Hicks v. Dallas County Community Colleges

MOTION to Dismiss Plaintiff's Second Amended Complaint [Dkt. #45]

N.D. Tex.February 6, 2018

DEFENDANT’S 12(b)(5) AND 12(b)(6) MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT AND BRIEF IN SUPPORT PAGE 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION AMY HICKS, § § Plaintiff, § § v. § Civil Action No. 3:17-cv-00809-D § DALLAS COUNTY COMMUNITY § COLLEGE DISTRICT, § § Defendant. § DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT UNDER RULES 12(b)(5) AND 12(b)(6), AND BRIEF IN SUPPORT Defendant Dallas County Community College District (the “District” or “Defendant”) moves the Court to dismiss Plaintiff’s Second Amended Complaint [Doc. No. 45] pursuant to Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6). INTRODUCTION Pro-se Plaintiff Amy Hicks, an adjunct faculty member at Cedar Valley College (“CVC”) in the District, asserts two breach-of-contract claims, unpaid overtime under the Fair Labor Standards Act, and an unspecified violation of the United States Constitution. See Second Amended Compl. Even after three bites at the apple, Hicks’s bare-bones claims lack sufficient factual detail to allow the District to defend itself against the allegations therein. Moreover, Hicks failed to properly serve the Second Amended Complaint on the District. Accordingly, the Court should again dismiss Hicks’s claims-this time with prejudice. ARGUMENT AND AUTHORITIES A. Motion to Dismiss Standard. “Under Federal Rule of Civil Procedure 4(c)(1), the plaintiff is responsible for serving the defendant with a complaint and summons. If a plaintiff performs an insufficient service of process, the defendant may seek to dismiss the plaintiff’s complaint under Rule 12(b)(5).” Case 3:17-cv-00809-D Document 46 Filed 02/06/18 Page 1 of 8 PageID 730 DEFENDANT’S 12(b)(5) AND 12(b)(6) MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT AND BRIEF IN SUPPORT PAGE 2 Bailey v. AT&T Corp./Headquarters, No. 3:16-CV-1464-B, 2017 WL 1178310, at *1 (N.D. Tex. Mar. 29, 2017); see also Crear v. US Bank NA, No. 3:16-CV-1570-L, 2016 WL 8711375, at *2 (N.D. Tex. Dec. 16, 2016) (“Federal Rule of Civil Procedure 12(b)(5) authorizes the court to dismiss a case for ‘insufficient service of process.’”). When a defendant questions the validity of service of process, “the plaintiff bears the burden of establishing its validity.” Carimi v. Royal Carribean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir. 1992). Furthermore, Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain statement of the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Fed. R. Civ. P. 8(a)(2). Rule 12(b)(6) provides for the dismissal of a complaint when a defendant shows that the plaintiff has failed to state a claim for which relief can be granted. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A claim is only facially plausible when “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678. A complaint is insufficient if it “tenders naked assertions[s] devoid of further factual enhancement.” Id. (internal quotations omitted). B. Hicks failed to properly serve her Second Amended Complaint. “Service of process is essential to any procedural imposition on a defendant in a court of law.” Herring v. Dallas Cty. Sch., No. CIV.A.399CV1538P, 2000 WL 370623, at *2 (N.D. Tex. Apr. 11, 2000). Under Rule 4(j)(2), when a state, municipal corporation, or other governmental organization-such as a school district-is sued, service shall be made “by delivering a copy of Case 3:17-cv-00809-D Document 46 Filed 02/06/18 Page 2 of 8 PageID 731 DEFENDANT’S 12(b)(5) AND 12(b)(6) MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT AND BRIEF IN SUPPORT PAGE 3 the summons and of the complaint to its chief executive officer” or by “serving a copy of each in the manner prescribed by that state’s law for serving a summons or like process on such a defendant.” Although Hicks filed her Original Complaint on March 22, 2017, she still had not properly served a complaint or summons on the District as of December 28, 2017, when the Court entered its Order of Dismissal [Doc. No. 44]. The Court thus informed Hicks that she had 28 days from the date of the Order-until January 25, 2018-to effect proper service of the Summons and Second Amended Complaint on the District. Hicks was thus required to serve her Second Amended Complaint on the District’s chief executive officer or otherwise in accordance with Texas law by January 25, 2018. Hicks failed to do so. A community college district’s “chief executive officer is its Chancellor.” Givens v. N. Harris Montgomery Cmty. Coll. Dist., No. CIV.A. H-06-3461, 2008 WL 1912866, at *1 (S.D. Tex. Apr. 28, 2008). Under Texas law, in suits against a school district, service of process may also be made “on the president of the school board” or the superintendent. Tex. Civ. P. Rem. Code § 17.024(c). Rather than serve these appropriate agents by January 25, 2018, it appears that Hicks has done nothing more than file her Second Amended Complaint with the Court. In fact, the docket reflects that Hicks has yet to request a Summons. Because Hicks did not serve the Second Amended Complaint and Summons on the District Chancellor or in accordance with Texas law by January 25, 2018, she has failed to comply with the Court’s Dismissal Order and the Court should dismiss her Second Amended Complaint on that basis alone. See Doc. No. 44 (“Plaintiff is given 28 days from the date of this order [December 28, 2017] to file a second amended complaint and to effect proper service of the summons and second amended complaint on defendant.”); see also Williams v. Kroger Texas, L.P., No. 3:16-CV-1631-L, 2016 WL 5870976, at *3 (N.D. Tex. Oct. 6, 2016) (dismissing case under Rule 12(b)(5) because “Plaintiff failed to meet his burden of proving the validity of attempted service”). Case 3:17-cv-00809-D Document 46 Filed 02/06/18 Page 3 of 8 PageID 732 DEFENDANT’S 12(b)(5) AND 12(b)(6) MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT AND BRIEF IN SUPPORT PAGE 4 C. Hicks has failed to satisfy federal pleading standards. 1. Hicks’s breach-of-contract claims fail. In addition to insufficient service,1 Hicks’s Second Amended Complaint fails “to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To state a claim for breach of contract under Texas law, the plaintiff must establish: (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of contract by the defendant; and (4) damages sustained as a result of the breach. Simien v. Unifund CCR Partners, 321 S.W.3d 235, 247 (Tex. App.-Houston [1st Dist.] 2010, no pet.). Hicks’s Second Amended Complaint merely asserts that there were two breached contracts-one dated August 19, 2016 and the other dated September 27, 2016-and that the District: (1) said it would not pay her if she did not sign the contracts; (2) cancelled classes in connection with these contracts for unspecified reasons; and (3) reduced the compensation under these contracts when compared to Hicks’s contracts from previous years. These three allegations form the sole bases for Hicks’s breach-of-contract claims. See Second Amended Compl. As Magistrate Judge Ramirez stated in her Findings, Conclusions, and Recommendation to grant the District’s Motion to Dismiss Hicks’s Complaint (“Recommendation”) [Doc. No. 38], Hicks failed to allege that: (1) she performed the requirements under the contracts by teaching the full semester; (2) the District breached the contracts by refusing to pay her the contracted amount; and (3) the two contracts were originally for a higher dollar amount or that they included terms for additional compensation. See Doc. No. 38 at 8. Notwithstanding Magistrate Judge Ramirez’s clearly-articulated deficiencies, Hicks’s Second Amended Complaint remains deficient for the same reasons articulated in the 1 Without waiving its argument that Hicks has yet to effectuate proper service, the District responds to Hicks’s Second Amended Complaint with the instant Motion to Dismiss. Case 3:17-cv-00809-D Document 46 Filed 02/06/18 Page 4 of 8 PageID 733 DEFENDANT’S 12(b)(5) AND 12(b)(6) MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT AND BRIEF IN SUPPORT PAGE 5 Recommendation. Hicks failed to allege that: she performed the requirements under the contracts, that the District breached the contracts by failing to pay her the contracted amount, or that the contracts were for higher amounts than she was paid. Instead, Hicks relies solely on improper “naked assertions devoid of further factual enhancement” to claim that the District breached her teaching contracts. Iqbal, 556 U.S. at 678 (quotations omitted). The federal pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation” like the breach-of-contract allegations here. Iqbal, 556 U.S. at 678. Hicks’s “conclusory allegations or legal conclusions set forth as factual allegations will not prevent dismissal.” Shabazz v. Tex. Youth Comm’n, 300 F. Supp. 2d 467, 470 (N.D. Tex. 2003). By merely asserting vague allegations that the District breached two contracts with Hicks in some unspecified manner that resulted in unnamed damages, the District does not have “fair notice of what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555. The Court should thus dismiss the breach-of-contract claims. 2. Hicks’s claim for overtime under the FLSA fails. In her Second Amended Complaint, Hicks also alleges that she is “a bit confused” as to the statutes concerning whether she is exempt or not under the FLSA and then proceeds to allege an overtime violation. See Second Amended Compl. An individual-like Hicks-“who is employed and engaged . . . as a teacher in an educational establishment by which the employee is employed” is not entitled to overtime wages under the FLSA. 29 C.F.R. § 541.303(a); 29 U.S.C § 13(a)(1). Because “plaintiff was employed as a teacher in an educational establishment, plaintiff was exempt from overtime pay under the FLSA teacher exemption.” Bretton v. Compass Career Mgmt., LLC, No. CIV.A. 13-663, 2015 WL 349270, at *5 (E.D. La. Jan. 26, 2015). Likewise, because Hicks’s Amended Complaint [Doc. No. 8] failed to explain how the teacher exemption did not apply to her, Magistrate Ramirez held that she could not sustain a Case 3:17-cv-00809-D Document 46 Filed 02/06/18 Page 5 of 8 PageID 734 DEFENDANT’S 12(b)(5) AND 12(b)(6) MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT AND BRIEF IN SUPPORT PAGE 6 claim for a violation of the FLSA based on the District’s failure to pay her overtime wages. See Doc. No. 38 at 9. Hicks’s Second Amended Complaint is equally silent on why the teacher exemption does not apply to her. Accordingly, for the reasons articulated in Judge Ramirez’s Recommendation, Hicks “cannot sustain a claim for violation of the FLSA based on [the District’s] failure to pay her overtime wages.” Bretton, 2015 WL 349270, at *5; see also Doc. No. 38 at 9. 3. Hicks’s new constitutional claim fails. Without offering any specificity, Hicks now alleges for the first time a violation of her rights protected by the United States Constitution. See Second Amended Compl. Hicks further alleges that “the main element or event that had taken place without Plaintiff’s knowledge is the Texas Workforce Commission…had asked for requested documents from Plaintiff…the Commission has no Jurisdiction, no authority to rule on this case, therefore the case will be dismissed.” Id. First, Hicks “has not provided a particularized statement of facts to show her alleged violation of rights protected by the United States Constitution,” and for that reason alone, her constitutional claim should be dismissed. Grant v. Seabron, No. SA-15-CA-964-RP, 2015 WL 13546621, at *9 (W.D. Tex. Nov. 10, 2015), report and recommendation adopted, No. 5:15- CV-00964 RP, 2016 WL 9455621 (W.D. Tex. Jan. 25, 2016), aff’d, 689 F. App’x 288 (5th Cir. 2017). Second, Hicks claims that the Texas Workforce Commission-not the District-violated her constitutional rights by denying her claims. Hicks’s vague constitutional claim thus fails because she asserted it against an entity not named as a defendant in her Second Amended Complaint, rather than against the District. See Sweet v. Ghosh, No. 17-CV-1363-DRH, 2018 WL 460105, at *3 (S.D. Ill. Jan. 16, 2018) (dismissing allegations against individuals not named as defendants). Because Hicks failed to plead her constitutional claim with any specificity, and because she asserted the claim against an entity other than the District, the Court should dismiss Case 3:17-cv-00809-D Document 46 Filed 02/06/18 Page 6 of 8 PageID 735 DEFENDANT’S 12(b)(5) AND 12(b)(6) MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT AND BRIEF IN SUPPORT PAGE 7 it with prejudice. CONCLUSION Hicks failed to properly serve the Second Amended Complaint and Summons on the District as required by the Federal Rules and in accordance with this Court’s Order of Dismissal. Moreover, even if service were proper, the Second Amended Complaint fails to adequately allege that the District breached contracts with Hicks, that she is entitled to overtime pay, or that the District interfered with her constitutionally protected rights. Therefore, Hicks has failed to state a claim upon which relief can be granted. REQUESTED RELIEF For the foregoing reasons, Defendant respectfully requests that the Court (1) dismiss Hicks’s Second Amended Complaint under Rules 12(b)(5) and/or 12(b)(6) with prejudice; and (2) award the District its costs and other relief as it deems appropriate. Case 3:17-cv-00809-D Document 46 Filed 02/06/18 Page 7 of 8 PageID 736 DEFENDANT’S 12(b)(5) AND 12(b)(6) MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT AND BRIEF IN SUPPORT PAGE 8 Respectfully submitted, s/ Gavin S. Martinson Kristin M. Snyder State Bar No. 24046880 kristin.Snyder@ogletreedeakins.com Gavin Martinson Texas State Bar No. 24060231 gavin.martinson@ogletreedeakins.com Andrew J. Magid Texas Bar No. 24092744 aj.magid@ogletreedeakins.com Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 8117 Preston Road, Suite 500 Dallas, TX 75225-4324 Telephone: 214-987-3800 Facsimile: 214-987-3927 ATTORNEYS FOR DEFENDANT CERTIFICATE OF SERVICE I certify that the foregoing document was filed via the Court’s CM/ECF system on February 6, 2018, and was served on the same date on Plaintiff via certified and regular mail: Amy Hicks 1506 Nightingale Ct. Desoto, TX 75115 s/ Gavin S. Martinson Gavin S. Martinson 32873387.4 Case 3:17-cv-00809-D Document 46 Filed 02/06/18 Page 8 of 8 PageID 737