In this edition of Litigation Roundup, the Fifth Circuit asks for the Texas Supreme Court’s input in a drowning death case, the city of Uvalde agrees to release its records related to the Robb Elementary shooting, and Munck Wilson Mandala is dealt a blow in a RICO lawsuit it brought against the owners of a Dallas building where it leases office space.
The Litigation Roundup is a weekly feature highlighting the work Texas lawyers are doing inside and outside the state. Have a development we should include next week? Please let us know attlblitigation@texaslawbook.net.
Uvalde County District Court
Settlement Talks Yield Open Records Release in Uvalde
The city of Uvalde has agreed to release its records related to the 2022 mass shooting at Robb Elementary School in the wake of settlement negotiations over access to public records.
The lawsuit — brought by The Texas Tribune, ABC News, the Associated Press, Gannett, Hearst, NBC News, The New York Times, The Washington Post and others — was brought against the city of Uvalde, its school district and Uvalde County in 2022 after officials repeatedly denied requests for open records.
Haynes Boone partnerLaura Prather, who is representing the media plaintiffs, issued a statement thanking the city for “taking this step toward transparency.”
“For more than two years, our Haynes Boone team has fought for the release of records related to the tragic mass shooting at Robb Elementary,” she said. “We’re still waiting on Uvalde CISD, Uvalde County and Texas DPS to release dozens of interviews, hundreds of body camera videos and thousands of investigative files. Transparency is necessary to help Uvalde heal and allow us all to understand what happened and learn how to prevent future tragedies.”
The city agreed to release its records on Aug. 10.
A Travis County district judge in June 2023 issued a similar ruling in a related case, requiring the Texas Department of Transportation to release certain records.
DPS has appealed that ruling.
Counsel information for the defendants wasn’t immediately available Monday.
The media plaintiffs are also represented by Haynes Boone associateReid Pillifant.
The case number is 2022-08-34516-CV.
Harris County District Court
Another Sexual Assault Suit Filed Against Massage Envy
A former Massage Envy massage therapist has sued her former employer, alleging a male coworker sexually assaulted her during a massage.
The plaintiff, identified as M.K., alleges that during an appointment she made in February 2024 with her colleague, Ronny Lee Hale Jr., that he touched her “vagin*l area and held his fingers there for several seconds.”
M.K. reported the incident to her manager and law enforcement two days later, according to the lawsuit. Hale was eventually fired after an investigation.
M.K. filed her lawsuit Aug. 6, naming as defendants Massage Envy Franchising, Effie Nguyen Management, which does business as Massage Envy Clear Lake and Hale Jr.
The case has been assigned to Harris County District Judge Beau Miller.
“The company has known for years about these kinds of assaults committed by Massage Envy therapists,” trial lawyer Anna Greenberg, who represents M.K., said in a news release.“But Massage Envy continuously fails to protect its customers and employees from assault. It’s maddening.”
Greenberg currently is representing a woman, identified as R.Q., who has filed a suit in Dallas County alleging a Massage Envy coworker sexually assaulted her during a massage appointment. In October 2023, Greenberg secured a $1 million settlement for another sexual assault lawsuit it brought against Massage Envy.
Counsel for Massage Envy and the other defendants had not filed an appearance as of Monday.
M.K. is also represented by Edward Blizzard of Blizzard Greenberg and Ryan Loya and Robert S. Kwok of Kwok Daniel.
The case number is 2024-49915.
Western District of Texas
CrowdStrike Draws Another Class Action Over Global Outage
A second proposed class action lawsuit has been filed against Austin-based cybersecurity software company CrowdStrike related to the July 19 global outage that impacted millions of Microsoft Windows users worldwide.
In a lawsuit that was filed Aug. 5 and assigned to U.S. District Judge Robert Pitman, airline passengers Julio Del Rio, Steven Bixby and Jack Murphy allege the CrowdStrike outage caused the cancelation of their flights.
Del Rio and his wife, who live in California, had planned to travel from o Hawaii’s Kona International Airport to Los Angeles on July 19. He ended up having to make alternative plans to get home that cost him about $1,200 and 17 hours in additional travel time after his flight was canceled, he alleges.
Murphy, who lives in Ohio, had planned to fly from Columbia, South Carolina, to Atlanta and then on to Cleveland, Ohio. And Bixby, who lives in Pennsylvania, planned to fly from Harrisburg to Chicago and then on to Fort Worth. Both men alleged they incurred additional expenses and were inconvenienced by the flight cancelations attributable to the CrowdStrike outage.
The proposed class action lawsuit filed by the trio of airline passengers appears to be just the second class-action claim lodged against CrowdStrike since the global outage. Last week, the Plymouth County Retirement Association filed suit alleging the outage caused significant drops in the value of CrowdStrike’s stock.
The passengers are represented by Houston solo practitioner Cory S. Fein.
The Plymouth County Retirement Associationis represented by Eric J. Belfi, Francis P. McConville and Guillaume Buell of Labaton Keller Sucharow in New York.
Counsel for CrowdStrike had not filed an appearance in either putative class action lawsuit as of Monday.
The case number in the passenger lawsuit is 1:24-cv-00881. The case number in the Plymouth County Retirement Associationcase is 1:24-cv-00857.
U.S. Court of Appeals for the Fifth Circuit
Panel Affirms Toss of Munck Wilson’s RICO Claim Against Landlord
In a three-sentence ruling issued Aug. 9, a panel determined the law firm Munck Wilson Mandala had not done enough to revive its Racketeer Influenced and Corrupt Organizations Act claims against five individuals and seven entities arising out of its lease of office space in Dallas.
The law firm had accused Mark D. Jordan and Bradford Phillips of being the ringleaders of a RICO enterprise that existed to defraud investors and tenants of commercial office buildings. The firm alleged that the defendants had charged them for “bogus and fictitious” operating expenses related to its lease of office space located in the 12,000 block of Coit Road.
The ruling affirms U.S. District Judge Barbara M.G. Lynn, who, in August 2023, entered a partial summary judgment axing the RICO claims. Judge Lynn declined to exercise supplemental jurisdiction over the firm’s remaining state law claims for civil conspiracy, unjust enrichment and fraud.
Judge Lynn wrote that the firm had failed to allege in its complaint that there was a “pattern of racketeering activity, because besides plaintiff’s own alleged injuries, plaintiff does not plausibly allege any other transaction involving the same alleged criminal enterprise.”
Judges Edith H. Jones, Jerry E. Smith and James C. Ho sat on the panel.
Munck Wilson is represented by its own Shain A. Khoshbin, Robert Linkin and Marina Bogorad.
The defendants are represented by John B. Schorsch Jr. of Schorsch & Associates in Dallas and Mitchell Madden of Holmgren Johnson: Mitchell Madden.
The case number is 23-10904.
Another Certified Question Sent to SCOTX
In a lawsuit brought by the family of a man who drowned while trying to forge a low-water crossing in his pickup truck on government property, the Fifth Circuit is asking for the Texas Supreme Court’s help.
The family of Anthony Barron, who was a civilian contractor employed at Camp Bullis, the U.S. military facility located outside of San Antonio, sued the federal government after his death, bringing claims for negligence, premises liability and negligent undertaking.
Barron died while trying to cross Wilkerson Road, according to court documents. Two roads run through Camp Bullis that are in a flood plain and are equipped with gates to block the crossings. In October 2015, during a heavy rainstorm, two officers responsible for checking low-water crossings closed the gate on Camp Bullis Road but had not yet inspected the low-water crossing on Wilkerson Road when Barron was driving down that road to get to work.
His vehicle was swept away and he drowned. The Fifth Circuit agreed with U.S. District Judge Xavier Rodriguez that the claim for negligence and premises liability are barred by Texas law but said it needed Texas Supreme Court input on the negligent undertaking claim.
The panel sent this certified question to the Texas Supreme Court in an Aug. 6 opinion:
“Can a landowner’s affirmative act create a duty to protect an invitee from dangers caused by naturally occurring conditions under a theory of negligent undertaking where the natural accumulation doctrine bars recovery under a theory of premises liability?”
Judges Jennifer Walker Elrod, Irma Carrillo Ramirez and U.S. District Judge for the Eastern District of Louisiana Barry W. Ashe sat on the panel. Ashe sat by designation.
Barron is represented by Sean A. McConnell of Winckler, Harvey, McConnell in Austin.
The United States is represented by Robert D. Green of the U.S. Attorney’s Office in San Antonio.
The case number is 23-50515.
Mick Jagger, Rolling Stones Get Toss of Copyright Infringement Suit Affirmed
A Spanish musician who sued Mick Jagger and The Rolling Stones for copyright infringement in the Eastern District of Louisiana cannot proceed with his lawsuit because courts there do not have jurisdiction over the dispute, the Fifth Circuit affirmed.
In an Aug. 8 per curiam opinion, Judges Edith Brown Clement, James E. Graves Jr. and Irma Carrillo Ramirez agreed with the trial court that the jurisdictional defect mandates dismissal of Sergio Garcia Fernandez’ lawsuit against the band and its members.
Fernandez, who lives in Spain and, as the court noted, “has no apparent ties to Louisiana,” filed this suit in Louisiana in May 2023. He alleged he shared a demo CD with an “immediate family member” of Jagger in 2013 and that the band ripped off his work with its 2020 track “Living in a Ghost Town.”
Once the defendants urged dismissal on the issue of jurisdiction, Fernandez asked that his suit be transferred to the Southern District of New York. When that request was denied, this appeal followed.
The panel rejected Fernandez’ argument that because the allegedly infringing music is available on the internet that is sufficient to establish jurisdiction in Louisiana.
“But our court has explained that ‘[m]erely running a website that is accessible in all 50 states, but that does not specifically target the forum state, is not enough to create ‘minimum contacts’ necessary to establish personal jurisdiction in the forum state,’” the panel wrote. “… Not only do the defendants lack minimum contacts with the forum, but there is no connection between the forum and the specific claims at issue.”
Fernandez is represented by DaShawn Hayes of New Orleans.
Jagger and The Rolling Stones are represented by Ashley Heilprin of Phelps Dunbar in New Orleans.
The case number is 23-30909.
Panel Affirms Win for Doctors in Ponzi Scheme Fallout
A group of 16 doctors who were victims of a Ponzi scheme had a major victory affirmed recently after a three-judge panel determined the payment agreements between Balboa Capital and the physicians were unenforceable as a matter of law.
The July 30 ruling affirms a summary judgment win handed down by U.S. District Judge Barbara M.G. Lynn in March 2023 that found equipment financing company Balboa could not recover the $11.5 million it alleged it was owed by the physicians.
The lawsuit, filed by Balboa in 2017, pitted victims of the Ponzi scheme perpetrated by America’s Medical Home Team against one another. MHT purported to be a software and services company that helped doctors establish telehealth practices, but according to court documents, it used Balboa’s money to pay off its debts and “never delivered anything of value to the physicians.”
The Fifth Circuit held that the payment agreements between Balboa and the doctors were missing key details that rendered them unenforceable.
“Here, the payment agreements only disclose the duration of the financing and the scheduled payment amounts,” the panel wrote. “The payment agreements do not include the total amount financed or the cost of financing. Because of these omissions, the precise terms of the parties’ supposed agreements remain uncertain.”
Judges Cory T. Wilson, James E. Graves Jr. and Chief Judge Priscilla Richman sat on the panel.
Balboa is represented by Justin Strother and Mark Sales of Diamond McCarthy.
The defendants are represented by George L Hampton IV, Dana Campbell, J.W. Beverly, Alyson Dudkowski and Stephanie Pittaluga of Ferguson Braswell Fraser Kubasta.
The case number is 23-10333.
