Klocke v. The University of Texas at Arlington et al

Filing 228

MEMORANDUM OPINION AND ORDER: The court ORDERS that defendant's 202 motion for summary judgment be, and is hereby, granted; that plaintiff take nothing on his claims against defendant; and, that such claims be, and are hereby, dismissed. (Ordered by Senior Judge John McBryde on 1/28/2020) (tln)

IN THE UNITED STATES DISTRICT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
WAYNE M. KLOCKE, INDEPENDENT
ADMINISTRATOR OF THE ESTATE OF
THOMAS KLOCKE,

§

JAN 2 8 2020
CLERK, U.S. DISTRiCT COURT

§

By

§

>cputy

§

Plaintiff,

§
§

vs.

§

NO. 4:17-CV-285-A

§

NICHOLAS MATTHEW WATSON,

§
§

Defendant.

§

MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of defendant, Nicholas
Matthew Watson, for summary judgment. The court, having
considered the motion, the response of plaintiff, Wayne M.
Klocke, Independent Administrator of the Estate of Thomas Klocke,
the reply, the record, and applicable authorities,

finds that the

motion should be granted.
I.

Plaintiff's Claims
The operative pleading is plaintiff's amended complaint
filed September 30, 2019. Doc. 1 177. Plaintiff's sole cause of
action is for defamation arising from events that occurred on May
19, 2016, during a class at the University of Texas at Arlington
("UTA") in which defendant and Thomas Klocke

("Thomas") were

students.

'The "Doc.

"reference is to the number of the item on the docket in this action.

II.

Grounds of the Motion
Defendant urges a number of grounds in support of his
motion. First, he says that plaintiff failed to preserve a
defamation claim based on defendant's Facebook posts because he
failed to comply with the Texas Defamation Mitigation Act, Tex.
Civ. Prac.

&

Rem. Code

§§

73.051-.062

("TDMA"). Second, plaintiff

cannot show that defendant's statements were false,

that they

were defamatory, or that defendant acted negligently. Third,
plaintiff failed to disclose any damages caused by defendant and,
thus, cannot pursue damages; plaintiff cannot in any event
demonstrate that defendant's statements caused Thomas any pain
and suffering; and, Thomas's suicide is an intervening cause that
precludes damages related to his death. Finally, plaintiff cannot
show that defendant omitted facts or juxtaposed them in a manner
that created a defamatory false impression. Doc. 202.
III.

Applicable Summary Judgment Principles
Rule 56(a) of the Federal Rules of Civil Procedure provides
that the court shall grant summary judgment on a claim or defense
if there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.
P. 56(a); Anderson v. Liberty Lobby,

2

Fed. R. Civ.

Inc., 477 U.S. 242, 247

(1986).

The movant bears the initial burden of pointing out to

the court that there is no genuine dispute as to any material
fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986).

The movant can discharge this burden by pointing out the absence
of evidence supporting one or more essential elements of the
nonmoving party's claim,

"since a complete failure of proof

concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial."

Id. at 323.

Once the movant has carried its burden under Rule 56(a), the
nonmoving party must identify evidence in the record that creates
a genuine dispute as to each of the challenged elements of its
case.

Id. at 324; see also Fed. R. Civ. P. 56(c)

asserting that a fact
the assertion by
the record

("A party

is genuinely disputed must support
citing to particular parts of materials in

'

II )

•

If the evidence identified could not lead

a rational trier of fact to find in favor of the nonmoving party
as to each essential element of the nonmoving party's case, there
is no genuine dispute for trial and summary judgment is
appropriate.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 u.s. 574, 587, 597

(1986).

In Mississippi Prot. & Advocacy

Sys., Inc. v. Cotten, the Fifth Circuit explained:
Where the record, including affidavits,
interrogatories, admissions, and depositions could not,
as a whole, lead a rational trier of fact to find for
the nonmoving party, there is no issue for trial.
3

929 F.2d 1054, 1058 (5th Cir. 1991).
The standard for granting a motion for summary judgment is
the same as the standard for rendering judgment as a matter of
law.'

Celotex Corp., 477 U.S. at 323.

If the record taken as a

whole could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for trial.
Matsushita, 475 U.S. at 597; see also Mississippi Prot. &
Advocacy Sys.,

929 F.2d at 1058.
IV.

Undisputed Facts
When this lawsuit was first filed, plaintiff included claims
against UTA. Doc. 1. The court granted UTA's motion for summary
judgment, including in its memorandum opinion and order a lengthy
recitation of the undisputed facts giving rise to the action.
Doc. 160 at 6-13. Plaintiff acknowledges and relies on a number
of those facts. Doc. 212 at 2. The summary judgment record here,
although not as complete,' establishes the same pertinent facts.'

2

In Boeing Co. v. Shipman, 411 F.2d 365,374-75 (5th Cir. 1969) (en bane), the Fifth Circuit
explained the standard to be applied in determining whether the comt should enter judgment on motions
for directed verdict or for judgment notwithstanding the verdict.
3

For example, the record here does not contain all of the attachments to the Declaration of Daniel
Moore, who conducted the investigation on behalfofUTA.
"The ruling in favor of UTA was affirmed on appeal. Klocke v. Univ. ofTex. at Arlington, 938
F.3d 204 (5th Cir. 20 19).
4

On May 19, 2016, Thomas and defendant sat next to each other
in a class at UTA. Thomas made statements that defendant
perceived to be threatening. Defendant posted to Facebook:
The guy sitting next to me just typed into his computer
"ga;ys should die." Then told me I was a "fa**ot" and
that I should "kill myself." I haven't felt this
uncomfortable in a long time.
Doc. 213 at APPX 88. Defendant told Thomas he should leave. Doc.
204 at App. 2. Blake Lankford ("Lankford"), sitting next to
Thomas, noted that Thomas and defendant were both really tense.
Doc. 213 at APPX 99. Thomas left and took a different seat when
he returned to class. Id. at APPX 100; Doc. 204 at App. 2. Thomas
later told Dan Moore ("Moore"), who was assigned by UTA to
investigate the matter, in an email that he was the one who moved
"to alleviate any tension." Doc. 213 at APPX 36.
During class, defendant emailed the professor conducting the
class, Dr. Long ("Long"), to report the incident. Doc. 204 at
App. 2. Immediately after the class, he spoke to Long, who
advised him to report the incident to UTA officials. Id.
Defendant visited Heather Snow ("Snow"), Associate Vice President
and Dean of Students, to discuss the incident. Id. Snow advised
him to put his complaint in writing, which he did. Id. He wrote:
Dear Heather,
This is Nicholas Watson. Today, May 19th, during my
8:00AM organizational strategy course, MANA 4322-001.
We had to move classes from 153 to 154 due to a
5

computer issue. At this point, I sat next to the
student who was the aggressor, Thomas Klocke.
After commenting about privilege in today's society,
Thomas opened up his laptop and typed into his web
browser's search bar, "Gays should die.•
At which point, I typed into my search bar on my web
browser "I'm gay.• I was confused and was trying to
understand why he was typing and showing me this.
After this, he acted like he was yawning and told me
that "well then you're a faggot.•
I then told him, "I think you should leave.• I felt
terribly scared and uncomfortable.
He then told me that •you should consider killing
yourself.•
I approached my professor, Dr. Dwight E Long, regarding
the incident after class. He advised I go to student
support services.
I then went to Heather Snow, this email recipient, who
advised me further.
Nicholas Watson.
Doc. 213 at APPX 21-22.
By letter dated May 20, 2016, Moore informed Thomas that he
was being investigated for allegations of threat (physical abuse
or threat of physical abuse) and harassment

(any violation of the

University's harassment policy). Doc. 213 at APPX 28. Moore told
Thomas not to attend class while the investigation was pending.
Doc. 204 at App. 41. Moore interviewed Thomas, defendant,
Lankford, and Long. Id. App. 43-47. Moore determined that
defendant's version of events was credible and that Thomas's
6

version was not. Id. App. 46-47. Among other things, when Moore
met with Thomas, Thomas had a sheet of paper that appeared to be
a script or outline that he kept referring to; there would be
long pauses before Thomas would answer questions; and, Thomas's
responses to follow-up questions lacked any substance. Id. App.
45. Moore found that Thomas was guilty of harassment but that
there was insufficient evidence of a threat. Id. App. 50. He
disciplined Thomas with disciplinary probation and the
requirement that Thomas not be allowed to attend class, but he
could still work with Long, take tests, do group work outside
class, and obtain credit he needed to graduate. Id. App. 48.
On June 2, 2016, Thomas committed suicide with a gun he had
purchased on May 20, 2016. Doc. 124 at APPX 239; Doc. 204 at App.
87. Before June 2,

2016, Thomas's father was not ever concerned

that Thomas would commit suicide. Doc. 204 at App. 87; Doc. 213
at APPX 131. He described Thomas as upset, distraught,
frustrated, Doc. 213 at APPX 128, embarrassed, alienated, and
isolated. Id. APPX 131. A fellow student noted that Thomas did
not seem stressed, anxious, unhappy, or worried until May 24 when
he told his group he had to take the exam later and seemed
stressed after they told him how hard the exam was. Id. APPX 135.

7

v.
Analysis
To prove a cause of action for defamation, plaintiff must
show that defendant published a false statement of fact to a
third party, that the statement was defamatory concerning Thomas,
the statement was made with the requisite degree of fault, and
Thomas suffered compensable damages as a result. In re Lipsky,
460 S.W.3d 579, 593

(Tex. 2015); WFAA-TV, Inc. v. McLemore, 978

S.W.2d 568, 571 (Tex. 1998). Pursuant to the TDMA, a person may
maintain an action for defamation only if he has made a timely
and sufficient request for a correction, clarification, or
retraction from defendant or the defendant has made a correction,
clarification, or retraction. Tex. Civ. Prac. & Rem. Code §
73. 055 (a) .
Defendant first argues that plaintiff cannot pursue
defamation claims as to the Facebook publications since he failed
to make a timely and sufficient request as required by§ 73.055
(a) (1) . The Fifth Circuit has held that failure to make such a
request before the statute of limitations expires prevents a
plaintiff from pursuing a defamation claim. 5 Tubbs v. Nicol, 675
F. App'x 437, 439 (5th Cir. 2017). The Supreme Court of Texas has

'In the absence of an intervening change in authority, this court is bound by Fifth Circuit
precedent interpreting Texas law. Gil bane Bldg. Co. v. Admiral Ins. Co., 664 F.3d 589, 594 (5th Cir.
2011 ).

8

not decided the issue and its appellate courts are split. See
Butowsky v. Folkenflik, No. 4:18CV442, 2019 WL 2518833, at *46-48
(E.D. Tex. Apr. 17, 2019) (discussing cases); Zoanni v. Hogan, 555
S.W.3d 321 (Tex. App.-Houston [1st Dist.]
filed) (agreeing with Tubbs).'

2018, pet.

Defendant requests that the court

make an Erie guess that the Supreme Court of Texas would agree
with Tubbs and Zoanni, with the consequence that plaintiff's
claims based on the Facebook posts would be dismissed. Doc. 203
at 5-9. The court need not decide the issue, however, as it is
clear that plaintiff cannot prevail in any event.'
Defendant says that plaintiff cannot establish any of the
elements of a defamation cause of action as to any statement
alleged to be defamatory. The alleged defamatory statements are
set forth in plaintiff's amended complaint, Doc. 177 at 15-16, ,
46, to wit, defendant falsely published that: Thomas wrote on his
computer "all gays should die" or "gays should die," id. , 46a;
Thomas had told defendant both "you should kill yourself" and
"you should consider killing yourself," id. , 46b; Thomas had

6

The cases are agreed that, at the very least, failure to make a timely demand for retraction
prevents the plaintiff from seeking exemplary damages.
7

ln pm1icular, with regard to defendant's Faccbook posts, there is no evidence that Thomas was
aware of them or suffered any harm as a resu.lt. In fact, plaintiff only pleads that the injuries to Thomas
arose out of "the denial by UTA of the benefits and privileges of an educational oppot1unity." Doc. 177
at 4, 117. "Thomas as devastated by the exclusion from class." Id. at 14, ~ 42. There is no allegation that
Thomas would have suffered without UTA's action in excluding him from class, which arose out of the
email to Snow and not any Faccbook post.

9

called him a faggot,

id.

~

46c; other students in the classroom

heard Thomas call defendant a faggot,
an aggressor. Id.

~

id.

~

46d; and, Thomas was

46e. Further, defendant omitted material

facts from his publications that whatever altercation occurred
between defendant and Thomas had ended and resolved itself early
in the class session before Thomas relocated his seat, id.

~

46f,

and that Thomas had not thr.eatened defendant in any manner, doing
so for the purpose of creating innuendo or implication that
Thomas not only had threatened defendant but that the threat was
unabated and needed to be abated by expelling Thomas from the
class. Id.

~

46g. Plaintiff also makes conclusory allegations

that defendant falsely published statements that damaged Thomas's
occupation as a student and any future occupation he might obtain
post-graduation, id.

~

46h; defendant falsely published facts

accusing Thomas of having engaged in criminal behavior including
making threats or death threats against defendant, id.

~

46i; and

defendant falsely published facts accusing Thomas of sexual
misconduct id.

~

46j, but does not allege any facts in support.

Plaintiff's claims are based on the premise that everything
defendant did on May 19, 2016, and the days following was false,
deceptive, and malicious. He contends that none of defendant's
allegations regarding Thomas's conduct were true and that
defendant made them up in order to get Thomas kicked out of the

10

class he needed to graduate.' The record, however, is entirely to
the contrary and there is no genuine fact issue as to plaintiff's
contentions. 9 As the Fifth Circuit recognized,

"Moore made a

finding of responsibility after developing a meaningful record."
938 F.3d at 211. Specifically,
Moore considered the following in his decision. First,
Moore knew that Watson told the same, consistent story
in a contemporaneous in-class email to Long, also a
contemporaneous note passed to a classmate, and then
again in after-class emails and in-person discussions
with Long, Snow, and Moore. Second, Moore perceived
Watson to be credibly fearful of Klocke at their May 20
meeting. Third, when Moore met Klocke on May 23, he saw
that Klocke relied on a written script and was unable
to meaningfully answer follow-up questions. Fourth,
Moore was told by the adjacent classmate that the
classmate did not notice Watson behaving in a
distracting manner as Klocke had alleged. Fifth,
Moore's common sense suggested to him that a person
whose flirtation is rejected would not tell the other
person to leave and then fabricate and widely circulate
a story about being threatened by that person. Sixth,
Moore's investigation uncovered nothing supportive of
Klocke's account, and the estate in this litigation
does not identify any leads that Moore should have or
could have pursued.
Id.

(footnotes omitted). In sum, defendant did not publish false

statements of fact about Thomas.

8

In this regard, he argues that nothing Thomas said to defendant can be considered, referring to
the Dead Man's Rule, Tex. R. Evid. 601. Doc. 212 at 9-10. (Of course, he takes the position that
everything Thomas said to his father is absolutely true.) Here, as defendant explains, the exceptions to
the Rule apply. Doc. 225 at 6-8.
'Plaintiff's argument regarding alleged spoliation appears to be a concocted one designed to
delay the inevitable granting of summary judgment in favor of defendant. Doc. 212 at I 1-12. Speculation
about what evidence might exist and improbable inferences are insufficient to raise a genuine summary
judgment issue. Lawrence v. Fed. Home Loan Mmig. Corp., 808 F.3d 670,673 (5th Cir. 20I5).
11

As for the second element, plaintiff contends that
defendant's statements constitute defamation per se. A statement
is defamatory per se if it falls within one of the following
categories:

( 1)

imputation of a crime,

(2)

imputation of a

loathsome disease,

(3)

or calling, or (4)

imputation of sexual misconduct. In re Lipsky,

460 S.W.3d at 596;

injury to a person's office, profession,

Downing v. Burns, 348 S.W.3d 415, 424

App.-Houston [14th Dist.]
No. 4,

941 S.W.2d 327, 329

(Tex.

2011, no pet.); Gray v. HEB Food Store
(Tex. App.-Corpus Christi 1997, writ

denied) . Plaintiff neglects to provide any explanation as to how
any of the statements at issue constitutes defamation per se.
Doc. 212 at 22-23. Hence, the argument is waived. Keelan v.
Majesco Software, Inc., 407 F.3d 332, 339 (5th Cir. 2005). That
defendant may have felt threatened does not mean that he accused
Thomas of a crime." None of the statements fits any of the four
categories.
As for fault,

plaintiff has not come forward with summary

judgment evidence to establish a genuine fact issue as to
defendant's culpability. Doc. 212 at 21-22. 11 To establish that

10

Defendanl's perception that Thomas was an aggressor, that he, defendant, was scared and felt
threatened, and that other students had heard Thomas call defendant a faggot are opinions that would not
support a defamation claim. See Dallas Morning News, Inc. v. Tatum, 554 S.W.3d 614,624 (Tex. 2018).
11

Plaintifffails to cite to the record in suppm1 of his argument, which is highly misleading. For
example, he says that Moore testified that he viewed Thomas's alleged communications as involving
(continued ... )

12

defendant acted negligently, plaintiff must show that defendant
knew or should have known that the statements were false and that
the content of defendant's publication would warn a reasonably
prudent person of its defamatory potential. Foster v. Laredo
Newspapers.

Inc.,

541 S.W.2d 809, 819

(Tex. 1976); Scripps Tex.

Newspapers, L.P. v. Belalcazar, 99 S.W.3d 829, 837

(Tex.

App.-Corpus Christi 2003, pet. denied). Here, no other conclusion
could be reached but that defendant believed the statements he
made regarding Thomas were true. He did not know or have reason
to know that the statements were false.
Finally, defendant urges that plaintiff cannot present
competent evidence of compensable damages. Plaintiff's response
is no response at all. 12 He ignores the contention that he failed
to provide a computation of each category of damages in
accordance with Rule 26 (a) (1) (A) (iii) of the Federal Rules of
Civil Procedure. The record reflects that the disclosure was made
regarding the actions of UTA, not defendant. Doc. 204 at App.
272-73. Thus,

excluding any evidence of damages would be

"( ... continued)
sexual misconduct. Doc. 212 at 22. On the appeal from the judgment in favor of UTA, he took the
position that Moore had erred in concluding that defendant's allegations alleged only harassment and not
sexual harassment. 938 F.3d at 212. In any event, that Snow and/or Moore, applying UTA policy, chose
to investigate whether Thomas had threatened or harassed defendant does not mean that defendant was
negligent.
12

Again, failure to address defendant's arguments amounts to waiver. Keelan v. Majesco
Software, Inc., 407 F.3d 332, 339 (Sth Cir. 2005). Moreover, speculation, improbable inferences, and
unsubstantiated asseJtions are insufficient to avoid summary judgment. Lawrence, 808 F.3d at 673.

13

appropriate. CQ,

Inc. v. TXU Min. Co., L.P., 565 F. 3d 268, 280

(5th Cir. 2009). In any event, an award of mental anguish damages
must be supported by direct evidence of its nature, duration, and
severity, in addition to causation. Service Corp. Int'l v.
Guerra, 348 S.W.3d 221, 231
S.W.3d 561, 606

(Tex. 2002)

(Tex. 2011); Bentley v. Bunton, 94
In response, plaintiff does not

point to any such evidence, but generally to certain pages of his
appendix that do not provide the specificity required. Doc. 212
at 23

(citing Doc. 213, APPX 124-53). All he can say and does say

is that Thomas committed suicide. 13 But suicide is considered an
unforeseeable intervening act." Estate of Ko by Hill v. Sears
Roebuck & Co.,

982 F. Supp. 471, 475

United States, 512 F. Supp. 670,

680

(E.D. Mich. 1997); Speer v.
(N.D. Tex. 1981), aff'd,

675

F.2d 100

(5th Cir. 1982); Exxon Corp. v. Brecheen, 526 S.W.2d

519, 524

(Tex. 1975). The ipse dixit of plaintiff's expert does

not make it otherwise.

"There is no competent evidence that Thomas suffered any compensable mental anguish prior to
his suicide. See Hilt v. Connell, 301 F.3d 240,250 (5th Cir. 2002)(hurt feelings, anger, and frustration
are not enough); Brady v. Fort Bend County, 145 F.3d 691,718 (5th Cir. 1998)(being highly upset and
experiencing the worst thing ever are not enough). Thomas's suicide came as a complete surprise.
14

There is no contention that defendant caused Thomas to become so delirious or insane that
Thomas did not understand the decision to take his own life or it was impossible for him to resist doing
so. See Exxon Corp. v. Brecheen, 526 S.W.2d 519,524 (Tex. 1975).

14

For the reasons discussed herein, plaintiff likewise has
failed to raise a genuine issue of material fact as to the
defamatory false impression claim. 15
VI.

Order
The court ORDERS that defendant's motion for summary
judgment be, and is hereby, granted; that plaintiff take nothing
on his claims against defendant; and, that such claims be, and
are hereby, dismissed.
SIGNED January 28, 2020.

"Plaintiff does not separately address this claim, but mentions it in his discussion of defamation,
where he addresses potential jury issues rather than facts. Doc. 212 at 19-21.

15