Eastern District of Texas Federal Court Practice

Plaintiff's Motion to Strike Defendant's Designation of Responsible Third Parties Denied

Flanagan v. Wells Fargo Financial Nat. Bank, 2009 WL 2143439, E.D.Tex. July 14, 2009)
Judge: Amos Mazzant
Holding: Plaintiff's Objection to and Motion to Strike Defendant's Designation of Responsible Third Parties DENIED
Judge Schneider adopted Judge Mazzant's ruling in this case, which mentions the recent Texas "responsible third party" practice under Texas Civil Practices and Remedies Code § 33.004.
This dispute arises out of Defendant's handling of a credit card account that was in Plaintiff's name, which Plaintiff asserts was fraudulently obtained. Plaintiff filed suit asserting that Defendant's unreasonable collection efforts caused him damages under the Texas Debt Collections Practices Act, Fair Debt Collections Practices Act (“FDCPA”), Fair Credit Reporting Act (“FCRA”), as well as for libel, intentional infliction of emotional distress, malice, negligence and gross negligence.
The defendant filed a third party complaint against the plaintiff's wife (I think it is) and father, and designated them as responsible third parties (RTP).  The plaintiff moved to strike the designation as responsible third parties.  Judge Mazzant denied the motion, finding sufficient facts alleged to bring the third party claim, and also denied the motion to sever the third party claim at this time.
But what isn't clear to me is why the designation or motion were filed in the first place - the defendant actually joined the Flanagans to the case as third parties, so the designation as responsible third parties was superfluous.  What the new Texas RTP procedure permits is a defendant to name a nonparty it believes has some responsibility for a plaintiff's injuries but whom the plaintiff did not sue (including bankrupts or entities over whom the court does not have jurisdiction) and have the jury assess a percentage of responsibility against that nonparty, which has the effect of reducing the percentage remaining to be assessed against the defendant.  (It reminds me of the famous Cadaver Synod (or Synodus Horrenda) back in 897 where Pope Formosus who was out of favor - and dead since the previous year - was dug up, his rotting corpse put in a chair, and tried for violations of canon law by his successor, Stephen VI.  Formosus, who unsurprisingly was not very vocal in his own defense (he did have a deacon appointed to represent him, but I doubt he was very vocal when the prosecuting attorney was, uh, the current pope) was found guilty, but the blowback was pretty severe - by the end of the year Stephen was deposed, imprisoned and strangled, and Formosus' corpse, after a brief burial and trip down the Tiber, was reinterred in St. Peter's). 
Back to RTP practice.  What the RTP procedure does not do is make the RTP a party to the case or impose any liability on them, including any res judicata effect from the prior trial.  (As opposed to Formosus, who lost three fingers off his right hand and stripping of the papal vestments, plus the aforementioned burial and temporary slumber with the fishes).  The principal difference between naming and joining (which is what the defendant did here) is that the defendant can actually place liability on the third party and recover from them if it is found to be liable if it joins them to the action as the defendant did here. 
Perhaps the defendant simply belt and suspender-ed the third parties.  In either event, Judge Mazzant focused on whether the real claim - the third party claim, not the RTP - was properly party of the case, and found that it was.
Tomorrow I'll discuss how the new method of counting days under the federal rules is similar to Vatican II.  Or an episode of Star Trek - I haven't decided which.

Motion to Transfer Venue from Sherman to California Denied

Worldpak Intern., LLC v. Diablo Valley Packaging, Inc., 2009 WL 1708080(E.D.Tex. Jun 16, 2009) (NO. 4:08CV469)
Judge: Michael Schneider/Amos Mazzant
Holding: Motion to Transfer Venue DENIED
This is a tortious interference with contract case between two businesses brought in Judge Michael Schneider's court in Sherman.  Judge Schneider accepted Magistrate Judge Amos Mazzant's report and recommendation that the defendant's motion to transfer the case from Sherman to California be denied. 
Notably, the plaintiff in this case is located in Plano, Texas, so while the defendant and its documents were in CA, the plaintiff and its were a few miles down the road from the courthouse in Texas.  The other factors were similarly either split or neutral, thus Judge Mazzant recommended - and Judge Schneider agreed - that the motion be denied.

The "Fun Ships" of Carnival - With Industry Standard One-Year Limitations Provisions!

Marrinan v. Carnival Corp., 2008 WL 728202(E.D.Tex. Mar 17, 2008) (NO. 6:06-CV-294) Judge: Michael Schneider
Holding: Defendant's Second Motion for Summary Judgment GRANTED.
Plaintiff and his wife took a Carnival cruise for their 25th anniversary. Their cruise contract contained a one-year statute of limitations and a forum selection clause requiring suit to be filed in Florida. Five days after boarding, plaintiff was injured aboard the ship when the side window of Plaintiff's cabin came loose and hit him on the head. Plaintiff filed suit in Texas state court not quite two years after the injury.
At the beginning of this case Judge Schneider denied a motion to dismiss based on these clauses. He held that the issue could only be considered in a motion for summary judgment, because the alleged failure to comply with the limitation period did not appear on the face of the complaint, and both parties submitted evidence outside of the pleadings, including the tickets, brochures, and affidavits. The Court also denied Carnival's motion to transfer, holding that because Plaintiff could not have cancelled his ticket with impunity, the forum selection clause was fundamentally unfair. Finally, the Court held that Section 1404(a) allows for transfer, not dismissal, and denied Carnival's motion to dismiss based on improper venue.
Now on summary judgment, Judge Schneider granted the motion for summary judgment based on the one-year limitations provision. Although the evidence was not clear whether the provision was available prior to the accident, it was clear that it was for the year subsequent to the accident. The court rejected the plaintiff's claim that the provision was fundamentally unfair, or that equitable estoppel principles prevented its application.

Motion to Stay Pending Arbitration Granted

Haddock v. Wells Fargo Auto Finance, Inc., 2007 WL 4166053(E.D.Tex. Nov 20, 2007) (NO. 4:07CV201)
Judge: Michael Schneider / Don Bush
Holding: Motion to Compel Arbitration and Motion to Stay Litigation GRANTED.
Judge Bush recommended, and Judge Schneider agreed, that this case be stayed as a result of an arbitration clause contained in a car lease agreement.

Wild Thing ... I Think You Infringe Me...

Controversy Music v. Down Under Pub Tyler, Inc., 2007 WL 1428665(E.D.Tex. May 11, 2007) (NO. 6:06-CV-157)
Judge: Michael Schneider
Holding: Motion for Summary Judgment GRANTED
Just when I delete the Honkytonk Cases tab from the weblog, along comes another action for copyright infringement arising from the unauthorized public performance of Plaintiffs' copyrighted musical compositions.  This time the infringement was at the Down Under Pub & Grub, a restaurant and night club located in Tyler, Texas (the photo is of DUP&G's other location in Frisco, Texas, which the judge found also didn't have a license).  It appears that on June 10, 2005, the five musical compositions at issue in this lawsuit, Kiss, 1999, Give It To Me Baby, Wild Thing, and Shooting Star - were publicly performed there.  (Yes, I know the Wild Thing at issue is the Tone-Loc version - that's my wife's favorite song, as a matter of fact - but I couldn't come up with a family-friendly caption based on that, so I defaulted to my favorite version of the title - the legendary 1988 Sam Kinison cover of the 1965 song by Chip Taylor, perhaps best known for the version by the Troggs in 1966.  I started to link to the video of the song on YouTube, but on reflection the Tone-Loc version is substantially more family-friendly than the dearly departed Sam's). 
Anyway, back to Tyler, where Prince, Tone-Loc and others saw their IP rights vindicated when Judge Schneider granted the plaintiff's motion for summary judgment of copyright infringement, and assessed $25,000 statutory damages (5k per song) and fees.
My question is, why weren't they playing Little Red Corvette?  That's my vote for best song from Prince's 1999 album.  Especially at $5,000 a pop. 

Motion for Summary Judgment in Transportation of Household Goods Case

Conti-Harding v. Eden Relocation, Inc., 2007 WL 1136092(E.D.Tex. Apr 16, 2007) (NO. 6:06-CV-27)
Judge: Michael Schneider
Holding: Motion for Partial Summary Judgment GRANTED IN PART
This lawsuit arises from the transportation of household goods owned by Plaintiff Conti-Harding from Tracy, California to Alba, Texas by Defendant United Express Moving Systems, Inc. (“United Express”), and a dispute over whether the Defendants' liability for damages to Plaintiff's belongings is limited under a bill of lading and the Carmack Amendment to the Interstate Commerce Act.  Defendants moved for partial summary judgment on the questions of whether United Express met all requirements under the Carmack and Cummins Amendments to limit its liability to 60 cents per pound, whether Eden Relocation, Inc.'s liability should also be limited to 60 cents per pound, and whether Plaintiff's claim for intentional infliction of emotional distress is preempted by the Carmack Amendment.
The Defendants' motion for summary judgment on the question of whether United Express's liability is limited to 60 cents per pound was denied.  The Court next concluded that, should it be found that the Bill of Lading limits United Express's liability to 60 cents per pound, and should Eden be found liable for any of Plaintiff's injuries, Eden's liability would be limited to the same extent as that of United Express.  Finally, the Court found that Plaintiff's claim for intentional infliction of emotional distress is dismissed.

Motion to Compel Arbitration Granted in Part

Bradford v. Robert Peltier Nissan Pontiac, 2007 WL 865685(E.D.Tex. Mar 15, 2007) (NO. 606-CV-477)
Judge: Michael Schneider
Holding: Motion to Compel Arbitration Granted in Part
Plaintiff bought a "lemon" from a Tyler car dealership (that's actually a term of art under Texas law) and brought several claims against the defendant arising out of the transaction, as well as a claim under the Federal Wiretap Act.  Defendant sought to compel arbitration under the terms of the Purchase Agreement.  Judge Schneider found that all of the plaintiff's state law claims must be arbitrated, but that the Wiretap Act claim need not be.

Claim that Defendants denied Plaintiff his “birthright royalty funds” rejected

O'Quinn v. Exxon Mobil Corp., 2006 WL 2795333(E.D.Tex. Sep 27, 2006) (NO. CIV A 606CV307)
Judge: Michael Schneider / Judith Guthrie
Holding: Complaint DISMISSED WITH PREJUDICE
COMMENTS;
Plaintiff, proceeding pro se, alleges that Exxon violated his constitutional rights by failing to pay royalties to him.  The complaint also alleges that Governor Rick Perry, Texas Comptroller Carol Strayhorn, Smith County Judge Becky Dempsey, Smith County Court Clerk Judy Carnes, Henderson County Judge David Holstein, Henderson County Court Clerk Gwen Moffeit, Rusk County Judge Sandra Hodges and Rusk County Court Clerk Joyce Lewis violated his constitutional rights for their participation in depriving him of his “birthright royalty and funds” and seeks $100 billion dollars in relief.  Plaintiff states that he is suing judges, court clerks, the Texas Comptroller and the Governor of Texas because he mailed complaints to their offices and no action was taken.
It was a close call, but Judge Guthrie recommended dismissal with prejudice, and Judge Schneider agreed.

Motion to Dismiss Counterclaims Granted in part and Denied in part.

GMAC Commercial Mortg. Corp. v. East Texas Holdings, Inc., 2006 WL 2037556 (E.D.Tex. Jul 17, 2006) (NO. 6:06CV165)
Judge: Michael Schneider
Division: Tyler
Holding: Motion to Dismiss Counterclaims GRANTED in part and DENIED in part.
COMMENTS:
Judge Schneider held that Plaintiff GMAC's Motion to Dismiss should be granted as to the counterclaim for fraudulent inducement, but should be denied as to the counterclaims for fraud, fraud by concealment or non-disclosure, and negligent misrepresentation.

Summary judgment granted in contract case

AT & T Corp. v. Network Communications Intern. Corp., 2006 WL 2385277(E.D.Tex. Aug 17, 2006) (NO. 6:05-CV-243)
Judge: Michael Schneider
Division: Tyler
Holding: Plaintiff's Motion for Summary Judgment is hereby GRANTED
COMMENTS:
This is a breach of contract claim centered on a dispute over charges for telecommunications services. Plaintiff AT & T Corp. (“AT & T”) filed this law suit alleging that Defendant Network Communications International Corp. (“NCIC”) breached the parties' contract by refusing to pay certain recurring charges for toll free telecommunications services and seeking payment of the charges due. NCIC denies any duty to pay the claimed charges under the contract and has brought counter-claims alleging that AT & T has breached its contract by overcharging for the same services and that AT & T fraudulently induced NCIC to enter into the contract by misrepresenting the terms of the contract, specifically, regarding the disputed recurring charges.
AT & T filed the instant motion for summary judgment as to its claim and NCIC's counterclaims on the grounds that there is no genuine issue of material fact that NCIC entered into a contract with AT & T and received certain services under the contract but failed to pay the contract rate for the services, and that no evidence exists to support NCIC's counterclaims. Judge Schneider held that there was no genuine issue as to any material fact as to AT & T's breach of contract claim or as to either of NCIC's counterclaims. He therefore found that summary judgment as to all claims and counterclaims should be granted in favor of Plaintiff, and that NCIC's counterclaims should be dismissed.  He further found that AT & T should be awarded damages in the amount of $467,119.23, as well as costs, reasonable attorney's fees, and interest as provided for in the contract.