Alviar v. Macy's Inc et al

MOTION to Dismiss First Amended Complaint

N.D. Tex.July 21, 2016

1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION JOE ALVIAR, JR., Plaintiff, v. MACY'S, INC., A CORPORATION OF DELAWARE (MACY'S INC.) D/B/A MACY'S, MACY'S RETAIL HOLDINGS, INC., and/or THE ENTITY THAT EMPLOYED PLAINTIFF AS OF AUGUST 19, 2015, and JOHN LILLARD, INDIVIDUALLY, Civil Action No. 3:16-cv-01633-D DEFENDANT JOHN LILLARD'S MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT AND BRIEF IN SUPPORT TO THE HONORABLE SIDNEY A. FITZWATER: COMES NOW Defendant John Lillard and files this Motion to Dismiss Plaintiffs' First Amended Complaint and Brief in Support pursuant to FED. R. CIV. P. 12(b)(6) and the Court's Local Rules: I. RULE 12(b)(6) STANDARD The U.S. Supreme Court has prescribed a "two-pronged approach" to determine whether a complaint fails to state a claim under Rule 12(b)(6). Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). The court "begin[s] by identifying the pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 679. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678. For any well-pleaded allegations, the court should assume their veracity and "determine Case 3:16-cv-01633-D Document 14 Filed 07/21/16 Page 1 of 7 PageID 138 2 whether they plausibly give rise to an entitlement of relief." Id. at 679. The plausibility principle does not convert the Rule 8(a)(2) notice pleading standard to a "probability requirement," but "a sheer possibility that a defendant has acted unlawfully" will not defeat a motion to dismiss. Id. at 678. The plaintiff must "plead [] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not 'show[n]' - 'that the pleader is entitled to relief.'" Id. at 679 (alteration in original) (quoting FED. R. CIV. P. 8(a)(2)). II. DISMISSAL OF LILLARD AS A DEFENDANT IS PROPER Defendant Lillard was improperly joined and should be dismissed as a defendant because there is no entitlement to relief against him individually. A. Plaintiff Cannot Recover Against Defendant Lillard Individually under the TCHRA Plaintiff's First Amended Complaint ("Complaint") alleges claims of discrimination, retaliation, and failure to reasonably accommodate against Defendants Macy's, Inc. and Macy's Retail Holdings, Inc. ("MRHI") (collectively, the "Macy's Defendants") under the Texas Commission on Human Rights Act ("TCHRA"). Complaint [Dkt. #8] at p. 4 ¶¶ 9-22. It is not clear whether Plaintiff's Complaint also attempts to plead claims under the TCHRA against Defendant Lillard. However, to the extent it does, Plaintiff cannot recover against Lillard individually because the TCHRA only allows for liability against employers, not individual supervisors or managers like Lillard. Medina v. Ramsey Steel Co., 238 F.3d 674, 686 (5th Cir. 2001); Castillo v. Homan, No. 04-4859, 2005 U.S. Dist. LEXIS 41515, *13 (S.D. Tex. Aug. 16, 2005); Winters v. Chubb & Son, Inc., 132 S.W.3d 568, 580 (Tex. App.-Houston [14th Dist.] 2004, no pet.); Jenkins v. Guardian Indus. Corp., 16 S.W.3d 431, 439 (Tex. App.-Waco 2000, no pet.); Martin v. Kroger Co., 65 F.Supp.2d 516, 533 (S.D. Tex. 1999), aff'd, 224 F.3d 765 (5th Case 3:16-cv-01633-D Document 14 Filed 07/21/16 Page 2 of 7 PageID 139 3 Cir. 2000); Thompson v. City of Arlington, 838 F.Supp. 1137, 1153 (N.D. Tex. 1993); Benavides v. Moore, 848 S.W.2d 190, 198 (Tex. App.-Corpus Christi 1992, writ denied); City of Austin v. Gifford, 824 S.W.2d 735, 742 (Tex. App.-Austin 1992, no writ). B. Plaintiff Has Failed to State a Plausible Tortious Interference Claim Against Lillard Plaintiff also has failed to state a plausible claim for tortious interference against Defendant Lillard (Complaint [Dkt. #8] at p. 4 ¶ 23), who was Plaintiff's supervisor and is an employee of Defendant MRHI. Int'l Energy Ventures Mgmt., L.L.C. v. United Energy Group, Ltd., 818 F.3d 193, 208 (5th Cir. 2016) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) and holding the federal pleading standard applies to an improper joinder analysis). "Under Texas law, the elements of tortious interference with contract are: (1) the existence of a contract, (2) willful and intentional interference, (3) interference that proximately caused damage, and (4) actual damage or loss." Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392, 402 (5th Cir. 2013). Plaintiff's Complaint fails to state a plausible claim for tortious interference against Defendant Lillard for several reasons. 1. Plaintiff's Tortious Interference Claim Is Preempted by the TCHRA Plaintiff is basing his tortious interference claim against Lillard on the same facts as his TCHRA claims against the Macy's Defendants, and therefore his tortious interference claim against Lillard is preempted by the TCHRA. Martin v. Kroger Co., 65 F.Supp.2d 516, 562-63 (S.D. Tex. 1999), aff'd, 224 F.3d 765 (5th Cir. 2000). See also Alexander v. Grand Prairie Ford, L.P., No. 02-1561, 2007 U.S. Dist. LEXIS 39438, *34 (N.D. Tex. May 31, 2007) (negligent misrepresentation claim based on allegedly discriminatory conduct was preempted by TCHRA); Allen v. Solo Cup Co., No. 05-848, 2006 U.S. Dist. LEXIS 47593, *47 (N.D. Tex. July 13, 2006) (negligent supervision claim premised on alleged discriminatory behavior was preempted by TCHRA); Cook v. Fidelity Invs., 908 F.Supp. 438, 442 (N.D. Tex. 1995) (same); Bates v. Case 3:16-cv-01633-D Document 14 Filed 07/21/16 Page 3 of 7 PageID 140 4 Humana, Inc., No. 92-432, 1993 U.S. Dist. LEXIS 20764, *35 (W.D. Tex. Oct. 12, 1993) (same); Hardy v. Fleming Food Cos., No. 94-3759, 1996 U.S. Dist. LEXIS 3961, *78-79 (S.D. Tex. Feb. 9, 1996) (negligence claims based on allegedly discriminatory conduct were preempted by TCHRA). 2. Apart from Preemption, Plaintiff's Complaint Otherwise Fails to State a Valid Tortious Interference Claim Plaintiff's tortious interference claim against Lillard, Plaintiff's supervisor, also is barred under Texas law because the employment at-will doctrine bars a tortious interference claim against a supervisor of an at-will employee like Plaintiff. Jones v. Legal Copy, Inc., 846 S.W.2d 922, 925 (Tex. App.-Houston [1st Dist.] 1993, no writ); Hussong v. Schwan's Sales Enters., Inc., 896 S.W.2d 320, 327 (Tex. App.-Houston [1st Dist.] 1995, no writ); Martinez v. Bouffard, No. 03-96-00601, 1997 Tex. App. LEXIS 1810, *2-3 (Tex. App.-Austin 1997, writ denied). Tortious interference claims involving at-will employees require the act of an intervening third party, which Lillard is not. Martinez v. Hardy, 864 S.W.2d 767, 776 (Tex. App.-Houston [14th Dist.] 1993, no writ); King v. Jarrett, No. 15-00491, 2015 U.S. Dist. LEXIS 133740, *29-30 (W.D. Tex. Oct. 1, 2015). However, even if it were possible for a tortious interference claim to be made against a supervisor of an at-will employee, Plaintiff's Complaint has failed to do so. (a) Plaintiff's Complaint Fails to Plead Facts Showing That Lillard Acted Solely in His Own Interests Plaintiff's Complaint must plead facts showing that "the agent acted solely in his own interests." Powell Indus., Inc. v. Allen, 985 S.W.2d 455, 457 (Tex. 1998) (emphasis added). Accord Denson v. Beavex Inc., 612 Fed. Appx. 754, 756 (5th Cir. 2015) (same); Holloway v. Skinner, 898 S.W.2d 793, 796 (Tex. 1995) ("the plaintiff must show that the defendant acted in a fashion so contrary to the corporation's best interests that his actions could only have been Case 3:16-cv-01633-D Document 14 Filed 07/21/16 Page 4 of 7 PageID 141 5 motivated by personal interests."); Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 79 (Tex. 2000) (same); Morgan Stanley and Co. v. Texas Oil Co., 958 S.W.2d 178, 180 (Tex. 1997) (same). "A corporate officer's mixed motives - to benefit both himself and the corporation - are insufficient to establish liability." Powell Indus., 985 S.W.2d at 457. Accord Mumfrey, 719 F.3d at 403. Plaintiff's Complaint fails to plead facts showing that Lillard acted solely in his own interests. On the contrary, the Complaint states that "Defendants at all relevant times acted through its agents and employees." Complaint [Dkt. #8] at p. 4, ¶ 22. This "allegation itself forecloses [Plaintiff] from succeeding on the tortious interference with contractual relations claim against [Lillard]." Berry v. Lee, 428 F.Supp.2d 546, 561 (N.D. Tex. 2006) (Fitzwater, J.). See also Mumfrey, 719 F.3d at 403 (rejecting tortious interference claim and finding improper joinder because plaintiff "even admits in his brief that the 'individual [d]efendants…were acting in the scope of their employment at the time of the retaliatory acts.'"); Crawford v. Charles Schwab & Co., Inc., No. 09-0666, 2009 U.S. Dist. LEXIS 101598, *16-18 (N.D. Tex. Oct. 30, 2009) (rejecting tortious interference claim against corporate agent alleged to have acted in course and scope of employment). (b) Plaintiff's Complaint Fails to Plead Facts Showing That Lillard Acted at Macy's Expense Plaintiff's Complaint also must plead facts showing that the agent acted in his own interest at the expense of the company: "It is not enough . . . for the agent's actions to further its own interests; 'the plaintiff must prove that the [agent] acted willfully or intentionally to serve the [agent's] personal interests at the expense of the [principal's].'" Morgan Stanley, 958 S.W.2d at 180 (quoting Holloway, 898 S.W.2d at 798) (emphasis in original). Accord Prudential Ins. Co., 29 S.W.3d at 79; Mumfrey, 719 F.3d at 402-03; Hong Kong Dev., Inc. v. Nguyen, 229 Case 3:16-cv-01633-D Document 14 Filed 07/21/16 Page 5 of 7 PageID 142 6 S.W.3d 415, 447 (Tex. App.-Houston [1st Dist.] 2007, no pet.) ("The plaintiff must prove that the agent acted willfully and intentionally to serve the agent's personal interests at the corporation's expense.") (emphasis in original). Plaintiff's Complaint fails to do so. (c) Plaintiff's Complaint Fails to Plead Facts Showing That the Macy's Defendants Complained About Lillard's Actions Plaintiff's Complaint also must plead facts showing that the Macy's Defendants complained about Lillard's actions. "If a corporation does not complain about its agent's actions, then the agent cannot be held to have acted contrary to the corporation's interests." Mumfrey, 719 F.3d at 403. Accord Prudential Ins. Co., 29 S.W.3d at 79; Morgan Stanley, 958 S.W.2d at 182. Plaintiff's Complaint fails to do so. Plaintiff's Complaint simply attempts to recast the allegations forming the basis of Plaintiff's TCHRA claims against the Macy's Defendants as a tortious interference claim against Lillard individually and then makes the conclusory assertion that "Lillard's actions were contrary to the interests of Defendant Macy's as expressed in its policies". Id. at p. 4 ¶ 17. Such a conclusory assertion is insufficient to establish a tortious interference claim against Lillard. See King v. Jarrett, No. 15-00491, 2015 U.S. Dist. LEXIS 133740, *30-32 (W.D. Tex. Oct. 1, 2015) (rejecting similar tortious interference claim against corporate agent). Because the TCHRA and tortious interference claims against Defendant Lillard are not actionable, he should be dismissed from this action. CONCLUSION For the foregoing reasons, Defendant John Lillard respectfully requests that the Court grant his motion to dismiss Plaintiff's Complaint against him with prejudice. Case 3:16-cv-01633-D Document 14 Filed 07/21/16 Page 6 of 7 PageID 143 7 Respectfully submitted, By: /s/ Michael C. Christman . Michael C. Christman Texas State Bar No. 24038817 Macy's Law Department 111 Boulder Industrial Drive, 2nd Floor Bridgeton, Missouri 63044 Tel: (314) 342-6334 Fax: (314) 342-6366 michael.christman@macys.com Arthur V. Lambert Texas State Bar No. 11841250 Fisher & Phillips LLP 500 N. Akard Street, Suite 3550 Dallas, TX 75201 Tel: (214) 220-9100 Fax: (214) 220-9122 alambert@fisherphillips.com ATTORNEYS FOR DEFENDANTS MACY'S, INC., MACY'S RETAIL HOLDINGS, INC., AND JOHN LILLARD CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy hereof has been served on July 21, 2016, as follows: Via CM/ECF Jason C.N. Smith Law Offices of Jason Smith 600 Eighth Avenue Fort Worth, TX 76104 jasons@letsgotocourt.com /s/ Michael C. Christman . Michael C. Christman Case 3:16-cv-01633-D Document 14 Filed 07/21/16 Page 7 of 7 PageID 144