Case 3:20-cv-00106-M Document 34 Filed 05/20/20 Page 1 of 18 PageID 797 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION JANE DOE NO. 1, JANE DOE NO. 2, AND JANE DOE NO. 3 Plaintiffs, v. TEXAS CHRISTIAN UNIVERSITY, DR. DIANE SNOW, DR. ANDREW SCHOOLMASTER, DR. ROB GARNETT, DR. DARRON TURNER, RUSSELL MACK, J.D., LEIGH HOLLAND AND AARON CHIMBEL, Defendants. § § § § § § § § § § § § § § § CIVIL ACTION NO. 3:20-cv-00106-M DEFENDANT RUSSELL MACK’S MOTION TO DISMISS PLAINTIFF JANE DOE NO. 1’S COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED AND BRIEF IN SUPPORT George C. Haratsis Texas Bar No. 08941000 gch@mcdonaldlaw.com Rory Divin Texas Bar No. 05902800 rd@mcdonaldlaw.com Jennifer Littman Texas Bar No. 00786142 jnl@mcdonaldlaw.com McDONALD SANDERS, a Professional Corporation 777 Main Street, Suite 2700 Fort Worth, Texas 76102 (817) 336-8651 (817) 334-0271 Fax ATTORNEYS FOR DEFENDANT RUSSELL MACK Case 3:20-cv-00106-M Document 34 Filed 05/20/20 Page 2 of 18 PageID 798 TABLE OF CONTENTS I. INTRODUCTION .......................................................................................................... 1 II. BACKGROUND........................................................................................................... 2 A. Summary of Plaintiff’s Allegations..................................................................... 2 B. Plaintiff’s Pleaded Claims Against Mack ........................................................... 4 III. ARGUMENT AND AUTHORITIES ............................................................................. 4 A. Plaintiff has not pleaded plausible substantive claims against Mack. ............... 5 1. Doe No. 1’s negligence claim should be dismissed. ........................................ 6 2. Doe No. 1 fails to state a plausible claim for intentional infliction of emotional distress and her claim should be dismissed. ................................... 8 3. Doe No. 1 has failed to state a claim for conspiracy. ..................................... 11 IV. REQUEST FOR DISMISSAL ................................................................................... 13 DEFENDANT RUSSELL MACK’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE i Case 3:20-cv-00106-M Document 34 Filed 05/20/20 Page 3 of 18 PageID 799 INDEX OF AUTHORITIES Cases Alexander v. Choate, 469 U.S. 287, 300 (1995).............................................................. 4 Ashcroft v. Iqbal, 556 U.S. 662, 698 (2009) ................................................................ 5, 8 Banc One Capital Partners Corp. v. Kneipper, 67 F.3d 1187, 1194–95 (5th Cir. 1995) .......................................................................................................................... 11 Bd. of Curators of the Univ. of Missouri v. Horowitz, 435 U.S. 78, 98 (1978) .................. 4 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) ..................................................... 5 Bisong v. Univ. of Houston, 493 F.Supp.2d 896, 906 (S.D. Tex. 2007)....................... 4, 5 Boyd v. Tex. Christian Univ., Inc., 8 S.W.3d 758, 760 (Tex. App.—Fort Worth 1999, no pet.) ............................................................................................................... 7 Boyles v. Kerr, 855 S.W.2d 593, 601–602 (Tex. 1993) ................................................... 8 Carlton v. Steele, 278 F. App'x 352, 355 (5th Cir. 2008) ............................................... 11 Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 (Tex. 2005) ................................... 10 Davis-Lynch, Inc. v. Moreno, 667 F.3d 539, 553 (5th Cir. 2012) ................................... 11 Elliott v. Tilton, 89 F.3d 260, 264–65 (5th Cir. 1996) ..................................................... 12 Firestone Steel Products Co. v. Barajas, 927 S.W.2d 608, 614 (Tex. 1996) ................. 12 Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990) ................... 6, 7 Hairston v. S. Methodist Univ., 441 S.W. 3d 327, 333 (Tex. App. – Dallas 2013, no pet.) ......................................................................................................................... 9 Ho v. Univ. of Tex. at Arlington, 984 S.W.2d 672, 693 (Tex. App.—Amarillo 1998, pet. denied) .................................................................................................................. 7 Hoffman-LaRoche, Inc. v. Zeltwanger, 144 S.W.3d 438, 445 (Tex. 2004) ................ 8, 10 Homoki v. Conversion Servs., Inc., 717 F.3d 388, 404–05 (5th Cir. 2013).................... 11 Hux v. S. Methodist Univ., 819 F.3d 776, 781–83 (5th Cir. 2016) ................................... 7 Jones v. Dallas County, 47 F. Supp. 3d 469, (N.D. Tex. 2014) ....................................... 9 Juhl v. Airington, 936 S.W.2d 640, 644 (Tex. 1996) ...................................................... 11 Kroger Tex., L.P. v. Suberu, 216 S.W.3d 788, 796 (Tex. 2006) ................................ 9, 10 Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996) ...................................................... 6 Lutz v. Chesapeake Appalachia, LLC., 717 F.3d 459, 464 (6th Cir. 2013)...................... 8 Martin v. Tex. Dep't of Protective & Regulatory Servs., 405 F.Supp.2d 775, 799 (S.D. Tex. 2005) ......................................................................................................... 11 Meadows v. Hartford Life Ins. Co., 492 F.3d 634, 640 (5th Cir. 2007) .......................... 11 DEFENDANT RUSSELL MACK’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE ii Case 3:20-cv-00106-M Document 34 Filed 05/20/20 Page 4 of 18 PageID 800 Pagayon v. Exxon Mobile Corp., 536 S.W.3d 499 (Tex. 2017) ................................... 6, 7 Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005) (citation omitted).................. 5 Standard Fruit & Vegetable Co., 985 S.W.2d 62, 67 (Tex. 1998).................................... 9 Thapar v. Zekulka, 994 S.W.2d 635, 637 (Tex. 1999) ..................................................... 6 Tri v. J.T.T., 162 S.W.3d 552, 562 (Tex. 2005) ......................................................... 6, 11 Triplex Commc’ns, Inc. v. Riley, 900 S.W.2d 716, 719 (Tex. 1995) .............................. 12 Turner v. Pavlicek, No. H-10-00749, 2011 WL 4458757, at *14 (S.D. Tex. Sept. 22, 2011) .................................................................................................................... 11 Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993).................................................. 9 Vaughn v. Drennon, 372 S.W.3d 726, 732 (Tex. App.—Tyler 2012, no pet .................... 9 Zeltwanger, 144 S.W.3d at 445 ..................................................................................... 10 DEFENDANT RUSSELL MACK’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE iii Case 3:20-cv-00106-M Document 34 Filed 05/20/20 Page 5 of 18 PageID 801 TO THE HONORABLE UNITED STATES DISTRICT JUDGE: Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendant Russell Mack (“Mack”) respectfully files this motion to dismiss (“Motion”) all of the claims of Jane Doe No. 1 (“Doe No. 1”) against Mack in Plaintiff’s First Amended Complaint [Doc. 19], and brief in support. I. INTRODUCTION This is a suit brought by Doe No. 1, a student at Texas Christian University (“TCU”), against TCU, Mack, Dr. Diane Snow (“Snow”), Aaron Chimbel (“Chimbel”), Dr. Rob Garnett (“Garnett”), Dr. Darron Turner (“Turner”) and Leigh Holland (“Holland”), after she was sanctioned for academic conduct, i.e., plagiarism, following a four week TCU Honors Exploration program in Washington, D.C. entitled “How Washington D.C. Works.” 1 [Compl. ¶ 90-91, 126, 169-173.] 2 Doe No. 1 does not deny that she submitted multiple plagiarized assignments during the course or allege that she was falsely accused of plagiarism. As a result of the academic misconduct, Doe No. 1 received a grade of NC for the pass/fail course. [Compl. ¶¶ 169, 173.] Doe No. 1 appealed the NC grade, which was denied. [Compl. ¶173.] She then filed this lawsuit against TCU and the individual defendants alleging discrimination and various state law claims. Mack asks the Court to dismiss Doe No. 1’s claims against him. On April 13, 2020, Doe No. 1 filed Plaintiffs’ First Amended Complaint, in which two additional plaintiffs, Jane Doe Nos. 2 and 3, also assert claims against TCU and other individual defendants. Jane Doe Nos. 2 and 3 do not allege claims against Mack. 2 References in this Motion to [Compl. ¶ ___.] are to paragraphs in Doe No. 1’s Complaint. For example, a reference to [Compl. ¶ 90.] is a reference to paragraphs 90 of her Complaint. 1 DEFENDANT RUSSELL MACK’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 1 Case 3:20-cv-00106-M Document 34 Filed 05/20/20 Page 6 of 18 PageID 802 II. BACKGROUND A. Summary of Plaintiff’s Allegations Individual defendants Mack, Chimbel, and Snow each led one week of the four- week program in Washington, D.C., from July 7, 2019 through August 3, 2019. 3 [Compl. ¶¶ .] Near the end of the program, it was determined that Doe No. 1 had plagiarized written assignments submitted during the program. [Compl. ¶ 126.] As a sanction for the academic misconduct, Mack recommended that Doe No. 1 receive a grade of No Credit for the pass/fail course. [Compl. ¶¶ 169, 173.] Doe No. 1 appealed the decision to Garnett, Associate Dean of the Honors College, and he upheld the decision and denied Doe No. 1’s appeal. [Compl. ¶ 170-173.] The events and details giving rise to Plaintiff’s causes of action are described in the Statement of Facts in the 106-page Complaint. Doe No. 1’s complaints about the Washington, D.C. trip include being paired with inconsiderate roommates [Compl. ¶¶ 94, 95, 97, 99.], inadequate hotel accommodations [Compl. ¶ 94.], extensive walking [Compl. ¶¶ 100, 101, 107.], temperatures in July reaching the upper nineties [Compl. ¶ 100.], blisters [Compl. ¶¶ 101-103.], rude comments, bed bugs and other insects in the hotel [Compl. ¶¶ 115-116.], being left alone in the hotel without 24-hour supervision [Compl. ¶ 116, fn. 145.], an inadequate birthday celebration [Compl. ¶¶ 118-119.], and, receiving “no-credit” for the summer program after it was determined Doe No. 1 plagiarized assignments [Compl. ¶¶ 169-170.]. However, with the exception of Doe No. 1’s complaints about the grades Mack assigned to her for the summer program and his Dr. Frederick Gooding (“Gooding”) also led one week of the four-week program. Doe No. 1 dismissed her claims against Gooding when she filed the First Amended Complaint. 3 DEFENDANT RUSSELL MACK’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 2 Case 3:20-cv-00106-M Document 34 Filed 05/20/20 Page 7 of 18 PageID 803 recommendation that Doe No. 1 receive NC for the program, Doe No. 1 makes no other specific allegations against Mack. In summary, Plaintiff alleges: • On July 22, 2019, after his week leading the program was over, Mack sent Doe No. 1 a message telling her, “Please keep your positive attitude and your interest in government. We need young people like you to be thoughtful and constructive. Now that you better understand government and how DC works, please use that knowledge to help educate others in a positive, constructive way. That way you will be able to enjoy these priceless freedoms for all of your life. I enjoyed getting to know you and I hope your next two weeks are also interesting ones. If I can ever offer any career advice, please always feel free to call on me….” [Compl. ¶ 124.] • On or about August 3, 2019, Snow, Mack, and Chimbel conspired to “accomplish an object or course of action designed to intentionally inflict emotional distress upon [Doe No. 1]” and Snow, Mack, and Chimbel had a meeting of the minds wherein Snow instructed Gooding, Mack, and Chimbel to reexamine [Doe No. 1’s] work and find justifications for [Snow’s] conduct [Compl. ¶125.] Snow then summoned Doe No. 1 to a one-on-one meeting where Snow informed her she knew Doe No. 1 had plagiarized assignments submitted to Snow, Mack, and Chimbel. [Compl. ¶ 126.] Doe No. 1 does not deny she plagiarized the assignments or attack these statements as false. • On August 27, 2019, Mack informed Doe No. 1 he had determined that she committed plagiarism and was recommending that she receive no credit for the Washington, D.C. course. [Compl. ¶ 169.] On September 4, 2019, Garnett confirmed Mack’s decision and informed Plaintiff she had received a grade of No Credit (“NC”) for the course. [Compl. ¶ 169.] Plaintiff initiated a formal appeal with Garnett to dispute the NC grade. [Compl. ¶ 170.] DEFENDANT RUSSELL MACK’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 3 Case 3:20-cv-00106-M Document 34 Filed 05/20/20 • Page 8 of 18 PageID 804 During the appeal process, when Mack was asked for Doe No. 1’s grades for his week, Mack provided the following grades: Class participation (50% of course grade) Dr. Mack: 20 out of 100 Written exercises (25% of course grade) Dr. Mack: 0 out of 100 Questions and interaction with guest speakers and tour guides (25% of course grade) Dr. Mack: 40 out of 100 [Compl. ¶ 170.] • In addition to giving Doe No. 1 a zero for her written assignment because it was plagiarized, Mack also gave her low marks for “class participation” and “questions and interactions with tour guides.” [Compl. ¶ 172] Though Doe No. 1 suggests the grades were “subjective and arbitrary,” she does not include Mack’s written comments in the Complaint like she did Gooding’s. B. Plaintiff’s Pleaded Claims Against Mack Doe No. 1 asserts the following causes of action against Mack: (1) negligence, (2) intentional infliction of emotional distress, and (3) conspiracy. III. ARGUMENT AND AUTHORITIES This case should be dismissed pursuant to Rule 12(b)(6). Doe No. 1’s real complaint of Mack is that he gave her low marks after learning she submitted plagiarized assignments during the Washington, D.C. program. In cases involving universities and court analysis of academic decisions, courts must “balance the rights of students against the school’s ‘legitimate interests . . . in preserving the integrity of its programs’.” Bisong v. Univ. of Houston, 493 F.Supp.2d 896, 906 (S.D. Tex. 2007) (quoting Alexander v. Choate, 469 U.S. 287, 300 (1995)). Courts provide great deference to university determinations because courts are “particularly ill-quipped to evaluate academic DEFENDANT RUSSELL MACK’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 4 Case 3:20-cv-00106-M Document 34 Filed 05/20/20 Page 9 of 18 PageID 805 performance.” Id. (quoting Bd. of Curators of the Univ. of Missouri v. Horowitz, 435 U.S. 78, 98 (1978)). For instance, federal courts will provide great deference to university determinations that a student plagiarized an assignment and needed to suffer academic disciplinary consequences. See id. at 910–11. The Court should do the same in this case. A. Plaintiff has not pleaded plausible substantive claims against Mack. A plaintiff’s complaint must plead sufficient facts to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 698 (2009) (quoting 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.” Id. Courts “do not accept as true conclusory allegations, unwarranted factual inferences, or legal conclusions.” Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005) (citation omitted); see also Iqbal, 556 U.S. at 679 (“While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.”). Although “a court must accept as true all of the allegations contained in a complaint, that tenet is inapplicable to legal conclusions” and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 697 (2009). 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 557.) If “the plaintiffs have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.” (Twombly, 550 U.S. at 570.) Mack moves the Court to dismiss each of Doe No. 1’s causes of action against him for failure to state a claim, as explained below. DEFENDANT RUSSELL MACK’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 5 Case 3:20-cv-00106-M Document 34 Filed 05/20/20 1. Page 10 of 18 PageID 806 Doe No. 1’s negligence claim should be dismissed. Doe No. 1’s negligence claim fails as a matter of law To state a negligence claim, Doe No. 1 must allege facts showing (1) Mack owed her a legal duty, (2) Mack breached that duty, and (3) damage proximately caused by the breach. Thapar v. Zekulka, 994 S.W.2d 635, 637 (Tex. 1999). To be liable for negligence under Texas law, an individual acting as an agent or employee must have an independent duty of reasonable care to the plaintiff, separate from the employer's duty. Tri v. J.T.T., 162 S.W.3d 552, 562 (Tex. 2005) (citing Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996)). Doe No. 1 has not alleged a single fact that would indicate Mack was acting outside the scope of his employment with TCU when he led the second week of the Washington, D.C. program or in grading Doe No. 1’s performance in the program. In fact, Doe No. 1 alleges that at all relevant times, TCU agents – which includes Mack - were acting within the course and scope of their employment and/or at the direction and under the control of TCU. [Compl. ¶ 231.] Therefore, to state a claim of negligence against Mack individually, Doe No. 1 must plead sufficient facts to establish Mack owed her a legal duty, independent of any duty owed by TCU. Doe No. 1’s First Amended Complaint fails in that regard. The existence of a legal duty is a question of law and the threshold inquiry of the court. Pagayon v. Exxon Mobile Corp., 536 S.W.3d 499 (Tex. 2017)(citing Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990)). Texas courts have not imposed a general duty on university faculty members and administrators to act with reasonable care towards their adult students. “When a duty has not been recognized in particular circumstances, the question is whether one should be.” Pagayon, 536 S.W.3d at 504. DEFENDANT RUSSELL MACK’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 6 Case 3:20-cv-00106-M Document 34 Filed 05/20/20 Page 11 of 18 PageID 807 When analyzing whether a common law duty exists, courts consider the risk, foreseeability and likelihood of injury weighed against the social utility of the actor’s conduct, the burden of guarding against the injury and the consequences of placing the burden on the defendant. Id.; Phillips, 801 S.W.2d at 525. Considering the risk utility factors with Doe No. 1’s allegations, the risk, foreseeability and likelihood of injury to Doe No. 1 from being sanctioned for academic misconduct is far outweighed by the utility of Mack’s actions, the burden on Mack of guarding against such injuries, and the consequence of placing such burden on Mack. If college faculty and administrators risk personal liability every time he or she has to impose sanctions for academic misconduct, no one will be willing to undertake that responsibility. Consequently, the Court should decline to impose an independent duty on Mack. In addition to applying the risk-utility test, courts also consider whether there was a special relationship between the parties. Doe No. 1 asserts Mack and others owed Doe No. 1 a legal duty by virtue of the student and university professor/administrator relationship. [Compl. ¶ 236.] But the relationship between university faculty or administrators and their adult students is not a special relationship. See Ho v. Univ. of Tex. at Arlington, 984 S.W.2d 672, 693 (Tex. App.—Amarillo 1998, pet. denied); see also Boyd v. Tex. Christian Univ., Inc., 8 S.W.3d 758, 760 (Tex. App.—Fort Worth 1999, no pet.); Hux v. S. Methodist Univ., 819 F.3d 776, 781–83 (5th Cir. 2016). Therefore, the Court should not find a duty exists based on a special relationship. Assuming, for purposes of this Motion, Mack owes Doe No. 1 an independent duty, she has failed to plead sufficient facts tending to show Mack breached any duty. Doe No. 1’s conclusory statement that “the acts and omissions detailed herein constitute breaches DEFENDANT RUSSELL MACK’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 7 Case 3:20-cv-00106-M Document 34 Filed 05/20/20 Page 12 of 18 PageID 808 of said duties” [Compl. ¶ 236.] is insufficient. Doe No. 1’s only factual allegations pertaining to Mack relate to his grades of her program performance and his decision to recommend she receive no-credit for the program. The fact that Mack gave Doe No. 1 low marks and recommended a sanction of NC for the program after learning she submitted plagiarized assignments is not a breach of a legal duty. Additionally, Doe No. 1’s allegation that Mack “proximately caused” her injuries [Compl. ¶ 236.] is nothing more than a recital of one of the necessary elements of a negligence cause of action, which is insufficient to state a plausible claim. Iqbal, 556 U.S. at 697. Doe No. 1 has failed to allege any facts supporting how Mack’s actions proximately caused her damages. As a result of the alleged negligence, Doe No. 1 also alleges she suffered “psychological and physiological injury.” [Compl. ¶ 236.] Doe No. 1 has failed to allege any injuries, other than emotional harm and she cannot recover under a negligence theory for mental anguish or emotional distress damages alone. Boyles v. Kerr, 855 S.W.2d 593, 601–602 (Tex. 1993). Because Doe No. 1’s allegations fail to nudge her claims across the line from conceivable to plausible, her negligence should be dismissed. Lutz v. Chesapeake Appalachia, LLC., 717 F.3d 459, 464 (6th Cir. 2013). 2. Doe No. 1 fails to state a plausible claim for intentional infliction of emotional distress and her claim should be dismissed. Doe No. 1’s claim for intentional infliction of emotional distress fails as a matter of law because she has not alleged facts establishing that she can prove the essential elements of the claim. To state a claim for intentional infliction of emotional distress, Doe No. 1 must show (1) Mack acted intentionally or recklessly, (2) Mack’s conduct was DEFENDANT RUSSELL MACK’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 8 Case 3:20-cv-00106-M Document 34 Filed 05/20/20 Page 13 of 18 PageID 809 extreme and outrageous, and (3) Mack’s actions caused Doe No. 1 severe emotional distress. See Hoffman-LaRoche, Inc. v. Zeltwanger, 144 S.W.3d 438, 445 (Tex. 2004). A claim for intentional infliction of emotional distress “is available only in those situations in which severe emotional distress is the intended consequence or primary risk of the actor's conduct.” Jones v. Dallas County, 47 F. Supp. 3d 469, (N.D. Tex. 2014) (quoting Vaughn v. Drennon, 372 S.W.3d 726, 732 (Tex. App.—Tyler 2012, no pet. (citing Standard Fruit & Vegetable Co., 985 S.W.2d 62, 67 (Tex. 1998). Doe No. 1 has not alleged sufficient facts to show Mack acted intentionally or recklessly to cause her severe emotional harm. Moreover, intent is not sufficient if the conduct itself is not extreme and outrageous. Hairston v. S. Methodist Univ., 441 S.W. 3d 327, 333 (Tex. App. – Dallas 2013, no pet.) Conduct is “extreme and outrageous” only if it is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Kroger Tex., L.P. v. Suberu, 216 S.W.3d 788, 796 (Tex. 2006) (citing Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993). “Meritorious claims for intentional infliction of emotional distress are relatively rare because most conduct, even that which causes injury to others, cannot be fairly characterized as extreme and outrageous.” Kroger, 216 S.W.3d at 796. Viewing Doe No. 1’s allegations in a light most favorable to her, they do not indicate Mack acted intentionally or recklessly to cause Doe No. 1 harm or that his conduct was extreme and outrageous. According to the Complaint: • Mack praised Doe No. 1 during the program [Compl. ¶ 124.] but during her appeal later informed her he had determined she committed plagiarism and DEFENDANT RUSSELL MACK’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 9 Case 3:20-cv-00106-M Document 34 Filed 05/20/20 Page 14 of 18 PageID 810 he was recommending she receive no credit for the program. [Compl. ¶ 169.] • During her appeal, Mack gave Doe No. 1 low marks for her performance in the program. Assuming these allegations are true, they do not rise to the level of conduct so outrageous and extreme as to go “beyond all possible bounds of decency.” Zeltwanger, 144 S.W.3d at 445. Additionally, because Doe No. 1’s claim for intentional infliction of emotional distress is merely a “gap filler” tort, in addition to the elements, Doe No. 1 must show or plead that there are no alternative causes of action that would provide a remedy for the severe emotional distress caused by a defendant’s conduct. See Kroger Tex. L.P., 216 S.W.3d at 796; see also Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 (Tex. 2005); Hoffman-La Roche, 144 S.W.3d at 447. If there is an independent set of facts that would support a claim for intentional infliction of emotional distress, the claim is not barred. Hoffman-La Roche, 144 S.W.3d at 450. On the other hand, if a plaintiff’s intentional infliction of emotional distress claim is based on another tort, she cannot maintain an action for intentional infliction of emotional distress, regardless of whether she chooses to assert the alternative claim, succeeds on the alternative claim, or the alternative claim is barred. Id. at 447–48. The conduct that forms the basis of Doe No. 1’s intentional infliction of emotional distress claim is the same conduct that forms the basis of her negligence claim against Mack, and therefore the claim for intentional infliction of emotional distress should be dismissed. DEFENDANT RUSSELL MACK’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 10 Case 3:20-cv-00106-M Document 34 Filed 05/20/20 3. Page 15 of 18 PageID 811 Doe No. 1 has failed to state a claim for conspiracy. To state a claim for civil conspiracy under Texas law, Doe No. 1 must sufficiently allege (1) Mack was a member of a combination of two or more persons, (2) the object of the combination was to accomplish (a) an unlawful purpose or (b) a lawful purpose by unlawful means, (3) the members had a meeting of the minds on the object or course of action, (4) one of the members committed an unlawful, overt act to further the object or course of action, and (5) Doe No. 1 suffered injury as a result of the wrongful act. Tri, 162 S.W.3d at 556; accord Homoki v. Conversion Servs., Inc., 717 F.3d 388, 404–05 (5th Cir. 2013). “Civil conspiracy is a derivative tort; therefore, liability for a civil conspiracy depends on participation in an underlying tort.” Id. at 402. “In order to adequately plead a claim for civil conspiracy, a plaintiff must adequately plead the underlying tort.” Id. If the underlying tort claim fails, so, too, does the civil conspiracy claim as a matter of law. See Davis-Lynch, Inc. v. Moreno, 667 F.3d 539, 553 (5th Cir. 2012) (“To establish the required ‘overt act,’ a plaintiff must show that the defendant committed an act that, if done alone, would give rise to a cause of action.”); see also Meadows v. Hartford Life Ins. Co., 492 F.3d 634, 640 (5th Cir. 2007) (“Under Texas law, civil conspiracy is a derivative tort. If a plaintiff fails to state a separate underlying claim on which the court may grant relief, then a claim for civil conspiracy necessarily fails.” (citation omitted)); see also Carlton v. Steele, 278 F. App'x 352, 355 (5th Cir. 2008); Banc One Capital Partners Corp. v. Kneipper, 67 F.3d 1187, 1194–95 (5th Cir. 1995); Turner v. Pavlicek, No. H-10-00749, 2011 WL 4458757, at *14 (S.D. Tex. Sept. 22, 2011). Additionally, “[c]onspiracy to commit a tort requires that the parties conspire to commit an intentional tort.” Martin v. Tex. Dep't of DEFENDANT RUSSELL MACK’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 11 Case 3:20-cv-00106-M Document 34 Filed 05/20/20 Page 16 of 18 PageID 812 Protective & Regulatory Servs., 405 F.Supp.2d 775, 799 (S.D. Tex. 2005); accord Juhl v. Airington, 936 S.W.2d 640, 644 (Tex. 1996) (“Because negligence by definition is not an intentional wrong, one cannot agree or conspire to be negligent.”). Doe No. 1’s conspiracy claim is dependent on her claim of intentional infliction of emotional distress. 4 [Compl. ¶ 125.] Because Doe No. 1’s claim of intentional infliction of emotional distress against Mack fails for the reasons discussed supra, Doe No. 1’s claim for conspiracy must also fail. Additionally, since Mack was acting at all times as an agent and employee of TCU, Mack cannot be held individually liable for alleged civil conspiracy under Texas law. See Elliott v. Tilton, 89 F.3d 260, 264–65 (5th Cir. 1996). Further, Doe No. 1 does not and cannot meet the elements of a plausible conspiracy claim because (i) she has not alleged sufficient facts to show that Mack and his “co-conspirators had a meeting of the minds”; (ii) she has not alleged sufficient facts to identify what allegedly unlawful act she asserts form the basis of her conspiracy claim; and (iii) Doe No. 1 does not allege Mack and his alleged “co-conspirators” acted with specific intent to commit an unlawful act, pursuant to an agreement to commit an unlawful act, nor does Doe No. 1 allege what the agreement was or when the alleged agreement was formed. See Firestone Steel Products Co. v. Barajas, 927 S.W.2d 608, 614 (Tex. 1996) (citing Triplex Commc’ns, Inc. v. Riley, 900 S.W.2d 716, 719 (Tex. 1995). Doe No. 1’s conclusory allegations that “Dr. Snow conspired with Professors Mack and Chimbel (of St. Bonaventure University), with whom she had a meeting of the minds on or about August 3, 2019 and agreed to accomplish an object or course of action 4 Doe No. 1 also alleges Mack and others had a meeting of the minds to discriminate and retaliate against Doe No. 1, [Compl. ¶ 290.] but she has not asserted a claim of discrimination or harassment against Mack or the other individual defendants. DEFENDANT RUSSELL MACK’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 12 Case 3:20-cv-00106-M Document 34 Filed 05/20/20 Page 17 of 18 PageID 813 designed to intentionally inflict emotional distress upon Jane Doe I…” [Compl. ¶ 125] and that Snow, Garnett, Mack, and Chimbel had a meeting of the minds “to discriminate and retaliate against Jane Doe No. 1…” [Compl. ¶ 290.] are mere conclusions with no factual support. And, Doe No. 1 does not deny she plagiarized assignments during the program. Accordingly, the Court should dismiss Doe No. 1’s conspiracy claim. IV. REQUEST FOR DISMISSAL For the reasons set forth above, Defendant, Russell Mack, requests that the Court enter an order dismissing all of Doe No. 1’s claims against him with prejudice and without leave to amend. Respectfully submitted, /s/ Jennifer N. Littman George C. Haratsis Texas Bar No. 08941000 gch@mcdonaldlaw.com Rory Divin Texas Bar No. 05902800 rd@mcdonaldlaw.com Jennifer Littman Texas Bar No. 00786142 jnl@mcdonaldlaw.com McDONALD SANDERS, A Professional Corporation 777 Main Street, Suite 2700 Fort Worth, Texas 76102 (817) 336-8651 (817) 334-0271 Fax ATTORNEYS FOR DEFENDANT RUSSELL MACK DEFENDANT RUSSELL MACK’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 13 Case 3:20-cv-00106-M Document 34 Filed 05/20/20 Page 18 of 18 PageID 814 CERTIFICATE OF SERVICE The undersigned counsel certifies that the above and foregoing Motion to Dismiss and Brief in Support of Defendant Russell Mack is being served by electronic mail on all counsel of record receiving electronic notice from the court’s ECF notification system on May 20, 2020. /s/ Jennifer N. Littman Jennifer N. Littman I:\09300\0102\14I8419.DOCX DEFENDANT RUSSELL MACK’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 14