Summerlin v. Barrow
MEMORANDUM OPINION AND ORDER: The court ORDERS that defendant's 23 motion to dismiss be, and is hereby, granted, and plaintiff's claims in this action be, and are hereby, dismissed. (Ordered by Judge John McBryde on 3/13/2018) (bdb)
U.S. DISTRICT COURT
. NORTHERN DTSTRJCT OF TTIX/\S
DALE H. SUMMERLIN,
ROBERT W. BARROW,
U.S. DIG1"I\.ICT CCiUl:tr
MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of defendant, Robert W.
Barrow, to dismiss. The court, having considered the motion, the
response of plaintiff, Dale H. Summerlin, the reply, the record,
and applicable authorities, finds that the motion should be
This is the second time this action has been before the
court. On March 10, 2017, plaintiff filed her original petition
in the District Court of Tarrant County, Texas, 96th Judicial
District. Defendant filed a notice of removal, urging that
plaintiff had stated federal claims. The case was assigned Civil
Action No. 4:17-CV-327-A. The court granted plaintiff's motion to
remand the case, finding that plaintiff had only asserted a state
law claim for violation of her right to privacy by defendant.
After the case was remanded, plaintiff filed an amended
petition. On December 20, 2017, defendant filed his second notice
of removal, again bringing the case before this court where it
was assigned the above-referenced case number, this time on the
basis that plaintiff's amended petition asserted claims preempted
by federal law. Doc. 1 1.
Plaintiff filed a motion for remand, which the court ordered
stricken for a number of reasons explained in its January 8, 2018
order. Doc. 11. Plaintiff did not refile the motion. Therefore,
by order signed January 19, 2018, the court ordered the parties
to file amended pleadings in keeping with the requirements of the
Federal Rules of Civil Procedure, the Local Civil Rules of the
United States District Court for the Northern District of Texas,
and the judge-specific requirements of the undersigned. Doc. 15.
On February 1, 2018, plaintiff filed her amended complaint, which
is her operative pleading. Doc. 21.
Plaintiff's amended complaint consists of a few short
paragraphs, making clear that plaintiff's claim arises out of an
alleged invasion of her right to privacy "when the Defendant
distributed and ordered a private document to be posted
publicly.• Doc. 21 at 1, '
(2) (a). The
" reference is to the number of the item on the docket in this action .
which she refers is attached as Exhibit 1 to her amended
complaint and is a letter addressed to plaintiff from the general
counsel for the Association of Flight Attendants-CWA. Plaintiff
seeks damages totaling $2,000,000.00.
Grounds of the Motion
Defendant urges that plaintiff has failed to state a claim
upon which relief can be granted.
Applicable Pleading Standard
Rule 8 (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.
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 inf er
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
a context-specific task that requires the
reviewing court to draw on its judicial experience and common
As the Fifth Circuit has explained: "Where the complaint is
devoid of facts that would put the defendant on notice as to what
conduct supports the claims, the complaint fails to satisfy the
requirement of notice pleading." Anderson v. U.S. Dep't of
Housing & Urban Dev., 554 F.3d 525, 528 (5'h Cir. 2008). In sum,
"a complaint must do more than name laws that may have been
violated by the defendant; it must also allege facts regarding
what conduct violated those laws. In other words, a complaint
must put the defendant on notice as to what conduct is being
called for defense in a court of law." Id. at 528-29. Further,
the complaint must specify the acts of the defendants
individually, not collectively, to meet the pleading standards of
Rule 8(a). See Griggs v. State Farm Lloyds, 181 F.3d 694, 699
(5th Cir. 1999); see also Searcy v. Knight (In re Am. Int'l
Refinery), 402 B.R. 728, 738
(Bankr. W.D. La. 2008).
In considering a motion to dismiss for failure to state a
claim, the court may consider documents attached to the motion if
they are referred to in the plaintiff's complaint and are central
to the plaintiff's claims. Scanlan v. Tex. A&M Univ., 343 F.3d
533, 536 (5th Cir. 2003). The court may also refer to matters of
public record. Davis v. Bayless, 70 F.3d 367, 372 n.3
1995); Cinel v. Connick, 15 F.3d 1338, 1343 n.6
(5th Cir. 1994).
This includes taking notice of pending judicial proceedings.
Patterson v. Mobil Oil Coro., 335 F.3d 476, 481 n.l (5th Cir.
2003). And, it includes taking notice of governmental websites.
Kitty Hawk Aircargo, Inc. v. Chao, 418 F.3d 453, 457
2005); Coleman v. Dretke, 409 F.3d 665, 667 ·
Plaintiff references the First, Fourth, and Ninth Amendments
in her amended complaint,' none of which regulate the conduct of
private parties. See. e.g., Belluso v. Turner Communications
Corp., 633 F.2d 393, 398 (5th Cir. 1980) (1st Amendment is a
restraint on government, not private persons); United States v.
Runyan, 275 F.3d 449, 457
(5th Cir. 2001) (Fourth Amendment does
not apply to private individuals); Johnson v. Tex. Bd. of Crim.
Justice, 281 F. App•x 319, 320 (5th Cir. 2008) (Ninth Amendment
does not confer substantive rights). Plaintiff has not alleged
any facts to support a cause of action over which the court would
have original jurisdiction.
It does appear that plaintiff is only asserting, or
attempting to assert, a claim against defendant under state law
for invasion of privacy. Texas courts recognize three distinct
torts that may constitute an invasion of privacy. Cornhill Ins.
PLC v. Valsamis,
Inc., 106 F.3d 80, 85
(5th Cir. 1997). They are:
(1) intrusion upon plaintiff's seclusion or solitude;
disclosure of embarrassing private facts about plaintiff; and (3)
appropriation for defendant's advantage of plaintiff's name or
The comt infers that plaintiff references these Amendments because the case is in federal court.
Doc. 21 at I ("Defendant's insistence on federal jurisdiction finds us in the Northem District of Texas
likeness. Indus. Found. of the S. v. Tex. Indus. Accident Bd.,
540 S.W.2d 668, 682
(Tex. 1976) . 3 Plaintiff does not allege any
facts that would support the second or third type of invasion.'
Nor does the alleged invasion at issue fit the first category of
Texas courts considering intrusion on seclusion or solitude
have interpreted this tort to be a willful, unwarranted invasion
of privacy that would be highly offensive to a reasonable person.
Valenzuela v. Aguino, 853 S.W.2d 512, 513 (Tex. 1993). Moreover,
such an intrusion claim is typically associated with either a
physical invasion of a person's property or eavesdropping.
Cornhill, 106 F.3d at 85; Bray v. Cadle Co., No. 4:09-CV-663,
2010 WL 4053794, at *16 (S.D. Tex. Oct. 14, 2010). No facts are
alleged that would support such a claim in this case. Rather, the
amended complaint reflects that defendant was a recipient of the
letter; he did not obtain private correspondence of plaintiff by
improper means. There was no personal intrusion into plaintiff's
As noted in Cornhill, the Supreme Comt later refused to recognize the fomth type of invasion of
privacy identified in Indus. Found. false light invasion of privacy. Cain v. Hearst Corp., 878 S.W.2d 577
A claim for disclosure of embarrassing private facts requires that publicity was given to matters
concerning the plaintiff's personal life, the publication would have been highly offensive to a reasonable
person of ordinary sensibilities, and the matter publicized was not of legitimate public concern. StarTelegram, Inc. v. Doe, 915 S.W.2d 471, 473-74 (Tex. 1995). That is not the case here, where the letter
was in response to a FaceBook post of plaintiff and does not address intimate or embarrassing facts.
See Coal. for Airline Passengers' Bill of
Rights v. Delta Air Lines, Inc., 693 F. Supp. 2d 667, 675 (S.D.
Finally, the court notes that, in her response, plaintiff
refers to the Electronic Communications Privacy Act of 1986, 18
2510-22, and the Privacy Act of 1974, 5 U.S.C.
Plaintiff cannot by her response amend her complaint. In re Baker
Hughes Securities Litig., 136 F. Supp. 2d 630, 646
2001): Coates v. Heartland Wireless Communications, Inc., 55 F.
Supp. 2d 628, 644 n.26 (N.D. Tex. 1999). Neither of these
statutes would be applicable in any event.
For the reasons discussed herein,
The court ORDERS that defendant's motion to dismiss be, and
is hereby, granted, and plaintiff's claims in this action be, and
are hereby, dismissed.
SIGNED March 13, 2018.
'Copies of state court filings submitt with the notice of removal reflect that plaintiff first
posted comments on social media that gave ri to the letter at issue. Moreover, plaintiff herself appears
to have posted the letter at a later date. Doc. I. These are documents of which the cmut can take judicial
notice. See supra at 5.
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