Case 3:20-cv-00106-M Document 32 Filed 05/20/20 Page 1 of 25 PageID 764 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 DR. DIANE SNOW’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 DR. DIANE SNOW Case 3:20-cv-00106-M Document 32 Filed 05/20/20 Page 2 of 25 PageID 765 TABLE OF CONTENTS I. INTRODUCTION .......................................................................................................... 1 II. BACKGROUND........................................................................................................... 2 A. Summary of Doe No. 1’s Factual Allegations ................................................... 2 B. Doe No. 1’s Pleaded Claims Against Snow ...................................................... 4 III. ARGUMENT AND AUTHORITIES ............................................................................. 4 A. Doe No. 1 has not pleaded plausible substantive claims against Snow. ......... 5 1. Doe No. 1’s negligence claim should be dismissed. ........................................ 5 2. Doe No. 1 fails to state a claim for intentional infliction of emotional distress and the claim should be dismissed. ................................................................. 8 3. Doe No. 1 fails to state a plausible claim of assault. ...................................... 15 4. Doe No. 1 fails to state a claim a plausible claim of false imprisonment. ....... 17 5. Doe No. 1 fails to state a claim for conspiracy. .............................................. 18 IV. REQUEST FOR DISMISSAL ................................................................................... 20 DEFENDANT DR. DIANE SNOW’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE i Case 3:20-cv-00106-M Document 32 Filed 05/20/20 Page 3 of 25 PageID 766 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) .......................................................................................................................... 18 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 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) ............................................... 18 Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 (Tex. 2005) ................................... 14 Davis-Lynch, Inc. v. Moreno, 667 F.3d 539, 553 (5th Cir. 2012) ................................... 18 Elliott v. Tilton, 89 F.3d 260, 264–65 (5th Cir. 1996) ..................................................... 20 Elnajjar v. Nw. Airlines, Inc., No. H-04-680, 2005 WL 1949545, at *6 (S.D. Tex. Aug. 15, 2005) ........................................................................................................... 17 Firestone Steel Products Co. v. Barajas, 927 S.W.2d 608, 614 (Tex. 1996) ................. 20 Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990) ....................... 6 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, 14 Homoki v. Conversion Servs., Inc., 717 F.3d 388, 404–05 (5th Cir. 2013).................... 18 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) ....................................... 8 Jones v. Shipley, 508 S.W. 3d 766, (Tex. App. – Houston, 2016)................................. 16 Juhl v. Airington, 936 S.W.2d 640, 644 (Tex. 1996) ...................................................... 19 Kroger Tex., L.P. v. Suberu, 216 S.W.3d 788, 796 (Tex. 2006) ................................ 9, 14 Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996) ...................................................... 6 Loaisiga v. Cerda, 379 S.W.3d 248, 256 (Tex. 2012) ................................................... 15 DEFENDANT DR. DIANE SNOW’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE ii Case 3:20-cv-00106-M Document 32 Filed 05/20/20 Page 4 of 25 PageID 767 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) ......................................................................................................... 18 Meadows v. Hartford Life Ins. Co., 492 F.3d 634, 640 (5th Cir. 2007) .......................... 18 Pagayon v. Exxon Mobile Corp., 536 S.W.3d 499 (Tex. 2017) ....................................... 6 Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005) (citation omitted).................. 5 Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995) ................ 17 Standard Fruit & Vegetable Co., 985 S.W.2d 62, 67 (Tex. 1998).................................... 9 Thapar v. Zekulka, 994 S.W.2d 635, 637 (Tex. 1999) ..................................................... 5 Tri v. J.T.T., 162 S.W.3d 552, 562 (Tex. 2005) ......................................................... 6, 18 Triplex Commc’ns, Inc. v. Riley, 900 S.W.2d 716, 719 (Tex. 1995) .............................. 20 Turner v. Pavlicek, No. H-10-00749, 2011 WL 4458757, at *14 (S.D. Tex. Sept. 22, 2011) .................................................................................................................... 18 Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993).................................................. 9 Ugalde v. W.A. McKenzie Asphalt Co., 990 F.2d 239 (5th Cir.1993) .............................. 9 Vaughn v. Drennon, 372 S.W.3d 726, 732 (Tex. App.—Tyler 2012, no pet. ................... 9 Waffle House, Inc. v. Williams, 313 S.W.3d 796, 801 n.4 (Tex. 2010) .......................... 15 Wilson v. Sysco Food Servs. of Dallas, Inc., 940 F. Supp. 1003, 1013 (N.D. Tex. 1996) ............................................................................................................................ 9 Statutes Tex. Penal Code Ann. § 22.01(a) (West 2019) ............................................................. 15 DEFENDANT DR. DIANE SNOW’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE iii Case 3:20-cv-00106-M Document 32 Filed 05/20/20 Page 5 of 25 PageID 768 TO THE HONORABLE UNITED STATES DISTRICT JUDGE: Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendant Dr. Diane Snow (“Snow”) respectfully files this motion to dismiss (“Motion”) all of the claims of Jane Doe No. 1 (“Doe No. 1”) against Snow 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, Snow, Russell Mack (“Mack”), 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, 126, 169-173.] 2 Doe No. 1 does not deny that she submitted 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. 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 Snow. 2 References in this Motion to [Compl. ¶ ___.] are to paragraphs in Doe No. 1’s First Amended Complaint (“Complaint”). For example, a reference to [Compl. ¶ 90.] is a reference to paragraph 90 of her First Amended Complaint. 1 DEFENDANT DR. DIANE SNOW’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 1 Case 3:20-cv-00106-M Document 32 Filed 05/20/20 Page 6 of 25 PageID 769 II. BACKGROUND A. Summary of Doe No. 1’s Factual Allegations Individual defendants Mack, Chimbel, and Snow each facilitated one week of the four-week program in Washington, D.C., from July 7, 2019 through August 3, 2019. 3 Near the end of the program, it was determined that Doe No. 1 had plagiarized written assignments submitted during the program. [Compl. ¶ 126.] Snow led the last week of the program and was the only faculty member remaining in Washington when the plagiarism was first discovered. 4 Snow informed Doe No. 1 of the detected plagiarism on August 3, 2019, the last day of the Washington, D.C. program. [Compl. ¶ 126.] Doe No. 1 elected not to respond to Snow during their meeting. [Compl. ¶ 126.] On August 27, 2019, as a sanction for the academic misconduct, Mack recommended that Doe No. 1 receive a grade of no-credit (NC) for the pass/fail course. [Compl. ¶ 169.] Doe No. 1 appealed to Garnett, Associate Dean of the Honors College, who, after soliciting feedback from the program instructors and hearing from Doe No. 1, upheld Mack’s decision and denied the appeal. [Compl. ¶¶ 170-173.] When Doe No. 1 returned from Washington, D.C. to TCU, she began working with TCU’s Title IX Coordinator and Campus Life Dean’s Office to formalize complaints of discrimination and hostile treatment against Snow. [Compl. ¶ 130.] On August 26, 2019, she provided a written Title IX statement and a list of witnesses to the Title IX Office. [Compl. ¶ 130.] After the investigation, which included interviewing students and 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. 4 To the extent the Court can consider assertions in the separate motion to dismiss filed by Aaron Chimbel, a co-defendant, it is noted that on July 29, 2019, Chimbel discovered Doe No. 1 had plagiarized the assignment she submitted to him without knowledge of any of her complaints, and Chimbel notified Snow on the same date. 3 DEFENDANT DR. DIANE SNOW’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 2 Case 3:20-cv-00106-M Document 32 Filed 05/20/20 Page 7 of 25 PageID 770 professors on the trip, TCU’s Title IX Office concluded Snow had not violated TCU’s Policy on Prohibited Discrimination, Harassment and Related Conduct. [Compl. ¶¶ 130-131.] The events and details giving rise to Doe No. 1’s causes of action are described in the Statement of Facts of the 106-page Complaint. Some of Doe No. 1’s allegations include: • Doe No. 1 was mistreated during the Honors Exploration program in Washington, D.C., including being paired with inconsiderate roommates [Compl. ¶¶ 94-95, 97, 99.], inadequate hotel accommodations [Compl. ¶ 94.], extensive walking [Compl. ¶¶ 100-101, 107.], temperatures in July in the upper nineties [Compl. ¶ 100.], blisters [Compl. ¶¶ 101-103, 109-110, 112-113.], being tasked as the group leader for the day [Compl. ¶ 113.], insensitive comments, including being told that the walking would make her healthier [Compl. ¶ 107.], bedbugs and other insects in the hotel [Compl. ¶¶ 115-116.], being left alone in the hotel without 24-hour supervision [Compl. ¶ 116, fn. 145.], inadequate birthday celebrations [Compl. ¶¶ 118-119.], and, receiving “no credit” for the program after it was determined she plagiarized assignments. [Compl. ¶¶ 169-170, 173.] Doe No. 1 also alleges Snow regularly saved her a seat when the group went out to eat [Compl. ¶ 107.] and assaulted Doe No. 1 on two occasions by placing her hand on Doe No. 1’s back and driving her to the front of her peers. [Compl. ¶¶ 103, 108.] • Doe No. 1 also raises complaints concerning Snow’s assistance for Doe No. 1’s group project in an Honors course. [Compl. ¶¶ 87-88.] When Doe No. 1’s group contacted the Honors College for assistance in obtaining data for use in their project, Snow, as Dean of the Honors College, personally emailed the group and DEFENDANT DR. DIANE SNOW’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 3 Case 3:20-cv-00106-M Document 32 Filed 05/20/20 Page 8 of 25 PageID 771 told the students to contact her directly [Compl. ¶ 87.], the students were permitted to meet with Honors College staff for their research assignment, 5 [Compl. ¶ 88.], and Snow expressed interest in the project, requesting a copy of the final paper and telling the students she would come watch their presentation. [Compl. ¶ 88.] B. Doe No. 1’s Pleaded Claims Against Snow Doe No. 1 asserts the following causes of action against Snow: (1) negligence, (2) intentional infliction of emotional distress, (3) assault, (4) false imprisonment, and (5) conspiracy. III. ARGUMENT AND AUTHORITIES This case should be dismissed pursuant to Rule 12(b)(6). Doe No. 1’s real complaint of Snow is that she confronted Doe No. 1 about her plagiarized assignments and then gave her low marks for 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 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. 5 The Honors College staff who met with Doe No. 1’s group is actually the Dean’s Administrative Cabinet (AdCab), not a “diversity board.” DEFENDANT DR. DIANE SNOW’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 4 Case 3:20-cv-00106-M Document 32 Filed 05/20/20 A. Page 9 of 25 PageID 772 Doe No. 1 has not pleaded plausible substantive claims against Snow. 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.) Snow moves the Court to dismiss each of Doe No. 1’s claims against her for failure to state a claim. 1. 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) Snow owed her a legal duty, (2) Snow breached that duty, and (3) damages proximately caused by the breach. Thapar v. Zekulka, 994 S.W.2d 635, 637 (Tex. 1999). DEFENDANT DR. DIANE SNOW’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 5 Case 3:20-cv-00106-M Document 32 Filed 05/20/20 Page 10 of 25 PageID 773 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 facts showing would indicate Snow was acting outside the scope of her employment with TCU in connection with the Washington, D.C. program or otherwise in her interactions with Doe No. 1. Doe No. 1 acknowledges Snow was one of the program facilitators. [Compl. ¶ 116, fn. 145, 171.] In fact, Doe No. 1 alleges that at all relevant times TCU agents – which includes Snow – 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 Snow individually, Doe No. 1 must plead sufficient facts to establish Snow owed her a legal duty, independent of any duty owed by TCU. Doe No. 1’s 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. 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. DEFENDANT DR. DIANE SNOW’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 6 Case 3:20-cv-00106-M Document 32 Filed 05/20/20 Page 11 of 25 PageID 774 Considering the risk-utility factors against Doe No. 1’s allegations, the risk, foreseeability, and likelihood of injury to Doe No. 1 from bad roommates, poor hotel accommodations, high temperatures, significant walking, insensitive comments, bedbugs and other insects, being left alone in the hotel, inadequate birthday celebrations and receiving NC for a program in which plagiarized assignments were submitted is far outweighed by the utility of Snow’s actions, the burden on Snow of guarding against injuries, and the consequence of placing such burden on Snow. If college faculty members and administrators risk personal liability every time a college student feels slighted or faces consequences for academic misconduct, no one will undertake the responsibility. Consequently, the Court should decline to impose an independent duty on Snow. In addition to applying the risk-utility test, courts also consider whether there was a special relationship between the parties. Doe No. 1 asserts Snow (and others) owed her a legal duty “because they had a special relationship with [Doe No. 1] as her university professors.” [Compl. ¶ 236.] But the relationship between a university faculty member or administrator and his or her adult student 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 legal duty exists based on a special relationship. Assuming, for purposes of this Motion, Snow owes Doe No. 1 an independent duty, she has failed to plead sufficient facts demonstrating Snow breached a duty. Doe No. 1’s conclusory statement that “the acts and omissions detailed herein constitute breaches of DEFENDANT DR. DIANE SNOW’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 7 Case 3:20-cv-00106-M Document 32 Filed 05/20/20 Page 12 of 25 PageID 775 said duties” [Compl. ¶ 236.] is insufficient. Likewise, Doe No. 1’s allegation that Snow “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. As a result of the alleged negligence, Doe No. 1 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 claim across the line from conceivable to plausible, her negligence claim against Snow should be dismissed. Lutz v. Chesapeake Appalachia, LLC., 717 F.3d 459, 464 (6th Cir. 2013). 2. Doe No. 1 fails to state a claim for intentional infliction of emotional distress and the 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 allege sufficient facts to show (1) Snow acted intentionally or recklessly, (2) Snow’s conduct was extreme and outrageous, and (3) Snow’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) DEFENDANT DR. DIANE SNOW’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 8 Case 3:20-cv-00106-M Document 32 Filed 05/20/20 Page 13 of 25 PageID 776 (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 Snow acted intentionally or recklessly to cause her severe emotional distress. 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). Liability does not extend to mere insults, indignities, threats, annoyances, or petty oppressions. Wilson v. Sysco Food Servs. of Dallas, Inc., 940 F. Supp. 1003, 1013 (N.D. Tex. 1996); Ugalde v. W.A. McKenzie Asphalt Co., 990 F.2d 239, 243 (5th Cir. 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 Snow acted intentionally or recklessly to cause her severe emotional distress or that the conduct was extreme or outrageous. According to the Complaint: 6 • When Doe No. 1’s group contacted the Honors College for data on diversity as part of a group research project, Snow, the Dean of the Honors College, responded to them personally, and told them she “didn’t appreciate them emailing her staff 6 Snow adamantly denies the characterizations and allegations in the Complaint, but for purposes of the Motion, they are assumed to be true. DEFENDANT DR. DIANE SNOW’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 9 Case 3:20-cv-00106-M Document 32 Filed 05/20/20 Page 14 of 25 PageID 777 without her knowledge,” and “everything goes through her.” [Compl. ¶ 87.] Nevertheless, Doe No. 1 and others in the group worked to obtain data and schedule interviews with key Honors College staff. [Compl. ¶ 87.] • The group scheduled an interview with the Honors College Diversity Board, 7 which included Snow and other white TCU staff members. [Compl. ¶ 88.] The TCU staff members monopolized the conversation, leaving the group time to ask no more than four questions, and Snow ended the meeting “abruptly and aggressively” after the fourth question. [Compl. ¶ 88.] • Snow demanded a copy of the research project when it was completed and told the group she would attend their presentation. [Compl. ¶ 88.] When the project was completed, Snow “aggressively” approached Doe No. 1 demanding a copy of the final project. [Compl. ¶ 88.] Despite Snow’s request for a copy of the research project, Doe No. 1 only provided a summary. [Compl. ¶ 88.] • Before the Washington, D.C. trip, Doe No. 1 met with Snow and shared concerns of visiting the White House because of the present administration. Snow said Doe No. 1 was “unpatriotic,” told Doe No. 1 she should consider herself “lucky to go on the trip” and advised her of potential consequences of missing planned tours during the program. [Compl. ¶ 93.] • Snow told Doe No. 1 it was optional for her roommates to rotate beds and share closet space. [Compl. ¶ 95.] • On Thursday, July 11, 2019, Snow noticed Doe No. 1 and another minority student separating from the group. [Compl. ¶ 103.] Snow hurried back to the two students 7 See fn. 5. DEFENDANT DR. DIANE SNOW’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 10 Case 3:20-cv-00106-M Document 32 Filed 05/20/20 Page 15 of 25 PageID 778 and began to walk “menacingly” behind them, harassing Doe No. 1 for walking too slowly. [Compl. ¶ 103.] Snow aggressively shoved herself between the two students to break them up, then put her hand on Doe No. 1’s back and drove her to the front of the group to join her peers. [Compl. ¶ 103.] • At the hotel that day, Snow asked Doe No. 1’s mother what she was doing there (during the Honors program) and asked how she could afford to be there. [Compl. ¶ 104.] The next day, at the National Museum of African American History and Culture, Snow and Gooding publicly advised Doe No. 1’s mother that her lunch would not be paid with Honors College funds. [Compl. ¶ 105.] Snow also told Doe No. 1, in front of her peers, that she could experience the feeling of being crowded into a slave cargo ship while riding the elevator at the museum. [Compl. ¶ 106.] • Snow told Doe No. 1 she would be accustomed to walking after the trip, suggested she try a low-carb diet, and said all the walking would make Doe No. 1 “much more healthier (sic).” [Compl. ¶ 107.] Snow would regularly save Doe No. 1 a seat at meals by patting the chair then would stare at her intensely and with disgust. [Compl. ¶ 107.] • Snow said Doe No. 1 looked like Gooding, an African American man in his forties. [Compl. ¶ 107.] On Capitol Hill, Snow pushed Doe No. 1’s back, driving her to the front of the group so she could see better and causing her to stumble. [Compl. ¶ 108.] • When Doe No. 1 complained to Snow of her sore feet, Snow asked why she had come on the program knowing she had health conditions that would make it difficult for her to walk and asked how she was capable of getting around TCU. [Compl. ¶ DEFENDANT DR. DIANE SNOW’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 11 Case 3:20-cv-00106-M Document 32 Filed 05/20/20 Page 16 of 25 PageID 779 109.] When Doe No. 1 attempted to show Snow pictures of the sores and blisters on her feet, Snow put her hand up to interrupt Doe No. 1 and blamed Doe No. 1 for her injuries. [Compl. ¶ 109.] When Doe No. 1 explained that the extreme summer heatwave was exacerbating her health complications, Snow asked if she had a problem with the sun and said, “[she] wished she had a wand to wave and fix” Doe No. 1. [Compl. ¶¶ 109-110.] • When Doe No. 1 said she wanted to leave the program, Snow reminded her that she was lucky to be on the trip, and told her she could have to repay the partial program fee, she would not receive course credit, and it could affect her status in the Honors College and at TCU. [Compl. ¶ 111.] • Snow tasked Doe No. 1 with being the group leader for the day, requiring her to provide the other students with directions. When Doe No. 1 struggled with directions, Snow called her a bad leader. [Compl. ¶ 113.] • When Doe No. 1 took Lyft rather than walk with the group, Snow would scowl and shake her head. [Compl. ¶ 113.] • Snow told other students she “hates” Doe No. 1. [Compl. ¶ 114.] • The hotel had bedbugs and other insects. [Compl. ¶ 115.] Snow misdiagnosed the bed bug bites of a white male student as spider bites but once the hotel confirmed there was a bed bug infestation, the male student was moved to a different room. When Doe No. 1 sought assistance from Snow after noticing spiders, bed bugs and mites in her room, Snow said, “bugs live inside too.” Snow told her to stop talking about it and didn’t look at pictures of bug bites on Doe No. 1’s legs. [Compl. ¶ 115.] DEFENDANT DR. DIANE SNOW’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 12 Case 3:20-cv-00106-M Document 32 Filed 05/20/20 • Page 17 of 25 PageID 780 TCU program facilitators, including Snow, left the students unattended during late night and early morning hours. [Compl. ¶ 116, fn. 145.] Snow took a trip to New York one weekend and was not present when Doe No. 1 sprayed bug spray in her hotel room and triggered an asthma attack. [Compl. ¶ 116.] When Snow returned to Washington, D.C., she told Doe No. 1 it was against TCU policy for her to book her own room. [Compl. ¶ 116.] • Snow ruined Doe No. 1’s surprise birthday dinner. Snow said she could not pay for dinner at a particular restaurant because it was over budget, but suggested Doe No. 1’s birthday celebration take place at the family dinner. [Compl. ¶ 118.] As an alternative to being celebrated at the family dinner, Snow suggested Doe No. 1 pick a dessert that she liked for everyone to share at the hotel. [Compl. ¶ 118.] Snow bought a cake and sparklers for Doe No. 1’s birthday. [Compl. ¶ 119.] According to Doe No. 1, when Snow returned to the hotel with the cake, she performed an “erratic dance” with the sparklers. [Compl. ¶ 119.] When Doe No. 1 tried to speak to Snow about her birthday, Snow said, “everything worked out the way it was supposed to” and it was “no big deal.” [Compl. ¶ 119.] • On July 31, 2019, while speaking with Doe No. 1, Snow slammed the door in her face mid-conversation and later that day, Snow berated Doe No. 1 about an assignment in front of her peers. Snow took off her jacket, folded her arms, and walked toward Doe No. 1. [Compl. ¶ 123.] • Snow met with Doe No. 1 on the last day of the program and informed her she had determined Doe No. 1 had plagiarized numerous assignments that had been submitted to Snow, Mack and Chimbel. [Compl. ¶ 126.] Snow also accused Doe DEFENDANT DR. DIANE SNOW’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 13 Case 3:20-cv-00106-M Document 32 Filed 05/20/20 Page 18 of 25 PageID 781 No. 1 of plagiarizing her Honors College Admissions essay. [Compl. ¶ 126.] Snow then left her at the hotel alone. [Compl. ¶ 126.] • Mack determined Doe No. 1 should receive a grade of NC for the program and she appealed. During Doe No. 1’s grade appeal, Snow graded her 60 out of 100 for “class participation,” 0 out of 100 for “written exercises,” and 60 out of 100 for “questions and interaction with guest speakers and tour guides.” [Compl. ¶ 170.] Mack and Chimbel also gave her low marks for the program. [Compl. ¶ 170.] Even assuming all of 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, she 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); HoffmanLa 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 other claims DEFENDANT DR. DIANE SNOW’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 14 Case 3:20-cv-00106-M Document 32 Filed 05/20/20 Page 19 of 25 PageID 782 asserted against Snow, and therefore the claim for intentional infliction of emotional distress should be dismissed. 3. Doe No. 1 fails to state a plausible claim of assault. Doe No. 1’s claim for assault must fail because she has failed to allege sufficient facts to state a plausible claim of assault. The elements of a civil assault mirror those of a criminal assault. See Waffle House, Inc. v. Williams, 313 S.W.3d 796, 801 n.4 (Tex. 2010). Under the Penal Code, an assault occurs if a person: (1) intentionally, knowingly, or recklessly causes bodily injury to another; (2) intentionally or knowingly threatens another with imminent bodily injury; or (3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. Tex. Penal Code Ann. § 22.01(a) (West 2019); Loaisiga v. Cerda, 379 S.W.3d 248, 256 (Tex. 2012). Even if Doe No. 1’s characterization of Snow’s actions are accurate, the conclusory statements that Snow assaulted Doe No. 1 repeatedly throughout the trip and intentionally made contact with Doe No. 1 causing her bodily injury are insufficient to state a claim under Texas Penal Code Ann. § 22.01(a)(1). Doe No. 1 has alleged Snow caused her to stumble on two occasions [Compl. ¶ 103, 108.], but she has failed to allege any facts indicating she suffered bodily injury as a result. Likewise, Doe No. 1’s conclusory allegations that Snow threatened Doe No. 1 with bodily injury are insufficient to state a claim under Texas Penal Code Ann. § 22.01(a)(2). 8 The focus in an assault by threat case is on the defendant’s words and conduct, and the critical inquiry is whether a 8 Doe No. 1 appears to have dismissed her claim that Snow assaulted her by threatening her with imminent bodily injury. [Compl. ¶¶ 257-262.] However, in the event she is still pleading a claim of assault by threat [Compl. ¶¶ 108.], it should be dismissed. DEFENDANT DR. DIANE SNOW’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 15 Case 3:20-cv-00106-M Document 32 Filed 05/20/20 Page 20 of 25 PageID 783 reasonable person under the circumstances would consider the words and conduct to be an objective threat of imminent bodily harm. See, Jones v. Shipley, 508 S.W. 3d 766, (Tex. App. – Houston, 2016). The cases in which conduct has been held sufficient to constitute assault by threat of imminent bodily injury involve words and conduct that, viewed from the objective perspective of a reasonable person, constitute express and unambiguous threats of imminent bodily injury, frequently death. Id. Here, Doe No. 1’s allegations that Snow took off her jacket, folded her arms, and walked toward Doe. [Compl. ¶ 123.], are insufficient to allege an assault by threat claim. Doe No. 1’s allegations that Snow (1) “aggressively shoved herself between Doe No. 1 and another African American student to break them up,” [Compl. ¶ 103.], (2) aggressively placed her hand on Doe No. 1’s back, “driving her to the front of her peers,” [Compl. ¶ 103.], and (3) pushed Doe No. 1’s back causing her to stumble and driving her to the front of the group so Doe No. 1 could see better [Compl. ¶ 108.], are not sufficient to plausibly state a claim of assault under Texas Penal Code Ann. § 22.01(a)(3). Doe No. 1’s statements that Snow was aware her contact was unwelcome and offensive and/or provocative to Doe No. 1 [Compl. ¶ 103.] are mere conclusions with no factual support. From the allegations, it seems Snow wanted Doe No. 1 to engage with others in the group and have a front row view during the tours. While Snow’s method of guiding Doe No. 1 to the front of the group may not have been appreciated or even appropriate, Doe No. 1 has offered no facts to show she ever told Snow her actions were unwelcome or that she otherwise put Snow on notice that her acts were viewed as offensive or provocative. Therefore, Doe No. 1’s assault claim against Snow should be dismissed. DEFENDANT DR. DIANE SNOW’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 16 Case 3:20-cv-00106-M Document 32 Filed 05/20/20 4. Page 21 of 25 PageID 784 Doe No. 1 fails to state a claim a plausible claim of false imprisonment. Doe No. 1’s claim for false imprisonment must fail because she has failed to allege sufficient facts to state a plausible claim. “The essential elements of false imprisonment are: (1) willful detention; (2) without consent; and (3) without authority of law.” Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). “A detention may be accomplished by violence, by threats, or by any other means that restrains a person from moving from one place to another.” Id. at 644-45. “Where it is alleged that a detention is effected by a threat, the plaintiff must demonstrate that the threat was such as would inspire in the threatened person a just fear of injury to her person, reputation, or property.” Id. at 645. Doe No. 1’s allegations that Snow regularly saved Doe No. 1 a seat during meals, forcing Doe No. 1 to sit next to her and refused to let her leave the program are insufficient to support the “willful detention” element of false imprisonment. Doe No. 1 has not alleged where, how, and for how long she was detained, nor has she plead any facts from which it can be inferred that Snow used violence, threats, or any other means that restrained Doe No. 1 from moving from place to place, in order to detain her. See Elnajjar v. Nw. Airlines, Inc., No. H-04-680, 2005 WL 1949545, at *6 (S.D. Tex. Aug. 15, 2005). Even if the allegations were true, which Snow denies, advising Doe No. 1 of the potential consequences of leaving the program early cannot plausibly be seen as a threat. 9 Therefore, Doe No. 1’s false imprisonment claim should be dismissed. Doe No. 1 alleges Snow told her if she left the program before the end of the four weeks, she could 1) make her repay the partial program fee used to induce Doe No. 1 to attend; (2) revoke Doe No. 1’s credit for the course; and (3) kick Doe No. 1 out of both the Honors College and TCU. [Compl. ¶ 111.] 9 DEFENDANT DR. DIANE SNOW’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 17 Case 3:20-cv-00106-M Document 32 Filed 05/20/20 5. Page 22 of 25 PageID 785 Doe No. 1 fails to state a claim for conspiracy. To allege a cause of action for civil conspiracy under Texas law, Doe No. 1 must show (1) Snow 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 DR. DIANE SNOW’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 18 Case 3:20-cv-00106-M Document 32 Filed 05/20/20 Page 23 of 25 PageID 786 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.”). Here, Doe No. 1 alleges Snow and others had a meeting of the minds on August 3, 2019, the last day of the program, and conspired to “accomplish an object or course of action designed to intentionally inflict emotional distress upon [ Doe No. 1].”10 [Compl. ¶ 125.] Thus, Doe No. 1’s conspiracy claim is dependent on her claim of intentional infliction of emotional distress and based on acts that took place on or after August 3, 2019. According to the Complaint, on August 3, 2019, Snow advised Doe No. 1 she determined Doe No. 1 had submitted plagiarized assignments during the program and also accused her of plagiarizing her Honors College admissions essay. [Compl. ¶ 126.] Snow then left her alone at the hotel. [Compl. ¶ 126.] On August 27, 2019, Mack informed Doe No. 1 he was recommending she receive NC for the program. [Compl. ¶ 169.] Doe No. 1 appealed. During the appeal, Snow, Mack, and Chimbel assigned her low marks for class participation, written exercises, and questions and interaction with guest speakers and tour guides. [Compl. ¶ 170.] Garnett denied the appeal. [Compl. ¶ 173.] Doe No. 1 alleges no other acts by Snow, Mack, Chimbel or Garnett after August 3, 2019 to support her theory that they conspired to intentionally inflict emotional distress upon her. Because Doe No. 1’s claim of intentional infliction of emotional distress against Snow fail for the reasons discussed supra, Doe No. 1’s claim for conspiracy must also fail. Additionally, since Snow was acting at all times as an agent and employee of TCU, 10 Doe No. 1 also alleges Snow 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 Snow or the other individual defendants. DEFENDANT DR. DIANE SNOW’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 19 Case 3:20-cv-00106-M Document 32 Filed 05/20/20 Page 24 of 25 PageID 787 Snow 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 Snow and her 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 facts indicating Snow and her alleged “co-conspirators” acted with specific intent to commit an unlawful act. 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 allegations that “Dr. Snow conspired with Professors Mack and Chimbel (of S. 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 designed to intentionally inflict emotional distress upon Doe 1 …” [Compl. ¶ 125.] and that Snow, Garnett, Mack and Chimbel had a meeting of the minds “to discriminate and retaliate against Doe No. 1…” [Compl. ¶ 290.] are mere conclusions with no factual support. Doe No. 1 does not deny she plagiarized assignments during the program. For all of the foregoing reasons, the Court should dismiss Doe No. 1’s conspiracy claim. IV. REQUEST FOR DISMISSAL For the reasons set forth above, Defendant, Dr. Diane Snow, requests that the Court enter an order dismissing all of Doe No. 1’s claims against her with prejudice and without leave to amend. DEFENDANT DR. DIANE SNOW’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 20 Case 3:20-cv-00106-M Document 32 Filed 05/20/20 Page 25 of 25 PageID 788 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 DR. DIANE SNOW CERTIFICATE OF SERVICE The undersigned counsel certifies that the above and foregoing Motion to Dismiss and Brief in Support of Defendant Dr. Diane Snow 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\14I8418.DOCX DEFENDANT DR. DIANE SNOW’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 21