Strangmeier v. The City of Houston Texas et al

Filing 26

RESPONSE in Opposition to 24 MOTION to Supplement Plaintiff's 1st Amended Original Complaint as to 13 Amended Complaint/Counterclaim/Crossclaim etc. MOTION to Supplement Plaintiff's 1st Amended Original Complaint as to 13 Amended Complaint/Counterclaim/Crossclaim etc., filed by Annise Parker, The City of Houston Texas. (Attachments: # 1 Proposed Order)(Stevens, Elizabeth)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOHN STRANGMEIER,
Plaintiff,
v.
CITY OF HOUSTON, ET AL.
Defendants.

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Civil Action No.: 4:11-CV-3463

CITY OF HOUSTON’S AND MAYOR ANNISE PARKER’S
RESPONSE TO PLAINTIFFS MOTION FOR LEAVE TO FILE
SUPPLEMENTAL PLEADING
Strangmeier’s motion for leave to file a supplement to the “Facts” section of
Plaintiff’s First Amended Complaint should be denied because the proposed amendments are
futile. Plaintiff brought this 42 U.S.C. Section 1983 suit alleging constitutional violations
arising out of his receipt of a civil citation for running a red light. The defendants have filed
a Rule 12(b) motion to dismiss Plaintiff’s claims which is pending. The proposed additional
facts do not serve to address any of the fatal deficiencies in Strangmeier’s First Amended
Complaint, and thus the proposed amendments are futile.
I. Argument and Authorities
Under Rule 15 of the Federal Rules of Civil Procedure, leave to amend should be
freely granted “when justice so requires.” However, denial may be warranted when the
proposed amendment is futile. McAfee v. 5th Circuit Judges, 884 F.2d 221, 222 (5th Cir.
1989), cert. denied, 493 U.S. 1083 (1990). A proposed amendment is futile if “the amended
complaint would fail to state a claim upon which relief can be granted.” Stripling v. Jordan

Production Co., LLC, 234 F.3d 863, 873 (5th Cir. 2000). In The Estate of C.A. v. Grier,
2012 WL 423389 (S.D. Tex. Feb. 8, 2012) (slip copy), the district court relied, in part, on the
futility doctrine to deny a motion to supplement a complaint with additional facts and legal
theories. The court held that the proposed amendments failed to support either a due process
or equal protection claim as a matter of law.
Here, Strangmeier seeks to amend his complaint to add allegations that he completed
the appeals process in place for challenging his ticket (proposed paragraph 26(a))1 and to
detail the events of Civil Action No.: 4:10-cv-4545, also pending before this Court, in which
Strangmeier has sought to intervene. (proposed paragraphs 26(b) and (c)). Strangmeier
argues in his motion for leave to amend that:
[t]he facts show that the U.S. Fifth Circuit of Appeals has allowed intervention
in a case (Civil Action 4:10-cv-4545, the Hon. Lynn N. Hughes, presided)
which previously had disposed of the issue of the validity of the November 2,
2010 election, the main issue in the instant case.
(DE 24, p. 4). The proposed supplemental allegations do not relate to any of the infirm
claims Strangmeier has made in this lawsuit or serve to cure their infirmity. As the
defendants have set out in their pending motion to dismiss, Strangmeier’s receipt of a civil
citation (and the City’s issuance of citations following this Court’s interlocutory order
finding that the Charter Amendment was void) simply do not implicate Strangmeier’s First,

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This supplemental fact is not necessarily objectionable, but it does not address the failure
to seek redress for a Fifth of Fourteenth Amendment claim in the state courts before filing claims
in federal court as required under Williamson County Regional Planning Comm’n v. Hamilton Bank,
473 U.S. 172, 186, 105 S. Ct. 3108, 87 L. Ed.2d 126 (1985).
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Fourth, Fifth, or Fourteenth Amendment rights, and the events of Civil Action No.:4:10-cv4545, do not transform Strangmeier’s receipt of the citation into a cognizable claim of
constitutional dimensions or cure the lack of standing and subject matter jurisdiction as to
the other claims asserted by Strangmeier in this case.
II. Conclusion
Because Strangmeier’s First Amended Complaint fails to state any viable claims and
the proposed supplemental facts do not provide a basis for any viable legal theory of a
constitutional deprivation or other claim, the motion for leave to supplement should be
denied on the basis of futility.
Respectfully submitted,
DAVID M. FELDMAN
City Attorney
LYNETTE K. FONS
First Assistant City Attorney
DONALD J. FLEMING
Senior Assistant City Attorney
Chief, Labor Section
/s /Elizabeth L. Stevens
Elizabeth L. Stevens
Attorney In Charge
Senior Assistant City Attorney
Federal ID 20100; SBN 00792767
[e-mail]
Andrea Chan
Senior Assistant City Attorney
Federal ID 14940; SBN 04086600
[e-mail]
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City of Houston Legal Department
P.O. Box 368
Houston, Texas 77001-0368
Phone: [phone]
Facsimile: [phone]
ATTORNEYS FOR DEFENDANT CITY OF
HOUSTON AND MAYOR ANNISE PARKER
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Response was served in
accordance with the Federal Rules of Civil Procedure on this the 27th day of February, 2012.

Randall L. Kallinen
Law Office of Randall L. Kallinen PLLC
511 Broadway Street
Houston, Texas 77012

Via efiling

/s/ Elizabeth Stevens
Elizabeth Stevens

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