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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

INDIVIDUAL DEFENDANTS’ REPLY BRIEF TO PLAINTIFFS’ OBJECTION TO
CONVERSION TO SUMMARY JUDGMENT AND OMNIBUS
RESPONSE TO DEFENDANTS’ MOTION TO DISMISS
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 DEFENDANTS

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TO THE HONORABLE UNITED STATES DISTRICT JUDGE:
Defendants Diane Snow (“Snow”), Andrew Schoolmaster (“Schoolmaster”), Rob
Garnett (“Garnett”), Darron Turner (“Turner”), Russell Mack (“Mack”), Leigh Holland
(“Holland”), and Aaron Chimbel (“Chimbel”)(collectively, “Individual Defendants”)
respectfully file this reply brief to Plaintiffs’ Response [Doc. 46] to Individual Defendants’
motions to dismiss. [Doc. 26 to 30 and 32 to 36]. 1
Plaintiffs’ claims against the Individual Defendants should be dismissed because
Plaintiffs have failed to plead facts sufficient to show that the claims asserted have facial
plausibility. “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim for relief is
implausible on its face when ‘the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct.’” Harold H. Huggins Realty, Inc. v. FNC, Inc., 634
F.3d 787, 796 (5th Cir. 2011) (quoting Iqbal, 556 U.S. at 679).
No matter how many times Plaintiffs repeat them, legal conclusions, conclusory
allegations, and conjecture cannot take the place of the required well-pleaded facts.
Plaintiffs make no effort to provide any analysis as to how their factual assertions state
plausible claims against the Individual Defendants. For example, Plaintiffs offer no facts
to infer the existence of any independent duty owed to the Plaintiffs by the Individual
Defendants and provide no analysis or authority to support the legal conclusion of a
“special relationship” between Plaintiffs and the Individual Defendants. Similarly, in

1 Pursuant to the Court’s June 26, 2020 Order [Doc. 43], the parties were advised that the Court would
consider the Defendants’ pending motions to dismiss as applying to the Plaintiffs’ Third Amended Complaint
(“complaint”) [Doc. 44].

INDIVIDUAL DEFENDANTS’ REPLY BRIEF TO PLAINTIFFS’ OBJECTION TO CONVERSION TO SUMMARY JUDGMENT
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reviewing their other causes of action, Plaintiffs’ complaint offers many conclusory
allegations with no factual support and no relevant supporting legal authority in their
response to defeat the motions to dismiss.
The Court may consider Chimbel’s declaration and the attached
exhibits in resolving Chimbel’s motions to dismiss
In response to a Rule 12(b)(2) motion to dismiss, a plaintiff cannot merely rely on
its pleadings but instead must bring forth evidence by affidavit or otherwise setting forth
facts demonstrating that the court has jurisdiction over the defendant. Avco Corp. v.
Precision Automotive, Inc., 2004 U.S. Dist. LEXIS 16267 (N.D. Tex. Aug. 16, 2004). The
plaintiff bears the burden of establishing jurisdiction by a prima facie showing. Seiferth v.
Helicopteros Atuneros, Inc., 472 F.3d 266, 270 (5th Cir. 2006) (citation omitted). “This
liberal standard, however, does not require the court to credit conclusory allegations, even
if they remain uncontradicted.” Panda Brandywine Corp. v. Potomac Elec. Power Co.,
253 F.3d 865, 869 (5th Cir. 2001). To determine whether the plaintiff has met this burden
on a 12(b)(2) motion, the court can consider the “assertions in the plaintiff’s complaint,”
as well as “‘the contents of the record at the time of the motion ....’” ” Sangha v. Navig8
ShipManagement Private Ltd., 882 F.3d 96, 101 (5th Cir. 2018) (internal quotations and
citations omitted). This may include pleadings, affidavits, interrogatories, and depositions.
See Stuart v. Spademan, 772 F.2d 1185, 1192 (5th Cir. 1985). Thus, the Court may
consider Chimbel’s declaration in deciding his 12(b)(2) motion.
Additionally, in considering a 12(b)(6) motion to dismiss for failure to state a claim,
documents attached to a motion to dismiss are considered part of the pleadings if they
are referred to in the plaintiff's complaint and central to the claim. Collins v. Morgan
Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000). Here, the record includes
INDIVIDUAL DEFENDANTS’ REPLY BRIEF TO PLAINTIFFS’ OBJECTION TO CONVERSION TO SUMMARY JUDGMENT
AND OMNIBUS RESPONSE TO DEFENDANTS’ MOTION TO DISMISS
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documents referenced in Doe 1’s complaint that are central to her claim. The complaint
asserts that plagiarism allegations against Doe 1 were based on assignments submitted
to Chimbel and others [Doc. 44, ¶ 124] and she references the November 5, 2019
notification about her grade appeal. [Doc. 44, ¶ 171]. Although Doe 1 wants to pretend
her case is not about the academic decision, her complaint tells another story. The
complaint alleges “TCU and Chimbel succeeded in their conspiracy by revoking the
credits Jane Doe No. 1 earned in the summer program based on discriminatory grading
practices…” [Doc. 44, ¶ 298] and revocation of the class credit was part of a continuing
scheme to intentionally inflict emotional distress on Doe 1. [Doc. 44, ¶ 299]. As such, to
the extent the items are referenced in the complaint and are central to Doe 1’s claims,
they can be properly considered by the Court without converting Chimbel’s motion to
dismiss into one for summary judgment. 2 See, Maloney Gaming Mgmt., L.L.C. v. St.
Tammany Parish, 456 F. App’x 336, 340-41 (5th Cir. 2011). However, with or without
considering these items, the Court should dismiss all claims against Chimbel and the
other Individual Defendants as Plaintiffs have failed to allege sufficient facts in support of
plausible claims.
Doe 1 has failed to make a prima facie showing of personal
jurisdiction over Chimbel
General jurisdiction exists only when the defendant's contacts with the forum state
are so ‘continuous and systematic’ as to render the defendant essentially at home in the
forum State. Lahman v. Nationwide Provider Sols., No. 4:17-CV-00305, 2018 WL

The other Individual Defendants did not attach other materials to their motions to dismiss. Consequently,
any suggestion that their motions to dismiss are subject to conversion to a Rule 56 summary judgment are
misplaced. The other Individual Defendants respectfully request that the Court only consider those items
appropriate for a Rule 12(b)(6) motion without converting their motions to dismiss to summary judgment
motions.
2

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3035916, at *5 (E.D. Tex. June 19, 2018). “For an individual, the paradigm forum for the
exercise of general jurisdiction is the individual's domicile.” Daimler AG v. Bauman, 571
U.S. 117, 137 (2014). A ‘domicile’ is a residence at a particular place accompanied with
positive or presumptive proof of an intention to remain there for an unlimited period of
time. Freeman v. Northwest Acceptance Corp., 754 F.2d 553, 555 (5th Cir. 1985). For
specific jurisdiction to exist, Doe 1’s claims must arise out of or be related to Chimbel’s
contacts with the forum state. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472,
105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). Doe 1 must make a prima facie case over
Chimbel with respect to each cause of action asserted against him. Wheel-Source, Inc.
v. Gullekson, No. 3:12-CV-1500-M, 2013 WL 944430, at *3 (N.D. Tex. Mar. 12, 2013).
The Court’s focus is on the relationship between Chimbel, Texas, and the facts of the
lawsuit, to determine whether his alleged liability arises from or is related to activity he
conducted in Texas. Wheel-Source, Inc., 2013 WL 944430, at *3.
Doe 1 has provided no facts to support the exercise of personal jurisdiction over
Chimbel. Although she contends Chimbel continues to own property in Texas, ownership
of realty in the forum alone will not support the exercise of general jurisdiction. See Shaffer
v. Heitner, 433 U.S. 186, 208-10 (1977). Doe 1 acknowledges several times in the
complaint that Chimbel is a professor and Dean of the Jandoli School of Communication
at St. Bonaventure University, located in New York. [Doc. 44, ¶ 16, 116, 123, 297].
Chimbel’s declaration, which Doe 1 has not controverted, establishes Chimbel has no
continuing contacts with Texas other than the realty in Tarrant County. He and his family
moved to New York in 2018 when he accepted the position with St. Bonaventure
University. He has no intention of returning to Texas. He has a New York driver’s license

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and is registered to vote in New York. He does not have an office in Texas, is not
employed in Texas, and has only returned to Texas one time since he left in 2018, to
attend a journalism conference in Houston. [Doc. 31, ¶ 3, 6, 10-11].
Arguing for general jurisdiction, Doe 1 cites to Ainsworth v. Moffett Engineering,
Ltd., 716 F.3d 174, 177 (5th Cir. 2013). However, Ainsworth is inapplicable to the present
case. It relies on the stream-of-commerce doctrine, which applies in products liability
cases when goods are placed into the stream of commerce. See In re: Depuy
Orthopaedics, Inc., Pinnacle Hip Implant Prod. Liab. Litig., 888 F.3d 753, 778 (5th Cir.
2018). Also, Plaintiffs’ response about Chimbel “advertising” his services in Texas is
conjecture, has no evidentiary support, and is not alleged in the complaint.
Likewise, Doe 1 has failed to make a prima facie case of specific jurisdiction. She
has asserted negligence, intentional infliction of emotional distress, and conspiracy claims
against Chimbel [Doc. 44, ¶¶ 243-244, 277-278, 297-299], but has not alleged
jurisdictional facts to demonstrate her claims arose out of his contacts in Texas. Per the
complaint, Chimbel’s contacts with Doe 1 took place during the summer program which
took place entirely in Washington, D.C. Chimbel’s contacts with Doe 1 took place while
he was in Washington, D.C. or New York. Doe 1 was in Washington, D.C. and Chimbel
was in New York when Doe 1 submitted her assignment to him, when he graded her
assignment, and when he contacted Snow, who remained in Washington, D.C., about the
plagiarized assignment. He was in New York when he responded to Garnett during Doe
1’s grade appeal and when he talked to Holland during the Title IX investigation. [Doc.
31, ¶¶ 15-16, 18-23, 27-30.]

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Accordingly, Chimbel respectfully requests the Court grant his Rule 12(b)(2)
motion to dismiss for lack of personal jurisdiction.
Plaintiffs fail to state plausible claims against the Individual Defendants
1. Negligence. Plaintiffs have failed to allege facts sufficient to show that
the negligence claims against the Individual Defendants have substantive plausibility.
When a plaintiff sues in negligence, the “threshold inquiry” is whether the defendant owed
the plaintiff a duty of care. Mack v. RPC, Inc., 439 F. Supp. 3d 897, 901 (E.D. Tex. 2020);
Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). To avoid dismissal, the
complaint must contain sufficient facts to show the Individual Defendants owed a duty to
Plaintiffs. See Mack, 439 F. Supp. at 903. Plaintiffs do not refute that the Individual
Defendants must owe an independent duty of reasonable care separate from their
employer’s duty in order to be personally liable for negligence [Doc. 46, p. 26-28], yet they
offer no facts from which an independent duty can reasonably be inferred. Instead,
Plaintiffs conclude that the Individual Defendants have a “special relationship” with them,
but the complaint contains no factual allegations that would reasonably infer the existence
of a special relationship, and Plaintiffs’ response provides no analysis or legal authority
to support the legal conclusion or the refute the cases cited by the Individual Defendants
in their motions to dismiss that no special relationship exists between university faculty
members and their adult students.
2.

Intentional Infliction of Emotional Distress. 3 Plaintiffs agree that their

intentional infliction of emotional distress claims requires allegations of conduct “so
outrageous in character, and so extreme in degree, as to go beyond all possible bounds

The complaint alleges IIED claims against Turner and Holland. However, Plaintiffs did not request or
obtain leave to add these claims [Doc. 40; Doc. 43], and they should be stricken from the complaint.

3

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of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community.” 4 Hersh v. Tatum, 526 S.W. 3d 462, 468 (Tex. 2017). However, other than to
state in conclusory fashion that the Individual Defendants conduct was extreme and
outrageous, Plaintiffs make no effort to demonstrate how similar allegations have passed
scrutiny under Rule 12(b)(6). In their response, Plaintiffs suggest the Individual
Defendants are liable because they consistently ignored and discouraged reports of
racism, discrimination, and assault. [Doc. 46, p. 30]. However, these types of allegations
are insufficient to allege a plausible claim of intentional infliction of emotional distress.
See, Fisher v. Dallas County, 2014 WL 4797006, at *7 (N.D. Tex. Sept. 26, 2017).
Plaintiffs’ allegations in the complaint, even if true, are not so outrageous in character as
to state facially plausible intentional infliction of emotional distress claims. And, as
previously briefed, intentional infliction of emotional distress is merely a gap-filler tort.
Because Plaintiffs have alleged other claims based on the same facts, their claims must
fail.
3. Assault. 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. Loaisiga v. Cerda, 379 S.W.3d 248, 256 (Tex.
2012) Doe 1 and 2 have asserted claims under (1) and (3) above.
Doe 1 and 2 have not sufficiently plead facts of an assault with bodily injury claim.
Assuming Doe 1’s alleged facts are accurate, she has alleged Snow (i) aggressively

4

[Doc. 46, p. 29].

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shoved herself between Doe 1 and another student, (ii) aggressively placed her hand on
Doe’s back and drove her to the front of her peers, and (iii) aggressively pushed Doe 1’s
back causing her to stumble and driving Doe 1 to the front of her group [Doc. 44, ¶¶ 101,
106]. There is no allegation that these acts, even if true, resulted in bodily injury to Doe
1. Likewise, taking Doe 2’s allegations as true for purposes of Schoolmaster’s motion to
dismiss, Doe 2 has not alleged bodily injury caused by Schoolmaster. Although Doe 2
contends Schoolmaster touched her inappropriately on her knee and lower inner thigh
[Doc. 44, ¶ 136], she has alleged no bodily injury.
Doe 1 and 2 have also alleged assault based on offensive or provocative physical
contact, which requires intentionally or knowingly causing physical contact with another
when the person knows or should reasonably believe that the other will regard the conduct
as offensive or provocative. Doe 1 and 2 have failed to plead facts showing that Snow or
Schoolmaster knew or should reasonably have believed that Doe 1 and 2 would regard
their conduct as offensive or provocative. Instead, they have plead mere conclusions,
which are insufficient to plausibly state a claim.
4. False Imprisonment. Doe 1 has offered no facts from which this Court
can conclude her false imprisonment claim against Snow has substantive plausibility. She
has cited to four cases in support of her claim of false imprisonment against Snow, none
of which have any similarity to the facts alleged by Doe 1. In Wal–Mart Stores, Inc. v.
Rodriguez, 92 S.W.3d 502 (Tex.2002), Rodriguez sued Wal-Mart for false imprisonment
theorizing that Wal-Mart had willfully detained him by instigating an arrest. In Sears,
Roebuck & Company v. Castillo, 693 S.W. 2d 374 (Tex. 1985) and Wal-Mart Stores v.
Odem, 929 S.W. 513 (Tex.App. – San Antonio, 1996 writ denied), the claims arose out of

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detentions following suspected shoplifting. In Randall’s Food Mkts., Inc. v. Johnson, 891
S.W. 2d 640 (Tex. 1995), Johnson was suspected of employee misconduct and was
taken to an office in the back of the store and questioned by the store director. The store
director suggested she remain in the office or do something else away from the sales
floor while she waited for the district manager to arrive. She did not allege detention by
physical force but alleged the store director sternly insisted she stay put. However, she
left the area twice, no one guarded her, and there was no threat made to detain her. The
Court found as a matter of law that Randall’s had not falsely imprisoned Johnson.
In the complaint, Doe 1 alleges Snow forced her to sit next to her during meals and
refused to allow her to leave the program despite declining health conditions. Like the
Randall’s case, there is no allegation that Doe 1 was detained by physical force or that
anyone guarded her to prevent her from moving around or leaving the program. In fact,
Doe 1 complains about being left unattended during the trip, sometimes for days at a
time. [Doc. 44, ¶ 114, fn. 145]. Doe 1 has failed to state a plausible claim of false
imprisonment against Snow, and it should be dismissed.
5. Conspiracy. Under Texas law, the elements of civil conspiracy include
(1) the participation of two or more persons; (2) an object to be accomplished; (3) a
meeting of the minds on the object or course of action; (4) one or more unlawful, overt
acts; and (5) damages as a proximate result. Tri v. J.T.T., 162 S.W. 3d 552, 556 (Tex.
2005). Plaintiffs’ vague, conclusory allegations that there was a meeting of the minds falls
far short of satisfying the requisite pleading standard. Hadnot v City of Woodville, Tex.,
2011 WL 1321060, at *3 (E.D. Tex. Feb. 11, 2011)(dismissing civil conspiracy claim
because the complaint did “little more than recite the elements of this claim in a conclusory

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fashion.”) Additionally, because Texas civil conspiracy is a derivative tort, if a plaintiff fails
to allege a separate underlying tort claim that survives a Rule 12(b)(6) motion, then the
civil conspiracy claim necessarily fails. Jennings v. Towers Watson, 2018 WL 2422054,
at *2-3 (N.D. Tex. Apr. 16, 2018). The underlying tort on which Doe 1 relies is intentional
infliction of emotional distress 5 which fails for the reasons set forth in the motions to
dismiss and this reply. Therefore, Doe 1’s conspiracy claim must also fail.
Conclusion
For the reasons set forth in the motions to dismiss and this reply, the Individual
Defendants request that their motions to dismiss be granted.
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 DEFENDANTS
In the complaint, Doe 1 alleges TCU and Chimbel succeeded in their conspiracy by revoking Doe 1’s
summer course credit, which was part of a continuing scheme to intentionally inflict emotional distress on
Doe 1. [Doc. 44, ¶¶ 298-299]. Although Doe 1 alleges Snow, Garnett, Mack and Chimbel had a meeting of
the minds “to discriminate and retaliate against Doe 1 in violation of federal and state law,” [Doc. 44, ¶ 297],
Doe 1 has not plead a state law claim of discrimination or retaliation against the Individual Defendants.
5

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CERTIFICATE OF SERVICE
The undersigned counsel certifies that the above and foregoing Individual
Defendants’ Reply to Plaintiffs’ Objection to Conversion to Summary Judgment and
Omnibus Response to Defendants’ Motion to Dismiss is being served by electronic mail
on all counsel of record receiving electronic notice from the court’s ECF notification
system on July 27, 2020.
/s/ Jennifer N. Littman
Jennifer N. Littman

INDIVIDUAL DEFENDANTS’ REPLY BRIEF TO PLAINTIFFS’ OBJECTION TO CONVERSION TO SUMMARY JUDGMENT
AND OMNIBUS RESPONSE TO DEFENDANTS’ MOTION TO DISMISS
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