United States District Court, W.D. Texas, El Paso DivisionMay 2, 2005
EP-03-CA-0355-FM (W.D. Tex. May. 2, 2005)


May 2, 2005


FRANK MONTALVO, District Judge

On this day the Court considered "Defendant Lilia Limon's Motion For Summary Judgment" [Rec. No. 24]. After carefully considering the brief, case file, and applicable law, the Court is of the opinion that "Defendant Lilia Limon's Motion For Summary Judgment" [Rec. No. 24] should be GRANTED for the reasons that follow.


Rosa Acosta, Martha Leyva, Susana Martinez and Bernadette Ortega, Plaintiffs, brought this action seeking damages for violations of Title VII of the Civil Rights Act of 1964, the American's With Disabilities Act of 1990, and state law claims [Rec. No. 1] by filing their complaint on August 29, 2003. Plaintiffs amended their complaint pursuant to this Court's Order. [Rec. No. 8]. Plaintiffs' First Amended Complaint and Jury Demand asserts one claim against Lilia Limon "Defendant Limon." [Rec. No. 9]. Plaintiffs allege that "the conduct committed by Defendant Limon, allegedly in her individual capacity, constitutes intentional infliction of emotional distress upon Plaintiffs." [Rec. No. 9].

Plaintiffs were employees of Ysleta Independent School District Cesar Chavez Academy, ("CCA") where Defendant Limon was the principal. Plaintiff Acosta worked at CCA from March 1999 until her constructive discharge of June 30, 2001. Plaintiff Leyva began working at CCA in October of 1998 and left on June 20, 2001. Plaintiff Martinez began working at CCA in September of 1989 and continues to do so. Plaintiff Ortega began working at CCA in 1997 and continues to do so.

Defendant Limon's last day as principal of CCA was August 10, 2001. Limon was last physically present on CCA's campus on August 13, 2001. Limon continued working for the Ysleta Independent School District from August 13, 2001 to November 2001 in their central office. From November 2001 until her retirement on January 20, 2004, Defendant Limon was principal of YISD's Plato Academy. After Defendant Limon left CCA, she alleges that none of the Plaintiffs have been under her supervision and that she has not spoken or had contact with Plaintiffs. It should be noted that Defendant Limon informed the Court that both she and Plaintiff Leyva were at a retirement dinner for the Associate Superintendent on June 22, 2002, but that they did not speak or communicate with each other in any way. Summons was issued for Defendant Limon on July 20, 2004. Defendant Limon now moves for summary judgment.


Summary judgment is proper where there is "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A factual dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether to grant a motion for summary judgment, a Court should view all evidence and the inferences to be drawn therefrom "in the light most favorable to the party opposing the motion." United States v. Diebold, 369 U.S. 654, 655 (1962). In addition, a court should accept as true all evidence submitted by the non-movant. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000).

Even though Local Rule CV-7(d) authorizes this Court to grant a motion where no response has been filed as unopposed, our Circuit has held this type of local rule inapplicable to summary judgment motions. John v. Louisiana Bd. Of Trs. for State Colls. and Univs., 757 F.2d 698, 709 (5th Cir. 1985). Summary judgment cannot be supported solely on the ground of failure to respond. Id. Instead, "Rule 56 contemplates a shifting burden: the non-movant is under no obligation to respond unless the movant discharges the initial burden of demonstrating that `the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Id. at 707-08. Furthermore when Defendant moves for summary judgment on an affirmative defense, the Defendant must establish each element of the defense as a matter of law. Crescent Towing Salvage Co. v. M/V Anax, 40 F.3d 741, 744 (5th Cir. 1994).

Once the movant has carried his burden, Rule 56(e) states in pertinent part:

When a motion is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. (emphasis added) FED. R. CIV. P. 56(e)


The sole claim asserted against Defendant Limon in Plaintiffs' "First Amended Complaint and Jury Demand" [Rec. No. 9] is the state law tort action for intentional infliction of emotional distress. Defendant Limon raised the affirmative defense of statute of limitations in her answer [Rec. No. 18] and moves for summary judgment based on this affirmative defense.

Plaintiffs' state law claim for intentional infliction of emotional distress against Defendant Limon is subject to the Texas statute of limitations. Gonzales v. Wyatt, 157 F.3d 1016, 1021 n. 1 (5th Cir. 1998). The Texas statute of limitations for personal injury claims is two years. CIV. PRAC. REM. § 16.003(a). "To `bring suit' within the two-year limitations period prescribed by section 16.003, a plaintiff must not only file suit within the applicable limitations period, but must also use diligence to have the defendant served with process." Gant v. A. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990). The two-year time limit is computed from the day the cause of action accrues till the same date two years later. Fisher v. Westmont Hospitality, 935 S.W.2d 222, 225-26 (Tex.Civ.App. 1996).

See Paredes v. City of Odessa, 128 F. Supp.2d 1009, 1016-18 (W.D. Tex. 2000) discussing why the Texas statute of limitations applies even if Plaintiffs had shown they were in compliance with FED. R. CIV P. 3 and 4.

Defendant Limon must establish each element of this defense as a matter of law: 1) that this suit was not filed within two years; and 2) that diligence was not used to serve Defendant Limon with process. Taking the facts and inferences in the light most favorable to Plaintiffs, the last day that Defendant Limon could have intentionally inflicted emotional distress on them was the last day that she was present at CCA or had contact with them, August 13, 2001. Therefore, a complaint for intentional infliction of emotional distress must have been filed by August 13, 2003 in order not to be barred by the statute of limitations. This action was filed on August 29, 2003 and is therefore untimely. Furthermore, service was not issued to Defendant Limon until July 20, 2004, almost a full year after filing suit. "Texas courts have consistently held that due diligence was lacking as a matter of law based on unexplained lapses of shorter duration." Gant, 786 S.W.2d at 260 (citations omitted). The Court finds as a matter of law that Defendant Limon has shown that diligence was not used.

It is not reasonable to infer that Defendant Limon's mere presence without more at the same retirement dinner that Plaintiff Lyva also attended could have intentionally caused emotional distress.

Defendant Limon has proven each element of her affirmative defense as a matter of law. Plaintiffs may not rest on the allegations or denials in their pleadings but must set forth specific facts showing that there is a genuine issue for trial on at least one element of the Defendant's defense. Plaintiffs have not responded or put forth facts to create a genuine issue that any alleged conduct supporting their intentional infliction of emotional distress claim took place after the date that Defendant Limon ceased acting as principal of CCA or was present at CCA. Therefore, Plaintiffs have failed to show that there is a question of material fact that they either filed within the two-year statute of limitations or used diligence to effectuate service of their complaint. The un-controverted summary judgment proof establishes that this action was not served within the applicable limitations period as to Defendant Limon and that service was not effectuated until June 20, 2004. Thus, this Court must grant summary judgment on behalf of Defendant Limon.

IT IS THEREFORE ORDERED that "Defendant Lilia Limon's Motion For Summary Judgment" [Rec. No. 24] is GRANTED.