Opinion
Civ. No. 3:99-CV-0358-D
April 7, 2000
MEMORANDUM OPINION AND ORDER
Plaintiff Don Venable ("Venable") and another individual filed a supplemental petition in a pending state-court lawsuit, alleging that defendant Dallas Independent School District ("DISD") and the president of its Board of Trustees had violated a state open meetings law, and seeking a writ of mandamus to compel them to comply with that law. DISD and its president counterclaimed pursuant to Tex. Educ. Code Ann. § 11.161 (West 1996) to recover their attorney's fees and costs incurred in defending a frivolous suit. Venable later filed the present pro se case under 42 U.S.C. § 1983, asserting that DISD and its lawyers filed or prosecuted the counterclaim in retaliation for his exercising his First Amendment right. Remarkably, Venable originally sued only Carrington, Coleman, Sloman Blumenthal, L.L.P. ("Carrington"), a law firm that took over representation of DISD well after the counterclaim was flied, and only later amended his petition to add DISD and two other law firms as defendants. Because the court holds that a reasonable jury could not find that Venable's exercise of a protected First Amendment right was a substantial or motivating factor in DISD's and the law firms' filing or prosecuting the counterclaim, the court grants summary judgment dismissing this case.
DISD sued Venable and three other persons in state court. Two defendants — Venable and Richard Finlan ("Finlan") — later filed in that case a supplemental petition for writ of mandamus in which they alleged that DISD and Sandy Kress ("Kress"), president of the DISD Board of Trustees ("Board"), had violated the Texas Opening Meetings Act and sought a writ of mandamus to compel compliance with the Act. The state court severed the mandamus action from the principal suit and it was docketed as Finlan, et al. v. Dallas Independent School District, et al., Cause No. 96-01688-K, in the 192nd Judicial District Court of Dallas County, Texas ("Finlan v. DISD"). DISD and Kress answered the mandamus petition. They included the following counterclaim:
Defendants are entitled to an award of attorneys' fees pursuant to Section 11.161, Education Code.
Orig. Ans. at 5. Friedman Associates, P.C. ("Friedman"), one of the law firm defendants in the present case, signed the answer on behalf of DISD and Kress. Venable alleges that Friedman acted under the direction of, and as subordinates of the delegated authority of, Schwartz Eichelbaum, P.C. ("Schwartz"), another law firm defendant.
Venable later nonsuited his claims. Finlan and DISD each sought summary judgment. The state court granted DISD's motion, denied Finlan's motion, and ordered that DISD and Kress recover their costs from Finlan and Venable. Venable sought relief from this order in November 1996. In December 1997 Carrington took over as counsel for DISD and Kress. The state court later held that Venable was not liable for costs under Tex. Educ. Code Ann. § 11.161 (West 1996), and eventually taxed costs against the party incurring same. Venable filed the present suit in state court a few months later and Carrington removed it to this court.
Carrington moved for summary judgment and DISD moved for judgment on the pleadings, each asserting on several grounds that they were entitled to dismissal of the case. The court by January 26, 2000 order denied the motions but raised sua sponte that all four defendants are entitled to summary judgment on the ground that Venable cannot adduce evidence that would permit a reasonable trier of fact to find that DISD filed the counterclaim, and that the law firms represented DISD in filing and/or prosecuting the counterclaim, as an act of retaliation for Venable's exercising a First Amendment right. The order identified the nature of Venable's claim against defendants:
Venable has clarified the nature of his claim in responding to Carrington's motion for summary judgment and DISD's motion for judgment on the pleadings. It is now apparent that Venable alleges a First Amendment retaliation claim. He maintains that in response to his exercising his right to petition (in this case, in the form of filing a mandamus petition in [Finlan] v. Dallas Independent School District, Cause No. 96-01688-K, in the 192nd Judicial District Court of Dallas County, Texas, alleging violations of the Texas Open Meetings Act), defendants retaliated against him by filing (or by representing their client in filing or prosecuting) a counterclaim for attorney's fees and costs. See P. Am. Pet. ¶¶ 13-14.
Order at 1. The court then raised summary judgment sua sponte, stating that it is
doubtful that Venable can adduce evidence that would permit a reasonable trier of fact to find that DISD filed a counterclaim for attorney's fees and costs — a common litigation occurrence — and that the law firm defendants represented their client in filing and/or prosecuting such a counterclaim, as an act of retaliation for Venable's exercising his First Amendment right. It is not enough that DISD filed a counterclaim in response to Venable's petition. The fact that Venable exercised a First Amendment right must have been a substantial or motivating factor in DISD's or the law firm's doing so. This distinction may be subtle, but it is significant.Id. at 3 (footnote omitted).
Venable flied a timely response to the court's order. With leave of court, defendants filed reply briefs.
II
In his summary judgment response, Venable maintains that his lawsuit presents two distinct claims: a First Amendment retaliation claim and a civil conspiracy claim brought under § 1983 that is derivative of the retaliation claim. P. Br. at 1. Venable's first amended petition, however, contains no conspiracy cause of action, either under the explicit rubric of "conspiracy" or in the form of allegations that assert the substance or elements of conspiracy. Venable alleges in his petition one cause of action, denominated "CAUSE OF ACTION: VIOLATION OF CIVIL RIGHTS ( 42 U.S.C. § 1983)." Pet, at 4. He asserts:
The initiation and perpetuation of DISD's "counterclaim" in case number 96-01688-K filed in response to Venable's underlying claim was without legal excuse and was motivated by a desire of the law firms' client, the DISD, together with certain of its current and prior officers, employees and agents, to retaliate against Venable for his exercise of his First Amendment right of petition and in order to deprive Venable of his protected interest in his liberty to pursue meaningful, gainful and continual employment, thereby making him more able to pursue earlier civil rights claims.Id. ¶ 14 (footnotes omitted). Moreover, in response to the motions for summary judgment and to dismiss that defendants originally filed, and that the court denied in its January 26, 2000 order, Venable neglected to mention a conspiracy claim. Based on its reading of the petition and motion briefing, the court concluded: "Venable has clarified the nature of his claim in responding to Carrington's motion for summary judgment and DISD's motion for judgment on the pleadings. It is now apparent that Venable alleges a First Amendment retaliation claim." Order at 1. Had Venable intended to allege a conspiracy claim, then in responding to defendants' motions he surely would have made that known with sufficiently clarity that the court could have discerned it.
The part of his present summary judgment opposition response that asserts the new conspiracy claim should thus be treated as a motion to amend. See Ganther v. Ingle, 75 F.3d 207, 211-12 (5th Cir. 1996) (per curiam). The court denies the motion. The court will "carefully scrutinize a party's attempt to raise new theories of recovery by amendment when the opposing party has filed a motion for summary judgment." Parish v. Frazier, 195 F.3d 761, 764 (5th Cir. 1999) (per curiam). The decision to permit or deny amendment is within the court's discretion and "is reversible only for abuse of that discretion." Overseas Innr S.A. P.A. v. United States, 911 F.2d 1146, 1150 (5th Cir. 1990). In making this decision, the court may consider such factors as "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. . . ." Id at 1150-51 (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). The court concludes that it would unduly prejudice defendants if the court allowed Venable to amend his petition. The motion to amend (in the form of his summary judgment response) did not come into play until after Carrington had moved for summary judgment and the court had raised summary judgment as to all four defendants. "To grant [Venable] leave to amend is potentially to undermine [defendants'] right to prevail on a motion that necessarily was prepared without reference to an unanticipated amended complaint. . . . A party should not, without adequate grounds, be permitted to avoid summary judgment by the expedient of amending its complaint." Overseas Inns, 911 F.2d at 1151 (quoting this court's opinion below).
Accordingly, the court need not address Venable's arguments concerning his unpleaded conspiracy claim.
III
The court grants summary judgment dismissing Venable's First Amendment retaliation claim.
A
To establish a § 1983 claim of retaliation for the exercise of First Amendment activities, a plaintiff must prove that (1) the defendant was acting under color of state law, (2) the plaintiff's activities were protected under the First Amendment, and (3) the plaintiff's exercise of his protected right was a substantial or motivating factor in the defendant's actions. See Steadman v. Texas Rangers, 179 F.3d 360, 366 (5th Cir. 1999) (addressing free speech activities), cert. denied, ___ U.S. 120 S.Ct. 933 (2000). Because defendants will not have the burden at trial concerning this claim, they can meet their summary judgment obligation by pointing the court to the absence of evidence to support it. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In the context of sua sponte summary judgment, the court may raise the absence of such evidence. Venable must then go beyond his pleadings and designate specific facts showing that there is a genuine issue for trial. See id at 324; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). An issue of fact is genuine if the evidence supporting its resolution in favor of the party opposing summary judgment, together with any inference in that party's favor that the evidence allows, would be sufficient to support a verdict in the party's favor. Hilton v. Southwestern Bell Tel. Co., 936 F.2d 823, 827 (5th Cir. 1991) (per curiam). An issue of fact is not genuine if no reasonable trier of fact could find in favor of the nonmovant. Lavespere v. Niagara Mach Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990). Venable must produce evidence sufficient to establish the existence of all elements essential to his § 1983 claim. See Anderson v. Libeny Lobby, Inc., 477 U.S. 242, 249-50 (1986). Summary judgment is mandatory where the nonmoving party fails to meet his burden. Little, 37 F.3d at 1076.
B
The court holds that the evidence that Venable has adduced does not present a genuine issue of a material fact because a reasonable jury could not find that Venable's exercise of his First Amendment right was a substantial or motivating factor in defendants' decision to file and/or prosecute the counterclaim in Finlan v. DISD.
Venable cites evidence of an extensive history of litigation from September 1991 through October 1995 involving DISD, Venable, and others. See P. Br. at 6-12. He appears to argue that this "chronology of events" would permit a reasonable trier of fact to infer that defendants unlawfully retaliated against him in the one respect that is relevant to the present suit: by filing (or assisting their client in tiling and/or prosecuting) the counterclaim for attorney's fees and costs in Finlan v. DISD. The court concludes from the evidence adduced, however, that a reasonable jury could not find that Venable's exercise of his First Amendment right was a substantial or motivating factor.
DISD based the counterclaim on Tex. Educ. Code Ann. § 11.161 (West 1996), which, in a civil suit brought under state law, allows school districts to recover their reasonable attorney's fees and costs if"(1) the court finds that the suit is frivolous, unreasonable, and without foundation; and (2) the suit is dismissed or judgment is for the defendant." Id. DISD maintained that Venable's lawsuit entitled it to § 11.161 relief. Because a school district's claim under § 11.161 necessarily challenges the merits of the very lawsuit in which it is filed, and because a lawyer could reasonably conclude that such relief must be sought by a compulsory counterclaim, a jury could not reasonably find that DISD or its lawyers acted with a broader retalitory intent directed at Venable's litigation activities in Finlan v. DISD or in another lawsuit in which he was involved as a litigant.
Venable maintains that his lawsuit is based not only on his protected conduct in Finlan v. DISD but also on his having been a plaintiff in Don Venable, et al. v. Sandy Kress, et al., Cause No. 94-9418, in the 162nd Judicial District Court of Dallas County, Texas. See P. Br. at 4; P. App. at 13-19. Assuming arguendo that this is correct, cf Jan. 26, 2000 Order at 1 (treating claim as based on retaliation for initiating Finlan v. DISD), the court reaches the same result. A jury could not reasonably find retaliation based on Venable's having engaged in either form of protected conduct.
Moreover, Venable's "chronology of events" depends on audiotape evidence that he contends reveals defendants' retaliatory motive. The court declines to consider this evidence. Venable relies on two audiotapes that he has submitted without transcripts. See P. App. at 43 (exhibit K) and 54 (exhibit N). This requires that the court listen to entire tapes to locate the pertinent parts. The court is not required to comb through the summary judgment record in this manner.
Fed.R.Civ.P. 56 obligates a party to designate the specific facts in the record that create genuine issues precluding summary judgment. "Rule 56 does not impose a duty on the district court to sift through the record in search of evidence to support a party's opposition to summary judgment." Doddy v. Oxy USA, Inc., 101 F.3d 448, 463 (5th Cir. 1996) (citing Jones v. Sheehan, Young Culp, P.C., 82 F.3d 1334, 1338 (5th Cir. 1996)); accord Stults v. Conoco, Inc., 76 F.3d 651, 657 (5th Cir. 1996). The court has no obligation to consider evidence that the nonmovant does not bring forth in opposition to the summary judgment motion. Doddy, 101 F.3d at 463 (citing Copsey v. Swearingen, 36 F.3d 1336, 1347 n. 9 (5th Cir. 1994)). To satisfy his burden, a nonmovant is required to identify specific evidence in the record, and to articulate the precise manner in which that evidence supports his claims. Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) (citing Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992)). When a party fails to refer to items in the record, the evidence is not properly before the court in deciding whether to grant the motion. Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 (5th Cir. 1992); Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1307 (5th Cir. 1988) (on rehearing) (denying rehearing after plaintiff asserted that deposition was of record when district court granted partial summary judgment, and holding that because plaintiff failed to designate, or in any way refer to, deposition as source of factual support for response to motion, deposition was never made part of competent summary judgment record before district court).
One tape, of a September 24, 1992 meeting, see P. App. 44, is accompanied by a transcript. The transcript is not, however, paginated as part of the appendix, or cited by appendix page number in Venable's brief; and thus violates N.D. Tex. Civ. R. 56.5(c) and 56.6(a) and (b)(3). Moreover, the transcript is 23 pages long. In Craig v. Ryder Truck Rental Inc., Civil Action No. 3:97-CV-1533-D (ND. Tex. June 12, 1998) (Fitzwater, J.), aff'd, 174 F.3d 198 (5th Cir. Feb. 24, 1999) (table) (per curiam), the court addressed a summary judgment nonmovant's approach that placed a similar burden on the court, and declined to consider the evidence. The court held:
Venable cites only the page number of the appendix envelope in which the tape is located. See P. Br. at 8. Although the placement of the tape in the envelope satisfies N.D. Tex. Civ. R. 56.6 (b((2), it does not excuse Venable from the obligations of Rules 56.5(c) and 56.6(a) and (b)(3).
In his summary judgment response, [plaintiff] has produced a chart, see Opinion Ex. A, that purports to identify the evidence that creates genuine fact issues concerning each of his claims. It is overbroad, however, citing large groups of deposition pages and exhibits — including entire pages at one time — as being relevant to multiple claims, without specifying the specific portions on which he relies.
Slip op. at 5. If it was insufficient in Craig for a nonmovant to oppose summary judgment by citing broad groups of deposition pages and exhibits, including entire pages at one time, then it is also inadequate for Venable to cite to an audiotape and include a 23-page transcript, thus requiring the court to listen to the entire recording, or read the entire transcript, to locate the specific parts on which he relies.
Apart from his reliance on the audiotapes, Venable also offers as part of his "chronology of events" evidence of certain statements contained in the affidavits of Ed Grant ("Grant"), P. App. at 55-59, Carver Dan Peavy ("Peavy"), id at 62-68, and Dennis Eichelbaum, Esq. ("Eichelbaum"), id at 69-70. The Eichelbaum affidavit merely states that on June 22, 1995 the DISD Board authorized Eichelbaum "to file such pleadings and lawsuits as necessary to resolve all matters between Ed Grant, Richard Finlan and Don Venable and the Dallas Independent School District, its employees, officials and agents." Id at 69-70. This statement, alone or together with other summary judgment evidence, would not permit a reasonable jury to find that DISD or the law firm defendants filed or prosecuted the counterclaim in Finlan v. DISD in retaliation for Venable's exercising his First Amendment right.
Venable also relies on his own affidavit to authenticate other evidence that he has introduced. See P. App. at 74-75.
The Grant affidavit contains allegations regarding a DISD board meeting in September 1992 and addresses a retaliatory motive for the litigation strategy on September 24, 1992. See id at 56. This occurred almost 3 1/2 years before DISD on March 18, 1996 filed the counterclaim in Finlan v. DISD, and would not permit a reasonable jury to find that the counterclaim was an act of First Amendment retaliation.
Venable concedes that the Peavy affidavit is "technically hearsay," P. Br. at 11 n. 16, but maintains that the evidence falls within the exception ofFed.R.Evid. 803(3), contending that it bears upon "defendants' motive, intent, and plan with regard to their course of action against Venable," id (emphasis added). The court disagrees and excludes this evidence. Rule 803 (3) creates an exception to the hearsay rule when the proponent of evidence is attempting to prove "the declarant's then existing state of mind" (emphasis added). Venable is not attempting to establish Peavy's state of mind; he is trying to show what defendants intended. The evidence is not admissible to prove defendants' motive or intent. And proof of Peavy's state of mind is inadmissible because it is irrelevant; it does not create a genuine issue of material fact concerning defendants' motive in filing the counterclaim.
Even if the evidence were admissible and relevant, Peavy's statements suggest motivation for a racketeering lawsuit brought against Venable's counsel and for actions that took place before Peavy's resignation from the DISD Board in 1995. See P. App. at 65. None of Peavy's statements addresses defendants' motive for filing or prosecuting the counterclaim. See id. at 67 ("[A] former school board member . . . decided in 1994 to tell the truth about what the board had done in its September 24, 1992 meeting and tell the true retaliatory purpose behind the board's actions at that time." (emphasis added)).
Even if the court overlooked the deficiencies in Venable's summary judgment evidence, his "chronology of events" would still fall short. First, the lapse in time — in one instance, of several years — between the events that Venable cites and the filing of the counterclaim would not permit a jury reasonably to find a causal connection between those events and the counterclaim. See Brady v. Houston Indep. Sch. Dist, 113 F.3d 1419, 1424 n. 7 (5th Cir. 1997) (holding that eighteen month lapse of time between protected activity and alleged retaliation "suggest[ed] that a retaliatory motive was highly unlikely"). Second, Venable is relying on a generally litigious environment involving DISD, himself, and others during a several-year period to prove that in one lawsuit, DISD (represented by the law firm defendants) counterclaimed for attorney's fees and costs as an act of First Amendment retaliation. This diffuse proof is not narrowly focused on the Finlan v. DISD counterclaim that is the dispositive act in this lawsuit, and is insufficient to allow a jury reasonably to ascribe to defendants a retaliatory motive.
* * *
Because the court holds that a reasonable jury could not find that Venable's exercise of a right protected under the First Amendment was a substantial or motivating factor in defendants' filing or prosecuting the counterclaim in Finlan v. DISD, the court grants summary judgment in favor of defendants and dismisses plaintiff's action by judgment filed today.
SO ORDERED.