Thomas v. City Of Houston

Filing 56

MEMORANDUM OPINION AND ORDER GRANTING 39 MOTION for Judgment, DENYING 43 MOTION for Attorney Fees, DENYING 29 MOTION for Reconsideration of 27 Memorandum and Order, DENYING 45 Opposed MOTION for Protective Order, GRANTI NG 40 MOTION for Judgment, DENYING 42 MOTION to Strike 40 MOTION for Judgment, DENYING 50 MOTION to Compel to Produce All Outstanding Discovery, TERMINATING AS MOOT 55 MOTION to Compel Challenging the Sufficien cy of Resposnes to Plaintiff's First Set of Interogtories and Request for Admissions, DENYING 44 MOTION to Strike 39 MOTION for Judgment, DENYING 49 MOTION Challenging the Sufficiency of Defendant City of Houston Responses to Plaintiff's First Set of Interrogatories and Plaintiff's Request for Admissions, DENYING 30 MOTION for Default Judgment against City Of Houston.(Signed by Judge Gray H. Miller) Parties notified.(rkonieczny, 4)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
BYRON THOMAS,
Plaintiff,
v.
HOUSTON ORGANIZATION OF
PUBLIC EMPLOYEES, et al.,
Defendants.

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CIVIL ACTION H-14-0485

M EMORANDUM O PINION & O RDER
The following motions are pending before the court: 1) plaintiff’s motion for reconsideration
(Dkt. 29) of the court’s order from September 15, 2014; 2) plaintiff’s motion for default judgment
(Dkt. 30) against defendants Richard Hall (“Hall”) and Joseph Soliz (“Soliz”); 3) Soliz’s motion for
judgment (Dkt. 39); 4) Hall’s motion for judgment (Dkt. 40); 5) plaintiff’s motion to strike (Dkt. 42)
Hall’s motion for judgment; 6) plaintiff’s motion for attorney fees (Dkt. 43) against the Houston
Organization of Public Employee Union (“HOPE”); 7) plaintiff’s motion to strike (Dkt. 44) Soliz’s
motion for judgment; 8) City of Houston’s (“City”) motion for protective order (Dkt. 45); 9)
plaintiff’s motion challenging the sufficiency (Dkt. 49) of the City’s discovery responses; and 10)
plaintiff’s motion to compel (Dkt. 50) production of all outstanding discovery. The court considered
the motions, responses, record and applicable law in coming to its conclusion.
I. ARGUMENTS & ANALYSIS
The court reviewed the facts and procedural history of this case in detail in its Memorandum
Opinion and Order (Dkt. 27) issued on September 15, 2014, and will not do so again here.1

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Thomas v. Hous. Org. of Pub. Emps, No. H-14-0485, 2014 WL 4629235 (S.D. Tex. Sept. 15, 2014).

A. Motion for Reconsideration
In plaintiff’s motion for reconsideration, he asks the court to use its discretion to set aside
the doctrine of res judicata to his defamation claim against the City in the interests of justice. Dkt.
29 at 2.
A motion to reconsider pursuant to Federal Rule of Civil Procedure 59(e) “is not the proper
vehicle for rehashing evidence, legal theories, or arguments that could have been offered or raised
before the entry of judgment.” Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004) (citing
Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1989)). Rather, Rule 59(e) allows parties “to
correct manifest errors of law or fact or to present newly discovered evidence.” Waltman v. Int’l
Paper Co., 875 F.2d 468, 473 (5th Cir. 1989). “Reconsideration of a judgment after its entry is an
extraordinary remedy that should be used sparingly.” Templet, 367 F.3d at 479.
Plaintiff’s defamation claim against the city was dismissed on res judicata grounds, and the
court did not analyze the merits of the claim. This court concluded that “even if plaintiff’s factual
allegations are true, he is not entitled to relief because this claim is barred by res judicata.” Dkt. at
6. Plaintiff presents no errors of law or fact, or newly discovered evidence, that persuade this court
that reconsideration of its prior ruling on the basis of res judicata is warranted. Nor does plaintiff’s
argument on the merits of the claim, persuade the court that it should set aside the res judicata
doctrine and consider the merits of the claim. Therefore, plaintiff’s motion for reconsideration is
denied.
B. Plaintiff’s Motion for Default Judgment
Plaintiff has moved for default judgment against Hall and Soliz in their individual capacities.
Dkt. 30. Pursuant to Federal Rule of Civil Procedure 55, entry of default and default judgment are
appropriate “when a party against whom a judgment for affirmative relief is sought has failed to
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plead or otherwise defend, and that failure is shown by affidavit or otherwise . . . .” FED . R. CIV . P.
55(a). Even if a defendant is technically in default, however, a plaintiff is not entitled to a default
judgment as a matter of right. Lewis v. Lynn, 236 F.3d 766, 767 (5th Cir. 2001). In order to grant
default, the court must assess the merits of plaintiff’s claims and find sufficient basis in the pleadings
for the judgment. Nishimatsu Constr. Co., Ltd. v. Hous. Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir.
1975). Additionally, under Rule 5.5 of the Southern District of Texas Local Rules, a motion for
default judgment must be served upon the defendant via certified mail, return receipt requested. S.D.
TEX . L.R. 5.5.
Plaintiff has not shown that Hall or Soliz failed to defend or otherwise participate in the
lawsuit. Further, even if plaintiff had established default, he has not established a sufficient basis
in the pleadings for the judgment.2 Finally, even if plaintiff had met all other requirements of a
motion for default judgment, neither the motion (Dkt. 30), nor the “notice” of the motion that he
filed (Dkt. 32), demonstrate that plaintiff has met Local Rule 5.5 requiring the motion for default
judgment to be served by certified mail, with the return receipt requested. Therefore, plaintiff’s
motion for default judgment against Hall and Soliz is denied.
C. Hall and Soliz’s Motion for Judgment & Plaintiff’s Motion to Strike
The court next considers Soliz’s motion for judgment (Dkt. 39) and Hall’s motion for
judgment (Dkt. 40). Hall and Soliz argue that the applicable statute of limitations has expired and
that they are entitled to absolute immunity. Because the court determines below that the statute of
limitations precludes this claim, it need not consider whether immunity applies.

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In Section I.C, the court concludes that plaintiff’s claims against Hall and Soliz are time-barred.

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Federal Rule of Civil Procedure 12(c) allows a party to move for judgment on the pleadings
after the pleadings are closed, as long as it is early enough not to delay trial. FED . R. CIV . P. 12(c).
“The standard for deciding a Rule 12(c) motion is the same as a Rule 12(b)(6) motion to dismiss.”
Guidry v. Am. Pub. Life Ins. Co., 512 F.3d 177, 180 (5th Cir. 2007). Therefore, a plaintiff must
plead “enough facts to state a claim to relief that is plausible on its face.” Gines v. D.R. Horton, Inc.,
699 F.3d 812, 816 (5th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.
Ct. 1955 (2007)). “Factual 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, 550 U.S. at 555. “[A] complaint may be subject to dismissal if its allegations
affirmatively demonstrate that the plaintiff's claims are barred by the statute of limitations and fail
to raise some basis for tolling.” Frame v. City of Arlington, 657 F.3d 215, 240 (5th Cir. 2011).
In Texas, the statute of limitations for actions brought under 42 U.S.C. § 1983 (“Section
1983”) is two years. Burns v. Harris County Bail Bond Bd., 139 F.3d 513, 518 (5th Cir. 1998). The
statute of limitations for civil conspiracy is also two years. Ultraflo Corp. v. Pelican Tank Parts,
Inc., 926 F. Supp. 2d 935, 950 (S.D. Tex. 2013) (citing TEX . CIV . PRAC. & REM . CODE ANN . §
16.003(a)). Plaintiff’s claim accrued at or near the time of the CSC hearing on May 26, 2011, yet
plaintiff did not file his Section 1983 or conspiracy claims against Hall and Soliz until more than two
years later on January 21, 2014. Further, plaintiff has not raised a basis for tolling. Accordingly,
plaintiff cannot succeed on his claims against Hall and Soliz in their individual capacities.
Therefore, Soliz and Hall’s motions for judgment are granted.
The court now turns to the plaintiff’s motions to strike Hall and Soliz’s motions for judgment
(Dkts. 42, 44) on the basis that the statute of limitations is not applicable. Hall and Soliz’s motions

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for judgment are properly granted under the statute of limitations, and the court therefore denies
plaintiff’s motions to strike.
D. Discovery Motions Related to the City of Houston
The court next considers plaintiff’s motion to challenge the sufficiency of the City’s
discovery responses (Dkt. 49) and his motion to compel production of all outstanding discovery
(Dkt. 50). Because the claims against the last remaining defendants in the suit were dismissed
above, the court denies these discovery-related motions as moot. Further, the court also denies the
City’s motion for a protective order (Dkt. 45) related to the discovery requests as moot for the same
reasons.
E. Plaintiff’s motion for Attorney’s Fees
Lastly, the court considers plaintiff’s motion for attorney’s fees (Dkt. 43). Plaintiff moves
for attorney’s fees against HOPE under 29 U.S.C. § 1132 and Texas Rule of Civil Procedure 91(a).
29 U.S.C. § 1132 is a section within the Federal Employee Retirement Income Security Program,
and is therefore irrelevant to the plaintiff’s claims against HOPE under the Labor Management
Relations Act (“LMRA”).3 Plaintiff also claims that he is due attorney’s fees under Texas Rule of
Civil Procedure 91(a) because plaintiff prevailed against HOPE in the motion. However, the court
declined to consider the substance of HOPE’s 91(a) motion, and it will not award attorney’s fees on
that basis. See Dkt. 27 at 12 n.5.

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Even if plaintiff intended to seek attorney’s fees under the LMRA, his pleadings do not establish that such
an award is available to him.

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II. CONCLUSION
For the foregoing reasons, plaintiff’s motion for reconsideration is DENIED (Dkt. 29);
plaintiff’s motion for default judgment is DENIED (Dkt. 30); Soliz and Hall’s motions for judgment
are GRANTED (Dkts. 39, 40); Plaintiff’s motion to strike against Hall and Soliz is DENIED (Dkts.
42, 44); plaintiff’s motion challenging the sufficiency of the City’s discovery is DENIED (Dkt. 49);
plaintiff’s motion to compel production is DENIED (Dkt. 50); the City’s motion for a protective
order is DENIED (Dkt. 45); and plaintiff’s motion for attorney’s fees against HOPE is DENIED
(Dkt. 43).
It is so ORDERED.
Signed at Houston, Texas on January 12, 2015.

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Gray H. Miller
United States District Judge

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