion was filed on August 19, 2019 and served on Plaintiff by mail. According to this Court's Local Rules, Plaintiff's response to Defendants' motion was due within 17 days of the motions' filing, on or before September 5, 2019. See Loc. R. CV-7(e) (responses to dispositive motions due within 14 days of motion's filing); Fed.R.Civ.P. 6(a), (d) (adding three days to response deadline for service by mail and extending the deadline to Monday if the final date otherwise falls on a Sunday). To date, Plaintiff has not filed a response to the motion. Pursuant to Local Rule CV-7(e), if there is no response filed within the time period prescribed by the rules, the court may grant the motion as unopposed.

         III. Analysis

         Defendants City of San Antonio, Ron Nirenberg, Eric Walsh, and Leticia Vacek move to dismiss the claims asserted in Plaintiff's Original Petition for failure to state a claim. The Court should grant the motion.

         Plaintiff's Original Petition alleges that Defendants knowingly “perpetuated a scheme to systematically seat [Andrew-Sullivan] in [District 2] knowing she does not live in this district.” (Orig. Pet. [#1-2] at 2.) According to Plaintiff, Andrews-Sullivan used her mother's address, which is located in the District, when she in fact lives elsewhere. (Id. at 2-3.) Plaintiff contends these acts constitute “official oppression” and violate the Voting Rights Act of 1965, the Texas Election Code, and Plaintiff's “constitutional right” to be represented by a person who meets the residency requirements pursuant to state law and the San Antonio City ...

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