Tobias v. The City of Pearsall et al

Filing 12

ORDER GRANTING 3 Motion to Dismiss for Failure to State a Claim; DENIED as MOOT 4 Motion for Declaratory Judgment and REMAND to state court. Signed by Judge David A. Ezra. (aej)

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

ROBERT M. TOBIAS,

)
)
Plaintiff,
)
)
v.
)
)
THE CITY OF PEARSALL, et al.,
)
)
Defendants.
)
________________________________ )

CV NO. 5:14-cv-399-DAE

ORDER: (1) GRANTING DEFENDANTS’ MOTION TO DISMISS WITH
RESPECT TO SECTION 1983 CLAIM; (2) DENYING DEFENDANTS’
MOTION TO DISMISS ON OTHER CLAIMS AS MOOT; (3) DENYING
PLAINTIFF’S MOTION FOR DECLARATORY JUDGMENT AS MOOT
Before the Court is a Motion to Dismiss filed by Defendants City of
Pearsall, A. Alvarez, D. Rodriguez, C. Carrasco, M. Ariza, A. Nieto, A.
Hernandez, O. Villarreal, R. Alvarez, C. Valdez, H. Lozano (collectively,
“Defendants”). (Dkt. # 3.) Plaintiff Robert M. Tobias, Jr. (“Plaintiff”) filed a
Response and a Motion for Declaratory Judgment. (Dkt. # 4.)
The Court held a hearing on Defendants’ Motion to Dismiss and
Plaintiff’s Motion for Declaratory Judgment on September 9, 2014. At the
hearing, Reid E. Meyers, Esq., appeared on behalf of Plaintiff; Albert Lopez, Esq.,
appeared on behalf of Defendants. For the reasons that follow, the Court
GRANTS Defendants’ Motion to Dismiss with respect to Plaintiff’s Section 1983
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claim (Dkt. # 3), DENIES Defendants’ Motion to Dismiss with respect to
Plaintiff’s state law claims as MOOT (id.), DENIES Plaintiff’s Motion for
Declaratory Judgment as MOOT (Dkt. # 4), and REMANDS the action to state
court.
BACKGROUND
In April 2013, Defendants hired Plaintiff as the City of Pearsall’s City
Manager pursuant to a two-year employment agreement. (“Pet.,” Dkt. # 1, Ex. 4 at
4.) The agreement included a provision stating: “In the event the Manager is
‘involuntarily terminated’ or ‘suspended’ for any reason by action of the
Council . . . and Manager is willing and able to perform his duties under this
agreement, then in that event, City agrees to pay Manager a cash payment, equal to
one year’s salary, or the balance term of his agreement, whichever is less, plus any
accrued leave.” (Id.) The agreement also provided Plaintiff six months to comply
with the city charter’s residency requirement. (Dkt. # 9, Ex. A-2 ¶ 10(B).) Plaintiff
alleges that the agreement’s residency provision was specifically drafted by
Defendants to entice Plaintiff to accept the job offer. (Pet. at 16.)
On September 10 of the same year—thirty-six days before the six
month residency waiver expired—the City Council voted 4–3 to terminate
Plaintiff’s employment without pay. (Id.) Plaintiff claims that this termination
without pay violates his employment agreement. (Id. at 4.) Plaintiff further

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alleges that the events have harmed his ability to find employment in his field of
expertise, his reputation has been harmed, and he has been unjustifiably ridiculed
in the community. (Id. at 17.)
On October 7, 2013, Plaintiff filed a Petition in state court against
Defendant City of Pearsall alleging breach of contract. (Id. at 3–4.) Both parties
filed motions for summary judgment in state court, requesting findings as a matter
of law on the validity of the contract. (Dkts. # 9, Ex. A, B.) In March 2014, the
state court denied both motions. (Pet. at 13.) On May 1, 2014, Plaintiff amended
his Petition by adding individual Pearsall City Council members as Defendants and
adding claims for recovery pursuant to Section 1983 of the Civil Rights Act, state
tort law, and a declaratory judgment provision under the Texas Civil Practice and
Remedies Code. (Id. at 18–19.) Defendants then filed a Notice of Removal in this
Court. (Dkt. # 1.) On May 5, 2014, Defendants filed a Motion to Dismiss that is
currently before the Court. (Dkt. # 3.) On May 19, Plaintiff filed a Motion for
Declaratory Judgment that is also before the Court. (Dkt. # 4.)
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a
complaint for “failure to state a claim upon which relief can be granted.” In
analyzing a motion to dismiss for failure to state a claim, the court “accept[s] ‘all
well pleaded facts as true, viewing them in the light most favorable to the

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plaintiff.’” United States ex rel. Vavra v. Kellogg Brown & Root, Inc., 727 F.3d
343, 346 (5th Cir. 2013) (quoting In re Katrina Canal Breaches Litig., 495 F.3d
191, 205 (5th Cir. 2007)). To survive a Rule 12(b)(6) motion to dismiss, the
plaintiff must plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
DISCUSSION
Defendants argue that Plaintiff’s Section 1983 claims should be
dismissed for failure to state a claim. (Dkt. # 3 ¶ 3.) Defendants also argue that
Plaintiff’s state law claims against the individual defendants should be dismissed
as barred under the Texas Civil Practices and Remedies Code § 101.106(f). (Id.
¶ 9.) Finally, Defendants assert that Plaintiff’s claim for declaratory judgment
under the Texas Civil Practices and Remedies Code should be dismissed because it
is beyond the Court’s jurisdiction. Plaintiff cross moved for declaratory judgment.
(Id. ¶ 13.)
A.

Plaintiff’s Section 1983 Claims
Section 1983 does not create any substantive rights; it provides a

remedy for violations of federal statutory and constitutional rights. See Baker v.

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McCollan, 443 U.S. 137, 144 (1979). “To state a claim under § 1983, a plaintiff
must (1) allege a violation of rights secured by the Constitution or laws of the
United States and (2) demonstrate that the alleged deprivation was committed by a
person acting under color of state law.” Leffall v. Dall. Indep. Sch. Dist., 28 F.3d
521, 525 (5th Cir. 1994). Therefore, “the first step in a § 1983 analysis is to
identify the specific constitutional [or federal] right involved.” Oliver v. Scott, 276
F.3d 736, 744 n.10 (5th Cir. 2002) (citing Baker, 443 U.S. at 140).
Here, although Plaintiff names Section 1983 as the basis for his
federal claim, Plaintiff does not identify any constitutional right that has been
violated. (See Pet. at 19.) Rather, his Petition states only that “[t]he Defendants
subjected the Plaintiff to conduct under the color of state law and that conduct
deprived Plaintiff of rights and privileges guaranteed under federal law or the U.S.
Constitution.” (Id.) Having failed to identify any particular basis for constitutional
liability, he has not presented a sustainable Section 1983 claim.
In addition, because Plaintiff failed to give any basis for his Section
1983 claim, Defendants address two potential grounds for Plaintiff’s Section 1983
claim in their Motion to Dismiss: a violation of procedural due process rights in
either a property interest or a liberty interest. (See Dkt. # 3 ¶¶ 3–6.) However,
even assuming that Plaintiff intended to plead either of these two bases of
constitutional deprivations, Plaintiff nevertheless fails to plead sufficient facts to

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properly state a Section 1983 claim.
i.

Property Interest

To establish a denial of procedural due process under the Fourteenth
Amendment in a Section 1983 suit, a plaintiff must show (1) a deprivation of a
protected liberty or property interest, and (2) that the deprivation occurred under
the color of state law. Doe v. Rains Cnty. Indep. Sch. Dist., 66 F.3d 1402, 1406
(5th Cir. 1995). Property interests “are not created by the Constitution,” and
instead “are defined by existing rules or understandings that stem from an
independent source such as state laws—rules or understandings that secure certain
benefits and that support claims of entitlement to those benefits.” Bd. of Regents
of State Coll. v. Roth, 408 U.S. 564, 577 (1972). In the employment context, the
Fifth Circuit has repeatedly found that continued employment can amount to a
property interest where there is a contract that creates an expectation of continued
employment. Henderson v. Sotelo, 761 F.2d 1093, 1095 (5th Cir. 1985).
However, Plaintiff makes clear that this is not the due process
property interest he invokes: “Plaintiff has not disputed Defendants [sic] right to
terminate Plaintiff.” (Dkt. # 4 ¶ 4.) He therefore forecloses any inquiry as to
whether the property interest in his continued employment has been violated.
Rather, Plaintiff asserts that he was denied his contractually obligated
severance pay. Plaintiff alleges that (1) “the Defendant’s City Council voted 4–3

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to terminate Plaintiff’s employment ‘without pay’” in violation of his employment
agreement; (2) that “Defendant has refused to agree to pay or pay Plaintiff in
accordance to [sic] the terms of the [Termination Pay] provision”; (3) that Plaintiff
“sent the Mayor and all members of the Pearsall City Council a letter asking them
to confirm that the City would honor its obligations under the [Employment]
Agreement [and that] [t]he City did not respond in any manner”; and (4) that
“counsel placed telephone calls to the City Attorney and the City Manager of the
City Pearsall. . . . [and that] both refused to acknowledge that the City had
obligations under the Agreement and claimed that the Council had made its final
decision.” (Pet. at 5.)
Section 1983 is not a vehicle to “federalize all contract law,” and this
Court is the inappropriate forum for a breach of contract claim. Boucvalt v. Bd. of
Comm’rs of Hosp. Serv. Dist. No. 1, Iberia Parish, 798 F.2d 722, 730 (5th Cir.
1986); Jett v. Dall. Indep. Sch. Dist., 798 F.2d 748, 754 n.3 (5th Cir. 1986) (“[N]ot
every breach of an employment contract on the part of the government amounts to
a deprivation of a property interest.” (citing Casey v. Depetrillo, 697 F.2d 22, 23
(1st Cir. 1983) (finding that the teachers’ employment-related claims amounted to
“at bottom, a simple action for breach of contract for which the state provides a
complete and adequate remedy”))). So long as adequate state remedies provide a
plaintiff recourse, Section 1983 is unavailable. Hudson v. Palmer, 468 U.S. 517,

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533 (1984) (“[I]ntentional deprivations [of property] do not violate [the Due
Process] Clause, provided, of course, that adequate state post-deprivation remedies
are available.”); see also Boucvalt, 798 F.2d at 730 (noting that “postdeprivation
tort remedy constitutes all the process that is due for unauthorized negligent and
intentional torts by state officials” (citing Parratt v. Taylor, 451 U.S. 527, 543–44
(1981))).
At base, Plaintiff complains that the City of Pearsall violated his
employment contract by denying him severance pay. State law provides Plaintiff
an available and adequate remedy. Plaintiff can—and already did—file suit for
breach of contract in state court. Because the process afforded in state court is
constitutionally adequate, Section 1983 is an inappropriate vehicle for his claim.
To the extent that Plaintiff argues that he was denied a reason for his
termination or a hearing on the matter of his severance in his Response briefing
(Dkt. # 4 ¶ 5), such a claim is improperly before the Court. In evaluating a motion
to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court is limited to
the pleadings. Jackson v. Procunier, 789 F.2d 307, 309 (5th Cir. 1986); cf. Cutrera
v. Bd. of Supervisors, 429 F.3d 108, 113 (5th Cir. 2005) (“A claim which is not
raised in the complaint but, rather, is raised only in response to a motion for
summary judgment is not properly before the court.”).

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ii.

Liberty Interest

Additionally, a government employee can have a liberty interest in his
“good name, reputation, honor, or integrity.” Bd. of Regents of State Coll., 408
U.S. at 573. However, “a constitutionally protected liberty interest is implicated
only if an employee is discharged in a manner that creates a false and defamatory
impression about him and thus stigmatizes him and forecloses him from other
employment opportunities.” White v. Thomas, 660 F.2d 680, 684 (5th Cir. 1981).
To state such a claim, the plaintiff must show: “(1) that she was discharged;
(2) that stigmatizing charges were made against her in connection with the
discharge; (3) that the charges were false; (4) that she was not provided notice or
an opportunity to be heard prior to her discharge; (5) that the charges were made
public; (6) that she requested a hearing to clear her name; and (7) that the employer
refused her request for a hearing.” Hughes v. City of Garland, 204 F.3d 223, 226
(5th Cir. 2000). “Mere proof that the employment decision ‘might make an
individual less attractive to other employers does not, by itself, implicate a liberty
interest.’” Id. (quoting Wells v. Hico Indep. Sch. Dist., 736 F.2d 243, 251 (5th Cir.
1984)).
With regard to a liberty interest claim, the only potentially relevant
facts alleged by Plaintiff are that “Plaintiff has been significantly harmed in his
abilities to find prospective employment in his field of expertise, his reputation has

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been harmed and he has been unjustifiably ridiculed in the community.” (Pet. at
17.) This recital is unsupported by any factual substantiation and is wholly
inadequate to meet the required pleading standard. See Higgenbotham v.
Connatser, 420 F. App’x 466, 468 (5th Cir. 2011) (finding that the plaintiff’s
failure to plead facts supporting several of the elements of the seven-part Hughes
test amounted to a failure to state a claim).
Because Plaintiff failed to sufficiently provide any factual basis to
support a constitutional deprivation of any kind, the Court GRANTS Defendants’
Motion to Dismiss with regard to Plaintiff’s Section 1983 claim.
B.

Plaintiff’s State Law Claims
Defendants argue that this Court should dismiss Plaintiff’s state law

claims pursuant to the Texas Civil Practice and Remedies Code. Because the Court
declines to exercise supplemental jurisdiction over Plaintiff’s state law claims, the
Court does not reach the question of whether dismissal under the Code is proper.
A district court has the discretion to decline supplemental jurisdiction
over state law claims when the court has dismissed all of the federal claims in the
case. 28 U.S.C. § 1367(c)(3). Accordingly, having dismissed Plaintiff’s only
federal claim in the suit—the Section 1983 claim—this Court has discretion to
decline supplemental jurisdiction over the remaining state law claims under 28
U.S.C. § 1367(c)(3).

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In determining whether to exercise jurisdiction over pendent state law
claims, courts must weigh the interest in judicial economy, convenience, fairness,
and comity. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988). “When
the balance of these factors indicates that a case properly belongs in state court, as
when the federal-law claims have dropped out of the lawsuit in its early stages and
only state-law claims remain, the federal court should decline the exercise of
jurisdiction by dismissing the case without prejudice.” Id. Therefore, it is the
general rule in the Fifth Circuit to “remand cases when all federal claims are
disposed of prior to trial.” McClelland v. Gronwaldt, 155 F.3d 507, 519 (5th Cir.
1998) (citing Carnegie-Mellon Univ., 484 U.S. at 350; United Mine Workers v.
Gibbs, 383 U.S. 715, 726 (1966)), overruled on other grounds by Arana v. Ochsner
Health Plan, 338 F.3d 433 (5th Cir. 2003).
For that reason, declining jurisdiction over Plaintiff’s pendent state
law claims is appropriate here. The case is in early stages of litigation in federal
court. With the exception of the current motions at issue, the parties have not yet
engaged in any meaningful litigation on the state law claims in this Court.
Therefore, the general Fifth Circuit rule applies, and this Court declines to exercise
supplemental jurisdiction.
Moreover, a factor-by-factor weighing results in the same conclusion.
First, because the federal court has had minimal involvement with the state law

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claims in this case, judicial economy weighs in favor of remand. The case has only
been pending in this Court for four months. (See Dkt. # 1.) The court has held
only one hearing (on the motions at issue here) and rendered only this decision.
(See Dkt. # 7.) No magistrate judge has ruled on any issues; discovery is not
scheduled to close for another three months; and the trial has not even been set.
(Dkt. # 6 ¶¶ 6, 9.) Conversely, the state court is already very familiar with the
case, having ruled on two motions for summary judgment before the case was
removed. (Pet. at 13.) With such minimal federal court involvement and preexisting state court involvement, the consideration of judicial economy weighs in
favor of remanding the state law claims. See Parker & Parsley Petroleum Co. v.
Dresser Indus., 972 F.2d 580, 587 (5th Cir. 1992) (finding that judicial economy
favored dismissing the state law claims where the case was only nine months into
litigation, the trial date was a few weeks away, and discovery had not been
completed, even when the magistrate judge had decided “a number of discovery
matters”).
Second, remanding the state law claims back to state court will not
cause “undue inconvenience” to the parties; in fact, litigation in state court is likely
more convenient for the parties. See id. The state court handling the case prior to
removal was located in Pearsall, where the majority of the parties reside. (See Pet.
at 18); see also Brim v. ExxonMobil Pipeline Co., 213 F. App’x 303, 306 (5th Cir.

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2007) (finding that dismissal promoted convenience when plaintiffs and majority
of witnesses lived in Midland and the federal court hearing the case was in San
Antonio).
Third, fairness weighs in favor of remand. There is nothing in the
record to indicate that either party will be prejudiced by remand. See Hicks v.
Austin Indep. Sch. Dist., 564 F. App’x 747, 749 (5th Cir. 2014).
Fourth, consideration of comity weighs in favor of remand. “The
federal courts are courts of limited jurisdiction . . . and are often not as well
equipped for determinations of state law as are state courts. . . . ‘[F]ederal courts
are not the authorized expositors of state law; there is no mechanism by which
their errors in such matters can be corrected on appeal by state courts.’” Parker &
Parsley Petroleum Co., 972 F.2d at 588–89. All of the claims remaining in the
case are state law claims based in contract and tort law. Although these claims are
not particularly difficult, as state law claims they are nevertheless better decided by
the state court. See Gibbs, 383 U.S. at 726 (“Needless decisions of state law
should be avoided both as a matter of comity and to promote justice between the
parties . . . .”).
Therefore, the Court DENIES Defendants’ Motion to Dismiss
regarding Plaintiff’s state law claims as MOOT and REMANDS the case to the
state court.

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C.

Plaintiff’s Motion for Declaratory Judgment
Plaintiff’s Motion for Declaratory Judgment is based in state law. The

claim turns on whether the contract provision conferring Plaintiff a severance upon
termination was made ultra vires, in violation of the City of Pearsall’s Charter, and,
if so, whether the illegal provision can be severed from the contract or whether the
contract is invalidated as a whole. (See Dkt. ## 4, 9.) These are traditional
contract claims governed by Texas state common law. Having remanded the state
law claims to state court, the Court DENIES Plaintiff’s Motion for Declaratory
Judgment as MOOT.
CONCLUSION
For the aforementioned reasons, the Court GRANTS Defendants’
Motion to Dismiss with regard to Plaintiff’s Section 1983 claim (Dkt. # 3),
DENIES Defendants’ Motion to Dismiss with regard to Plaintiff’s state law claims
as MOOT (id.), DENIES Plaintiff’s Motion for Declaratory Judgment as MOOT
(Dkt. # 4), and REMANDS the action to state court.
IT IS SO ORDERED.
DATED: San Antonio, Texas, September 9, 2014.

_____________________________________
David Alan Ezra
Senior United States Distict Judge

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