MacLEAN v. ARENTZ LAW GROUP

MEMORANDUM OPINION AND ORDER

JOHN McBRYDE, District Judge.

Came on for consideration the motion of defendants Arentz Law Group, Attorneys at Law, PLLC, Arentz Law Group, PC, and the Johnston Law Group (collectively "movants") for summary judgment. The court, having considered the motion, the response of plaintiff, John R. MacLean, the reply, the record, the summary judgment evidence, and applicable authorities, finds that the motion should be granted in part.

I.

Plaintiff's Claims

The operative pleading is plaintiff's first amended class action1 complaint filed November 9, 2016. Doc.2 21. Plaintiff's claims are based on an automated telephone call he received at his home that he says was designed to illegally solicit his participation in mass tort litigation involving inferior vena cava filters. Plaintiff asserts two causes of action: first, for violation of Tex. Gov't Code § 82.0651(a), and second, for violation of Tex. Gov't Code §82.0651(c).

II.

Grounds of the Motion

Movants urge two grounds in support of their motion. First, they are entitled to judgment as to the first cause of action because plaintiff was never their client; hence, section 82.0651(a) does not afford him any relief. Second, movants did not solicit or knowingly cause or finance any third party to solicit plaintiff.

III.

Applicable Legal Principles

Rule 56(a) of the Federal Rules of Civil Procedure provides that the court shall grant summary judgment on a claim or defense if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The movant bears the initial burden of pointing out to the court that there is no genuine dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986). The movant can discharge this burden by pointing out the absence of evidence supporting one or more essential elements of the nonmoving party's claim, "since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323. Once the movant has carried its burden under Rule 56(a), the nonmoving party must identify evidence in the record that creates a genuine dispute as to each of the challenged elements of its case. Id. at 324; see also Fed. R. civ. P. 56(c) ("A party asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record. . . ."). If the evidence identified could not lead a rational trier of fact to find in favor of the nonmoving party as to each essential element of the nonmoving party's case, there is no genuine dispute for trial and summary judgment is appropriate. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 597 (1986). In Mississippi Prot. & Advocacy Sys., Inc. v. Cotten, the Fifth Circuit explained:

929 F.2d 1054, 1058 (5th Cir. 1991).

The standard for granting a motion for summary judgment is the same as the standard for rendering judgment as a matter of law.3 Celotex Corp., 477 U.S. at 323. If the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial. Matsushita, 475 U.S. at 597; see also Mississippi Prot. & Advocacy Sys., 929 F.2d at 1058.

IV.

Analysis

A. Barra try

The Texas Government Code provides, in pertinent part:

Tex. Gov't Code Ann. §82.0651(a) & (c) (West Supp. 2016).

The Penal Code, in turn, provides, in pertinent part:

Tex. Penal Code Ann. § 38.12 (a) & (b) (West 2016).

And, the Texas Disciplinary Rules of Professional Conduct provide, in pertinent part:

Tex. Disciplinary Rules Prof'l Conduct R. 7.03, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G, app. A (West 2013) (hereinafter "Rule 7. 03") .

B. Tex. Gov't Code §82.0651(a)

As movants note, subsection (a) of section 82.0651 says that a client may bring an action thereunder. As plaintiff readily admits that he never became a client of movants, this provision does not apply to him.4 Smith v. Texas, No. H-12-469, 2012 WL 5868657, at *11 (S.D. Tex. Oct. 26, 2012).

C. Tex. Gov't Code § 82.0651(c)

The second ground of the motion urges that movants did not violate subsection (c) of the statute, because they did not directly solicit plaintiff, knowingly cause anyone else to do so, or knowingly finance anyone else's doing so. They contend that their summary judgment evidence establishes that they did not violate section 38.12 or Rule 7.03. They argue that Rule 7.03 explicitly permits automated, opt-in telephone calls like the one at issue in this case. Rule 7.03, cmt. 1 (solicitations that do not present opportunities for abuse, •such as pre-recorded telephone messages requiring a separate return call to speak to or retain an attorney . . are permitted") . And, Penal Code 38.12(c) excepts from prosecution under subsections (a) and (b) conduct that is authorized by the Texas Disciplinary Rules of Professional Conduct.

Plaintiff wants to ignore the exception, but the cases he relies upon, e.g., O'Quinn v. State Bar of Tex., 763 S.W.2d 397, 403 (Tex. 1988); State v. Sandoval, 842 S.W.2d 782, 791 (Tex. App.-Corpus Christi 1992, pet. ref'd), do not discuss a fact situation like the one alleged here. However, neither do movants cite any cases to show that what happened here is authorized. They have not pointed to any summary judgment evidence to show that the pre-recorded telephone message to plaintiff required a separate return call to speak to or retain an attorney. Rather, the declaration of Robert Arentz says that phone calls were transferred to Arentz Law Group, P.C. Doc. 51 at 7. And, plaintiff's declaration reflects that he spoke with a female and "was informed that Defendant Christopher Kyle Johnston from Louisiana would be [his] lawyer." Doc. 65 at 2, ¶ 7. He was given another number to call because he asked for one. Id. At the very least, plaintiff has raised a fact issue as to whether barratry actually occurred.

Movants have established that Arentz Law Group, Attorneys at Law PLLC, handles criminal and bankruptcy cases and did not participate in the calling practice about which plaintiff complains. Accordingly, judgment for that defendant is being granted.

v.

Order

The court ORDERS that movants' motion for summary judgment be, and is hereby, granted in part and (1) plaintiff's claims asserted in count one of plaintiff's complaint be, and are hereby, dismissed; and (2) plaintiff's claim asserted in count two of plaintiff's complaint as to defendant Arentz Law Group, Attorneys at Law PLLC, be, and is hereby dismissed. The court otherwise ORDERS that the motion for summary judgment be, and is hereby, denied.