Case 3:20-cv-00106-M Document 30 Filed 05/20/20 Page 1 of 25 PageID 647 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 AARON CHIMBEL’S MOTION TO DISMISS PLAINTIFF JANE DOE NO. 1’S COMPLAINT FOR LACK OF PERSONAL JURISDICTION AND 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 AARON CHIMBEL Case 3:20-cv-00106-M Document 30 Filed 05/20/20 Page 2 of 25 PageID 648 TABLE OF CONTENTS I. INTRODUCTION .......................................................................................................... 1 II. BACKGROUND........................................................................................................... 2 A. Summary of Factual Allegations ....................................................................... 2 B. Plaintiff’s Jurisdictional Allegations ................................................................... 4 C. Plaintiff’s Claims Against Chimbel .................................................................... 5 D. Chimbel’s Declaration – Facts Establishing Lack of Personal Jurisdiction by a Texas Court .............................................................................................. 5 III. ARGUMENT AND AUTHORITIES ............................................................................. 7 A. This Court Should Dismiss Plaintiff’s Claims Against Chimbel Because Plaintiff Cannot Establish General or Specific Jurisdiction Over Chimbel. ........ 7 1. Chimbel does not have continuous and systematic contacts with Texas that are necessary to establish general jurisdiction........................................ 9 2. Chimbel did not commit the acts or breaches complained of by Plaintiff in Texas nor aimed any conduct at Texas necessary to establish specific jurisdiction. ...................................................................................... 10 B. Doe No. 1 has not pleaded plausible substantive claims against Chimbel. .... 12 1. Doe No. 1’s negligence claim should be dismissed ..................................... 13 2. Doe No. 1 fails to state a claim for intentional infliction of emotional distress and it should be dismissed ............................................................. 16 3. Plaintiff has failed to state a plausible claim for conspiracy. ........................ 18 IV. REQUEST FOR DISMISSAL ................................................................................... 20 DEFENDANT AARON CHIMBEL’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE i Case 3:20-cv-00106-M Document 30 Filed 05/20/20 Page 3 of 25 PageID 649 INDEX OF AUTHORITIES Cases Alexander v. Choate, 469 U.S. 287, 300 (1995)............................................................ 12 Ashcroft v. Iqbal, 556 U.S. 662, 698 (2009) ...................................................... 12, 13, 15 Banc One Capital Partners Corp. v. Kneipper, 67 F.3d 1187, 1194–95 (5th Cir. 1995) .......................................................................................................................... 19 Bd. of Curators of the Univ. of Missouri v. Horowitz, 435 U.S. 78, 98 (1978) ................ 12 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) ............................................. 12, 13 Bisong v. Univ. of Houston, 493 F.Supp.2d 896, 906 (S.D. Tex. 2007)......................... 12 Boyd v. Tex. Christian Univ., Inc., 8 S.W.3d 758, 760 (Tex. App.—Fort Worth 1999, no pet.) ............................................................................................................. 15 Boyles v. Kerr, 855 S.W.2d 593, 601–602 (Tex. 1993) ................................................. 16 Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (citations omitted) .............. 8 Calder v. Jones, 465 U.S. 783, 789–90 (1984) ............................................................. 10 Carlton v. Steele, 278 F. App’x 352, 355 (5th Cir. 2008) ............................................... 19 Cent. Freight Lines v. APA Trans. Corp., 322 F.3d 376, 380 (5th Cir. 2003) .......... 7, 8, 9 Coury v. Prot, 85 F.3d 244, 251 (5th Cir. 1996) (citations omitted) ................................. 8 Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 (Tex. 2005) ................................... 17 Daimler AG v. Bauman, 571 U.S. 117, 139 (2014) ..................................................... 7, 8 Davis-Lynch, Inc. v. Moreno, 667 F.3d 539, 553 (5th Cir. 2012) ................................... 18 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) ..................... 14 Hairston v. S. Methodist Univ., 441 S.W. 3d 327, 333 (Tex. App. – Dallas 2013, no pet.) ....................................................................................................................... 16 Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415–16 (1984) ......... 7 Ho v. Univ. of Tex. at Arlington, 984 S.W.2d 672, 693 (Tex. App.—Amarillo 1998, pet. denied) ................................................................................................................ 15 Hoffman-LaRoche, Inc. v. Zeltwanger, 144 S.W.3d 438, 445 (Tex. 2004) ........ 16, 17, 18 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) ................................. 15 Int’l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945) .......................................................... 7 Jones v. Dallas County, 47 F. Supp. 3d 469, (N.D. Tex. 2014) ..................................... 16 Juhl v. Airington, 936 S.W.2d 640, 644 (Tex. 1996) ...................................................... 19 DEFENDANT AARON CHIMBEL’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE ii Case 3:20-cv-00106-M Document 30 Filed 05/20/20 Page 4 of 25 PageID 650 Kroger Tex., L.P. v. Suberu, 216 S.W.3d 788, 796 (Tex. 2006) .............................. 16, 17 Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996) .................................................... 13 Lutz v. Chesapeake Appalachia, LLC., 717 F.3d 459, 464 (6th Cir. 2013).................... 16 Martin v. Tex. Dep’t of Protective & Regulatory Servs., 405 F.Supp.2d 775, 799 (S.D. Tex. 2005) ......................................................................................................... 19 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) ..................................... 14 Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005) (citation omitted)................ 12 Rush v. Savchuk, 444 U.S. 320, 331–32 (1980) ........................................................... 10 Siskind v. Villa Found. for Educ., Inc., 642 S.W.2d 434, 438 (Tex. 1982) ..................... 10 Standard Fruit & Vegetable Co., 985 S.W.2d 62, 67 (Tex. 1998).................................. 16 Stuart v. Spademan, 772 F.2d 1185, 1192 (5th Cir. 1985) .............................................. 7 Thapar v. Zekulka, 994 S.W.2d 635, 637 (Tex. 1999) ................................................... 13 Tri v. J.T.T., 162 S.W.3d 552, 562 (Tex. 2005) ....................................................... 13, 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) .................................................................................................................... 19 Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993)................................................ 17 Ugalde v. W.A. McKenzie Asphalt Co., 990 F.2d 239, 243 (5th Cir.1993) .................... 17 Vaughn v. Drennon, 372 S.W.3d 726, 732 (Tex. App.—Tyler 2012, no pet. ................. 16 Walden v. Fiore, 571 U.S. 277, 284 (2014) ..................................................................... 8 Wheel-Source, Inc. v. Gullekson, No. 3:12-CV-1500-M, 2013 WL 944430, at *3 (N.D. Tex. Mar. 12, 2013) (citation omitted) ....................................................... 5, 9, 10 Wilson v. Sysco Food Servs. of Dallas, Inc., 940 F. Supp. 1003, 1013 (N.D. Tex. 1996) .......................................................................................................................... 17 WNS, Inc. v. Farrow, 884 F.2d 200, 203 (5th Cir. 1989) ............................................... 10 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980) (citations omitted) ........................................................................................................................ 8 Statutes 28 U.S.C. § 1931(b)(1) and (2)........................................................................................ 5 4A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 1069.5 ....................................................................................................................... 9 DEFENDANT AARON CHIMBEL’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE iii Case 3:20-cv-00106-M Document 30 Filed 05/20/20 Page 5 of 25 PageID 651 TO THE HONORABLE UNITED STATES DISTRICT JUDGE: Pursuant to Rule 12(b)(2) and 12(b)(6) of the Federal Rules of Civil Procedure, Defendant Aaron Chimbel (“Chimbel”) respectfully files this motion to dismiss (“Motion”) all of the claims of Jane Doe No. 1 (“Doe No. 1”) against Chimbel 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, Chimbel, Dr. Diane Snow (“Snow”), Russell Mack (“Mack”), 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. called “How Washington D.C. Works.” 1 [Compl. ¶¶ 90-91, 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 no-credit (NC) for the pass/fail course. [Compl. ¶ 169, 173.] Doe No. 1 appealed the NC grade, and her appeal was denied. [Compl. ¶¶ 170, 173.] She then filed this lawsuit against TCU and multiple individual defendants alleging discrimination and various state law claims. Doe No. 1 asserts claims of negligence, intentional infliction of emotional distress and conspiracy against Chimbel. As a basis for the Motion, Chimbel would show this case should be dismissed because this Court lacks the requisite personal jurisdiction over him. Chimbel is a 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 Chimbel. 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 Complaint. 1 DEFENDANT AARON CHIMBEL’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 1 Case 3:20-cv-00106-M Document 30 Filed 05/20/20 Page 6 of 25 PageID 652 resident of Allegany, New York and does not have continuous and systematic contacts with Texas. Consequently, Plaintiff cannot establish that this Court can exercise general jurisdiction over him. Likewise, Plaintiff cannot establish specific jurisdiction over Chimbel. With respect to the acts alleged to have been committed by Chimbel, Chimbel neither committed them in Texas nor purposefully directed any activities at Texas. Even if Plaintiff could show Chimbel had sufficient minimum contacts with Texas, the assertion of jurisdiction over him based on the facts presented would not comport with traditional notions of fair play and substantial justice. Thus, Chimbel asks this Court to dismiss all claims against Chimbel pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. Chimbel additionally asks this Court to dismiss all claims against him because the factual allegations fail to state a plausible claim. II. BACKGROUND A. Summary of Factual Allegations Individual defendants Mack, Chimbel, and Snow each facilitated one week of a 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 Doe No. 1 had plagiarized written assignments submitted to two professors, including Chimbel. 4 As a sanction for the academic misconduct, Doe No. 1 received a grade of NC for the pass/fail course. [Compl. ¶ 169.] Doe No. 1 appealed the decision to Garnett, a co-defendant, but Garnett upheld the decision and denied Doe No. 1’s appeal. [Compl. ¶¶ 170-173.] 3 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 Chimbel was the first individual to discover the plagiarism. He informed Snow, who was still in Washington, D.C. with the students for the last week of the program. [App., CHIMBEL 0007, ¶ 23.] DEFENDANT AARON CHIMBEL’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 2 Case 3:20-cv-00106-M Document 30 Filed 05/20/20 Page 7 of 25 PageID 653 The events and details giving rise to Plaintiff’s causes of action are described in Paragraphs 20 through 133 and Paragraphs 169 through 174 of the Statement of Facts of the 106-page Complaint. Doe No. 1’s complaints about the Washington, D.C. trip include inconsiderate roommates, inadequate hotel accommodations, extensive walking, temperatures in July reaching the upper nineties, blisters, rude comments, bed bugs and other insects in the hotel, being left alone in the hotel without 24-hour supervision, inadequate birthday celebrations, and receiving “no-credit” for the summer program after it was determined Doe No. 1 plagiarized assignments. Chimbel’s name appears in only six paragraphs of the Statement of Facts. 5 In summary, Plaintiff alleges: • On July 26, 2019, Snow added a “family dinner” to the group’s itinerary in honor of Chimbel, a professor at St. Bonaventure University and Dean of its Jandoli School of Communication. [Compl. ¶ 118.] July 26 is also Doe No. 1’s birthday. [Compl. ¶ 117.] Snow suggested that Doe No. 1 accept being celebrated at the family dinner or in the alternative, that she pick out a dessert that she liked for everyone to share at the hotel after dinner. [Compl. ¶ 118.] • On or about August 3, 2019, Snow, Mack, and Chimbel (of St. Bonaventure University) had a meeting of the minds designed to intentionally inflict emotional distress upon Doe No. 1. [Compl. ¶ 125.] As part of this meeting of the minds, Snow instructed Chimbel, Mack and Gooding 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 at the hotel, where Snow informed Doe No. 1 she knew Doe No. 1 had plagiarized assignments during 5 Chimbel’s name appears in Paragraphs 118, 125, 126, 169, 170 and 172 of Plaintiff’s Statement of Facts. DEFENDANT AARON CHIMBEL’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 3 Case 3:20-cv-00106-M Document 30 Filed 05/20/20 Page 8 of 25 PageID 654 the program and submitted them to herself, Chimbel, and Mack. [Compl. ¶ 126.] Doe No. 1 does not deny she plagiarized the assignments or attack these statements as false. • Doe No. 1 was later informed by Mack that he was recommending she receive a No Credit grade for the Washington, D.C. course due to her academic misconduct. [Compl. ¶ 169.] Garnett confirmed to Doe No. 1 that she received a No Credit grade for the course. [Compl. ¶ 169.] Plaintiff initiated a formal appeal with Garnett. [Compl. ¶ 170.] When Chimbel was asked for his grades for Doe No. 1 during the appeal process, Chimbel provided the following grades: Class participation (50% of course grade) Dr. [sic] Chimbel: 70 out of 100 Written exercises (25% of course grade) Dr. [sic] Chimbel: 0 out of 100 Questions and interaction with guest speakers and tour guides (25% of course grade) Dr. [sic] Chimbel: 60 out of 100 [Compl. ¶ 170.] • In addition to giving Doe No. 1 a zero for her written assignment because it was plagiarized, Chimbel also gave her low marks for “class participation” and “questions and interactions with tour guides.” [Compl. ¶ 172.] Doe No. 1 suggests the grades were “subjective and arbitrary,” and that Chimbel offered only four short sentences in support of his grades for Doe No. 1, [Compl. ¶ 172] but she does not include Chimbel’s written comments in the Complaint like she did Gooding’s. B. Plaintiff’s Jurisdictional Allegations “When personal jurisdiction is challenged . . . the party seeking to invoke jurisdiction must make a prima facie showing of jurisdiction, with the court resolving all DEFENDANT AARON CHIMBEL’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 4 Case 3:20-cv-00106-M Document 30 Filed 05/20/20 Page 9 of 25 PageID 655 disputed facts in favor of jurisdiction.” Wheel-Source, Inc. v. Gullekson, No. 3:12-CV1500-M, 2013 WL 944430, at *3 (N.D. Tex. Mar. 12, 2013) (citation omitted). Plaintiff asserts that “[V]enue is proper in the United States District Court for the Northern District of Texas pursuant to 28 U.S.C. § 1931(b)(1) and (2) because all Defendants reside within this judicial district and are residents of the state of Texas and because a substantial part of the events or omissions involving TCU, which give rise to Doe No. 1’s claims occurred in this judicial district. Additionally, and in the alternative, venue is also proper in this Court because each Defendant is subject to personal jurisdiction with respect to this lawsuit in this district.” [Compl. ¶ 6.] Plaintiff has not provided any other basis on which Chimbel is subject to personal jurisdiction in this Court, nor has she stated whether Chimbel is subject to general or specific jurisdiction. C. Plaintiff’s Claims Against Chimbel Based on the facts alleged above, Plaintiff asserts the following causes of action against Chimbel: (1) negligence, (2) intentional infliction of emotional distress, and (3) conspiracy. D. Chimbel’s Declaration – Facts Establishing Lack of Personal Jurisdiction by a Texas Court This Motion is supported by the Declaration of Aaron Chimbel, with exhibits. [App., CHIMBEL 0001-0089.], attached to the supporting Appendix. Since August 2018, Chimbel has resided in and worked in the State of New York. [App., CHIMBEL 00010002, ¶ 3.] Chimbel has not lived or worked in Texas since 2018. [App., CHIMBEL 0002, ¶ 6.] Chimbel and his wife still own a house in Fort Worth, Texas, but have no plans to return. Chimbel and his wife requested a homestead exemption on the property when it was purchased in 2013 and have since requested it be removed. According to the Tarrant DEFENDANT AARON CHIMBEL’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 5 Case 3:20-cv-00106-M Document 30 Filed 05/20/20 Page 10 of 25 PageID 656 County Appraisal District website, there is currently no homestead exemption on the property. [App., CHIMBEL 0002, ¶ 6.] Chimbel has a New York driver’s license and is registered to vote in New York. [App., CHIMBEL 0002, ¶ 6.] He does not have an office in Texas and does not have a telephone listing. [App., CHIMBEL 0002, ¶ 7.] He has no agent for service of process in Texas. [App., CHIMBEL 0002, ¶ 8.] He has never knowingly committed a tort in Texas. [App., CHIMBEL 0002, ¶ 9.] He has returned to Texas only one time since moving to New York, when he attended a journalism conference in Houston, Texas from February 28 to March 2, 2019. [App., CHIMBEL 0002, ¶ 11.] Prior to the Washington, D.C. program, Chimbel corresponded with Snow from New York and may have had one phone call with the other faculty members. [App., CHIMBEL 0002-0003, ¶ 12.] Chimbel did not participate in any pre-orientation meetings with students before the program. [App., CHIMBEL 0003, ¶ 14.] Chimbel was in New York when he sent his first communication to the program’s students. [App., CHIMBEL 0004, ¶ 15.] Chimbel was in Washington, D.C. on the day of Doe No. 1’s birthday and the family dinner about which she complains. That same night, while he was still in Washington, D.C., he emailed the students their final assignments from his St. Bonaventure University email address. [App., CHIMBEL 0005-0006, ¶¶ 19-20.] Chimbel received and reviewed Doe No. 1’s paper while he was in New York and discovered Doe No. 1 had plagiarized the assignment while he was in New York. Chimbel DEFENDANT AARON CHIMBEL’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 6 Case 3:20-cv-00106-M Document 30 Filed 05/20/20 Page 11 of 25 PageID 657 was also in New York when he emailed Snow and informed her of Doe No. 1’s plagiarism. [App., CHIMBEL 0006-0007, ¶¶ 22-23; Ex. 5, 6, 7, 8, 9, CHIMBEL 0040-0071.] Chimbel was in New York when he communicated with Garnett about Doe No. 1’s appeal and when he received Garnett’s finding. [App., CHIMBEL 0010, ¶ 30; Ex. 14, CHIMBEL 0081-0089.] III. ARGUMENT AND AUTHORITIES A. This Court Should Dismiss Plaintiff’s Claims Against Chimbel Because Plaintiff Cannot Establish General or Specific Jurisdiction Over Chimbel. When a nonresident defendant moves to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of establishing personal jurisdiction over the defendant. Stuart v. Spademan, 772 F.2d 1185, 1192 (5th Cir. 1985). The Due Process Clause allows a court to exercise personal jurisdiction over a nonresident defendant only when “(1) that defendant has purposefully availed himself of the benefits and protections of the forum state by establishing ‘minimum contacts’ with the forum state; and (2) the exercise of jurisdiction over that defendant does not offend ‘traditional notions of fair play and substantial justice.’” Cent. Freight Lines v. APA Trans. Corp., 322 F.3d 376, 380 (5th Cir. 2003) (quoting Int’l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945)). A non-resident defendant may be subject to either general or specific jurisdiction. A court may only exercise general jurisdiction over a nonresident defendant when that defendant’s contacts with the forum state are “so ‘continuous and systematic’ as to render [it] essentially at home in the forum State.” Daimler AG v. Bauman, 571 U.S. 117, 139 (2014); see also Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415– 16 (1984). “For an individual, the paradigm forum for the exercise of general jurisdiction DEFENDANT AARON CHIMBEL’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 7 Case 3:20-cv-00106-M Document 30 Filed 05/20/20 Page 12 of 25 PageID 658 is the individual’s domicile[.]” Daimler, 571 U.S. at 137. When considering an individual’s domicile, courts consider a number of factors to discern whether a litigant intends to establish a place as his or her domicile. “The factors may include the places where the litigant exercises civil and political rights, pays taxes, owns real and personal property, has driver’s and other licenses, maintains bank accounts, belongs to clubs and churches, has places of business or employment, and maintains a home for h[er] family.” Coury v. Prot, 85 F.3d 244, 251 (5th Cir. 1996) (citations omitted). For a state to exercise specific jurisdiction over a nonresident consistent with due process, the defendant’s “suit-related conduct must create a substantial connection with the forum State.” Walden v. Fiore, 571 U.S. 277, 284 (2014). A court has specific jurisdiction over a nonresident defendant if the defendant “‘purposefully directed’ [its] activities at residence of the forum. . . and the litigation results from alleged injuries that ‘arise out of or relate to’ those activities.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (citations omitted). Doe No. 1 bears the burden of establishing minimum contacts. Cent. Freight Lines, 322 F.3d at 384. For specific jurisdiction to be proper, a nonresident defendant’s contacts with the forum state must be such that the defendant “should reasonably anticipate being hailed into court” in the forum state. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980) (citations omitted). As an initial matter, Doe No. 1 has not alleged whether Chimbel is subject to general or specific jurisdiction in Texas. She has incorrectly alleged that all defendants are residents of Texas, despite acknowledging Chimbel is the Dean of the Jandoli School of Communication at St. Bonaventure University in New York. [Compl. ¶¶ 6, 16, 118, 125,290.] DEFENDANT AARON CHIMBEL’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 8 Case 3:20-cv-00106-M Document 30 Filed 05/20/20 1. Page 13 of 25 PageID 659 Chimbel does not have continuous and systematic contacts with Texas that are necessary to establish general jurisdiction. Doe No. 1 has not alleged that Chimbel has engaged in continuous and systematic activities such to render him “at home” in Texas. The standard for establishing general jurisdiction is very high. See Cent. Freight Lines, 322 F.3d at 381; see, e.g., WheelSource, 2013 WL 944430, at *4. (“The Fifth Circuit has reiterated that the ‘continuous and systematic contacts test is a difficult one to meet, requiring extensive contacts between a defendant and a forum.’”) (citation omitted). To establish general jurisdiction over a nonresident individual is nearly impossible. 4A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 1069.5 (noting that “[i]t will be a rare case in which the individual has carried on the type of continuous and systematic activities” to confer general jurisdiction). Chimbel’s contacts with Texas do not create such a “rare case.” As demonstrated by his Declaration, Chimbel has insufficient contacts with the State of Texas to justify the exercise of general jurisdiction. Chimbel lives in Allegany, New York, where he is an associate professor of journalism at St. Bonaventure University and Dean of the Jandoli School of Communication. [App., CHIMBEL 0001, ¶ 3.] He has not lived in Texas since he moved to New York in 2018. [App., CHIMBEL 0002, ¶ 6.] He has a New York driver’s license and is registered to vote in New York. [App., CHIMBEL 0002, ¶ 6.] Chimbel does not maintain an office or a telephone listing in Texas. [App., CHIMBEL 0002, ¶ 7.] Chimbel does not regularly travel to Texas. He has been in Texas once since he moved to New York, when he attended a three-day journalism conference in Houston. [App., CHIMBEL 0002, ¶ 11.] Although he and his wife still own a house in Fort Worth, they have no plans to return. [App, CHIMBEL 0002,. ¶ 6.] DEFENDANT AARON CHIMBEL’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 9 Case 3:20-cv-00106-M Document 30 Filed 05/20/20 Page 14 of 25 PageID 660 Doe No. 1 has not alleged in her Complaint a single contact Chimbel has with Texas to support personal jurisdiction, other than her erroneous allegation that he is a resident of Texas merely because he and his wife still own a house in Fort Worth. Certainly, Chimbel does not have the type of “substantial, continuous and systematic” contacts with Texas of the type that he would anticipate being sued in Texas and necessary for this Court to exercise general jurisdiction over Chimbel. See WNS, Inc. v. Farrow, 884 F.2d 200, 203 (5th Cir. 1989). 2. Chimbel did not commit the acts or breaches complained of by Plaintiff in Texas nor aimed any conduct at Texas necessary to establish specific jurisdiction. Likewise, Chimbel lacks sufficient contacts with Texas to subject him to specific jurisdiction. To invoke specific jurisdiction, the Court must determine that the specific acts complained of by Plaintiff were actually committed in Texas or were directed to Texas by Chimbel. See Calder v. Jones, 465 U.S. 783, 789–90 (1984); see also Wheel-Source, 2013 WL 944430, at *4. Specific jurisdiction focuses on analyzing the relationship between Texas, the facts presented in this action and whether Chimbel’s “alleged liability arises from or is related to activity [Chimbel] conducted in Texas.” Wheel-Source, 2013 WL 944430, at *4. Chimbel cannot be sued in Texas unless there is some proof that he has committed an act in Texas, or which was directed to Texas, which gives rise to Plaintiff’s case. Rush v. Savchuk, 444 U.S. 320, 331–32 (1980); Siskind v. Villa Found. for Educ., Inc., 642 S.W.2d 434, 438 (Tex. 1982). Plaintiff cannot satisfy her burden. None of Plaintiff’s claims asserted against Chimbel arise from Chimbel’s activities while he was in Texas. Instead, they arise out of the Honors Exploration Program which took place in Washington, D.C. The actions and conduct discussed in the Complaint in DEFENDANT AARON CHIMBEL’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 10 Case 3:20-cv-00106-M Document 30 Filed 05/20/20 Page 15 of 25 PageID 661 which Plaintiff alleges Chimbel engaged occurred while Chimbel was in Washington, D.C. or New York, not in Texas. For example, Plaintiff complains she was going to have to celebrate her birthday at the group “family dinner meant to honor Professor Chimbel” on the Friday of Chimbel’s week in Washington, D.C. [Compl. ¶ 118.] She concludes Chimbel and others conspired against her but alleges no facts as to where the alleged conspiracy took place. [Compl. ¶ 125.] She was informed by Snow that she had been caught plagiarizing assignments submitted to Chimbel and Mack [Compl. ¶ 118.], but when Doe No. 1 submitted her plagiarized paper to Chimbel, she was in Washington, D.C. and he was in New York. [App., CHIMBEL 0006, ¶¶ 21-22; Ex. 5, CHIMBEL 0040-0041.] And when Chimbel reviewed the paper, realized it had been plagiarized, and informed Snow of Doe No. 1’s academic misconduct, he was in New York. [App., CHIMBEL 0006-0007, ¶¶ 22-23; Ex. 5-8, CHIMBEL 0040-0060.] When Garnett reached out to Chimbel, at Doe No. 1’s request, for information related to his grade and assessment of Doe No. 1, Chimbel was in New York. [App., CHIMBEL 0009-0010, ¶¶ 29-30.] Chimbel’s other contacts with Garnett occurred while Chimbel was in New York, and Garnett sent his letter denying Doe No. 1’s appeal to Chimbel at his St. Bonaventure University email address. [App., CHIMBEL 0010, ¶ 30; Exs. 13-14, CHIMBEL 0078-0089.] Doe No. 1, and only Doe No. 1, is responsible for knowingly submitting a plagiarized assignment. Chimbel did not commit any act in Texas and none of his acts which give rise to Doe No. 1’s claim, were directed to Texas. If these facts are sufficient to establish personal jurisdiction over Chimbel, his only options for avoiding a lawsuit in Texas were (1) not grading Doe No. 1’s paper at all, or (2) turning a blind eye to her DEFENDANT AARON CHIMBEL’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 11 Case 3:20-cv-00106-M Document 30 Filed 05/20/20 Page 16 of 25 PageID 662 obvious plagiarism. For all of the reasons stated, the Court should grant Chimbel’s 12(b)(2) motion to dismiss for lack of personal jurisdiction. B. Doe No. 1 has not pleaded plausible substantive claims against Chimbel. This case should be dismissed pursuant to Rule 12(b)(6). Doe No. 1’s real complaint of Chimbel is that he reported her plagiarized assignment to Snow and then, after learning she plagiarized his assignment, 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. 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 DEFENDANT AARON CHIMBEL’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 12 Case 3:20-cv-00106-M Document 30 Filed 05/20/20 Page 17 of 25 PageID 663 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.) Chimbel moves the Court to dismiss each of Doe No. 1’s claims against him 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, Plaintiff must allege facts showing (1) Chimbel owed her a legal duty, (2) Chimbel 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 facts establishing Chimbel was not acting within the course and scope of his employment during or after the Washington, D.C. program. Doe No. 1 alleges that at all relevant times, TCU agents were acting within the course and scope of their employment and/or at the direction and under the control of TCU. [Compl. ¶ 231.] Alternatively, Doe No. 1 has alleged Chimbel was DEFENDANT AARON CHIMBEL’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 13 Case 3:20-cv-00106-M Document 30 Filed 05/20/20 Page 18 of 25 PageID 664 acting on behalf of St. Bonaventure University. [Compl. ¶ 125.] Regardless, to state a claim for negligence against Chimbel, Doe No. 1 must plead sufficient facts to establish Chimbel owed her a legal duty. Doe No. 1’s Complaint fails in that regard. The existence of a legal duty is a question of law and the existence of a duty is 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. Based on the limited factual allegations against Chimbel, and assuming, for purposes of this Motion, they are all true, the burden of imposing an independent duty of care on Chimbel and the consequences of that burden far outweighs any potential risk or likelihood of injury to Doe No. 1. If college faculty members and administrators risk personal liability when a student faces consequences for academic misconduct, no one will undertake that responsibility. Consequently, the Court should decline to impose such an independent duty on Chimbel. In determining whether a duty exists, in addition to applying the risk-utility test, courts also consider whether there was a special relationship between the parties. Doe No. 1 asserts Chimbel and others owed Doe No. 1 a legal duty “because they had a DEFENDANT AARON CHIMBEL’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 14 Case 3:20-cv-00106-M Document 30 Filed 05/20/20 Page 19 of 25 PageID 665 special relationship with [Doe No. 1] as her university professors.” [Compl. ¶ 236.] But the relationship between a university faculty member 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 because of a special relationship. Assuming Chimbel owed Doe No. 1 an independent duty of care, she has failed to plead sufficient facts that he breached any duty. Doe No. 1’s conclusory statement that “the acts and omissions detailed herein constitute breaches of said duties” [Compl. ¶ 236.] is insufficient. Doe No. 1’s only factual allegations pertaining to Chimbel relate to his grades of her program performance and limited comments concerning the grades. The fact that Chimbel gave Doe No. 1 low marks after learning she plagiarized is not breach of a legal duty. Additionally, Doe No. 1’s allegation that Chimbel “proximately caused” her injuries 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 Chimbel’s actions proximately caused her damages. Doe No. 1 also alleges she suffered “psychological and physiological injury” as a result of the alleged negligence. [Compl. ¶ 236.] Doe No. 1 has failed to allege any injuries, other than emotional harm, and she cannot recover under a negligence theory DEFENDANT AARON CHIMBEL’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 15 Case 3:20-cv-00106-M Document 30 Filed 05/20/20 Page 20 of 25 PageID 666 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 claim against Chimbel 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 it should be dismissed. Plaintiff’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, Plaintiff must show (1) Chimbel acted intentionally or recklessly, (2) Chimbel’s conduct was extreme and outrageous, and (3) Chimbel’s actions caused Plaintiff 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). However, 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. DEFENDANT AARON CHIMBEL’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 16 Case 3:20-cv-00106-M Document 30 Filed 05/20/20 Page 21 of 25 PageID 667 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 and assuming they are true, Chimbel’s actions – giving her low marks in the program – 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. Doe No. 1 does not deny she submitted plagiarized assignments. 6 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 6 See [App., CHIMBEL, 0007-0008, ¶ 24-25; Ex. 7, 8, 9, CHIMBEL 0044-0069]. DEFENDANT AARON CHIMBEL’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 17 Case 3:20-cv-00106-M Document 30 Filed 05/20/20 Page 22 of 25 PageID 668 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 Chimbel, and therefore the claim for intentional infliction of emotional distress should be dismissed. 3. Plaintiff has failed to state a plausible claim for conspiracy. To allege a cause of action for civil conspiracy under Texas law, Plaintiff must sufficiently allege (1) Chimbel 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) Plaintiff 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, DEFENDANT AARON CHIMBEL’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 18 Case 3:20-cv-00106-M Document 30 Filed 05/20/20 Page 23 of 25 PageID 669 278 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 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 that Chimbel 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].” [Compl. ¶ 125.] 7 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, after Chimbel and others had a meeting of the minds and conspired to inflict severe emotional distress on Plaintiff, 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.] 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 Doe No. 1 separately contends Chimbel and others had a meeting of the minds to discriminate and retaliate against Doe No 1, [Compl. ¶ 290.] but Doe No. 1 has not alleged claims of discrimination or retaliation against Chimbel or the other individual defendants. 7 DEFENDANT AARON CHIMBEL’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 19 Case 3:20-cv-00106-M Document 30 Filed 05/20/20 Page 24 of 25 PageID 670 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 Chimbel fail for the reasons discussed supra, Doe No. 1’s claim for conspiracy must also fail. 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 Chimbel 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 facts indicate Chimbel and his alleged “coconspirators” 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 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 designed to intentionally inflict emotional distress upon Jane Doe 1 . . .” [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 Plaintiff’s conspiracy claim. IV. REQUEST FOR DISMISSAL For the reasons set forth above, Defendant, Aaron Chimbel, requests that the Court enter an order dismissing all of Plaintiff’s claims against him with prejudice and without leave to amend. DEFENDANT AARON CHIMBEL’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 20 Case 3:20-cv-00106-M Document 30 Filed 05/20/20 Page 25 of 25 PageID 671 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 AARON CHIMBEL CERTIFICATE OF SERVICE The undersigned counsel certifies that the above and foregoing Motion to Dismiss and Brief in Support of Defendant Aaron Chimbel 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\14I8420.DOCX DEFENDANT AARON CHIMBEL’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 21