McPeters v. Edwards et al

Filing 103

Joint RESPONSE in Opposition to 101 MOTION for Reconsideration of 100 Memorandum and Order,, filed by Barbara Gladden Adamick, Frederick E Edwards, Montgomery County, Texas, Reed Elsevier, Inc.. (Attachments: # 1 Proposed Order DENYING Plaintiff's Motion for Reconsideration)(Miller, Allison)

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McPeters v. Edwards et al Doc. 103 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION KAREN McPETERS, Individually, and on behalf of those individuals, persons, and entities who are similarly situated, Plaintiff, VS. THE HONORABLE FREDERICK E. EDWARDS; BARBARA GLADDEN ADAMICK, DISTRICT CLERK; MONTGOMERY COUNTY, TEXAS; and REED ELSEVIER, INC. d/b/a LexisNexis, Defendants. § § § § § § § § § § § § § § § CIVIL ACTION NO. 4:10­CV­1103 ALL DEFENDANTS' JOINT RESPONSE TO PLAINTIFF KAREN MCPETERS'S MOTION FOR RECONSIDERATION Requested Relief 1. The Court's January 27, 2011 Memorandum and Order is correct in all respects, and Plaintiff Karen McPeters's ("McPeters") Motion for Reconsideration should be denied. See Docket No. 100 (Memorandum and Order); Docket No. 101 (Motion for Reconsideration). As was the case with her responses to the dispositive briefing in this case, McPeters cannot and does not cite any persuasive authority in support of her position. Accordingly, Defendants Judge Frederick E. Edwards ("Judge Edwards"), Barbara Gladden Adamick ("Adamick"), Montgomery County, Texas ("Montgomery County"), and LexisNexis, a division of Reed Elsevier Inc. ("LexisNexis") (collectively, "Defendants") request the Court to deny McPeters's motion for reconsideration. Dockets.Justia.com Argument and Authorities 2. McPeters's motion for reconsideration should be denied for multiple reasons. First, McPeters's motion, which challenges only the Court's ruling on her 42 U.S.C. § 1983 claim, adds little, if anything, to arguments this Court has already considered and rejected; accordingly, Defendants will not revisit these issues here. See Docket No. 100 at pp. 6­11; see also Docket Nos. 72­74 (McPeters's responses to Defendants' motions to dismiss); Docket No. 94-1 (McPeters's Hearing Brief No. 2: LeCroy Shows Court Access Is A Fundamental Right); Docket No. 94-2 (McPeters's Hearing Brief. No. 3: Equal Protection, Due Process[,] and Open Courts); Docket No. 95 (McPeters's Post-Submission Letter Brief). 3. Second, McPeters includes in her brief quotations of case law holding that access to courts is a fundamental right. See Docket No. 101, pp. 2­3. While McPeters's quotations are technically correct, they are from dissenting opinions1 and/or are not persuasive authority for McPeters at all. See id. Specifically, in Johnson v. Atkins, the Fifth Circuit in dismissing a case alleging that filing fees violated constitutional rights stated: Finally, even construing Johnson's complaint liberally it is difficult to imagine how the fee schedule under consideration could amount to a constitutional violation under either an equal protection or separation of powers theory. It is difficult to see how the fees paid by Johnson were "unequal," because they were determined by a schedule applicable to all litigants. Further, it is not this court's role to say that the fees were "unequal" because Johnson thinks they were "unfair." 999 F.2d 99, 100­101 (5th Cir. 1993). 4. Third, the Memorandum and Opinion correctly points out that the reason an individual is seeking access to the courts is a necessary question, and properly distinguishes 1 Woodford v. Ngo, 548 U.S. 81, 122, 126 S. Ct. 2378, 2404, 165 L. Ed. 2d 368 (2006) (Stevens, J. dissenting). ­2­ H:\data\TLI001\30613\528214.DOC McPeters's case from others in which it was found that a fundamental right of access was implicated. Docket No. 100, p. 8. Here, although McPeters claims that the fundamental right she seeks to vindicate is that of a "`workplace free from discrimination,'" she once again cannot cite any persuasive authority in support of her position. Docket No. 101, pp. 3­4. Instead, she again quotes from dissenting opinions. See, e.g., Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 749, 101 S. Ct. 1437, 1449, 67 L. Ed. 2d 641 (1981) (Burger, C.J., dissenting). The Court correctly evaluated and dismissed McPeters's claims under the rational basis standard, and McPeters has not shown herself to be entitled to any other result. 5. Finally, any amendment of McPeters's complaint would be futile and therefore should not be allowed. See Ackerson v. Beca Dredging LLC, 589 F.3d 196, 208­09 (5th Cir. 2009); Duzich v. Advantage Fin. Corp., 395 F.3d 527, 531 (5th Cir. 2004). To the extent that McPeters requests leave to amend her complaint in the motion for reconsideration, Defendants respectfully request this Court to deny McPeters such relief. See id. Conclusion 6. Defendants request the Court to deny McPeters's motion for reconsideration and all relief requested therein. Defendants request any other, further, or alternative relief to which they may be legally or equitably entitled. ­3­ H:\data\TLI001\30613\528214.DOC Respectfully submitted, SHEPHERD, SCOTT, CLAWATER & HOUSTON, L.L.P. By: /s/ Allison Standish Miller Billy Shepherd Texas Bar No. 18219700 Federal I.D. No. 10666 Allison Standish Miller Texas Bar No. 24046440 Federal I.D. No. 602411 2777 Allen Parkway, 7th Floor Houston, Texas 77019­2133 Telephone No. (713) 650­6600 Telecopier No. (713) 650­1720 ATTORNEYS FOR DEFENDANT HONORABLE FREDERICK E. EDWARDS --AND-- DAVID K. WALKER, MONTGOMERY COUNTY ATTORNEY By: /s/ Rayborn C. Johnson, Jr. Rayborn C. Johnson, Jr. Assistant Montgomery County Attorney Texas Bar No. 10820500 207 W. Phillips, Suite 100 Conroe, Texas 77301 Telephone No. (936) 539­7828 Telecopier No. (713) 760­6920 Email ray.johnson@mctx.org ATTORNEY-IN-CHARGE FOR DEFENDANT MONTGOMERY COUNTY, TEXAS --AND-- ­4­ H:\data\TLI001\30613\528214.DOC By: /s/ John G. Parker John G. Parker Georgia Bar No. 562425 Pro Hac Vice Admission 600 Peachtree Street, N.E. Suite 2400 Atlanta, Georgia 30308 johnparker@paulhastings.com Telephone: (404) 815-2222 Facsimile: (404) 685-5222 J. Allen Maines Georgia Bar No. 466575 Pro Hac Vice Admission 600 Peachtree Street, N.E. Suite 2400 Atlanta, Georgia 30308 allenmaines@paulhastings.com Telephone: (404) 815-2500 Facsimile: (404) 685-2401 Emily L. Shoemaker Georgia Bar No. 558138 Pro Hac Vice Admission 600 Peachtree Street, N.E. Suite 2400 Atlanta, Georgia 30308 emilyshoemaker@paulhastings.com Telephone: (404) 815-2252 Facsimile: (404) 685-5252 S. Tameka Phillips Georgia Bar No. 245633 Pro Hac Vice Admission 600 Peachtree Street, N.E. Suite 2400 Atlanta, Georgia 30308 tamekaphillips@paulhastings.com Telephone: (404) 815-2330 Facsimile: (404) 685-5330 ATTORNEYS-IN-CHARGE FOR DEFENDANT REED ELSEVIER INC. ­5­ H:\data\TLI001\30613\528214.DOC Certificate Of Service I hereby certify that on Monday, March 7, 2011, a true and correct copy of the foregoing instrument was forwarded via electronic delivery pursuant to local rules, to-wit: Robert L. Mays, Jr. Attorney at Law 8626 Tesoro Drive, Suite 820 San Antonio, Texas 78217 Telephone No. (210) 657­7772 Telecopier No. (210) 657­7780 Attorney for Plaintiff David K. Walker Montgomery County Attorney Rayborn Johnson, Jr. Assistant County Attorney 207 W. Phillips, First Floor Conroe, Texas 77301 Telephone No. (936) 539­7828 Telecopier No. (713) 760­6920 Attorneys For Defendants Montgomery County, Texas and Barbara Gladden Adamick John G. Parker J. Allen Maines Emily L. Shoemaker S. Tameka Phillips Paul, Hastings, Janofsky & Walker LLP 600 Peachtree Street, N.E., Suite 2400 Atlanta, Georgia 30308 Telephone No. (404) 815­2222 Telecopier No. (404) 685­5222 Attorneys-In-Charge for Defendant Reed Elsevier, Inc. /s/ Allison Standish Miller Allison Standish Miller ­6­ H:\data\TLI001\30613\528214.DOC

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