Federal Court Update
Western District of Texas Court Summaries By Soledad Valenciano, Melanie Fry, and Jeffrie Lewis
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.
Motion to Dismiss Title IX Case; Leave to Amend S.P. v. Northeast Indep. Sch. Dist., No. SA-21CV-0388-JKP (Pulliam, J., July 30, 2021). The court granted a school district’s motion to dismiss the plaintiff’s claims for discrimination under Title IX of the Education Amendments of 1972 and for violation of substantive due process under 42 USC § 1983. The plaintiff alleged that, beginning in the eighth grade, she was meticulously groomed and sexually assaulted by her teacher. The plaintiff alleged that the school’s assistant director had observed the teacher alone with the plaintiff, once behind closed doors, and that another time another teacher had observed the plaintiff and the teacher alone in a classroom for an extended time. While the plaintiff pled that the school district had actual notice of the sexual harassment, grooming, and abuse of the plaintiff by the teacher, the plaintiff provided no factual allegations to support a finding that the school board or principal had actual notice. While the plaintiff’s pleadings supported a finding that the school district had knowledge of behavior consistent with grooming, the plaintiff provided no basis to equate grooming with sexual harassment. The court analyzed whether actual knowledge of grooming behavior created a reasonable inference that the director had actual knowledge of the sexual harassment or of a substantial risk of sexual abuse. The court determined that the plaintiff’s allegations were insufficient to even plausibly claim that the school district should have known, much less actually knew, of the harassment. The plaintiff’s request for leave to amend her complaint was denied. Noting she 28 San Antonio Lawyer® | sabar.org
could have amended her complaint as a matter of course under FRCP 15(a)(1) but failed to do so, the court reviewed the request under the discretionary standard of FRCP 15(a)(2). Because the plaintiff’s intended amendments would not cure deficiencies related to actual knowledge of harassment or of a substantial risk of abuse, the court denied the request for leave. The plaintiff abandoned her due process claim by failing to address it in her response to the motion to dismiss.
Depositions; COVID-19 Cantu v. Mammoth Energy Servs., SA-19-CV00615-DAE (Chestney, E., Aug. 27, 2021). The court granted, in part, the defendants’ motion to compel in-person depositions in a collective action brought under the Fair Labor Standards Act. The parties agreed to conduct representative discovery with 22 out of the 156 plaintiffs. Only some of the 22 plaintiffs lived in the San Antonio area. The defendants originally wanted all 22 depositions to occur in-person in San Antonio, but then offered to travel to the major city closest to where a plaintiff resided while implementing COVID-19 protocols. The plaintiffs wanted all depositions to occur via telephone or videoconference, allowing each plaintiff to remain where they reside. The court ordered staggered depositions, citing to FRCP 26(c) (1)(B), which allows the court wide discretion to determine the method of discovery, such as the designation of the time and place of a deposition, so as “to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense.” The first round of depositions would include in-person depositions of the San Antonio-area plaintiffs,
implementing COVID-19 safety protocols. The second round would include in-person depositions in a centralized city close to the next largest number of representative plaintiffs, consolidated to minimize travel and expense to the parties, and implementing COVID-19 safety protocols. Alternatively, the defendants could notice the second round of depositions via Zoom.
Work-Product Privilege Moya v. Allstate Fire & Cas. Ins. Co., SA21-CV-00009-FB (Biery, F., July 19, 2021). The court denied the plaintiff’s motion to compel documents reflecting review and evaluation of the plaintiff’s medical bills in an underinsured motorist case. The defendant argued such documents were protected under the work-product privilege. The Fifth Circuit’s rule on work-product privilege did not apply because the case arose under diversity jurisdiction, requiring application of Texas law. Texas recognizes a work-product privilege for material prepared, mental impressions developed, or communications made in “anticipation of litigation or for trial by or for a party or party’s representatives, including the party’s attorneys, consultants, sureties, indemnitors, insurers, employees, or agents.” Work product not prepared by an attorney or attorney’s representative is discoverable upon a showing that the party seeking discovery has a substantial need for the materials in the preparation of the party’s case, and the party is unable without undue hardship to obtain the substantial equivalent of the material by other means. The defendant satisfied its prima facie burden with an affidavit providing that the documents sought by the
