Linebarger, Goggan, Blair Sampson, LLP et al v. Dornak

Filing 3

ORDER TO SHOW CAUSE as to David Dornak. Show Cause Response due by 7/29/2011. Signed by Judge Nancy Stein Nowak. (ga)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

LINEBARGER GOGGAN
BLAIR SAMPSON, LLP;
BEXAR COUNTY;
CITY OF SAN ANTONIO; and
THE SAN ANTONIO INDEPENDENT
SCHOOL DISTRICT,
Plaintiffs,
v.
DAVID DORNAK,
Defendant.

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CIVIL ACTION NO.
SA-11-CV-0570 OG

SHOW CAUSE ORDER
The matter before the court is movant David Dornak’s motion to proceed in
forma pauperis (IFP).1 In considering a motion to proceed IFP, the court must consider
the merits of the movant’ claims.2 Dornak seeks to file a pleading titled “Notice of
Removal.” Therein, Dornak seeks this court’s review of proceedings arising from a
state-court petition. After reviewing the proposed notice of removal, I question the

1

2

Docket entry # 1.

See Henson-El v. Rogers, 923 F.2d 51, 53 (5th Cir. 1991) (“A district court may dismiss an
in forma pauperis proceeding as frivolous under 28 U.S.C. § 1915(d) whenever it appears
that the claim’s realistic chance of ultimate success is slight or the claim has no arguable
basis in law or fact.”).

court’s jurisdiction in this case.
Dornak’s notice of removal purports to remove state-court Cause No. 2010-TA102281, 150th Judicial District, Bexar County, Texas. The lawsuit was filed on behalf of
taxing entities Bexar County, City of San Antonio, and San Antonio Independent School
District by the law firm of Linebarger Goggan Blair & Sampson, LLP (Linebarger).3 The
original petition named as defendants Dornak and the former owners of Dornak’s
home, Linda and Victor Van Dyke.
Dornak does not challenge his liability for property taxes, but instead challenges
Bexar County’s collection contract with Linebarger and the award of attorney fees in
connection with the collection proceeding. Dornak asks this court to declare
Linebarger’s collection contract void as violative of the Equal Protection Clause. There
are at least two reasons why this court lacks jurisdiction over Dornak’s challenge.
The first reason is because the Tax Injunction Act prohibits a federal court from
“enjoin[ing], suspend[ing] or restrain[ing] the assessment, levy or collection of any tax
under State law where a plain, speedy and efficient remedy may be had in the courts of
such State.”4 This prohibition is “a broad restriction on federal jurisdiction in suits that

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Linebarger focuses on the collection of delinquent taxes owed to governmental entities.
4

28 U.S.C. § 1341.
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impede state tax administration….”5 Texas law authorizes the county tax assessor to
assess and collect property taxes,6 contract for the collection of property taxes for other
appraisal districts,7 and contract with an attorney for the collection of delinquent taxes.8
Texas law also provides for an award of attorney fees to collect a delinquent tax9 and for
a motion to disqualify an attorney.10
Dornak’s challenge about Linebarger flows from Bexar County’s authority to
collect property taxes, contract for the collection of property taxes, and contract with an
attorney for the collection of delinquent taxes. State law provides for the
disqualification of an attorney in lawsuits flowing from Bexar County’s authority. State
law also provides for an appeal of a state court judgment.11 By providing for the

5

United Gas Pipe Line Co. v. Whitman, 595 F.2d 323, 326 (5th Cir. 1979).

6

Tex. Tax Code Ann. § 6.23.

7

Id., § 6.24.

8

Id.

9

Id., § 33.48 (providing for the recovery of “attorney’s fees in the amount of 15 percent
of the total amount of taxes, penalties, and interest due the unit”).
10

See Spears v. Fourth Court of Appeals, 797 S.W.2d 654, 656 (Tex. 1990) (“Disqualification
is a severe remedy. The courts must adhere to an exacting standard when considering
motions to disqualify so as to discourage their use as a dilatory trial tactic. Thus, the burden
is on the movant to establish with specificity a violation of one or more of the disciplinary
rules. Mere allegations of unethical conduct or evidence showing a remote possibility of
a violation of the disciplinary rules will not suffice under this standard.”).
11

Tex. R. App. P. 25.1.
3

disqualification of an attorney and providing for an appeal, state law offers a plain,
speedy, and efficient remedy. Because state law offers a plain, speedy and efficient
remedy, this court lacks jurisdiction under the Tax Injunction to interfere with the
administration of state tax and the state court’s adjudication of the collection
proceeding.
The second reason this court lacks jurisdiction over Dornak’s claim is because the
relief Dornak seeks is barred by the Rooker Feldman doctrine. Under the Rooker-Feldman
doctrine, a federal court lacks jurisdiction to entertain a collateral attack on a state-court
order.12 “When issues raised in a federal court are ‘inextricably intertwined’ with a state
judgment and the court is ‘in essence being called upon to review the state-court
decision,’ the court lacks subject matter jurisdiction to conduct such a review.”13
No question exists that Dornak asks this court to review the state-court ruling on
his motion to disqualify Linebarger. Dornak’s motion to disqualify Linebarger is
attached to his notice of removal; Dornak also attached the plaintiffs’ response to the
motion and Dornak’s reply to the response. Publicly available information indicates the
state-court judge denied the motion to disqualify on June 16, 2011 — three weeks before
Dornak moved to proceed IFP in this case. Dornak’s notice of removal includes the

12

See Liedtke v. St. Bar of Tex., 18 F.3d 315, 317 (5th Cir. 1994).

13

Davis v. Bayless, 70 F.3d 367, 375-76 (5th Cir. 1995).
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same allegations of misconduct complained about in the motion to disqualify. As such,
Dornak seeks to challenge the state court’s ruling in this court. Because Dornak asks
this court to review a state-court ruling, this court has no jurisdiction under the Rooker
Feldman doctrine.
Based on the foregoing, I direct Dornak to show cause in writing by July 29, 2011
why this case should not be dismissed for lack of jurisdiction. If Dornak fails to respond
to this order by July 29, 2011, I will deny Dornak’s motion to proceed IFP and
recommend dismissing this case for lack jurisdiction and for failure to comply with a
court order and for failure to prosecute.14
SIGNED on July 18, 2011.

_____________________________________
NANCY STEIN NOWAK
UNITED STATES MAGISTRATE JUDGE

14

See Fed. R. Civ. P. 41(b) (permitting the defendant to move for dismissal on grounds
the plaintiff failed to prosecute his case); Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d
241, 247 (5th Cir. 1980) (explaining that “a federal district court possesses the inherent
authority to dismiss an action for want of prosecution”).
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