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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION ERIC WILLIAMS V. CITY OF ARLINGTON, ET AL.

ACTION NO. 4:11-CV-093-Y

ORDER DENYING IN PART AND GRANTING IN PART MOTIONS TO DISMISS AND GRANTING LEAVE TO FILE AMENDED COMPLAINT Pending before the Court are the Motion to Dismiss (doc. 41) filed by defendant City of Arlington (Arlington) on August 5, 2011, the Motion to Dismiss (doc. 42) filed by the NFLCowboys Defendants1 on August 8; and the Motion to Dismiss (doc. 44) filed by defendant North Texas Super Bowl XLV Host Committee, Inc. (the Host Committee), on August 30. The Court DENIES IN PART and GRANTS IN PART the motions to dismiss and GRANTS Plaintiffs request for leave to amend his complaint.

I. BACKGROUND A. FACTS In 2006, the Dallas Cowboys and Jones began construction of Cowboys Stadium in Arlington, Texas. One of the goals of the stadiums design was to eventually host a Super Bowl championship football game. In 2007, the North Texas Super Bowl XLV Bidding Committee, Inc. (the Bidding Committee), began meeting with the NFL and Arlington about bidding to host Super Bowl XLV, which was to be held on February 6, 2011. The NFL informed the Bidding Committee

The NFL-Cowboys Defendants are the following defendants: National Football League (the NFL); Jerral Wayne Jones; JWJ Corporation; Cowboys Stadium, LP; Cowboys Stadium GP, LLC; and Blue & Silver, Inc. As necessary, the Court will refer to these defendants collectively as the NFL-Cowboys Defendants.

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that one of its requirements was that the host city regulate ambush marketing.2 The NFL required the host city to provide a clean zone of (1) a one-mile radius around the stadium and area airports and (2) a six-block radius around the NFLs headquarters hotel and sites holding NFL activities such as the NFL Experience. The NFL stated that if the city awarded Super Bowl XLV could not enact ambush-marketing provisions, the host citys Super-Bowl committee would have to pay the NFL $1,000,000. In May 2007, the NFL accepted the Bidding Committees offer for Super Bowl XLV to be held at Cowboys Stadium in Arlington. The Bidding Committee accordingly became the Host Committee. The NFL-Cowboys Defendants and the Host Committee played an integral role in coordinating [Arlingtons] implementation of an ambush-marketing ordinance. (2nd Am. Compl. 11 at 4.21.) On December 7, 2010, Arlington passed an ordinance temporarily prohibiting certain commercial activities within a protected area around Cowboys Stadium beginning January 23, 2011, through February 6, 2011: Outdoor advertising displays (including but not limited to portable signs, flags, banners, video screens, cold air balloons, electronic message boards, nighttime projections of commercial messages, inflatables and building wraps) visible from any public street shall be prohibited. Arlington, Tex. Ordinance 10-095 (Dec. 7, 2010). (Arlington App. 3.) The ordinance also prohibited outdoor festivals. Id. (Arlington App. 3.) Violations of the ordinance were characterized as misdemeanors, punishable by a fine not to exceed $500. Id. (Arlington App. 3.) The ordinance did not expressly exempt NFL sponsors from its enforcement.3 To enforce the ordinance, the NFL hired private security officers to police ambush marketing, and Arlington

Plaintiff Eric Williams defines ambush marketing as misleading advertising that attempts to create an association between the advertiser and a major sporting event and thereby deprives official sponsors of commercial value received from their sponsorship. (2nd Am. Compl. 6 at 4.8.)
3 Williams alleges that NFL sponsors were permitted to engage in activities that were forbidden by the ordinance. (2nd Am. Compl. 11 at 4.21.)

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earmarked funding to ensure compliance with the clean zone. (2nd Am. Compl. 9 at 4.16.) The remaining NFL-Cowboys Defendants and the Host Committee played in integral role in coordinating the . . . enforcement of the ordinance. (2nd Am. Compl. 11 at 4.21.) Before the Super Bowl, Williams, who is African American, agreed with a Best Buy store, which is located in the Lincoln Square shopping center and in the stadiums clean zone, to park a bus in Best Buys parking lot on February 4 through February 6. Williams intended to promote an anti-bullying campaign by hosting a video-game tournament on the bus. The bus had large banners emblazoned with pictures of Williams, pictures of African-American radio personalities, the Best Buy logo, a Geek Squad logo, and an anti-bullying message. On February 5 and 6, a music concert hosted by Coors Light and Plains Capital Bank also occurred in the Best Buy parking lot. Plains Capital Bank and Coors Light were official Super Bowl sponsors. On February 6, an Arlington code-compliance officer4 told Williams that he had to move the bus immediately because he did not have a permit. The compliance officer did not refer specifically to the ambush-marketing ordinance. (2nd Am. Compl. 14 at 4.27.) Representatives of Best Buy and Lincoln Squares property manager told the compliance officer that Williams had permission to be there. The compliance officer continued to insist that Williamss bus must be removed within the next ninety minutes or risk getting a ticket. The compliance officer returned approximately ninety minutes later and issued a ticket to Williams for violating the ambush-marketing ordinance. The compliance officer told Williams to leave within the next thirty minutes. When the compliance officer returned and Williamss bus was still in the clean zone, the compliance officer told Williams that the NFL had asked the compliance

The compliance officer was white.

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officers to get the bus out of the clean zone. Police officers5 arrived a short time later and told Williams he would be arrested and the bus towed if he did not leave the clean zone. The police officers left their lights and sirens on while talking with Williams and kept their hands on their guns. Williams left. Williams alleges that of the fourteen citations issued February 6 for violations of the ambush-marketing ordinance, all were issued to individuals (not businesses), eight were issued to African Americans, and one was issued to an Hispanic or Latino.6 (2nd Am. Compl. 16 at 4.34.) Williams has pleaded not guilty to the citation, but the case appears to be pending. B. PROCEDURE The day after the Super Bowl, Williams filed suit against the NFL-Cowboys Defendants, the Host Committee, and Arlington. Against all Defendants, Williams alleged that (1) the ordinance violated his rights to free speech and free association; (2) the ordinance and its selective enforcement violated his rights to due process under 1983; (3) the ordinance discriminates against individuals, like Williams, who are unable to contract with the NFL for sponsorship rights in violation of the Equal-Protection Clause; (4) the ordinance and its enforcement impaired his contractual relationship between Mr. Williams and the property owners with whom he contracted to host the anti-bullying campaign in the Best Buy parking lot; and (5) the selective enforcement of the ordinance violated Williamss civil rights under 1981. Against the NFL-Cowboys Defendants and the Host Committee, Williams additionally raises claims for (1) defamation; (2) tortious interference with his contracts and business relations with Lincoln Square and Best Buy; (3) intentional infliction of emotional distress by lobbying for passage of and enforcement of the ordinance; and (4) negligence. The NFL-Cowboys Defendants and the Host Committee argue that Williams has failed to

The police officers were white.

6 The remaining five individuals issued citations were not identified by race, although three had Hispanic or Latino surnames.

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raise a claim for relief that is plausible on its face. See Fed. R. Civ. P. 12(b)(6). Specifically, they assert that they are immune from liability under the Noerr-Pennington doctrine and that Williamss claims lack any direct factual basis. Arlington also seeks dismissal of Williamss claims under Rule 12(b)(6).7

II. STANDARD OF REVIEW Federal Rule of Civil Procedure 12(b)(6) authorizes the dismissal of a complaint that fails to state a claim upon which relief can be granted. This rule must, however, be interpreted in conjunction with Rule 8(a), which sets forth the requirements for pleading a claim for relief in federal court. Rule 8(a) calls for a short and plain statement of the claim showing that the pleader is entitled to relief. FED. R. CIV. P. 8(a); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2002) (holding Rule 8(a)s simplified pleading standard applies to most civil actions). As a result, [a] motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted. Kaiser Aluminum & Chem. Sales v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982). The Court must accept as true all well-pleaded, non-conclusory allegations in the complaint and liberally construe the complaint in favor of the plaintiff. See id. The plaintiff must, however, plead specific facts, not mere conclusory allegations, to avoid dismissal. See Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992). Indeed, the plaintiff must plead enough facts to state a claim to relief that is plausible on its face, and his factual allegations must be enough to raise a right to relief above the speculative level, . . . on the

Arlington also seeks dismissal under Rule 12(b)(1) because the Court does not have jurisdiction over Williamss state-law claims based Arlingtons statutory immunity from liability. (Arlington Mot. 10.) But as Williams points out, his state-law claims are not asserted against Arlington. (Resp. 22.) To the extent Williams raises a defamation-by-stigma claim against Arlington, the Court considers Williamss statements in his response to be a waiver of any state-law claims against Arlington. (Resp. 22; 2nd Am. Compl. 20-21.) Thus, Arlingtons motion to dismiss under Rule 12(b)(1) is DENIED.

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assumption that all the allegations in the complaint are true (even if doubtful in fact). Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547, 556 (2007).

III. DISCUSSION A. NFL-COWBOYS DEFENDANTS AND HOST COMMITTEES IMMUNITY ARGUMENT The NFL-Cowboys Defendants and the Host Committee assert that they are immune from liability on Williamss claims based on the Noerr-Pennington doctrine. See generally United Mine Workers of Am. v. Pennington, 381 U.S. 657, 669-70 (1965); E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 135-36 (1961). This doctrine generally immunizes certain legislative lobbying activities. Pension Advisory Grp. v. Country Life Ins. Co., 771 F. Supp. 2d 680, 698-99 (S.D. Tex. 2011). However, the doctrine is a defense to liability, not an immunity from suit. See Acoustic Sys., Inc. v. Wenger Corp., 207 F.3d 287, 295 (5th Cir. 2000). A plaintiff typically is not required to plead, in the complaint, facts that negate an affirmative defense. See Jones v. Bock, 549 U.S. 199, 216 (2007). The Twombly standard did not revise the allocation of burdens concerning affirmative defenses. See Davis v. Ind. State Police, 541 F.3d 760, 763 (7th Cir. 2008). As such, the NFLCowboys Defendants and the Host Committee bear the burden of proof, and Williams is not required to plead in his complaint facts that negate their defense. Because there are fact issues inherent in this defense and because any decision would require consideration of evidence outside of the pleadings, it would be inappropriate to dismiss Williamss claims based on the NFL-Cowboys Defendants and the Host Committees affirmative defense under Rule 12(b)(6). See, e.g., Marrone Co. v. Barbour, 241 F. Supp. 2d 683, 690 (S.D. Miss. 2002); CamSoft Data Sys, Inc. v. S. Elecs. Supply, Inc., No. 09-1047-JJB, 2011 WL 3204701, at *4 (M.D. La. July 27, 2011); L-3 Commcns Integrated Sys., LP v. Lockheed Martin Corp., 2009-1 Trade Cas. (CCH) 76,520, 2008 WL 4391020, 6

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at *9 (N.D. Tex. Sept. 29, 2008) (Boyle, J.). B. CLAIMS AGAINST ALL DEFENDANTS 1. Constitutional Violations Williams asserts that Arlington, acting in concert with the NFL-Cowboys Defendants and the Host Committee, violated his constitutional rights, actionable under 1981 and 1983, to (1) freedom of political and commercial speech, (2) substantive and procedural due process, (3) equal protection, and (4) the contractual relationship between himself and the property owners by enacting and selectively enforcing the ambush-marketing ordinance. Recovery against a municipality under 1981 may not be predicated on a theory of respondeat superior. See Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011); Monell v. Dept of Soc. Serv. of New York, 436 U.S. 658, 694 (1978); Evans v. City of Houston, 246 F.3d 344, 357 (5th Cir. 2001). Rather, a municipality may be held liable under 1981 or 19838 for the deprivation of rights guaranteed by the Constitution or federal law only if the deprivation was the result of an official policy or custom. See Connick, 131 S. Ct. at 1359; Evans, 246 F.3d at 358. An official policy is: [a] policy statement, ordinance, regulation or decision that is officially adopted and promulgated by the municipalitys lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority. Alternatively, official policy is [a] persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Evans, 246 F.3d at 358; see Connick, 131 S. Ct. at 1359. Failure to train can amount to municipal custom or practice if it was done with deliberate indifference to the rights of persons with whom the untrained employees come into contact. Connick, 131 S. Ct. at 1359. To establish a violation of 1983, a plaintiff must show a violation of the Constitution or

Section 1981 does not itself create a cause of action against a municipality; rather, a plaintiff complaining of a municipalitys violation of 1981 must assert his claims via 1983. See Felton v. Polles, 315 F.3d 470, 481-82 (5th Cir. 2002); Oden v. Oktibbeha Cnty., Miss., 246 F.3d 458, 463-64 (5th Cir. 2001).

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federal law and establish that the violator was acting under color of state law. See Bown v. Miller, 519 F.3d 231, 236 (5th Cir. 2008). In doing so, the plaintiff cannot proceed under a theory of respondeat superior and must instead satisfy the custom-or-policy test fashioned for suits against a municipality under 1983. See Evans, 246 F.3d at 358 (5th Cir. 2001). This requires a plaintiff to show that: (1) his constitutional rights were violated, (2) the municipality had a custom or policy that constituted deliberate indifference to that constitutional right, and (3) the policy or custom was the moving force behind and caused the violation.9 See City of Canton v. Harris, 489 U.S. 378, 388 (1989); Crawford v. City of Houston, Tex., 260 Fed. Appx. 650, 652 (5th Cir. 2007). To impose liability on a private actor, the private actor must have been acting under color of state law. See Cornish v. Corr. Servs. Corp., 402 F.3d 545, 549 (5th Cir. 2005). Williams alleges that the official policy and custom was the ambush-marketing ordinance itself and the fact that Arlington decided to abrogate oversight and/or control of the implementation and enforcement of the ambush marketing ordinance to the NFL-Cowboys Defendants and/or the Host Committee. (Combined Resp. 14.) Williams specifically states that he does not allege any racial motive behind the ambush-marketing ordinance, but asserts the ordinance was selectively enforced in a racially-discriminatory manner. (Combined Resp. 15.) Further, he asserts that Arlington, the NFL-Cowboys Defendants, and the Host Committee were so pervasively entwined with each other during the relevant time period, and with regard to the actions complained of, that each was a joint participant in the unlawful actions. (Combined Resp. 6; Resp. to Host Comm. Mot. 2-4.) Based on Williamss allegations, the Court cannot state that Williams has not alleged facts that push his First-Amendment, due-process, equal-protection, and Contracts-Clause claims from

9 This final element requires a direct causal connection between the policy and the alleged constitutional deprivation that is more than a mere but-for cause. See Fraire v . City of Arlington, 957f/ 1268, 1281 (5th Cir. 1992).

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the speculative to the plausible. Williams alleges in his second amended complaint that the compliance officer stated that the offensive images, which included pictures of African Americans, were why the ordinance was enforced against Williams. (2nd Am. Compl. 15 at 4.32.) Further, the police officers told Williams he had to leave even though the property tenants and management had given Williams permission to be there and even though other businesses were advertising there. (2nd Am. Compl. 14 at 4.27.) Williams also raises the fact that no businesses received tickets for violating the ambush-marketing ordinance and that twelve of the fourteen citations were issued to African-Americans, Hispanics, or Latinos. (2nd Am. Compl. 16 at 4.34.) Regarding Williamss allegations attempting to impose liability on the private actorsthe NFLCowboys Defendants and the Host Committeethe Court agrees with Williams that his allegations that the NFL-Cowboys Defendants and the Host Committee were acting jointly with Arlington to enact and enforce the ordinance are plausible. (Combined Resp. 6-9; Resp. to Host Comm. Mot. 45, 8, 12-15.) Cf. Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 (1961) (Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance. (emphasis added)). The Court finds that these facts and others alleged in his second amended complaint make Williamss claims of constitutional violations more than merely speculative. See Twombly, 550 U.S. at 556 ([A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable . . . .). 2. Permanent Injunction and Punitive Damages Williams also requests punitive damages from all defendants. (2nd Am. Compl. 26.) Arlington asserts that it is immune from punitive damages. Indeed, a plaintiff may not recover punitive damages from a municipality even if the plaintiff is successful in a claim brought under 1981 or 1983. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 711 (1989) ( 1981); Kentucky v. Graham, 473 U.S. 159, 167 n.13 (1985) ( 1983). Thus, punitive damages against Arlington are 9

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not recoverable. Williams also requests a permanent injunction prohibiting Defendants from implementing or enforcing this or any substantially similar ordinance now and in the future.10 (2nd Am. Compl. 25 at 16.1(d).) As Williams admits, the ordinance at issue expired on February 7, 2011. (2nd Am. Compl. 10 at 4.18; Combined Resp. 23.) But Williams argues that Arlington can be expected to enact the same or a similar ordinance in the future . . . for a major sporting event. (Combined Resp. 23.) The possibility that Arlington will ever again be in a position to pass a similar ordinance is far too remote and cannot support an injunction. See Forney Messenger, Inc. v. Tennon, 959 F. Supp. 389, 392 (N.D. Tex. 1997) (Solis, J.). B. CLAIMS AGAINST PRIVATE DEFENDANTS: STATE-LAW CLAIMS Williams asserts that the NFL-Cowboys Defendants and the Host Committee defamed him by creating a public spectacle in a crowded public forum before Williams moved the bus and stigmatized his reputation with Best Buy, which would also result in other lost business opportunities. Williams additionally alleges that the charge of violating the ambush-marketing ordinance will appear when school districts perform background checks on Mr. Williams before allowing him to work with their children, which will foreseeably create a negative stigma and result in school districts [refusing] to renew or engage in new contracts for Mr. Williams services. (2nd Am. Compl. 21-22 at 10.3, 10.5, 11.2-11.4.) Williams contends that the NFL-Cowboys Defendants and the Host Committee (1) tortiously interfered with his contracts and business relations with Lincoln Square and Best Buy, (2) intentionally inflicted emotional distress, and (3) were negligent. (2nd Am. Compl. 23-24.) As discussed above, Williams is required to plead plausible facts supporting each essential element of each cause of action he raises against the NFL-

10 Although Williams requests an injunction regarding Defendants, Williams argues the injunction would be directed to Arlington alone. (Combined Resp. 23.)

10

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Cowboys Defendants and the Host Committee. See Twombly, 550 U.S. at 555-56. The Host Committee argues that because Williams has waived his state-law claims against Arlington, he cannot impose tort liability on the Host Committee based on pervasive entwinement with Arlingtons actions. (Host Comm. Reply 7-8.) In short, the Host Committee contends that if Williams does not raise a tort claim against Arlington, he cannot raise a tort claim against the Host Committee as a private actor based on joint action with Arlington. However, a plaintiff need not show that each defendant is individually liable for an underlying tort. A plaintiff need only show that at least one named defendant committed a tortious act and that the defendant at issue jointly acted to commit that tort. See Chemtreat, Inc. v. Chemtech Chem. Servs., LLC, No. 1:07-CV-146, 2007 WL 4353420, at *6 (E.D. Tex. Dec. 7, 2007). The Hosts Committees position is too restrictive, especially in a deferential Rule 12(b)(6) review. 1. Defamation The elements of a defamation cause of action in Texas against a non-public figure are that the defendant (1) published a statement of fact to a third party, (2) that was defamatory concerning the plaintiff, (3) while acting with negligence. See WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). Williams makes no allegation in his second amended complaint or argument in his responses that the statement (the ticket for violating the ambush-marketing ordinance) has been actually published to a third party. Although he asserts that the ticket is calculated to appear during background checks, this is speculation based on events that have not occurred and may never occur. (2nd Am. Compl. 22 at 11.2.) Thus, to the extent his defamation claim is based on the citation for violating the ambush-marketing ordinance, that claim is not plausible because there was no allegation of publication to a third party. See Abbott v. Pollock, 946 S.W.2d 513, 519-20 (Tex. App.Austin 1997, writ denied). Williams also alleges that the police officers threat to arrest him, the compliance officers 11

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accusations that the bus was offensive, and the public spectacle created by the police officers constituted defamation. (2nd Am. Compl. 21-23 at 10.3, 10.6, 11.3, 11.6.) Unlike his defamation claim regarding the ticket, Williams includes allegations of publication to third parties. Further, there are sufficient allegations regarding the remaining defamation elements to evade dismissal under Rule 12(b)(6).11 Further, the NFL-Cowboys Defendants and the Host Committees arguments that there are no allegations they specifically defamed Williams have been adequately rebutted by Williamss assertions of pervasive entwinement. 2. Tortious Interference with Contract and Business Relationships The elements of a claim for tortious interference with an existing contract are (1) an existing contract subject to interference, (2) a willful and intentional act of interference with the contract, (3) the interference proximately caused the plaintiffs injury, and (4) actual damages or loss. See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 207 (Tex. 2002). To prove a cause of action for tortious interference with a prospective contract or business relationships, a plaintiff must establish: (1) a reasonable probability that the parties would have interred into a business relationship, (2) an intentional, malicious intervention or an independently tortious or unlawful act performed by the defendant with a conscious desire to prevent the relationship from occurring or with knowledge that the interference was certain or substantially likely to occur as a result of its conduct; (3) a lack of privilege or justification for the defendants actions, and (4) actual harm or damages suffered by the plaintiff as a result of the defendants interference, i.e. the defendants actions prevented the relationship from occurring. See Bradford v. Vento, 48 S.W.3d 749, 757 (Tex. 2001). The NFL-Cowboys Defendants and the Host Committee solely argue that there is no

The Court questions whether conduct alone, i.e., the public spectacle created by the lights and sirens, can constitute defamation. But no party has addressed this argument, and the Court is not willing to dismiss under Rule 12 Williamss complaint based on an argument no party has raised.

11

12

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evidence that they, as opposed to Arlington, interfered with Williamss contract or his prospective business relationships. (NFL-Cowboys Mot. 14; Host Comm. Mot. 8.) As discussed above, Williamss allegations of pervasive entwinement and joint-and-several action serve to save his allegation from dismissal. The NFL-Cowboys Defendants and the Host Committee point to no other defect in Williamss complaint regarding this claim. 3. Intentional Infliction of Emotional Distress Intentional infliction of emotional distress is a very narrowly-construed and rare tort that is available only if a plaintiff has no other recognized theory of redress. See Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 (Tex. 2005). In other words, as long as another existing statutory or common-law remedy is available to Williams for the behavior underlying his intentional-inflictionof-emotional-distress claim, Williamss claim fails. See Hoffman-La Roche, Inc. v. Zeltwanger, 144 S.W.2d 438, 447 (Tex. 2004). The conduct underlying Williamss claim for intentional infliction of emotional distress is the same conduct underlying his other claim. Whether he actually succeeds on these claims is immaterial. See id. at 448. Thus, Williamss intentional-infliction-of-emotionaldistress claim is not cognizable and must be dismissed. See, e.g., Von Beck-Lutes v. Arning, 484 F. Supp. 2d 585, 588 (W.D. Tex. 2007); Almond v. Tarver, 468 F. Supp. 2d 886, 904-05 (E.D. Tex. 2006); Johnson v. Blue Cross/Blue Shield of Tex., 375 F. Supp. 2d 545, 549-50 (N.D. Tex. 2005) (Cummings, J.). 4. Negligence Negligence requires proof that (1) the defendant owed a legal duty to the plaintiff, (2) the defendant breached that duty, and (3) the breach proximately cause the plaintiffs injury. See Nabors Drilling, U.S.A., Inc. v. Excoto, 288 S.W.3d 401, 404 (Tex. 2009). As with Williamss other claims, the NFL-Cowboys Defendants and the Host Committees argument that only Arlington enforced the ordinance is belied, at least for Rule 12 purposes, by Williamss arguments of pervasive 13

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entwinement and joint action. (Resp. to Host Comm. Mot. 12.) The NFL-Cowboys Defendants and the Host Committee also assert that this claim is subject to dismissal because Williams failed to allege what duty they owed to Williams or how they breached that duty. Williams does allege, however, that the NFL-Cowboys Defendants and the Host Committee owed him a duty of ordinary care and that they breached that duty through lobbying for enactment of and selective enforcement of the ordinance. (2nd Am. Compl. 24.)

IV. CONCLUSION The majority of Williamss substantive allegations against the defendants are sufficient to nudge his claims into the realm of plausibility. However, Williamss claim for intentional infliction of emotional distress, punitive-damages request, and request for a permanent injunction against Arlington are untenable. Accordingly, the Court DISMISSES Williamss (1) intentional-inflictionof-emotional-distress claim against the NFL-Cowboys Defendants and the Host Committee, (2) request for punitive damages against Arlington, and (3) request for a permanent injunction against all defendants. Similarly, Williamss defamation claim against the NFL-Cowboys Defendants and the Host Committee based on the issuance of the ticket is subject to dismissal because there is no allegation of publication to a third party. Williams requests leave to amend his complaint should this Court find his second amended complaint defective. (Combined Resp. 25.) Thus, Williams is GRANTED leave to file an amended complaint that addresses the defect regarding the defamation claim against the NFL-Cowboys Defendants and the Host Committee. Williams must file the amended complaint no later than fourteen days from the date of this order or this portion of Williamss defamation claim will be dismissed without further notice. The Court reminds the parties that the Courts conclusion that Williamss claims are TRM/ah 14

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plausible is not a conclusion that there is a genuine dispute as to any material fact. SIGNED October 11, 2011. ____________________________ TERRY R. MEANS UNITED STATES DISTRICT JUDGE

TRM/ah

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