McPeters v. Edwards

• Decision Date: 14 April 2011
• Docket Number: Civil Action No. 4:10–cv–1103.
• Citation: 806 F.Supp.2d 978
• Parties: Karen McPETERS, individually and on behalf of those individuals, persons, and entities who are similarly situated, Plaintiff, v. The Honorable Frederick E. EDWARDS; Barbara Gladden Adamick, District Clerk; Montgomery County, Texas; and Reed Elsevier, Inc., d/b/a LexisNexis, Defendants.
• Court: U.S. District Court — Southern District of Texas

806 F.Supp.2d 978

Karen McPETERS, individually and on behalf of those individuals, persons, and entities who are similarly situated, Plaintiff,

v.The Honorable Frederick E. EDWARDS; Barbara Gladden Adamick, District Clerk; Montgomery County, Texas; and Reed Elsevier, Inc., d/b/a LexisNexis, Defendants.

Civil Action No. 4:10–cv–1103.

United States District Court, S.D. Texas, Houston Division.

April 14, 2011.

Robert L. Mays, Jr., Attorney at Law, San Antonio, TX, for Plaintiff.

Allison Standish Miller, Shepherd Scott Clawater and Houston LLP, Sara M. Forlano, Chamberlain Hrdlicka White Williams & Martin, Miranda Tolar, Locke Lord Bissell and Liddell, Houston, TX, Rayborn C. Johnson, Jr., Montgomery County Attorney's Office, Conroe, TX, Emily L. Shoemaker, J. Allen Maines, John G. Parker, S. Tameka Phillips, Paul, Hastings, Janofsky & Walker LLP, Atlanta, GA, for Defendants.

AMENDED MEMORANDUM AND ORDER

KEITH P. ELLISON, District Judge.

THE MEMORANDUM AND ORDER DATED JANUARY 27, 2011 IS WITHDRAWN, AND THIS AMENDED MEMORANDUM AND ORDER IS SUBSTITUTED.

This Amended Memorandum and Order is issued after the Court had the opportunity to review the parties' briefing and arguments regarding Plaintiff's Motion for Reconsideration (Doc. No. 101).

Pending before the Court are Motions to Dismiss Plaintiff's Second Amended Complaint (Doc. No. 19) filed by Defendants the Honorable Frederick E. Edwards (“Judge Edwards”) (Doc. No. 56), Barbara Adamick, District Clerk (“Adamick”) and Montgomery County, Texas (“Montgomery County”) (Doc. No. 51), and LexisNexis, a division of Reed Elsevier Inc. (“LexisNexis”) (Doc. No. 49). ¹ After considering the parties' arguments and the applicable law, the Court GRANTS Defendants' Motions to Dismiss and DENIES Plaintiff's Motion to Reconsider and Motion for Leave to File a Third Amended Complaint.

I. Background ²

Plaintiff, a Texas resident, filed a civil employment discrimination lawsuit in the 9th District Court of Montgomery County, Texas on May 18, 2007. McPeters v. Montgomery County, Cause No. 07–09–09142–CV (“ McPeters I”). McPeters I was assigned to Judge Edwards, who designated it as an electronic filing (“e-filing”) case subject to the provisions of an order he had signed on February 10, 2003 in his capacity as presiding judge of the 9th Judicial District (“2003 Order”). ( See Doc. No. 19–1, at 1–2; Doc. No. 13–2.) The 2003 Order provides that “all civil cases filed in the 9th District Court of Montgomery County will be electronically filed as described and governed by the Local Rules Regarding Electronic Filing” and contains a blank line in which a cause number may be written to designate that case as “an e-file case.” It states further that “Documents may still be filed conventionally if 1) a party has leave of Court to do so ....” It also specifies that “all original petition [sic] for divorce or annulment that are resolved within 90 days are not required to be filed electronically.” The 2003 Order describes the e-filing system as follows:

In short, parties will be presented with two options. They may either: 1) become a subscriber through the Internet to the e-file system or 2) bring their filings in the form of 3–1/2” IBM (or compatible_formatted [sic] disc to the public terminal located in the District Clerk's Office and upload the pleadings at no charge).

Although there is no fee involved in subscribing to the e-file system [sic] through the Internet, a minimal fee is assessed for each filing and service delivery made through the system....

Finally, the 2003 Order states that the District Clerk will reject any pleadings filed in paper form except as specified in the Order, and that they will be considered “unfiled.” ( Id.) The 2003 Order was not e-filed in McPeters I, and Plaintiff alleges that she did not see a copy of the order until May 5, 2010. However, the District Clerk's Record of McPeters I notes that, on January 27, 2009, in response to a telephone call with Plaintiff's attorney Robert Mays regarding e-filing, the clerk “RETURNED HARD COPY DISCOVERY TO HIM W/ COPY OF EFILE ORDER.” (Doc. No. 59–3, at 1.)

Plaintiff filed a second case in the 9th District Court in 2009, a petition under Texas Rule of Civil Procedure 202 to conduct depositions to investigate potential claims, specifically to challenge the imposition of e-filing in McPeters I. McPeters v. Adamick, Cause No. 09–11–11474–CV (“ McPeters II ”). The Montgomery County clerk's office returned the Rule 202 Petition with a “VOID” stamp on it, which Plaintiff alleges Adamick placed there. The 2003 Order was also made applicable to McPeters II, and on November 25, 2009, Plaintiff was mailed a copy of the order, which she acknowledges she received.

Montgomery County has contracted with LexisNexis, which provides e-filing services to litigants in the county. LexisNexis charges $7.00 for filing fees, $8.00 for service charges for any document filed online, and a charge of at least $10.00 for providing a paper invoice. Plaintiff alleges that LexisNexis pays $1.00 of each filing and service charge to Montgomery County. LexisNexis is used by 38 states for e-filing. Plaintiff alleges that she was forced to e-file using the LexisNexis system under the threat of having her documents returned unfiled.

Plaintiff brings this suit as a putative class action, seeking an injunction, damages, fees, and costs. Plaintiff argues that the e-filing system and its imposition in her case violates the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961–68; the due process and equal protection provisions of the U.S. Constitution, pursuant to 42 U.S.C. § 1983; the separation of powers, equal protection, open courts, and due course of law provisions of the Texas Constitution; the Texas Theft Liability Act, Tex. Civ. Prac. & Rem.Code § 134.001 et seq. (Vernon's 2005); and common-law fraud, conspiracy, and violation of statutory duties. The Court held oral argument on Defendants' Motions to Dismiss on December 9, 2010, and on Plaintiff's Motion to Reconsider on April 6, 2011.

II. Legal Standard for Motions to Dismiss

A. Fed.R.Civ.P. 12(b)(1)

The court must dismiss a case when the plaintiff fails to establish subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). “It is incumbent on all federal courts to dismiss an action whenever it appears that subject matter jurisdiction is lacking.” Stockman v. Federal Election Comm'n, 138 F.3d 144, 151 (5th Cir.1998). A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case. Home Builders Ass'n of Mississippi, Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir.1998) (internal quotation marks and citation omitted). The burden of establishing federal jurisdiction rests on the party seeking the federal forum. Stockman, 138 F.3d at 151.

B. Fed.R.Civ.P. 12(b)(6)

“To survive a Rule 12(b)(6) motion to dismiss, a complaint ‘does not need detailed factual allegations,’ but must provide the plaintiff's grounds for entitlement to relief—including factual allegations that when assumed to be true ‘raise a right to relief above the speculative level.’ ” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). That is, “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, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). 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. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). The plausibility standard is not akin to a “probability requirement,” but asks for more than a sheer possibility that a defendant has acted unlawfully. Id. A pleading need not contain detailed factual allegations, but must set forth more than “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted).

Ultimately, the question for the court to decide is whether the complaint states a valid claim when viewed in the light most favorable to the plaintiff. The court must accept well-pleaded facts as true, but legal conclusions are not entitled to the same assumption of truth. Iqbal, 129 S.Ct. at 1950 (citation omitted). The court should not “ ‘strain to find inferences favorable to the plaintiffs' ” or “accept ‘conclusory allegations, unwarranted deductions, or legal conclusions.’ ” R2 Investments LDC v. Phillips, 401 F.3d 638, 642 (5th Cir.2005) (quoting Southland Sec. Corp. v. INSpire Ins. Solutions, Inc., 365 F.3d 353, 362 (5th Cir.2004)). A district court can consider the contents of the pleadings, including attachments thereto, as well as documents attached to the motion, if they are referenced in the plaintiff's complaint and are central to the claims. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 499 (5th Cir.2000). Furthermore, a Court may refer to matters of public record when deciding a motion to dismiss. Chauhan v. Formosa Plastics Corp., 212 F.3d 595, 595 (5th Cir.2000). Importantly, the court should not evaluate the merits of the allegation, but must satisfy itself only that plaintiff has adequately pled a legally cognizable claim. United States ex rel. Riley v. St. Luke's Episcopal Hosp., 355 F.3d 370, 376 (5th Cir.2004). “Motions to dismiss under Rule 12(b)(6) are viewed with disfavor and are rarely granted.” Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 231 (5th Cir.2009) (internal citation omitted).

Additionally, “when a plaintiff sues a public official under [Section] 1983, the district court must insist on heightened pleading by the plaintiff.” Morin v....