Henderson v. Republic of Texas Biker Rally, Inc. et al

Filing 42

ORDER DISMISSING CASE. GRANTS Defendants Republic of Texas Biker Rally, Inc., Travis County, Travis County Judge Sarah Eckhardt and Travis County Sheriff Greg Hamiltons 29 Joint Motion to Dismiss. Plaintiffs claims against those defendants are hereby dismissed with prejudice. ORDERED that remaining claims in this cause are REMANDED to the 126th Judicial District Court of Travis County, Texas.. Signed by Judge Robert Pitman. (os)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
MICHELLE HENDERSON,
Plaintiff,
V.
REPUBLIC OF TEXAS BIKER RALLY,
INC., ET AL.,,
Defendants.

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1-15-CV-392 RP

ORDER
Before the Court are Defendants Republic of Texas Biker Rally, Inc., Travis County, Travis
County Judge Sarah Eckhardt and Travis County Sheriff Greg Hamilton’s Joint Motion to Dismiss,
filed August 17, 2015 (Clerk’s Dkt. #29) and the responsive pleadings thereto. After reviewing the
pleadings, relevant case law, as well as the entire case file, the Court issues the following order.
I. BACKGROUND
Plaintiff Michelle Henderson (“Henderson”) originally filed this action in the 126th Judicial
District Court of Travis County, Texas on July 30, 2014. In April 2015 she filed an amended petition
naming as defendants the Republic of Texas Biker Rally, Inc. (“ROT”), Jeffrey Kenneth Green
(“Green”), Dan Milton Davison (“Davison”), Travis County, Travis County Judge Sarah Eckhardt
(“Eckhardt”) and Travis County Sheriff Greg Hamilton (“Hamilton”). The action was removed to this
court on May 12, 2015.
This action arises from an event held annually at the Travis County Exposition Center
known as the ROT Rally. By way of her complaint filed after removal of this action, Henderson
states she attended the ROT Rally on June 13, 2013. She states while seated in a chair at an
official campsite, she was struck by a golf cart and injured. According to Henderson, the golf cart
was owned by Davison, who drove it to a mobile bar and left to get a drink, leaving Green in the

passenger seat.
A crowd which was gathered at the bar to view entertainment being provided at the mobile
stripper pole began demanding the golf cart be moved to alleviate congestion. Henderson alleges
Green, without moving from the passenger seat, pressed the gas pedal of the golf cart. She further
alleges Green lost control of the golf cart, hit another cart, and then hit Henderson, pinning her to
the ground. According to Henderson, witnesses reported Green smelt strongly of alcohol. (Plf. 3rd
Am. Compl. ¶¶ 22-30).
Plaintiff asserts a cause of action for negligence against Green and Davison, as well as
against ROT. (Id. ¶¶ 75-83; 91-99). Plaintiff further asserts a cause of action for negligent
entrustment against Davison. (Id. ¶¶ 84-90). Plaintiff additionally asserts a cause of action under
42 U.S.C. § 1983 (“Section 1983") against Travis County, Eckhardt and Hamilton. (Id. ¶¶ 100-12).
Plaintiff also asserts a cause of action for negligence against Travis County under the Texas Tort
Claims Act. (Id. ¶¶ 113-23).
ROT, Travis County, Eckhardt and Hamilton (collectively “Moving Defendants”) have now
moved to dismiss Plaintiff’s claims against them on a number of bases. Specifically, they contend:
(1) Plaintiff’s claims against them are barred by the statute of limitations; (2) Plaintiff’s claims
should be dismissed for failure to timely effectuate service; (3) Plaintiff has failed to state a claim
for relief under Section 1983; (4) Eckhardt and Hamilton are protected by qualified immunity; (5)
Travis County and ROT are protected by sovereign immunity; (6) ROT is protected from Plaintiff’s
claims under the Texas recreational use statute; and (7) Plaintiff’s negligence claims fail because
no duty was owed to her. The parties have filed responsive pleadings and the motion is ripe for
review.
II. SERVICE ISSUES
In two related arguments, Moving Defendants argue Plaintiff has not complied with her

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obligation to timely serve them prior to the expiration of the statute of limitations. They contend her
claims against them should be dismissed under Rule 12(b)(4), 12(b)(5) and 12(b)(6).
A.

Applicable Law
A court may dismiss a case both for “insufficiency of process” and for “insufficiency of

service of process.” FED. R. CIV. P. 12(b)(4) & (5). When service is challenged, the party
responsible for service bears the burden of establishing its efficacy. Sys. Signs Supplies v. United
States Dep't of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990). Dismissal of a claim under Rule
12(b)(6) as barred under the applicable statute of limitations is proper where it is evident from the
plaintiff's pleadings that the action is barred and the pleadings fail to raise some basis for tolling.
See Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003) (dismissing where amended complaint
failed to allege or even remotely suggest plaintiffs were not aware of discrimination during their
employment). See also Kansa Reinsurance v. Cong. Mortg. Corp., 20 F.3d 1362, 1366-70 (5th Cir.
1994) (dismissing claim as time barred where claim was clearly filed after applicable limitations
statute had run and it was evident from pleadings that plaintiff was not entitled to benefit of
discovery rule).
B.

Discussion
Claims for negligence are governed by a two year statute of limitations. See TEX. CIV.

PRAC. & REM. CODE ANN. § 16.003 (establishing two year limitations period for tort claims); TIG Ins.
Co. v. Aon Re, Inc., 521 F.3d 351, 354-55 (5th Cir. 2008) (negligence claims must be brought not
later than two years after cause of action accrues); OneBeacon Ins. Co. v. Don's Building Supply,
Inc., 496 F.3d 361, 363 n.5 (5th Cir. 2007) (two-year limitations period applies to claims for
negligence). Section 1983 has no statute of limitations period, thus federal courts apply the state
prescription statute governing the most analogous cause of action. Braden v. Texas A & M Univ.
Sys., 636 F.2d 90, 92 (5th Cir. 1981). In Texas, a two-year statute of limitations applies to

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constitutional injury claims. Hitt v. Connell, 301 F.3d 240, 246 (5th Cir. 2002); Piotrowski v. City
of Houston, 237 F.3d 567, 576 (5th Cir. 2001).
As to Plaintiff’s state law negligence claims, the Texas Supreme Court “long ago
established the rule that the mere filing of a suit will not interrupt or toll the running of a statute of
limitation; that to interrupt the statute, the use of diligence in procuring the issuance and service
of citation is required.” Rigo Mfg. Co. v. Thomas, 458 S.W.2d 180, 182 (Tex. 1970). See Proulx
v. Wells, 235 S.W.3d 213, 215 (Tex. 2007) (“a timely filed suit will not interrupt the running of
limitations unless the plaintiff exercises due diligence in the issuance and service of citation”); Gant
v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990) (to “bring suit” within limitations period, plaintiff must
not only file timely, but must also use diligence to have the defendant served with process). When
a plaintiff files a petition within the limitations period, but does not serve the defendant until after
the statutory period has expired, the date of service relates back to the date of filing if the plaintiff
exercised diligence in effecting service. Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 890 (Tex.
1975).
In this case, Plaintiff’s cause of action accrued on June 13, 2013. There is no dispute that
Plaintiff filed suit within the two year limitations period. The relevant questions are whether Plaintiff
properly served Moving Defendants prior to the expiration of the limitations period and, if she did
so thereafter, whether she exercised due diligence.
1. Service on ROT
As to ROT, Plaintiff contends she attempted to seek a waiver of service by request mailed
to counsel for ROT on June 11, 2015. (Plf. Resp. ¶ 25 & Ex. 5). Plaintiff also attempted to serve
ROT by serving its registered agent on June 12. (Id. & Ex. 6). According to Plaintiff, she finally
served ROT’s registered agent on June 15. (Id. ¶ 10 & Ex. 6). While Plaintiff concedes services
was not within the required two year period, she suggests her actions meet the due diligence

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standard and thus service should be considered timely.
ROT, however, maintains the evidence submitted by Plaintiff fails to establish she has
actually effected proper service upon it. Under Rule 4 of the Federal Rules of Civil Procedure, a
corporation must be served either:
(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or
(B) by delivering a copy of the summons and of the complaint to an officer, a
managing or general agent, or any other agent authorized by appointment or by law
to receive service of process and—if the agent is one authorized by statute and the
statute so requires—by also mailing a copy of each to the defendant.
FED. R. CIV. P. 4(h)(1). Under Rule 4(e)(1), service may be effected by “following state law for
serving a summons in an action brought in courts of general jurisdiction in the state where the
district court is located or where service is made.” FED. R. CIV. P. 4(e)(1). Texas law authorizes
service on a corporation through the corporation's registered agent, president, or vice president.
TEX. BUS. ORGS. CODE ANN. §§ 5.201(b)(1) & 5.255(1). Service on a corporation’s registered agent
is properly accomplished at the registered agent's registered office or through the Secretary of
State. Id. §§ 5.201(b), (c) & § 5.251.
Here, the evidence provided by Plaintiff shows the summons were issued to Lynn Castagna,
who Plaintiff states she believed was representing ROT. (Plf. Resp. ¶ 3 n.3 & Ex. 5). Ms.
Castagna is not ROT's registered agent, president, or vice president under Texas law, nor is she
“an officer, a managing or general agent, or any other agent authorized by appointment or by law
to receive service of process” on behalf of ROT under Rule 4(h)(1)(B). Plaintiff has thus failed to
properly serve ROT under Rule 4. See Lawson v. GEICO, 2015 WL 6161247, at *2 (W.D. Tex.
Oct. 19, 2015) (service insufficient where summons issued to outside counsel rather than
corporate defendant's registered agent or other individual with authority to accept service); Chhim
v. Huntleigh USA Corp., 2014 WL 801023, at *2–3 (S.D. Tex. Feb. 28, 2014) (service insufficient
where plaintiff mailed copy of complaint to outside counsel). Moreover, the evidence establishes
ROT’s registered agent was not served at the agent’s registered office as required by Texas law.
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(Plf. Resp. ¶ 10 & Ex. 6). Accordingly, Plaintiff’s negligence claim against ROT is properly
dismissed as barred by the two year statute of limitations.
2. Service on Travis County
Travis County also maintains Plaintiff has not properly effectuated service upon it in a timely
manner. Service upon a local government “shall be effected by delivering a copy of the summons
and of the complaint to its chief executive officer or by serving the summons and complaint in the
manner prescribed by the law of that state for the service of summons.” FED. R. CIV. P. 4(j)(1).
Texas law directs service of process as to a county is accomplished by service “on the county
judge.” TEX. CIV. PRAC. & REM. CODE ANN. § 17.024(a).
Plaintiff named Travis County as a defendant in this action by way of an amended petition
filed in state court on April 15, 2015. (Plf. Resp. ¶ 4 & Ex. 1). She asserts she served the Travis
County Attorney with the petition on that same date. (Id.). Further, according to Plaintiff, she
served summons and a request for waiver of service on Travis County by certified mail sent to
Eckhardt as Travis County Judge on June 11, 2015. (Id. ¶ 7 & Ex.2).1
As Moving Defendants point out, the request for waiver was not received by Eckhardt until
June 18, 2015. (Def. Reply Ex. A). As with ROT, this does not constitute timely service within the
two year statute of limitations as to Plaintiff’s negligence claim against Travis County. Nor has
Plaintiff provided any explanation for her delay in attempting to serve Travis County.

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negligence claim against Travis County is, therefore, properly dismissed as time barred.
Moving Defendants argue the delay in service of process is also fatal to Plaintiff’s Section
1983 claim against Travis County. However, the Texas due diligence rule does not apply to

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The Court notes this action was removed to federal court by Travis County. However, as Travis County points
out, Texas courts have concluded the filing of a notice of removal does not constitute a general appearance. See
Bramblett v. El Paso Cnty., 2011 WL 11741275, at *2 (W.D. Tex. June 13, 2011); Antonio v. Marino, 910 S.W.2d 624,
629 (Tex. App.–Houston [14th Dist.] 1995, no writ). See also Morris & Co. v. Skandinavia Ins. Co., 279 U.S. 405, 409
(1929) ( “Petitioner suggests that, by removal of the case to the federal court, objection to jurisdiction over the person
of respondent was waived. Our decisions are to the contrary.”).

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Section 1983 claims filed in federal court. See Gonzales v. Wyatt, 157 F.3d 1016, 1021 n.1 (5th
Cir.1998) (concluding Texas due diligence rule for service of process does not apply to section
1983 actions in Texas federal court). See also Jackson v. Duke, 259 F.2d 3, 6 (5th Cir. 1958) (“In
an action under the civil rights statute, while state law controls as to the time within which an action
must be begun, the manner in which it is commenced and when it is deemed to have begun, being
procedural and not substantive, is covered by the Federal Rules of Civil Procedure”).
Under the Federal Rules of Civil Procedure, a plaintiff is afforded 120 days after the
complaint is filed to effectuate service. FED. R. CIV. P. 4(m). The court may extend that time
further on a showing of good cause. In this case, Plaintiff asserted her Section 1983 claim against
Travis County on April 15, 2015 and her request for waiver of service was received sixty four days
later on June 18, 2015. Rule 4 favors waiver of service, as evidenced by the rule’s requirement
that a court impose on a defendant “who fails, without good cause, to sign and return a waiver
requested by a plaintiff” the “expenses later incurred in making service.” FED. R. CIV. P. 4(d)(2).
Accordingly, the Court declines to find that Plaintiff’s Section 1983 claim against Travis County
should be dismissed as time barred.
3. Service on Eckhardt
Moving Defendants also argue Plaintiff’s Section 1983 claim against Eckhardt is time barred
because Plaintiff failed to timely serve Eckhardt prior to the expiration of the two year statute of
limitations.2 This argument fails for the same reasons it fails as to Travis County.
4. Service on Hamilton
Finally, Moving Defendants maintain Plaintiff has not properly served Hamilton in this action.
They correctly point out that the evidence attached to Plaintiff’s response to their motion to dismiss
reflects that Hamilton was served with a copy of summons issued not to him, but to ROT. (Plf.

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As set forth above, Plaintiff has asserted only a Section 1983 against both Eckhardt and Hamilton.

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Resp. Ex. 6 at 2). This does not qualify as proper service. See FED. R. CIV. P. 4(e) (service on
individual defendant may be effected by delivering copy of summons and complaint to agent
authorized to receive service of process). However, as noted above, Rule 4 also permits a court
to extend the time for service. Plaintiff requests, and the Court finds reasonable, permission to
properly effectuate service on Hamilton. Accordingly, dismissal of Plaintiff’s Section 1983 claim
against Hamilton on the basis of insufficient service is not warranted.
III. SECTION 1983 CLAIMS
Moving Defendants also argue that Plaintiff’s Section 1983 claim fails to state an actionable
claim for relief and thus should be dismissed.
A.

Standard of Review
When evaluating a motion to dismiss for failure to state a claim under Rule 12(b)(6) the

complaint must be liberally construed in favor of the plaintiff and all facts pleaded therein must be
taken as true. Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S.
163, 164 (1993); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). Although Federal Rule of Civil
Procedure 8 mandates only that a pleading contain a “short and plain statement of the claim
showing that the pleader is entitled to relief,” this standard demands more than unadorned
accusations, “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,”
or “naked assertion[s]” devoid of “further factual enhancement.” Bell Atl. v. Twombly, 550 U.S. 544,
555 (2007). Rather, a complaint must contain sufficient factual matter, accepted as true, to “state
a claim to relief that is plausible on its face.” Id. at 570. The court must initially identify pleadings
that are no more than legal conclusions not entitled to the assumption of truth, then assume the
veracity of well-pleaded factual allegations and determine whether those allegations plausibly give
rise to an entitlement to relief. If not, “the complaint has alleged–but it has not ‘show[n]’–‘that the
pleader is entitled to relief.’” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (quoting FED. R. CIV. P.

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8(a)(2)).
B.

Discussion
As an initial matter, Hamilton and Eckhard argue Plaintiff’s Section 1983 claim against them

in their official capacity should be dismissed as duplicative. An action against a government official
in his official, rather than individual, capacity is tantamount to a suit against the government itself.
Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2312 (1989); McCarthy v.
Hawkins, 381 F.3d 407, 414 (5th Cir. 2004). See also Victoria W. v. Larpenter, 369 F.3d 475, 481
(5th Cir. 2004) (governmental entity is only true defendant remaining where government officials
were named only in their official capacities). Plaintiff’s claim against Hamilton and Eckhardt in their
official capacities as officers of Travis County is thus tantamount to a suit against the county itself.
As Plaintiff has named Travis County as a defendant, her claim against Hamilton and Eckhardt in
their official capacities is duplicative and properly dismissed.
Moving Defendants further argue Plaintiff has failed to allege facts sufficient to state a
Section 1983 claim against them. To state a claim of a civil rights violation, a plaintiff must allege
a violation of the Constitution or of a federally granted right, and that the violation was committed
by someone acting under color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250,
2254-55 (1988); Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 252-53 (5th Cir. 2005). A
governmental entity is liable under Section 1983 only if its official policy or custom causes a person
to be deprived of a federally protected right. Board of County Comm'rs v. Brown, 520 U.S. 397,
403 (1997); Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). In addition,
generally, liability under Section 1983 is limited to individuals who were personally involved in
violating the constitutional rights of the plaintiff, not supervisory officials on any theory of vicarious
or respondeat superior liability. Estate of Davis v. City of North Richland Hills, 406 F.3d 375, 381
(5th Cir. 2005) (listing cases).

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Plaintiff does not disagree that liability under Section 1983 generally depends on an official
policy or personal involvement. She does not assert the existence of either in this case. Rather,
Plaintiff relies on an exception to those doctrines known as the “state-created danger” theory of
liability.
The state-created danger theory of liability requires a plaintiff to show a state actor used
his authority to create a dangerous environment for the plaintiff and that he acted with deliberate
indifference in so doing. Scanlan v. Texas A&M Univ., 343 F.3d 533, 537-38 (5th Cir. 2003).
Plaintiff maintains the facts of this case fit the requirements of the theory and thus she has stated
an actionable claim under Section 1983. Fatal to Plaintiff’s argument, however, is the fact that the
Fifth Circuit has repeatedly refused to adopt the state-created danger theory of liability. See Van
Deelen v. Cain, __ F. App’x __, 2015 WL 6444822, at *4 n.4 (5th Cir. Oct. 22, 2015) (“we can and
do rely upon the point that we have never recognized the viability of the ‘state-created danger’
theory”); Chavis v. Borden, __ F. App’s __, 2015 WL 4620322, at *3 (5th Cir. Aug. 4, 2015) (“Unlike
our sister Circuits, we have repeatedly declined to decide whether such a cause of action is viable
in the Fifth Circuit”); G.M. ex rel. Lopez v. Shelton, 595 F. App'x 262, 266 (5th Cir. 2014) cert.
denied sub nom. G.M. ex rel. Lopez v. Aledo Indep. Sch. Dist., 135 S. Ct. 2830 (2015) (noting
Plaintiff’s claim “was made under the ‘state-created danger’ theory, a basis for constitutional
protection that the Fifth Circuit has repeatedly declined to adopt”); Estate of Lance v. Lewisville
Indep. Sch. Dist., 743 F.3d 982, 1002 (5th Cir. 2014) (in light of prior en banc “express decision not
to recognize the state-created danger theory our court has repeatedly noted its unavailability”);
Whitley v. Hanna, 726 F.3d 631, 639 n.5 (5th Cir. 2013) (“[T]his court has not adopted the
state-created danger theory”); Doe ex rel Magee v. Covington Cnty. Sch. Dist., 675 F.3d 849, 864
(5th Cir. 2012) (“Unlike many of our sister circuits, we have never explicitly adopted the state
created danger theory”); Rios City of Del Rio, 444 F,3d 417, 422-23 (5th Cir, 2006) (nowhere in
prior opinion did court expressly adopt or approve state-created danger theory); Rivera v. Houston
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Indep. Sch. Dist., 349 F,3d 244, 249 n.5 (5th Cir. 2003) (disagreeing with plaintiff that prior case
law recognized state-created danger theory).
Even if this Court assumed the state-created danger theory was a viable basis for liability,
Plaintiff has failed to meet the necessary elements to support her claim. The Fifth Circuit has
described the theory as requiring a plaintiff to show “(1) that the environment created by the state
actor is dangerous, (2) the state actor must know it is dangerous (deliberate indifference), and (3)
the state actor must have used its authority to create an opportunity that would not otherwise have
existed for the third party's crime to occur.” Estate of C.A. v. Castro, 547 F. App'x 621, 627 (5th
Cir. 2013), cert. denied, 134 S. Ct. 1893 (2014) (citing Dixon v. Alcorn Cnty. Sch. Dist., 499 F.
App’x 364, 366-67 (5th Cir. 2012)).
Critically, in addition, the “state-created danger theory is inapposite without a known victim.”
Dixon, 499 F. App’x at 367 (quoting Covington, 675 F.3d at 865). In this case Plaintiff has not
alleged any facts which suggest Travis County, Eckhardt or Hamilton intended for any harm to
befall her. Rather, in her complaint she alleges those three defendants were aware of the risk of
danger to attendees at the ROT Rally. More specifically, Plaintiff cites examples of injuries and
accidents during the ROT Rallies held in the years prior to 2013. She does not, however, identify
a single example of an injury caused by the use of a golf cart. (Plf. 3rd Am. Compl. ¶ 50). The
Fifth Circuit has repeatedly explained that a general awareness of risk on the part of officials falls
short of satisfying the known victim requirement of the state-created danger theory of liability. See
Castro, 547 F. App'x at 627 (evidence at best showed science experiment performed in school pool
created general risk for students who could not swim or could not swim well, rather than that
experiment's dangers were unique to plaintiff); Dixon, 499 F. App’x at 368 (“the state-created
danger theory requires a known victim, and the fact that a school's policy or procedure presents
a risk of harm to students in general is inadequate to satisfy this requirement”); Covington, 675
F.3d at 866 (“At most, the Does allege that the school was aware of some general deficiencies in
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the check-out policy. They do not allege that the school knew about an immediate danger to Jane's
safety, nor can the court infer such knowledge from the pleadings. Without such allegations, even
if we were to embrace the state-created danger theory, the claim would necessarily fail.”); Saenz
v. Heldenfels Bros., Inc., 183 F.3d 389, 391-92 (5th Cir.1999) (holding state-created danger theory
inapplicable where police officers allowed drunk truck driver to continue driving and eventually
injure someone in collision because officer “was neither aware of an immediate danger facing a
known victim, nor did he use his authority to prevent [plaintiffs] from receiving aid”). Thus, even
assuming the viability of the state-created danger theory of liability, Plaintiff has failed to allege
facts sufficient to state a Section 1983 claim against Travis County, Eckhardt and Hamilton.
Accordingly, her Section 1983 claim is properly dismissed.
IV. REMAINING ISSUES
Moving Defendants also argue Eckhard and Hamilton are entitled to qualified immunity as
to Plaintiff’s Section 1983 claim against them, that Travis County and ROT are entitled to sovereign
immunity as to Plaintiff’s negligence claims, her negligence claims are barred by Texas’
recreational use statute, and Plaintiff’s negligence claims fail because Moving Defendants owed
her no duty and any causal connection was broken by the intervening criminal conduct of Green.
As the Court has concluded Plaintiff’s negligence and Section 1983 claims against Moving
Defendants fail for other reasons, these arguments need not be addressed.
As a final matter, the Court will sua sponte raise the issue of jurisdiction as to the remaining
claims in this lawsuit. Namely, Plaintiff’s negligence and negligent entrustment claims against
Green and Davison. This action was removed based on Plaintiff’s assertion of a cause of action
under Section 1983 against Travis County, Eckhardt and Hamilton. Plaintiff’s pleadings make clear
both Green and Davison are Texas residents and she has not asserted any federal claims against
them.

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As the Supreme Court has stated, "[c]ertainly, if the federal claims are dismissed before
trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed
as well." United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966). See also Moore v. Willis
Indep. Sch. Dist., 233 F.3d 871, 876 (5th Cir. 2000) (declining to exercise jurisdiction over
supplemental state law claims following dismissal of all federal claims involved in case); Robertson
v. Neuromedical Ctr., 161 F.3d 292, 296 (5th Cir. 1998) (upholding dismissal of plaintiff’s state law
claims following grant of summary judgment on federal claims). In light of the dismissal of all of
Plaintiff’s federal claims, this Court declines to exercise supplemental jurisdiction over Plaintiff’s
remaining state law claims. Accordingly, the state law claims against Defendants Jeffrey Kenneth
Green and Dan Milton Davison should be remanded to Texas state court.
V. CONCLUSION
Accordingly, the Court hereby GRANTS Defendants Republic of Texas Biker Rally, Inc.,
Travis County, Travis County Judge Sarah Eckhardt and Travis County Sheriff Greg Hamilton’s
Joint Motion to Dismiss (Clerk’s Dkt. #29). Plaintiff’s claims against those defendants are hereby
dismissed with prejudice.
Further, in light of the dismissal of Plaintiff’s federal claims, the Court hereby declines to
exercise supplemental jurisdiction over Plaintiff’s claims against Defendants Jeffrey Kenneth Green
and Dan Milton Davison and IT IS THEREFORE ORDERED that those remaining claims in this
cause are REMANDED to the 126th Judicial District Court of Travis County, Texas.
SIGNED on November 6, 2015.

ROBERT L. PITMAN
UNITED STATES DISTRICT JUDGE

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