Alamo Forensic Servs. v. Bexar Cnty.

ALAMO FORENSIC SERVICES, LLC, Plaintiff, v. BEXAR COUNTY, TEXAS and JOE D. GONZALES Defendants.

Civil Action No. SA-20-CV-38-XR

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

May 19, 2020

ORDER ON MOTION TO DISMISS

On this date, the Court considered Bexar County and Joe Gonzales's (collectively "Defendants") motion to dismiss for lack of subject matter jurisdiction and failure to state a claim (docket no. 5), Plaintiff Alamo Forensic Services, LLC's ("Alamo Forensic") response (docket no. 7), and Defendants' reply (docket no. 13). Additionally, the Court considered Alamo Forensic's motion for leave to file an amended complaint (docket no. 7, with the proposed amended complaint attached as docket no. 12), Defendants' response (docket no. 13), and arguments made in open court on May 13, 2020 (docket no. 19). After careful consideration, Defendants' motion to dismiss (docket no. 5) is GRANTED, and Alamo Forensic's motion for leave to file an amended complaint (docket no. 7) is DENIED.

BACKGROUND

As alleged in its original complaint¹, Alamo Forensic is a Texas LLC which provides breath alcohol testing and instrumental calibration services to various Texas law enforcement agenciesand governmental entities. Docket no. 1 at 2-3. One of those entities is Defendant Bexar County, Texas ("Bexar County"). Alamo Forensic alleges that it and Bexar County first contracted for breath test services in September 2012. Id. at 4. Under that contract, which was renewed each year until 2018, Alamo Forensic provided maintenance of breath-test instruments, labor and parts for repair of those instruments, supervision of breath-test operators for the County, expert testimony on breath tests, clerical support, and training classes. Id. In return, Bexar County paid a monthly fee of $12,750. Id.

According to the contract, either party could terminate the agreement with thirty days written notice. Id. On December 29, 2017—during the latest iteration of the contract—the Director of Bexar County Judicial Support Services, Mike Lozito ("Lozito"), allegedly told Alamo Forensic in writing that the County was not going to renew the contract when the current contract ended on February 1, 2018. Id. at 5. Nonetheless, Alamo Forensic claims, Bexar County has continued to request services from Alamo Forensic, and Alamo Forensic has continued to supply those services, even after the contract formally ended. Id. But, Alamo Forensic alleges, it has not been paid for those services despite its expectation that Bexar County would still do so. Id. It claims that it maintained that expectation "because the usual practice of Bexar County was to pay invoices well after they were due, particularly around the end of the year." Id. Further, Debra Stephens ("Stephens"), owner of Alamo Forensic, allegedly spoke with an unnamed county official, the Scientific Director of DPS, who told her to continue providing services because the "contract situation would 'work itself out.'" Id. at 5-6. Alamo Forensic claims that Bexar County continues to ask it to provide services and that Alamo Forensic has repeatedly requested payment from the County. Id. at 6.

In addition, Alamo Forensic claims that Stephens became concerned about the practicesused by Bexar County's new breath-test services contractor, Quality Forensic Toxicology, LLC ("QFT"). Id. at 6-7. Stephens filed a complaint on February 2, 2019 with the Office of the Scientific Director of the Texas DPS Breath Alcohol Lab, but a DPS audit found that QFT was in compliance with relevant regulations. Id. at 7. Stephens, unsatisfied with that result, sent a letter to the Texas Attorney General and the Bexar County Criminal District Attorney's Office. Id. at 7. Alamo Forensic claims that, in response to Stephens' letter, the District Attorney's Office—through Defendant Joe Gonzales, the Criminal District Attorney ("Gonzales")—issued a Memorandum of Disclosure. Id. That memo, Alamo Forensic alleges, inaccurately attributed several false statements to Stephens: statements about Bexar County's lack of payment, statements about QFT being subject to government fines, and statements denying knowledge of a court order requiring photographs of Alamo Forensic's lab. Id. at 7-8.

ANALYSIS

I. Defendants' Motion to Dismiss the Original Complaint

Federal Rule of Civil Procedure 12(b)(6) allows a party to move for the dismissal of a complaint for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). To survive a motion to dismiss, a plaintiff's complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While the complaint does not need to contain detailed factual allegations, it must contain enough factual allegations to "raise a right to relief above a speculative level." Twombly, 550 U.S. at 555. The plaintiff has an obligation to present more than labels, conclusions, and formulaic recitations of the elements to avoid dismissal. Id. In considering a Rule12(b)(6) motion, the court must accept the factual allegations in the complaint and take them in the light most favorable to the non-moving party. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, the court does not accept conclusory allegations or unwarranted deductions of fact as true. Tuchman v. DSC Commc'ns. Corp., 14 F.3d 1061, 1067 (5th Cir. 1994).

Alamo Forensic's original complaint brought three claims: (1) breach of implied contract, (2) quantum meruit, and (3) a claim pursuant to 42 U.S.C. § 1983, alleging a violation of Stephens's First Amendment rights. Docket no. 1 at 8-11.

a. Breach of Implied Contract and Quantum Meruit

In response to Defendants' motion to dismiss, Alamo Forensic abandons these claims in its proposed amended complaint. Docket no. 7 at 2. In short, though, both of these claims (brought solely against Bexar County) must be dismissed because Alamo Forensic has not shown that Bexar County has waived its governmental immunity; as such, the Court lacks subject matter jurisdiction. Governmental immunity protects political subdivisions of the state, including counties, from lawsuits. Ben Bolt-Palito Blanco Consol. ISD v. Tex. Political Subdivs. Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 324 (Tex. 2006). Unless the party suing the governmental entity meets its burden of establishing that governmental immunity is waived, the trial court lacks jurisdiction to consider the claim. Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex. 2012). To establish such a waiver of governmental immunity, a plaintiff must either point to an express legislative waiver or a constitutional provision that allows the plaintiff to bring the claim against the governmental unit. Luttrell v. El Paso Cty., 555 S.W.3d 812, 826 (Tex.App.—El Paso 2018, no pet.). After all, it is not this Court's but rather "the Legislature's sole province to waive or abrogate sovereign immunity." Tex. Nat. Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 857 (Tex. 2002).

The Texas Local Government Code provides one such legislative waiver, but only whenthe municipality enters into a "written contract stating the essential terms of the agreement for providing goods or services to the local government entity." TEX. LOC. GOV'T CODE §§ 271.151(2)(A), 271.152. However, § 271.156 explicitly exempts suits in federal court from that waiver. Id. § 271.156 ("This subchapter does not waive sovereign immunity to suit in federal court."); see also Olford v. City of Houston, No. H-17-3421, 2018 WL 3208196, at *8 (S.D. Tex. June 29, 2018) ("The Texas Local Government Code makes it clear that immunity is not waived for breach of contract claims in federal court.").

Alamo Forensic has not shown, or attempted to show, that Bexar County waived its governmental immunity. Even if immunity could be waived under the Texas Local Government Code in federal court, Alamo Forensic has not pled the existence of a written contract, much less one that provides the "essential terms" of the agreement. Indeed, the very basis of these claims arises from the lack of written contract, i.e. the existence of an implied contract. Because such governmental immunity defeats this Court's subject matter jurisdiction, see Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477, 484 (Tex. 2018), the breach of contract and quantum meruit claims brought in Alamo Forensic's original petition are dismissed.²

b. First Amendment

Alamo Forensic's First Amendment claim alleges that Bexar County and Gonzales issued the Memorandum of Disclosure after Stephens complained about QFT, one of Alamo Forensic's competitors and current contractor with Bexar County. Alamo Forensic claims that Defendants mischaracterized Stephens's statements in an attempt to attack her and Alamo Forensic'sprofessionalism more generally. In stating its claim, Alamo Forensic further asserts that Gonzales was employed by and was acting in the scope of his employment with the District Attorney's office at the time. Defendants' motion asserts myriad reasons to dismiss the First Amendment claim: (1) that the only named plaintiff, Alamo Forensic, lacks standing to assert the rights of Stephens, not a party to the original complaint; (2) Gonzales, acting in his official capacity in issuing the memorandum, is immune from claims for damages under the Eleventh Amendment; (3) Gonzales, as prosecutor, is immune from a § 1983 claim for acts that are within the scope of his prosecutorial duties; (4) the official-capacity suit is barred by governmental immunity; (5) the claim is more accurately described as a defamation claim, and such claims are not actionable under § 1983; and (6) to the extent Alamo Forensic's claim is read as...