Williams v. City of Frisco Texas
Memorandum Opinion and Order Grants 9 Motion to Dismiss, filed by Richard Abernathy, Law Firm of Abernathy Roeder Boyd and Hullett. (Ordered by Judge Jane J. Boyle on 11/7/2017) (ndt)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
THE CITY OF FRISCO, FRISCO CITY
ATTORNEY’S OFFICE, LAW FIRM OF
ABERNATHY, ROEDER, BOYD AND
HULLETT, THE CITY OF IRVING,
JON SKERTICH, JOHN BRUCE,
RICHARD ABERNATHY, JUILO
VARGAS, ERIC CURTIS, and CORY
CIVIL ACTION NO. 3:17-CV-2124-B
MEMORANDUM OPINION AND ORDER
Before the Court is a motion to dismiss for failure to state a claim, Doc. 9, filed by Defendants
Law Firm of Abernathy, Roeder, Boyd and Hullett, and Richard Abernathy (collectively
“Abernathy”). For the following reasons, the Court GRANTS Abernathy’s motion.
In June 2017, pro se Plaintiff Michael Williams filed this lawsuit in the 298th Judicial District
Court of Dallas County, Texas. See Doc. 1-1, Pl.’s Original Pet., 11. His complaint contains several
causes of action against Abernathy including defamation per se and per quod, civil conspiracy,
racketeering, intentional infliction of emotional distress, mental anguish, and negligence. See id. at
20–28. About a month later, Defendant City of Frisco (Frisco) removed the case to this Court. Doc.
1. On September 6, 2017, Abernathy, Frisco’s city attorney, filed a motion to dismiss, arguing that
Williams’s claims are barred by the attorney-immunity doctrine. Doc. 9, Defs.’ Mot. to Dismiss, 4.
Williams did not respond to Abernathy’s motion.
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain “a
short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). Rule 12(b)(6) authorizes the Court to dismiss a plaintiff’s complaint for “failure to state a
claim upon which relief can be granted.” Id. 12(b)(6). In considering a Rule 12(b)(6) motion to
dismiss, “[t]he court accepts all well-pleaded facts as true, viewing them in the light most favorable
to the plaintiff.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). The Court
will “not look beyond the face of the pleadings to determine whether relief should be granted based
on the alleged facts.” Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999).
To survive a motion to dismiss, a plaintiff must plead “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “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. “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.
When well-pleaded facts fail to achieve this plausibility standard, “the complaint has alleged — but
it has not shown — that the pleader is entitled to relief.” Id. at 679 (internal quotation marks and
Williams is suing Abernathy for defamation per se and per quod, civil conspiracy, racketeering,
intentional infliction of emotional distress, mental anguish, and negligence. See Doc. 1-1, Pl.’s
Original Pet., 20–28. In his motion to dismiss for failure to state a claim, Abernathy argues the
attorney-immunity doctrine bars Williams’s claims because they arise from Abernathy’s
representation of Frisco. Doc. 9. Defs.’ Mot. to Dismiss, 6.
Attorneys in Texas are not liable to third parties for damages that arise from advising their
clients or practicing their profession. Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015).
“This attorney-immunity defense is intended to ensure ‘loyal, faithful, and aggressive representation
by attorneys employed as advocates.’” Id. (quoting Mitchell v. Chapman, 10 S.W.3d 810, 812 (Tex.
App.—Dallas 2000, pet. denied)). The attorney-immunity defense only applies to actions attorneys
take to “discharge [their] duties to [their] client[s].” Dixon Fin. Servs., Ltd. v. Greenberg, Peden,
Siegmyer & Oshman, P.C., No. 01-06-00696-CV, 2008 WL 746548, at *9 (Tex. App.—Houston [1st
Dist] Mar. 20, 2008, pet. denied).
Abernathy claims in his motion to dismiss that the attorney-immunity doctrine bars
Williams’s claims against him because they are based on Abernathy’s representation of Frisco. Doc.
9. Defs.’ Mot. to Dismiss, 4–7. The Court agrees. For example, Williams alleges that he
sent numerous emails to . . . Richard Abernathy (City Attorney for the City of Frisco)
requesting copies of the results on the Internal Affairs investigation. In response to
that request, Williams received a letter from Richard M. Abernathy (City Attorney
for the City of Frisco) that informed him that “the City” has chosen not to release the
results of the Final Internal Affairs investigation report — in defiance of [his] duty
to do so and Open Records Laws and the Public Information Act.
See Doc. 1-1, Pl.’s Original Pet., 18. Williams’s allegations on their face stems from Abernathy’s
representation of Frisco, so it cannot be a basis for liability.
For the reasons stated, the Court GRANTS Abernathy’s motion to dismiss, Doc. 9, and
DISMISSES without prejudice Defendants Law Firm of Abernathy, Roeder, Boyd and Hullett, and
Richard Abernathy from this case.
SIGNED: November 7, 2017.
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