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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.

§
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§
§
§

CIVIL ACTION NO. 3:20-cv-00106-M

DEFENDANT DR. ROB GARNETT’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. ROB GARNETT

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TABLE OF CONTENTS
I. INTRODUCTION .......................................................................................................... 1
II. BACKGROUND........................................................................................................... 2
A. Summary of Doe No. 1’s Allegations ................................................................ 2
B. Doe No. 1’s Pleaded Claims Against Garnett ................................................... 3
III. ARGUMENT AND AUTHORITIES ............................................................................. 3
A. Doe No. 1 has not plead plausible substantive claims against Garnett. ........... 4
1.

Doe No. 1’s negligence claim should be dismissed. ...................................... 4

2.

Doe No. 1 fails to state a claim for intentional infliction of emotional
distress and her claim should be dismissed. .................................................. 7

3.

Doe No. 1 has failed to state a claim for conspiracy. ................................... 10

IV. REQUEST FOR DISMISSAL ................................................................................... 13

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INDEX OF AUTHORITIES

Cases
Alexander v. Choate, 469 U.S. 287, 300 (1995).............................................................. 3
Ashcroft v. Iqbal, 556 U.S. 662, 698 (2009) ................................................................ 4, 7
Banc One Capital Partners Corp. v. Kneipper, 67 F.3d 1187, 1194–95 (5th Cir.
1995) .......................................................................................................................... 11
Bd. of Curators of the Univ. of Missouri v. Horowitz, 435 U.S. 78, 98 (1978) .................. 3
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) ..................................................... 4
Bisong v. Univ. of Houston, 493 F.Supp.2d 896, 906 (S.D. Tex. 2007)....................... 3, 4
Boyd v. Tex. Christian Univ., Inc., 8 S.W.3d 758, 760 (Tex. App.—Fort Worth
1999, no pet.) ............................................................................................................... 6
Boyles v. Kerr, 855 S.W.2d 593, 601–02 (Tex. 1993) ..................................................... 7
Carlton v. Steele, 278 F. App'x 352, 355 (5th Cir. 2008) ............................................... 11
Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 (Tex. 2005) ................................... 10
Davis-Lynch, Inc. v. Moreno, 667 F.3d 539, 553 (5th Cir. 2012) ................................... 11
Elliott v. Tilton, 89 F.3d 260, 264–65 (5th Cir. 1996) ..................................................... 12
Firestone Steel Products Co. v. Barajas, 927 S.W.2d 608, 614 (Tex. 1996) ................. 12
Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990) ....................... 5
Hairston v. S. Methodist Univ., 441 S.W. 3d 327, 333 (Tex. App. – Dallas 2013,
no pet.) ......................................................................................................................... 8
Ho v. Univ. of Tex. at Arlington, 984 S.W.2d 672, 693 (Tex. App.—Amarillo 1998,
pet. denied) .................................................................................................................. 6
Hoffman-LaRoche, Inc. v. Zeltwanger, 144 S.W.3d 438, 445 (Tex. 2004) ................ 7, 10
Homoki v. Conversion Servs., Inc., 717 F.3d 388, 404–05 (5th Cir. 2013) .................... 11
Hux v. S. Methodist Univ., 819 F.3d 776, 781–83 (5th Cir. 2016) ................................... 6
Jones v. Dallas County, 47 F. Supp. 3d 469, (N.D. Tex. 2014) ....................................... 8
Juhl v. Airington, 936 S.W.2d 640, 644 (Tex. 1996) ...................................................... 11
Kroger Tex., L.P. v. Suberu, 216 S.W.3d 788, 796 (Tex. 2006) ................................ 8, 10
Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996) ...................................................... 5
Lutz v. Chesapeake Appalachia, LLC., 717 F.3d 459, 464 (6th Cir. 2013)...................... 7
Martin v. Tex. Dep't of Protective & Regulatory Servs., 405 F.Supp.2d 775, 799
(S.D. Tex. 2005) ......................................................................................................... 11
Meadows v. Hartford Life Ins. Co., 492 F.3d 634, 640 (5th Cir. 2007) .......................... 11

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Pagayon v. Exxon Mobile Corp., 536 S.W.3d 499 (Tex. 2017) ....................................... 5
Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005) (citation omitted).................. 4
Standard Fruit & Vegetable Co., 985 S.W.2d 62, 67 (Tex. 1998).................................... 8
Thapar v. Zekulka, 994 S.W.2d 635 (Tex. 1999)............................................................. 5
Tri v. J.T.T., 162 S.W.3d 552, 562 (Tex. 2005) ......................................................... 5, 11
Triplex Commc’ns, Inc. v. Riley, 900 S.W.2d 716, 719 (Tex. 1995) .............................. 12
Turner v. Pavlicek, No. H-10-00749, 2011 WL 4458757, at *14 (S.D. Tex. Sept.
22, 2011) .................................................................................................................... 11
Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993).................................................. 8
Vaughn v. Drennon, 372 S.W.3d 726, 732 (Tex. App.—Tyler 2012, no pet .................... 8

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TO THE HONORABLE UNITED STATES DISTRICT JUDGE:
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendant Dr.
Rob Garnett (“Garnett”) respectfully files this motion to dismiss (“Motion”) all of the claims
of Jane Doe No. 1 (“Jane Doe No. 1”) against Garnett 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, Garnett, Dr. Diane Snow (“Snow”), Russell Mack (“Mack”), Aaron Chimbel
(“Chimbel”), Dr. Darron Turner (“Turner”) and Leigh Holland (“Holland”), after she was
sanctioned for academic conduct, i.e., plagiarism, following a four week TCU Honors
Exploration program in Washington, D.C. entitled “How Washington D.C. Works.” 1
[Compl. ¶¶ 90-91, 126, 169-173.] 2 Doe No. 1 does not deny that she submitted multiple
plagiarized assignments during the course or allege that she was falsely accused of
plagiarism. As a result of the academic misconduct, Doe No. 1 received a grade of NC
for the pass/fail course. [Compl. ¶¶ 169, 173.] Doe No. 1 appealed the NC grade, which
was denied. She then filed this lawsuit against TCU and the individual defendants alleging
discrimination and other claims. Garnett asks the Court to dismiss Doe No. 1’s claims
against him.

On April 13, 2020, Doe No. 1 filed Plaintiffs’ First Amended Complaint, in which two additional plaintiffs,
Jane Doe Nos. 2 and 3, also assert claims against TCU and other individual defendants. Jane Doe Nos. 2
and 3 do not allege claims against Garnett.
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

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II. BACKGROUND
A.

Summary of Doe No. 1’s Allegations
Individual defendants Mack, Chimbel, and Snow each led one week of the four-

week program in Washington, D.C., from July 7, 2019 through August 3, 2019. 3 Near the
end of the program, it was determined that Doe No. 1 had plagiarized written assignments
submitted during the program. As a sanction for the academic misconduct, she received
a grade of NC for the pass/fail course. Garnett, the Associate Dean of the Honors
College, did not participate in the program, but handled Doe No. 1’s appeal of the
academic misconduct finding and grade of NC. Garnett upheld the decision and denied
Doe No. 1’s appeal. 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. Garnett’s name
appears in only five paragraphs of the Statement of Facts. 4 In summary, Doe No. 1
alleges:
•

Doe No. 1 learned on August 27, 2019 that Mack determined she committed
plagiarism and was recommending she receive no credit for the summer course.
[Compl. ¶ 169.]

Garnett sent her a follow up email on September 4, 2019,

confirming she earned a grade of no-credit (NC) for the course, based on Mack’s
recommended sanctions of “a zero for the two assignments that were plagiarized.”
[Compl. ¶ 169.] Garnett also informed Doe No. 1 that the NC grade was based on
her performance in all three areas of evaluation for the course based on the
assessments provided to him by the four participating instructors. [Compl. ¶ 169.]

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 Garnett’s name appears in paragraphs 62 and paragraphs 125–28 of the Statement of Facts in the
Complaint.

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Doe No. 1 initiated a formal appeal with Garnett to dispute the NC grade and asked
Garnett for a breakdown of the grades prior to her appeal hearing. [Compl. ¶ 170.]
Garnett provided Doe No. 1 the requested information, as well as statements from
each of the four participating instructors. [Compl. ¶¶ 170-171.] During Doe No.
1’s appeal hearing with Garnett on October 22, 2019, she pointed out what she
perceives as a disparity in the grades and statements with the praise she received
from Chimbel and Mack during the course. [Compl. ¶ 172.] Doe No. 1 was
informed on November 5, 2019 that her appeal was denied. [Compl. ¶ 173.]

B.

Doe No. 1’s Pleaded Claims Against Garnett
Doe No. 1 asserts the following causes of action against Garnett: (1) negligence,

(2) intentional infliction of emotional distress, and (3) conspiracy.
III. ARGUMENT AND AUTHORITIES
This case should be dismissed pursuant to Rule 12(b)(6). Doe No. 1’s real
complaint of Garnett is that he failed to override the decisions of his colleagues regarding
her performance in the program based on her plagiarism of the assignments and poor
assessments of her participation during the 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

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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.

Doe No. 1 has not plead plausible substantive claims against Garnett.
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.) Garnett 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 because Garnett did not
breach any legal duty owed to Doe No. 1. To state a negligence claim, Doe No. 1 must
allege facts showing (1) Garnett owed her a legal duty, (2) Garnett breached that duty,

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and (3) damage proximately caused by the breach. Thapar v. Zekulka, 994 S.W.2d 635,
637 (Tex. 1999).
To be liable for negligence under Texas law, an individual acting as an agent or
employee must have an independent duty of reasonable care to the plaintiff, separate
from the employer's duty. Tri v. J.T.T., 162 S.W.3d 552, 562 (Tex. 2005) (citing Leitch v.
Hornsby, 935 S.W.2d 114, 117 (Tex. 1996)). Doe No. 1 has not alleged a single fact that
would indicate Garnett was acting outside the scope of his employment with TCU in
handling Doe No. 1’s academic misconduct and grade appeal. In fact, Doe No. 1 alleges
that at all relevant times, TCU agents – which includes Garnett - 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 Garnett
individually, Doe No. 1 must plead specific facts to establish Garnett 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 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.

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Considering the risk utility factors against Doe No. 1’s allegations, the risk,
foreseeability and likelihood of injury to Doe No. 1 from being sanctioned for academic
misconduct is far outweighed by the utility of Garnett’s actions, the burden of guarding
against such injuries, and the consequence of placing such burden on Garnett. If college
administrators face personal liability every time he or she has to impose sanctions for
academic misconduct, no one will be willing to undertake that responsibility.
Consequently, the Court should decline to impose an independent duty on Garnett.
In addition to applying the risk-utility test, courts also consider whether there was
a special relationship between the parties. Doe No. 1 asserts Garnett and others owed
Doe No. 1 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 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 decline to find a duty exists based on a special relationship.
Assuming for purposes of this Motion, Garnett owes Doe No. 1 an independent
duty, she has failed to plead sufficient facts tending to show Garnett breached any duty.
Her conclusory statement that “the acts and omissions detailed herein constitute
breaches of said duties” [Compl. ¶ 236.] is insufficient. In fact, assuming Garnett owed
Doe No. 1 an independent duty in handling her appeal, Doe No. 1’s allegations do not
establish a breach. Doe No. 1 acknowledges when she requested certain information
prior to her appeal hearing, Garnett provided it two days after her request. [Compl. ¶ 170.]

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The fact that Garnett agreed with his colleagues and did not give her credit for a pass/fail
course in which she had committed plagiarism does not amount to breach of a legal duty.
Additionally, Doe No. 1’s allegation that Garnett “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 Garnett’s actions proximately caused her
damages.
As a result of the alleged negligence, Doe No. 1 also alleges she suffered
“psychological and physiological injury.” [Compl. ¶ 236.] Doe No. 1 has failed to allege
any injuries other than emotional harm, and she cannot recover under a negligence theory
for mental anguish or emotional distress damages alone. Boyles v. Kerr, 855 S.W.2d
593, 601–02 (Tex. 1993).
Because Doe No. 1’s allegations fail to nudge her claims across the line from
conceivable to plausible, her negligence claim 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 her claim should be dismissed.

Doe No. 1’s claim for intentional infliction of emotional distress fails as a matter of
law because she has not alleged facts establishing that she can prove the essential
elements of the claim. To state a claim for intentional infliction of emotional distress, Doe
No. 1 must show (1) Garnett acted intentionally or recklessly, (2) Garnett’s conduct was
extreme and outrageous, and (3) Garnett’s actions caused Doe No. 1 severe emotional
distress. See Hoffman-LaRoche, Inc. v. Zeltwanger, 144 S.W.3d 438, 445 (Tex. 2004).

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A claim for intentional infliction of emotional distress “is available only in those
situations in which severe emotional distress is the intended consequence or primary risk
of the actor's conduct.” Jones v. Dallas County, 47 F. Supp. 3d 469, (N.D. Tex. 2014)
(quoting Vaughn v. Drennon, 372 S.W.3d 726, 732 (Tex. App.—Tyler 2012, no pet. (citing
Standard Fruit & Vegetable Co., 985 S.W.2d 62, 67 (Tex. 1998). Doe No. 1 has not
alleged sufficient facts to show Garnett acted intentionally or recklessly to cause her
severe emotional harm. Moreover, intent is not sufficient if the conduct itself is not
extreme and outrageous. Hairston v. S. Methodist Univ., 441 S.W. 3d 327, 333 (Tex. App.
– Dallas 2013, no pet.)
Conduct is “extreme and outrageous” only if it is “so outrageous in character, and
so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded
as atrocious, and utterly intolerable in a civilized community.” Kroger Tex., L.P. v. Suberu,
216 S.W.3d 788, 796 (Tex. 2006) (citing Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex.
1993). “Meritorious claims for intentional infliction of emotional distress are relatively rare
because most conduct, even that which causes injury to others, cannot be fairly
characterized as extreme and outrageous.” Kroger, 216 S.W.3d at 796.
Viewing Doe No. 1’s allegations in a light most favorable to her, they do not indicate
Garnett acted intentionally or recklessly to cause Doe No. 1 harm or that his conduct was
extreme and outrageous. According to the Complaint:
•

Garnett “sent a follow up email to [Doe No. 1] indicating that [she] “had
earned a grade of ‘no-credit’ (NC) for the course, i.e., a grade below 70%”
based on Professor Mack’s recommended sanctions of “a zero for the two
assignments that were (allegedly ) plagiarized.” [Compl. ¶ 169.]

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Garnett also reached out to the four professors to get their assessments of
Doe No. 1, which he relayed to her in the same email. “The NC grade was
based on your performance in all three areas of evaluation for the course,
as stated on the syllabus, and based on the assessments provided to me
by all four instructors. In part it was the result of you earning grades of 0 on
three of the four writing assignments (two due to academic misconduct the
third due to your failure to submit a paper); but it was also due to your low
scores for “class participation” (58%) and “questions and interaction with
guest speakers and tour guides.” (61%).” [Compl. ¶ 169.]

•

When Doe No. 1 requested a breakdown of the grades she received during
the Washington summer program prior to her appeal hearing, Garnett
provided the information two days after her request. [Compl. ¶ 170.] Garnett
also sent statements from each of the faculty members/program facilitators.
[Compl. ¶ 171.]

•

During Doe No. 1’s appeal hearing on October 22, 2019, she pointed out
that the grade breakdown and statements from the faculty members
contradicted the praise Chimbel and Mack had given Doe No. 1 during the
trip. Garnett “was unable to reconcile the change in his colleagues’ attitudes
and opinions regarding [Doe No. 1]’s performance, or justify the inadequate
responses provided to [Doe No. 1] regarding her revoked credit.” [Compl.
¶ 172.]

•

On November 5, 2019, [Doe No. 1] was notified that her appeal was denied.
[Compl. ¶ 173.]

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Assuming these allegations are true, they do not rise to the level of conduct so
outrageous and extreme as to go “beyond all possible bounds of decency.” Zeltwanger,
144 S.W.3d at 445.
Additionally, because Doe No. 1’s claim for intentional infliction of emotional
distress is merely a “gap filler” tort, in addition to the elements, Doe No. 1 must show or
plead that there are no alternative causes of action that would provide a remedy for the
severe emotional distress caused by a defendant’s conduct. See Kroger Tex. L.P., 216
S.W.3d at 796; see also Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 (Tex. 2005);
Hoffman-La Roche, 144 S.W.3d at 447. If there is an independent set of facts that would
support a claim for intentional infliction of emotional distress, the claim is not barred.
Hoffman-La Roche, 144 S.W.3d at 450. On the other hand, if a plaintiff’s intentional
infliction of emotional distress claim is based on another tort, she cannot maintain an
action for intentional infliction of emotional distress, regardless of whether she chooses
to assert the alternative claim, succeeds on the alternative claim, or the alternative claim
is barred. Id. at 447–48. The conduct that forms the basis of Doe No. 1’s intentional
infliction of emotional distress claim is the same conduct that forms the basis of her
negligence claim against Garnett, and therefore the claim for intentional infliction of
emotional distress should be dismissed.
3.

Doe No. 1 has failed to state a claim for conspiracy.

To state a claim for civil conspiracy under Texas law, Doe No. 1 must sufficiently
allege (1) Garnett 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

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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
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.”).

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Doe No. 1’s conspiracy claim is dependent on her claim of intentional infliction of
emotional distress. 5 Because Doe No. 1’s claim of intentional infliction of emotional
distress against Garnett fails for the reasons discussed above, Doe No. 1’s claim for
conspiracy must also fail. Additionally, since Garnett was acting at all times as an agent
and employee of TCU, Garnett 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 Garnett
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 Garnett and his alleged “co-conspirators” acted
with specific intent to commit an unlawful act, pursuant to an agreement to commit an
unlawful act, nor does Doe No. 1 allege what the agreement was or when the alleged
agreement was formed. See Firestone Steel Products Co. v. Barajas, 927 S.W.2d 608,
614 (Tex. 1996) (citing Triplex Commc’ns, Inc. v. Riley, 900 S.W.2d 716, 719 (Tex. 1995).
Doe No. 1’s conclusory allegation that Snow, Garnett, Mack and Chimbel had a
meeting of the minds to discriminate and retaliate against her [Compl. ¶ 290.] has no
factual support and is insufficient to support her conspiracy claim. And, Doe No. 1 does
not deny she plagiarized assignments in the program. For all of the foregoing reasons,
the Court should dismiss Doe No. 1’s conspiracy claim.

5 Doe No. 1 alleges Snow, Chimbel and Mack had a meeting of the minds on August 3, 2019, and conspired
to intentionally inflict emotional distress on Doe No. 1. [Compl. ¶ 125.] She later alleges Garnett, Snow,
Mack and others had a meeting of the minds to discriminate and retaliate against her. [Compl. ¶ 290.]
However, she has not asserted claims of discrimination and retaliation against the individual defendants.

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IV. REQUEST FOR DISMISSAL
For the reasons set forth above, Defendant, Dr. Rob Garnett, requests that the
Court enter an order dismissing all of Doe No. 1’s claims against him with prejudice and
without leave to amend.
Respectfully submitted,
/s/ Jennifer N. Littman
George C. Haratsis
Texas Bar No. 08941000
gch@mcdonaldlaw.com
Rory Divin
Texas Bar No. 05902800
rd@mcdonaldlaw.com
Jennifer Littman
Texas Bar No. 00786142
jnl@mcdonaldlaw.com
McDONALD SANDERS,
A Professional Corporation
777 Main Street, Suite 2700
Fort Worth, Texas 76102
(817) 336-8651
(817) 334-0271 Fax
ATTORNEYS FOR DEFENDANT
DR. ROB GARNETT
CERTIFICATE OF SERVICE
The undersigned counsel certifies that the above and foregoing Motion to Dismiss
and Brief in Support of Defendant Dr. Rob Garnett 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\14I8421.DOCX

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