Blasko v. Miller

678 F.Supp.3d 832

Barbara BLASKO v. Thomas D. MILLER, et al.

ACTION NO. 4:21-CV-698-Y

United States District Court, N.D. Texas, Fort Worth Division

Signed June 21, 2023

Mohammed S. Ahmed, The Ahmed Firm PLLC, Plano, TX, Jeremy M. Masten, Masten Law Firm PLLC, Houston, TX, for Barbara Blasko.

Brian Rawson, Holly Naehritz, Roy Bradford McKay, Stephen Colquitt Elkind, Hartline Dacus Barger Dreyer LLP, Dallas, TX, for Thomas D. Miller.

Randy J. Hall, Sr., Decker Jones McMackin McClane Hall & Bates, Fort Worth, TX, for West Virginia Public Employee Insurance Agency, West Virginia Department of Administration.

OPINION AND ORDER GRANTING MOTIONS FOR SUMMARY JUDGMENT

TERRY R. MEANS, UNITED STATES DISTRICT JUDGE

Before the Court is a motion for summary judgment (doc. 71) filed by defendants West Virginia Department of Administration ("the DOA") and West Virginia Public Employee Insurance Agency ("PEIA") (collectively "the Agency Defendants"), and a motion for partial summary judgment (doc. 53) filed by defendant Thomas Miller. For the reasons set forth below, the motions will be granted.

BACKGROUND

This case arises out of Plaintiff's practice of medicine at Medical City Weatherford in Weatherford, Texas.¹ In addition to her providing normative physician medical treatment at the hospital, Plaintiff provided off-site, online medical services for companies that engage in telemedicine. As a result of Plaintiff's providing online services, defendant Thomas Miller, acting as a privacy and security officer for the Agency Defendants, contacted Medical City Weatherford and stated that Plaintiff was potentially engaged in the unlawful distribution of prescription drugs as part of a widespread fraudulent-prescription scheme orchestrated by a Russian prescription pill mob in Miami, Florida. Miller also communicated these allegations to other members of the medical community who knew Plaintiff. As a result of Miller's allegations, Plaintiff alleges that she was forced to resign her employment and forego the remainder of her contract.

Plaintiff vehemently denies Miller's allegations and alleges that they are false and unfounded. Accordingly, she sued Miller in both his official and individual capacities, as well as the Agency Defendants, for defamation and tortious interference with her existing employment contract.

The Agency Defendants and Miller now move for summary judgment as to Plaintiff's claims. The motions are ripe for the Court's consideration.

LEGAL STANDARD

Summary judgment is appropriate if the movant establishes, through the pleadings, affidavits, admissions on file, or other admissible evidence, that there is no genuine dispute of material fact, and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if it could change the outcome of the litigation. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. And a dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. A court should view the evidence in the light most favorable to the nonmovant but need not comb through the record in search of evidence creating a genuine issue of material fact. See Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003). A defendant moving for summary judgment on an affirmative defense must show that no reasonable trier of fact could find other than for the defendant; otherwise, there is a genuine issue of fact, and summary judgment cannot be granted. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

ANALYSIS

Defendants each move for summary judgment separately as to the entirety of Plaintiff's claims. Each motion is addressed in turn.

I. The Agency Defendants' Motion for Summary Judgment

The Agency Defendants move for summary judgment on two primary grounds: (1) the applicable statutes of limitations and (2) sovereign immunity under the Eleventh Amendment.² The Court addresses each below and concludes that both grounds are dispositive of Plaintiff's claims.

A. The statutes of limitations

First, the Agency Defendants argue that Plaintiff's claims are time-barred under the applicable limitations statutes. They are correct.

Plaintiff pleads two separate causes of action: defamation and tortious interference with a contract. Under Texas law, a one-year limitations period governs defamation claims. See TEX. CIV. PRAC. & REM. CODE § 16.002(a).³ And a two-year limitations period governs tortious-interference claims. N. Tex. Opportunity Fund L.P. v. Hammerman & Gainer Int'l, Inc., 107 F. Supp. 3d 620, 635 (N.D. Tex. 2015) (Solis, J.) (citing First Nat'l Bank v. Levine, 721 S.W.2d 287, 289 (Tex. 1986)).

The parties agree that the conduct giving rise to Plaintiff's claims occurred on April 9, 2019. See doc. 72, at 5; see also doc. 74, at 10. Consequently, the parties agree that the deadlines for Plaintiff to bring her claims were September 15, 2020, for her defamation claim⁴, and April 9, 2021, for her tortious-interference claim. See doc. 72, at 7; see also doc. 74, at 11. But Plaintiff filed this suit on May 28, 2021. See doc. 1. Accordingly, there is no dispute that Plaintiff's claims are facially time-barred.

However, Emergency Order Forty issued by the Texas Supreme Court authorizes courts to use their discretion to "modify or suspend" statutory deadlines "for a stated period ending no later than October 1, 2021." FORTIETH EMERGENCY ORDER REGARDING COVID-19 STATE OF DISASTER, 629 S.W.3d 911, 912 (Tex. 2021). In Plaintiff's own words, the inquiry here, then, is "whether the Court should exercise its discretion under Emergency Order 40" to extend the applicable limitations deadlines to May 28, 2021. (Doc. 74, at 11-12).

Emergency Order Forty is silent as to the methodology that the Court should use in exercising its discretion to extend a limitations period. See EMERGENCY ORDER, 629 S.W.3d at 912. But Plaintiff directs the Court to the decision of the United States District Court for the Southern District of Texas in Curry v. Valentin for guidance. See No. 4:21-CV-02800, 2022 WL 3903115, at *6 (S.D. Tex. July 11, 2022), report and recommendation adopted, 2022 WL 3903135 (S.D. Tex. Aug. 2, 2022). In Curry, the court assessed whether the plaintiffs articulated a reason why such an extension would be appropriate in that case, focusing particularly on any specific COVID-19-related challenges that could explain the untimely filing of suit. Id.

With this guiding principle in mind, the Court first turns to Plaintiff's contention that her delay in filing suit was specifically caused by COVID-19-related difficulties arising out of her occupation as an emergency medicine physician. (Doc. 74, at 12.) Plaintiff argues that this created day-to-day stress that made it "impossible" for her to initiate this suit prior to May 28, 2021.

While the Court acknowledges the immense stress that members of the medical community faced during the pandemic, it cannot conclude that such difficulties prevented Plaintiff from contacting a lawyer, having the lawyer draft a notice-pleading compliant document, and filing that document via the Court's electronic-filing system. These acts do not require an in-person appearance, or any conduct that would compromise one's health due to the risks associated with COVID-19. This is particularly true when there is undisputed evidence in the record that a lawyer representing Plaintiff throughout the investigation into the fraud scheme had knowledge of the potentiality of her legal claims as early as April 2019. See doc. 73-1, at 114, highlighting a portion of Plaintiff's deposition where she confirms that her lawyer at the time, Robert Frank, was aware of the purportedly actionable statements that Miller made as early as April 2019, a pre-pandemic date.

The Court thus views this tenuous connection between Plaintiff's COVID-19-related difficulties and her failure to timely file suit as insufficient for the Court to exercise its discretion under Emergency Order Forty to extend the limitations deadlines for Plaintiff's claims. Therefore, they are time-barred, and the Agency Defendants are entitled to summary judgment on their statutes-of-limitations defense.

B. Sovereign immunity under the Eleventh Amendment

In addition to asserting the time-barred status of Plaintiff's claims, the Agency Defendants argue that they are entitled to sovereign immunity under the Eleventh Amendment. They are correct.

The Eleventh Amendment to the United States Constitution provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. CONST. amend. XI. This means that Eleventh Amendment sovereign immunity normally bars private suits against nonconsenting states in federal court, unless the state has waived sovereign immunity or Congress has expressly abrogated it. See Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247, 253, 131 S.Ct. 1632, 179 L.Ed.2d 675 (2011); see also AT&T Commc'ns v. Bellsouth Telecomms. Inc., 238 F.3d 636, 644-45 (5th Cir. 2001). And even if the state itself is not a named defendant in the suit, immunity still extends to its agencies where the state is the real party in interest. See Ford Motor Co. v. Dep't of Treas., 323 U.S. 459, 463-64, 65 S.Ct. 347, 89 L.Ed. 389 (1945), overruled on other grounds by Lapides v. Bd. Of Regents of Univ. Sys. of Ga., 535 U.S. 613, 623, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002). So where agencies are merely alter egos of the state, it follows that Eleventh Amendment immunity shields them as well. See Huber, Hunt & Nichols v. Architectural Stone Co., 625 F.2d 22, 24 n.6 (5th Cir. 1980).

To determine whether an agency is an alter ego of the state, district courts within the jurisdiction of the United States Court of...