Banik v. Angel et al
OPINION: re 36 Motion for Reconsideration.(Signed by Judge Micaela Alvarez) Parties notified.(BelindaSaenz, 7)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
BIMAL K. BANIK,
ANGEL TAMEZ, et al,
April 04, 2017
David J. Bradley, Clerk
§ CIVIL ACTION NO. 7:16-CV-462
The Court now considers Bimal Banik’s (“Plaintiff”) motion to reconsider the opinion
granting Amanda Ybarra’s (“Defendant”) motion to dismiss.1 After duly considering the record
and relevant authorities, the Court DENIES the motion.
Plaintiff sued Defendant for defamation on August 12, 2015, within a larger case
involving multiple defendants.2 On June 24, 2016, Defendant filed a motion to dismiss pursuant
to the Texas Citizens Participation Act (“TCPA”).3 Notice of removal was filed on August 8,
2016.4 The Court granted Defendant’s motion to dismiss, finding that her TCPA claim was not
moot due to its filing in state court, that she proved by a preponderance of the evidence that the
TCPA protected both her written complaint and Tribunal testimony, and that Plaintiff’s
Dkt. No. 36. As an initial matter, the Court reminds Plaintiff of the requirements of Rule 9(b) and 10 which require
paragraphs to be numbered. Failure to do so hinders the Court’s reference to Plaintiff’s arguments. Future noncompliant pleadings may be stricken.
Dkt. No. 1-7, at p. 73. Defendant was first added to this suit in Plaintiff’s third amended petition.
Dkt. No. 1-11 a p. 294.
Dkt. No. 1.
1 / 12
defamation claims are barred by the applicable statute of limitations.5 Plaintiff now requests
reconsideration of the Court’s opinion granting Defendant’s motion to dismiss.6
The Federal Rules of Civil Procedure do not explicitly recognize any motion for
reconsideration. Nevertheless, Rule 54(b) states, in pertinent part, that:
[A]ny order or other decisions, however designated, that adjudicates fewer than
all the claims or rights and liabilities of fewer than all the parties does not end the
action as to any of the claims or parties and may be revised at any time before the
entry of a judgment adjudicating all the claims and all the parties’ rights and
Reconsideration of an interlocutory decision is available “under the standard ‘as justice
requires.’”8 At least one district court in Texas has observed that this standard “is unclear,”9
though there is consensus that the ultimate determination “rests within the discretion of the
court,”10 and that a court should aim to determine “whether reconsideration is necessary under
the relevant circumstances.”11 Some courts apply Rule 59(e)’s legal standards to motions for
See Dkt. No. 24.
Dkt. No. 36.
Fed. R. Civ. P. 54(b).
Contango Operators, Inc. v. United States, 965 F. Supp. 2d 791, 800 (S.D. Tex. 2013), aff’d sub nom. Contango
Operators, Inc. v. Weeks Marine, Inc., 613 Fed. Appx. 281 (5th Cir. 2015).
Dos Santos, 651 F. Supp. 2d at 553.
Id.; Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 10 (1980) (“Plainly, sound judicial administration does
not require that 54(b) requests be granted routinely. That is implicit in commending them to the sound discretion of
a district court. Because this discretion ‘is, with good reason, vested by the rule primarily’ in the district courts . . .
and because the number of possible situations is large, we are reluctant either to fix or sanction narrow guidelines
for the district courts to follow.”); Texas E. Transmission Corp. v. McMoRan Offshore Expl. Co., 877 F.2d 1214,
1229 (5th Cir. 1989) (“The district court, therefore, acted within its sound discretion when it refused to reimburse
ODECO for its costs and attorney's fees pursuant to Rule 54(b).”); Livingston Downs Racing Ass'n v. Jefferson
Downs Corp., 259 F.Supp.2d 471, 475 (M.D.La. 2002).
Contango Operators, Inc., 965 F. Supp. 2d at 800, aff'd sub nom. Contango Operators, Inc. v. Weeks Marine,
Inc., 613 Fed. Appx. 281 (5th Cir. 2015) (emphasis added); Judicial Watch v. Dep't of Army, 466 F. Supp. 2d 112,
123 (D.D.C. 2006); King v. Bigler LP, CIV.A. H-10-0580, 2011 WL 6960746, at *2 (S.D. Tex. June 24, 2011);
Rana v. Spectra Energy Corp., CIV.A. H-10-0403, 2010 WL 3257523, at *2 (S.D. Tex. Aug. 17, 2010); Estate of
Henson v. Wichita County, 988 F. Supp. 2d 726, 729 (N.D. Tex. 2013), aff'd sub nom. Estate of Henson v. Wichita
County, Tex., 795 F.3d 456 (5th Cir. 2015); Hamilton v. First Am. Title Ins. Co., CIV.A.3:07-CV-1442-G, 2010 WL
791421, at *5 (N.D. Tex. Mar. 8, 2010); McClung v. Gautreaux, CIV.A. 11-263, 2011 WL 4062387, at *1 (M.D.
La. Sept. 13, 2011); Nierman v. Ohio Cas. Ins. Co., CIV.A. 10-0319, 2012 WL 1039683, at *3 (W.D. La. Mar. 28,
2012); Leong v. Cellco P'ship, CIV.A. 12-0711, 2013 WL 4009320, at *3 n.9 (W.D. La. July 31, 2013).
2 / 12
reconsideration of interlocutory orders.12 Under Rule 59, the following are grounds for granting a
motion for reconsideration: “(1) an intervening change in controlling law; (2) the availability of
new evidence not previously available; or (3) the need to correct a clear error of law or prevent
manifest injustice.”13 Further, “a motion to reconsider may not be used to relitigate old matters,
or to raise arguments or present evidence that could have been raised before the entry of the
judgment or order.”14
Plaintiff raises numerous arguments for why the Court should reconsider the opinion
granting Defendant’s motion to dismiss. However, Plaintiff does not contend that there has been
an intervening change in the law or present evidence not previously available. Plaintiff simply
disagrees with the Court’s prior ruling. The Court now addresses certain of these arguments.
Motion to dismiss was filed in state court
Plaintiff argues that Defendant’s motion to dismiss was wrongfully considered and
eventually granted because it was not filed nor urged in federal court. 15 Plaintiff further
contends that he was not afforded his due process right of having an opportunity to respond to
the motion.16 The Court has already fully addressed this issue in response to Plaintiff’s amended
motion to recuse Judge Alvarez.17 Plaintiff’s due process rights were not violated. The Local
Rules of the United States District Court for the Southern District of Texas (“LR”) provide
parties twenty-one (21) days to respond to a motion before that motion is considered
unopposed.18 Defendant filed her motion to dismiss in state court on June 24, 2016.19 While the
T-M Vacuum Products, Inc. v. TAISC, Inc., 2008 WL 2785636, at * 2 (S.D. Tex. July 16, 2008).
In re Benjamin Moore & Co., 318 F.3d 626, 629 (5th Cir. 2002).
T-M Vaccum, 2008 WL 2785636, at *2.
Dkt. No. 36, at p. 2–3.
Id. at p. 3.
Dkt. No. 31, at p. 5.
3 / 12
Court recognizes that LR 7.3–7.4 did not apply when the motion was first filed, Defendant
urged her dismissal motion in federal court with a motion to set a hearing in which Defendant
specifically urged her TCPA dismissal claim be heard.20 Plaintiff adamantly opposed the
hearing on technical grounds, but chose not to respond substantively. Plaintiff did not respond
to the motion to dismiss by the date of the Court’s opinion on November 1, 2016. Thus, Plaintiff
failed to respond to Defendant’s motion to dismiss for one-hundred and thirty days.
Additionally, the TCPA provides that at the hearing, the Court shall consider the pleadings and
affidavits.21 There is no provision for the taking of live testimony. Thus, Plaintiff had a tangible
opportunity to be heard on the dismissal motion.22 As a result, the Court will not grant
reconsideration simply because the motion to dismiss was originally filed in state court.
TCPA can be considered in federal court
Plaintiff contends that the TCPA is procedural and “must be ignored” by this Court.
Under Erie, federal courts apply state substantive law and federal procedure.23 Erie applies to
cases involving both diversity and supplemental jurisdiction.24 Plaintiff cites district courts in
other Circuits and the D.C. Circuit to support his argument that state anti-SLAPP statutes are
not considered by federal courts because of their procedural nature. 25 Plaintiff fails to
comprehend the nature of precedent. This Court is not bound by other district court rulings or
by the rulings of other Circuits. However, in the Fifth Circuit, state anti-SLAPP statutes have
Dkt. No. 1-11, at p. 294.
Dkt. No. 7.
TCPA § 27.006(c).
Dkt. No. 8.
Camacho v. Texas Workforce Com’n, 445 F.3d 407, 409 (5th Cir. 2006).
Sommers Drug Stores Co. Employee Profit Sharing Trust v. Corrigan, 883 F.2d 345, 353 (5th Cir. 1989); Bott v.
J.F. Shea Co., Inc., 388 F.3d 530 553 n.3 (5th Cir. 2004).
Dkt. No. 36, at p. 4.
4 / 12
been entertained in federal court on the ground that they constitute substantive law.26 Indeed, in
a case involving the TCPA, the Fifth Circuit explained that “we first review the TCPA
framework, which we assume—without deciding—controls as state substantive law in these
diversity suits.”27 In a separate section of the reconsideration motion, Plaintiff acknowledges
that “the Fifth Circuit found a materially similar Louisiana anti-SLAPP statute applied in
federal court under the Erie doctrine[.]”28 Since the Fifth Circuit has previously ruled on state
anti-SLAPP statutes, and Plaintiff has not identified any contrary precedent in this Circuit, this
Court has determined that the TCPA should apply in this case. Plaintiff may certainly make his
argument to the Fifth Circuit so that it may establish precedent, by which this Court would then
TCPA does not conflict with the Federal Rules
Plaintiff alternatively argues that even if the Court finds that the TCPA is substantive,
application of the state statute is nevertheless precluded under Erie.29 Where there is an alleged
conflict between state law and the Federal Rules of Civil Procedure, there is an additional step
in the Erie analysis.30 “The initial step is to determine whether, when fairly construed, the scope
of [the Federal Rule] is sufficiently broad to cause a direct collision with state law or, implicitly
to control the issue before the court, thereby leaving no room for the operation of that law.”31
Essentially, if the state law conflicts with federal procedural rules, then the Court must apply the
Federal Rule.32 If there is no conflict, the Court must determine whether application of the state
See Cuba v. Pylant, 814 F.3d 701, 711 (5th Cir. 2016); see also Henry v. Lake Charles Am. Press, L.L.C., 566
F.3d 164, 169 (5th Cir. 2009).
Cuba, 814 F.3d at 706.
Dkt. No. 36, at p. 6.
Id. at pp. 4–6.
Hanna v. Plumer, 380 U.S. 460, 469–70 (1965).
Burlington N. R. Co. v. Woods, 480 U.S. 1, 4–5 (1987) (internal quotations and citations omitted).
All Plaintiffs v. All Defendants, 645 F.3d 329, 333 (5th Cir. 2011).
5 / 12
law serves the twin aims of Erie, which are “discouragement of forum-shopping and avoidance
of inequitable administration of the laws.”33
As an initial matter, the Court finds that Plaintiff has not demonstrated any of the
established grounds for this Court to grant reconsideration on its application of the TCPA. In
fact, Plaintiff does not even argue the need to correct a clear error of law or prevent injustice. As
to his argument that a conflict exists, Plaintiff merely recites what is required for a plaintiff to
survive a TCPA motion to dismiss, and compares that to the standards for Federal Rules 12 and
56.34 Plaintiff does not provide any cases from this Circuit where federal courts found that the
Federal Rules are in conflict with the state anti-SLAPP statutes. Defendant does cite to other
Circuits which have found no conflict.35 The Court’s independent research reveals other cases
where courts found the Federal Rules in conflict with state anti-SLAPP statutes.36 Obviously,
there is currently a split of authority. This Court agrees with the reasoning of the First Circuit
that Federal Rules 12 and 56 are addressed to different matters, whereas the TCAP “provides a
mechanism for a defendant to move to dismiss a claim on an entirely different basis: that the
claims in question rest on the defendant’s protected petitioning conduct and that the plaintiff
cannot meet the special rules [Texas] has created to protect such petitioning activity against
lawsuits.”37 For this reason and because this argument that the Federal Rules should have
applied instead of the TCPA for the motion to dismiss is being raised for the first time,
Hanna, 380 U.S. at 468.
Dkt. No. 36, at p. 4–6.
Dkt. No. 41, at pp. 11–12.
See Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328 (D.C. Cir. 2015). Plaintiff does cite this case in arguing
that the TCAP as a whole is procedural, but this argument is distinct from arguing that a conflict exists with the
Godin v. Schencks, 629 F.3d 79, 89 (1st Cir. 2010); see also U.S. ex rel. Newsham v. Lockheed Missiles & Space
Co., Inc., 190 F.3d 963 (9th Cir. 1999).
6 / 12
reconsideration is denied. As this Court has made clear, a motion to reconsider may not be used
to raise new arguments that could have been raised before the motion to dismiss ruling.38
TCPA motion hearing deadlines are not applicable
Reconsideration is further requested because the Court did not “follow the accelerated
TCPA motion-hearing deadlines.”39 Plaintiff argues that if the Court finds the TCPA is
substantive, then it should not “split the baby and treat the TCPA as part procedural and part
substantive applying only the provisions it deemed substantive.”40 Plaintiff then contends that
because the “motion-hearing deadlines were not satisfied, the [m]otion to [d]ismiss should have
been denied”41 but cites no statutory support for this proposition. Indeed, there is none.
The TCPA does provide for denial by operation of law if no ruling is made within 30
days of the hearing on the motion.42 As noted by the Fifth Circuit in Cuba, the failure to
schedule a hearing simply means that the time for denial by operation of law has not run. 43
Thus, the failure to meet the motion-hearing deadline is not a basis for dismissal of the motion.
Furthermore, the Fifth Circuit has yet to rule on the applicability of the procedural
aspects of the TCPA. In 2016, the Fifth Circuit contemplated whether state procedural rules
accompanying anti-SLAPP motions to dismiss apply in Federal Court where the statute applies
as substantive under Erie.44 The Fifth Circuit, however, did not decide whether such procedural
rules apply in federal court. Rather, the Fifth Circuit explained that “we assume, without
deciding, that the state procedural rules . . . do in fact apply in federal court.”45 Nonetheless,
T-M Vacuum Products, Inc. v. TAISC, Inc., 2008 WL 2785636, at * 2 (S.D. Tex. July 16, 2008).
Dkt. No. 36, at p. 6.
Id. at p. 7.
Tex. Civ. Prac. & Rem. Code § 27.005.
Cuba v. Pylant, 814 F.3d 701, 710 (5th Cir. 2016).
Id. at 706 n.6.
Id. (emphasis added).
7 / 12
since there is no binding precedent requiring application of state anti-SLAPP procedural rules,
there is no basis for granting reconsideration here either.
Motion to dismiss complies with Local Rule 7
In his final Erie argument, Plaintiff asserts that the Court should not have ruled on
Defendant’s motion to dismiss because it does not comply with LR 7.46 Specifically, Plaintiff
explains that the motion to dismiss “does not contain an averment that the movant has conferred
with the respondent and counsel cannot agree about the disposition of the motion.”47 LR 7.1(D)
provides that opposed motions, “[e]xcept for motions under Federal Rules of Civil Procedure
12(b), (c), (e), or (f) and 56, [shall] contain an averment that (1) [t]he movant has conferred with
the respondent and (2) [c]ounsel cannot agree about the disposition of the motion.”48 The
motion to dismiss was not subject to the requirements of LR 7 because it was filed in state
court. As a result, non-compliance with LR 7 is not a basis for granting the reconsideration
motion. Furthermore, LR 7’s purpose is to encourage attorneys to cooperate to resolve disputes
without court intervention. Thus, it excludes Federal Rule 12 dismissal motions and motions for
summary judgment. A TCPA dismissal motion is not likely to be resolved by agreement. The
Court therefore finds that requiring compliance with LR 7 would be futile.
Motion to dismiss defamation claim
In granting Defendant’s motion to dismiss, the Court found that Defendant “proved by a
preponderance of the evidence that both her written complaint to UTPA and her [T]ribunal
testimony to UTPA’s disciplinary body were exercises of her right to petition, and thus
protected actions under the TCPA.”49 Plaintiff now argues that “[Defendant]’s statements were
Dkt. No. 36, at pp. 8–9.
Id. at p. 9.
Dkt. No. 24, at pp. 9–10.
8 / 12
not made in connection with a matter of public concern and the Court was correct to ignore
“[Defendant]’s contention to the contrary.”50 Whether Defendant’s speech involved a matter of
public concern is not a basis for reconsideration because the Court found that Defendant’s
statements were protected as an exercise of her right to petition, not free speech.
Plaintiff further contends that the right to petition was not implicated by Defendant’s
statements.51 In doing so, Plaintiff raises numerous arguments. First, Plaintiff argues that
[Defendant]’s complaint was not ‘reasonably likely’ to encourage consideration or review of an
issue in an official proceeding” because only two Tribunals have been empaneled at UTPA in
forty years.52 However, a written complaint containing serious allegations of gender and sexual
harassment against a professor is reasonably likely to encourage consideration or review in an
official proceeding because such claims could undoubtedly subject a professor to termination,
and UT System Regents Rule 31008 empowers UTPA’s disciplinary body to hear complaints
that may result in termination. Second, Plaintiff contends that the “managing board” of UTPA is
the UT System Board of Regents, not the Tribunal. “The [T]ribunal is not a board and is not
empowered to manage the institution.”53 However, Plaintiff completely ignores both the
language of the TCPA itself and this Court’s earlier opinion which make it clear that the
communication need not be directly to the final “managing board.”
Third, Plaintiff argues that he “is not complaining about either the written complaint or
the testimony at the [T]ribunal. Plaintiff is complaining about the republication of the written
complaint and [Tribunal] testimony” to the Board of Regents during a board meeting, not a
Dkt. No. 36, at p. 10. The Court notes that it did not “ignore” Defendant’s contention, but chose to dispose of
Plaintiff’s claim on other grounds.
Id. at pp. 13–15.
Id. at p. 14.
9 / 12
proceeding.54 However, Plaintiff then asserts that Defendant never made a statement to the
Board of Regents: “Defendant’s ‘testimony’ was not in or pertaining to a proceeding before a
subdivision of the state as suggested by the Court in its Opinion. Defendant provided a
statement before a hearing Tribunal, not before a subdivision of the state.”55 Plaintiff
apparently forgot that just three paragraphs before, he made clear that “Plaintiff is not
complaining about either the written complaint or the testimony at the [T]ribunal.”56 Plaintiff
also forgot that he admits that the “managing board” of UTPA is the  Board of Regents.”
Plaintiff would do well to ensure that his arguments are internally consistent. Whatever
inconsistent position Plaintiff may take, it is clear that the Board of Regents’ consideration of
the President’s recommendation to terminate Plaintiff encompassed Defendant’s right to
petition in an official proceeding.
Lastly, it is an improper characterization to say that Defendant’s statements constitute a
republication because the hearing before the Board of Regents was merely a continuation of the
Tribunal proceedings involving Plaintiff’s alleged misconduct. UT System Board of Regents
Rule 31008 makes it clear that the President cannot terminate a tenured professor, but rather the
President can make that recommendation to the Board of Regents who then makes the decision.
Thus, Defendant’s Tribunal testimony was not “republished,” as it was all part of the same
proceeding. The TCPA makes it clear that a communication in connection with an issue under
review in an official proceeding is also protected.57
Id. (emphasis added).
Id. at p. 14.
TCPA § 27.001(4)(B).
10 / 12
Plaintiff’s last argument to support reconsideration goes to the merits of his claim. The
Court addresses only Plaintiff’s contention that the defamation claim is not barred by the
applicable statute of limitations. As more fully detailed in this Court’s opinion granting the
motion to dismiss, the statute of limitations bars Plaintiff’s defamation claims concerning
Defendant’s written complaint and Tribunal testimony.58 Here again, Plaintiff argues that he “is
not complaining about [Defendant]’s complaint nor the statements [Defendant] made to the
[T]ribunal, but rather, the republication of those statements to the Board of Regents.”59 To
support this argument, Plaintiff cites to two cases.60 Each is easily distinguished. In Carr v.
Mobile Video Tapes, Inc., the Corpus Christi Court of Appeals found the statute of limitations
was not implicated when suit was filed within one year of the Defendant’s own rebroadcast of
an allegedly defamatory statement.61 In Stephan v. Baylor Medical Center at Garland, the
Dallas Court of Appeals found a defamation claim was timely when brought within a year of the
republication to third parties.62 Here, as previously noted, the Board of Regents’ consideration
of the President’s recommendation was merely a continuation of the original proceeding.
Hence, there was no republication to third parties.
Although the Court finds that the statute of limitations precludes Plaintiff’s defamation
claims, it addresses one additional argument concerning privilege. Here, again, Plaintiff alleges
the Court “ignored” Defendant’s contentions. The Court therefore chooses not to “ignore”
Defendant’s disingenuous argument that Defendant’s statements were not privileged. Plaintiff
does this by arguing that Defendant’s statements to the Tribunal were not to a quasi-judicial
Dkt. No. 24, at pp. 10–12.
Dkt. No. 36, at p. 18.
Id. at 18.
893 S.W.2d 613, 619 (Tex. App—Corpus Christi 1994) (Abrogated on separate grounds).
20 S.W.3d 880, 889–90 (Tex. App—Dallas 2000).
11 / 12
body after just having argued that “Plaintiff is not complaining about either the written
complaint or the testimony at the [T]ribunal.” Since those statements are clearly time-barred, in
the words of Hillary Clinton, “what difference does it make” whether the Tribunal is or is not a
For all the foregoing reasons, the Court DENIES the motion for reconsideration.
IT IS SO ORDERED.
DONE at McAllen, Texas, this 4th day of April, 2017.
United States District Judge
12 / 12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?