Weisskopf v. United Jewish Appeal-Federation of Jewish Philanthropies of New York Inc et al
Filing
39
ORDER GRANTING 17 Defendant United Jewsih Appeal-Federation of Jewish Philanthropies of New York's MOTION to Dismiss for Lack of Subject-Matter Jurisdiction and Failure to State a Claim, GRANTING 20 Defendants Kinder Morgan, Inc., and El Paso E&P Company, L.P.'s MOTION to Dismiss for Lack of Subject-Matter Jurisdiction and Failure to State a Claim, DENYING 31 First MOTION to Amend Complaint. This suit is DISMISSED.(Signed by Judge David Hittner) Parties notified.(chorace)
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
R. DAVID WEISSKOPF, Pro Se,
5
§
Plaintiff,
5
§
Civil Action No. H- 12-130
v.
§
§
UNITED JEWISH APPEALFEDERATION OF JEWISH
5
PHILANTHROPIES OF NEW YORK, 5
INC., et al.,
§
§
Defendants.
8
ORDER
Pending before the Court is Defendant United Jewish Appeal-Federation of
Jewish Philanthropies of New York's Motion to Dismiss for Lack of Subject-Matter
Jurisdiction, Lack of Personal Jurisdiction, and Failure to State a Claim (Document
No. 17); Defendants Kinder Morgan, Inc. and El Paso E&P Company, L.P.'s Motion
to Dismiss for Lack of Subject-Matter Jurisdiction and Failure to State a Claim.
(Document No. 20); and Plaintiff R. David Weisskopf's Motion for Leave of Court
to File Amended Complaint (Document No. 3 1). Having considered the motions,
submissions, and applicable law, the Court determines that United Jewish AppealFederation's motion should be granted, El Paso and Kinder Morgan's motion should
be granted, and Plaintiffs motion should be denied.
I. BACKGROUND
This case arises under the Alien Tort Statute CATS"), 28 U.S.C.
5 1350, and
the Torture Victim Protection Act of 1991 ("TVPA"), Pub. L. No. 102-256,106 Stat.
73 (1992) (codified at 28 U.S.C. 9 1350). On December 14,2011, Plaintiff R. David
Weisskopf ("Plaintiff ') filed the instant suit against Defendant United Jewish AppealFederation of Jewish Philanthropies of New York ("UJA-Federation"), El Paso E&P
Company L.P. ("El Paso"), and Kinder Morgan, Inc. ("Kinder Morgan") (collectively,
"Defendants") in the United States District Court for the Eastern District of Texas.
Plaintiff is a Wisconsin resident who alleges that he and his children are being
wrongfully detained in Israel.' Plaintiff is not an alien.
Plaintiff has sued Defendants under the ATS and the TVPA for (i) aiding and
abetting crimes against humanity, (ii) reckless disregard for human and parental
rights, and (iii) financing and aiding and abetting acts of persecution.2 Although it
is difficult to pin down exactly what Plaintiff alleges took place, the essence of his
Complaint appears to boil down to Plaintiffs displeasure with treatment by the Israeli
family-law system as a result of his visitation and child-custody proceedings.
1
Plaintiffs Complaint 7 1.
2
Id. 77 77-1 15.
According to Plaintiff, El Paso and Kinder Morgan are responsible for
providing and servicing "nearly $7 million in oil investments" for ~ ~ ~ - ~ e d e r a t i o n . ~
Also according to Plaintiff, UJA-Federation provided charitable funding to a social
organization in Israel, the Shiluv Institute for Family & Couple Therapy (the "Shiluv
Institute"), that employs a social worker named Ruth Eisenmann ("~isenmann").'
Plaintiff claims that UJA-Federation "specifically transferred funds to Shiluv under
the euphemistic term 'integration' according to page 60 of their IRS form 990 in
2009."'
Plaintiff alleges that he was subject to discriminatory treatment in Israel
because of his gender and that Eisenrnann and someone named Edna Brownstein
"conspired with and paid bribes to Dr. Gutovsky, to file false and exaggerated reports
against Plaintiff in court including a 'diagnosis' of 'Active Psychosis' which proved
~
to be b ~ g u s . "Plaintiff also alleges that Eisenmann "bullied" the Israeli judge in his
case "into making harmful rulings" against plaintiffs7 For example, Plaintiff claims
that his visitation rights with his children were limited to supervised visits, without
3
Id. 77 3-4.
4
~ d7 ,2 .
5
Id. 7 22.
6
Id. 7 68.
7
Id. 7 72.
any explanation, and that he and his children "were falsely imprisoned for 1 to 3
hours per week in prison-like conditions as their only contact allowed by Defendants'
agent, Ruth Eisenmann, for over 1 year."' Plaintiff further alleges that Eisenmann
was Defendants' agent, without any explanation as to how such an agency
relationship with Eisenmann was ~ r e a t e d Finally, Plaintiff alleges that Defendants
.~
violated his civil and human rights, subjected him to torture, and "financed the total
destruction of Plaintiffs ability to work in child welfare or retrain in his usual career
after the onslaught of torturous abuse^."'^
While Plaintiffs dispute appears to be with the Israeli judicial system and with
an Israeli social worker, he seeks damages in this lawsuit from only the Defendants,
which he claims were "the sole proximate cause of the severe and continuing
emotional distress that has been suffered by the Plaintiff and other similarly situated
individuals."" According to Plaintiff, Defendants' conduct somehow amounts to
aiding and abetting torture and crimes against humanity.
8
Id. 7 66.
9
Id. 7 70.
lo
Id. 77 74-75.
"
Id.788.
On December 20,20 11, Magistrate Judge Judith Guthrie, in the Eastern District
of Texas, transferred the case to the Southern District of Texas, and the case was
assigned to this Court.
On April 3,20 12, UJA-Federation moved to dismiss this lawsuit under Federal
Rules of Civil Procedure 12(b)(l), 12(b)(2), and 12(b)(6).I2 On April 16, 2012,
Defendants El Paso and Kinder Morgan joined in that motion and moved to dismiss
under Federal Rules of Civil Procedure 12(b)(l) and 12(b)(6).l3 Plaintiff failed to
respond to theses motions or amend his Complaint within 21 days. Rather than
respond or amend, Plaintiff filed a Notice of Filing Amended Complaint (the
"Notice") on May 3,20 12." In the Notice, Plaintiff indicated that he intended to file
an amended complaint by August 1,2012, the deadline included in the Court's Rule
16 Scheduling Order for amending with leave of court."
l2
UJA-Federation's Dismiss for Lack of Subject-Matter Jurisdiction, Lack of Personal
Jurisdiction, and Failure to State a Claim, ECF No. 17.
l3
Kinder Morgan and El Paso's Motion to Dismiss for Lack of Subject-Matter
Jurisdiction and Failure to State a Claim, ECF No. 20.
l4
Plaintiffs Notice of Filing Amended Complaint, ECF No. 27.
l5
To the extent Plaintiff believed the Court had already granted leave to amend, he
misunderstood the Court's Rule 16 Scheduling Order. That Order merely provided that
August 1'20 12 was the deadline to amend with leave of court. See Scheduling Order, ECF
No. 24.
On May 10,2012, UJA-Federation filed an opposition to Plaintiffs Notice on
contending that Plaintiffs Notice was procedurally improper because Plaintiff had
failed to provide any indication of the grounds upon which he intended to amend the
complaint. l6 UJA-Federation asserted that the Complaint should be dismissed for the
reasons stated in its motion to dismiss and because Plaintiff failed to respond or
amend within 2 1 days of UJA-Federation's filing of its motion to dismiss. See S.D.
TEX.
LOCAL 7.4 ("Failure to respond [to a motion] will be taken as a representation
R.
of no opposition."). UJA-Federation also argued that amendment would be futile
because the Complaint was patently frivolous and no amendment could cure its
defects. El Paso and Kinder Morgan joined in UJA-Federation's opposition on May
10, 20 12.17 Plaintiff filed a reply in support of the Notice on May 11,2012.l 8
On July 1, 2012, Plaintiff filed a Motion for Leave of Court to File an
Amended complaint.Ig The motion for leave did not set out any grounds why
amendment should be allowed, but Plaintiff did attach a proposed amended complaint
l6
UJA-Federation's Response to Plaintiffs Notice of Filing Amended Complaint, ECF
No. 28.
l7
El Paso and Kinder Morgan's Opposition to Plaintiffs Notice of Filing Amended
Complaint, ECF No. 29.
l8
Plaintiffs Reply in Support of Notice of Filing Amended Complaint, ECF No. 30.
Plaintiffs Motion for Leave of Court to File Amended Complaint, ECF No. 3 1.
(the "Proposed Amendment"). The Proposed Amendment seeks to add (i) eight
additional plaintiffs who raise allegations similar to Plaintiffs, (ii) four additional
defendants that appear to have no connection to the allegations against the existing
Defendants, and (iii) a new cause of action for intentional infliction of emotion
distress.
On July 12,2012, UJA-Federation filed an opposition to Plaintiffs motion for
leave to amend." UJA-Federation argued that the Complaint should be dismissed for
lack of a response to UJA-Federation's motion to dismiss and that the Court should
deny leave to amend because the Proposed Amendment did not cure the existing
Complaint's defects. On July 16,2012, El Paso and Kinder Morgan joined in UJAFederation's opposition.21
11. STANDARDS OF REVIEW
UJA-Federation, El Paso, and Kinder Morgan move to dismiss Plaintiffs suit
under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure contending
that this Court lacks subject matter jurisdiction over Plaintiffs ATS claims and that
Plaintiffs claims under the TVPA fail to state a claim upon which relief may be
20
UJA-Federation's Opposition to Plaintiffs Motion for Leave of Court to File
Amended Complaint, ECF No. 33.
21
El Paso and Kinder Morgan's Opposition to Plaintiffs Motion for Leave of Court to
File Amended Complaint, ECF No. 34.
granted. UJA-Federation hrther moves to dismiss Plaintiffs suit under Rule 12(b)(2)
for lack of personal jurisdiction. The relevant standards of review for each motion
are stated below.
A.
Rule 12(b)(l) - Motion to Dismiss for Lack of Subject-Matter Jurisdiction
Federal Rule of Civil Procedure 12(b)(l) requires that a court dismiss a claim
if the court does not have subject matter jurisdiction over the dispute. See Fed. R.
Civ. P. 12(b)(l). A district court must dismiss a complaint under Rule 12(b)(l) if the
plaintiff fails in his burden to establish grounds for the court's exercise of subjectmatter jurisdiction. See Stockman v. Fed. Election Comm 'n, 138 F.3d 144, 151 (5th
Cir. 1998). Dismissal for failure to state a claim under the ATS is treated as a
dismissal for lack of subject-matter jurisdiction. See Abecassis v. Wyatt, 704 F. Supp.
2d 623,65 1 (S.D. Tex. 20 10).
B.
Rule 12(b)(6) - Motion to Dismiss for Failure to State a Claim
Federal Rule of Civil Procedure 12(b)(6) allows dismissal if a plaintiff fails "to
state a claim upon which relief may be granted." Fed. R. Civ. P. 12(b)(6). To survive
a motion to dismiss under Rule 12(b)(6), a plaintiff must plead facts sufficient to
"state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (internal quotations omitted). A court need not accept as true "conclusory
allegations, unwarranted factual inferences, or legal conclusions." Ferrer v. Chevron
Corp., 484 F.3d 776, 780 & n.12 (5th Cir. 2007) (internal quotations omitted).
C.
Rule 12(b)(2) -Motion to Dismiss for Lack of Personal Jurisdiction
Federal Rule of Civil Procedure 12(b)(2) requires that a court dismiss a claim
if the court does not have personal jurisdiction over the defendant. See Fed. R. Civ.
P. 12(b)(2). "When a nonresident defendant moves to dismiss for lack of personal
jurisdiction, the plaintiff bears the burden of demonstrating the district court's
jurisdiction over the defendant." Gardemal v. Westin Hotel Co., 186 F.3d 588,592
(5th Cir. 1999).
111. LAW AND ANALYSIS
A.
The Court Lacks Personal Jurisdiction Over United Jewish AppealFederation of Jewish Philanthropies of New York
As an initial matter, the Court addresses UJA-Federation's motion to dismiss
for lack of personal jurisdiction. UJA-Federation is a non-profit organization with
a mission to care for those in need, strengthen the Jewish people, and inspire a
passion for Jewish life and learning."
UJA-Federation is incorporated in and
maintains its headquarters in New York. It is not authorized or registered to do
business in Texas; does not have any employees, offices, or bank accounts in Texas;
22
See UJA-Federation, Our Mission http://www.ujafedny.org/our-mission.
9
does not have a mailing address or a telephone number in Texas; does not pay taxes
in Texas; does not advertise in or actively solicit donations from Texas; and does not
have a registered agent for service of process in
exa as.^^ UJA-Federation is a passive
investor (a "working interest" owner) in certain oil and gas properties located in
Texas that it received as a
UJA-Federation's ownership of these working
interests in oil and gas properties was not the product of a deliberate intention to
make an investment in
ex as.^^ Instead, UJA-Federation's receipt of the working
interests in the properties was a fortuity based on a bequest in a donor's will.26
When a lawsuit invoking federal-questionjurisdiction is based on a statute that
does not provide for nationwide service of process, federal courts look to the forum
state's law governing personal jurisdiction to determine if the defendant is amenable
to process in the forum state. See Omni Capital Int '1 v. Rudolf Wolff & Co., 484 U.S.
97, 104-05 (1987), superseded by statute on other grounds. Neither the ATS nor the
TVPA provide for nationwide service of process. See 28 U.S.C.
9
1350 and note.
23
Declaration of Ellen R. Zimmerman ("Zimmerrnan Declaration") 1 2-9, 11, 13
1
(Exhibit 1 to Document No. 17). Neither the Zimmerman Declaration nor the
information contained on UJA-Federation's website has been challenged by Plaintiff.
25
Id.
26
Id.
Accordingly, the Court must determine whether the exercise of personal jurisdiction
over UJA-Federation comports with Texas law.
Texas's long-arm statute allows courts to exercise jurisdiction over a
nonresident who "does business" in Texas. See TEX. CIV. PRAC.& REM. CODE
tj 17.042. This statute reaches "as far as the federal constitutional requirements of
due process will allow." Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569,575
(Tex. 2007) (internal quotations omitted). As a result, the long-arm statute and the
federal Due Process inquiries are essentially identical. See Freudensprung v.
Offshore Tech. Servs., Inc., 379 F.3d 327,343 (5th Cir. 2004).
Personal jurisdiction is proper under the Due Process Clause only if (I) the
nonresident "has established minimum contacts with the forum," i.e., the state of
Texas, and (2) "the exercise ofjurisdiction comports with 'traditional notions of fair
play and substantial justice."' Moki Mac, 22 1 S.W.3d at 575 (quoting Int 'I Shoe Co.
v. Washington, 326 U.S. 3 10,316 (1945)). Here, under either a specific or general
jurisdiction analysis, the result is the same: UJA-Federation does not have the
required jurisdictional contacts with the State of Texas.
1.
The Court lacks specific jurisdiction over UJA-Federation
Specificjurisdiction will not lie unless the non-resident defendant purposefully
conducted activities in the forum and the litigation relates to those activities or
contacts. See Kelly v. Gen. Interior Constr., Inc., 30 1 S.W.3d 653,65 8 (Tex. 20 10).
A defendant cannot be subject to specific jurisdiction unless there is a "substantial
connection" between a nonresident defendant's contacts with Texas and the operative
facts of the litigation. Moki Mac, 221 S.W.3d at 584-85.
The only connection alleged between UJA-Federation and Texas is that
UJA-Federation purportedly owns $7 million in oil investments located in Tyler,
i ex as,^^ and that "[tlhe Court has subject matter jurisdiction over this case because
all three Defendants maintain offices and assets in Tyler, ex as."^^ These allegations
cannot subject UJA-Federation to specific jurisdiction, however, because nothing in
the Complaint connects those investments to the facts at issue in this case, which
involve the alleged maltreatment of a Wisconsin resident by the Israeli judicial
system. See Potkovick v. Reg'l Ventures, Inc., 904 S.W.2d 846, 847 (Tex.
App.-Eastland
1995, no writ) ("We conclude that mere ownership of the real
property alone is insufficient to bestow inpersonam jurisdiction: the ownership ofthe
real property must be the subject of the underlying suit.").
27
'"d.
Plaintiffs Complaint 77 2-4.
T[ 7.
2.
The Court lacks general jurisdiction over UJA-Federation
General jurisdiction exists where a nonresident has made "continuous and
systematic . . . contacts" with Texas, permitting the forum to exercise jurisdiction
over a nonresident on a cause of action unrelated to the defendant's contacts within
the forum. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408,4 14-16
(1984); accord Moki Mac, 22 1 S.W.3d at 575. For general jurisdiction to be proper,
the defendant must have conducted very substantial activities in the forum. See
Johnston v. Multidata Sys. Int '1 Corp., 523 F.3d 602, 6 12 (5th Cir. 2008) (holding
that defendant's "contacts with Texas
. . . lack[ed]
the substance or regularity
necessary to establish general jurisdiction").
The only alleged basis for jurisdiction over UJA-Federation is its ownership
of certain oil and gas investments in Texas. The case law in the Fifth Circuit and in
Texas is clear, however, that such allegations, standing alone, provide no basis for the
exercise of general jurisdiction over a nonresident defendant. See Holt Oil & Gas
Corp. v. Harvey, 80 1 F.2d 773,779 (5th Cir. 1986) (holding that "ownership of realty
in the forum unrelated to this litigation would not alone support an exercise of general
jurisdiction"); Asshauer v. Farallon Capital Partners, L.P., 3 19 S.W.3d 1, 20-21
(Tex. App.-Dallas
2008, no pet.) (holding that California limited partnership that
invested in multiple companies that held investments in Texas real estate was not
subject to personal jurisdiction); Bryant v. Roblee, 153 S.W.3d 626, 630-3 1 (Tex.
App.-Amarillo
2004, no pet.) (holding that non-resident corporation's ownership
of loans secured by liens on real property located in Texas did not create general
jurisdiction). Therefore, because there is no basis for the Court to exercise personal
jurisdiction over UJA-Federation, Plaintiffs suit must be dismissed as to
UJA-Federation.
Although the issue of personal jurisdiction over is dispositive as to
UJA-Federation, the Court also considers whether Plaintiffs suit should be dismissed
for lack of subject-matter jurisdiction and for failure to state a claim. UJAFederation, El Paso, and Kender Morgan all move to dismiss under Rules 12(b)(l)
and 12(b)(6) based on identical arguments. Thus, the Court must reach these issues
regardless of whether the lawsuit should be dismissed as to UJA-Federation for lack
of personal jurisdiction.
B.
The Court Lacks Subject-Matter Jurisdiction Under the Alien Tort Statute
I.
Plaintiff is not an alien
The ATS provides, in its entirety, that "[tlhe district courts shall have original
jurisdiction of any civil action by an alien for a tort only, committed in violation of
the law of nations or a treaty of the United States." 28 U.S.C.
tj
1350. A district
court lacks subject-matter jurisdiction under the ATS if the plaintiff is not an alien.
See Beanal v. Freeport-McMoran, Inc., 197 F.3d 161,164-65 (5th Cir. 1999). Here,
Plaintiff alleges that he resides in Stoughton, Wisconsin and that he is currently being
wronghlly detained in Israel. Nowhere does Plaintiff allege that he is an alien.
Indeed, Plaintiff has previously alleged his United States citizenship in a similar
action that he filed in the Western District of is cons in.^^ Therefore, because
Plaintiff is not an alien, he lacks standing under the ATS, and the Court must dismiss
any ATS claims for lack of subject-matter jurisdiction. See Miner v. Begum, 8 F.
Supp. 2d 643,643-44 (S.D. Tex. 1998) (holding that court lacked jurisdiction where
"Plaintiffs are clearly not aliens").
2.
Plaintiff has not alleged the requisite purposeful conduct
Plaintiff has not alleged that Defendants acted with the requisite purpose to
establish accessorial liability under the ATS. Under customary international law,
allegations that a defendant knew or should have known of the primary actor's
violation will not support a claim of secondary liability. See Presbyterian Church o
f
Sudan v. Talisman Energy, Inc., 582 F.3d 244,259 (2d Cir. 2009) (holding that "the
mens rea standard for aiding and abetting liability in ATS actions is purpose rather
than knowledge alone").
29
See Complaint at 2, Weisskopf v. WeisskopJ; 3: 11-cv-00638-slc (W.D. Wis. filed
No.
Sept. 16,20 11) ("During the period at issue in this complaint, Plaintiff and Minors 13 were all U.S.A. citizens.").
The United States District Court for the Southern District of Texas recently
addressed this very issue in Abecassis v. Wyatt, 704 F. Supp. 2d 623 (S.D. Tex. 2010)
(Rosenthal, J.), where the district court dismissed a complaint under the ATS in part
because "[tlhere [were] no nonconclusory allegations that any defendant knew that
kickbacks paid through [the Iraq Oil For Food Program] were being used to fund
terrorist attacks in Israel, much less that any defendant had the purpose of aiding the
terrorist attacks." Id. at 655-56.
Here, just as in Abecassis, there are no non-
conclusory allegations that Defendants knew that Israelis were allegedly violating
Plaintiffs human rights and that Defendants intended to further those violations.
Absent well-pled allegations that Defendants intended to hrther a primary violation
of the law of nations, Plaintiffs ATS claims must be dismissed. See Aziz v. Alcolac,
Inc., 658 F.3d 388, 398, 401 (4th Cir. 201 1) (affirming dismissal of ATS claims
where complaint failed to adequately "allege that the defendant acted with the
purpose of facilitating the violation of an international norm").30
30
Even if Plaintiff had alleged that Defendants intended to aid Israelis in violating
Plaintiffs human rights, merely funding a primary violator of international law cannot
create aiding and abetting liability. See, e.g.,In re South African ApartheidLitig., 6 17
F . Supp. 2d 228, 269 (S.D.N.Y. 2009) (dismissing claims against banks alleged to
have provided funds to the South African government to aid and abet apartheid,
extrajudicial killing, torture, and prolonged unlawful detention).
3.
ATS liability for corporate defendants
A plaintiff must plead a violation of a United States treaty or the law of nations
to cross the jurisdictional threshold to bring a claim under the ATS. See Filartiga v.
Pena-Irala, 630 F.2d 876,880 (2d Cir. 1980). Here, Plaintiffs Complaint does not
allege a violation of a United States treaty," and courts have held that corporate
liability "cannot. . . form the basis of a suit [alleging a violation of the law of nations]
under the ATS." Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 148-49 (2d
Cir. 2010), cert. granted, 132 S. Ct. 472 (201 1).
To state a claim under the law of nations, a complaint must "rest on a norm of
international character accepted by the civilized world and defined with a specificity
comparable to the features of the 18th-centuryparadigms" that the Supreme Court has
previously recognized, such as violation of safe conduct^,"^ infringements of the
rights of ambassadors, or piracy. Sosa v. Alvarez-Machain, 542 U.S. 692, 724-25
31
Plaintiff vaguely alleges that he is entitled to the protections of the Treaty of
Friendship, Commerce and Navigation Between the United States of America and
Israel, Aug. 23, 1951 [1954], 5 U.S.T. 550, T.I.A.S. No. 2948, under which Plaintiff
is "entitled to 'a most favored nations treatment with respect to access to the Courts
of Justice." (Compl. 7 30.) But that treaty is a compact between the United States
and Israel, and Plaintiff cannot state a claim against Defendants for violation of such
an agreement.
32
A safe conduct is defined as: "1. A privilege granted by a belligerent allowing an
enemy, a neutral, or some other person to travel within or through a designated area
for a specified purpose. 2. A document conveying this privilege." Black's Law
Dictionary 1453 (9th ed. 2009).
(2004). The ATS "applies only to shockingly egregious violations of universally
recognized principles of international law." Beanal, 197 F.3d at 167 (citation
omitted). For example, Sosa held that the ATS did not confer jurisdiction on federal
courts for tort claims related to an illegal detention of a Mexican national in Mexico,
because the broad principles espoused by the plaintiff regarding illegal detentions
merely expressed "an aspiration that exceeds any binding customary rule having the
specificity we require." Sosa, 542 U.S. at 736-38. Moreover, as the Second Circuit
recently held in Kiobel, corporate liability for human rights violations is a similarly
aspirational theory that lacks the specificity required under Sosa.
In Kiobel, Nigerian residents sued a number of corporations under the ATS for
allegedly aiding and abetting the Nigerian government in committing human rights
abuses. In a thoroughly researched and well-reasoned opinion, the Second Circuit
determined that "[nlo corporation has ever been subject to any form of liability
(whether civil, criminal, or otherwise) under the customary international law of
human rights." Kiobel, 62 1 F.3d at 148. Accordingly, the court held that "corporate
liability has not attained a discernable, much less universal, acceptance among
nations of the world in their relations inter se, and it cannot . . . as a result, form the
basis of a suit under the ATS." Id. at 148-49.
Some courts have held that a corporate defendant may be liable under the ATS.
See, e.g., Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1263 (1 lth Cir. 2009),
abrogated in part on other grounds by Mohamad v. Palestinian Auth., 132 S. Ct.
1702 (2012). Although the Fifth Circuit has not addressed this issue, this Court finds
that the Second Circuit's opinion in Kiobel, which is currently before the Supreme
Court on this very issue, is well reasoned.j3 The Court need not decide the issue in
this case, however, because it has already held that Plaintiffs ATS claims must be
dismissed for two independent reasons-Plaintiff
is not an alien, and Plaintiffs
Complaint contains no allegations of purposeful conduct. If the Second Circuit's
corporate-liability decision in Kiobel is affirmed, that would merely be another reason
why Plaintiffs ATS claims should be dismissed.
C.
Plaintgf s Allegations Fail to State a Claim Under the Torture Victim
Protection Act
Although Plaintiff's Complaint itself claims that this suit is an action filed
under the ATS, it mentions in passing that the Court has subject-matter jurisdiction
33
The Supreme Court has also requested additional briefing and ordered reargument in Kiobel
on the issue of whether the ATS even confers jurisdiction for acts that occurred outside of
the United States. See Kiobel v. Royal Dutch Petroleum Co., 132 S. Ct. 1738, 1738 (20 12).
This Court declines to reach the issue of the extraterritoriality of the ATS because Plaintiffs
ATS claims must be dismissed for other reasons-Plaintiff
Complaint contains no allegations of purposeful conduct.
19
is not an alien and his
under the TVPA.34But even if Plaintiffs Complaint could be read to include a cause
of action under the TVPA, which is questionable, it must be dismissed because it fails
to allege a plausible claim for relief as required by Iqbal.
"The TVPA authorize[es] a federal statutory cause of action on behalf of
victims or their representatives for acts of torture or extrajudicial killing." Hurst v.
Socialist People's Libyan Arab Jamahiriya, 474 F . Supp. 2d 19, 29-30 (D.D.C.
2007). The TVPA provides that "[aln individual who, under actual or apparent
authority, or color of law, of any foreign nation . . . subjects an individual to torture
[or extrajudicial killing] shall, in a civil action, be liable for damages to that
individual." TVPA 5 2(a). A district court must "decline to hear a claim under [the
TVPA] if the claimant has not exhausted adequate and available remedies in the
...
place" where the alleged conduct occurred. Id.
1.
5 2(b).
The Supreme Court has held that corporations cannot be sued under
the TVPA
The TVPA explicitly establishes liability of "[aln individual who . . . subjects
an individual to torture" or "extrajudicial killing." TVPA 5 2(a) (emphasis added).
Although until recently there was some dispute as to whether a corporation could be
liable under the TVPA, the Supreme Court resolved the issue in Mohamad v.
34
Plaintiffs Complaint T[ 8.
Palestinian Authority, 132 S. Ct. 1702 (2012). In Mohamad, the Supreme Court
expressly held that the term "individual," as it is used in the TVPA, "encompasses
only natural persons. Consequently, the Act does not impose liability against
organizations." Id. at 1705. Accordingly, Defendants cannot be liable under the
TVPA because a corporation can neither be the victim nor the perpetrator in a TVPA
case. See, e.g., Kiobel, 62 1 F.3d at 122 n.23 (noting that Congress intended to subject
only individuals to liability under the TVPA).
2.
The T W A does not permit aiding and abetting liability
Even if Defendants could be sued under the TVPA, Plaintiffs Complaint still
fails to state a claim because that statute does not permit liability for aiding and
abetting a primary violator. See Mastafa v. Chevron Corp., 759 F. Supp. 2d 297,
300 (S.D.N.Y. 2010) (dismissing TVPA claims because, among other things, the
"plain language" of the statute "does not permit aiding-and-abetting liability"); Corrie
v. Caterpillar, Inc., 403 F. Supp. 2d 1019,1027 (W.D. Wash. 2005) (holding that "an
aiding and abetting claim is inconsistent with the TVPA's explicit requirement that
a defendant must have acted under 'color of law"'), aff'd, 503 F.3d 974 (9th Cir.
2007). Here, Plaintiff has raised no allegations that Defendants committed a primary
violation of the TVPA and his claims must therefore be dismissed on that basis as
well.
3.
Plaintiffs complaint fails to allege conduct amounting to torture
Finally, Plaintiffs TVPA claims must be dismissed for failure to state a claim
because Plaintiff has not alleged conduct amounting to torture. Under the TVPA,
torture is defined as:
any act, directed against an individual in the offender's
custody or physical control, by which severe pain or
suffering (other than pain or suffering arising only from or
inherent in, or incidental to, lawful sanctions), whether
physical or mental, is intentionally inflicted on that
individual for such purposes as obtaining fiom that
individual or a third person information or a confession,
punishing that individual for an act that individual or a
third person has committed or is suspected of having
committed, intimidating or coercing that individual or a
third person, or for any reason based on discrimination of
any kind.
TVPA 5 3(b). Torture, as defined in the TVPA, "is a label that is usually reserved for
extreme, deliberate and unusually cruel practices, for example, sustained systematic
beating, application of electric currents to sensitive parts of the body, and tying up or
hanging in positions that cause extreme pain." Simpson v. Socialist People 's Libyan
Arab Jamahiriya, 326 F.3d 230,234 (D.C. Cir. 2003) (internal quotations omitted).
Plaintiffs Complaint comes nowhere close to raising allegations of torture
sufficient to state a claim under the TVPA. At most, Plaintiff alleges that the Israeli
family-law system discriminates against fathers in child custody disputes, that
Plaintiff and his children were kept in "prison-like conditions" during Plaintiffs
supervised visits with his children, and that Israeli social workers filed false reports
about Plaintiff, including a diagnosis of "Active ~ s ~ c h o s i s . " ' ~ accepting these
Even
allegations as true, Plaintiffs claim that he suffered "torture," as it is defined in the
TVPA (or under any other definition for that matter), fails to state a claim for relief.
See Simpson, 326 F.3d at 234 (holding that plaintiff failed to allege torture where he
was subjected to months-long detention, interrogation, and death threat^).'^
D.
Plaintiffs Proposed Amendment to Her Complaint Would Be Futile
Under Rule 15(a), Plaintiff could have amended the Complaint as a matter of
course if he had done so within 21 days after being served with UJA-Federation's or
El Paso and Kinder Morgan's motions to dismiss. See Fed. R. Civ. P. 15(a)(l)(B).
But Plaintiff failed to amend within the time allowed, and he may now amend "only
with the opposing party's written consent or the court's leave." FED. R. CIV. P.
15(a)(2). Defendants oppose Plaintiffs motion for leave and argue that the Court
35
See, e.g., Plaintiffs Complaint 1 64,66,68.
1
36
The definition of torture explicitly excludes "pain or suffering arising only from or
inherent in, or incidental to, lawful sanctions." TVPA 5 3(b). Plaintiff has not
alleged that any of the conduct directed at him was in violation of Israeli law. Indeed,
Plaintiff appears to be complaining about the very operation of the Israeli legal
system. This cannot state a claim for torture under the TVPA. See Nikbin v. Islamic
Republic of Iran, 517 F. Supp. 2d 416, 425-26 (D.D.C. 2007) (dismissing TVPA
claim for torture where plaintiff was subjected to forty lashes because such
punishment was legal under Iranian law).
should deny leave to amend because amendment would be futile. An amendment is
htile if it would not survive a motion to dismiss for failure to state a claim under
Rule 12(b)(6). See Landavazo v. Toro Co., 30 1 F. App'x 333,337 (5th Cir. 2008)
(per curiam). As mentioned above, Plaintiffs Proposed Amendment seeks to add (i)
eight additional plaintiffs who raise allegations similar to Plaintiffs, (ii) four
additional defendants that appear to have no connection to the allegations against the
existing Defendants, and (iii) a new cause of action for intentional infliction of
emotion distress. None of these proposed changes cures the defects in Plaintiffs
claims against Defendants, and the Proposed Amendment could not survive a motion
to dismiss.
1.
Plaintijj3 Proposed Amendment fails to make out aprimafacie case
for personal jurisdiction over UJA-Federation
Plaintiffs Proposed Amendment would be futile because it fails to make out
a prima facie case for either specific or general personal jurisdiction over
UJA-Federation. The only new jurisdictional allegations as to UJA-Federation are
as follows: (i) one of the proposed new defendants, United Jewish Federation of
Greater Houston ("JFH")~~"acts as the local office in this district for
37
The Proposed Amendment refers to the United Jewish Federation of Greater Houston.
This appears to be a reference to the Jewish Federation of Greater Houston. Research
has revealed no "United Jewish Federation of Greater Houston."
[UJA-Federation] via the [United Jewish Federations of North A m e r i ~ a ] " (ii)~
; ~ JFH
acts as a local conduit between Christian donors in Texas and entities such as
u ~ ~ - ~ e d e r a t i o and '(iii) UJA-Federation has a toll-fiee number and online
n;~
donation page that are "valid in all 50 states, including the State of Te~as."'~
The allegations in the Proposed Amendment simply do not provide a basis for
the claim that JFH acts as a local office for UJA-Federation. As the only support for
this claim, Plaintiff cites a hearsay newspaper article (Exhibit 14 to the Proposed
Amendment) reporting on the 1999 merger of the United Jewish Appeal, the Council
of Jewish Federations, and United Israel Appeal, "creating a hnd-raising behemoth
with a focus on the kind of individualized giving that is changing the face of
American philanthr~py."~~begin with, the article refers to United Jewish Appeal,
To
Inc. ("UJA"), not UJA-Federation. UJA was a nationwide Jewish philanthropic
organization that was folded into the United Jewish Communities with the
aforementioned 1999merger. The United Jewish Communities is now known as The
Jewish Federations of North America ("JFNA").'~
38
Plaintiffs Proposed Amendment 7 13.
39
Id.
41
Id.
42
S e e The J e w i s h Federations
http://www.jewishfederations.org/.
25
of
North
Americawebsite,
UJA-Federation is a separate and distinct organization and the Proposed
Amendment includes no credible allegations that it is under common control with
JFNA. JFH, which apparently has been active in the Houston Jewish community
since 1936,43is similarly a distinct entity from UJA-Federation. Plaintiff has asserted
no allegations that would justify imputing JFH's Texas contacts to UJA-Federation,
a New York corporation that has already been demonstrated to lack sufficient
contacts with Texas. The article attached as Exhibit 14 to the Proposed Amendment
does not mention either UJA-Federation or JFH, and it certainly does not say that JFH
acts as UJA-Federation's "local office in this d i s t r i ~ t . " ~ ~
Minimum contacts with Texas cannot be imputed from one defendant to
another. See Shaffer v. Heitner, 433 U.S. 186, 204 & n.19 (1977) (holding that
jurisdiction depends on the relationship of each defendant to the forum, not the
relationship between defendants); Nut 'I Indus. Sand Ass 'n v. Gibson, 897 S.W.2d
769,773-74 (Tex. 1995) (orig. proceeding) (holding that conspiracy claim could not
be used to impute jurisdictional contacts from one defendant to another). Just
because UJA-Federation and JFH are both affiliated with the same national
43
See
Jewish
Federation
of
Greater
Houston,
http://www.houstonjewish.org/page.aspx?id= 1 1 56.
19
44
C Plaintiffs Proposed Amendment 13.
f
About
Our Federation,
organization does not mean that JFH's contacts with Texas can be imputed to
UJA-Federation.
Plaintiff does not allege that the JFH has a parent-subsidiary or any other
corporate relationship with UJA-Federation. But even if it such a relationship did
exist, to pierce the corporate veil for jurisdictional purposes, Plaintiff would be
required to establish a prima facie case that "the parent corporation exerts such
domination and control over its subsidiary that they do not in reality constitute
separate and distinct corporate entities but are one and the same corporation for
purposes ofjurisdiction." BMCSoftware Belgium, N. V. v. Marchand, 83 S.W.3d 789,
798 (Tex. 2002) (internal quotations omitted). Plaintiff has not established any
corporate relationship between UJA-Federation and JFH, much less "the level of
control . . . that is required to fuse these two entities for jurisdictional purposes."
Knight Corp. v. Knight, 367 S.W.2d 715, 730 (Tex. App.-Houston
[14th Dist.]
1963, no pet.) (orig. proceeding).
Nor has Plaintiff alleged an agency relationship such that JFH's Texas contacts
can be imputed to UJA-Federation. A court does not presume the existence of an
agency relationship. Townsend v. Univ. Hosp., 83 S.W.3d 913, 921 (Tex.
App.-Texarkana
2002, pet. denied). Instead, the plaintiff must credibly allege that
an agency relationship exists. See id. "An essential element of the principal-agent
relationship is the alleged principal's right to control the actions of the alleged agent."
Id. Here, Plaintiff has proffered no evidence that JFH was UJA-Federation's agent
in Texas and there is no basis to impute contacts under an agency theory. At the end
of the day, Plaintiffs conclusory assertions that JFH acted as UJA-Federation's local
office in this District and that JFH is a conduit between local donors and
UJA-Federation cannot subject UJA-Federation to personal jurisdiction in Texas. See
Panda Brandywine Corp. v. Potomac Elec. Power Co., 253 F.3d 865,869 (5th Cir.
2001) (courts are not required "to credit conclusory allegations, even if
uncontroverted").
As to UJA-Federation's phone number and website, neither of these allegations
supports a case for personal jurisdiction. Because the allegations in this case do not
relate to phone calls or website donations, the facts alleged in the Proposed
Amendment are relevant only to a general jurisdiction inquiry. The mere maintenance
of a website that is accessible anywhere in the world (including the plaintiffs chosen
forum) is not sufficient to subject a non-resident defendant to general jurisdiction in
that forum. See Revel1 v. Lidov, 3 17 F.3d 467,470-71 (5th Cir. 2002).~' In Revell,
45
For a jurisdiction inquiry based on a defendant's website, the defendant's contacts are
analyzed on a sliding scale. Michel v. Rocket Eng 'g Corp.,45 S.W.3d 658,677 (Tex.
App.-Fort Worth 2001, no pet.). Websites such as UJA-Federation's are best
described as "interactive" because they "allow the 'exchange' of information between
a potential customer and a host computer." Reiff v. Roy, 115 S.W.3d 700,706 (Tex.
App.-Dallas 2003, pet. denied). Jurisdiction based on "interactive" websites is
determined by the degree of interaction allowed by the website. Id. As mentioned
28
the Fifth Circuit affirmed the district court's ruling that maintenance of a website
accessible by Texas residents did not subject Columbia University to general
jurisdiction in Texas: [Tlhe question of general jurisdiction is not difficult here.
Though the maintenance of a website is, in a sense, a continuous presence everywhere
in the world, the cited contacts of Columbia with Texas are not in any way
"substantial." Id. at 47 1.
In Reiffv. Roy, 115 S.W.3d 700 (Tex. App.-Dallas
2003, pet. denied), the
Dallas Court of Appeals rejected a plaintiff's claim for personal jurisdiction based on
an interactive hotel website that solicited business on the internet, was available to
anyone with internet access, allowed reservations to be made by Texas residents
through the website, and provided a toll-free number to make reservations over the
telephone. See id. at 705-06. In so doing, the court held that "these assertions do not
show systematic and continuous contacts between [the defendant] and Texas." Id. at
706.
Similarly, in Cossaboon v. Maine Med. Ctr., 600 F.3d 25 (1 st Cir. 20 1O), the
First Circuit affirmed a district court's dismissal of a complaint where the plaintiff
above, however, Plaintiffs claims do not arise from donations made to
UJA-Federation's website or through its toll-free number. The proper analysis in this
case is thus whether UJA-Federation is subject to general jurisdiction based on its
website; however, the sliding scale test "is not well adapted to the general jurisdiction
inquiry." Revell, 3 17 F.3d at 47 1.
sought to subject a Maine hospital to personal jurisdiction inNew Hampshire because
the hospital's website allowed "users to make online donations, complete patient
pre-registration, register for classes, find a doctor, and apply for employment." Id.
at 35. The court recognized that these features made the website "interactive," but
held for the hospital because the website was "primarily informational," is available
to anyone in the world with internet access, and does not specifically target New
Hampshire residents. Id. Importantly, "[tlhe mere fact that such an interactive site
is accessible in New Hampshire does not indicate that MMC purposefully availed
itself of the opportunity to do business in New Hampshire." Id.
The same is true here. The mere fact that UJA-Federation's website and
toll-free number are available to Texas residents does not mean that UJA-Federation
purposefully availed itself of the opportunity to do business in Texas. "[Iln other
words, while [UJA-Federation] may be doing business with Texas, it is not doing
business in Texas." Revell, 3 17 F.3d at 47 1. Just as in Cossaboon, UJA-Federation's
website and toll-free number are available to anyone who wishes to use them. And
UJA-Federation allows users to make online donations. But UJA-Federation's
website is primarily informational-providing
charitable activities-and
details about UJA-Federation's
UJA-Federation does not specificallytarget Texas residents
through its website." Accordingly, there is no basis for the exercise of personal
jurisdiction over ~ ~ ~ - ~ e d e r a t i o n . ~ ~
Finally, even if Plaintiffs Proposed Amendment did allege sufficient facts to
make out a prima facie case for personal jurisdiction, amendment still would be futile
because, as demonstrated below, the Proposed Amendment fails to invoke the Court's
subject-matterjurisdiction and fails to state a claim upon which relief can be granted.
2.
Plaintzyf s Proposed Amendment cannot save his ATS claims
Amendment would be futile as to Plaintiffs ATS claims for at least two
reasons. First, the Proposed Amendment seeks to add additional plaintiffs, some of
whom are alleged to be aliens. But the existence of aliens in the Proposed
Amendment cannot confer standing on this Plaintiff. Rule 15 does not permit a
plaintiff who lacks standing to cure this defect by adding additional parties through
amendment. See Summit Office Park, Inc. v. US. Steel Corp., 639 F.2d 1278, 1282
(5th Cir. Unit A Mar. 1981) (holding that "where a plaintiff never had standing to
assert a claim against the defendants, it does not have standing to amend the
complaint and control the litigation by substituting new plaintiffs").
46
See Zimmerman Declaration T[ 13 ("UJA-Federation does not actively solicit
donations from the State of Texas.").
47
The fact that Judge Guthrie sua sponte transferred this action from the Eastern District
of Texas to this District does not constitute a judicial determination that
UJA-Federation is subject to personal jurisdiction in Texas.
In TXCATv. Phoenix Group Metals, LLC, No. H- 10-0344,20 10 WL 5 186824
(S .D. Tex. Dec. 14,201O), the district court granted a defendant's motion to dismiss
based on the plaintiffs lack of standing. The plaintiff sought to cure the standing
defect by filing a motion for leave to file an amended complaint. The district court
agreed with the defendants, however, that if the plaintiff lacked standing, "the Court
is not able to allow [plaintiffl to amend its complaint and to substitute a plaintiff with
standing to create subject matter jurisdiction since the Court would have had no
jurisdiction before the proposed amendment." Id. at *3. As the district court
recognized, "a plaintiff may not create jurisdiction by amendment where none
currently exists." Id. The same is true here.
Second, the Proposed Amendment includes the same type of conclusory
allegations as the Complaint and fails to allege the requisite purposeful conduct to
make out a claim for aiding and abetting liability under the ATS. C ' Abecassis, 704
F. Supp. 2d at 655-56. Finally, if the Supreme Court affirms the Second Circuit's
decision in Kiobel, the ATS's inapplicability to corporate defendants would be
another reason why amendment would be futile.
2.
PlaintifSs Proposed Amendment cannot save his T W A claims
Plaintiffs Proposed Amendment's claims under the TVPA could not survive
a motion to dismiss because (i) the Supreme Court has held that a corporations cannot
be a defendant under the TVPA, see Mohamad, 132 S. Ct. at 1705, 1707-10; (ii)
aiding and abetting liability is not recognized under the TVPA; and (iii) Plaintiff has
plainly not alleged conduct amounting to "torture" as that term is defined in the
TVPA. None of these defects is cured by the Proposed Amendment, which merely
seeks to add additional parties and a new tort claim for intentional infliction of
emotional distress.48
3.
Plaintiffs Proposed Amendment fails to state a faciallyplausible
claim against El Paso and Kinder Morgan
The Supreme Court addressed the requisite pleading standard under Rule 8 in
Iqbal, stating, "the pleading standard [Federal Rule of Civil Procedure] 8 announces
does not require 'detailed factual allegations,' but it demands more than an
unadorned, the-defendant-unlawfidly-harmed-me accusation." 556 U.S. 662, 678
(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544,555 (2007)). The Court further
noted that "only a complaint that states a plausible claim for relief survives a motion
to dismiss." Id. at 679 (citing Twombly, 550 U.S. at 556) (emphasis added). With
respect to "plausibility," the Iqbal Court explained, "[a] claim has facial plausibility
48
Plaintiff alleges in the Proposed Amendment that he and the other proposed plaintiffs
have exhausted their remedies in Israel, which is a requirement under the TVPA before
bringing suit in the United States. (Proposed Amendment 77 96-98.) Putting aside
whether the allegations in the Proposed Amendment satisfl the exhaustion of remedies
requirement under the TVPA, the Supreme Court's recent decision in Mohamad has
foreclosed corporate liability under that statute.
when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged." Id. at 678 (citing
TwornbZy, 550 U.S. at 556).
Plaintiffs Proposed Amendment includes only one new factual allegation in
which El Paso and Kinder Morgan are referenced by name: "Defendant UJA
maintains an Israeli office on behalf of Defendant UJA, Defendant El Paso and
Defendant Kinder Morgan which provides a strategic location for these Defendants
in Jerusalem to have easy access to the Israeli legislature on a daily basis where they
purposefully lobby for a radical agenda that destroys men in div~rce."'~ proposed,
As
the singular factual allegation against El Paso and Kinder Morgan amounts to no
more than an "unadorned, the-defendant-unlawhlly-harmed-me accusation," which
falls short of the pleading standard required to survive a motion to dismiss. Iqbal,
556 U.S. at 678. Even in combination with the various allegations made against
"Defendants" collectively, the Proposed Amendment does not contain "factual
content that allows the court to draw the reasonable inference that [El Paso and
Kinder Morgan are] liable for the misconduct." Id. As such, for this reason and the
additional reasons identified herein, amendment would be futile.
49
Plaintiffs Proposed Amendment T[ 48.
34
4.
Plaintvf s Proposed Amendment fails to state a claim for intentional
infliction of emotional distress
Plaintiffs Proposed Amendment seeks to add one new claim for ongoing and
intentional infliction of emotional distressq5'Amendment is also futile as to this claim
because it too could not survive a motion to dismiss. Intentional infliction of
emotional distress is a "gap-filler" tort that "was never intended as an easier and
broader way to allege claims already addressed by our civil and criminal laws, nor
was it intended to replace or duplicate existing statutory or common law remedies."
Draker v. Schreiber, 27 1 S.W.3d 3 18,322 (Tex. App.-San
Antonio 2008, no pet.).
To state a claim for this tort, Plaintiff must meet the "exacting requirements" to
demonstrate that (1) Defendants acted intentionally or recklessly; (2) the conduct was
extreme and outrageous; (3) Defendants' actions caused Plaintiff emotional distress;
and (4) the emotional distress suffered by Plaintiff was severe. Twyman v. Twyman,
855 S.W.2d 6 19,621 (Tex. 1993); see also Creditwatch, Inc. v. Jackson, 157 S.W.3d
8 14, 8 15 (Tex. 2005) (noting the "exacting requirements" to prove a claim for
intentional infliction of emotional distress). A defendant's conduct is not extreme
and outrageous just because it is tortious or otherwise wrongful. Bradford v. Vento,
48 S.W.3d 749,758 (Tex. 2001).
50
Id.
13845.
Creditwatch involved a claim for intentional infliction of emotional distress
based on a supervisor's alleged sexual advances and retaliatory conduct. The Texas
Supreme Court noted that, if true, the conduct alleged "was callous, meddlesome,
mean-spirited, officious, overbearing, and vindictive-but
not 'so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly intolerable in a civilized community."'
157 S.W.3d at 817-1 8 (quoting Hoffman-La Roche Inc. v. Zeltwanger, 144 S.W.3d
438,445 (Tex. 2004)).
Here, Plaintiff has not come close to meeting the "exacting requirements" to
state a claim for intentional infliction of emotional distress. See Creditwatch, 157
S.W.3d at 815. Regardless of whatever motive Plaintiff may ascribe to Defendants'
actions, there is no question that lobbying a government about family law issues and
donating money to charitable organizations is perfectly legitimate conduct. And
courts are required to examine the nature of the defendant's conduct-not
motive-when
just its
considering liability for intentional infliction of emotional distress.
See Texas Farm Bureau Mut. Ins. Cos. v. Sears, 84 S.W.3d 604, 612 (Tex. 2002).
Because Plaintiffs Proposed Amendment fails to state a claim for intentional
infliction of emotional distress, it would be futile to allow Plaintiff leave to amend to
add such a claim.
IV. CONCLUSION
Based on all of the foregoing, the Court hereby
ORDERS that Defendant United Jewish Appeal-Federation of Jewish
Philanthropies of New York's Motion to Dismiss for Lack of Subject-Matter
Jurisdiction, Lack of Personal Jurisdiction, and Failure to State a Claim (Document
No. 17) is GRANTED. The Court hrther
ORDERS that Defendants Kinder Morgan, Inc. and El Paso E&P Company,
L.P.'s Motion to Dismiss for Lack of Subject-Matter Jurisdiction and Failure to State
a Claim. (Document No. 20) is GRANTED. The Court hrther
ORDERS that Plaintiff R. David Weisskopf's Motion for Leave of Court to
File Amended Complaint (Document No. 3 1) is DENIED. The Court further
ORDERS that this suit is DISMISSED.
The Court will issue a Final Judgment in a separate order.
SIGNED at Houston, Texas, on this
22 day of August, 20 12.
DAVID HITTNER
United States District Judge
'
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