Nancy Stein Nowak, United States Magistrate Judge.
Pending before me is defendants Bexar County Elections' and Geny Rickhoff's motion to dismiss, or alternatively, for summary judgment, filed on February 5, 2001. Specifically, defendants contend in their motion that Bexar County Elections should be dismissed because it is not a proper party to an election contest and it is not a legal entity with the capacity to be sued under Texas law. Defendants also assert that plaintiffs' claims against defendant county clerk Gerry Rickhoff in his official and/or individual capacity, if any, are barred by the XI Amendment immunity and by qualified immunity to the extent plaintiffs have pleaded a civil rights violation under 42 U.S.C. § 1983. Defendants, in addition, request to have certain matters deemed admitted pursuant to FED. R. Civ. P. 36. Finally, defendants ask that the court award them attorneys' fees in the amount of $2,500.00 for the preparation of their answer, discovery, petition for removal, and their motion to dismiss.
Docket Entry 3.
Docket Entry 3, at 7-8 and Docket Entry 4.
Docket Entry 3, at 8-11.
Id . at 11.
Because plaintiffs failed to respond to defendants' motion within the time provided in Local Rule CV-7, and in consideration of their pro se status, I entered a show cause order on June 27, 2001, allowing plaintiffs to file a response to defendants' dispositive motion by no later than July 6, 2001. In that order, I also provided plaintiffs with a discussion of the standards for dismissal and summary judgment (with the parties' respective burdens of proof under each standard) utilized by me in addressing these motions. Despite my Order, plaintiffs merely submitted a two paragraph response, which states in full:
Docket Entry 10, Attachment, at 4-6.
The facts concerning the legality of the special election held by the City of San Antonio on November 7, 2000, are very clear. The City of San Antonio, Norma Rodriguez, did not comply with the City Charter in relation to the special election. Therefore, making the election illegal. Norma Rodriguez, City Clerk, was responsible for following Section 11.001 and Section 18.001(b) of the Texas Election Code.
Bexar County Elections, Gerry Rickhoff failed to comply with Section 42.062(1) of the Texas Election Code, thereby making the election illegal and should be void or revoted, strictly following the Texas Election Code rules.
We believe that this case is indeed more complex than could be satisfied with a Summary Judgment and we pray that the Motion to Dismiss is denied.
Having reviewed the arguments made by the respective parties, plaintiffs' Original Petition filed in state court before removal of this cause to federal court, and the applicable statutory and case authority, it is my recommendation that the District Court GRANT defendants' motion to dismiss in its entirety. The reasons for my recommendation are set forth below.
I have jurisdiction to enter this Memorandum and Recommendation under 28 U.S.C. § 636(b) and the District Court's Order referring all pretrial matters in this proceeding to me for disposition by order, or to aid in their disposition by recommendation where my authority as a Magistrate Judge is statutorily constrained.
Docket Entry 5.
II. Jurisdiction
This court has original jurisdiction pursuant to 28 U.S.C. § 1331.
III. Analysis
A. Crux of Plaintiffs' Lawsuit
Through the filing of this lawsuit, and according to their Original Petition, pro se plaintiffs, Nathan Thompson and Karen Bennett, challenge the special election held on November 7, 2000, where City of San Antonio ("City") residents voted on the Fluoride measure, City Ordinance 92255. In that regard, plaintiffs plead that:
See Docket Entry 1, Plaintiffs' Original Petition, Count W.
the most fundamental right a US citizen has, is the right to vote, and it forms the foundation for our entire system of government. The protection and pursuit of this right should be defended as much as our national defense against external threats.
Plaintiffs claim that the election should be declared NULL and VOID because it was held in violation of the Texas Election Code. As a result of the inclusion of ineligible voters, this election has thousands of fraudulent votes that were cast. As a result of the exclusion of eligible voters, the authorities responsible for the election have violated thousands of voters' rights.
As relief, plaintiffs seek a judgment nullifying the special elections and voiding City Ordinance 92255. Besides requesting "costs and expenses," plaintiffs do not seek a monetary damage award. B. Dismissal Standard
Id . at Count XII.
Id .
Pursuant to Rule 12(b)(6), a plaintiffs claim should be dismissed for failure to state a claim upon which relief may be granted when, viewing the allegations in the plaintiffs complaint in the light most favorable to him and drawing all reasonable inferences in his favor, it appears certain that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Rule 12(b)(6) allows a court to eliminate actions that are fatally flawed in their legal premises and destined to fail, thus sparing the litigants the burdens of unnecessary pretrial and trial activity. Conclusory allegations or legal conclusions masquerading as factual allegations will not suffice to prevent a motion to dismiss pursuant to Rule 12(b)(6). In ruling on a motion to dismiss, a court should consider only those facts stated on the face of the complaint or incorporated into the complaint by reference, and matters of which judicial notice may be taken. If a complaint omits facts concerning pivotal elements of a plaintiffs claim, a court is justified in assuming the nonexistence of those facts. C. Bexar County Elections is Not a Proper Party Defendant
See Kaiser v. Aluminum Chem Sales, Inc. v. Avondale Shipyard, Inc ., 677 F.2d 1045, 1050 (5th Cir. 1982), cert. denied , 459 U.S. 1105 (1983); and Adolph v. Federal Emergency Management Agency , 854 F.2d 732, 735 (5th Cir. 1988).
See Spivey, Jr. v. Robertson , 197 F.3d 772, 774 (5th Cir. 1999).
See Fernandez-Montes v. Allied Pilots Assoc ., 987 F.2d 278 (5th Cir. 1993).
See Lovelace v. Software Spectrum, Inc ., 78 F.3d 1015, 1017 (5th Cir. 1996) and McNamara v. Bre-X Minerals Ltd ., 57 F. Supp.2d 396, 417 n. 12 (ED. Tex. 1999).
See Ledesma v. Dillard Dept. Stores, Inc ., 818 F. Supp. 983 (N.D. Tex. 1993).
Bexar County Elections asserts that it cannot be sued because it is not a separate legal entity, but a departmental subdivision of Bexar County, consisting of a physical building and an office staffed with Bexar County employees. This position is supported by Texas law.
Docket Entry 3, at 5.
According to FED. R. Civ. P. 17(b), the Bexar County Elections' capacity to be sued in federal court is determined by state law.
As a departmental subdivision of Bexar County, Bexar County Elections is not considered a "government unit" under Texas' scheme for tort suits against governmental units. Section 101.001(2) of the Texas Civil Practice Remedies Code defines a "governmental unit" as:
(A) this state and all the several agencies of government that collectively constitute the government of this state, including other agencies bearing different designations, and all departments, bureaus, boards, commissions, offices, agencies, councils, and courts;
(B) a political subdivision of this state, including any city, county, school district, junior college district, levee improvement district, drainage district, irrigation district, water improvement district, water control and improvement district, water control and preservation district, freshwater supply district, navigation district, conservation and reclamation district, soil conservation district, communication district, public health district, and river authority;
(C) an emergency service organization; and
(D) any other institution, agency, or organ of government the status and authority of which are derived from the Constitution of Texas or from laws passed by the legislature under the constitution.
Thus, by analogy, Bexar County Elections cannot be considered a separate and distinct "governmental unit" capable of being sued in an election contest case such as this one. This question was specifically addressed in Shull v. Bexar County , an election contest case in which the Fourth Court of Appeals affirmed the trial court's dismissal of Bexar County Elections as a party defendant on the grounds that it is not a legal entity with the capacity to be sued under Texas law. See also Shelby v. City of Atlanta , 578 F. Supp. 1368, 1370 (N.D. Ga. 1984) (police department is an integral part of city government and a mere vehicle through which city government fulfills its policing functions) ; and State of Missouri ex. rel. Gore v. Wocher , 475 F. Supp. 274, 280 (E.D. Mo. 1979) (personnel department is an integral part of city government and is merely an administrative arm where by employee functions are performed), aff'd , 620F.2d 183 (8th Cir. 1980), cert. denied , 449 U.S. 975 (1980). Accordingly, because Bexar County Elections is not an entity subject to suit, and plaintiffs have failed to allege otherwise, plaintiffs' claims against it should be dismissed as a matter of law.
Defendants further rely on TEX. CIV. PRAC. REM. CODE § 101.108, which provides: "[a] governmental unit not fully covered by liability insurance may levy an ad valorem tax for the payment of any final judgment under this chapter." Id . According to defendants, Bexar County Elections has no authority to levy ad valorem taxes for the purposes of paying judgment ordered against it. Docket Entry 3, at 4.
No. 04-99-00286, 2000 WL 5251 (Tex.App.-San Antonio, Jan. 5, 2000), cert. denied , 121 S.Ct. 1610 (2001).
Id . at *2.
D. Plaintiffs' Claims Against County Clerk Gerry Rickhoff
According to the Texas Election Code, the county clerk of Bexar County is the county election officer unless an elections administrator is retained or election duties are transferred to the tax assessor-collector. It appears that defendant Rickhoff was the county election officer when the Flouride measure was submitted to a special election. Among the duties performed by the county election officer are: contracting with the governing body of a political subdivision to perform election services; performing or supervising the performance of duties and functions for a countywide election; and making expenditures from a county treasury fund without budgeting or appropriation by commissioners' court. Further, the county tax assessor-collector is the county voter registrar unless the position of elections administrator is created or the county clerk is designated.
TEX. ELEC. CODE ANN. § 31.091 (Vernon 1986 Supp. 2001).
§ 31.093.
§ 31.094.
§ 31.100.
§ 12.001.
In their brief response to defendants' motion, plaintiffs allege that "Bexar County Elections, Gerry Rickhoff failed to comply with Section 42.062(1) of the Texas Election Code, thereby making the election illegal . . . ." This claim against defendant Rickhoff, however, cannot be maintained by the express terms of the Election Code. Contrary to plaintiffs' assertion, section 42.062(1) of the Code does not apply to the instant case because it is undisputed that the special election on the Fluoride measure was ordered by the City, through Ordinance 92255, and not by Bexar County. Section 42.061(a) of the Texas Election Code, specifically provides: "[t]he governing body of a political subdivision other than a county shall establish the election precincts for elections ordered by an authority of the political subdivision." Therefore, establishing the election precincts was the duty of the City, and not the County. Because there is no other pleaded assertion against defendant Rickhoff, in his capacity as the county election officer, plaintiffs' claims against him must be dismissed as a matter of law.
Docket Entry 13, at 1.
TEX. ELECTION CODE ANN. § 42.061 (Emphasis added).
Having determined that plaintiffs have failed to state a violation of the Texas Election Code (much less one of constitutional import) by defendant Rickhoff, I need not decide the immunity defenses asserted by him. Any claim that plaintiffs may have asserted in their attempts to challenge the special election on the Flouride measure is against the City, but not against the County. E. Deemed Admissions
Docket Entry 3, at 5-8.
In that regard, I note that Defendants City of San Antonio and the City Clerk have recently moved for summary judgment on all of plaintiff's claims. Docket Entry 15. Plaintiffs' time to respond to the motion has not yet expired. Once that motion is ripe for adjudication, it will be the subject of a separate Memorandum and Recommendation.
Defendants have moved to have their requests for admission, propounded to the plaintiffs but which have remained unanswered, deemed admitted. If a party does not timely serve objections or answers to the request, the matters in the request are admitted as a matter of law. FED. R. CIV. P. 36(a). The requesting party need not ask the court to deem the answers admitted; they are deemed admitted automatically. Id . Defendants' request for admissions, however, consists of thirty-six items. Local Rule CV-36 provides that "[requests for admissions made pursuant to Rule 36, Fed.R.Civ.P, will be limited to thirty (30) requests, which shall in like manner include all separate paragraphs and sub-parts contained within a number request. The Court may permit further requests upon a showing of good cause." Id . Accordingly, because no good cause has been shown by the defendants as required under Local Rule CV-36, requests for admissions, numbers 1-30, are deemed admitted; the rest are excluded. I further note, that my recommendation for dismissal of these defendants is based on plaintiffs' failure to state a claim upon which relief can be granted as a matter of law, and is not dependent upon any material facts in dispute.
See Hulsey v. Texas , 929 F.2d 168, 171 (5th Cir. 1981); and Huey v. United Parcel Serv., Inc ., 165 F.3d 1084, 1085 (7th Cir. 1999).
Docket Entry 3, at 9-11.
F. Request for an Award of Attorneys' Fees
Defendants seek an award of attorneys' fees in the amount of $2,500.00 since "plaintiffs have admitted [on deemed admissions nos. 29 30] to bringing this lawsuit in bad faith and for purposes of harassment." Defendants maintain that the amount requested represents the fees invested in the preparation of their answer, discovery, removal and their motion to dismiss. This request should be denied as defendants have failed to cite statutory authority which would allow for such an award. Plaintiffs' deemed admissions are insufficient to warrant an award of attorneys' fees.
Id . at 11.
Id .
IV. Recommendation
Based on the foregoing, I hereby recommend that defendants Bexar County Elections' and Gerry Rickhoffs motion to dismiss, or alternatively, for summary judgment (Docket Entry 3) be GRANTED as plaintiffs have failed to state a claim upon which relief can be granted against these two defendants. Further, defendants' request for an award of attorneys' fees (Docket Entry 3) should be DENIED as defendants have failed to cite statutory authority entitling them to such an award.
V. Instructions For Service And Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this Memorandum and Recommendation on each and every party either (1) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk. According to Title 28 U.S.C. § 636(b)(1) and FED. R. Civ. P. 72(b), any party who desires to object to this report must serve and file written objections to the Memorandum and Recommendation within 10 days after being served with a copy unless this time period is modified by the District Court. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the District Court need not consider frivolous, conclusive or general objections. Such party shall file the objections with the Clerk of the Court, and serve the objections on all other parties and the Magistrate Judge. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the District Court. Additionally, any failure to file written objections to the proposed findings, conclusions and recommendations contained in this Memorandum and Recommendation within 10 days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.
See Thomas v. Arn , 474 U.S. 140, 149-152 (1985).
Douglass v. United Servs. Auto. Ass'n , 79 F.3d 1415, 1428-29 (5th Cir. 1996).
SIGNED this 4th day of September, 2001.
NANCY STEIN NOWAK United States Magistrate Judge