Langan et al v. Abbott et al, No. 1:2020cv00275 - Document 17 (W.D. Tex. 2021)
Court Description: ORDER GRANTING 11 Motion to Dismiss. Plaintiffs claims are DISMISSED WITHOUT PREJUDICE. Signed by Judge Robert Pitman. (dm)
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ments regarding samesex marriage and has opposed transgender rights, including “pressuring Target over its store policies, joining multi-state lawsuits, threatening the Fort Worth school district, and championing 2017’s ‘Bathroom Bill.’” (Resp., Dkt. 15, at 2, 6; Am. Compl., Dkt. 10, at 13–16). Plaintiffs also argues that Attorney General Paxton is a proper Defendant because the “attorney general has a constitutional Plaintiffs respond that interpreting the judiciary as statutorily tasked with enforcing Texas Family Code 45.103 “leads to an absurd result” where unconstitutional statutes would be “affirmatively challenged by lawsuits against the judiciary.” (Resp., Dkt. 15, at 3). The Court agrees that this appears to be a strange result. However, the Court notes that in some cases, like this one, statutes may indicate that they are to be enforced by judges for purposes of Ex parte Young analysis. See TEX. FAM. CODE 45.103(a) (“The court shall order a change of name under this subchapter.”) (emphasis added); Daves v. Dallas Cnty., No. 18-11368, 2020 WL 7693744, at *12 (5th Cir. Dec. 28, 2020) (“Under Texas law, ‘[t]he amount of bail to be required in any case is to be regulated by the court, judge, magistrate or officer taking the bail.’ . . . The Magistrate Judges have a sufficient connection to invoke the Ex parte Young exception to sovereign immunity because they have a concrete statutory duty to enforce the challenged law.”) (quoting TEX. CODE CRIM. PRO. art. 17.15). 1 6 Case 1:20-cv-00275-RP Document 17 Filed 02/08/21 Page 7 of 8 duty to defend challenges to state law” and has authority to bring suit to enforce Section 45.103. (Id. at 3, 5) (citing In re State, 489 SW 3d 454, 456 (Tex. 2016) (Willett, J., concurring)). In City of Austin v. Paxton, the plaintiff challenged a state law that invalidated a city ordinance by suing Attorney General Paxton. 943 F.3d at 996. The Fifth Circuit held that “the mere fact that the Attorney General has the authority to enforce [the state statute] cannot be said to ‘constrain’ the City from enforcing the Ordinance. The [Plaintiff] simply provides no evidence that the Attorney General may ‘similarly bring a proceeding’ to enforce [the state statute]: that he has chosen to intervene to defend different statutes under different circumstances does not show that he is likely to do the same here.” Id. at 1001–02. As a result, under City of Austin, Attorney General Paxton’s ability to bring suit to enforce Section 45.103 is insufficient to overcome sovereign immunity. Similarly, Attorney General Paxton’s efforts to oppose same-sex marriage and transgender rights in other situations does not rise to the necessary level under current Fifth Circuit precedent to demonstrate that Attorney General Paxton would intervene in a case to defend Section 45.103. Accordingly, Plaintiffs have not demonstrated that Attorney General Paxton has a sufficient connection to the enforcement of Section 45.103 and therefore Plaintiffs’ claims against him are barred by Eleventh Amendment immunity. Because the Court finds that Plaintiffs’ claims against Defendants are barred by the Eleventh Amendment, the Court does not explicitly reach the issue of standing but notes that “Article III standing analysis and Ex parte Young analysis ‘significantly overlap.’” Id. at 1002. Plaintiffs have already amended their complaint once in response to a motion to dismiss. (Am. Compl., Dkt. 10). Although Federal Rule of Civil Procedure 15(a)(2) permits a court to grant leave to amend pleadings and “evinces a bias in favor of granting leave to amend, it is not automatic.” Matter of Southmark Corp., 88 F.3d 311, 314 (5th Cir. 1996) (internal quotation marks and citation omitted). Among other things, “a party must ‘expressly request’ leave to amend.” Law v. 7 Case 1:20-cv-00275-RP Document 17 Filed 02/08/21 Page 8 of 8 Ocwen Loan Servicing, L.L.C., 587 F. App’x 790, 796 (5th Cir. 2014) (quoting United States ex rel. Willard v. Humana Health Plan of Tex. Inc., 336 F.3d 375, 387 (5th Cir. 2003)). Even though “[a] formal motion is not always required,” the requesting party must still “set forth with particularity the grounds for the amendment and the relief sought.” Willard, 336 F.3d at 387. When a plaintiff fails to request leave to amend or indicate what might be added to the complaint if amendment were allowed, a district court may dismiss the cause of action with prejudice. See Joseph v. Bach & Wasserman, L.L.C., 487 F. App’x 173, 178 (5th Cir. 2012). Plaintiffs have neither requested leave to amend their complaint nor indicated what they might add to an amended complaint. (See Resp. Mot. Dismiss, Dkt. 15). The Court therefore declines to sua sponte permit Plaintiffs to amend their complaint a second time. IV. CONCLUSION Accordingly, IT IS ORDERED that Defendants’ motion to dismiss, (Dkt. 11), is GRANTED. Plaintiffs’ claims are DISMISSED WITHOUT PREJUDICE. SIGNED on February 8, 2021. ROBERT PITMAN UNITED STATES DISTRICT JUDGE 8
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