Chavers et al v. Morrow et al
Filing
56
MEMORANDUM AND ORDER granting 42 MOTION to Dismiss, 25 MOTION to Dismiss, 32 MOTION to Dismiss, and 37 Amended MOTION to Dismiss and DISMISSING WITH PREJUDICE all Pltfs' claims against these Dfts. It is further Ordered, based upon the Co urt's determination to decline to exercise supplemental jurisdiction over Pltf Chavers's remaining cause of action, a state law claim against Dft Paul Jacob Kendzior, that Pltf's cause of action against Dft Paul Jacob Kendzior is DISMISSED WITHOUT PREJUDICE to Pltf refiling the claim in the appropriate state court. All other pending motions are DENIED.(Signed by Judge Ewing Werlein, Jr) Parties notified.(kcarr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
THOMAS CHAVERS, SANDRA PORTZER,
BRAZOS VALLEY CARRIAGE
COMPANY, L.P., ALL AMERICAN
ROADRUNNERS, L.P., and BRAZOS
VALLEY ROADRUNNERS, L.P.,
Plaintiffs,
v.
RANDALL HALL, KALINEC TOWING
COMPANY, INC., KALINEC LEASING
COMPANY, INC., MYRNA SUE
KALINEC, JEFF TAYLOR, JEFFREY
CAPPS, ERIC BUSKE, and PAUL
JACOB KENDZIOR,
Defendants.1
§
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CIVIL ACTION NO. H-10-3922
MEMORANDUM AND ORDER
Pending
(Document
1
are:
No.
Defendant
25);
Randall
Defendant
Eric
Hall’s
Motion
to
Dismiss
Buske’s
Motion
to
Dismiss
Plaintiffs’ Original Complaint, Document No. 1, named the
following Defendants: Tyrone Morrow, Michael Ilkner, The City of
Bryan, Texas, The City of College Station, Texas, Brazos County,
Texas, Christopher Kirk, Glenn Brown, David Watkins, Scott Hines,
Karla Wiesepape, Rachel Falwell, Walter Sayers, and Peter Glidewell, all of whom Plaintiffs previously sued on the same subject in
a previous action in this Court.
See Chavers v. Morrow, Civil
Action No. 4:08-cv-3286, Document No. 99 (Plaintiffs’ Third Amended
Complaint) (S.D. Tex. Mar. 8, 2010) (Hoyt, J.) [hereinafter
“Chavers I”]. (Plaintiffs also named Jeffrey Winney as a Defendant,
but dismissed him from their First Amended Complaint.). Plaintiffs
subsequently filed their First Amended Complaint, Document No. 23,
which dismissed by omission all original defendants and substituted
as Defendants those whose names now appear in the caption of this
case: Randall Hall, Kalinec Towing Co., Kalinec Leasing Co., Myrna
Sue Kalinec, Jeffrey Taylor, Jeffrey Capps, Eric Buske, and Paul
Jacob Kendzior.
Accordingly, Document Nos. 12, 15, and 16 are
DISMISSED as MOOT, because Plaintiffs no longer sue the original
defendants.
(Document No. 32); Defendants Myrna Sue Kalinec’s, Kalinec Leasing
Co.’s, Kalinec Towing Co.’s, and Jeff Taylor’s Amended Motion to
Dismiss (Document No. 37);2 Plaintiffs Thomas Chavers’s, Sandra
Portzer’s, Brazos Valley Carriage Company, L.P.’s, All American
Roadrunners, L.P.’s, and Brazos Valley Roadrunners, L.P.’s Motion
to Stay Proceedings (Document No. 39); and Defendant Jeffrey
Capps’s Motion to Dismiss (Document No. 42).
After carefully
considering the motions, responses, replies, and the applicable
law, the Court concludes as follows.
I.
A.
Background
Procedural History
Plaintiffs
Thomas
Chavers,
Sandra
Portzer,
Brazos
Valley
Carriage Company, L.P., All American Roadrunners, L.P., and Brazos
Valley Roadrunners, L.P. (collectively, “Plaintiffs”) are three
towing companies and their owners.
Plaintiffs previously filed a
virtually identical complaint in this court, which was assigned to
Judge Kenneth M. Hoyt, alleging that the cities of College Station
and
Bryan,
together
with
their
agents,
conspired
to
remove
Plaintiff towing companies from the cities’ non-consent towing
lists.3
2
In Chavers I, Plaintiffs alleged: violations of their
Document No.
DISMISSED as MOOT.
37
supersedes
3
Document
No.
17,
which
is
Chavers v. Morrow, Civil Action No. 08-cv-3286 (S.D. Tex.
Nov. 24, 2010) (Hoyt, J.) [hereinafter Chavers I].
2
civil rights under 42 U.S.C. § 1983 and racketeering in violation
of
18
U.S.C.
§
1964;
libel;
business
conspiracy; and abuse of process.4
disparagement;
civil
Plaintiffs further sought
declaratory and injunctive relief asserting that their due process
rights were violated. After amending their complaint no fewer than
three times in Chavers I, Plaintiffs moved for leave to file a
fourth amended complaint, which Judge Hoyt denied.5
After ruling
on numerous motions, Judge Hoyt rendered a take nothing Final
Judgment on November 24, 2010, dismissing with prejudice all of
Plaintiffs’ claims.6
Even before Judge Hoyt signed his Final Judgment, but after
rendering his substantive rulings against the Cities of Bryan and
College Station and their agents, etc., Plaintiffs filed this suit
(“Chavers II”) against the same defendants Plaintiffs had sued in
their Third Amended Complaint in Chavers I, alleging the same set
of facts and circumstances.
The re-sued Defendants all moved to
dismiss this case (Document Nos. 12, 15, and 16) based on claim
preclusion and pursuant to Fed. R. Civ. P. 12(b)(6).
In response,
Plaintiffs filed a First Amended Complaint in which they dismissed
4
Document No. 15, ex. D (Chavers I, Third Amended Complaint).
5
The Fourth Amended Complaint proposed to add Kalinec Towing
Company, Inc., Kalinec Leasing Company, Inc., Myrna Sue Kalinec,
and Bryan Police Officer Randall Hall as defendants in Chavers I.
See Document No. 18, ex. 2 (Chavers I, Document No. 110, ex. A)
(Plaintiffs’ proposed Fourth Amended Complaint).
6
See Chavers I, Document No. 163.
to the Fifth Circuit.
3
Chavers I is now on appeal
all of those Defendants and substituted a complete new cast,7
but
reiterated
essentially
all
the
together with these causes of action:
facts
previously
alleged,
(1) violations of the Texas
Free Enterprise and Antitrust Act and Section 1 of the Sherman
Antitrust Act; (2) civil rights claims of equal protection and due
process violations under 42 U.S.C. § 1983 and First Amendment
retaliation; (3) tortious interference with business relationships;
(4) malicious prosecution against Defendant Kendzior only; and
(5) civil conspiracy.8
B.
Factual Allegations
Plaintiffs’ suit in its present form alleges: (1) the cities
of Bryan and College Station, together with their agents, police
officers and chiefs of police, and Plaintiffs’ main competitor, the
Kalinec Defendants d/b/a A-1 Towing, conspired to interfere with
Plaintiffs’ businesses by removing their towing companies from
the
non-consent
7
towing
lists
maintained
by
the
respective
See Footnote 1, above, at page 1.
8
See Document No. 23 (Plaintiffs’ First Amended Complaint).
Kalinec Towing Company, Inc. and Kalinec Leasing Company, Inc. do
business as “A-1 Towing” and are one of Plaintiffs’ competitors.
Myrna Sue Kalinec is the owner, and Jeff Taylor is the vice
president and secretary, of the Kalinec businesses. These four
Defendants are referred to herein as the “Kalinec Defendants.”
Jeffrey Capps is the new Chief of Police for the City of College
Station, who replaced Michael Ikner; Eric Buske is the new Chief of
Police of Bryan, who replaced Tyrone Morrow; and Randall Hall is a
City of Bryan police officer. Paul Jacob Kendzior is alleged to be
a resident of Travis County, Texas, and evidently has no connection
to any of the other parties.
4
municipalities; (2) the public officials favor A-1 Towing by
funneling work to A-1 and away from Plaintiff towing companies;
(3) “A-1 provided barbeques and other gratuities to local law
enforcement
officers,
and
these
officers
reciprocated
by
circumventing the rotation list and steering business directly to
A-1”; (4) there were several incidents where police officers from
either the City of Bryan or the City of College Station allegedly
called A-1 when the customer had requested one of Plaintiffs’
companies;9 (5) the city of Bryan awarded exclusive contracts to A1 for all tows to the city impound lot without giving Plaintiffs an
opportunity to bid on that contract.10
On
October
28,
2008,
Bryan
Police
Chief
Tyrone
Morrow
allegedly sent to Plaintiff Chavers a letter explaining that the
city was suspending the Roadrunner Plaintiffs indefinitely “due to
numerous complaints of criminal activity allegedly committed by
employees of those businesses.”11
9
Mr. Morrow listed nine case
For example, Plaintiffs complain that a police officer would
come to the scene of an accident and a motorist would request
Plaintiffs to tow them, but the police officer would call the
dispatcher and request A-1 Towing (the Kalinec Defendants) instead.
Plaintiffs allege this occurred on numerous occasions, and recount
four specific instances involving four different police officers.
One of the four incidents appears to be the sole basis for naming
Officer Hall as a Defendant: on November 6, 2008, when Defendant
Hall was dispatched to an accident scene on Highway 6 near the
intersection of F.M. 2818, he “apparently . . . requested” A-l
Towing instead of Roadrunners, which Plaintiffs allege had been
requested by the vehicle’s owner. Id. at 6.
10
Id. at 7.
11
Id. at 8.
5
reports from the Brazos County Sheriff’s office.
Plaintiffs
dispute five of the complaints and further state that no one had
been charged with a crime at the time of the letter.12
On November 3, 2008, Plaintiffs met with Bryan Chief of Police
Tyrone Morrow.
Morrow allegedly explained that being on the non-
consent towing list was “a privilege,” and that tow truck drivers
who are on the list act as agents for the city.13
Morrow stated
that when tow truck drivers are “continually getting involved in
discord, [the city] did not need them.”14
Plaintiffs allege that
drivers for A-1 also have criminal records, yet nothing is done to
them.15
One new allegation in this case, when compared to
Chavers I,
is that Defendant Paul Jacob Kendzior (“Kendzior”), allegedly a
resident of Travis County, Texas, brought assault charges against
Plaintiff Chavers for allegedly pushing him on September 4, 2009,
when Kendzior objected to Chavers towing his vehicle.
Chavers was
12
Id. at 8-9. From their pleadings, it appears that citizens
had filed some criminal complaints against Plaintiffs.
Stating
that “[t]owing lots are no strangers to controversy,” Plaintiffs
dismiss their multiple instances of discord in the community as the
product of angry citizens who did not want their cars towed. See
id.
13
Id. at 10.
14
Id.
15
See id. at 11.
For example, Plaintiffs allege that A-1
drivers Terry Lott and Deshawn Johnson both have “extensive
criminal records.” Id.
6
acquitted of the charge on November 9, 2010 and sues Kendzior here
for malicious prosecution.
II.
A.
Discussion
Legal Standard
Rule 12(b)(6) provides for dismissal of an action for “failure
to state a claim upon which relief can be granted.”
12(b)(6).
FED . R. CIV . P.
When a district court reviews the sufficiency of a
complaint before it receives any evidence either by affidavit or
admission, its task is inevitably a limited one.
Rhodes, 94 S. Ct. 1683, 1686 (1974).
See Scheuer v.
The issue is not whether the
plaintiff ultimately will prevail, but whether the plaintiff is
entitled to offer evidence to support the claims.
Id.
In considering a motion to dismiss under Rule 12(b)(6), the
district court must construe the allegations in the complaint
favorably to the pleader and must accept as true all well-pleaded
facts in the complaint.
See Lowrey v. Tex. A&M Univ. Sys.,
117 F.3d 242, 247 (5th Cir. 1997).
To survive dismissal, a
complaint must plead “enough facts to state a claim to relief that
is plausible on its face.”
1955, 1974 (2007).
Bell Atl. Corp. v. Twombly, 127 S. Ct.
“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable
inference
misconduct alleged.”
that
the
defendant
is
liable
for
the
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
7
(2009).
While a complaint “does not need detailed factual allega-
tions . . . [the] allegations must be enough to raise a right to
relief above the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).”
Twombly, 127 S. Ct. at 1964-65 (citations and internal footnote
omitted).
B.
Analysis
1.
Motions to Dismiss Defendants Hall, Buske, and Capps
Defendants Hall, Buske and Capps each argue that the judgment
in Chavers I has preclusive effect on subsequent actions against
them which are based on the same nucleus of operative facts.
The
preclusive effect of a prior federal court judgment is controlled
by federal res judicata rules.
Ellis v. Amex Life Ins. Co., 211
F.3d 935, 937 (5th Cir. 2000).
The elements of res judicata are:
(1) the parties in the second action are the same, or in privity
with, the parties in the first action; (2) judgment in the first
case was rendered by a court of competent jurisdiction; (3) there
has been a final judgment on the merits; and (4) the same claim or
cause of action is involved in both suits.
16
Id.16
The Court evaluates the various Defendants’ motions to
dismiss based on res judicata pursuant to Rule 12(b)(6), because
the elements of res judicata are evident on the face of the
pleadings, see Kansa Reinsurance Co. v. Congressional Mortg. Corp.
of Tex., 20 F.3d 1362, 1366 (5th Cir. 1994), and are matters of
which the Court may take judicial notice. Hall v. Hodgkins, 305 F.
App’x 224, 226-27 (5th Cir. 2008). A court must limit itself to
8
Plaintiffs do not dispute that Chavers I was decided in a
court of competent jurisdiction or that a final judgment on the
merits was rendered in that case.
Plaintiffs contend that res
judicata does not apply because (1) the officers are different than
the parties in Chavers I, and (2) Plaintiffs have brought different
claims.
a.
Same Parties or Privies
A strict identity of parties is not required to satisfy the
first element of res judicata; it is sufficient for the parties in
both actions to be in privity with one another.
Russell v.
SunAmerica Secs., Inc., 962 F.2d 1169, 1173 (5th Cir. 1992).
Privity between parties exists for res judicata purposes in three
situations: “(1) where the non-party is the successor in interest
to
a
party’s
interest
in
property;
(2)
where
the
non-party
controlled the prior litigation; and (3) where the non-party’s
interests were adequately represented by a party to the original
suit.”
Meza v. Gen. Battery Corp., 908 F.2d 1262, 1266 (5th Cir.
1990).
The Fifth Circuit has further explained that the identity
the contents of the pleadings and the attachments thereto in a
motion to dismiss. Collins v. Morgan Stanley Dean Witter, 224 F.3d
496, 498 (5th Cir. 2000).
Here, the Court takes judicial notice of the pleadings and
judgments rendered in Chavers I.
See Jefferson v. Lead Indus.
Ass’n, Inc., 106 F.3d 1245, 1250 n.14 (5th Cir. 1997) (the court
may take judicial notice of matters of public record, such as court
documents, in considering a Rule 12(b)(6) motion).
9
of parties element “is not defeated by a change in the capacity in
which an individual sues, nor is it defeated by the inclusion of
additional parties to the second suit.”
United States ex. rel.
Laird v. Lockheed Martin Eng’g & Sci. Servs., Co., 336 F.3d 346,
357 (5th Cir. 2003), abrogated on other grounds by Rockwell Int’l
Corp. v. United States, 127 S. Ct. 1397, 1408 (2007) (internal
citations omitted). “[T]he word ‘parties’ does not refer to formal
or paper parties, but to parties in interest, that is, that persons
whose interests are properly placed before the court by someone
with standing to represent them are bound by the matters determined
in the proceeding.”
Southmark Prop. v. Charles House Corp., 742
F.2d 862, 869 (5th Cir. 1984) (finding that a major stockholder in
the debtor corporation who participated in and had a “strong
pecuniary interest in the outcome” of the proceedings was in
privity with the original defendants such that the prior judgment
was binding upon him).
Defendant Capps, Chief of Police for the City of College
Station, is the immediate successor to former Chief Michael Ilkner,
a prevailing defendant in Chavers I, and Defendant Buske, the Chief
of Police for the City of Bryan, is the immediate successor to
former Chief Tyrone Morrow, a prevailing defendant in Chavers I.
Hence, both Defendants Capps and Buske are in direct privity with
their immediate predecessors in office with respect to Plaintiffs’
claims in Chavers I that are now again alleged in this case.
Meza, 908 F.2d at 1266.
See
Additionally, the pleadings reflect that
10
Police Chief Capps is an agent of and acting under the authority of
the City of College Station with respect to his enforcement of City
policies in this case and, therefore, he is in privity with the
City of College Station, which also was a prevailing party in
Chavers I.
See Johnson v. City of Houston, No. H-10-CV-366, 2010
WL 3909929, at *8 (S.D. Tex. September 20, 2010) (Hoyt, J.)
(holding that the Houston Chief of Police and Houston Police
Department were in privity with the City of Houston, a party named
in a previous lawsuit based on the same facts as new lawsuit).
The
same is true for Defendant Buske, who is the agent of and acting
under the authority of the City of Bryan with respect to the facts
alleged in this case.
He, therefore, is in privity with the City
of Bryan, which was a prevailing party in Chavers I.
See id.
Defendant Officer Hall of the City of Bryan was also acting in
his capacity as a police officer for the City of Bryan when he was
dispatched to investigate the accident on Highway 6 on November 6,
2008, and allegedly requested A-l Towing Services rather than
Plaintiff Roadrunners to tow a wrecked vehicle.
Indeed, in their
proposed Fourth Amended Complaint in Chavers I, Plaintiffs alleged
additional details with respect to this single incident alleged
against Defendant Hall, as follows:
“Defendant Hall said his
Chief, i.e., Defendant [former Chief of Police Tyrone] Morrow, had
told
him
to
prohibit
Roadrunners
from
making
the
tow.”
See Document No. 18, ex. 2 ¶ 33 (Plaintiffs’ Fourth Amended
Complaint).
A comparison of the plaintiffs’ pleadings, both filed
11
and proposed in Chavers I and in this case, fully demonstrates that
Defendant Hall was in privity not only with the City of Bryan but
also with Chief of Police Morrow with respect to the facts alleged
against Officer Hall in this case. See Russell v. SunAmerica Sec.,
Inc., 962 F.2d 1169, 1174 (5th Cir. 1992); see also Strong v. City
of Dallas, No. Civ. A. 3:02CV1758-P, 2005 WL 1544799 (N.D. Tex.
June 29, 2005).
Defendant Hall’s interests were “adequately
represented in the prior proceeding,” Meza, 908 F.2d at 1266,
Chavers I was finally adjudged against Plaintiffs, and Defendant
Hall’s privity with the prevailing Defendants in the prior case
precludes Plaintiffs from suing Hall on the same set of facts.
b.
Same Claim or Cause of Action
Plaintiffs contend that res judicata does not apply to bar the
claims against Defendants Hall, Buske, and Capps, because they have
asserted new causes of action here.
Plaintiffs allege antitrust
and tortious inference with business relationships as the new
causes of action against Defendants Hall, Buske, and Capps.
They
also repeat the same § 1983 civil rights and civil conspiracy
claims alleged in Chavers I. These reiterated claims are barred by
res judicata as to Defendants Hall, Buske, and Capps, as privies to
the defendant parties in Chavers I.
As for the newly asserted causes of action, the Fifth Circuit
applies the transactional test to determine whether two suits
12
involve the same claim.
See Southmark, 742 F.2d at 870-71 & n.12.
To determine whether a given grouping of facts constitutes a single
transaction, a court examines “whether the facts are related in
time, space, origin, or motivation, whether they form a convenient
trial unit, and whether their treatment as a unit conforms to the
parties’ expectations or business understanding or usage.”
Petro-
Hunt, L.L.C. v. United States, 365 F.3d 385, 396 (5th Cir. 2004).
A court examines the “factual predicate of the claims asserted, not
the legal theories upon which a plaintiff relies,” in order to
determine whether two causes of action are based on the “same
nucleus of operative facts.”
Eubanks v. F.D.I.C., 977 F.2d 166,
171 (5th Cir. 1992).
It
is
Plaintiffs’
evident
from
antitrust
a
and
comparison
tortious
of
the
complaints
interference
with
that
business
relationships claims are based on the same nucleus of operative
facts
alleged
and
upon
which
Final
Judgment
was
entered
in
Chavers I. Specifically, the factual predicate in both suits rests
on Plaintiffs’ contention that the cities of College Station and
Bryan removed them from the non-consent towing list and favored
another tow company.
cities
and
public
In both lawsuits, Plaintiffs allege that the
officials
on
numbers
of
occasions
steered
business away from Plaintiff towing companies, and the allegations
in both suits describe many of the same instances of alleged
wrongdoing. The inescapable substantive identity of the nucleus of
13
operative
facts
giving
rise
to
Plaintiff’s
action
against
Defendants in this case with the action they brought in Chavers I
is fully apparent from an examination of Judge Hoyt’s Memorandum
Opinion and Order signed March 23, 2010, granting the City of
Bryan’s Motion for Judgment on the Pleadings in Chavers I:
It is sufficient background to state that the plaintiffs
commenced this suit in 2008, when the three (3) towing
companies owned by Chavers and Portzer were removed from
the City’s approved non-consensual towing list and not
allowed to participate in the program.
Similar
allegations were made against the City of College
Station, Texas and Brazos County, Texas. As well, the
Chief of Police for the City, Tyrone Morrow, and Brazos
County Sheriff, Christopher Kirk, among other officials,
were accused of favoritism and retaliation.
Memorandum Opinion and Order dated March 23, 2010, at p. l, Civil
Action No. 08-CV-3286, Thomas Chavers, et al., Plaintiffs v. Tyrone
Morrow, et al, Defendants.
Plaintiffs cannot avoid the preclusive effect of Chavers I
merely by raising different legal theories on that same set of
alleged facts.
Eubanks, 977 F.2d at 171.
Plaintiffs could have,
and should have, raised their antitrust and tortious interference
claims in Chavers I.
See Matter of Howe, 913 F.2d 1138, 1144 (5th
Cir. 1990) (“The rule is that res judicata ‘bars all claims that
were or could have been advanced in support of the cause of action
on the occasion of its former adjudication, . . . not merely those
that were adjudicated.’” (quoting Nilsen v. City of Moss Point,
Miss., 701 F.2d 556, 560 (5th Cir. 1983)) (emphasis in original)).
14
Accordingly, Plaintiffs’ antitrust and tortious interference claims
against
Defendants
judicata,
and
all
Hall,
Buske,
claims
and
against
Capps
those
are
barred
defendants
by
res
will
be
dismissed.
2.
Motion to Dismiss the Kalinec Defendants
The Kalinec Defendants assert that a “special relationship”
exists
between
the
alleged
co-conspirators
in
Chavers
I
and
themselves such that this action against them is barred by res
judicata. Gambocz v. Yelencsics, 468 F.2d 837, 842 (3d Cir. 1972).
The Fifth Circuit in Lubrizol Corp. v. Exxon Corp. explained:
The doctrinal basis for these decisions [barring
subsequent claims based on res judicata] has varied
according to their fidelity to traditional mutuality or
privity concepts, but they share a common practical
thread. Where a plaintiff has sued parties in serial
litigation over the same transaction; where plaintiff
chose the original forum and had the opportunity to raise
all its claims relating to the disputed transaction in
the
first
action;
where
there
was
a
“special
relationship” between the defendants in each action, if
not complete identity of parties; and where although the
prior action was concluded, the plaintiff's later suit
continued to seek essentially similar relief, the courts
have denied the plaintiff a second bite at the apple.
871 F.2d 1279, 1288 (5th Cir. 1989) (citing Gambocz, 468 F.2d at
837) (emphasis added).
In Gambocz, cited with approval by the Fifth Circuit in
Lubrizol, the plaintiff previously had sued four defendants for
unlawfully
conspiring
“to
cause
15
criminal
processes
and
incarceration [of plaintiff] for the mere owing of civil debts.”
Id. at 839 n. 2.
After a federal court dismissed all claims,
plaintiff brought an identical action against the four original
defendants and three new defendants.
The Third Circuit held that
the “relationship of the additional parties to the second complaint
was so close to parties to the first complaint that the second
complaint was merely a repetition of the first cause of action,”
and was therefore barred by res judicata.
this assessment, the court noted:
Id. at 842.
In making
(1) the “essential allegations
of the second complaint parallel those of the first”; (2) some of
the new defendants had been mentioned in the first complaint as
having participated in the conspiracy; and (3) the sole material
change in the later suit was the addition of certain defendants.
Id.
Here, like Gambocz, the third amended complaint in Chavers I
and the amended complaint in this case contain the same basic
factual allegations.17
Further, Plaintiffs in their third amended
complaint
I
in
Chavers
alleged
that
the
Kalinec
Defendants’
company, A-1 Towing Service, was a participant in the overall
conspiracy, that it gave barbeques and other unspecified gratuities
to
unnamed
officials,
and
that
it
received
exclusive
city
contracts. Finally, Plaintiffs here merely substitute an antitrust
17
The sole exception is the addition of a malicious
prosecution cause of action against Kendzior, which relates to none
of the Kalinec Defendants.
16
claim for a RICO claim and a tortious interference with business
relationships
claim
for
a
business
disparagement
claim.
As
observed above, these claims all arise from the same nucleus of
operative facts and could have been brought in the previous action.
The further fact that in Chavers I Plaintiffs belatedly sought to
sue the Kalinec Defendants18 by filing a fourth amended complaint
persuasively weighs in favor of Defendants’ privity argument:
Plaintiffs had ample information to sue them in the first action,
but failed timely to do so.
See Somerville House Mgmt., Ltd. v.
Arts & Entm’t Television Network, No. 92-CIV-4705, 1993 WL 138736
(S.D.N.Y. Apr. 28, 1993) (holding that new defendants not joined in
the first conspiracy action but who had been “major participants in
a single conspiracy,” and who the plaintiff conceded could have
been included in the earlier action, had a “sufficiently close
relationship” to the previous defendants such that res judicata
barred a subsequent action against the new defendants).
Plaintiffs rely on Taylor v. Sturgell, 128 S. Ct. 2161 (2008),
for the proposition that res judicata does not bar their claims
against
the
Kalinec
Defendants
because
they
are
different
defendants from those named in Chavers I and do not fall under one
18
Plaintiffs did not name one of the Kalinec Defendants, Jeff
Taylor, Vice President and Secretary of the Kalinec businesses, in
the fourth amended complaint, but Plaintiffs allege nothing against
Taylor in this case other than what they allege equally against
Defendant Myrna Sue Kalinec, the owner of the Kalinec businesses,
who Plaintiffs did name as a defendant in the fourth amended
complaint.
17
of the exceptions to non-party preclusion listed in Taylor.
In
Taylor, the two successive plaintiffs brought identical actions
against the same defendant, the Federal Aviation Administration, to
obtain certain documents under the Freedom of Information Act. Id.
at 2167.
The two plaintiffs were friends but shared no legal
relationship.
Id.
representation”
as
The
an
Supreme
exception
Court,
to
the
rejecting
identity
of
“virtual
parties
requirement for res judicata, held that each plaintiff was entitled
to his day in court, absent some showing that one acted as the
agent for the other.
Id. at 2171-73.
This case is quite different from Taylor.
Here, the same
Plaintiffs from Chavers I, who had full and fair opportunity to
“have their day in court,” now pursue a second suit on the same
nucleus of operative facts against the Kalinac Defendants, whom
they accused of wrongdoing and conspiracy in Chavers I, but whom
they chose not to sue in that case, at least until belatedly
attempting
to
file
a
fourth
amended
complaint.
Unlike
the
plaintiffs in Taylor, Plaintiffs’ own pleadings in Chavers I and
the instant case bear witness to the “special relationship” that
the Kalinec Defendants share with the other defendants, their
putative co-conspirators. See Nilsen v. City of Moss Point, Miss.,
701 F.2d 556, 560 (5th Cir. 1983) (holding that the denial of
plaintiff’s tardy motion for leave to amend her complaint operated
as res judicata for that claim in a subsequent suit); see also
18
Hrabe v. Paul Revere Life Ins. Co., 76 F. Supp.2d 1297, 1303-04
(M.D. Ala. 1999) (same).
Accordingly, the Court finds that there
was a special relationship between the alleged co-conspirators in
Chavers I and the Kalinec Defendants tantamount to an identity of
the parties sufficient to bar by res judicata Plaintiffs’ present
action against the Kalinec Defendants.
3.
Plaintiffs’ Cause of Action Against Kendzior
Finally,
Plaintiffs
allege
Defendant Paul Jacob Kendzior.
malicious
prosecution
against
Kendzior, according to Plaintiffs’
First Amended Complaint, evidently illegally parked his vehicle at
an apartment complex in College Station.
Plaintiff Roadrunners
attempted to tow Kendzior’s vehicle from the no-parking zone and
the following occurred:
College Station police were called to the scene because
Kendzior falsely claimed that he was pushed by Plaintiff
Chavers.
At the behest of Kendzior, College Station
police filed assault charges against Chavers, even though
they normally would not pursue such a case in the absence
of a credible third-party witness. The charge was filed
as part of the City of College Station’s ongoing policy
of retaliating against the Plaintiffs for filing
Chavers I. Plaintiff Chavers was acquitted of the bogus
charge on November 9, 2010.
Plaintiffs’ First Amended Complaint, ¶ 44.
Hence, Plaintiffs in
Count IV allege “Defendant Kendzior is liable to Plaintiff Chaves
[sic] for malicious prosecution.”
19
Given the dismissal of Plaintiffs’ other causes of action
against all other Defendants, which were the sole basis for the
Court’s original jurisdiction, and in the absence of diversity
jurisdiction, the question now presented is whether this Court
should retain supplemental jurisdiction over the remaining state
law claim against Kendzior.
See 28 U.S.C. § 1367.
District courts
may decline to exercise supplemental jurisdiction over state law
claims when, among other reasons, the district court has dismissed
all claims over which it has original jurisdiction. Id. § 1367(c).
In addition, the Supreme Court has explained that considerations
regarding “judicial economy, convenience, fairness, and comity” are
relevant to determining whether a court should retain state law
claims.
See Carnegie-Mellon Univ. v. Cohill, 108 S. Ct. 614, 623
(1988); see also United Mine Workers v. Gibbs, 86 S. Ct. 1130, 1139
(1966).
The general rule, though not absolute, is that when “all
federal-law claims are eliminated before trial, the balance of
factors to be considered under the pendent jurisdiction doctrine
. . . will point toward declining to exercise jurisdiction over the
remaining state-law claims.”
Cohill, 108 S. Ct. at 619 n.7
(analyzing Gibbs, 86 S. Ct. at 1139); see also Batiste v. Island
Records, Inc., 179 F.3d 217, 227 (5th Cir. 1999).
Defendant Kendzior, alleged to be a resident of Travis County,
Texas, allegedly illegally parked his vehicle in front of an
apartment complex in College Station.
20
As a result of his ensuing
fateful and chance encounter with tow truck operator Plaintiff
Chavers, Plaintiff Chavers seeks to draw this hapless visitor to
College Station into the vortex of Plaintiffs’ serial litigation
against the cities of College Station and Bryan.19
Both the Court
and the College Station visitor who parked in the wrong place, in
the
interest
of
judicial
economy,
convenience,
fairness,
and
comity, should be spared having to attend Plaintiff Chavers’s
“malicious prosecution” claim in this Court.
Court
declines
to
exercise
supplemental
Accordingly, the
jurisdiction
over
Plaintiff’s state law claim against Paul Jacob Kendzior, and this
cause of action will be dismissed without prejudice to Plaintiff
refiling the same in an appropriate state court.
19
Plaintiffs move for entry of default (Document No. 35)
because Defendant Kendzior never responded to Plaintiffs’ suit.
The summons returned and on file at Document No. 34 is captioned,
“Thomas Chavers, et al., Plaintiff v. Jeffrey Winney, et al.,
Defendant,” and recites that Defendant Kendzior must serve on
Plaintiff an answer “to the attached complaint” in accordance with
the Federal Rules of Civil Procedure. Jeffrey Winney, of course,
was named in the Original Complaint, but Plaintiffs dropped Winney
when they filed their First Amended Complaint. Kendzior was not
sued in the Complaint that named Winney. There is no proof that
Kendzior was served with Plaintiffs’ First Amended Complaint which,
for the first time, named Kendzior as a Defendant. Moreover, the
summons identifies Kendzior’s address as 481 Dean Road in Cibolo,
Texas. Cibolo is not in Travis County, where Plaintiffs allege
that Kendzior resides, but in Guadalupe County.
The process
server’s return reflects service upon a person bearing Kendzior’s
name, but at a completely different address in Cibolo than the
address shown on the face of the summons.
Plaintiffs have not
shown themselves entitled to a default against Kendzior, but
regardless, all of these matters as well as a damages hearing, if
Kendzior does default, are best left to the appropriate state
court.
21
IV.
Order
Accordingly, it is
ORDERED
(Document
No.
that
Defendant
25),
Randall
Defendant
Eric
Hall’s
Motion
to
Dismiss
Buske’s
Motion
to
Dismiss
(Document No. 32), Defendant Jeffrey Capps’s Motion to Dismiss
(Document No. 42), and Defendants Myrna Sue Kalinec’s, Kalinec
Leasing Co.’s, Kalinec Towing Co.’s, and Jeff Taylor’s Amended
Motion to Dismiss (Document No. 37) are all GRANTED, and all
Plaintiffs’ claims against them are DISMISSED with prejudice.
It
is further
ORDERED, based upon the Court’s determination to decline to
exercise
supplemental
jurisdiction
over
Plaintiff
Chavers’s
remaining cause of action, a state law claim against Defendant Paul
Jacob Kendzior, that Plaintiff’s cause of action against Defendant
Paul Jacob Kendzior is DISMISSED WITHOUT PREJUDICE to Plaintiff
refiling the claim in an appropriate state court.
It is further
ORDERED that all other pending motions are DENIED.
The Clerk will enter this Order and provide a correct copy to
all parties.
SIGNED at Houston, Texas, on this 16th day of June, 2011.
____________________________________
EWING WERLEIN, JR.
UNITED STATES DISTRICT JUDGE
22
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