Montoya v. Fedex Ground Package System Inc., No. 09-40288.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: HAYNES, Circuit Judge:
• Citation: 614 F.3d 145
• Decision Date: 09 August 2010
• Docket Number: No. 09-40288.
• Parties: Alfred MONTOYA, Plaintiff-Appellant, v. FEDEX GROUND PACKAGE SYSTEM, INC., Defendant-Appellee.

614 F.3d 145

Alfred MONTOYA, Plaintiff-Appellant,
v.
FEDEX GROUND PACKAGE SYSTEM, INC., Defendant-Appellee.

No. 09-40288.

United States Court of Appeals,Fifth Circuit.

Aug. 9, 2010.

614 F.3d 146

Murray Edward Malakoff (argued), Laredo, TX, for Plaintiff-Appellant.

Steven Wayne Dennis (argued), William E. Reid, Frederick Linton Medlin, Reid & Dennis, P.C., Dallas, TX, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before DAVIS, SMITH and HAYNES, Circuit Judges.

HAYNES, Circuit Judge:

Alfred Montoya appeals from the district court's dismissal of his 42 U.S.C. § 1985(2) suit against FedEx Ground Package System, Inc. (“FXG”), for failure to state a claim. The district court concluded that the statute of limitations had run on Montoya's claims. We pretermit the statute of limitations question and instead AFFIRM on the alternate grounds that Montoya has not plausibly alleged a conspiracy aimed at deterring him from or retaliating against him for attending or testifying in a federal proceeding.

I. Facts & Procedural Background

For the purposes of this appeal from a dismissal for failure to state a claim upon which relief can be granted, we “accept[ ] all well-pleaded facts as true and view[ ] those facts in the light most favorable to the plaintiff.” Sullivan v. Leor Energy LLC, 600 F.3d 542, 546 (5th Cir.2010). We therefore recite here the facts as alleged in Montoya's first amended complaint.

From 1994 until 2006, Montoya was an independent contractor pick-up and delivery provider for FXG and its predecessor, RPS Inc. (“RPS”). ¹ Montoya provided his

614 F.3d 147

own vehicles and employees and served an area designated by FXG (Montoya's “primary service area”). Under his contract with FXG, Montoya was compensated on the basis of the number of pick-ups and deliveries he made in his primary service area.

In 2002, FXG employees Eddie Garza-Gongora, the FXG Laredo terminal manager, and Eddie Contreras, one of the assistant managers, notified Montoya that part or all of his primary service area was being reassigned. Montoya complained to FXG's contractor relations staff and won reinstatement of part of the primary service area that Garza-Gongora and Contreras had informed him was being removed. The remainder of Montoya's former primary service area was assigned to Enrique Lozano, another independent contractor pick-up and delivery provider.

On June 3, 2004, Montoya filed suit (the “2004 Litigation”) against FXG in the 111th District Court, Webb County, Texas, alleging breach of contract arising out of the reassignment of part of his primary service area. FXG removed to the United States District Court for the Southern District of Texas. Montoya responded to discovery requests in connection with the 2004 Litigation, including providing deposition testimony pursuant to FXG's notice on February 23, 2005.

Rodger Cabello, another FXG assistant terminal manager, and Garza-Gongora learned of the 2004 Litigation. Montoya alleges that these two FXG employees “acquired a hostile animus towards Montoya due to” the 2004 Litigation and “enlisted the aid and assistance” of three independent contractors-Lozano, Humberto Escobedo, and Gerardo Rodriguez-“in order to intimidate, harm, harass, and coerce Montoya into desisting from the pursuit [of] his claim in” federal court.

In early July 2004, Cabello and Garza-Gongora instructed Montoya to dismiss one of his employees. Montoya did so and asked Lozano and Escobedo to cover his primary service area until he could find and hire a new driver. Lozano initially agreed to help Montoya cover his primary service area but subsequently declined. Lozano told Montoya that “Cabello and/or Garza-Gongora forbade or coerced him into refusing [to] assist[ ] Montoya until Montoya could find a replacement driver.” Cabello and Garza-Gongora “withheld their approval of replacement employees” to drive Montoya's routes, including temporary employees authorized by FXG to drive for other contractors. Cabello also discouraged drivers employed by other contractors from assisting Montoya.

In late July 2004, Cabello encouraged Montoya to sell his business or routes to Lozano and Escobedo; he further informed Montoya that he would receive no new routes while the 2004 Litigation was pending and that, if Montoya dropped the 2004 Litigation, he would consider adding a new route to Montoya's service area.

Cabello and Garza-Gongora reduced Montoya's routes on multiple other occasions during the pendency of the 2004 Litigation and in some cases assigned the removed routes to Lozano and Escobedo with their agreement. Montoya alleges that Cabello and Garza-Gongora undertook these reductions “[d]ue to the pendency of” the 2004 Litigation and “because [Montoya] refused to drop” the 2004 Litigation.

In March or April 2005, Cabello informed Montoya that FXG would not renew his contract because of the pendency of the 2004 Litigation. Throughout 2005, Cabello and Garza-Gongora took a variety of actions-assigning additional work without approving enough drivers, concealing scanners and scanning records-to make

614 F.3d 148

Montoya's performance record look poor. In June 2005, Cabello and Garza-Gongora removed half of Montoya's remaining primary service area and assigned it to Escobedo and Lozano.

Finally, on May 21, 2006, Garza-Gongora, acting on behalf of FXG, terminated Montoya's contract. ² Montoya alleged that “[t]he motivation for Garza-Gongora's action in terminating Montoya's contract with [FXG] was based in whole or in part upon Montoya's maintenance of” the 2004 Litigation.

On April 1, 2008, Montoya filed this suit in the...