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Behrghundi v. Save Our City-Mart

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

December 19, 2019

KOLLIN BEHRGHUNDI, Plaintiff
v.
SAVE OUR CITY-MART, TEXAS, Defendant

          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 the Court is a Motion to Dismiss Plaintiff's First Amended Complaint (Dkt. No. 11) and Plaintiff's Response (Dkt. No. 12). 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), Federal Rule of Civil Procedure 72, and Rule 1 of Appendix C of the Local Rules of the United States District Court for the Western District of Texas.

         I. BACKGROUND

         Plaintiff Kollin Berhghundi (“Plaintiff”) is a local business owner in Mart, Texas, who lost his bid for election to the Mart City Council (“City Council”) in May 2019. On April 10, 2019, Plaintiff filed this action against an organization called “Save Our City-Mart, Texas” (“Save Our City” or “SOC”). Dkt. No. 1. Plaintiff alleges the following facts: Save Our City is an informal local organization whose membership “largely or entirely overlap[s]” with City Council and city officials and staff. Am. Compl., Dkt. No. 10 ¶ 24. Its “primary purpose” is to elect SOC members and preserve their incumbency. Id. at 1. Members include Chief City Planner Henry Witt III (“Witt”), City official Kevin Schaffer (“Schaffer”), Public Works Director Steven Smith (“Smith”), and Mayor Leonard Williams (“Williams”). Id. ¶¶ 24-26.

         Plaintiff alleges that SOC uses its Facebook page both to promote candidates for election and to act on behalf of the City Council, including announcing City policies on behalf of the City, promoting City initiatives, and issuing statements for the City. Id. ¶¶ 13, 28-32, 34. Plaintiff alleges that “Save [O]ur City for all intents and purposes is the City of Mart communications office.” Id. ¶ 36. For example, on March 12, 2019, the SOC Facebook page posted an announcement detailing the City's application for grant funding for the City's wastewater treatment plant.[1] Id. ¶ 29. At the same time, SOC promotes candidates for election. For example, on March 6, 2013, Williams, who was then a candidate for Mayor, welcomed a candidate named Kent Haney “to the ‘Save Our City' slate of candidates” in a post to the SOC Facebook page. Id. ¶ 27. Williams also stated that Haney “has pledged to be a supporting member” and identified Schaffer as a “very important member of the Save [O]ur City campaign.” Id. In full-page newspaper ads and social media posts, Save Our City ran “both self-identified and veiled political advertisements in favor of John Garrett and Tommy Roberson, both of whom defeated Plaintiff for City Council seats.” Id. ¶ 65. Plaintiff alleges that SOC has accomplished “some good things” but effectively serves as a “shadow city government” that works to exclude new representatives and undermine government transparency. Id. at 1.

         Plaintiff alleges that SOC, its members, and City officials have acted in concert to retaliate against him for engaging in three types of speech protected by the First Amendment: running for office, publicizing environmental violations by the City, [2] and recording and sharing a video of Mayor Len Williams (“Williams”) berating customers and “creating a scene” at Plaintiff's business, Firewater Liquor Store. Id. ¶¶ 23, 27, 32-38. They have retaliated by “publicly and falsely suggesting that Plaintiff is married to a felon”; discouraging customers from patronizing Plaintiff's business; vandalizing Plaintiff's business;[3] delaying city projects that affect Plaintiff's business; and providing false information to Plaintiff about the City Council election to undermine his candidacy. Id. ¶¶ 35, 39-41. Plaintiff alleges that SOC members also have discouraged others from running for office by providing inaccurate information to potential candidates. Id. ¶¶ 37-39.

         Plaintiff alleges two forms of injury: first, that he lost the May 2019 City Council election “after having to compete against what appears to have been improper coordination between SOC-member elected officials and city staff in sabotaging his candidacy”; and second, that he has suffered losses to his business, including loss of business opportunities, loss of customers and goodwill, and vandalism “apparently at the hands of Mart Public Works Director Steven Smith” and with the cooperation or knowledge of City Council and SOC member John Garrett. Dkt. No. 10 ¶ 15. Based on these allegations, Plaintiff asserts a claim for First Amendment retaliation under 42 U.S.C § 1983 (“Section 1983”) and a claim for violation of Texas Election Code § 253.131. Id. ¶¶ 46-61; 62-70.

         Plaintiff served his original complaint on Mayor Williams, an alleged member of SOC. Id. ¶ 22. Williams answered on behalf of SOC and filed a motion to dismiss.[4] Dkt No. 2. Plaintiff then filed his First Amended Complaint, deleting an equal protection claim and adding the Texas Election Code claim. Dkt. No. 10.

         Williams now moves for a second time to dismiss Plaintiffs' claims under Rule 12(b)(1) and Rule 12(b)(6). Dkt. No. 11. Williams asserts that: (1) Save Our City is a Facebook page, not an entity with legal capacity to be sued; (2) Plaintiff has failed to state a First Amendment claim under Section 1983 because (a) SOC is a Facebook page that cannot plausibly act under “color of law” as a state actor and (b) Plaintiff lacks standing to assert a Section 1983 claim because he has not alleged an actual injury; and (3) Plaintiff has failed to state a claim under the Texas Election Code because he has pled insufficient facts to support his claim that SOC is a “political committee” regulated by the statute.

         II. LEGAL STANDARDS

         Williams moves to dismiss Plaintiff's claims under Rule 12(b)(1) and Rule 12(b)(6).

         A. Rule 12(b)(1)

         Federal Rule of Civil Procedure 12(b)(1) allows a party to assert lack of subject matter jurisdiction as a defense to suit. Fed.R.Civ.P. 12(b)(1). Federal district courts are courts of limited jurisdiction and may only exercise such jurisdiction as is expressly conferred by the Constitution and federal statutes. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A federal court properly dismisses a case for lack of subject matter jurisdiction when it lacks the statutory or constitutional power to adjudicate the case. Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). In ruling on a Rule 12(b)(1) motion, the court may consider any one of the following: (1) the complaint alone; (2) the complaint plus undisputed facts evidenced in the record; or (3) the complaint, undisputed facts, and the court's resolution of disputed facts. Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008). “The burden of proof for a ...


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