Marbley v. Teamster Local 988

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JOSHUA MARBLEY, Plaintiff, v. TEAMSTER LOCAL 988, et al., Defendants.

Civil Action No. 4:22-cv-3396

United States District Court, S.D. Texas, Houston Division

July 24, 2023

ORDER

Andrew S. Hanen, United States District Judge.

Pending before the Court are six Motions to Dismiss filed by Defendants Michael Offord (“Offord”) Teamster Local 988, Michael Honer (“Honer”), Shebrenna Tangarife (“Tangarife”), Rhonda Russell (“Russell”), Bruce Johnson (“Johnson”), Berg Plummer Johnson & Raval LLP, Jessica Craft (“Craft”), Littler Mendelson P.C., Eric H. Nelson (“Nelson”), and Law Office of Eric Nelson. (Doc. Nos. 64,65,67, 69,72,76). Plaintiff Joshua Marbley (“Plaintiff” or “Marbley”) has not responded to any of the motions. Having considered the pleadings and applicable law the Court hereby GRANTS all of the Defendants' Motions to Dismiss.

I. Factual Background

This case centers on whether Plaintiff's termination was an act of retaliation and discrimination. Plaintiff is proceeding in this case pro se.

According to Plaintiff's Second Amended Complaint, he was employed as a Bus Operator for First Transit Inc. (“First Transit”) for eight years. First Transit has a collective bargaining agreement with Defendant Teamster Local 988, a labor organization. (Doc. No. 54 at 4). According to Plaintiffs Second Amended Complaint, he is a member of this union. While individual employees have been named as defendants, First Transit has not been named as a defendant in this lawsuit.^[1]

Plaintiff alleges that he raised safety concerns that bus drivers were tired and falling asleep while driving to Defendant Honer, Regional Director of Operations and Metro Lift Van and Services at First Transit, as well as to several other individuals who worked for the Metropolitan Transit Authority of Harris County, First Transit, or the city of Houston, but his complaints were ignored. (Id. at 5). Following his repeated complaints, Plaintiff alleges that his work environment “became hostile” and that individuals employed by First Transit began searching bus surveillance cameras for evidence of him committing safety violations. (Id. at 9). Plaintiff eventually took his safety complaints to the news media, where local Channel 13 News aired a video featuring Plaintiff titled “Houston METROLIFT Drivers Worry About Fatigue During Long Shifts: ‘Draining'” on September 23, 2021. (Id.).

According to Plaintiff, First Transit did not view the broadcasted story favorably and Plaintiff was placed on administrative leave pending an investigation on October 15, 2021 by Honer and Defendant Tangarife, Human Resources Manager of First Transit (Id.). Plaintiff was terminated on October 19,2021, and was informed his termination was due to the volume of safety violations on his record. (Id.). Plaintiff alleges that no one at First Transit brought up these alleged safety violations prior to his television interview and that his former employer has no evidence of said violations. (Id.).

In his Second Amended Complaint, Plaintiff also names Defendant Russell, who serves as First Transit's “Safety Manager,” but does not plead specific facts about her alleged involvement in the context of his claims. (Id. at 6). Plaintiff similarly names Defendant Offord, “Business Representative Teamster Local 988.” Plaintiff appears to allege Offord did not reply to Plaintiff's emails concerning his potential termination and was not present during the meeting during which First Transit terminated him. (Id. at 7).

Outside of the facts described above, the details of Plaintiff's causes of action are scant at best. In Plaintiff's Second Amended Complaint, he brings the following claims against all Defendants: (1) discrimination and retaliation in violation of § 8(B)(1)(A) of the National Labor Relations Act (NLRA); (2) violation of § 554.002 of the Texas Whistleblower Act; (3) violation of the National Transit System Security Act; (4) employment discrimination in violation of Title VII of the Civil Rights Act of 1964; and (5) interference in violation of 42 U.S.C. § 1983. (Id. at 10). It also appears from Plaintiff s Second Amended Complaint that he pleads a separate, sixth “cause of action” that states cannot license attorneys or otherwise regulate the practice of law that is directed toward Defendants' counsels and their respective law firms.^[2] (Id. at 7-9).

Defendants filed six separate Second Motions to Dismiss for failure to state a claim under Rule 12(b)(6) and lack of subject matter jurisdiction under Rule 12(b)(1). (Doc. Nos. 64, 65, 67, 69, 72, 76).^[3] Plaintiff did not respond to any of Defendants' Second Motions to Dismiss.

II. Legal Standard

A. Rule 12(b)(6)

A defendant may file a motion to dismiss a complaint for “failure to state a claim upon which relief may be granted.” Fed.R.Civ.P. 12(b)(6). To defeat a motion to dismiss under Rule 12(b)(6), a plaintiff 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, 663 (2009) (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.'” Id. (quoting Twombly, 550 U.S. at 557).

In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. Sonnier v. State Farm Mut. Auto. Ins. Co., 509 F.3d 673, 675 (5th Cir. 2007). The Court is not bound to accept factual assumptions or legal conclusions as true, and only a complaint that states a plausible claim for relief survives a motion to dismiss. Iqbal, 556 U.S. at 678-79. When there are well-pleaded factual allegations, the court assumes their veracity and then determines whether they plausibly give rise to an entitlement to relief. Id.

To determine whether to grant a Rule 12(b)(6) motion, a court may look only to allegations in a complaint to determine their sufficiency. Santerre v. Agip Petroleum Co., Inc., 45 F.Supp.2d 558, 568 (S.D. Tex. 1999); Atwater Partners of Texas LLC v. AT & T, Inc., 2011 WL 1004880 (E.D. Tex. 2011). A court may, however, also consider matters outside the four comers of a complaint if they are incorporated by reference, items subject to judicial notice, matters of public record, orders, items appearing in the record of a case, and exhibits attached to a complaint whose authenticity is unquestioned. See Chawla v. Shell Oil Co., 75 F.Supp.2d 626,633 (S.D. Tex. 1999); Brock v. Baskin-Robbins USA Co., 113 F.Supp.2d 1078, 1092 (E.D. Tex. 2000) (at motion to dismiss for failure to state a claim, a court may consider an indisputably authentic document that is attached as an exhibit, if plaintiff's claims are based on the document).

B. Subject Matter Jurisdiction - Rule 12(b)(1)

“A case is properly dismissed for lack of subject mater jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.” Handy v. United Airlines, Inc., CV H-20-3751,2021 639995, at *2 (S.D. Tex. Feb. 18,2021) (quotingSmith v. Regional TransitAuth., 756 F.3d 340, 347 (5th Cir. 2014)). When the Court's subject matter jurisdiction is challenged, the party asserting jurisdiction bears the burden of establishing it. See id; Alabama-Coushatta Tribe of Tex. v. U.S, 757 F.3d 484, 487 (5th Cir. 2014). A motion to dismiss for lack of subject matter jurisdiction should be granted only if it appears certain that the plaintiff cannot prove a plausible set of facts that establish subject matter jurisdiction. See Venable v. La. Workers' Comp. Corp., 740 F.3d 937, 941 (5th Cir. 2013). “[U]nder Rule 12(b)(1), the court may find a plausible set of facts by considering any of the following: (1) the complaint alone; (2) the complaint supplemented by the undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” In re Mirant Corp, 675 F.3d 530, 533 (5th Cir. 2012) (quoting Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2007)).

III. Analysis

A. Plaintiffs Failure to Respond to Defendants' Motions to Dismiss

Local Rules 7.3 and 7.4 of the Southern District of Texas state that a motion will be submitted to the judge twenty-one days after filing. Under Local Rule 7.4, a failure to respond will be taken “as representation of no opposition.” See Local Rule LR7.4. Furthermore, Rule 7.4(a) plainly states that such responses must be filed by the submission date. Id.

The Fifth Circuit, however, has explained that “although we have endorsed the adoption of local rules that require parties to file responses to opposed motions, we have not approved the automatic grant, upon failure to comply with such rules, of motions that are dispositive of the litigation.” John v. Louisiana, 757 F.2d 698, 707-09 (5th Cir. 1986). In fact, the Fifth Circuit has explicitly held that “failure to oppose a 12(b)(6) motion is not in itself grounds for granting the motion.” Servicios Azucareros de Venezuela, C.A. v. John Deere Thibodeaux, Inc., 702 F.3d 794, 806 (5th Cir. 2012). Therefore, a dismissal pursuant to the local rules based solely on Plaintiffs failure to respond to Defendants' motions would be improper.

Since a dismissal based only upon the local...