Partin v. Paul et al
Memorandum Opinion and Order: The court ORDERS that 57 defendants' motion to dismiss be, and is hereby, granted in part, and that plaintiff's claim against defendants for alienation of affection be, and is hereby, dismissed. The court ORDERS that the motion be, and is hereby, otherwise denied. (see order for specifics) (Ordered by Judge John McBryde on 2/22/2017) (mpw)
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IN THE UNITED STATES DISTRICT OURT r-r- - - .. ~---'····-..·- ....-~----,
NORTHERN DISTRICT OF TEXA
FORT WORTH DIVISION
l FEB 2 2 2017
WESLEY ALAN PARTIN,
CLERK, U.S. DISC~
TROY EUGENE PAUL, ET AL.,
MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of defendants, Troy
Paul ("Paul"), Paul Transportation, Inc., and Paul Transportation
System, Inc., to dismiss. The court, having considered the
motion, the response of plaintiff, Wesley Alan Partin, the reply,
the record, and applicable authorities, finds that the motion
should be granted in part.
On November 16, 2015, plaintiff filed his complaint in the
Circuit Court of Harrison County, Mississippi, Second Judicial
District, asserting claims against defendants for alienation of
affection and negligent and intentional infliction of emotional
1. Defendants removed the action to the United
States District Court for the Southern District of Mississippi,
Southern Division. Id. Initially, there was an issue as to
"reference is to the number of the item on the docket in this action.
service of process. When that was resolved, defendants filed a
motion to dismiss for lack of jurisdiction or, in the
alternative, to transfer to a convenient forum. Docs. 36, 37.
The district court, noting that it was not required to determine
whether it had personal jurisdiction over defendants, granted the
alternate motion and transferred the action to this court, where
is was assigned to the docket of the undersigned district judge.
On January 3, 2017, plaintiff filed his amended complaint in
which he now asserts two causes of action. Doc. 54. In count I,
he asserts alienation of affection (noting that this count is
advanced only if the court determines that Mississippi law
applies). In count II, he asserts intentional infliction of
emotional distress. The basis for his claims is that defendants
(who are citizens of Oklahoma) lured his then-wife (a citizen of
Texas) into a sexual relationship with Paul and another woman,
which occurred in Biloxi, Mississippi, on May 28, 2015. From that
time, plaintiff's wife became distant from him and their intimacy
and passion acutely and dramatically decreased. Plaintiff drove
to Oklahoma to investigate whether his wife was with Paul there.
When he was finally able to reach her by phone, he learned that
she was with Paul in Arizona. She returned to Texas and abruptly
moved out of her home with plaintiff. They sought a "no fault"
divorce in Tarrant County, Texas, which was granted on or about
November 9, 2015. Since that time, plaintiff's ex-wife and Paul
have continued their intimate relations.
Grounds of the Motion
Defendants urge that plaintiff's first amended complaint
must be dismissed because he has not stated a claim upon which
relief can be granted. Specifically, Texas has abolished the
claim of alienation of affection. And, plaintiff cannot assert
the same cause of action merely by giving it a different name, to
wit, intentional infliction of emotional distress.
Applicable Legal Standard
Rule B(a) (2) of the Federal Rules of Civil Procedure
provides, in a general way, the applicable standard of pleading.
It requires that a complaint contain "a short and plain statement
of the claim showing that the pleader is entitled to relief,"
Fed. R. Civ. P. B(a) (2),
"in order to give the defendant fair
notice of what the claim is and the grounds upon which it rests,"
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
quotation marks and ellipsis omitted) .
Although a complaint need
not contain detailed factual allegations, the "showing"
contemplated by Rule 8 requires the plaintiff to do more than
simply allege legal conclusions or recite the elements of a cause
Twombly, 550 U.S. at 555 & n.3.
Thus, while a court
must accept all of the factual allegations in the complaint as
true, it need not credit bare legal conclusions that are
unsupported by any factual underpinnings.
556 U.S. 662, 679 (2009)
See Ashcroft v. Iqbal,
("While legal conclusions can provide
the framework of a complaint, they must be supported by factual
Moreover, to survive a motion to dismiss for failure to
state a claim, the facts pleaded must allow the court to infer
that the plaintiff's right to relief is plausible.
U.S. at 678.
To allege a plausible right to relief, the facts
pleaded must suggest liability; allegations that are merely
consistent with unlawful conduct are insufficient. Id. In other
words, where the facts pleaded do no more than permit the court
to infer the possibility of misconduct, the complaint has not
shown that the pleader is entitled to relief. Id. at 679.
"Determining whether a complaint states a plausible claim for
[is] a context-specific task that requires the
reviewing court to draw on its judicial experience and common
Whether plaintiff is entitled to pursue his claims depends
upon the law to be applied in this case. Where, as here, state
law claims are asserted in a diversity case, the court applies
the conflict of law rules of the forum state to determine which
state's law to apply. Klaxon Co. v. Stentor Elec. Mfg. Co., 313
U.S. 487, 496 (1941). Defendants fail to note, however, that
choice of law rules do not change following a transfer of venue
initiated by a defendant. Ferens v. John Deere Co., 494 U.S. 516,
524-25 (1990). Hence, Mississippi's conflict of law rules apply.
In tort cases, both Mississippi and Texas apply the "most
significant relationship" test enunciated in Restatement
of Conflict of Laws. Doc. 49 at 10; Gutierrez v. Collins, 583
S.W.2d 312, 318
(Tex. 1979); Mitchell v. Craft, 211 So. 2d 509,
(Miss. 1968). Pursuant to that test, the "rights and
liabilities of the parties with respect to an issue in tort are
determined by the local law of the state which, with respect to
that issue, has the most significant relationship to the
occurrence and the parties." Snow v. WRS Grp., Inc., 73 F. App'x
2, 5 (5th Cir. 2003). Four factors commonly considered are:
the place where the injury occurred;
(2) the place where the
conduct causing the injury occurred;
(3) the domicile and
residence of the parties; and (4) the place where the
relationship, if any, between the parties is centered. Id., 73 F.
App'x at 6.
Taking into account the four factors, Texas is the state
with the most significant relationship to plaintiff's tort
claims. Plaintiff is a citizen of Texas and was in Texas when he
allegedly suffered injury as a result of defendants' actions.
Plaintiff and his wife (also a Texas citizen) resided in Texas,
which was their marital domicile. At least one act of
interference occurred here when Paul paid a car loan in Texas for
plaintiff's wife. The relationship between plaintiff and his wife
ended here pursuant to a divorce granted in Tarrant County. The
conduct causing the injury occurred in a number of places,
according to plaintiff, including Mississippi, Florida, Oklahoma,
and Arizona. Paul apparently did not have sufficient ties to
Mississippi to make it readily apparent that the court there had
personal jurisdiction of him. 2 In determining that a substantial
part of the events or omissions giving rise to the claims
occurred in the Northern District of Texas, the Mississippi court
noted that the ucase's only nexus to Mississippi is that Biloxi
was the situs of the purported initiation of Mr. Paul and Ms.
The court recognizes that the Mississippi court did not have to determine personal jurisdiction
before considering whether to transfer the case. However, it would seem that if defendants had
substantial ties to Mississippi, the issue of transfer would have been a closer call.
Partin's alleged affair during a four-day trip to the area." Doc.
49 at 9. 3 Further, the fact that the marital home was in Tarrant
County gave the Fort Worth Division a "local interest in having
localized marital interests decided at home." Id. Finally, as
defendants had no contractual relationship with plaintiff, the
fourth factor is duplicative of the place of injury. Grosskopt v.
Chrysler Grp., LLC, No. A-14-CA-801-SS, 2015 WL 6021851, at *5
(W.D. Tex. Oct. 14, 2015).
The court is not persuaded by the authorities plaintiff
cites that the law supports his position. For example, Sica N.
Inc. v. Willis, No. 14-08-00158-CV, 2009 WL 3365856
App.-Houston [14th Dist.]
Sept. 10, 2009, no pet.), was a
products liability action concerning a product defectively
designed, manufactured, and placed in the stream of commerce in
Minnesota. There, the place of injury was fortuitous; here, the
place of domicile of plaintiff and his marriage was known before
the bad acts occurred, and thus, it was foreseeable that harm
would occur here.
The Mississippi cases plaintiff cites concern minimum
contacts and not choice of law. See Miller v. Provident Advert. &
Mktg., Inc., 155 So. 3d 181 (Miss. Ct. App. 2014); Camp v.
ln other words, the court was noting, and this court agrees, that it was fortuitous that the
initiation of the affair took place in Mississippi.
Roberts, 462 So. 2d 726
(Miss. 1985), overruled in part, Saunders
v. Alford, 607 So. 2d 1214 (Miss. 1992). As noted in Miller,
where alienation of affection was alleged to have occurred in
Mississippi, if the most significant relationship test showed
that Tennessee or Florida law should apply, the alienation of
affection claim would be dismissed as the claim had been
abolished in those states. 155 So. 3d at 194, n. 13.
Other cases indicate that the domicile of spouses until
separation is the most important factor in an alienation of
affection case. See Williams v. Jeffs, 57 P.3d 232, 236-37
Ct. App. 2002)
Brookley v. Ranson, 376 F. Supp. 195, 198 (N.D.
As plaintiff recognizes, the tort of alienation of affection
has been abolished in Texas. Tex. Fam. Code
argue that where the same allegations give rise to the emotional
distress claim, that claim should also be dismissed. Truitt v.
Carnley, 836 S.W.2d 786, 787
(Tex. App.-Fort Worth 1992, writ
denied). However, the court notes that Truitt was a summary
judgment case and the opinion does not provide enough information
for the court to determine that under Texas law a cause of action
for intentional infliction of emotional distress cannot be
pursued. The cases cited by plaintiff, although not directly in
point, indicate that such a cause of action is not automatically
foreclosed in circumstances like those in this case. See Smith v.
Smith, 126 S.W.3d 660, 666
(Tex. App.-Houston [14th Dist.]
no pet.); Stites v. Gillum, 872 S.W.2d 786, 793
Worth 1994, writ denied). Thus, the court is not granting the
motion as to the intentional infliction of emotional distress
claim, suggesting instead that such claim be more properly
addressed by motion for summary judgment.
For the reasons discussed herein,
The court ORDERS that defendants' motion to dismiss be, and
is hereby, granted in part, and that plaintiff's claim against
defendants for alienation of affection be, and is hereby,
dismissed. The court ORDERS that the motion be, and is hereby,
SIGNED February 22, 2017.
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