Integrity Collision Center et al v. City of Sugar Land, Texas

Filing 35

MEMORANDUM OPINION AND ORDER denying as moot 32 MOTION to Strike, granting 19 MOTION for Summary Judgment, over-ruling 32 Objections to Exhibits, denying 11 Request to File Amended Complaint (Signed by Judge Sim Lake) Parties notified. (aboyd, 4) (Main Document 35 replaced on 9/30/2015) (aboyd, 4).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

INTEGRITY COLLISION CENTER
and BUENTELLO WRECKER SERVICE,
Plaintiffs,
V.

CITY OF SUGAR LAND, TEXAS,
Defendant.

§
§
§
§
§
§
§
§
§
§

CIVIL ACTION NO. H-14-2313

MEMORANDUM OPINION AND ORDER

Plaintiffs, Integrity Collision Center ("ICC") and Buentello
Wrecker

Service

( "BWS") ,

filed

this

action on July

17,

2014,

against defendant, the City of Sugar Land, Texas ("Sugar Land") in
the 434th Judicial District Court

of

Fort Bend County,

Texas,

seeking damages and injunctive relief for violation of the Equal
Protection Clause of the Fourteenth Amendment to the United States
Constitution. 1
court

action

On August 12, 2014, Sugar Land removed the state
styled

Integrity

Collison

Center,

and

Buentello

Wrecker Service v. City of Sugar Land, cause number 14-DCV-216202,
by asserting that "[r]emoval is proper because Plaintiffs'
involves a federal question.
that

the

Protection

1

actions

of

guaranteed

the
by

.

Specifically, Plaintiffs allege

City violated
the

suit

their

Fourteenth

rights

Amendment

to
to

Equal
the

See Plaintiffs' Original Petition ("Plaintiffs' Petition"),
Docket Entry No. 2-1, pp. 1-3.

United

Constitution." 2

States

Defendant,

City

of

("Sugar Land's MSJ")

Sugar

Pending

Land's

before

Motion

for

(Docket Entry No. 19).

the

court

Summary

is

Judgment

Also pending are Sugar

Land's Objections to Exhibits Attached to Plaintiffs' Response to
City's

Motion

for

Summary Judgment

and

Motion

to

Strike

Same

(Docket Entry No. 32), and plaintiffs' request to amend should the
court determine that Sugar Land's motion for summary judgment has
merit

(Docket

Entry No.

27) . 3

For

the

reasons

stated below,

defendant Sugar Land's motion for summary judgment will be granted,
Sugar Land's objections to plaintiffs' exhibits will be overruled
and Sugar Land's motion to strike will be denied as moot,

and

plaintiffs' request to amend will be denied.
I.

Standard of Review

Summary judgment is authorized if the movant establishes that
there is no genuine dispute about any material fact and the law
entitles it to judgment.
material

facts

are

Fed. R. Civ. P. 56(c)

"genuine"

if

the

evidence

Disputes about
is

such

that

a

reasonable jury could return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2510 (1986).

The

Supreme Court has interpreted the plain language of Rule 56(c) to

2

Defendant City's Notice of Removal
Docket Entry No. 1, p. 2 ~ 4.
3

("Notice of Removal"),

Plaintiffs Integrity Collision Center and Buentello Wrecker
Service's Response to Defendant Sugar Land's Motion for Summary
Judgment ("Plaintiffs' Response"), Docket Entry No. 27, pp. 10-11.
-2-

mandate the entry of summary judgment "after adequate time for
discovery and upon motion,
showing

sufficient

to

against a party who fails to make a

establish

the

existence

of

an

element

essential to that party's case, and on which that party will bear
the burden of proof at trial."
S.

Ct.

"must

2548,

2552

(1986).

Celotex Corp.

v.

Catrett,

106

A party moving for summary judgment

'demonstrate the absence of a

genuine

issue of material

fact,' but need not negate the elements of the nonmovant's case."
Little v.

Liquid Air Corp.,

37 F.3d 1069,

1075

(en bane)

(5th Cir.

1994)

(quoting Celotex, 106 S. Ct. at 2553)

If the moving party meets this burden, Rule 56(c) requires the
nonmovant

to

go

beyond

the

pleadings

and

show

by

admissible

evidence that facts exist over which there is a genuine issue for
trial.

Id. "[T)he nonmoving party's burden is not affected by the

type of case; summary judgment is appropriate in any case where
critical evidence is so weak or tenuous on an essential fact that
it could not support a judgment in favor of the nonmovant."

Id.

A party opposing summary judgment must point to an evidentiary
conflict in the record.

Factual controversies are to be resolved

in favor of the nonmovant,

"but only when .

submitted evidence of contradictory facts."
1075.

. both parties have
Little,

37 F.3d at

"[T]he court must draw all reasonable inferences in favor of

the nonmoving party, and it may not make credibility determinations
or weigh the evidence."

Reeves v.

Inc., 120 S. Ct. 2097, 2110 (2000) .
-3-

Sanderson Plumbing Products,

II.

Undisputed Facts and Procedural Background

Plaintiffs

provide

Fort Bend County,

Texas.

tow

truck

services

in

and

around

Plaintiffs provide both consent tows

where service is initiated at the request of the vehicle owner, and
non-consent tows where service is initiated at the request of the
police or a private party who does not own the vehicle. 4
Sugar Land has established a towing program under which its
police department refers non-consent tows to specific businesses on
a

rotating basis.

On March

5,

2014,

and on March 12,

2014,

Sugar Land ran newspaper advertisements soliciting applications
from tow truck companies interested in participating in its nonconsent towing rotation program.

The advertisements stated that

the City of Sugar Land and Sugar Land Police Department
will receive applications from Tow Truck Companies to
provide wrecker services under a new contract.
If
selected, you must adhere to all requirements stipulated
in the contract.
In addition, you must adhere to all
State and Local Laws.
A copy of the new contract and
letter of interest may be obtained from City of Sugar
Land, Office of the City Secretary .
If interested
and you meet the operational requirements set forth in
the contract without exception, please complete the
letter of interest.
Please include with your letter of
interest all documentation listed. 5
The advertisements also stated that Sugar Land intended to limit
its non-consent towing rotation list to five

(5)

companies,

and

4

~~

Id. at 2 (citing Declaration of Roel Buentello, Exhibit 1,
1-3, and Declaration of Daniel Buentello, Exhibit 2, ~~ 1-3).
5

Exhibit 7-A attached to Sugar Land's MSJ, Docket Entry
No. 19-8, p. 5 (March 5th advertisement) and p. 7 (March 12th
advertisement) .
-4-

directed interested parties to submit sealed applications to the
Office of

the City Secretary on or before 11:00 a.m.,

March 14,

2014.

6

Friday,

The "General Requirements" section of the new

City Tow Truck Service Contract provided, in part:

"The City will

only enter into Contracts with single business entities; no DBA's.
Each Contractor will be a stand-alone company with its own tow
truck(s) and physical business office." 7
BWS submitted a
application. 8

timely application;

On March 28,

2014,

ICC did not submit an

Sugar Land entered into a Tow

Truck Service Contract with Big Rod's Towing, Fort Bend Storage/J&H
Towing and Recovery, Mike's Wrecker Service, Long's Towing, and A&M
Automotive. 9
program. 10

BWS was not selected to participate in the rotation

On April 3, 2014, Roel Buentello received a letter from

Sugar Land's Assistant Chief of Police stating that its application
to participate

in the

rotation program was

rejected for

these

reasons:
6

Id.

Sugar Land's MSJ, Docket Entry No. 19, p. 23 ~ 48 (quoting
Exhibit 3-B, Tow Truck Service Contract, Docket Entry No. 19-3,
7

~ 1)
8

Plaintiffs' Response, Docket Entry No. 27, p. 3.
See
Declaration of Roel Buentello, Exhibit 1 to Plaintiffs' Response,
Docket Entry No. 27-1, p. 2 ~ 7; Declaration of Daniel Buentello,
Exhibit 2 to Plaintiffs' Response, Docket Entry No. 27-3, p. 2
~~ 5-6).
9

Sugar Land's MSJ, Docket Entry No.
Exhibits 1, 3-D, 3-E, 3-F, 3-G, 3-H).
Id. at 2 ~ 3.
No. 27, p. 6 n.6.
10

19,

p.

24

~

51

(citing

See also Plaintiffs' Response, Docket Entry
-5-

(1) Truck submitted registered to Gary Lynn Martin;
(2) Truck submitted [registered] to Buentello Wrecker and
Auto Parts;
(3) same address for Integrity Collision which is d/b/a
for Daniel Buentello; and
(4) same address for Roy's Towing which is d/b/a for Roel
Buentello. 11
On

July

asserting a

17,

2014,

plaintiffs

filed

suit

in

state

single cause of action for violation of

court

the Equal

Protection Clause of the Fourteenth Amendment to the United States
Constitution.

In pertinent part plaintiffs allege:

10.

Despite the fact that they meet the City's
guidelines and requirements, Plaintiffs have been
denied inclusion in the City's towing program
without any reasonable explanation.
Contrary to
its stated terms, the program was not open to all
potential participants who met the requirements
under City terms, and the application process or
notification process was performed in a secretive
manner
allowing
only
a
select
number
of
participants.
As a result,
Plaintiffs were
effectively
denied
an
equal
opportunity
to
participate in the program.

11.

A demand letter was sent to Defendant on or about
April 16, 2014, seeking additional information, and
demanding inclusion into the program. However, to
date, Defendant has failed and refused to provide
any guidance or information as to any legitimate
reason for its· exclusion of Plaintiffs from the
opportunity to participate in the program.

11

Plaintiffs' Response, Docket Entry No. 27, pp. 3-4. See also
Declaration of Roel Buentello, Exhibit 1 to Plaintiffs' Response,
Docket Entry No. 27-1, p. 2 ~ 8 ("On April 3, 2014, I received a
letter from the Assistant Chief of Police for the City of
Sugar Land, advising me that I was rejected from the towing program
for the following reasons:
(1) Truck submitted registered to Gary
Lynn Martin; (2) truck submitted to Buentello Wrecker and Auto
Parts .
. ") .
-6-

E. CAUSES OF ACTION
I.

VIOLATION OF EQUAL PROTECTION CLAUSE

12.

Plaintiff incorporates by reference paragraphs 1-11
above.

13.

The Equal Protection Clause of the 14th Amendment to
the U.S. Constitution requires that the government
treat similarly situated entities equally. A party
alleging violation of equal protection "must prove
he was treated differently by the government than
similarly situated persons and the different
treatment
was
not
rationally
related
to
a
legitimate government objective."
Koscielski v.
City of Minneapolis, 435 F.3d 898 (8th Cir. 2006).

14.

Plaintiffs assert a
violation of
the Equal
Protection
Clause
regarding
inclusion
in
Defendant's non-consent towing program.
The
disparity in treatment between Plaintiffs and
businesses who have been allowed into the program
is not rationally related to any legitimate
governmental objective of Defendant.
The current
program requirements and methods of inclusion are
structured to benefit certain business without any
due regard for the citizens of Missouri City or the
rights of the entities excluded from the program.

15.

As a direct and proximate result of Defendant's
conduct and violations of law, Plaintiffs have
suffered
damages
in
excess
of
the
minimum
jurisdictional requirements of the Court.
Such
damages include but are not limited compensatory
and
punitive.
Although
Plaintiffs
cannot
completely
quantify
their
damages
without
additional
information
from
Defendant
and/or
current participants in the program, they are
expected to range anywhere between $100,000.00 and
$500,000.00.

16.

The defendant has violated the terms of the
directive which it issued to the towing community
by allowing companies who do not meet the
requirements to enter into the exclusive towing
program rotation. Defendant requires all potential
tow candidates to comply with all their guidelines,
procedures and directives issued by the Chief of
-7-

Police for entrance into the program.
Defendant
issued a contract stating these requirements and
specifics for entrance into the towing program.
These requirements are issued for the benefit of
tow providers such as Plaintiffs to streamline the
application process and acceptance mechanisms. 12
On August 8,

2014,

Sugar Land filed an Original Answer in

state court denying generally the facts
13

Petition,

and

on

August

12,

2014,

alleged in Plaintiffs'

Sugar

Land

removed

the

plaintiffs' state-court action to this court based on an assertion
of federal question jurisdiction, 28 U.S.C.

§§

1331 and 1441(a) . 14

On December 5, 2014, the court held a scheduling conference,
and entered a Docket Control Order with no deadline for motions to
amend pleadings,
motions . 15
Dismiss

and a deadline of May 1,

On December 8,

(Docket Entry No.

January 9,

2015

2014,
11),

2015,

for dispositive

Sugar Land filed a

Motion to

to which plaintiffs responded on

(Docket Entry No.

15).

On April 24,

2015,

the

court denied Sugar Land's motion to dismiss because it "relie[d] on
matters outside the Plaintiffs' Petition." 16

12

Plaintiffs' Petition, Docket Entry No. 2-1, pp. 3-4

~~

10-11,

14-16.
13

Defendant City of Sugar Land's Original Answer, Docket Entry
No. 2-1, pp. 13-14.
14

Notice of Removal, Docket Entry No. 1, p. 2

15

~

4.

See Hearing Minutes and Order, Docket Entry No. 9, and Docket
Control Order, Docket Entry No. 10.
16

0rder, Docket Entry No. 16, p. 1.
-8-

III.

Sugar Land's Motion for Summary Judgment

Plaintiffs

allege

that

denial

of

their

application

to

participate in Sugar Land's towing rotation program violated the
Equal

Protection

Clause

of

United States Constitution.

the

Fourteenth

Amendment

to

the

The alleged equal protection violation

is based on plaintiffs' claim that they were a "class of one" and
that

Sugar

Land

intentionally

and

arbitrarily

treated

differently from other, similarly situated applicants.

them

Plaintiffs

seek damages and injunctive relief. 17
Sugar Land argues that it is entitled to summary judgment
dismissing

the

plaintiffs'

equal

protection

claims

because

"[p]laintiffs have pleaded no statutory basis that would allow them
to redress a violation of federal constitutional rights i
because "[p] laintiffs'

"

18

and

'class-of -one' claims fail as a matter of

law because the City's decisions on which tow truck companies it
uses

to provide towing and impoundment services

to its

Police

Department are discretionary decisions that are not subject to an
Equal Protection challengei" 19 and because "[t]here is no factual

17

See Plaintiffs' Petition, Docket Entry No. 2-1, pp. 3-5.

Sugar Land's MSJ, Docket Entry No. 19, p. 2 ~ 4.
See also
id. at 4-5 ~ 11 ("[Plaintiffs'] pleadings fail to state a cause of
action for violation of their right to Equal Protection under the
Fourteenth Amendment to the U.S. Constitution in that they have
alleged a direct constitutional cause of action instead of a claim
under the statutory framework allowed for redress of constitutional
rights.").
18

19

Id. at 4 ~ 10.
-9-

basis

to

support

the

[p] laintiffs'

assertion

that

the

City's

decisions with regard to the selection of companies to provide
towing and impoundment services were

irrational. " 20

Plaintiffs

respond that Sugar Land's Motion for Summary Judgment should be
denied because
1) Plaintiffs meet all of the requirements for a "class
of one" equal protection claim under law; 2) Defendant
has not provided a rational reason related to a
legitimate government purpose for excluding Plaintiffs
from consideration for the towing rotation by disregarding its own policies and procedures in selecting
candidates for its wrecker rotation. 21
A.

Plaintiffs Fail to Plead or to Raise a Fact Issue as to a
Statutory Basis for Their Constitutional Claims

Asserting that plaintiffs have alleged a direct constitutional
cause of

action

instead of

a

claim under

42

U.S.C.

§

1983, 22

Sugar Land argues that it is entitled to summary judgment because
plaintiffs
cannot maintain a cause of action directly under the
Fourteenth
Amendment
when
seeking
to
assert
Constitutional violations against municipalities or
governmental actors, but must employ the applicable
statutory mechanism when one exists --- here, 42 U.S.C.
23
§ 1983 .

~

20

Id. at 5

21

Plaintiffs' Response, Docket Entry No. 27, p. 2.

22

Sugar Land's MSJ, Docket Entry No. 19, p. 16

23

Id. at 17
F.3d 1095 (5th
publication) ) .

13.

~

~

37.

38 (citing Berger v. City of New Orleans, 273
Cir. 2001)
(per curiam)
(not designated for
-10-

Plaintiffs
factual
common

respond that Sugar Land's

and procedural history of
sense. " 24

Plaintiffs

argument

the case,

argue

that

"defies

the

to say nothing of

since

this

action was

originally filed in state court they did not need to allege a cause
of action under

§

1983;

that

since

dismiss based on the failure to plead a

Sugar Land never moved
§

to

1983 cause of action they

should not now be precluded from asserting a constitutional claim
due to a defect in pleading;

and that if the court finds their

pleading defective then they should be allowed to file an amended
complaint under Federal Rule of Civil Procedure 15. 25
In limited circumstances the Supreme Court has acknowledged
direct causes of action under the United States Constitution for
the Equal Protection Clause of the Fourteenth Amendment.
v. Midland County, Texas, 88 S. Ct. 1114, 1117 (1968)

See Avery

(holding that

a constitutional violation may lie pursuant to the Equal Protection
Clause, for unequal population voting districts) .

Federal courts,

however, and the Fifth Circuit in particular, have been hesitant to
find equal protection causes of action arising directly under the
Constitution.

See Hearth Inc. v. Department of Public Welfare, 617

F.2d 381, 382 (5th Cir. 1980)

(per curiam).

Such claims have only

been recognized when there "simply was no other means of seeking
redress of flagrant violations of the plaintiff's constitutional

24

Plaintiffs' Response, Docket Entry No. 27, p. 10.

25

Id. at 11-12.
-11-

rights."
§

1983

Id.

"When a statutory mechanism is available, 42 U.S.C.

being

protection."

a

prime

example,

plaintiffs

must

invoke

its

Mitchell v. City of Houston, Texas, 57 F. App'x 211,

2003 WL 147729, *1 (5th Cir. 2003)

(per curiam)

(citing Hearth, 617

F.2d at 381, and Hunt v. Smith, 67 F. Supp. 2d 675, 681 (E.D. Tex.
1999)) .
Claims based on a violation of the rights guaranteed by the
Fourteenth Amendment must be predicated on
whether

they

are

Kaufman County v.

asserted
~ombs,

2012, writ denied)
protection or

due

constitutions.").
14,

20

(Tex.

protects

all

in

federal

§

or

1983 regardless of
state

court.

See

393 S.W.3d 336, 345 (Tex. App. -Dallas,

("[T]here is no direct cause of action for equal
process

violations

under

the

U.S.

or Texas

See also City of Lubbock v. Corbin, 942 S.W.2d

App.
rights

Amarillo 1996,
guaranteed

writ denied)

by

the

("Section 1983

Fourteenth

Amendment,

Matthias v. Bingley, 906 F.2d 1047, 1051 (5th Cir. 1990), including
the right to receive due process and to equal protection of the
laws.

U.S. CONST. amend. XIV,

§

1.").

Section 1983 provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory
or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress, except that in any action
brought against a judicial officer for an act or omission
-12-

taken in such officer's judicial capacity, injunctive
relief shall not be granted unless a declaratory decree
was violated or declaratory relief was unavailable.
42

u.s.c.

§

1983.

"[Section]

1983

'is not itself a

source of

substantive rights,' but merely provides 'a method for vindicating
federal rights elsewhere conferred.'"
1865, 1870 (1989)
n.3

Graham v. Conner, 109 S. Ct.

(quoting Baker v. McCollan, 99 S. Ct. 2689, 2694

(1979)).
To establish municipal liability under

§

1983, plaintiffs

must show the deprivation of a federally protected right
caused by action taken "pursuant to an official municipal
policy." . . . A plaintiff must identify "(1) an official
policy (or custom), of which (2) a policymaker can be
charged with actual or constructive knowledge, and (3) a
constitutional violation whose 'moving force' is that
policy or custom."
Valle v. City of Houston, 613 F.3d 536, 541 (5th Cir. 2010)

(citing

Monell v. Department of Social Services of the City of New York, 98
S. Ct. 2018, 2037-38 (1978), and quoting Pineda v. City of Houston,
291 F. 3d 325, 328 (5th Cir. 2002)).
Plaintiffs have neither pleaded nor argued that the actions
about which they complain satisfy the requirements for holding a
municipality liable for an unconstitutional act of its employees,

i.e.,

(1) an official policy or custom,

final

policymaker,

( 3)

that

causes

constitutional violation whose
custom.

(2) of the municipality's

the

plaintiff

"moving force"

is

to

suffer a

the policy or

Sugar Land is therefore entitled to summary judgment on

plaintiffs'

claims

for violation of

rights to Equal Protection.

their Fourteenth Amendment

See Hearth, 617 F.2d at 383 (holding
-13-

plaintiff's complaint "fatally defective" for failing "to invoke
the protection of
claims

on 42

§

U.S. C.

1983") .
§

Even if plaintiffs had based their

1983,

summary

judgment

would be

proper

because plaintiffs have failed to raise a genuine issue of material
fact for trial.

B.

Sugar Land is Entitled to
Equal Protection Claims

1.

Equal

on Plaintiffs'

Applicable Law

The

Sununary Judgment

Protection

Clause

provides that "No State shall .

of

the

Fourteenth

deny to any person within its
United States

jurisdiction the equal protection of the laws."
Constitution Amend.
state

actors

from

XIV.

Amendment

"The Equal Protection Clause forbids

treating

similarly

situated

individuals

differently for a discriminatory purpose and without a rational
basis."

Gil Ramirez Group, L.L.C. v. Houston Independent School

District, 786 F.3d 400, 419 (5th Cir. 2015)

(emphasis in original).

" [A] n equal protection claim depends on either identifying a class,
Washington v. Davis,
aggrieved party is a

96 S.

Ct.

2040

'class of one,'

Olech, 120 S. Ct. 1073, 1074 (2000) ."

(1976),

or showing that the

Village of Willowbrook v.
Id.

Plaintiffs do not claim that they were discriminated against
on the basis of
therefore,

must

their membership in any particular class and,
rely on

Olech, 120 S. Ct. at 1073.

the

class -of -one

theory

recognized

in

In Olech the Supreme Court recognized

that an equal protection claim can be brought by a "'class of one,'
-14-

where the plaintiff alleges that she has been intentionally treated
differently from others similarly situated and that there is no
rational basis for the difference in treatment."

Id. at 1074.

The

plaintiffs in Olech alleged that the Village of Willowbrook (the
"Village") had conditioned the connection of their property to the
municipal water supply on the grant of an easement larger than the
Village required of other property owners.
alleged

that

the

Village's

request

was

Id.

The plaintiffs

motivated by

ill

will

resulting from an earlier lawsuit plaintiffs had filed against the
Village.
failure

The district court dismissed the complaint for
to state a

claim.

The Seventh Circuit reversed,

finding that plaintiffs had alleged a class-of-one equal protection
claim.
Cir.

Olech v. Village of Willowbrook,

1998),

cert.

granted in part,

160 F.3d 386,

120 S.

Ct.

10

387

(7th

(1999),

and

judgment aff'd, 120 S. Ct. 1073 (2000)
The

Seventh

Circuit

recognized

and

was

troubled

by

the

"prospect of turning every squabble over municipal services .
into a federal constitutional case."

Olech, 160 F.3d at 388.

But

the Seventh Circuit concluded that this problem was alleviated by
the requirement under circuit case law that the plaintiff allege
and prove subjective
class-of-one

equal

"ill will"

protection

or

"illegitimate animus"

in a

The

Court

case.

Supreme

affirmed in a brief per curiam opinion stating:
Our cases have recognized successful equal protection
claims brought by a 'class of one,' where the plaintiff
alleges
that
she
has
been
intentionally
treated
-15-

differently from others similarly situated and that there
is no rational basis for the difference in treatment.
Olech, 120 S. Ct. 1074.

The Court concluded that the plaintiff's

allegations - that the Village demanded a larger easement than it
demanded from other similarly situated property owners, and that
the demand was "irrational and wholly arbitrary" were, "quite apart
from the Village's subjective motivation .

. sufficient to state

a claim for relief under traditional equal protection analysis."
Id.

at 1075.

The Supreme Court affirmed the Seventh Circuit's

opinion but did not "reach the alternative theory of 'subjective
ill will' relied on by that court."
2.

Id.

Application of the Law to the Undisputed Facts
(a)

Citing

Plaintiffs' Claims Do Not Fail as a Matter of Law
Engquist

v.

Oregon Department

of

Agriculture,

128

S. Ct. 2146, 2154-55 (2008), Sugar Land argues that" [p]laintiffs'
'class-of-one' claims fail as a matter of law because the City's
decisions on which tow truck companies it uses to provide towing
and impoundment services to its Police Department are discretionary
decisions that are not subject to an Equal Protection challenge." 26
Plaintiffs respond that Engquist is inapposite because plaintiffs
are not complaining that they have been removed from the
program after having
gained
inclusion.
Rather,
Plaintiffs contend that Defendant has created ostensibly
face-neutral guidelines that it had no intention of
following, and that it arbitrarily did not follow, for
the sole purpose of selecting certain pre-determined

26

Sugar Land's MSJ, Docket Entry No. 19, p. 4
-16-

~

10.

candidates for the wrecker rotation.
epitome of an equal protection claim.

This is the very

Plaintiffs do not complain they have been removed
from the rotation unlawfullyi
the issue is that
Plaintiffs have never been afforded a
reasonable
opportunity to compete with other, similarly situated
parties for a spot on the rotation. 27
In Engquist the Supreme Court held that

"the class-of-one

theory of equal protection does not apply in the public employment
context."

128

s. Ct. at 2151.

The Court explained that

[t]here are some forms of state action, however, which by
their nature involve discretionary decisionmaking based
on
a
vast
array
of
subjective,
individualized
assessments.
In such cases the rule that people should
be
"treated alike,
under
like
circumstances
and
conditions" is not violated when one person is treated
differently
from
others,
because
treating
like
individuals differently is an accepted consequence of the
discretion granted.
In such situations, allowing a
challenge based on the arbitrary singling out of a
particular person would undermine the very discretion
that such state officials are entrusted to exercise.
Id.

at 2154.

(2014)

See also Harris v.

Quinn,

134 S.

Ct.

2618,

2653

("the government has wider constitutional latitude when it

is acting as employer than as sovereign").
Calling attention to the obvious parallels between government
employees

and

government

contractors,

Sugar

Land

because of the Supreme Court's ruling in Engquist,
Equal

Protection Claims must

fail.

28

argues

that

plaintiffs'

Sugar Land's reliance on

27

Plaintiffs' Response, Docket Entry No. 27, pp. 8-9.

28

Sugar Land's MSJ, Docket Entry No. 19, pp. 7-16
-17-

~~

24-36.

Engquist is misplaced, however, because Engquist did not abolish
all class-of-one claims;

it eliminated only those claims in the

context of public employment.

128

s. Ct. at 2146.

The Fifth

Circuit has not extended the Supreme Court's holding in Engquist
beyond

the

government-employee

relationship.

See

Gil

Ramirez

Group, 786 F.3d at 419 ("Engquist is not dispositive of [potential
government

contractor's]

class

of

one

theory but

cuts

against

it • II) •
(b)

Plaintiffs' Fail to Raise a Fact Issue for Trial

Sugar Land argues that plaintiffs' claims "must fail because,
as a matter of law, the challenged decisions were rational and the
Plaintiffs were not similarly situated in material respects to the
five

(5)

companies chosen by the City to enter into Tow Truck

Service Contract." 29

Sugar Land also argues that "BWS's and ICC's

Equal Protection claim, if they have one, fails because, there are
no facts to demonstrate that the City intentionally treat[ed]

ICC

or BWS differently when compared to similarly situated comparators
or that the City acted with ill will or personal vindictiveness
toward ICC and/or BWS." 30
modified the rules

Asserting that Sugar Land "arbitrarily

for particular towing companies without any

rational reason for doing so[, and that t]he requirements were not
applied across the board to all applicants, in clear violation of

29

Id. at 7

30

Id.

~

~

21.

22.
-18-

Plaintiff's equal protection rights," 31 plaintiffs argue that "no
rational

basis

exists

for

the

City's

disregard

of

its

own

guidelines and procedures in connection with its bid process." 32
Under

rational

basis

review,

governmental

decisions

are

accorded a "strong presumption of validity," and will be upheld "if
there

is any reasonably conceivable

state of

facts

provide a rational basis for the classification."

that could

Lindquist v.

City of Pasadena, Texas, 656 F. Supp. 2d 662, 696 (S.D. Tex. 2009)
(quot~ng

Heller v. Doe by Doe, 113 S. Ct. 2637, 2642 (1993)).

"The

'decision of a governmental body does not violate equal protection
guarantees
debatably

if

there

rational

governmental end."'

is any basis

for

relationship

to

Id. at 696-97

Public Utility District,

the action that bears
a

conceivable

a

legitimate

(quoting Reid v. Rolling Fork

979 F. 2d 1084,

108 7

(5th Cir.

1992) ) .

"Rational basis review is an extremely lenient standard of review."
Id. at 697.
the

"A decision 'can be considered irrational' only when

decision-maker

decision.'"

Id.

'acts

with

no

Bizzarro v.

31

reasons

for

its

(quoting Harlen Associates v. Village of Mineola,

273 F.3d 494, 500 (2d Cir. 2001))
courts to review

legitimate

governmen~

Miranda,

"Olech does not empower federal

actions for correctness."

394 F.2d 82,

89-90

(2d Cir.

Id. (quoting
2005)).

Plaintiffs' Response, Docket Entry No. 27, p. 10.

32Id.

-19-

"The

Olech inquiry focuses on whether the challenged action or decision
was rationally related to the government's work or mission."
(1}

Id.

ICC's Non-Selection for the Program

The undisputed evidence establishes that ICC did not submit an
application to participate in the tow rotation program, 33 and that
each of the five companies chosen to participate in the program
"submitted an application for a City Tow Truck Service Contract." 34
Plaintiffs have not cited any evidence capable of establishing that
Sugar Land's decision to not choose an entity that had not applied
to participate in the program was irrational.

Accordingly,

the

court concludes that plaintiffs have failed to cite any evidence
capable of raising a genuine issue of material fact for trial on
ICC's equal protection claim.
(2}

The

undisputed

BWS's Non-Selection for the Program

evidence

establishes

that

BWS

submitted a

timely application to participate in the rotation program but was
not selected. 35

Sugar Land argues that its decision not to include

BWS in the rotation program was rational because:

33

Id. at 3. See also Declaration of Roel Buentello, Exhibit 1
to Plaintiffs' Response, Docket Entry No. 27-1, p. 2 ~ 7i
Declaration of Daniel Buentello, Exhibit 2 to Plaintiffs' Response,
Docket Entry No. 27-3, p. 2 ~~ 5-6.
34

Sugar Land's MSJ, Docket Entry No. 19, p. 25

Id. at 2 ~ 3.
No. 27, p. 6 n.6.
35

~

54.

See also Plaintiffs' Response, Docket Entry
-20-

By Texas law, a tow truck company that performs
nonconsent tows initiated by a police officer must obtain
from TDLR an incident management permit for each tow
truck it will use to perform those services. Tex. Occ.
Code Ann. § 2308.103 (West 2012). TDLR then issues a Cab
Card for each tow truck issued a permit. Tex. Occ. Code
Ann. § 2308.108 (West 2012). The Cab Card contains the
Make , Model, Year, Type, and Vehicle Identification
Number (VIN) for each vehicle used in the tow truck
company's business. 36

. As part of the application process, BWS and
the other applicants were required to provide the City
with their respective TDLR Cab Card. Upon review of the
State of Texas vehicle registration information for the
four vehicles listed on the BWS' s Cab Card, the City
found that two out of the four trucks listed on the BWS's
Cab Card were not owned by Buentello Wrecker Service, but
instead were owned by another person (Gary Lynn Martin)
or by another entity (Buentello Wrecker and Auto Parts) .
Exhibits 1; 2-B; 2-C; 2-D.
One of the requirements of
the City Contract provided that "[e]ach Contractor will
be a stand-alone company with its own tow truck(s) and
physical business office." Exhibits 1, 3-B.
For the five (5) companies that received a City
Contract to provide towing and impound services to the
City on nonconsent tows, each submitted an application
for a City Tow Truck Service Contract and the tow trucks
were all owned by the respective tow truck company or its
owner. 37
Sugar Land argues that
requiring tow truck companies to be the registered owners
of the tow trucks that they use in their business
provides protection to the public and .
. reduces the
amount of effort required to manage and coordinate the
provision of those services.
By law, tow truck[]
companies are required to have specific types and amounts
of insurance. An insurance policy issued to a tow truck

36

Sugar Land's MSJ, Docket Entry No. 19, p. 21

37

Id. at 25-26

~~

53-54.
-21-

~

44.

company provides insurance for the trucks owned by the
company, which protects the public in the event that the
tow truck company damages a towed vehicle or causes
injury to persons while towing a vehicle.
As a matter of law, BWS and ICC cannot demonstrate
that there was no conceivable rational basis for the
City's decisions to select tow truck companies that own
the vehicles that they use and to limit the total number
of companies selected to five. 38
Without disputing the rationality of limiting the total number
of companies selected to five, and without disputing that BWS did
not own all of the tow trucks listed on its Cab Card, plaintiffs
respond that they have nevertheless carried their burden to raise
a

fact

issue

on

Sugar

Land's

disparate

treatment

of

BWS's

application because Sugar Land accepted companies into the program,
which

like

BWS,

participation,

failed
i.e.,

to

Sugar

satisfy additional
Land

allowed

requirements

three

companies

for
to

participate in the program despite employing multiple d/b/a's, and
allowed two companies to participate in the program who did not
register

with

the

State

of

Texas

until

after

the

March

14th

application date.
Plaintiffs' arguments have no merit because plaintiffs do not
dispute that BWS did not own all of the tow trucks listed on its
Cab Card, and do not cite any evidence capable of establishing that
another company was selected to participate in the rotation program
despite not owning all of the tow trucks listed on its Cab Card.
For these reasons plaintiffs have failed to raise a genuine issue

38

Id. at 29-30

~~

59-60.
-22-

of material fact for trial that BWS was similarly situated to any
of the companies selected to participate in the rotation program,
or

that the ownership requirement was not applied across the board

to all applicants.

Moreover, since plaintiffs neither allege nor

cite any evidence capable of showing that Sugar Land lacked a
rational basis for requiring companies selected to participate in
the program to own the tow trucks listed on their Cab Cards, the
fact that some additional requirements may not have been uniformly
applied across the board to all applicants is not sufficient to
raise a genuine issue of material fact for trial.
Nor
modified

is
the

plaintiffs'
rules

argument

for

that

particular

Sugar

towing

Land

arbitrarily

companies

without

rational reason sufficient to raise a fact issue for trial.
Equal

Protection

Clause

forbids

state

actors

from

a

"The

treating

similarly situated individuals differently for a discriminatory
purpose and without a rational basis."

at 419.

"'Discriminatory purpose, '

Gil Ramirez Group, 786 F. 3d
however,

implies more than

intent as volition or intent as awareness of consequences.
implies that

the decisionmaker

selected or reaffirmed a

particular course of action at least in part
merely

It

'because of,'

not

'in spite of,'

its adverse effects upon an identifiable

group [or plaintiff]."

Personal Administrator of Massachusetts v.

Feeney, 99 S. Ct. 2282, 2296

(1979).

Plaintiffs have failed to

cite any evidence capable of establishing that Sugar Land treated
BWS

differently

from

similarly
-23-

situated

individuals

for

a

discriminatory purpose.

That Sugar Land employees may have treated

one or more parties more favorably than they treated BWS is not
sufficient to show that Sugar Land treated BWS differently for a
discriminatory purpose.

See Gil Ramirez Group,

786 F.3d at 419

(citing Club Italia Soccer & Sports Organization, Inc. v. Charter
Township of Shelby, Michigan,

470 F.3d 286,

299

(6th Cir.

(rejecting equal protection claim when one vendor

2006)

"was treated

beneficially, but no party was discriminated against")).
IV.

A.

Sugar Land's Motion to Strike Plaintiffs' Exhibits
and Plaintiff[s' Request to File an Amended Complaint

Sugar Land's Motion to Strike

Sugar Land objects and moves to strike

~~

4, 9-12, and 14-17

of Roel Buentello's Declaration, Exhibit 1 to Plaintiffs' Response,
and~~

7-8 and 10-12 of Daniel Buentello's Declaration, Exhibit 2

to Plaintiffs' Response on grounds that the testimony provided in
these paragraphs is inadmissible for various reasons.
also objects and moves

to strike

Sugar Land

in their entirety Exhibits 3

through 9 to Plaintiffs' Response because plaintiffs did not comply
with the requirements of Federal Rule of Civil Procedure 26(a).
Because the court has resolved Sugar Land's MSJ without citing any
of

the

exhibits

or

portions

of

plaintiffs'

Sugar Land objects and moves to strike,

exhibits

to

which

Sugar Land's objections

will be overruled and its motion to strike will be denied as.moot.

-24-

B.

Plaintiffs' Request to Amend

At the end of their responsive briefing to Sugar Land's MSJ,
plaintiffs assert that "if the Court were inclined to agree that
Plaintiff[s]

should

have

brought

a

1983

leave

is

respectfully sought for Plaintiffs to amend their pleadings." 39

In

§

claim,

support of this request plaintiffs state:
As Defendant notes in its motion, there is no pending
deadline to amend pleadings.
Therefore, the Federal
Rules require that "the court should freely give leave
when justice so requires." Fed. R. Civ. P. 15. In this
case, justice and judicial economy favor granting leave
to amend Plaintiffs' pleadings to comply with the
technical
requirements
that
Defendant
alleges.
Certainly, Plaintiffs would not be precluded by res
judicata from bringing a new lawsuit against Defendant
based on the same conduct, if the Court were to dismiss
this case on procedural grounds. See Test Masters Educ.
Svcs. v. Singh, 428 F.3d 559 (5th Cir. 2005) (recognizing
that the test for res judicata requires the adjudication
of the prior action on the merits) . 40
Federal Rule of Civil Procedure 15(a) (2)
court

should

requires."
granting

freely

give

"Although Rule
leave

to

amend,'

leave

[to

15 (a)

'evinces

it

not

is

states that "[t]he

amend]
a

when
bias

justice
in

automatic."

Southmark Corp., 88 F.3d 311, 314 (5th Cir. 1996)

so

favor of
Matter

of

(quoting Dussouy

v. Gulf Coast Investment Corp., 660 F.2d 594, 598 (5th Cir. 1981)).
"A decision to grant leave is within the discretion of the trial
court.

Its discretion,

however,

is not broad enough to permit

denial if the court lacks a substantial reason to do so."

39

Plaintiffs' Response, Docket Entry No. 27, p. 11.

40

Id. at 11-12.
-25-

Id.

(citing State of Louisiana v. Litton Mortgage Co., 50 F.3d 1298,
1302-1303

(5th Cir. 1995)).

Generally, a district court errs in

dismissing a complaint for failure to state a claim under Rule
12 (b) (6)

without giving the plaintiff an opportunity to amend.

Bazrowx v.
cert.

Scott,

denied,

136 F.3d 1053,

119 S.

Ct.

156

1054

( 1998) .

alleges the plaintiff's best case,
amendment.
1999)

(5th Cir.)
If,

(per curiam),

however,

a complaint

there is no need for further

See Jones v. Greninger,

188 F.3d 322,

327

(5th Cir.

(dismissing plaintiff's pro se action because court could

perceive of no viable claim plaintiff could include in an amended
complaint based on the underlying facts) .

The Fifth Circuit has

also held that in exercising its discretion, a court may consider
undue delay,

bad faith,

dilatory motive,

undue prejudice to the

opposing party, and the futility of the proposed amendment.
Rosenzweig v.

Azurix Corp.,

332

F.3d 854,

864

(5th Cir.

See
2003)

(citing Foman v. Davis, 83 S. Ct. 227, 230 (1962)).
The record demonstrates that plaintiffs initiated this action
by filing a petition in state court on July 17, 2014 (Docket Entry
No. 2-1, pp. 1-6); that on August 8, 2014, Sugar Land answered with
a

general

August 12,
court

denial
2014,

(Docket

Entry

No.

2-1,

pp.

Sugar Land removed plaintiffs'

(Docket Entry No.

1);

13-18) ;

that

on

action to this

and that on December 5,

2014,

an

initial scheduling conference was held at which a Docket Control
Order was entered that did not provide a deadline for amending
pleadings or adding new parties
-26-

(Docket Entry Nos.

9 and 10) .

Sugar Land asserts in its motion for summary judgment that at the
December 5, 2015, initial scheduling conference,
[t]he Court asked Plaintiffs' attorney if he wanted to
amend Plaintiffs' pleadings, and he stated that he did
not.
Consequently, the Court entered a Docket Control
Order that had no deadline for motions to amend the
pleadings. The Docket Control Order also had a deadline
of May 1, 2015, for dispositive motions. 41
Plaintiff does not dispute Sugar Land's description of the initial
scheduling conference held on December 5, 2014.
Sugar Land filed its Motion to Dismiss on December 8,

2014

(Docket Entry No. 11), and plaintiffs responded on January 9, 2015
(Docket Entry No. 15), by arguing that
[a] plain reading of Plaintiffs' current live pleading
shows that it is factually sufficient to support a cause
of action for violation of their equal protection rights.
As such, Plaintiffs respectfully request that the Court
deny the motion to dismiss and allow Plaintiffs a
meaningful opportunity to conduct discovery in accordance
with the Court's Scheduling Order in the case. 42
On April 24, 2015, the court denied Sugar Land's Motion to Dismiss
because it relied on matters outside the pleadings
No. 16).

(Docket Entry

On May 1, 2015, Sugar Land filed its motion for summary

judgment (Docket Entry No. 19), and plaintiffs responded on July 6,
2015 (Docket Entry No. 27), arguing in pertinent part that
[s]ummary judgment should be denied because Plaintiff[s
have] alleged facts sufficient to show that Defendant has
acted in a discriminatory manner, without rational

41

Sugar Land's MSJ, Docket Entry No. 19, p. 3

42

~

7.

Plaintiffs' Response to Defendant's Rule 12 (b) ( 6) Motion to
Dismiss, Docket Entry No. 15, p. 1.
-27-

justification,
as
[defendant]
continue[s]
to deny
Plaintiffs an equal opportunity to participate in [its]
wrecker rotation. 43
Nevertheless,

in

the

last

paragraphs

of

Plaintiffs'

Response

plaintiffs include a request for leave to amend unaccompanied by
either a proposed amendment or a substantive discussion of the
amendments
plaintiffs

are

The

contemplated.
not

law

entitled to

in

this

circuit

an opportunity

to

is

satisfy

that
the

pleading requirements for governmental liability when in response
to dispositive motions the plaintiffs simply declare the adequacy
of their complaint and fail to take advantage of the opportunity to
amend as a matter of right.

See Spiller v. City of Texas City,

Police Department,

162,

130

F.3d

167

(5th

Cir.

1997)

(citing

Jacquez v. Procunier, 801 F.2d 789, 792-793 (5th Cir. 1986)).
also Babb v. Dorman, 33 F.3d 472, 479 (5th Cir. 1994)

See

(affirming

district court's refusal to grant plaintiff leave to amend his
complaint

after

it

had

granted

defendant's

motion

to

dismiss

because plaintiff had declared the sufficiency of his pleadings and
failed to offer a sufficient amended complaint in response to the
defendant's

motion).

Moreover,

the

court's

conclusions

that

plaintiffs' have failed to raise genuine issues of material fact
for trial on their constitutional claims for violation of their
rights to equal protection guaranteed by the Fourteenth Amendment
stated in§ III.B.2(b),

43

above,

persuade the court that granting

Id. at 2.
-28-

plaintiffs'
Spiller,

motion

130

for

F. 3d at

leave
167

to

amend

(recognizing

would
that

be
if

a

futile.
complaint

See
as

amended could not withstand a motion to dismiss then leave to amend
should be denied).

Accordingly, the plaintiffs' requests for leave

to amend will be denied.
V.

Conclusions and Order

For the reasons stated in

§

III,

above,

Defendant,

City of

Sugar Land's Motion for Summary Judgment (Docket Entry No. 19) is
GRANTED.

For the reasons stated in

§

IV.A,

above,

Sugar Land's

Objections to Exhibits Attached to Plaintiffs' Response to City's
Motion for Summary Judgment are OVERRULED and Sugar Land's Motion
to Strike Same

(Docket Entry No. 32)

reasons stated in

§

IV.B,

above,

is DENIED as MOOT.

plaintiffs'

For the

request to file an

amended complaint asserted in their response in opposition to Sugar
Land's motion for summary judgment (Docket Entry No. 27 at pp. 1011) is DENIED.
SIGNED at Houston, Texas, this 30th day of September, 2015.

"SiMLAKE

UNITED STATES DISTRICT JUDGE

-29-