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Western District of Texas Court Summaries
FEDERAL COURT UPDATE
By Soledad Valenciano, Melanie Fry*, and Jeffrie Lewis
*After many, many years of faithful and outstanding service as a co-author of the Federal Court Update, Melanie Fry will be turning the reins over to another Dykema Gossett, PLLC attorney, Sabrina Salazar, effective with the March-April 2025 issue. The San Antonio Lawyer Editorial Board—and I personally, as Editor in Chief—thank Melanie for her tremendous contribution to the magazine and to SABA.
- Sara Murray
Immigration; Standing
Devins v. Bitter, SA-24-CV-00257-ESC (Chestney, E., October 2, 2024).
The plaintiff sought reversal of the denial of a non-party’s F-1 student visa application and also requested the issuance of a student B-1 business visa for the non-party, claiming the U.S. Department of State’s prior denial of the non-party’s visa applications violated the Religious Freedom Restoration Act of 1993 because the plaintiff is a Christian seeking to sponsor the student’s academic studies in the U.S. The court determined that the plaintiff failed to plead facts that established constitutional or prudential standing. Article III standing requires the satisfaction of three elements: (1) a concrete and particularized injury-in-fact, either actual or imminent, (2) a causal connection between the injury and defendant’s challenged conduct, and (3) a likelihood that the injury suffered will be redressed by a favorable decision. Prudential standing “embodies judicially self-imposed limits on the exercise of federal jurisdiction.” The plaintiff’s interest in assisting an international student is not governed by any statutory or regulatory framework such that there exist any interests personal to the plaintiff that are contemplated or protected in the context of F-1 student visas or B-1 business visas. The plaintiff had not al-
leged a concrete and particularized injury or a legally protected interest redressable by the court nor were the plaintiff’s alleged injuries within the “zone of interest” of the immigration framework at issue to give rise to prudential standing to seek relief in the form of a visa for the student. Nor had the plaintiff articulated a plausible theory as to how his ability to exercise his religion is causally linked to the decision to deny the student’s visa. The doctrine of consular non-reviewability further limited the plaintiff’s claims since a consular officer’s decision to deny a visa is not subject to judicial review. Such decisions are committed to agency discretion by law, and any constitutional-rights exception did not apply under the facts of the case. As long as there is a facially legitimate and bona fide reason for the denial, as existed in this case—namely, a failure to overcome the presumption of immigration intent—the plaintiff’s claims do not fall under the exception.
Indisputably Meritless Claims
Whitfield v. Navy Fed. Credit Union, SA-24-CV-00082-HJB (Bemporad, H., October 1, 2024).
The plaintiff’s amended complaint alleged that the defendant credit union refused to accept endorsed bills as payment toward his credit card debt and car loan which the plaintiff claimed was “Breach Of Contract for Nonperformance of fiduciary duties.” Because the plaintiff’s claims were based on indisputably meritless legal theories, i.e., a purported obligation to accept non-legal tender, no amendment to his complaint could save the claims. A court may dismiss a complaint for failure to state a claim under Rule 12(b)(6) “based either on a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” With respect to the former, a complaint may be dismissed “if it lacks an arguable basis in law or fact:” i.e., “if it relies on an indisputably meritless legal theory.”
Temporary Restraining Order; Permanent Injunction
Am. Dairy Queen Corp. v. UAM, LLC, SA24-CV-01209-JKP (Pulliam, J., October 25, 2024).
The court granted plaintiff American Dairy Queen Corporation’s (“ADQ”) motion for temporary restraining order and deferredin-part ADQ’s motion for preliminary injunction. ADQ requested restraint of its former/ terminated franchisee who continued to operate a Dairy Queen and use ADQ’s trademarks without authorization. A TRO requires proof of: (1) a substantial likelihood that the movant will prevail on the merits; (2) a substantial threat that irreparable harm will result if the injunction is not granted; (3) the threatened injury outweighing the threatened harm to the defendant; and (4) the granting of the TRO will not disserve the public interest. The court concluded that “at this juncture ADQ has shown a substantial likelihood of success on the merits” on its claims under the Lanham Act, 15 U.S.C. § 1114, for trademark infringement as the former/terminated franchisee continued to operate the restaurant in question as a Dairy Queen without a license. The court found that a franchisee’s continued use of marks after termination establishes irreparable harm given the lost control over the franchisor’s valuable trademarks and quality of the restaurants operating under its name. Here, the threatened harm to ADQ (i.e., loss of control over its trademarks and a substantial threat to its reputation, goodwill and brand) outweighs the threatened harm to the former/ terminated franchisee (i.e., monetary losses). The court also found that granting a TRO would not disserve the public interest as the public interest is always served by enforcing laws like the Lanham Act and by enjoining the use of infringing trademarks that may deceive the public. Given food safety and product quality issues raised by ADQ, the court also found it is in the public interest to preserve the status quo and give the parties ample opportunity to develop the record without subjecting the public to potential improper hygiene protocols. The court deferred ruling on the motion for preliminary injunction until after a full evidentiary hearing.
Dismissal; Rule 41(a)
Kennedy v. Credence Res. Mgmt., SA-23CA-00470-FB (Biery, F., October 3, 2024)
The court granted in part and denied in part a pro-se plaintiff’s motion for voluntary dismissal without prejudice, holding that the motion was granted to the extent the plaintiff sought to voluntarily dismiss his case but denied to the extent the plaintiff sought a dismissal without prejudice. The record was clear that the plaintiff had repeatedly failed to participate in and otherwise prosecute his case. Under Rule 41, a plaintiff at this stage of the case may only voluntarily dismiss his case by court order, on terms the court considers proper. Rule 41 also states that should the case be dismissed instead for want of prosecution, such dismissal operates as an adjudication on the merits unless the court orders otherwise. Here, instead of responding to the court’s order that he show cause why his case should not be dismissed for want of prosecution, the plaintiff asked to have his claims voluntarily dismissed without prejudice in what the court considered an apparent attempt to keep the option to re-file his suit against defendants at some later date. The Fifth Circuit has affirmed the denial of a motion to voluntarily dismiss without prejudice when the plaintiff waited until a late stage to seek that voluntary dismissal, and the defendants had exerted significant time and effort up to that point, facts the court found clearly present. Further, dismissal with prejudice against plaintiffs who fail to prosecute their cases is warranted when (1) there is a “clear record of delay or contumacious conduct by the plaintiff,” and (2) the court “has expressly determined that lesser sanctions would not prompt diligent prosecution or . . . the district court employed lesser sanctions that proved to be futile.”
Untimely Filing; Motion to Strike; FRCP 16(b)(4)
Malhotra v. State Farm Lloyds, SA-23CV-00780 (Bemporad, H. – July 29, 2024).
In addition to its response to the defendant’s Daubert motion, the plaintiffs filed a motion to strike the Daubert motion as untimely which the defendant had filed (1) seven weeks after the deadline set by the court’s scheduling order, and (2) without a showing of good cause to extend the deadline under Federal Rule of Civil Procedure 16(b)(4). Without responding to the plaintiffs’ motion to strike, the defendant replied to the plaintiffs’ response to the Daubert motion, in which the defendant attributed its untimely filing to inadvertence—an internal calendaring error—and its failure to seek leave to a lack of awareness of its untimeliness. Rule 16(b)(4) allows deadline modification “only for good cause and with the judge’s consent.” Nonetheless, despite the defendant’s failure to seek leave before filing its Daubert motion, the court went through the four-prong analysis to determine whether the defendant met Rule 16’s good cause standard, which is met by showing an inability to reasonably meet the deadline despite the diligence of the party seeking the extension. These four factors are (1) the explanation for the untimely filing; (2) the significance of the modification; (3) any potential prejudice resulting from allowing the modification; and (4) whether a continuance would cure any such prejudice. Nested under the first factor of this analysis, the court’s ruling turned on whether the defendant could “show that it has been diligent in pressing its claims but despite its diligence could not reasonably have met the scheduling deadline.” The defendant’s inadvertence explanation “is tantamount to no explanation at all.” An inadequate explanation for the delay is a sufficient basis for denial of the extension. The court therefore denied the Daubert motion as untimely.
Premises Liability; Unreasonably Dangerous; Open and Obvious
Shelton v. PF Westpond, LLC , SA-22CV-00973 (Bemporad, H. – June 13, 2024; adopted by Judge Orlando Garcia July 10, 2024)
The plaintiff alleged that she tripped on an uneven portion of sidewalk while walking back to her car after paying rent, causing her to fall and break her wrist. To prevail on her premises liability claim, the plaintiff had to show that (1) the defendant had actual or constructive knowledge of the uneven sidewalk; (2) the uneven sidewalk was unreasonably dangerous; (3) the defendant failed to exercise reasonable care to reduce or eliminate the risk; and (4) the defendant’s failure to use such care proximately caused the plaintiff’s injuries. The defendant moved for summary judgment, raising three arguments, only one of which the court analyzed, as it was sufficient to overcome the plaintiff’s premises liability claim. Specifically, the defendant argued that (1) the uneven part of the sidewalk was not unreasonably dangerous and was open and obvious; (2) the defendant lacked actual or constructive knowledge of the uneven sidewalk; and (3) the defendant’s failure to remove the uneven part of the sidewalk did not proximately cause the plaintiff’s broken wrist. Finding the defendant’s first argument persuasive, if true, the court first analyzed whether the condition of the sidewalk rose to the level of “unreasonably dangerous.” Citing to Texas Supreme Court precedent, the court noted that “some particularly innocuous or commonplace hazards are not unreasonably dangerous as a matter of law.” It listed several factors set out by Texas courts as pertinent to the determination of the reasonableness of the danger at issue: “(1) whether the condition was clearly marked; (2) the size of the condition; (3) whether the condition had caused prior injuries or generated prior complaints; (4) whether the condition was unusual or substantially differed from the condition of other objects of the same kind; (5) whether the condition is a naturally occurring phenomenon; (6) whether the invitee had reasonable alternatives to traversing the area where the condition was located; and (7) whether the condition met applicable safety standards.” Finding “the lion’s share” of these factors to weigh in favor of the defendant, the court moved on to the defendant’s “open and obvious” argument. Citing again to the Texas Supreme Court, the court explained that an “open and obvious” condition, cannot, as a matter of law, be “unreasonably dangerous.” Whether a condition is open and obvious is a question of law answered using an objective standard: what a reasonably prudent person would have known in similar circumstances. Finding no evidence that the uneven part of the sidewalk was concealed or obscured in any way, as well as visibility of the “lip” from the plaintiff’s vantage point before she fell, the court concluded that the defendant was entitled to summary judgment on the plaintiff’s premises liability claim.
If you are aware of a Western District of Texas order that you believe would be of interest to the local bar and should be summarized in this column, please contact Soledad Valenciano (svalenciano@svtxlaw.com, 210–787–4654) or Melanie Fry (mfry@dykema.com, 210–554–5500) with the style and cause number of the case, and the entry date and docket number of the order.
