D&S Entertainment, Inc. d/b/a Shenanigans et al v. City of Huntsville, Texas et al
Filing
12
OPINION AND ORDER granting 7 MOTION to Dismiss Plaintiff's Claims Against Unserved Defendant, Allwin Barrow, for Failure to Timely Effect Service of Process under F.R.C.P. 4(m) MOTION to Dismiss Plaintiff's Claims Against Unserv ed Defendant, Allwin Barrow, for Failure to Timely Effect Service of Process under F.R.C.P. 4(m), granting without prejudice 4 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Under Rule 12(b)(6), Plaitiff may file an amended complaint tha t adequately states a claim for relief WITHIN TWENTY DAYS. Failure to file a timely amended complaint will result in the dismissal of the complaint. Allwin Barrow and City of Huntsville, Texas terminated(Signed by Judge Melinda Harmon) Parties notified.(htippen, )
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
D&S ENTERTAINMENT, INC.; dba
SHENANIGANS, et al,
Plaintiffs,
VS.
CITY OF HUNTSVILLE, TEXAS, et al,
Defendants.
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CIVIL ACTION NO. 4:12-CV-199
OPINION AND ORDER
Pending before the Court is Defendant City of Huntsville’s (“City”) motion to dismiss
Plaintiffs Darrel Tarvin and D&S Entertainment, Inc.’s original petition. Doc. 4. Defendant
moved to dismiss under Rule 12(b)(6) on the grounds that Plaintiffs’ conclusory allegations do
not state a claim against the City. Id. The City also has moved to dismiss Plaintiffs’ claims
against unserved Defendant Allwin Barrow (“Barrow”), its chief of police, for failure to timely
effect service of process under Federal Rules of Civil Procedure Rule 4(m). Doc. 7 supplemented
by Doc. 10. Barrow has also filed a notice of initiation of proceeding under the Bankruptcy
Code. Doc. 11.
Having considered the City’s motion, the facts of this case, and the applicable law, the
Court finds that City’s motion to dismiss Tarvin and D&S Entertainment should be granted.
Additionally, Plaintiffs’ claims against Barrow are automatically stayed by 11 U.S.C. § 362.
Background and Relevant Facts
Plaintiffs’ original petition is devoid of any facts indicating the nature of their claims
against the City. In their original petition, Plaintiffs allege that they “operated a private business
concern.” Doc. 1-1 at 4. Plaintiffs fail to identify the nature of that business. The caption of the
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case suggests that Plaintiffs may run a restaurant, while the City states that Plaintiffs own a bar.
Doc. 5 at 7. Plaintiffs state, without identifying the nature of the City’s actions, that “[the City]
deprived him [sic] of certain rights, privileges and/or immunities secured by the United States
Constitution and the laws of the United [S]tates and the State of Texas.” Doc. 1-1 at 4. Plaintiffs
do not identify the rights, privileges, or immunities. They do not state how the City deprived
them of any of these rights, nor do they identify, in any way, any course of conduct giving rise to
this suit.
Plaintiffs conclusorily and vaguely assert that the City “employed a ‘full court press,’ . . .
to shut down Plaintiffs’ business concerns” causing the “Plaintiffs’ business to suffer materially”
through a loss of income and a loss of customers. Id. Plaintiffs do not elaborate on what
constituted this “full court press.” Plaintiffs further assert that the conduct complained of was
committed by “a person and/or persons acting under a color of state law and the conduct
deprived Plaintiffs’ of rights, privileges and/or immunities secured by the Constitution and the
laws of the United States.” Id. at 5. Plaintiffs have failed to identify the person or persons who
committed these alleged wrongs.
Plaintiffs vaguely state that the City “abused their position given to them by the State to
deprive Plaintiff of his right,” and that “the City’s actions and/or conduct [therefore] satisfy the
State action requirement of the 14th amendment and . . . support this action pursuant to 42 U.S.C.
§ 1983 and its Texas counter part [sic].” Id. Plaintiffs plan to show the Court that the “City
deprived Plaintiffs of [their] right to procedural due process under the 5th and 14th Amendment[s]
. . . and Art. 1 § 13 and § 19 of the Texas Constitution” and are a “proximate cause of Plaintiffs’
damages.” Id. Additionally, Plaintiffs allege that the City also “engaged in actions and omission
that constitute negligence and negligence per se, which were a proximate cause of Plaintiffs’
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damages.” Id.
Because under 42 U.S.C. § 1983 a suit against the chief of police in his official capacity
is a suit against the City, and because Plaintiffs have not alleged any facts showing Barrow was
personally involved, his presence in this suit is duplicative. See Kentucky v. Graham, 473 U.S.
159, 165-166 (1985). Rather than severing the claims against him and administratively closing
the case because of the automatic bankruptcy stay, the Court grants the City’s motion to dismiss
Barrow.
On December 2, 2011, Plaintiffs filed their original petition in the 12th Judicial District
of Walker County, Texas seeking judgment against Defendants (City of Huntsville and Barrow)
to obtain damages from Plaintiffs’ loss of business. Doc. 1-1. On January 20, 2012, the City
removed the case to this Court alleging federal question jurisdiction. Doc. 1 at 2. On February 6,
2012, the City filed a motion to dismiss Plaintiffs’ original petition on the grounds that
“Plaintiffs’ conclusory allegations fail to state a claim upon which relief can be granted.” Doc. 5
at 8. Plaintiffs have had sufficient time to respond to that motion and have failed to do so.
Analysis
To withstand a Rule 12(b)(6) motion, a complaint must contain “enough facts to state a
claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see also Elsensohn v. St.
Tammany Parish Sheriff's Office, 530 F.3d 368, 372 (5th Cir. 2008). While the pleading “need
not contain detailed factual allegations . . . it must allege enough facts to move the claim across
the line from conceivable to plausible.” Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011), as
revised (Dec. 16, 2011) (citing Twombly, 550 U.S. at 570) (internal quotations omitted).
“Determining whether the plausibility standard has been met is ‘a context-specific task that
requires the reviewing court to draw on its judicial experience and common sense.’” Id.
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Plaintiffs’ original petition fails to provide any facts that would state a claim for relief.
Plaintiffs do not identify the nature of their business, nor even its name. They do not state the
purported wrong the City engaged in that would lead to a claim for damages, nor do they state
what damages they actually incurred. Plaintiffs reference various state and federal constitutional
protections, but have given the Court no basis on which to infer that the City’s actions may have
violated them. Nor have Plaintiffs stated what actions or omissions by the City would constitute
negligence or negligence per se. Doc. 1-1 at 4-5.
The Supreme Court has stated that under Rule 8(a)(2), plaintiffs are not required to
include “‘detailed factual allegations,’ but more than ‘an unadorned, the-defendant-unlawfullyharmed-me accusation’ is needed.” Id. (quoting Twombly, 550 U.S. at 555). Here, Plaintiffs have
made no more than the unadorned and insufficient accusation that the City has harmed them.
Because Plaintiffs fail to state a claim on which relief can be granted, the Court hereby
ORDERS that Defendant City of Huntsville’s motion to dismiss (Doc. 4) Plaintiffs
Darrell Tarvin and D&S Entertainment, Inc.’s original petition (Doc. 1-1) is GRANTED without
prejudice to Plaintiffs’ right to file an amended complaint that adequately states a claim for relief
within twenty days. Failure to file a timely amended complaint will result in the dismissal of
the complaint. Further, the Court
ORDERS that Defendant City of Huntsville, Texas’s motion to dismiss Defendant
Allwin Barrow is GRANTED and Plaintiffs’ claims against Defendant Allwin Barrow are
DISMISSED with prejudice. Doc. 7.
SIGNED at Houston, Texas, this 13th day of September, 2012.
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MELINDA HARMON
UNITED STATES DISTRICT JUDGE
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